WHY OF AI LLC AFFILIATE PROGRAM AGREEMENT
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Updated: January 1, 2023
This Affiliate Program Agreement (the "Agreement") is a legally binding agreement between you (“Affiliate”, "You" or “Your”) and Why of AI LLC d/b/a Why of AI ("Company", "we" or “us”) and is effective on the date You execute an order form (“Order Form”) incorporating the terms and conditions of this Agreement by reference and enabling You to participate in Company’s affiliate program (the “Affiliate Program”). Neither party will have any obligation with respect to any draft Order Form unless and until it is executed by both parties. Except as otherwise provided herein, if any terms and/or conditions of this Agreement conflict with any terms and/or conditions of any Order Form, the terms and conditions set forth in the Order Form will control solely with respect to the Services covered under such Order Form.
1. Affiliate Program. Company operates an Affiliate Program pursuant to which eligible affiliates introduce Company’s products and/or services to customers on such affiliate’s website or through other media channels approved by Company by way of Links and/or Coupons (each as hereinafter defined) provided by Company to such affiliate. Company will pay a fee (or other form of compensation, including but not limited to a non-monetary exchange) to such affiliate for Qualified Purchases (as hereinafter defined) of Company’s products and/or services. Company may, at any time, for any reason, in its sole and absolute discretion make changes to the Affiliate Program, and any changes will become effective thirty (30) days after notice thereof to Affiliate.
2. Eligibility. To be eligible to be a Company affiliate, You must operate a website that has been approved by Company, and Your website must not and, during the term of this Agreement, shall not, as determined by Company in its sole discretion: (a) infringe on Company’s or any other third party's intellectual property, publicity, or privacy rights; (b) violate any law or regulation; (c) contain any false or misleading information; (d) operate or utilize a website or e-mail link to websites that contain or promote, any of these types of content: libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or warez, content targeted at children, or the offer of any illegal good or service, or link to a website(s) that do so; (e) promote discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age; (f) engage in spamming, indiscriminate advertising or unsolicited commercial e-mail; (g) be based outside of the United States (unless You receive prior written approval from Company); and/or (h) engage in any illegal activity of any type, including but not limited to displaying illegal content on Your website or offering any illegal good or service through Your website. You remain solely responsible for all content on Your website. In consideration for participating in the Affiliate Program and for the agreed upon Affiliate Fee, You agree that at no time during the term, will You attempt to directly or indirectly, own, manage, control, participate in, consult with, render services for, any affiliate program is competitive with (including, without limitation, by competing for the same customer base) or any business that sells products or services conducted by Company.
3. True and Complete Information. You represent and warrant that all information that You provided in connection with becoming an Affiliate of Company (including but not limited to all information contained in the Order Form) is true and complete. You further agree to maintain and promptly update such information to keep it accurate. If Company determines or has reason to believe that any information provided by You is not true and/or complete, You shall indemnify, defend and hold harmless Company in accordance with Section 15 below and Company may, without liability, immediately terminate Your participation with respect to the Affiliate Program if such breach also constitutes a breach of Section 2 of this Agreement.
4. Use of Company Content. If You qualify and enter into an Order Form to participate in our Affiliate Program, we will make available to You (i) a variety of graphic and textual Links (as defined below), and/or (ii) coupons, codes and/or other identifiers (collectively, “Coupons”). The Links and/or Coupons will serve to identify You as a member of the Affiliate Program. The Links will establish a Link from Your website or e-mail to Company’s website. In addition, You may share Links and/or Coupons via other media channels approved by Company from time to time including without limitation newsletters, email communications and the like. You agree to cooperate fully with us in order to establish and maintain such Links and/or Coupons. You further agree that Your use of the Links and/or Coupons must be in compliance with this Agreement at all times. Company may modify the Links and/or Coupons from time to time in its sole discretion. Subject to the limitations set forth in this Agreement, Company grants You a non-exclusive, non-transferable, revocable license (i) to access our website through the Links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such Links and/or Coupons, to use Company’s trademarks and/or logos and/or similar identifying material provided by us, for the sole purpose of introducing Company products and services on Your site or through other media channels and as approved in advance by us.
5. Content Usage Restrictions. You represent, warrant and covenant that You shall not, except as specifically provided for pursuant to the Affiliate Program: (i) copy or display any Company Content (as defined below); (ii) modify, adapt, translate or create derivative works based on the Company Content; (iii) remove, erase, or tamper with any copyright or other proprietary notices in any copy of any of the Company Content; (iv) sell, market, license, sublicense, distribute, disclose or otherwise grant to any person any right or interest in the Company Content; (v) buy or bid on any of Company’s trademarks, or variations of the trademarks, on any search engine or site; and/or (vi) take any action which may cause deception, confusion or otherwise blurs, tarnishes or dilutes the quality of the Company Content or the Company trademarks or other intellectual property or the goodwill associated therewith, all as shall be determined by Company. For any search functionality on Your site using the Company trademarks, (a) Company Links must always appear at the top of the list, (b) any Link that contains Company’s name in the title must connect the user directly back to the Company website, and (c) such Link must be supplied to You by Company. You agree to use the Company Content exactly in the form provided to You pursuant to the Affiliate Program. Upon termination of this Agreement, for any reason, You shall immediately cease using, displaying or otherwise maintaining any interest in the Company Content. For purposes of this Agreement "Company Content" means any and all trademarks, service marks, logos and other content which Company makes available to You in connection with the Affiliate Program, including, but not limited to, Coupons, banners, buttons, or other display advertisements or marketing materials created and furnished by Company. Such Company Content may be owned by Company or licensed to Company by a third party. You agree that You do not and will not (y) use or in any way exploit, any information, software, photos, video, text, graphics, music, sounds, ideas, articles, content and other materials of Company, other than the Company Content, alone or in connection with any other content, including Company Content, or (z) include any trademark of Company, or a variant or misspelling of a trademark of Company, in any domain name.
6. Links to Company Website. You may not place Company Content or Internet connections ("Links") to the Company website or website content: in pop-up, pop-under or similar ads delivered by third-party software applications; in unsolicited e-mail or other types of spam, banner networks, counters, guestbooks, ‘IRC’ channels or through similar Internet resources; or in e-mails, newsletters or anywhere other than on Your website; and You may not embed or include such Company Content or Links in software applications (such as toolbars), in each case unless You receive Company’s prior written permission. You must place Links to the Company website or Company Content such that it is unlikely that the Links and/or Content will mislead the visitor, and such that it is reasonably likely that the Links and/or Company Content will deliver bona fide transactions by the visitor to Company’s website from the Link and/or Company Content. You shall not cause any transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, hidden frames, JavaScript popup windows, redirects or clicking on Links that You place to Company. You shall not establish or cause to be established any promotion that allows third parties ("Sub-Affiliates") to place Company Content or Company's Links on their websites or in their e-mails or other advertisements, unless You receive Company's prior written permission. You shall be responsible for ensuring that each Sub-Affiliate meets Company eligibility requirements (as established from time to time), is bound by and complies with Affiliate duties (and where stated Sub-Affiliate duties) as specified in this Agreement and/or the Order Form, and for payment of payouts due to Sub-Affiliate that shall accrue. You shall indemnify Company for all acts of Your Sub-Affiliates without limitation.
7. Property Ownership Rights. You agree and acknowledge that Company retains all rights, title and interest in and to all property rights embodied in or associated with the Company Content. You represent and warrant that You will not take any action or assist any third party to take action challenging, contesting or otherwise inconsistent with Company's ownership of the Company Content and any goodwill and benefits accruing from the use of such Company Content will automatically vest in Company. We reserve all of our rights in Company Content and Your license to use such material is limited to the manner described herein. We may revoke Your license at any time, by giving You written notice. If not previously revoked, this license shall immediately terminate upon the termination of Your participation in the Affiliate Program.
8. Operation and Maintenance of the Company Website. You acknowledge and agree that Company may accept or reject, in its sole and absolute discretion, all purchases from customers placed on or through the Company website. You further acknowledge and agree that (i) You do not have any authority to make or accept any offer or commitment on behalf of Company, (ii) Company cannot, and does not, guarantee the availability and accessibility of the Company website, and (iii) Company is solely responsible for online fulfillment, cancellation, refunds and all other aspects of the Company website and its products and service offerings. Company shall own all right, title and interest in all data collected and obtained from customers on the website.
9. Confidentiality.
9.1 Confidential Information. In connection with Affiliate’s participation in Company’s Affiliate Program, the parties may have access to certain information that is not generally known to others including any and all information relating to the party and its business including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage and/or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication (“Confidential Information”). The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”
9.2 Obligations. Receiving Party agrees not to use or disclose the Confidential Information, and may disclose the Confidential Information only to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement and as necessary and appropriate to perform its obligations hereunder. The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent and without such third party having a contractual obligation (consistent with this Article 9) to keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.
9.3 Exclusions. Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
9.4 Legal Requirements. If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
9.5 Disposition of Confidential Information on Termination. Upon termination of this Agreement and/or Order Form or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation, and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed. The obligations with respect to Confidential Information, as set forth in this Article 9, shall continue in force and effect for a period of five (5) years after termination of this Agreement or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained.
9.6 Remedy. Each party acknowledges that a breach of this Article 9 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. This Article 9 shall survive the termination of this Agreement.
10. Privacy Policy. In the event You collect information on Your website, You agree to maintain a privacy policy which shall clearly and accurately describe the information collection and use practices of Your website, including but not limited to, the type of information collected, how the information is collected and used, and with whom the information is shared. You will also describe any information that is collected on Your website by any third party. Your website must have a prominent link to Your privacy policy which You hereby represent is, and shall remain for the term of this Agreement, consistent with best practices in the industry.
11. Public Announcement. You may not mention Company or its Representatives in a press release or other public statement (other than the banners, buttons, display advertisements or other Company Content created and furnished by Company) unless You have received prior written approval from Company.
12. Representations and Warranties.
12.1 Affiliate Representations and Warranties. You hereby represent and warrant to Company that: (i) by entering into an Order Form, You have duly and validly entered into this Agreement and it constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms; (ii) the execution, delivery, and performance by You of this Agreement and/or the Order Form and the consummation by You of the transactions contemplated thereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (a) any provision of law, rule, or regulation or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing) to which You are subject, (b) any order, judgment, or decree applicable to You or binding upon Your assets or properties, (c) any provision of Your by-laws or certificate of incorporation if applicable, or (d) any agreement or other instrument applicable to You or binding upon Your assets or properties; (iii) You are lawfully able to enter into this Agreement and/or Order Form and no consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement and/or the Order Form or the taking by You of any other action contemplated thereby; (iv) You have independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement and/or the Order Form; (v) You will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services; (vi) the information You provide in connection with the Affiliate Program is accurate and complete at all times; and (vii) there is no pending or material threatened claim, action, or proceeding against You, or any subsidiary or affiliate of Yours, with respect to the execution, delivery or consummation of this Agreement and/or the Order Form, or with respect to Your trademarks, and there is no basis for any such claim, action, or proceeding.
12.2 Company Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY ORDER FORM, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. THE AFFILIATE PROGRAM, THE COMPANY WEBSITE, ANY PRODUCTS AND SERVICES OFFERED ON THE COMPANY WEBSITE, ANY SPECIAL LINKS, LINK FORMATS, CONTENT, OUR AND OUR AFFILIATES’ DOMAIN NAMES, TRADEMARKS AND LOGOS, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE AFFILIATE PROGRAM ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WE MAY DISCONTINUE ANY PRODUCT OR SERVICE, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT.
13. Payments. Company agrees to pay You a fee or other form of compensation, including but not limited to a non-monetary exchange, as set forth in the Order Form (such monetary and non-monetary compensation shall be collectively referred to as an “Affiliate Fee”). The forgoing Affiliate Fee shall be available only for Qualified Purchases. A “Qualified Purchase” is defined as the purchase of a Company product and/or services by any Affiliate customer who (a) Clicks on a Link on Affiliate’s website or other Affiliate media channel and immediately purchases a Company product and/or service following such Click, or (b) purchases a Company product and/or service using a Coupon from Affiliate’s website or other Affiliate media channel. Affiliate Fees shall not be payable to You for purchases by end users who have clicked on a hypertext link to the Company website from another website operated by Company, another affiliate or any other third party after last Clicking on Your Link. For purposes of this Agreement, "Clicks" means the occurrence of a customer clicking on a Link. Affiliate acknowledges and agrees that Company will not be liable to You for the Affiliate Fee in the event Affiliate does not follow the processes set forth by Company. Notwithstanding anything herein to the contrary, the Affiliate Fee shall be “earned” only if each of the following conditions is met: (i) the products and/or services purchased by the customer have been delivered, the return period has expired, and Company has received payment in full from such customer; and (ii) Affiliate is not in breach of this Agreement. Unless otherwise set forth in the Order Form, Affiliate Fees will be processed and paid on a monthly basis in accordance with Company’s standard business processes and procedures. The payment method (e.g., check, ACH, Zelle, credit card or other form of payment) shall be mutually agreed upon by the parties in the applicable Order Form. Company will only compensate You for Qualified Purchases made in accordance with this Agreement. Each party is responsible for its own taxes and expenses. Affiliate shall complete any applicable tax forms as requested by Company.
14. No Joint and Several Liability. You acknowledge and agree that neither Company, its subsidiaries, parents, other affiliates, directors, officers, employees, agents, successors or assigns (collectively, the "Company Parties"), shall be liable to any party, including You, for any claim, liability, suit, action, judgment, loss, costs, expenses or other damages related to or in connection with Your products, services and/or website(s) and/or any content or other information displayed or contained thereon, including but not limited to, claims of infringement. Company shall not be liable to You or any of Your subsidiaries, parents, other affiliates, directors, officers, employees, agents, successors or assigns for any claims for indemnification, contribution or otherwise.
15. Affiliate Indemnification. You, at Your expense, shall indemnify, defend and hold harmless, Company against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages, including, without limitation, reasonable attorney's fees, arising out of and/or relating to (i) any breach or alleged breach of Your representations and warranties hereunder, (ii) Your failure to comply with or perform any obligation or agreement of You hereunder, (iii) Your products, services and/or website, and/or (iv) any infringement of Your products, services and/or website(s) and/or any content or other materials displayed or contained thereon.
16. Term; Termination. The term of this Agreement shall begin on the date on which you enter into the Order Form and shall continue for the term set forth in such Order Form unless terminated in accordance with the terms and conditions set forth herein. Company may terminate this Agreement or any Order Form at any time and for any reason upon seven (7) days prior written notice (e-mail or other electronic communication is acceptable) to Affiliate with effect from the 8th day after the date of such notice. Company may terminate this Agreement immediately, without notice, if Company determines, in its sole discretion, that Affiliate is in breach of Affiliate’s obligations hereunder. In addition, Company may terminate this Agreement or any Order Form, in its sole discretion, immediately upon written notice (e-mail or other electronic communication is acceptable) if: (a) Affiliate has failed to comply with any of the terms and conditions of this Agreement; (b) Company believes in good faith that You or Your Sub-Affiliate are harming, blurring or tarnishing the Company brand, any other trademark, service mark or trade name owned or licensed by Company or Company’s reputation; and/or (c) Company believes in good faith that Your or Your Sub-Affiliate’s actions or one or more of Your or Your Sub-Affiliate’s websites are causing or would cause Company to be in breach of its contractual obligations with third parties. Upon termination of this Agreement or any Order Form, Company shall pay Affiliate any Affiliate Fees due for Qualified Purchases completed and paid in full by the customer prior to the effective date of termination; provided, however, that no Affiliate Fees shall be due or payable to Affiliate in the event of termination due to Affiliate’s breach of this Agreement.
17. Restrictions. EXCEPT AS PERMITTED HEREIN, YOU SHALL NOT AND ARE NOT AUTHORIZED TO (i) USE THE COMPANY TRADEMARK, NAME OR ANY OF OUR OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, THE LINKS AND/OR COUPONS, AND/OR THE COMPANY CONTENT (COLLECTIVELY, THE “COMPANY IP”) (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) WITHOUT COMPANY’S EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE COMPANY IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; AND/OR (iii) ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY "INITIAL INTEREST CONFUSION" OVER THE USE OF COMPANY IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF COMPANY IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING WITHOUT LIMITATION POTENTIAL TREBLE DAMAGES FOR KNOWING OR WILLFUL INFRINGEMENT), AND THE OBLIGATION TO PAY COMPANY’S LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH COMPANY SEEKS TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS.
18. Limitation of Liability. IN NO EVENT SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, AND/OR SUPPLIERS BE LIABLE TO YOU AND/OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY COMPANY, ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, COMPANY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
COMPANY’S MAXIMUM AGGREGATE LIABILITY, AND THE AGGREGATE LIABILITY OF ITS PARTNERS AND LICENSORS, TO YOU IN ANY CIRCUMSTANCE ARISING OUT OF AND/OR RELATING TO THIS AGREEMENT IS LIMITED TO THE LESSER OF (I) ONE HUNDRED DOLLARS (US$100.00), OR (II) THE FEES PAID TO YOU BY COMPANY IN THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
19. FTC Endorsement Compliance. It is the intent of Company to treat all of our customers fairly. Accordingly, we require all Company Affiliates to comply with applicable laws, regulations and guidelines concerning advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be disclosed. This means that all Affiliates (e.g., directories, review/rating websites, blogs, and other websites) and any email or collateral that provide an endorsement or assessment of Company’s products and services must prominently disclose the fact that You receive compensation for referrals. You must clearly and prominently state the following, or any substantially similar statement previously allowed under this Agreement, on Your website or other location where Company may authorize your display of the Links or Coupons: “As a Why of AI Affiliate, I earn from qualifying purchases.” Except for this disclosure, and other statements as required by applicable law, you will not make any public communication with respect to this Agreement or your participation in the Affiliate Program without our advance written permission. You will not misrepresent our relationship with You (including by expressing or implying that se support, sponsor or endorse You), or express or imply any affiliate between us and You or any other person or entity except as permitted by this Agreement. You are advised to seek and obtain Your own legal advice on how these rules apply to Your website or other promotional activities for which You receive compensation. Company reserves the right to withhold fees and cancel the Affiliate relationship with You should we determine, at our sole discretion, that You are not in compliance with the previously mentioned guide or other FTC regulations or guides that we deem relevant.
20. Miscellaneous. Company and Affiliate are independent contractors and nothing in this Agreement or the Affiliate Program is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship. This Agreement is governed by and in accordance with the substantive laws of the State of Illinois, excluding its conflict of laws principles. Any lawsuit relating to this Agreement must be brought in the federal or state courts located in Chicago, Illinois. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement. Affiliate may not assign any of its rights or delegate any of its obligations under this Agreement and/or the Order Form, by operation of law or otherwise, without Company's prior written consent. Subject to that restriction, this Agreement and/or Order Form will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Company's failure to enforce strict performance of any provision of this Agreement and/or the Order Form will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement and/or Order Form. This Agreement, together with the Order Form, represents the complete agreement and understanding between the parties, and supersedes any other oral or written communications or understandings between the parties regarding the subject matter hereof. No amendment or modification to this Agreement will be binding upon Company unless agreed to by an authorized representative of Company.