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(revised 12.18.2023)
These Terms and Conditions are made part of the TOWR™ AFFILIATE MARKETING AGREEMENT (collectively, the “Agreement”) by and between Baumy Media, LLC (“Company”), and the Affiliate, (each a “Party” and collectively, the “Parties”). This Agreement will not take effect unless and until Company’s authorized representative countersigns the Agreement.
WHEREAS, the Company is in the business of placing its TOWR™ kiosks or similar digital signage at business establishments, which can be used to display advertising content, collect data, and perform other functions, and provides services related to the kiosks to Customers;
WHEREAS, the Affiliate has applied for affiliate status with the Company with the objectives of helping the Company market its TOWR™ kiosks and services, and to independently close sales on new placements, and Company has approved Affiliate for its Affiliate Program; and
WHEREAS, the Company and the Affiliate desire to enter into this Agreement to define the irrespective rights and obligations as to their affiliate relationship;
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereto agree as follows:
1.0 Definitions
“Affiliate Program” means our marketing affiliate program as described in this Agreement.
“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that we have made available to you via an Affiliate Tool or otherwise, or other customer prospect who is a potential Customer solely through Affiliate’s marketing, promotion or other efforts.
“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time, which may be updated anytime by providing written notice to you, including via a URL link to updates posted online.
"Agreement" means this TOWR™ Affiliate Marketing Agreement.
"Ad Revenue” is defined as funds collected from paid advertisements, less any refunds, payment processing fees, sales commissions paid to advertising agencies or other sales representatives.
“Commission” means the amount earned by Affiliate, pursuant to the ‘Commissions’ section of this Agreement.
“Customer” means the establishment that provides the space and power where we place the TOWR™ Products who has signed up for the TOWR™ placement after being an Affiliate Lead.
"Customer Data" means all information that Customer submits or collects via the TOWR™ Products and all materials that Customer provides or posts, uploads, inputs or submits for public display through the TOWR™ Products.
“Program Policies ”means all the rules, policies and guidelines applicable to the Affiliate Program, which the Company may update and amend from time to time by giving reasonable written notice to Affiliate, which may include a URL where such updates are posted online.
"TOWR™ Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our TOWR™ Products and related services.
“TOWR™ Products” means the TOWR™ interactive digital kiosks or similar digital signage/kiosk system, together with all related hardware and accessories.
“TOWR™ Placement Agreement” means a contract between Company and a Customer, where by Customer provides space and power for TOWR™ Products in exchange for receiving limited free use and/or a revenue share.
"We", "us", “our”, and “Baumy Media” means Baumy Media, LLC.
“You, “your” and “Affiliate” means the party, other than Baumy Media, entering into this Agreement and participating in the Affiliate Program.
2.0 Scope and Term. For the duration of this Agreement, Company and Affiliate’s respective rights and obligations with respect to any TOWR™ Placements sold by or though the exclusive efforts of Affiliate shall be governed by this Agreement. This Agreement may be terminated at will by either Party by providing written notice to the other Party. Either Affiliate or Company may terminate the affiliate relationship between them at any time, by providing written notice to the other Party. This Agreement shall automatically terminate if Affiliate’s affiliate status with Company is terminated.
3.0 Affiliate Marketing Program.
3.1 Affiliate is here by authorized to market Company’s TOWR™ Products and to promote same to customer prospects. Affiliate shall, at all times, accurately and honestly representCompany’s products, services, pricing and other material terms when interacting with Customer prospects.
3.2 Affiliate will earn a Commission when an Affiliate Lead becomes a Customer substantially through the exclusive efforts of Affiliate.
3.3 Affiliate is subject at all times to the Affiliate Policies and Program Policies, as may be amended from time to time, at Company’s sole discretion. Company may give Affiliate notice of any modifications or amendments to the Affiliate Policies or Program Policies through any reasonable means of communication, in Company’s discretion.
3.4 The Affiliate’s services for which a Commission may be earned are deemed complete for a given Customer, and Affiliate’s right to compensation pursuant to this Agreement accrues, when (a)the TOWR™ Placement Agreement has been executed between Company and a Customer; and (b) the TOWR™ Products have been placed and put into service at the Customer’s location.
3.5 The Company shall have the exclusive and unilateral right and discretion, for any or no cause or reason, to accept or reject the terms of any proposed TOWR™ Placement Agreement obtained by the Affiliate.
3.6 It is Affiliate’s responsibility to ensure all TOWR™ Placement Agreements covered by this Agreement are readily identifiable by Company. Affiliate will forward supporting documentation to the Company, such as email correspondences, upon receipt, that may help in identifying such Customers.
4.0 Affiliate Representations and Warranties. For the duration of this Agreement, the Affiliate makes the following representations and warranties:
4.1 That Affiliate is fully authorized and empowered to enter into this Agreement, and that Affiliate’s performance of the obligations under this Agreement will not violate any agreement between the Affiliate and any other person, firm or organization or any law or governmental regulation.
4.2 That Affiliate will not violate or infringe the rights, including but not limited to intellectual property rights such as patent, copyright or trademark, of any third party in the performance of any actions pursuant to this Agreement.
4.3 That Affiliate will not violate any applicable federal, state or local law, regulation or ordinance in the course of Affiliate’s performance under this Agreement.
4.4 That Affiliate understands that this Agreement is not an employment contract, that the Affiliate is not in any way an employee of the Company, nor is the Company an employer of the Affiliate, and that the Agreement may be terminated with or without cause, with or without notice, by either at any time and for any reason that is not violative of any applicable federal, state or local law, regulation or ordinance.
4.5 That Affiliate will bear all expenses incurred in the performance of this Agreement, except for expenses that the Company expressly agrees to cover in writing.
4.6 That Affiliate will diligently monitor communications, including phone and email at least daily, or more often as circumstances may warrant, and will immediately advise Company of any changes to Affiliate’s physical address, mailing address, phone number or email address.
5.0 Company Representations and Warranties. Beginning on the Effective Date and remaining in effect for the duration of this Agreement, the Company makes the following representations and warranties.
5.1 That it is fully authorized and empowered to enter into this Agreement, and that its performance of the obligations under this Agreement will not violate any agreement between the Company and any other person, firm or organization or any law or governmental regulation.
5.2 That it is in full compliance with any and all laws and/or statutes applicable to the services described hereunder.
6.0 Commissions.
6.1 Affiliate’s only compensation earned pursuant to this Agreement shall be as follows:
6.1.1 A Commission, as specified in the accompanying Affiliate Marketing Agreement form, will be calculated as a percentage of the Ad Revenue derived from each executed TOWR™ Placement Agreement that is independently obtained for the initial term of each agreement. Should the Customer receive a revenue share, this share shall be deducted from the Affiliate's commission percentage. For instance, if the Customer receives a 5% revenue share and the agreed commission is 15%, then the Affiliate will receive 10% of the Ad Revenue, reflecting a 5%deduction for the Customer's share. The specific percentage of the commission will be detailed in the Affiliate Marketing Agreement form.
6.1.2 If Affiliate’s efforts are the primary procuring cause of Company entering into an affiliate relationship with another individual (“Referred Affiliate”), Company will pay Affiliate a Commission. This Commission will be calculated as a specified percentage of the Ad Revenue derived from each executed TOWR™ Placement Agreement procured by the Referred Affiliate during the initial term of each such Placement Agreement. The exact percentage of this Commission will be indicated in the Affiliate Marketing Agreement form. In cases where a new affiliate is procured through the efforts of multiple referral sources, Company retains full and final authority, at its sole discretion, to determine which referral source(s) will receive a Commission and, if applicable, the respective amounts of such Commission.
6.1.3 In each case, amounts paid for TOWR™ Placement Agreements signed for less than a5-year term may have a reduced commission rate determined case-by-case at the sole discretion of the Company for the initial term of each agreement.
6.2 Not with standing any thing in this Agreement to the contrary, Affiliate shall not be entitled to compensation with respect to any TOWR™ Placement Agreement unless the TOWR™ Products have been installed and are operating.
6.3 All compensation is calculated per calendar month. If compensation is earned, Affiliate will be paid within thirty (30) days of the end of each calculation period. If Company or Customer terminates a TOWR™ Placement Agreement for any reason before installation, Company will no longer be required to pay any compensation to Affiliate related to that TOWR™ Placement Agreement.
6.4 The Affiliate, not the Company, shall be responsible for federal, state and local taxes derived from the Affiliate's net income or for the withholding and/or payment of any federal, state and local income and other payroll taxes, workers' compensation, disability benefits or other legal requirements applicable to the Affiliate.
6.5 The Company and Affiliate recognize and understand that, in the performance of this Agreement, Affiliate and/or its affiliates are likely to market Company’s services to Company’s existing customers and leads, as well as future customer and leads generated independently of Affiliate’s efforts. Affiliate and Company agree to operate in good faith to identify all TOWR™ Placement Agreements for which Affiliate is entitled to compensation.
6.6 In the event of any payment disputes, Affiliate shall notify Company within 60 days after Affiliate knew or, in the exercise of due diligence, should have known of any payment discrepancy related to a particular TOWR™ Placement Agreement. If Company’s investigation confirms Affiliate’s claim, the Company will pay Affiliate the amount due. In no event shall Affiliate be entitled to back payments that accrued more than six (6) months prior to Affiliate’s notice to Company regarding an alleged discrepancy. If Affiliate fails to give timely notice of discrepancies pursuant to this paragraph, Affiliate shall not be entitled to back payments that accrued prior to the date of actual notice to Company. The limits on Affiliate’s recovery of disputed back pay do not apply to compensation with held by the Company fraudulently or in bad faith.
6.7 Upon termination of this Agreement, Affiliate shall continue to receive Commissions related to TOWR™ Placement Agreements procured during the term of this Agreement until the end of the initial terms of those agreements. Notwithstanding the foregoing, Affiliate shall forfeit the right to receive all future Commissions if Affiliate breaches any provision in this Agreement related to confidentiality and non-disclosure, non-interference, non-solicitation, non-competition or non-disparagement. This Section 6.7 shall survive termination of the Agreement.
7.0 Affiliate Policies
7.1 Independent Affiliate Status.
7.1.1 The Affiliate is an independent affiliate of Company. Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
7.1.2 The Affiliate shall have no authority to bind the Company in any manner. Affiliate shall not represent to Customer prospects or other third parties that Affiliate has authority to bind the Company or make any other inaccurate statements regarding the relationship between the Affiliate and the Company.
7.1.3 The Affiliate shall not be entitled to worker's compensation, retirement, insurance or other benefits afforded to employees of the Company.
7.1.4 The Affiliate shall determine its own hours. Affiliateshall provide its own work location(s) and all consumable and non-consumables supplies, materials, equipment, tools and other goods and services reasonably necessary for carrying out the work contemplated herein.
7.2 Exclusivity. The services of the Affiliate to the Company under this Agreement are deemed exclusive, and neither the Affiliate, nor any agent or affiliate thereof, shall be free to render similar services to other companies or clients placing digital displays for advertising or kiosks for advertising, whether passive or interactive, or providing rental, sales, advertising, or other services related to same. This restriction applies during the Term of this Agreement and for two years thereafter. Notwithstanding any provision in this Agreement to the contrary, if Affiliate renders services to any such competitor in violation of this section, Affiliate shall not be entitled to any Commissions after the date of such violation.
7.3 The Company may modify or amend these Affiliate Policies, including Exhibit A, at any time by giving written notice to Affiliate.
8.0 Program Policies. Affiliate shall ad here to the following rules, policies and guidelines applicable to the Affiliate Program:
8.1 Whenreferring to TOWR™ in writing, as a brand, product, service or otherwise,always include the ™ marking to reflect the Company’s trademark rightsapplicable to TOWR™ and the TOWR™ Products.
8.2 Affiliatestipulates that Company’s reputation is paramount to its success, and that deceitful,misleading and dishonest conduct toward any Customer prospect would irreparablydamage Company’s reputation and good will, result in financial loss, and causeother irreparable harm. Accordingly, Afiliate shall not be entitled to receiveCommission as to any TOWR™ Placement Agreement procured as a result of deceit,misinformation, dishonesty, threat, duress, coercion or other misconduct byAffiliate.
8.3 Unlessotherwise notified by the Company, Affiliate may use any reasonable efforts andmeans to market and promote the TOWR™ Products to Customer prospects. TheAffiliate must obtain Company’s pre-approval before posting, distributing,displaying, publishing, communicating or otherwise disseminating anyinforation, advertisement, video, audio, print material, or other contentwhatsoever that refers or relates to the Company, TOWR™, the TOWR™ Products orany other product or service of the Company or any Related Entity.
8.4 TheCompany reserves the right to require Affiliate to take down, remove, delete orotherwise cease and desist dissemination, display, publication, communicationor distribution of any information, video, audio, print material, or othercontent whatsoever that refers or relates to the Company, TOWR™, the TOWR™Products or any other product or service of the Company or any Related Entity.In event of such demand by Company, Affiliate shall comply as soon asreasonably possible.
8.5 Affiliateshall have no rights with respect to any Customer Data, the TOWR™ Content orany other rights except as expressly set forth in this Agreement. 8.6 TheCompany may modify or amend these Program Policies at any time by givingwritten notice to Affiliate.
9.0 Non-Disclosure of Confidential Information.
9.1 Companyis engaged in several lines of business, including but not limited to owning, placing, operating, and selling TOWR™ Products, ATM Machines, Virtual Currency Kiosks, Automated Machines, Self-Service Machines, and Digital Signage, and related services (collectively, the "Business”). Company owns, controls and has exclusive access to proprietary information concerning the operations, processes, methods and accumulated experience incidental to its Business including, without limitation, those matters not generally known to the public or the industry in which the Company is or may become engaged and which pertain to the Business in connection with programming, systematizing, engineering, manufacturing, merchandising, advertising, promotions, marketing, selling, distributing, samples, customer lists, prospect lists, price and discountlists, sales figures, trade secrets and market research (collectively the "Confidential Information"). Confidential Information shall also include any information fitting the definition of a “trade secret” under the Defend Trade Secrets Act of 2016 (DTSA), 18 U.S.C. § 1836 et seq, and any other information provided by Company marked as “confidential”, “proprietary” or “restricted”, or which under the circumstances should reasonably be considered as confidential.
The term “trade secret” pursuant to the DTSA, 18 U.S.C. § 1839(3), means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes,procedures, programs, or codes, whether tangible or intangible, and whether orhow stored, compiled, or memorialized physically, electronically, graphically,photographically, or in writing if: (A) the owner thereof has taken reasonable measures to keep such information secret; and(B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.
9.2 Further, the definition of Confidential Information and Affiliate’s obligations with respect to Confidential Information shall also extend to information, documents and other materials owned or controlled by other persons or entities related to or affiliated with managers or members of the Company, which Confidential Information the Affiliate may from time to time come into possession of, have knowledge of, or have access to, that otherwise matches the definition of Confidential Information in Section 2(a) above. Such related or affiliate dentities include but are not limited to: Richard J. Baumy; Richard A. Baumy; TOWR, LLC; BaumTech, LLC; Baumy Cash Management, LLC; BCALM, LLC; 6565 St. ClaudeAve, LLC; 2439-2441 Decatur, LLC; 4200 St. Claude, LLC; Wav3, LLC; WTMA1, LLC;Cajun 417, LLC; ; 6608-14 Dauphine, LLC; Cajun Broad, LLC; BaumCoin, LLC;Allegiant ATMs, LLC; Allegiant ATM Services, LLC; 6930 St. Claude Owner, LLC;Baumy Fund 1, LLC; and RB Old Arabi, LLC (“Related Entities”).
9.3 Affiliate acknowledgesthat, upon execution of this Agreement and solely by reason of Affiliate’sassociation with the Company, Affiliate may come into possession of, have knowledge of, have access to, or contribute to, develop, and/or enhance the Confidential Information. But for the Affiliate's association with the Company and the Affiliate’s entering into this Agreement, no Confidential Information would have been disclosed to Affiliate.
9.4 The Confidential Information is a valuable asset of the Company and is, will be and shall at alltimes remain, the sole and exclusive property of the Company (subject to theCompany’s exclusive right to sell, transfer or assign same, which authority does not vest in Affiliate). Affiliate shall gain no interest or rights in or to Confidential Information or to its enhancements, developments or refinements by virtue of disclosure of such information to Affiliate, or by virtue of any enhancements, developments or refinements which the Affiliate may have made toor contributed with respect to any Confidential Information.
9.5 Affiliate shall, at all times, hold the Confidential Information as secret.
9.6 Affiliate shall use the Confidential Information exclusively for the purpose of carrying out Business on behalf of the Company. Affiliate shall not use the ConfidentialInformation for Affiliate’s own benefit or purpose, or for the benefit of any third party, without the prior written consent of the Company.
9.7 Affiliate shall not directly nor indirectly cause or permit the exploitation, copying or summarizing of any of the Confidential Information, except in the performance of Affiliate's duties for the Company as expressly directed by an officer theCompany.
9.8 Except asexpressly directed by the Company, during the term of the Affiliate’sassociation with Company and at all times thereafter, the Affiliate shall notat any time attempt to enhance, develop or reverse engineer the Confidential Information in any manner.
9.9 Affiliate understands that Company conducts its Business at various points throughout the UnitedStates, and that Affiliate must maintain and preserve all of the ConfidentialInformation and knowledge thereof as unavailable to the Company's competitors, the industry and the general public in order to protect the Company's business, competitive position and good will.
9.10 Affiliate agrees that Company derives a competitive advantage in the marketplace by maintaining the Confidential Information and knowledge thereof as secret and unavailable tothe Company's competitors and the public.
9.11 During the term ofAffiliate's association with the Company and after termination of thatrelation ship for any reason or no reason, with or without cause, Affiliateshall not, directly or indirectly, individually or in combination or association with any other person or entity, divulge or disclose to any third party any of the Confidential Information without, in each instance, the prior written consent of the Company.
9.12 Affiliate shall permanently destroy any materials containing Confidential Information prior to discarding or disposing of same. Documents shall be shredded with a micro-cutshredder. Digital media shall be destroyed in a similarly appropriate manner, such that information cannot be retrieved.
9.13 Upon termination of Affiliate's association with the Company for any reason or no reason, withor without cause, or at any time upon the Company’s request, Affiliate shall immediately deliver or cause to be securely delivered to the Company all keys, ID badges, access cards and similar items issued by Company and any of its customers, along with all of the Confidential Information in Affiliate's possession or control including, without limitation, originals and copies of books, catalogues, sales brochures, customer lists, prospect lists, pricelists, employee manuals, operations manuals and other documents reflecting or referencing the Confidential Information, as well as all other materials furnished to or acquired by Affiliate as a result of or during the course of Affiliate'sassociation with the Company.
9.14 The obligations of confidentiality under this Agreement shall remain in place and will only expire upon the latter of five (5) years following the Effective Date of thisAgreement or three (3) years after the termination of association with theCompany, except as may be otherwise provided herein. Notwithstanding suchexpiration of this Agreement all Confidential Information that constitutes atrade secret under the DTSA shall remain subject to the confidentiality andnon-disclosure obligations of this Agreement for so long as such Confidential Information remains a trade secret pursuant to the DTSA.
9.15 Affiliate agreesthat the confidentiality and non-disclosure provisions in this Section 9.0 are not soonerous as to serve as the functional equivalent of a non-competition agreement; Affiliate further affirmatively waives such argument and agrees that Affiliate will not raise such an argument adverse to the Company in any litigation, arbitration or other proceeding concerning any dispute arising from or related to this Agreement.
10.0 Non-Interference. For a period of two(2) years, or the maximum time permitted by applicable law if shorter, after termination of Affiliate's association with the Company, for any reason or no reason, with or without cause, Affiliate shall not interfere with therelation ship of the Company or any Related Entity, and any of their respective customers, agents, representatives or suppliers, or directly or indirectly, either for himself/herself or for any other person or entity, solicit any customers, agents, representatives or suppliers to the Company or RelatedEntities to purchase or distribute information, products or services of or on behalf of the Affiliate or such other person or entity that are competitive with the Business of the Company or any Related Entity. Nothing contained in this Section 10.0 shall prohibit general advertising or solicitation not directed at the customers, agents,representatives or suppliers of the Company or its affiliates. For purposes of this paragraph, “Affiliate’s association with the Company” includes any timeperiod when Affiliate is receiving compensation arising from the Agreementafter termination or expiration of same.
11.0 Non-Solicitation. For the period of two(2) years, or the maximum time allowed by applicable law if shorter, after termination of Affiliate's association with the Company, for any reason or no reason, with or without cause, the Affiliate will not, solicit any employee ofthe Company or any Related Entity to terminate his or her association with theCompany or Related Entity or employ any such individual during his or herassociation with the Company or Related Entity and for a period of six (6)months after such individual terminates association with the Company or RelatedEntity. However, contact with such persons resulting from generaladvertising or unsolicited contact does not violate the restrictions in thisSection 11.0. For purposes of this paragraph, “Affiliate’sassociation with the Company” includes any time period when Affiliate is receiving compensation arising from this Agreement after termination or expiration of the Agreement.
12.0 Non-Disparagement. Affiliate agrees not to make negative comments,refer unfavorably to, or otherwise disparage the Company, any Related Entity, or their respective officers, directors, employees, shareholders, agents, orany of their services or products, including but not limited to the TOWR™Products and related services, in any manner likely to be harmful to them or their business, business reputation or personal reputation during Affiliate’sassociation with the Company and forever thereafter. The foregoing shall not be deemed violated by truthful statements in response to legal process, required governmental testimony or filings, or administrative or arbitral proceedings(including, without limitation, depositions in connection with suchproceedings); provided, that prior to making any disparaging statement the Affiliateshall provide the Company with prior notice and shall reasonably cooperate withthe Company in seeking a protective order or other appropriate protectionagainst making such statement. For purposes of this paragraph, “Affiliate’sassociation with the Company” includes any time period when Affiliate isreceiving compensation arising from this Agreement after termination orexpiration of the Agreement.
13.0 IntellectualProperty.
13.1 TheAffiliate represents and warrants that all content utilized by the Affiliate infurtherance of its performance under this Agreement, including, withoutlimitation, any images, videos, audio recordings, designs and text, andincluding any other intellectual property, such as copyrights or trademarks, isowned solely and legally by the Affiliate.
13.2 Anyimages, videos, audio recordings, designs, text, or other content created byAffiliate in pursuit of its marketing, promotional or sales efforts under thisAgreement (the “Marketing Content”) shall remain the property of Affiliate.Affiliate hereby grants to Company an irrevocable license to use any such MarketingContent for any purpose, during and after the term of this Agreement. Affiliateshall provide Company with a copy of any such Marketing Content upon request, in the resolution and file format requested by Company, to the extentreasonably practicable.
13.3 Anymaterials developed by the Company, making use of Marketing Content, remainsthe sole property of the Company subject to all applicable laws and/orstatutes.
14.0 Other Representations and Warranties.
14.1 The Affiliate agrees that the restrictions and limitations contained in Sections 9.0 through 12.0 and all subparts thereof, includingbut not limited to any time periods and geographic limitations: (i) are reasonable in all respects, including as to scope and duration, and are necessary toprotect the Company's proprietary interest in its Confidential Information andto protect the Company’s legitimate business interests; (ii) do notunreasonably interfere with or burden any interest or right of the Affiliate,(iii) do not violate public policy and (iv) are fully enforceable now and inthe future against the Affiliate in accordance with the terms of thisAgreement.
14.2 Affiliate shall deal with the Confidential Information strictly in accordance with the terms ofthis Agreement.
14.3 Affiliate'srepresentations and warranties set forth herein shall be revived continuously throughout Affiliate's association with the Company.
14.4 Company ismaterially relying upon each of Affiliate's covenants, agreements,representations and warranties in engaging Affiliate for the Company.
14.5 Neither the Affiliate nor Affiliate’s employees and other agents shall, during the time of rendering services to the Company or anytime thereafter, disclose to any other person or entity the terms or any other aspects of this Agreement, nor the terms or any other aspects of any TOWR™ Placement Agreement obtained pursuant to this Agreement; specifically including, but not limited to, any other Customer, nor any other Affiliate, agent or employee of the Company, without the prior written consent of the Company’s Chief Executive Officer.
15.0 Limitation of Liability.
15.1 The Company shall not be responsible for any costs incurred by the Affiliate, including, without limitation, any and all fees and expenses, such as those described in Sections 4.5 above and 7.1.4 above.
15.2 EXCEPTWITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, ORCONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDINGBODILY INJURY, DEATH, LOSS OF REVENUE, OR PROFITS OR OTHER BENEFITS, AND CLAIMSBY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THEAGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, LIQUIDATEDDAMAGES, STATUTORY DAMAGES, ATTORNEY’S FEES, BREACH OF WARRANTY, NEGLIGENCE,STRICT LIABILITY, AND OTHER TORTS, BUT THE LIMITATION SHALL NOT APPLY TO CAUSESOF ACTION ARISING FROM A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
15.3 Force Majeure. Neither party will be liable forthe failure to perform its obligations under this Agreement if such failure is due to acts or events beyond such party’s reasonable control which includes byway of illustration, but not limitation, acts or events attributable tofailures or fluctuations in equipment, electrical power, heat, light,utilities, air conditioning, telecommunications equipment, malfunctions or deficienciesin hardware or software, revocation of computer software license, third-partynonperformance, epidemic or pandemic of infectious disease, acts of God orpublic enemy, acts of government, civil disobedience, lock-outs, freightembargoes or terrorism if any such failure of its obligations could not havebeen prevented by reasonable precautions and cannot reasonably be circumventedby the non-performing party through the use of alternative sources or plans,and provided that the Party whose performance is affected shall provide promptwritten notice of delay or non-performance to the other Party and shall usecommercially reasonable efforts to minimize the impact of the such delay ornon-performance on the other Party.
16.0 Duration& Scope.
16.1 This Agreement shall take effect immediately upon execution by both Parties, and shall remain in full force and effectin definitely, or until terminated pursuant this Agreement.
16.2 All provisions in this Agreement which, by their express terms or by their nature,are intended to extend beyond the termination or expiration of this Agreement(including, but not limited to, sections pertaining to compensation earned during the active term, remedies for breach, indemnification, termination, confidentiality, non-interference, non-solicitation, non-disparagement, certaingeneral provisions, etc.) shall survive the termination or expiration of thisAgreement.
17.0 Indemnification. AFFILIATEAGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY AND ANY AFFILIATEDAND RELATED ENTITIES, AND ALL THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS,EMPLOYEES AND INSURERS FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES, CAUSES OFACTION, DAMAGES, LAWSUITS, JUDGMENTS, INCLUDING ATTORNEYS’ FEES AND LEGALCOSTS, ARISING OUT OF, OR RELATING TO, ANY ACTS OR OMISSIONS OF AFFILIATERELATED TO ITS PERFORMANCE UNDER THIS AGREEMENT, ANY BREACH OF THIS AGREEMENTBY AFFILIATE, OR BREACH OF ANY REPRESENTATION OR WARRANTY GIVEN BY AFFILIATE INTHIS AGREEMENT.
18.0 Assignment.
18.1 By Affiliate. This Agreement is deemed personal as to Company’s selection of Affiliateand may not be assigned by Affiliate, in full or in part, without the express written consent of the Company.
18.2 By Company. If Company assigns its rights and obligations under this Agreement to anassignee that assumes the obligations, Company shall give Affiliate writtennotice of the assignment, and Company shall be released from all obligation sunder this Agreement incurred on or after the date of the assignment and assumption by the assignee. In the event Company sells or assigns any of its rights in any TOWR™ Placement Agreement to a third party, Company shall have the option, in its sole discretion, to either (A) assign this Agreement, or any portion thereof, to the acquiring party as-is, or (B) buy out Affiliate through the end of the then-current TOWR™ Placement Agreement term(s), thereby terminating the Affiliate’s right to any further Commissions thereon, in which case Affiliate will be deemed paid in full and shall not be entitled to further compensation, notwithstanding any other provision of this Agreement to the contrary. Nothing herein shall be deemed to otherwise limit Company’sassignment rights.
19.0 Dispute Resolution. In the event of any dispute between the parties under this Agreement, any claims or legal actions by one party against the other arising under this Agreement or concerning any rights under this Agreement shall be commenced and maintained in any state or federal courtlocated in St. Bernard Parish, Louisiana and, in the case of exclusive federal jurisdiction, the United States District Court for the Eastern District of Louisiana. Both parties hereby irrevocably submit to the jurisdiction and venue of any such court.
19.1 Injunctive Relief. Without limiting the remediesavailable to the Company, Affiliate acknowledges that a breach of any of the covenants contained in Sections 4.0, 7.0, 8.0, 9.0, 10.0, 11.0, and 12.0 above, including all theirrespective subparts, may result in material irreparable injury to the Companyfor which there is no adequate remedy at law, that it will not be possible tomeasure precisely damages for such injuries and that, in the event of such abreach or threat thereof, the Company shall be entitled, without the requirement to post bond or other security, to obtain a temporary restrainingorder and/or injunction restraining Affiliate from engaging in activitiesprohibited by this Agreement or such other relief as may be required tospecifically enforce any of the covenants in the aforementioned sections ofthis Agreement.
19.2 Jury Trial Waiver. THE PARTIESAGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIALBY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM, THIRD-PARTY CLAIM OR ANY OTHERISSUES IN ANY ACTION RELATED TO OR ARISING OUT OF THIS AGREEMENT.
19.3 Class ActionWaiver.THE PARTIES IRREVOCABLY WAIVE AND RELINQUISH ANY PAST, PRESENT OR FUTURE RIGHTTO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ADVERSE TO EACH OTHER, IN ANYCAPACITY, WITH RESPECT TO ANY CLAIM, COUNTERCLAIM, THIRD-PARTY CLAIM OR ANYOTHER ISSUES IN ANY ARBITRATION OR LEGAL ACTION RELATED TO OR ARISING OUT OFTHIS AGREEMENT.
19.4 Attorney’s Fees & Costs. In the event of either Party retainscounsel to enforce any term or resolve any dispute arising out of or relatingto this Agreement, the prevailing party shall be entitled to recover all costsincurred and reasonable attorneys' fees, including attorneys' fees in allinvestigations, trials, bankruptcies, and appeals, and including attorneys’fees and costs incurred proving entitlement to defense and indemnity. If theother Party fails to pay all amounts due within thirty (30) days after a courtjudgment has become final and non-appealable, the prevailing party shall befurther entitled to recover attorney’s fees and costs for collection equal to40% of the principal amount awarded by judgment.
19.5 PersonalGuarantee. If Affiliate is an LLC, Corporation, LLP or otherentity, then the individuals signing this Agreement on behalf of Affiliatehereby agree to, jointly and severally as applicable, personally guarantee thepayment and collection of all fees and costs payable under this Agreement, onbehalf of said entity.
20.0 . General Provisions
20.1 Construction. This Agreement shall be construed, interpreted and enforced according to the statutes, rules of law and court decisions of the State of Louisiana, without regard to conflict of law provisions. The Affiliate acknowledges and agrees that he or she has been givenan opportunity to review this Agreement with legal counsel of their ownchoosing, at their own expense. By signing this Agreement, the Affiliaterepresents and warrants that Affiliate has had all questions answered to theircomplete satisfaction and fully understands all terms and conditions herein. Inthe event of a dispute regarding the interpretation of any provision in thisAgreement, no provision shall be interpreted against the Company by virtue ofthe Company having drafted this Agreement.
20.2 Gender and Number. Wherever appropriate herein, themasculine may mean the feminine or neuter, and the singular may mean theplural, or vice versa.
20.3 Severability andSavings. If any provisionor clause of this Agreement is held to be invalid by a court of competentjurisdiction based on any law or regulation existing at the time this Agreementis entered or anytime thereafter, then such provision or clause shall besevered without affecting any other Agreement, the balance of which shall remainin full force and effect; provided, however, that if such provision or clausemay be modified so as to be valid as a matter of law, then the provision orclause shall be deemed to be modified so as to be enforceable to the maximumextent permitted by law.
20.4 Headings. The headings and titles of the sectionsand paragraphs of this Agreement are for convenience purposes only, and are notintended to define, limit or construe the contents of the various paragraphs.
20.5 Entire Agreement. This Agreement sets forth theentire understanding of the parties with respect to the subject matter hereofand supersedes all prior agreements of the parties relating to the subjectmatter hereof, whether oral or written.
20.6 Amendments. Company maymodify this Agreement at any time by providing written notice to Affiliate of the updated terms. It shall be sufficient notice if Company posts the updatedterms online and provides Affiliate with the URL with instructions to reviewthe updated terms. If Affiliate objects to any updated terms, Affiliate mayterminate the Agreement by providing written notice to Company within fifteen(15) days after receiving notice of the updated terms, in which case Affiliate shall not be bound by the updated terms and the Agreement shall be deemed terminated. Affiliate will otherwise be presumed to have read, understood and accepted any updatedterms promulgated pursuant to this Section. Except as otherwise provided here in, no provision of this Agreement may be modified, except by a written instrument duly signed and acknowledged by the Affiliate and an authorized representative of the Company.
20.7 Waiver. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modificationof such provision, or impairment of its right to enforce such provision thereafter.
20.8 Counterparts. For the convenience of the parties hereto,this Agreement may be executed in any number of counterparts or facsimilecounterparts, each such counterpart being deemed to be an original instrument,and all such counterparts shall together constitute one and the same agreement.
