Affiliate Terms & Conditions with Alka-White® Mouthwash, LLC
THE FOLLOWING DESCRIBES THE TERMS ON WHICH ALKA-WHITE® OFFERS YOU ACCESS TO OUR WEBSITE.
This Affiliate Agreement (“Agreement”) describes the terms and conditions applicable to your acting as an affiliate of Alka-White® Mouthwash, LLC. If you do not agree to be bound by the terms and conditions of this Agreement, do not link to our website and/or promote our goods and/or services (the “Services”).
You must read, agree with, and accept all of the terms and conditions contained in this Affiliate Agreement, which include those terms and conditions expressly set out below and those incorporated by referenced, before you may link to or use any Alka-White® Mouthwash, LLC website.
This Agreement constitutes the entire agreement of the Parties hereto. This Agreement is entered into by the Affiliate (“Affiliate” or “you”) and Alka-White® Mouthwash, LLC, a New York limited liability corporation (“Alka-White® Mouthwash, LLC” or “AW” or “We”), with its principal address at 28 South Delrey Road, Montauk, NY 11954, USA (individually, “Party,” and, collectively, “Parties”).
We may amend this Agreement at any time by posting the amended terms on our website. Except as stated below, all amended terms shall be effective automatically upon the expiration of thirty (30) days from the time they are posted to our website. This Agreement may not be otherwise amended except in writing signed by you and Alka-White® Mouthwash, LLC. This Agreement has an effective date of October 29th, 2018.
1. Applicable Rules
The terms of Alka-White® Mouthwash, LLC’s Policies and Procedures currently in effect, and as amended from time to time, and Alka-White® Mouthwash, LLC’s Affiliate Rules currently in effect, and as amended from time to time, are hereby incorporated into this Agreement.
If accepted as a participant in Alka-White® Mouthwash, LLC’s Affiliate Program (the “Program”), you will be granted, subject to the terms and conditions of this Agreement, the non-exclusive right to earn commissions on certain sales generated by Alka-White® Mouthwash, LLC from customers voluntarily referred to our website from your website by means of an Internet Hypertext Transfer Link placed on your website. To become a participant in the Program, you will first have to complete Alka-White® Mouthwash, LLC’s Affiliate Application via our website. We will evaluate your application and notify you by e-mail whether your application has been accepted or declined. We may decline your application if we determine, in our sole discretion, that your website or business is not suitable for the Program for any reason whatsoever, and acceptance of your application is neither assured nor guaranteed.
Affiliate status is available only to those individuals and entities who can enter into and execute legally binding contracts under applicable law. Without limiting the foregoing, affiliate status is not available to minors. If you are a minor, you may enter into affiliate status only in conjunction with your parents or guardians. By registering as an affiliate, you represent that you are an individual or entity that can enter into and execute legally binding contracts under applicable law. If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement.
Affiliate agrees: (a) to use Alka-White® Mouthwash, LLC’s system in a manner that is ethical and in conformity with community standards; (b) to respect the privacy of other affiliates (meaning specifically, but not exclusively, that you shall not intentionally seek data or passwords belonging to other affiliates, nor will you modify files or represent yourself as another affiliate unless explicitly authorized to do so by that affiliate); (c) to respect the legal protection provided by copyright law, trade secret law, or other laws protecting intellectual property; and (d) to accept commercial e-mails from AW. AFFILIATE’S STATUS WILL BE TERMINATED IMMEDIATELY AND WITHOUT WARNING SHOULD AFFILIATE USE Alka-White® Mouthwash, LLC’S SYSTEM AS PART OF ANY BULK E-MAIL CAMPAIGN. You may also be subject to fines and legal actions as a result of any bulk e-mail promotion.
5. Links & Banners
You may display our website links (the “Links”) on your website and market our products (the “Products”), provided you fully abide by the terms and conditions of this Agreement. In using the Links, you agree to cooperate fully with AW in order to establish and maintain the Links. You shall use only those Links and advertising banners (the “Banners”) that we provide to you, or those approved in writing by us, and to substitute those Links or Banners with any new Links or Banners that AW may provide to you from time to time during the term of this Agreement. You shall comply with all guidelines provided by us with respect to the graphic reproduction, appearance, and “look and feel” of the Links or Banners and all references to AW.
5-1. No Spam or Forced Linking
You shall not send unsolicited commercial e-mail (“Spam”) with a Link, AW’s URL, or any other reference to Alka-White® Mouthwash, LLC or its products or services referenced in the e-mail. You also shall not force visitors to our website via any mechanism which acts as an automatic transport, such as “meta refresh” or “forced exit” scripts. The Agreement shall terminate immediately and automatically if you direct traffic to our website through the use of spam or any automatic transport mechanism or otherwise use a Link in an unauthorized fashion, and in such case all commissions earned shall be immediately and automatically forfeited.
6. Commission & Payments
Alka-White® Mouthwash, LLC agrees to pay its Affiliates certain commission as described on our website, as amended from time to time. Alka-White® Mouthwash, LLC may change its commission schedules and rates by means of posting the new information on our websites. For a sale to generate a commission, the customer must: (a) follow a Link from your website to our website; (b) purchase the products using our online ordering system; and (c) remit full payment to us. You shall have no claims to commission or compensation on business secured by or through other persons or entities. Also, we will not issue a commission payment to you if you refer yourself from a Link that is operated or controlled by your site.
We will pay your commission approximately on the first (1st) of every month for which you have earned a commission. We will send you payment via the ShareASale platform. Minimum commission amount must reach FIFTY and 00/100 ($50 US) in order to be dispersed. Commission may be less if any taxes or fees are required to be withheld under applicable law.
6-2. Policies and Pricing
Customers who buy products through the Alka-White® Mouthwash, LLC Affiliate Program are a customer of Alka-White® Mouthwash, LLC. All Alka-White® Mouthwash, LLC rules, policies, and operating procedures concerning customer orders, customer service, and sale apply to these customers. We may change our rules, policies, and/or operating procedures at any time. We will determine the prices to be charged for products and services sold under the Program in accordance with our own pricing policies, and prices and availability may vary from time to time. We shall have no obligation to share any customer information collected by Alka-White® Mouthwash, LLC, including, without limitation, name and contact information.
6-3. Order Processing
We will be responsible for processing all orders placed by customers who follow the Links from your website to our website. All aspects of order processing and fulfillment, including order entry, customer service, downloads, cancellations, returns, and payment processing will be our sole responsibility. You agree to immediately refer to us any customer inquiries concerning the foregoing or Alka-White® Mouthwash, LLC, its Products or services, via e-mail delivered to the following address: [email protected]. You shall not misrepresent the Alka-White® Mouthwash, LLC or otherwise make any claims, representations, or warranties in connection with our products or services, and shall have no authority to, and shall not, bind us to any obligations. Any attempts to so bind AW shall be consider null and void ab initio.
7. Affiliate Obligations
You will be solely responsible for, and Alka-White® Mouthwash, LLC shall have no liability related to, the development, operation, and maintenance of your website.
7-2. No Confusing Content
You agree that the domain name for your website does not and will not contain the “Alka-White® Mouthwash, LLC” trademarks or trademark applications (the “Marks”), or any variation thereof. Your website may not copy, “co-brand” or “frame” our website or otherwise have any portion of our website visible on your website, or otherwise have any portion of your website visible on the screen once a use has clicked through to our website. Your website will not in any way copy any content from, or resemble the look and feel of, the Alka-White® Mouthwash, LLC websites, nor may you or your website create the impression that your website is the Alka-White® Mouthwash, LLC or is part of the Alka-White® Mouthwash, LLC Website. You also agree not to purchase or otherwise contract with a third party to exploit any of the Alka-White® Mouthwash, LLC Marks for the purpose of causing your website to appear as a search engine result or for any other reason. All content on the Alka-White® Mouthwash, LLC website is the copyrighted material of Alka-White® Mouthwash, LLC and may not be copied without prior written permission from Alka-White® Mouthwash, LLC. All Links and Banners used you to link to our website must be taken from the Affiliate Program from the Alka-White® Mouthwash, LLC affiliate website in accordance with the terms of this Agreement.
7-3. No Discount Sales
Under no circumstances may any Partner website in any way state or imply, in text or otherwise, that the Partner website offers or sells Alka-White® Mouthwash, LLC products or services on sale, off-price, at a discount, or otherwise at lower than regular prices as established and offered by AW, in AW’s sole and absolute discretion. Affiliate shall not use promotional content to redirect visitors to sites dedicated to coupon promotion, discount promotion, or offer promotions.
Affiliate shall not advertise on any Internet search engine for “search words” trademarked by Alka-White® Mouthwash, LLC. These include and are not limited to: TBD
7-5. Account Activity
Commissions are subject to forfeiture if Affiliate becomes inactive, as evidenced by not providing complete payment details and/or not receiving any click through activity or commissions for a period of twelve (12) months, and Affiliate being unreachable or unresponsive by e-mail, phone, and postal mail for a period of ninety (90) consecutive days.
7-6. Third-Party Tracking & Software
Affiliates shall not use third-party tracking, redirect, or “cloaking” software. These include, but are not limited to, Tapfiliate, PingAffiliate, and any other similar software or software. Alka-White® Mouthwash, LLC is not held responsible for missing or failed possible commissions if one should choose to use such software program(s).
Alka-White® Mouthwash, LLC reserves the right to contact you via telephone, e-mail, or postal mail for the purposes of informing you of applicable changes, newsletters, or additions to the Service or any Alka-White® Mouthwash, LLC related products and services.
It is the intent of Alka-White® Mouthwash, LLC to treat our customers fairly and to comply fully with all Federal Trade Commission’s regulations related to advertising. As such, we require that our Publishers comply with these regulations, including, but not limited to: Federal Trade Commission 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Endorsement Guide”), which require, among other criteria, that material connection between advertisers and endorsers be disclosed. This means that directories, review/rating websites, blogs, and other websites, e-mail or collateral, that purpose to provide an endorsement or assessment of an advertiser must prominently disclose the fact that financial or in-kind compensation is provided from the advertiser.
In order to participate in any Publisher Program offered through the Alka-White® Mouthwash, LLC Affiliate Program, you hereby agree that (i) you will at all times adhere to the FTC Endorsement Guides; (ii) your participating website(s) and communications in connection therewith will reflect your honest views, opinions, and experiences; and (iii) you will disclose your affiliate relationship with the applicable Network Advertiser when discussing such Network Advertiser or its products (collectively, “Network Products”), whether directly or indirectly.
You further agree that all such disclosures will comply with the following four (4) standards:
Placing one disclosure on your homepage or one link to the disclosure in your footer is not enough. Disclosures must be placed on every page of your website where there appears a review, recommendation, comment, or article that promotes a product for which you receive any form of compensation.
The disclosure must immediately make it clear to the user or reader that you are compensated for your review. You may include other information in your disclosure, such as whether you personally tested the product or that your review is honest, but you must disclose the fact that you are being compensated for your review first, at the beginning of said disclosure, and clearly. It should not be hidden in long sections of text or some other legal disclosure(s).
The disclosure must be conspicuous and easy to see on your website. Stated simply, the disclosure must stand out from the immediate surrounding space of your website where the disclosure appears. The disclosure must stand out from other text on the page as well so that the disclosure is immediately evident to all visitors, users, and/or readers. The disclosure text must be as large or large than the main text. The disclosure text must be colored (not black or gray) and contrast with both its background and the main text. The disclosure must not be lighter than its background or the main text. Finally, the disclosure must begin with the word “disclosure.”
(4) Freedom from Required Action
Your disclosure must be immediately visible to anyone who visits your review or endorsements. The visitor should not be required to take any action to view your disclosure. Such actions include, but are not limited to: (i) scrolling, which specifically means that your disclosure must appear “above the fold” and the visitor does not have to scroll down to see the disclosure; or (ii) clicking, which specifically means the visitor does not have to click a link to view the disclosure.
You are advised to seek and obtain your own legal counsel and advice on how these rules apply to your website or other promotional activities for which you receive compensation.
Alka-White® Mouthwash, LLC reserves the right to withhold commission fees or may suspend or terminate your participation in the Alka-White® Mouthwash, LLC Affiliate Program should we determine, in our sole and absolute discretion, that you are not in compliance with the United States Food and Drug Administration (“FDA”) and Federal Trade Commission (“FTC”) rules and regulations. For more information, please visit: http://www.business.ftc.gov/documents/bus09-dietary-supplements-advertising-guide-industry
During the term of this Agreement, Affiliate shall, at its own expense, maintain such levels and forms of product liability and general commercial liability insurance as Alka-White® Mouthwash, LLC may reasonably request. Affiliate shall provide written evidence of such insurance coverage. Affiliate will cause each such policy to include AW, or its designee(s), as an additional insured named on the policy, with a waiver of subrogation by the insurer.
11. Trade Practices & FCPA Compliance
Affiliate covenants, represents, and warrants to AW that it will not engage in any unfair or improper trade practice in the conduct of its business. Each party warrants and represents to the other party that neither it, nor any of its officers, directors, employees, agents, related parties, or other representatives, has performed or will perform any of the following acts in connection with this Agreement, any sale made or to be made pursuant to this Agreement, any compensation paid or to be paid pursuant to this Agreement, any payment made or to be made pursuant to this Agreement, or any other transactions involving the business interests of any party: (i)pay, offer, promise to pay, or authorize the payment of money or give or authorize the giving of any services or anything else of value either directly or through a third-party to any official or an employee of any state, local, or national government, or any of the agencies or subdivisions thereof, or of any government instrumentalities, or through any political party or official thereof, or to any candidate through political office for the purpose of (A) influencing any active decisions of that person in that person’s official capacity, including a decision to fail to perform that person’s official functions which such government or instrumentalities, or (B) inducing that person to use that person’s influence with such government or instrumentalities to affect or influence any act or decision of same.
Violation of this paragraph will result in immediate termination of this Agreement.
12. Advertising and Compliance
AW will supply to Affiliate all acceptable forms of advertising and marketing materials. Affiliate may not alter such advertising and marketing materials, in any way, unless approved by AW in writing. Each Party agrees to comply with the governmental laws and regulations of the United States of America. Affiliate is exclusively responsible for compliance with the laws and regulations of the applicable governments of any territory or jurisdiction where Affiliate may offer AW’s products. However, AW is obligated to cooperate in any reasonable compliance- related requests by Affiliate.
13. Data Retention
Alka-White® Mouthwash, LLC will retain affiliate data included, but not necessarily limited to, clicks, commissions, and referral data for up to sixty (60) days.
14. No Partnership
Nothing contained in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, company, corporation, or other business organization among the Parties, and neither Party shall have the authority to bind the other party in any way, unless otherwise specifically provided herein. No employee of either Party shall represent himself to be an employee of or to have the power to bind the other Party.
15. Full Power and Authority
Each Party executing this Agreement hereby covenants, represents, and warrants that the Party has the full power and authority to execute this Agreement and that no other consents or approvals of any other third parties are required or necessary for the Agreement to be so binding and that this Agreement shall be fully enforceable in accordance with its terms.
16. Intellectual Property
The Parties expressly acknowledge, understand, and agree that AW and/or AW’s related parties shall retain full ownership of all patents, trademarks, trade dress, trade secrets, copyrights, know how, and other intellectual property related to AW’s products, or that is developed by either party in the process of marketing and/or selling AW’s products. Affiliate is granted a non-exclusive license to use said intellectual property only for the purposes of marketing and selling AW’s products, and subject to AW’s approval of Affiliate’s use. Affiliate’s license terminates automatically upon termination of this Agreement and does not and will not survive the termination of this Agreement. Affiliate, its officers, employees, agents, and related parties agree not to use AW’s intellectual property in violation of these terms. The Parties agree that any advertising, manufacture, formulation, sale, or use of AW’s products, or any colorable imitation thereof, in any location worldwide, shall be subject to and governed by the intellectual property law of the United States as if said advertising, manufacture, formulation, sale, or use had taken place in the State of New York. Each Party agrees that Alka-White® Mouthwash, LLC and its related parties are the sole owners of all applicable websites, including all content of same, and that said websites and contents constitute valuable intellectual property. Affiliate promises not to make any copy or colorable imitation of any such Alka-White® Mouthwash, LLC website for any purpose whatsoever. The Parties agree that the restrictions in this paragraph are both reasonable and necessary for the protection of AW and to fulfill the Parties intent under this Agreement, and that AW shall be entitled to all forms of equitable relief, including restraining orders and injunctive relief, in order to stop the breach or threatened breach of this paragraph, or this Agreement generally, by Affiliate.
17. Non-Competition & Non-Solicitation
During the term of this Agreement and for two (2) years following the termination of this Agreement (the “Restricted Period”), for any reason, the following non-competition covenants shall be in force. For purposes of this Agreement, competition means owning, promoting, or working for any business that engages in any of the activities listed in this paragraph. During the Restricted Period, Affiliate, its officers, employees, agent, and related parties agree not to directly or indirectly hire or engage, or attempt to hire or engage, any individual who is or was an employee of AW or a AW related party. Each Party agrees that the restrictions in this paragraph are reasonable, reasonably constrained in both time and scope, and are necessary for the protection of AW and to fulfill the Parties’ intent under to this Agreement. The Parties agree that any breach or threatened breach of any of the terms of this paragraph will cause AW irreparable harm and that AW will be entitled to seek and obtain all forms of equitable relief, including restraining orders and injunctive relief, in order to stop any breach or threatened breach of this paragraph.
18. Confidential Information
Affiliate acknowledges that AW may disclose or give access to confidential information so that Affiliate may perform its duties pursuant to this Agreement. Affiliate agrees that the confidential information includes AW’s and AW’s related parties’ trade secrets, sales and profit figures, customer lists, relationships with contractors, Affiliates, distributors, customers or suppliers, and opportunities for new or developing business. The confidential information may be contained in written materials such as computer hardware and software, disks, documents, files, drawings, and product specifications. It may also consist of unwritten knowledge, including ideas, research, processes, practices, or know-how. During the term of this Agreement and afterward, Affiliate, its officers, employees, agents, and related parties, explicitly agree that they will not use or disclose to any other person or entity any confidential information or related materials, whether written or unwritten, except when they are required to do so to properly perform their duties pursuant to this Agreement or as required by law. During the term of this Agreement and afterward, Affiliate, its officers, employees, agents, and related parties, agree that it will not, except in performing its duties pursuant to this Agreement, remove or copy any confidential information or materials or assist anyone in doing so, without the AW’s express written permission. Upon termination of this Agreement, or at any time that AW requests it, Affiliate will immediately return all confidential information and materials to AW or destroy said confidential information and materials and certify to AW in writing that such destruction has been completed. The Parties agree that any breach or threat of breach of any of the terms of this paragraph will cause AW irreparable harm and that AW will thus be entitled to seek and obtain all forms of equitable relief, including restraining orders and injunctive relief, in order to stop any breach or threatened breach of this paragraph. The Parties agree that the restrictions in this paragraph are reasonable and necessary for the protection of AW and to fulfill the Parties’ intent under this Agreement, and this paragraph shall survive the termination of this Agreement.
AW expressly warrants that its Products are free from material defects. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, GHC DOES NOT WARRANT ITS PRODUCTS IN ANY MANNER WHATSOEVER. IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OF MERCHANTABILITY, AND OF NON-INFRINGEMENT ARE DISCLAIMED. AW’S PRODUCTS ARE SOLD “AS IS” AND AFFILIATE EXPRESSLY ACKNOWLEDGES UNDERSTANDS, AND AGREES THAT NO RELIANCE HAS BEEN PLACED IN AW’S SKILL AND JUDGMENT TO SELECT OR FURNISH GOODS FOR ANY PARTICULAR PURPOSE.
Affiliate shall indemnify and hold AW harmless against any and all losses, claims, demands, liabilities, claims for attorney’s fees, or claims for any other expenses whatsoever which AW may at any time sustain, incur, or be assigned by reason, or in connection with, Affiliate’s performance under this Agreement or breach of this Agreement. This obligation includes, but is not limited to, any claims for bodily injury, personal injury, property damages, advertising injury, defamation, libel, slander, infringement of copyright, trademark, patent, or any other intellectual property, express, implied, or statutory warranties, expenses and compensation, whether based on a constitution, common law, statutory scheme, code, or regulation, in contract or in tort, the New York Deceptive Trade Practices Act (the “DTPA”) as codified in Chapter 17 of the New York Business and Commerce Code, any other consumer protection laws, or any other theory of recovery of any type or kind, for actual, consequential, or punitive damages, including, but not limited to, those arising out of or in any way related to AW and/or AW’s related parties’ sole, contributory, and/or comparative negligence.
AW may immediately terminate this Agreement if Affiliate: (a) violates Sections 2 through 3 or Section 5 through 12 of this Agreement; (b) promotes in a manner that is unethical or inappropriate, as decided by AW, in AW’s absolute and sole discretion; (c) becomes part of AW’s Affiliate Program for the sole purpose of referring the Affiliate’s own good, products, services, or orders; (d) engages in any unethical business practices; (e) conducts itself in a manner which, in the reasonable judgment of AW, is in violation of any statute, rule, or regulation of any federal, state, or any other governmental or regulatory agency; or (f) exposes AW to any existing or potential liabilities, investigations, or litigations through Affiliate’s actions, practices, or operations. The Parties further agree that this Agreement may be terminated by either Party at any time, with or without cause, upon ten (10) days written notice to the non-terminating party.
22. No Assignment
Neither Party shall, without the written consent of the other Party, assign any right or obligation under this Agreement; provided, however, that any such right or obligation may be assigned by a Party without such consent to any related party of either AW or Affiliate (and “Affiliate Assignee”), so long as the assigning Party agrees to remain jointly and severally liable with the Affiliate Assignee for the performance of any and all of the assigning Party’s obligations and responsibilities pursuant to this Agreement. Any assignment to an Affiliated Assignee shall be deemed to constitute the Affiliate’s express agreement to remain jointly and severally liable to AW as discussed immediately above. This Agreement shall inure to the benefit of, and be binding upon, the respective successors in interest, whether arising by contract or operation of law, of the Parties. A related party of either Party to this Agreement shall mean any individual or entity that is, either directly or indirectly, controlled by, controls, or is under common control with such Party. For purposes of this Agreement, “control” shall mean: (i) the ownership, directly or indirectly, by such Party, together with such Party’s related Party, of fifty percent (50%) or more of the voting stock or voting equity interest in another entity; or (ii) the power, either directly or indirectly, to elect a majority of the directors, or allow the addition of additional members, of such other entity or to control and direct the decisions of the management of such other entity.
All notices pursuant to this Agreement must be in writing and delivered to either Party at the address designated in this Agreement or to any address a Party designates in writing. A notice may be delivered in person, via e-mail, by certified mail, or by courier service.
24. Governing Law
This Agreement and any controversies arising from or in any way related to this Agreement shall be subject to and governed by the laws of the State of New York and any superseding federal law, without regard to any conflict of laws or choice of law provisions. The English language version of this Agreement shall be controlling in all respects, regardless of whether a translation shall be made into another language, in the event there is a dispute or conflict between the English language version and a version of the English language version that has been translated into another language. The Parties agree that the United Nations Conventions on Contracts for the International Sale of Goods will apply to all transactions related to this Agreement.
25. Dispute Resolution
In the event any disputes, controversies, or claims develop between the Parties, arising out of or in any way relating to this Agreement or the relationship between the Parties as described and contemplated by this Agreement, including issues of enforceability and arbitrability, the controversies shall be determined by single-arbitrator, binding arbitration held in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of arbitration shall be New York, new York. The arbitration shall be conducted in English. The arbitration shall be a retired or current judge, or an attorney licensed to practice law at least ten (10) years. The arbitration shall commence as soon as practicable after the disputing Party notices the non-disputing Party of the dispute in writing. The arbitrator may issue any interim, preliminary, injunctive and/or equitable relief, including specifically the relief discussed in Sections 3, 5 through 12, 14, 16, and 19 of this Agreement. The Parties may not bring suit regarding any disputes, controversies, or claims subject to this Section 25 in any venue other than an arbitration pursuant to this Section 25 of this Agreement, except in order to enforce this Section 25 or enforce an arbitral award made pursuant to this Section 25. In the event that a Party attempts to bring an action in violation of this Section 25, the Parties agree that the other Party shall be entitled to seek and obtain injunctive relief to enjoin such unauthorized action. All Parties shall initially share the cost of arbitration, but the prevailing party or parties shall be entitled to an award for all attorney’s fees, costs, and other expenses of arbitration. The Parties agree that the arbitral award shall be recognized by any applicable courts pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and other applicable statutes, conventions, and treaties, and all other courts having jurisdiction to do so.
26. Entire Agreement
This Agreement, and the terms and provisions herein, contain the entire Agreement of the Parties. This Agreement supersedes any and all oral negotiations and/or representations of the Parties. This Agreement neither confers nor creates any rights or responsibilities not specifically enumerated herein. This Agreement may only be modified by written attachment, agreed to and executed by both Parties. Any waiver or forbearance by a Party to any breach of the provisions of this Agreement shall not be construed as a waiver of any consequent breach. No waiver shall be valid unless it is in writing and signed by the waiving Party.
If any provision of this Agreement is found to be or held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other provision of this Agreement. Rather, such provision shall be deemed modified only to the extent necessary to render the problematic provision and all remaining provisions enforceable, or, if such modification is impracticable or impossible, the problematic provision shall be removed from the Agreement and the remaining Agreement shall be enforceable against all Parties.
28. Interpretation & Definitions
The Parties agree that the definitions and terms used within this Agreement are those of current understanding and acceptance of such terms within AW’s marketing organization.
29. General Liability
IN NO EVENT SHALL AW, ITS SUBSIDIARIES, RELATED PARTIES, EMPLOYEES, CONTRACTORS, OR MANUFACTURERS BE LIABLE FOR ANY LOST PROFITS OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR MULTIPLIED DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO AW’S PRODUCTS, SERVICES, OR THIS AGREEMENT, REGARDLESS OF CAUSE OR CATALYST, INCLUDING THE SOLE NEGLIGENCE OF AW, INCLUDING LOSS OF PROFITS, LOSS OF USE, OR OTHER ECONOMIC DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF ALKA-WHITE® MOUTHWASH’S LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER SOUNDING IN CONTRACT, TORT, COMMON LAW, OR BY STATUTORY SCHEME, INCLUDING, BUT NOT LIMITED TO, THE NEW YORK DECEPTIVE TRADE PRACTICES ACT AND ALL OTHER CONSUMER PROTECTION STATUTES. AW’S LIABILITY AND THE LIABILITY OF AW’S SUBSIDIARIES, RELATED PARTIES, EMPLOYEES, CONTRACTORS, AND SUPPLIERS, WHETHER SUCH LIABILITY, BE TO AFFILIATE OR ANY OTHER THIRD PARTY, IN ANY CIRCUMSTANCE, IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF COMMISSIONS PAID TO AFFILIATE; OR (B) FIFTY AND 00/100 DOLLARS ($50). AFFILIATE EXPRESSLY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY IS PART OF THE CONSIDERATION OF THIS AGREEMENT AND WAS SPECIFICALLY INCLUDED BY ALKA-WHITE® MOUTHWASH, LLC IN THE CALCULATION AND ESTABLISHMENT OF THE COMMISSIONS PAID TO AFFILIATE, WHICH, BUT FOR THIS LIMITATION, WOULD HAVE BEEN MUCH LOWER.
Notwithstanding any of the foregoing, under no circumstances shall a Party be liable for any lost profits, or for any special, indirect, or exemplary damages, or any other loss incurred or suffered by another Party as a result of entering into this Agreement, unless such loss occurs through a Party’s criminal action, a Party’s act in bad faith, or a Party’s breach of Sections 1 through 3, 5 through 12, 14 through 16, or 19 of this Agreement.
YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT. BY ENTERING INTO THIS AGREEMENT YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT YOU HAVE HAD THE OPPORTUNITY TO CONSULT WITH LEGAL, FINANCIAL, AND OTHER PROFESSIONAL ADVISORS REGARDING THIS AGREEMENT, THAT YOU ARE ENTERING INTO THIS AGREEMENT VOLUNTARILY, OF YOUR OWN ACCORD, AND WITHOUT UNDUE INFLUENCE OR COERCION OF ANY KIND, AND THAT YOU HAVE READ, REVIEWED, AND COMPLETELY UNDERSTAND ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT IN THEIR ENTIRETY.