CORE DE TOUR INC. A GEORGIA CORPORATION
SUPER AFFILIATE COVER PAGE
Parties: Core de Tour Inc. and Super Affiliate Applicant
Effective Date: The date that the Cover Page of this Agreement is executed by Super Affiliate Applicant
Initial Term: Twelve (12) Months beginning from the Commencement Date (Effective Date)
Referral Fee Period: For each Referred Customer, beginning with the Referral Date for that Referred Customer
Super Affiliate: a) pre-order by purchasing at full price a Crunch Cycle machine concurrently to entering into Qualifications this Agreement, and (b) refer a minimum of one (1) Referred Customer per month determined on a quarterly basis
Super Affiliate: Five percent (5.0%) of the total Modified Gross Revenue collected by Core de Tour from Referral Rate a Referred Customer introduced by the Super Affiliate from their authorized referral link tracked from our authorized website https://crunchcycle.com
Example:
One (1) Referral Customer each month for a Quarter:
Per Month Commission basis:
$1,499 (sale price) -$100 (Fixed Referral Fee) = $1,399
(Modified Gross Revenue basis for Referral Rate amount)
($1399.00 x .05) = $69.95+ $100 = $169.95 (Total Month Payout)
Total for the Quarter = $169.95 x 3 = $509.85 (Total Quarter Payout)
Additional Terms: This Cover Page, and your acceptance of the terms and conditions you accepted by the checkbox is the equivalent of your signature to this page and the incorporated terms and conditions which are expressly incorporated into this Super Affiliate Agreement, are collectively, the “Agreement”. By accepting the terms and conditions, Super Affiliate acknowledges that he/she/it has reviewed this entire Agreement and accepts its terms.
IN WITNESS WHEREOF, Core de Tour and the Super Affiliate have accepted and executed this Super Affiliate Agreement and intend to be bound on the Effective Date set forth above.
REFERRAL PARTNER AGREEMENT – TERMS & CONDITIONS
This Super Affiliate Agreement (this “Agreement”) is dated as of the effective date (the “Effective Date”) set forth on the Cover Page hereof (the “Cover Page”),and is made by and between Core de Tour Inc., a Georgia Corporation (“Core de Tour”) and the Party named as the Super Affiliate on the cover page hereof (the “Super Affiliate”). This Agreement is entered into for the purpose of outlining the terms pursuant to which the Super Affiliate may refer Prospects (as defined below) to Core de Tour. The Super Affiliate and Core de Tour may be referred to individually as “Party”, or collectively as “Parties” throughout this Agreement.
WHEREAS, Core de Tour builds and sells the CrunchCycleTM fitness machine, together with other related products and services (the “Offerings”);
WHEREAS, Super Affiliate may, from time to time, encounter parties (including its own customers) who may be potential sales leads for Core de Tour’s Offerings;
WHEREAS, Super Affiliate desires, in its discretion, to refer to Core de Tour certain Prospects in exchange for valuable consideration set forth in this Agreement, and subject to the terms hereof.
NOW, THEREFORE, for and in consideration of the premises set forth above and for other good and valuable consideration, the receipt, and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Prospect Referrals.
1.1 Super Affiliate Referrals. Super Affiliate agrees, from time to time during the Term (as defined herein), in its discretion, to refer to Core de Tour certain Prospects who may be interested in receiving the Offerings. Unless otherwise expressly stipulated by the Parties in this Agreement, nothing contained herein shall require Super Affiliate to refer Prospects to the Super Affiliate.
1.2 License Grant. Core de Tour hereby grants to Super Affiliate a royalty-free, non- exclusive, non-transferable, non-assignable, non-sub licensable, and revocable license (the “License”) to use Core de Tour’s trademarks, logos, and URLs of 'Crunch Cycle' and listed on the Cover Page (the “Licensed Marks,” as may be amended by Core de Tour from time to time), this is on approved associated promotional materials (collectively, the “Marketing Materials”) for the purpose of promoting the Offerings to Prospects during the Term. All right, title, and interest in and to Core de Tour’s Licensed Marks and Marketing Materials are and shall remain owned exclusively by Core de Tour.
1.3 Pricing & Terms. Core de Tour shall, at all times, have the right to set and enforce its pricing policies, terms, and conditions under which Core de Tour shall offer or provide any Offerings. Core de Tour shall still have the authority to control all discussions and negotiations regarding any proposed or actual offering, sale, or provision of the Offerings. Nothing in this Agreement shall obligate Core de Tour to offer or sell any Offerings or consummate any transaction with any Prospect.
2. Responsibilities of the Parties.
2.1 Qualifications; Obligations. To qualify for the Super Affiliate Referral Rate, Super Affiliate agrees to: (a) To fully purchase a Crunch Cycle machine concurrently to entering into this Agreement, and (b) refer a minimum of one (1) Referred Customer per month determined on a quarterly basis.
Super Affiliate will utilize its sole judgment in whether or not to refer a Prospect to Core de Tour, and nothing contained herein shall require the Super Affiliate to refer any specific Prospect to Core de Tour. Nothing in this Agreement shall prohibit Core de Tour from contacting and selling its Offerings directly to potential customers, provided however, that unless the Super Affiliate has expressly introduced Core de Tour to a Prospect, Core de Tour shall not: (a) refer to this Agreement; (b) represent itself as a preferred or recommended partner of the Super Affiliate; or (c) otherwise claim any Super Affiliate endorsement without the prior written consent of the Super Affiliate.
2.2 Core de Tour Offerings. Core de Tour shall be solely and exclusively responsible for the provision of all Offerings to customers, including to Referred Customers. At no point shall the Super Affiliate be responsible for the sale, provision, implementation, or anything else whatsoever in connection with the Offerings (all of which shall be performed by Core de Tour or its designees) and Core de Tour will not represent to any Prospect that the Super Affiliate has responsibility for the same. The Super Affiliate shall not be a party to any contract or arrangement for Offerings between Core de Tour and any of its customers (including without limitation, Referred Customers), unless the Super Affiliate has provided advance express, written consent to the same. Further, Core de Tour will not extend any warranty or guarantee, or to make representations or claims with respect to the Super Affiliate or any of the Super Affiliate’s products or services, without the express prior authorization of the Super Affiliate.
3. Referral Fees; Approved Expenses; Prospect Registration.
3.1 Definitions. For the purposes of this Agreement, the following terms shall be defined as provided herein:
“Excluded Prospect” shall mean any of Core de Tour’s past, existing and active customers or a party who has been expressly identified by Core de Tour to the Super Affiliate as an “Excluded Prospect” on the Cover Page or otherwise.
“Gross Revenue” shall mean the net Offerings Fees (exclusive of sales tax and after applying any discounts, credits, rebates, or other referral fees) for the Offerings purchased by a Referred Customer.
“Modified Gross Revenue” shall mean the net Offerings Fees (exclusive of sales tax and after applying any discounts, credits, rebates, flat referral fee or other referral fees) for the Offerings purchased by a Referred Customer.
“Prospect” shall mean a prospective customer for Core de Tour’s Offerings.
“Referral Date” shall mean the date on which the Super Affiliate made an introduction for Core de Tour to a Prospect.
“Referral Fee” shall mean the amount due and payable by Core de Tour to the Super Affiliate in consideration for an introduction to Referred Customer. As used in this Agreement, the Referral Fee is the total of all Offerings Fees collected by Core de Tour during the Referral Period multiplied by the Referral Rate then in effect. This fee is based on fully purchased Cycle's by the referred customer.
“Referral Period” shall mean the period of time set forth on the Cover Page hereof, if applicable.
“Referral Rate” shall mean the percentage of Offerings Fees set forth on the Cover Page hereof.
“Referred Customer” shall mean a customer of Core de Tour that: (i) has been referred by the Super Affiliate to Core de Tour during the term of this Agreement; (ii) was Registered by the Super Affiliate as a Qualifying Lead; (iii) subsequently entered into an agreement with Core de Tour for the purchase of a Crunch Cycle machine [Offerings]; (iv) was not an Excluded Prospect; and (iv) meets all other conditions related to a Qualifying Lead and the Referred Customer eligibility (if any), as stipulated on the Cover Page, are satisfied.
“Offerings Fees” shall mean the amounts charged by Core de Tour to Referred Customers in exchange for the purchase of a Crunch Cycle machine.
3.2 Referral Fees.
(a) Core de Tour shall collect all Offerings Fees from Referred Customers for the Offerings directly from the Referred Customers.
(b) In consideration for each Referred Customer introduced by the Super Affiliate hereunder, Core de Tour shall pay to the Super Affiliate the Referral Fees that correspond to such Referred Customer, for the duration of the Referral Period, at the corresponding Referral Rate. For the avoidance of doubt, the Referral Fee shall still be due and payable to the Super Affiliate if Offerings were performed during the Referral Period, but the corresponding Service Fees were billed or collected after the conclusion of the Referral Period.
(c) Core de Tour’s accrued obligation to pay all Referral Fees to the Super Affiliate shall survive any termination or expiration of this Agreement. Further, any Referral Fees which would otherwise have become payable hereunder, but for a termination or expiration of this Agreement, with respect to any Prospect shall become due and payable on the terms hereof if such Prospect becomes a Referred Customer within three (3) months of any such termination or expiration. Core de Tour may, from time to time, at its sole discretion make bonus payments to the Super Affiliate.
(d) The Parties may, from time to time, agree to certain special stipulations related to compensation paid by Core de Tour to the Super Affiliate hereunder.
3.3 Payment. All payments due hereunder shall be paid in U.S. Dollars on a monthly basis. Core de Tour shall pay all earned Referral Fees to the Super Affiliate within sixty (60) days of Core de Tour’s actual receipt of unconditional payment of the corresponding Offerings Fees. Core de Tour shall have the right to modify the frequency and date of said referral payments.
3.4 Associated Expenses.
(a) The Super Affiliate shall be responsible for payment of all taxes, duties, governmental charges, and other like charges that are due on the Referral Fees. 1099's will be issued.
(b) Each Party will bear all of its costs and expenses incurred in connection with its business and the performance of its obligations under this Agreement and will be solely responsible for the acts and expenses of its respective employees and agents.
3.5 Excluded Prospects. Notwithstanding any sale of a Service that would otherwise qualify for the payment of Referral Fees under the provisions of Section 3.2, no such Referral Fees shall be payable if such sale is made to any person who is an Excluded Prospect.
3.6 Acceptance of Orders. Core de Tour shall have the right, in its sole discretion, whether or not to engage any Prospect introduced to it by the Super Affiliate. If Core de Tour rejects a Prospect introduction but later elects to provide Offerings to such Prospect, the terms of this Agreement shall apply as to Core de Tour and the Super Affiliate, and all Referral Fees shall be due and payable hereunder for the duration of the Referral Period (with the initial referral date of the Prospect serving as the Referral Date).
4. Termination of Agreement.
4.1 Initial Term. The term of this Agreement commences on the Effective Date set forth on the Cover Page of this Agreement and shall continue for the Term set forth on the Cover Page hereof (the “Initial Term”).
4.2 Renewal Term. Upon expiration of the Initial Term, this Agreement automatically renews for additional successive periods set forth on the Cover Page hereof (each a “Renewal Term” and together with the Initial Term, the “Term”), unless and until earlier terminated as provided under this Agreement.
4.3 Early Termination.
(a) Either Party shall have the right to terminate this Agreement at any time for any or no reason by giving thirty (30) days’ prior written notice to the other Party.
(b) Either Party may terminate this Agreement at any time, effective immediately upon written notice to the other Party who has materially breached this Agreement, provided that prior to terminating this Agreement, the terminating Party shall provide written notice of such material breach and ten (10) days’ opportunity for the breaching Party to cure such breach.
4.4 Effect of Termination.
(a) Following the termination of this Agreement, the Super Affiliate shall be entitled to receive Referral Fees for all Referred Customers who were introduced by the Super Affiliate to Core de Tour as Prospects up to, and including, the date of termination. Furthermore, the Super Affiliate shall be entitled to the continuing receipt of Referral Fees, for each Referred Customer, for the duration of the Referral Period for such Referred Customer, even after the termination or non-renewal of this Agreement. As to the Parties, the terms of this Agreement shall continue in full force and effect as to the Referral Fees due and payable by Core de Tour to the Super Affiliate following the termination or non-renewal of this Agreement.
(b) In case of any termination or expiration of this Agreement, the provisions of Section 4.4, 5, 6, 7, and 8 shall remain in full force and effect, for as long as the same may be applicable.
(c) Upon any termination of this Agreement, the Super Affiliate will promptly return to Core de Tour all Super Affiliate records and documents, including, but not limited to, customer lists and contact details and other information about customers obtained by the Super Affiliate during the Term of this Agreement.
5. Disclaimer of Warranties; Limitation of Liability; Indemnification.
5.1 NO WARRANTY. NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS TO THE OTHER PARTY HEREUNDER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY GOODS,SERVICES,REFERRAL OF PROSPECTS, OR ANY OTHER MATTER, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING OR INDUSTRY PRACTICE, OR THAT THE FOREGOING WILL MEET ANY SPECIFIC PARTY’S REQUIREMENTS.
5.2 LIMITATION OF LIABILITY.EXCEPT FOR CLAIMS ARISING OUT OF THIS SECTION 5 (INDEMNITY), OR A BREACH OFSECTION 6 (CONFIDENTIALITY), SECTION 7 (INTELLECTUAL PROPERTY): (A) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S LIABILITY TO THE OTHER FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF REFERRAL FEES PAID TO SMARTPM HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; AND (B) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON A CLAIM OR ACTION IN CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER TORT, BREACH OF ANY STATUTORY DUTY OR OTHERWISE, EVEN IF, IN ANY SUCH CASE, SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.3 Super Affiliate Indemnity. The Super Affiliate shall indemnify, defend, and hold harmless Core de Tour and Core de Tour’s members, managers, officers, employees, and agents from and against all third-party claims, damages, losses, and expenses including attorneys’ fees resulting from or arising out of: (a) injury, death, or damage to property caused by the Super Affiliate or its agents or representatives; (b) willful or fraudulent misconduct by the Super Affiliate or its agents or representatives; (c) breach by the Super Affiliate of Section 6 (Confidentiality); or (d) breach by the Super Affiliate of its obligations under Section 7 (Intellectual Property Rights). Notwithstanding the foregoing, the Super Affiliate shall not be required to defend, indemnify and/or hold Core de Tour harmless in regard to any claims, injury, death, or damages to the extent caused by the fraud or willful misconduct of Core de Tour and/or its members, managers, shareholders, officers, directors, employees, and agents.
5.4 Core de Tour Indemnity. Core de Tour shall indemnify, defend, and hold harmless the Super Affiliate and the Super Affiliate’s members, managers, officers, employees, and agents from and against all third-party claims, damages, losses, and expenses including attorneys’ fees resulting from or arising out of: (a) injury, death, or damage to property caused by Core de Tour or its agents or representatives; (b) willful or fraudulent misconduct by Core de Tour or its agents or representatives; (c) breach by Core de Tour of Section 6 (Confidentiality); (d) breach by Core de Tour of its obligations under Section 7 (Intellectual Property Rights); or (e) negligent or more culpable acts or omissions in its performance of Offerings for Referred Customers. Notwithstanding the foregoing, Core de Tour shall not be required to defend, indemnify and/or hold the Super Affiliate harmless in regard to any claims, injury, death, or damages to the extent caused by the fraud or willful misconduct of the Super Affiliate and/or its members, managers, shareholders, officers, directors, employees, and agents.
5.5 Indemnity Procedures. The obligation to provide indemnification under this Section 5 is conditioned upon the indemnified Party: (i) timely notifying the indemnifying party of the claim; (ii) tendering the sole control over the defense and settlement of the claim to the indemnifying Party; and (iii) fully cooperating with the indemnifying Party in the defense and settlement of the claim at the indemnifying party’s expense.
6. Confidentiality.
6.1 Confidential Information. From time to time during the Term, either Party (as “Disclosing Party”) may disclose or make available to the other Party (as “Receiving Party”) information about its business affairs, goods and services, confidential information, and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information; such information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Confidential Information excludes information that at the time of disclosure and as established by documentary evidence:
(a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of the terms of this Section 6 by the Receiving Party;
(b) is or becomes available to the Receiving Party on a non-confidential basis from a third- party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information;
(c) was known by or in the possession of the Receiving Party before being disclosed by or on behalf of the Disclosing Party;
(d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or
(e) must be disclosed under applicable law, provided, however, that, the Receiving Party shall first notify the Disclosing Party prior to disclosure, if allowed by law, in order to give the Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Confidential Information which the Receiving Party is required to disclose.
6.2 Continuing Obligations. The Receiving Party shall, for five (5) years from receipt of such Confidential Information:
(a) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
(b) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
(c) not disclose any such Confidential Information to any third-party, except to the Receiving Party's agents or representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
6.3 Trade Secrets. Notwithstanding anything to the contrary herein, the Receiving Party’s confidentiality obligations in connection with any Confidential Information that is comprised of trade secrets or other proprietary information of the Disclosing Party whose value is in part derived from its non-public nature shall remain in effect in perpetuity, for so long as such trade secrets and proprietary information remain Confidential Information, as defined herein.
6.4 Responsibility for Agents and Representatives. The Receiving Party shall be responsible for any breach of this Section 6 caused by any of its agents or representatives.
6.5 Return of Materials. Upon termination of this Agreement, or upon the Disclosing Party’s written request, and subject to any contrary obligations under applicable law, the Receiving Party shall, at the Disclosing Party’s discretion, either return or destroy and erase from all systems it directly or indirectly uses or controls all originals and copies of all documents, materials and other embodiments and expressions in any form or medium that contain, reflect, incorporate, or are based on Confidential Information, in whole or in part.
7. Intellectual Property and Proprietary Rights.
7.1 Intellectual Property. As used in this Agreement, the term “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents or patentable subject matter; (b) trademarks or trade-markable subject matter; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; (f) semiconductor chips, mask works and the like; and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the laws of any jurisdiction throughout in any part of the world.
7.2 Ownership of Intellectual Property. All Intellectual Property Rights in and to any inventions, products, services, or any other materials of a Party shall, at all times, remain with and of that Party. Except as expressly provided herein, nothing in this Agreement shall be deemed to create a license or assignment of any Intellectual Property Rights from one Party to the other Party.
7.3 Proprietary Rights. The Super Affiliate acknowledges and agrees that products, services, software, methodologies, and all other items that may be provided by Core de Tour to the Super Affiliate hereunder, and all copies thereof constitute valuable trade secrets of Core de Tour or are proprietary and Confidential Information of Core de Tour, and title thereto remains in Core de Tour. The Parties expressly acknowledge and agree that no title to or ownership of any Core de Tour products, services, software, methodologies, or any other items that may be provided by Core de Tour to the Super Affiliate is hereby transferred to the Super Affiliate.
8. Miscellaneous.
8.1 Notices. All communications and notices which are required or otherwise provided under the Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) by electronic mail (with read receipt or another tracking mechanism to confirm receipt), to the respective addresses set forth on the signature page of this Agreement. A Notice is effective only (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section 8.1.
8.2 Reasonableness; Remedies. The restrictions contained in this Agreement are considered by the Parties hereto to be fair, reasonable, and necessary for the protection of the legitimate business interests of Core de Tour. The Super Affiliate agrees that Core de Tour will or would suffer irreparable injury if the Super Affiliate were to violate any provision of this Agreement and that in the event of a breach by the Super Affiliate of those provisions, Core de Tour shall (in addition to all other rights and remedies available to it, including, without limitation, recovery of damages from the Super Affiliate) be entitled to an immediate injunction restraining the Super Affiliate from such breach.
8.3 Successors. This Agreement shall inure to the benefit of and be binding upon any successor in interest of a Party hereto.
8.4 Assignment. Neither Party may assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without the other Party’s prior written approval, which will not be unreasonably withheld. Any assignment or attempt to do so other than as provided in this Section 8.4 will be void.
8.5 Severability. All sections of this Agreement are separate and independent covenants, and the invalidity or unenforceability of one or more of these provisions or covenants shall not affect the validity or enforceability of the remaining provisions or of the other covenants of this Agreement. If permitted under law, invalid or unenforceable clauses shall be redrafted or otherwise modified to make such provisions valid and/or enforceable.
8.6 Integration. This Agreement constitutes the entire agreement between Core de Tour and the Super Affiliate with respect to the subject matter of this Agreement and supersedes any prior agreements or understandings, whether oral or written, between Core de Tour and the Super Affiliate with respect to such subject matter. All prior agreements between the Parties relative hereto which are not contained herein are terminated.
8.7 Waiver. No waiver of this Agreement or any provision hereof shall be effective unless in writing signed by both of the Parties. Any waiver of breach shall not be effective unless in writing, and no such waiver shall operate or be construed as a waiver of the same or another breach on a subsequent occasion. The failure of any Party to seek redress for violation of or breach of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation or breach.
8.8 Amendments. This Agreement shall not be orally changed, modified, or terminated, nor shall any oral waiver of any of its terms be effective. Any changes or amendments to this Agreement shall only be effective if made in writing, specifically for the purpose of amending this Agreement, and signed by all Parties hereto. No terms attached to any check for payment, purchase order, invoice, order confirmation, or any other trade document can modify the Agreement.
8.9 Headings. The headings and captions used in this Agreement are for convenience of reference only and shall in no way define, limit, expand, or otherwise affect the meaning or construction of any provision of this Agreement. Use of the singular or plural number, or masculine, feminine or neutral gender, shall include all other appropriate counterpart references.
8.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same Agreement. An electronic signature shall be considered an original signature for purposes of execution of this Agreement.
8.11 Governing Law. This Agreement is entered into in and shall be exclusively governed by and construed under the laws of the State of Georgia, United States, without regard to its internal conflicts of law provisions.
8.12 Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the United States District Court for the Northern District of Georgia or the courts of the State of Georgia sitting in Fulton County and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in United States District Court for the Northern District of Georgia the courts of the State of Georgia sitting in Fulton County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
8.13 Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of any (a) acts of God, flood, fire, wind, storm, drought, earthquake, or other natural disaster; (b) epidemic, pandemic or other public health emergency; (c) terrorist attack, civil war, civil commotion or riot, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination, or sonic boom; (e) any law or any action taken by a government or public authority; (f) collapse of building, breakdown of plant or machinery, fire, explosion, or accident; (g) any labor or trade dispute, materials or transport, strike, industrial action or lockout; (h) interruption or failure of utility service; or (i) or any other cause, whether similar or dissimilar to those enumerated, that is beyond our reasonable control and without our fault or negligence (a “Force Majeure Event”), the Party who has been so affected shall give notice immediately to the other Party and shall use its reasonable best efforts to resume performance. Failure to meet due dates resulting from a Force Majeure Event shall extend such due dates for a reasonable period. However, if the period of nonperformance exceeds sixty (60) days from the receipt of notice of the Force Majeure Event, then the Party whose ability to perform has not been affected may, by giving written notice, terminate this Agreement effective immediately upon such notice or at such later date as is therein specified.
8.14 Non-Disparagement. Each Party agrees that at any time following the Effective Date, it will not publish, utter, broadcast, or otherwise communicating any information, misinformation, comments, opinions, remarks, or any other form of communication, whether oral or written, regardless of its believed truth, to any person or entity, which is adverse to, reflects unfavorably upon or tends to disparage the other Party or the business, technology, products, prospects, financial condition or personnel of the other Party.
8.15 Independent Contractors. Each Party to this Agreement is an independent contractor of the other Party, and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between the Parties for any purpose. Neither Party shall have the authority (and shall not hold itself out as having authority) to bind the other Party to any agreements or arrangements without such other Party’s prior written consent.
8.16 Independent Review. By executing this Agreement, the Parties expressly acknowledge that each Party has had the opportunity to review and discuss all of the terms contained herein. By executing this Agreement, each Party expressly acknowledges that it has had the opportunity to employ the aid and advice of independent counsel or that the Party is expressly waiving the right to such aid or advice.
