Affiliate Agreement.

By participating in the Puraclenz Affiliate program at https://affiliates.puraclenz.com., you agree to the rules outlined in this Affiliate Agreement, as well as all other terms and conditions. You must not access the program if you do not agree to this Agreement.

This Affiliate Agreement, between Puraclenz, LLC, a Delaware LLC and the party who completed the registration process for the Puraclenz Affliliate Program at https://affiliates.puraclenz.com/register, establishes the terms and conditions allowing the Affiliate to participate in the Puraclenz LLC Affiliate Program to refer traffic to the Company’s website.

Definitions and Interpretation

1. “We”, “Our”, “Us”, and “the Company” mean Puraclenz LLC.
2. “You”, “Your” and “Affiliate” – mean you individually and any business or entity through which you are applying for participation in the Puraclenz LLC Affiliate Program, and includes any employee, agent, or representative of
3. “Affiliate Referral Tracking Link” – means a link to our website which will contain the Affiliate’s unique Referrer ID so as to identify to Us that the You are the originating source of a Referred Customer connecting to our website through the Link, and therefore are entitled to a Commission for any Qualified Purchases made through the Link by the Referred
4. “Affiliate Site” – means a link to our website which will contain the Affiliate’s unique Referrer ID so as to identify to Us that the You are the originating source of a Referred Customer connecting to our website through the Link, and therefore are entitled to a Commission for any Qualified Purchases made through the Link by the Referred
5. “Commission(s)” – means compensation paid to You by Us for each Completed Transaction.
6. “Completed Transaction” means the Products and Services of the Company ordered by a Referred Customer have been delivered, the return period has expired, and 60 days has elapsed since the goods or services were paid for in full.
7. “Marketing Guidelines” means our documented standards regarding marketing claims You can make and are not allowed to make regarding the capabilities of Products and Services.
8. “Marketing Materials” means our current inventory of print, image and videos describing the Our Products and Services and their features.
9. “Products and Services” – means Our currently available line of air purification products, replacement parts and warranty plans.
10. “Qualified Purchase” – means a fully consummated sale of Products or Services by us to a Referred Customer made through the Affiliate’s Referral Tracking Link, which is successfully paid in full and meets the criteria set forth as a Completed Transaction.
11. “Referred Customer” – means each new and unique customer referred to us through the Affiliate’s Referral Tracking Link.

Training and Marketing Materials

We will provide you with training documents and webinars about how to use our Marketing Materials and sell Our Products and Services.  The webinar will be delivered via electronic means such as Microsoft Teams, Zoom or other electronic meeting software. In-person training is not required.

Our products are subject to regulation by the US Government through the Environmental Protection Agency, Food and Drug Administration, and Federal Trade Commission.  Their regulations are quite specific as to marketing claims we can make for Our Products and Services.  The training will include a review of what can and cannot be claimed.  We have documented Marketing Guidelines which reside in the document library of Your Affiliate Site and may be updated from time to time.  You agree to follow the Marketing Guidelines.

You may prepare your own marketing materials, but please ensure that all content used follows the Marketing Guidelines.

You shall be solely responsible for expenses incurred in the promotion and marketing of our Products and Services.

Affiliate Site and Content

Once you have completed training, we will provide you access to Your unique Affiliate Site within our website.  It contains:

1. A dashboard where you can track sales, commissions and other relevant metrics.
2. Our inventory of Marketing Materials.
3. Our Marketing Guidelines.
4. A repository for any marketing materials You create.
5. Your unique Affiliate Tracking Link for different landing page URLs

IMPORTANT: Do not display any of your Links or QR codes on any webpage, which violates your Affiliate Agreement and will cause its immediate termination.

Our tracking system and dashboard shall be the sole determinant of the number of sales generated by You and Commissions earned.

In the event You do not properly use the Affiliate Tracking Link provided to You, and the traffic cannot be properly tracked to confirm the customer came from the Affiliate Site, we are not responsible to pay any Commissions.

We reserve the right, at any time, to monitor the Affiliate Site to verify you are complying with the terms and conditions within this Agreement.

Commissions on Completed Transactions

You will earn a Commission on each Completed Transaction sourced through Your Affiliate Referral Tracking Link.  The Commission will be based on the net price paid by the Referred Customer for our Products and Services and shall exclude any shipping paid by the Referred Customer or sales taxes.  The Commission rate on Completed Transactions is contained in Exhibit A of this agreement.

Details of each Completed Transaction will be available on Your Affiliate Site.

Commissions will be calculated by calendar month and will be displayed on the dashboard of Your Affiliate site.

Payment of Commissions will be made no later than 10 days after the close of each calendar month.  Payment will be made via ACH.  You will provide us with both ACH information for Your bank and an IRS form W-9 prior to any Commissions being paid.

We at any time can refuse an attempted purchase by any person. You shall have no claim to any fee based upon Our decision to not allow the transaction with any person who accessed the Site using the Affiliate Link.

Fulfilment and Customer Information

We are solely responsible for the fulfilment of orders and processing of our Goods and Services offered on our website. This shall be governed by our own terms and conditions. All information regarding any orders, and customers is our sole and exclusive property.

You agree that we may collect, process, and sell certain information about you.

Limited License Rights

You agree to place one or more of the Affiliate Tracking Links on Your solicitations to customers. These links may contain Logos, and Trademarks

Pursuant to this Agreement, we grant You a non-exclusive, Limited, non-transferable, and revocable license to display the Links on your marketing materials as outlined in Exhibit C. In no way does this Agreement give You permission to use the Links in any other manner or for any other purpose than agreed between us unless you have received Our written consent.

You may not add, alter, or delete anything from the Links or Marks.

In addition to the above, you agree to not acquire or attempt to acquire, register, or attempt to register, make a claim to or in any way use domain names, trademarks, keywords, handles, screen names or other forms of identification incorporating the Marks.

All intellectual property rights in the Marks, and any goodwill generated by your use of the Marks shall inure solely to our benefit.

Upon termination of this Agreement, the rights granted in this clause will automatically expire.

Relationship – Independent Contractor Status

You are an independent contractor who is only authorized to refer Referred Customers to purchase our Products and Services on a non-exclusive basis. Any published reference to the relationship between you and us shall expressly indicate that you are an “independent contractor.”

You hereby expressly acknowledge and agree this Affiliate Agreement does not create an employee/employer relationship, agency relationship, partnership, or joint venture between the You and Us, and shall not represent that You are an employee, agent, or representative of the Company, or a purchaser of a franchise or a business opportunity.

Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties or constitute any party as the agent of another party.

You have no authority to and shall not enter into any agreements or obligations claiming to be binding upon the company.

You are to be exclusively and solely responsible for all taxes payable with respect to income made through our Site.

You shall be solely and exclusively responsible for:

1. Obtaining any Liability Insurance,
2. Health Insurance,
3. Workers’ compensation,
4. Disability insurance,
5. Unemployment insurance,
6. Any income or other taxes due on Your Commission earnings.

We will provide you with an IRS Form 1099 annually.

Representations and Warranties

You represent and warrant that:

1. You are legally capable and authorized to enter into this Agreement.
2. If you represent an entity, all actions necessary to authorize you to enter into this Agreement have been taken.
3. You will not make claims regarding our Products and Services that are contrary to those allowed in our Marketing Guidelines.
4. You will not display any of your Links or QR codes on any webpage.
5. That your use of the Affiliate Site shall not:

• Contain any information which you know is false.
• Contain or transmit any apps or programs that can be downloaded or installed by the customer, without their consent knowing the exact nature, purpose and function of the app or programs.
• Not use our name in a form of unsolicited communication, including spam.

Limitation of Liability

We will not be liable to you, whether in contract, tort, or restitution, or breach of statutory duty, or otherwise, for any:

1. Loss of profit.
2. Loss of goodwill.
3. Loss of business.
4. Loss of business opportunity.
5. Ex gratia payments.
6. Loss of operation time.
7. Loss of opportunity.
8. Special, indirect, or consequential damage or loss suffered by the Customer, arising under or in connection with this Agreement.

Term and Termination

This Agreement shall commence upon the last signing by a Party and may be terminated by either party with seven days’ notice.

Upon termination of this Agreement in the event there is a breach, payment of Commissions to You shall terminate immediately.

If You are the one to terminate, any Commissions owed to You shall be paid per schedule as outlined in Commissions on Completed Transactions above.

Upon termination by either party, all rights and licenses granted in this agreement shall immediately cease, and your Affiliate Site will be revoked.

Confidentiality

You will execute a non-disclosure agreement with us attached as Exhibit B.

If you are required to disclose any confidential information by virtue of a Law, you are expected to notify the company in writing. You will not use, copy, publish, or make public any confidential information.

Waiver

You waive any and all claims against us for the following circumstances:

1. The Affiliate Site is partially or totally inaccessible and unusable;
2. There are bugs, errors, or viruses;
3. You have been suspended or terminated by us;

A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach.

A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy.

You are exclusively responsible for the safekeeping of your password and username of your account. You hereby waive and dismiss any claims against the company that claim there has been unauthorized use and access to your account.

Any dispute you raise shall be as an individual only.

Indemnification

The Company and its affiliates, owners, officers, employees, and agents shall be collectively referred to as “the Company Indemnitees”.  You shall hold and indemnify the Company Indemnitees harmless from any and all actions, suits, claims, demands, debts, damages, expenses, costs, penalties, injuries incurred by any of them arising from:

1. Misrepresentation,
2. Breach of any covenant or warranty of yours in this Agreement,
3. Nonfulfillment of any Agreement by you under this Agreement,
4. Failure to comply with the terms of this Agreement,
5. Any suit, proceeding, claim or investigation,
6. Defamation, violation, unfair competition,
7. Failure to pay taxes,
8. Infringement of copyright,
9. Violation of copyright.

If any lawsuit is filed against the Company Indemnitees, written notice will be sent to you within 5 business days.

A delay or failure in giving notice shall not affect its right to indemnification except where you can provide proof of damage caused by this delay or failure. At your own expense, you may employ attorneys to handle and defend the lawsuit or action. The Company Indemnitees shall cooperate with you in this event.

You may not, without written consent of the Company Indemnitees, effect any settlement of any proceeding of which the Company Indemnitees are a party and indemnity has been sought hereunder unless such settlement involves a remedy for the payment of monies.

Assignment

You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

This Agreement shall be binding upon the parties, their successors, affiliates, directors, shareholders, employees, and officers.

Governing Law and Jurisdiction

This Agreement, and any other claim arising from it, shall be governed, and construed in accordance with the laws of the State of Connecticut in the state or federal courts located in Stamford, Connecticut.

Dispute Resolution

You and we hereby commit to make every effort in good faith to informally, quickly, and fairly resolve any dispute which may arise.

Any claim or dispute arising under or relating to the Affiliate Agreement (whether arising in contract, tort, claim of fraud or fraudulent inducement, or otherwise) that cannot be resolved, or through direct negotiations with us, shall subject to arbitration as outlined in Exhibit D.

Waiver of Jury Trial

Each party irrevocably and unconditionally waives, to the fullest extent permitted by Law, any right it may have to a trial by Jury in any legal action, proceeding, cause of action or counterclaim arising out of or relating to this Agreement, including any schedules. 

Counterparts

This Agreement may be implemented in counterparts. All of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.

Severance

If the whole, or any part of a provision of this Agreement becomes invalid or unenforceable, this shall not affect the validity and enforceability of the rest of the Agreement.

If any part of the Agreement is invalid, the parties shall negotiate to amend such provision so that it becomes legal, valid, and enforceable.

Amendments

We may amend the terms of this Agreement at any time by highlighting such changes on and notifying you via email. No amendment will be effective until 30 days after the posting/email notice, whichever communication was first.

Notices

Any notice or other communication given to a party in connection with this Agreement shall be sufficiently given in writing and delivered in person or sent by registered and certified mail, or an overnight delivery service.

Our mailing details:

Name:             Puraclenz, LLC

Address:          P.O. Box 733, Old Greenwich, CT 06870

Email:             affiliates@puraclenz.com

 

Your mailing details: per the information submitted at https://affiliates.puraclenz.com/register.

Notices shall be deemed to have been properly given if:

• They have been hand delivered to the party’s address,
• They have been delivered to an overnight courier such as FedEx, UPS, or DHL to the party’s address,
• Delivered via telecopier,
• Delivered via email.

Each notice shall be deemed to have been received:

• If delivered by hand, at the time the notice is left at the proper address,
• If sent by pre-paid first-class mail, or by next day delivery, at 9am on the second business day after posting,
• If sent by email, at the time of the transmission, or if this occurs outside of business hours, when business hours resume.

Entire Agreement

The Agreement sets out the entire agreement and the understanding between the You and Us and supersedes any prior discussions, Agreements, warranties, representations and any other communications between the You and US, whether it be oral or written.

Signatures

This Agreement shall be deemed effective upon completion by the Affiliate of the registration process for the Puraclenz Affiliate Program at https://affiliates.puraclenz.com/register.

 Exhibit A

Commission Schedule:

 

Affiliate can buy DEMO units at 40% off (limited quantity)

CONFIDENTIALITY AGREEMENT

By participating in the Puraclenz Affiliate program at https://affiliates.puraclenz.com., you agree to the rules outlined in this Confidentiality Agreement, as well as all other terms and conditions. You must not access the affiliate marketing system if you do not agree to this Agreement.

This Mutual Confidentiality Agreement (this “Agreement”) is made and entered into effective between Puraclenz LLC, a Delaware Limited Liability Company located at 30 Butler Lane, New Canaan, CT 06840 (“Puraclenz”) and the party registering to join the Puraclenz Afflilate program at  https://affiliates.puraclenz.com/register (the “Affiliate”), effective as of the date of submission.

For purposes of this Agreement, Puraclenz shall be the "Disclosing Party" and the Affiliate shall be the "Receiving Party."

            WHEREAS, the Parties with to explore a business opportunity concerning marketing Puraclenz products (the “Authorized Purpose”); and

            WHEREAS, in connection with the Authorized Purpose, the Disclosing Party, subject to the terms, conditions, and covenants in this Agreement, will disclose to the Receiving Party certain sensitive and confidential information about its business, plans, and practices, but would not disclose such information but for this Agreement.

            NOW THEREFORE, for the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the mutual promises and covenants recited hereinafter, the parties agree as follows:

1. Confidential Information.  The term "Confidential Information" shall include, but not be limited to, trade secrets, strategies, and financial, marketing, merchandising, operating, performance, cost, and business information, promotional calendars, business development plans, acquisition agreements, vendor information, and other information concerning the actual or anticipated business assets, liabilities, income, operations, products, performance, or services of the Disclosing Party or its Affiliates (defined below), regardless of the media (including, without limitation, notes, analyses, compilations, studies, interpretations, or other materials prepared by the Receiving Party) and regardless of whether such information was disclosed before, on, or after the effective date of this Agreement.  The term "Confidential Information" does not include information that (a) is or becomes generally available to the public other than as a result of (i) a wrongful disclosure by the Receiving Party, its Affiliates, or its employees, officers, directors, shareholders, principals, agents, advisors, contractors, subcontractors, or representatives, or by any person in such capacity at any of its Affiliates (collectively, "Agents"), or (ii) a wrongful disclosure by any other person under a duty to keep such information confidential; (b) was actually known by the Receiving Party prior to disclosure hereunder as evidenced by the Receiving Party’s tangible records; or (c) is developed or discovered by the Receiving Party independently and solely without the use of any Confidential Information disclosed hereunder.  As used herein, "Affiliate" shall mean, as to any individual, partnership, joint venture, corporation, limited liability company, trust, estate or other entity or organization (a “Person”), any Person controlled by, controlling, or under common control with such Person, and, in the case of a Person who is an individual, a member of the family of such individual consisting of a spouse, sibling, in-law, lineal descendant, or ancestor (including by adoption), and the spouses of any such individuals.  For purposes of this definition, "control" (including the terms "controlling", "controlled by" and "under common control with") of a Person means the possession, directly or indirectly, alone or in concert with others, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of securities, by contract, or otherwise.  A Person shall be presumed to control any partnership of which such Person is a general partner.
2. Restricted Use of Confidential Information. Subject to the restrictions contained in this Agreement, Confidential Information may be used by the Receiving Party solely for the performance of the Authorized Purpose. Confidential Information will be held by the Receiving Party in the strictest confidence at all times and will not be disclosed or used by the Receiving Party or its Agents for any purpose other than the Authorized Purpose.   The Receiving Party may disclose Confidential Information to those of its Agents who need to receive such Confidential Information for the Authorized Purpose, but only after the Receiving Party has informed them of the confidential nature of the Confidential Information and has directed them, and received their agreement, to treat such Confidential Information confidentially in accordance with the terms of this Agreement.  If the Receiving Party or any of its Agents receives notice of it being, or attempting to be, legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil or criminal investigative demand, or other similar process) to disclose any Confidential Information, the Receiving Party shall provide the Disclosing Party with immediate prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy.  Neither the Receiving Party nor any of its Agents shall oppose any action (and shall, if and to the extent requested by the Disclosing Party, cooperate with and assist the Disclosing Party, at the Disclosing Party’s expense, in any reasonable action) by the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.  If a protective order or other remedy is not obtained and the Receiving Party is ultimately legally compelled to disclose Confidential Information, then the Receiving Party agrees to disclose only such Confidential Information as is necessary to comply narrowly with the actions compelling such disclosure.    
3. Reproduction of Confidential Information. Confidential Information made available to the Receiving Party may not be copied or reproduced without the Disclosing Party’s prior written consent. Any copies of the Confidential Information made by or for the benefit of the Receiving Party are, and shall become, the proprietary property of the Disclosing Party.  All such copies must include all applicable notices of copyright and any other proprietary rights, notices, or legends contained in the Confidential Information, if any, and shall be marked to indicate their confidential nature.
4. Ownership of Confidential Information. The Disclosing Party is and shall continue to be the exclusive owner of all rights, title, and interests in, and of all patents, copyrights, trade secrets, trademarks, and proprietary rights in and to, any Confidential Information made available to the Receiving Party hereunder, including, without limitation, all additions, enhancements, modifications, and derivative works of the Confidential Information. Nothing in this Agreement shall be construed to convey to the Receiving Party any license to use, sell, exploit, copy, or further develop the Confidential Information beyond the limited rights and privileges set forth in this Agreement.
5. Return of Confidential Information. Upon request of the Disclosing Party, the Receiving Party shall promptly deliver to the Disclosing Party all Confidential Information, including any copies, compilations, and extracts thereof, in the Receiving Party’s possession or in the possession of its Agents, without retaining any copies thereof (including on hard disk, floppy diskette, or any other electronic, magnetic, or digital medium) or certify in writing to the destruction thereof. Notwithstanding the return of the Confidential Information, the Receiving Party will continue to be bound by the terms and conditions of this Agreement.
6. Disclaimer of Representations and Warranties. The Receiving Party understands, acknowledges, and agrees that neither the Disclosing Party nor any of its Agents has made or will make, and specifically disclaims, any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor any of its Agents shall have any liability to the Receiving Party or any of its Agents relating to or resulting from the use of the Confidential Information.  Only those representations or warranties that are made in a final definitive agreement regarding the transactions contemplated hereby, when, as, and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
7. Definitive Agreement. Unless and until a final definitive agreement regarding a transaction between the Disclosing Party and the Receiving Party (or their respective Affiliates) consistent with the Authorized Purpose has been executed and delivered, none of such parties shall be under any legal obligation of any kind whatsoever with respect to a transaction by virtue of this Agreement except for the matters set forth herein.  Each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party hereto with regard to a transaction between the parties, and to terminate discussions and negotiations between them at any time.
8. Remedies for Breach. The Receiving Party acknowledges and agrees that disclosure of any Confidential Information or breach of any covenant set forth in this Agreement above will result in irreparable harm to the Disclosing Party for which there is no adequate remedy at law. Accordingly, in the event of a breach or threatened breach of the provisions of this Agreement by the Receiving Party or any of its Agents, in addition to any other remedy that the Disclosing Party may have at law or in equity, the Disclosing Party shall be entitled to injunctive or similar relief to enforce specifically such provisions, without posting bond or other security.
9. Amendments, Assignment, and Entire Agreement. This Agreement may not be modified, amended, or supplemented except by an agreement in writing signed by the Disclosing Party. This Agreement and the rights and obligations hereunder shall not be assignable by the Receiving Party without the express written consent of the Disclosing Party. The Disclosing Party may assign all of its rights, powers and privileges under this Agreement (including, without limitation, the right to enforce all of the terms of this Agreement) to any person who enters into any transaction contemplated by this Agreement.  Subject to the restrictions against transfer or assignment as herein set forth, the provisions of this Agreement shall inure to the benefit of, and shall be binding on, the heirs, assigns, successors, personal representatives, estates, and legatees of each of the parties hereto. This Agreement shall constitute the entire agreement between the parties hereto with respect to the transactions contemplated hereby and shall supersede all prior or contemporaneous negotiations, understandings, and agreements.  There are no representations, agreements, arrangements, or understandings, oral or written, between or among the parties hereto relating to the subject matter of this Agreement that are not fully expressed herein.
10. Court Costs and Attorneys' Fees.  If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover costs of court and reasonable attorneys' fees from the other party, which fees shall be in addition to any other relief that may be awarded, and which fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose.
11. Further Assurances. Each party hereto, without further consideration, shall, at the reasonable request of any other party hereto after the execution of this Agreement, execute and deliver any instruments or document and take such other actions, as such other party may reasonably request to more effectively consummate the transactions contemplated by this Agreement.
12. GOVERNING LAW; VENUE.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES OR CHOICE OF LAWS RULES THEREOF. 
13. Invalid Provisions.  If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, and if the rights or obligations of either of the parties hereto would not be materially and adversely affected thereby, (a) such provisions shall be fully severable; (b) this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provisions had never comprised a part hereof; (c) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance; and (d) in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid, and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible.
14. Notice.  Any notice required or permitted under the terms of this Agreement shall be in writing and shall be addressed to the party to whom notice is intended, as the case may be, at the address stated below, and delivery shall be deemed to have been made upon the earlier to occur of actual receipt of such notice by the intended recipient thereof, whether delivered by hand or otherwise, or thirty-six (36) hours after the deposit in the United States Mail, properly addressed to the intended recipient as set forth below such party’s signature, postage prepaid, certified mail, return receipt requested. Either party hereto may change the address for notification by giving written notice of such change to the other party at least five (5) days prior to the effective date of such change.
15. Signatures.  This Agreement shall be deemed effective upon completion by the Affiliate of the registration process for the Puraclenz Afflilate Program at https://affiliates.puraclenz.com/register.
16. Survival.  The term of this Agreement shall be for two years after termination by the parties; provided, however, that with respect to any trade secrets the obligations under this Agreement shall not expire.
17. Waiver.  The failure of any party to insist, in any one or more instances, upon performance of any of the terms, covenants, or conditions of this Agreement shall not be construed as a waiver or a relinquishment of any right or claim granted or arising hereunder or of the future performance of any such term, covenant, or condition, and such failure shall in no way affect the validity of this Agreement or the rights and obligations of the parties hereto.  No waiver of any provision or condition of this Agreement shall be valid unless executed in writing and signed by the party to be bound thereby, and then only to the extent specified in such waiver.  No waiver of any provision or condition of this Agreement shall be construed as a waiver of any other provision or condition of this Agreement, and no present waiver of any provision or condition of this Agreement shall be construed as a future waiver of such provision or condition.

 

Exhibit C

ARBITRATION PROCEDURES

a.           If any claim or dispute cannot be settled in accordance with the Dispute Resolution section above, such claim or dispute (including the validity, existence or termination of this Agreement) shall be settled by binding arbitration. The arbitration will be held in accordance with the Commercial Arbitration Rules of the American Arbitration Association in force at the date of the request for arbitration (“AAA Rules”), which are deemed to be incorporated by reference; provided, however, that in the event of any conflict between such rules and the other provisions of this Agreement, such other provisions of this Agreement shall control. The arbitral tribunal shall consist of three (3) arbitrators. Each of (i) You, on the one hand, and (ii) Us, on the other hand, shall each appoint one arbitrator. If either (i) You, on the one hand, and Us, on the other hand, fail to appoint an arbitrator within 30 days of receiving notice of an appointment of an arbitrator by the other, such second arbitrator shall at the request of either (i) You, or (ii) Us, respectively, be appointed by the President of the American Arbitration Association. The two arbitrators so appointed shall, within 30 days of the date of the appointment of the second arbitrator, appoint a third arbitrator who shall act as the chairman of the arbitral tribunal. If the two arbitrators to be appointed fail to agree upon a third arbitrator within 30 days of the appointment of the second arbitrator, then the third arbitrator shall be appointed by the President of the American Arbitration Association at the written request of either (i) You or (ii) Us, respectively. The arbitration will be held in New York, New York. Each Party shall be entitled to reasonable discovery rights, and issues as to discovery shall be determined by the arbitral tribunal applying the substantive and procedural laws of the State of New York (including without limitation rights to conduct depositions as part of the discovery process). The award of the arbitral tribunal shall be decided by majority vote and shall be in writing in a reasoned opinion, setting forth the facts found by the arbitrators to exist, their determination and the basis of their determination. Notwithstanding any provision in this Agreement which may be interpreted to the contrary, the arbitral tribunal shall not have the authority to award consequential or punitive damages. Each Party shall bear its own attorneys’ fees and expenses. The fees and expenses of the arbitral tribunal shall be borne on a 50/50 basis by (i) You and (ii) Us, respectively. The Parties agree that the arbitration may be held elsewhere, if required by law or upon mutual agreement of the Parties.

b. Any court having jurisdiction may enter judgment on the arbitrator’s award.

c. Notwithstanding anything to the contrary, any Party may bring an action for injunctive relief or other equitable remedy in any court of competent jurisdiction to protect its Confidential Information and/or intellectual property rights, as applicable.

d. Except as provided in this Agreement, all Parties must commence and pursue arbitration to resolve disputes. If any Party commences action in any court prior to an arbitrator’s final decision on the controversy or claim, then the Party so commencing the action will be responsible for all expenses incurred by the Parties in the arbitration and the court proceedings, whether or not such Party is the prevailing Party.

Any court having jurisdiction may enter judgment on the arbitrator’s award.

Notwithstanding anything to the contrary, any Party may bring an action for injunctive relief or other equitable remedy in any court of competent jurisdiction to protect its Confidential Information and/or intellectual property rights, as applicable.

Except as provided in this Agreement, all Parties must commence and pursue arbitration to resolve disputes. If any Party commences action in any court prior to an arbitrator’s final decision on the controversy or claim, then the Party so commencing the action will be responsible for all expenses incurred by the Parties in the arbitration and the court proceedings, whether or not such Party is the prevailing Party.