First Effective 02/01/2021; Amended 03/08/2021
BY ACCEPTING THIS AGREEMENT, USING THE SITE, MARKETING THE PRODUCTS, YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS BELOW.
Definitions. For purposes of this Agreement, the following terms will have the meanings set forth below:
“Affiliate Site” means the URL designed by GameChanger for prospective affiliates to register as a marketing affiliate of GameChanger, including the Affiliate portal that tracks all performance and payments as well and obtain an Affiliate Code and discount codes, currently located at: affiliates.gamechangerpatch.com as may be updated by GameChanger from time to time.
“Confidential Information” means information regardless of form or marking disclosed by a party (“Discloser”) to the other party (“Recipient”) under this agreement that is non-public, nominated as confidential or would normally be considered confidential under the circumstances. Without limiting the foregoing, the Commission and any information provided by GameChanger to Affiliate or obtained through the Products are Confidential Information of GameChanger. Notwithstanding the foregoing, Confidential Information does not include information that: (a) the Recipient of the Confidential Information already knew; (b) becomes public through no fault of the Recipient; (c) was independently developed by the Recipient without use of, access to or reference to the Confidential Information; or (d) was rightfully given to the Recipient by another party without an obligation of confidentiality.
“Customers” means those prospective customers referred by Affiliate to GameChanger and accepted by GameChanger in accordance with Section 2 below.
“Effective Date” means the date Affiliate accepts this Agreement by indicating its acceptance through the Affiliate Site.
“Export Laws” means all applicable export and re-export control laws and regulations, and specifically includes the Export Administration Regulations maintained by the U.S. Department of Commerce, the trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State.
“Intellectual Property Rights” means all intellectual property rights subsisting anywhere in the world, including, without limitation, patents, design or utility model rights, mask rights, moral right, rights in inventions, copyright, trademarks, database rights, patents, commercial or Confidential Information, know how or trade secrets, and any other rights of a similar or corresponding character whether or not any of the same are registered, and the right to apply for, extend or renew any of them.
“Net Fees” means all payments received by GameChanger from a Customer with respect to GameChanger’s provision of the Products to such Customer during the Term, minus all Third Party Fees, coupon codes, rebates, payment processing fees, handling, shipping, returns, bad debt, service charges, and any applicable Taxes.
“Products” means the products offered by GameChanger to Customers as more particularly described on gamechangerpatch.com, as may be updated or modified by GameChanger from time to time.
“Referral Notice” means Affiliate’s submission of written notice to GameChanger regarding a prospective customer’s interest in purchasing the Products offline, in the form designated by GameChanger from time to time, which shall include all information about the prospective customer and opportunity as reasonably requested by GameChanger.
“Taxes” means any and all taxes, charges, fees, levies, imposts, duties, tariffs or other assessments imposed by or payable to any federal, state, local or foreign tax or governmental authority, including, without limitation, sales, use, goods, services, value-added, transfer, customs, personal property, stamp duty, excise, withholding and other obligations of the same or similar nature.
“Term” means the Initial Term together with all Renewal Terms, as such terms are defined below.
“Third Party Fees” means all royalties, fees, and other amounts due to third parties with respect to the provision of the Products.
1. Authorization; Marketing and Promotion.
1.1. Authorization. Subject to Affiliate’s compliance with this Agreement, any program terms provided to Affiliate and acceptance into the Affiliate program by GameChanger, GameChanger hereby grants to Affiliate a non-exclusive, non-transferable, and non-assignable right to promote and market the Products to Customers. Affiliate must ensure all of its information is correct and up to date to ensure that Affiliate receives Commissions due hereunder. Failure to do so may result in delayed payments or non-payment if the system cannot validate an order. For the avoidance of doubt, Affiliate must be eighteen (18) years or older and be able to agree to the terms herein and be legally bound under applicable law.
1.2. Marketing and Promotion. Affiliate will use commercially reasonable efforts to market and promote the Products to prospective customers during the Term. Any advertising materials to be used by Affiliate (other than the materials provided by GameChanger) shall be at its own cost and expense. Affiliate agrees to assist in GameChanger’s marketing efforts to a Customer referred by Affiliate and will provide commercially reasonable cooperation if so requested. Affiliate shall clearly and conspicuously disclose that it is being compensated by GameChanger for its promotion of the Products and compliance with all FTC regulations regarding Affiliate.
1.3. GameChanger Marks. All use by Affiliate of the trademarks, service marks, and trade names associated with GameChanger and/or the Products, whether registered or unregistered (the “GameChanger Marks”), including any goodwill associated therewith, shall inure to the benefit of, conform to the standards set by, and be under the control of, GameChanger. Affiliate’s use of any of the GameChanger Marks must comply with this Agreement and any trademark usage guidelines provided by GameChanger from time to time. Affiliate shall not use any of the GameChanger Marks in connection with any product or service or in any manner that is likely to cause confusion, and shall not copy, imitate, or use any such marks, in whole or in part, without the prior written permission of GameChanger. As between the parties, GameChanger will have the sole right and discretion to determine whether any use of the GameChanger Marks in connection with the promotional activities hereunder complies with the requirements of this Agreement. Affiliate may not bid any GameChanger Marks for ads or ad words regardless of platform.
2. Referral Process. A prospective customer may become a Customer through Affiliate’s submission and GameChanger’s acceptance of a Referral Notice per Section 2.1 below, or through GameChanger’s Affiliate Site per Section 2.2 below.
2.1. Referral Notice. Affiliate may submit a Referral Notice to GameChanger for each prospective customer referred by Affiliate to GameChanger for OFFLINE purchases. If GameChanger accepts the Referral Notice, the prospective customer referred thereby will be considered a Customer. GameChanger may reject any Referral Notice if the prospective customer set forth in such Referral Notice is (a) a current customer of GameChanger, or (b) a prospective customer of GameChanger who, at the time the Referral Notice is submitted to GameChanger concerning such customer: (i) is being actively recruited by GameChanger or another partner of GameChanger, or (ii) has been actively recruited by GameChanger or another partner of GameChanger in the one hundred eighty (180) day period immediately preceding submission of such Referral Notice. If GameChanger fails to provide Affiliate with a written acceptance or rejection within thirty (30) days after submission of the Referral Notice, the Referral Notice will be considered rejected by GameChanger and Affiliate must resubmit a Referral Notice for such prospective customer to be reconsidered as a Customer hereunder. The parties will work together regarding any channel conflicts.
2.2. Affiliate Code. Affiliate may be assigned a referral code or URL that is specifically linked to Affiliate in conjunction with this Agreement (both referred to herein as an “Affiliate Code”). Affiliate may share its Affiliate Code with prospective customers and if a prospective customer uses the Affiliate Code during the Term when purchasing the Products, and GameChanger accepts the Affiliate Code associated with the purchase, such prospective customer will be deemed a Customer with respect to such purchase. GameChanger may reject any Affiliate Code related to a purchase if the prospective customer is (a) a current customer of GameChanger, or (b) has been actively recruited by GameChanger or another partner of GameChanger in the one hundred eighty (180) day period immediately preceding the purchase.
3. Pricing and Payment. GameChanger is responsible for all account-related activities with the Customers, including billing and collecting fees from all Customers, and may communicate directly with the Customers at any time. GameChanger is free to determine the prices that it will charge Customers for the Products and will have the right to alter the Products, alter any prices for the Products, or reject or discontinue sales of the Products or any part thereof, with respect to any Customer at any time or from time to time in its sole discretion.
4. Commission. During the Term as consideration for any and all efforts by Affiliate to promote the Products hereunder, GameChanger will pay Affiliate a fee as set forth on the Affiliate Site equal to the percentage of the Net Fees received by GameChanger from Customers each month during the Term (the “Commission”), payable within fifteen (15) days after the end of the month in which the applicable Net Fees are received by GameChanger. Affiliate will provide GameChanger with all appropriate tax identification information that GameChanger requires to ensure GameChanger’s compliance with applicable tax regulations. GameChanger currently uses PayPal (and its subsidiary Venmo) to pay Commissions and you must have a PayPal account to be paid. GameChanger reserves the right to change this method in its sole discretion and Affiliate shall provide updated account information to GameChanger upon notice thereof. For any disputes as to payout, the Company must be notified within thirty days of your receipt of the payout. We will review each dispute notification as well as the underlying payout transaction to which it is related. Disputes filed after thirty days of payout will not be addressed. All information will provided via the Affiliate Site so check it often. Payments will be made on the first purchase and subsequent purchases by the Customer(s), provided that a net new Customer of Affiliate has made a purchase within the last six (6) months.
5. Intellectual Property Rights. Except for the rights to use the GameChanger Marks and promote the Products as expressly granted herein, Affiliate will not acquire any rights, title or interest in any of the Intellectual Property Rights belonging to GameChanger, its affiliates and subsidiaries or it’s licensors. Nothing in this Agreement is intended to constitute a sale of any Products or any derivations thereof. The Products constitute valuable proprietary and trade secret information and property of GameChanger and are protected by various Intellectual Property Rights. Title, ownership, and Intellectual Property Rights, including without limitation all rights, in and to the Products, and all derivatives thereof, shall remain with GameChanger and its licensors. Affiliate acknowledges the ownership and Intellectual Property Rights of GameChanger in the Products, and will not take any action to jeopardize, limit or interfere in any manner with such ownership or other rights. Any ideas, suggestions, Intellectual Property Rights and feedback contributed by Affiliate, at its discretion, to GameChanger in connection with the GameChanger Technology or performance of activities for GameChanger under this Agreement are transferred to and owned by GameChanger; or if transfer of ownership is not allowed, licensed by Affiliate to GameChanger on a non-exclusive, royalty-free, fully paid up, sublicensable, perpetual, irrevocable, transferable, unlimited, worldwide right to use and otherwise commercially exploit such elements. Affiliate agrees not to assert against GameChanger, its affiliates, parents, subsidiaries, customers, partners, resellers, distributors or other participants in the Affiliate Program including licensees of the GameChanger Products and Intellectual Property Rights (such “GameChanger Technology”) (each such person a “Technology Licensee”) any of its patent claims for making, having made, using, selling, offering for sale, or importing any products or materials that have been or will be infringed by the GameChanger Technology. For the avoidance of doubt, the foregoing does not restrict Affiliate or its affiliates from pursuing (i) claims for any occurrence of patent infringement that actually arose and were known to Affiliate prior to the Effective Date of this Agreement (but excluding claims that would otherwise be protected under this Section to the extent they arose as of or following the Effective Date) or (ii) other types of claims against a Technology Licensee, such as a claim for misappropriation of a trade secret of Affiliate. If a Technology Licensee asserts or initiates any proceeding to assert any of its patent claims related to the GameChanger Technology, which patents if held by Affiliate would be covered by this covenant had the Technology Licensee been making, having made, using, selling, offering for sale, or importing the GameChanger Technology, against Affiliate for making, having made, using, selling, offering for sale, or importing any products, then the obligations of this Section are suspended only as to that particular Technology Licensee, with the duration of suspension to coincide with the period of time in which the Technology Licensee is asserting the patent claim against Affiliate and Affiliate is asserting a patent claim in response to the Technology Licensee’s claim. The parties acknowledge that the intent of this suspension section is to give Affiliate the right to assert patents against Technology Licensee in the event that Technology Licensee asserts patents against Affiliate. Affiliate agrees that in the event that it asserts patents against a Technology Licensee, Affiliate will not request or demand an injunction with respect to patents unless Technology Licensee has requested or demanded an injunction as part of its assertion (or in subsequent related assertions). Affiliate further agrees that in the event that it asserts patents against a Technology Licensee, that any license terms for the patents will not exceed reasonable terms and conditions that are demonstrably free of any unfair discrimination, provided that Technology Licensee agrees to the same for any of the patents in its assertion.
6. Confidentiality. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but in no event less than reasonable care; and (b) not disclose the Confidential Information, except to affiliates, employees, agents and professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Section. Notwithstanding the foregoing, each party may disclose the other party's Confidential Information when required by law, but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure. Note the formulas and methods regarding GameChanger’s Products have been patented and any Confidential Information included in such filings shall not be non-confidential simply by inclusion therein. The parties agree that, in the event of any breach of this Section 6 (Confidentiality) by the Receiving Party, in addition to any other right that the Disclosing Party may have under this Agreement or otherwise in law or in equity, the Disclosing Party will have the right to seek injunctive relief against continuing or further breach by the Receiving Party, without the necessity of proof of actual damages.
7. Publicity. Affiliate will not issue any press release, public announcement, or public statement regarding the existence or content of this Agreement or issue any materials containing GameChanger’s name, trade names, trademarks, service marks, logos, domain names, or other distinctive brand features of GameChanger without GameChanger’s prior written approval.
8. Agreement Term; Termination.
8.1. Initial Term; Auto-Renewal. This Agreement will commence on the Effective Date and will continue for an initial term of twelve (12) months (the “Initial Term”). Upon expiration of the Initial Term, and on each anniversary of such date, this Agreement will auto-renew for a renewal term of twelve (12) months (each a “Renewal Term”) unless either party notifies the other in writing of its intent to not renew the Agreement at least thirty (30) days prior to the end of the then-current Term.
8.2. Termination for Breach. Notwithstanding anything to the contrary elsewhere in the Agreement, either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within fifteen (15) days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; (iii) the other party is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches.
8.3. Termination for Convenience. Notwithstanding anything to the contrary elsewhere in the Agreement, either party may terminate this Agreement for convenience upon thirty (30) days prior written notice to the other party.
8.4. Effect of Termination. Upon any termination or expiration of this Agreement: (i) all rights and licenses granted by GameChanger to Affiliate will immediately cease; (ii) Affiliate will promptly return to the GameChanger, or destroy and certify the destruction of, all of GameChanger’s Confidential Information; (iii) Affiliate shall no longer market or promote the Products and will remove all references to GameChanger and/or the Products from its website, if any; and (iv) Affiliate will, if GameChanger so requests, inform Customers that its relationship with GameChanger has terminated. Termination or expiration of this Agreement, in part or in whole, will not limit either party from pursuing other remedies available to it. In the event of non-renewal or termination of this Agreement, the Commission for Customers accepted by GameChanger prior to the effective date of termination or expiration will be paid as set forth herein with respect to any Net Fees received by GameChanger for such Customers during the Term.No Net Fees, Commissions or any other amounts will be earned after termination or expiration of this Agreement. In the event that this Agreement is terminated for cause by GameChanger, all Net Fees due and owing to Affiliate shall be forfeited, void and non-payable.
8.5. Acknowledgement. Affiliate hereby waives any right, either express or implied by applicable law or otherwise, to renewal of this Agreement or to any damages or compensation for any expiration or termination of this Agreement as provided herein.
9. Representations and Warranties. Affiliate represents and warrants that:
9.1. Affiliate will comply with the terms and conditions of this Agreement, all applicable laws and regulations (including, without limitation, Export Laws), and any policies related to the Products, as such policies may be modified by GameChanger from time to time, in its marketing and promotion of the Products.
9.2. Affiliate will not make any unauthorized, false, misleading, or illegal statements in connection with this Agreement or regarding the Products and will not make any representation or warranty that is inconsistent with this Agreement or GameChanger’s written materials regarding the Products as provided by GameChanger to Affiliate or otherwise made publicly available by GameChanger. Affiliate will indemnify, defend, and hold harmless GameChanger from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of or related to any representations or warranties made by Affiliate regarding the Products that are inconsistent with this Agreement or the written materials regarding the Products provided by GameChanger.
9.3. Affiliate has obtained and will maintain all licenses, permits and approvals and will be responsible for satisfying all formalities as may be required to: (a) enter into this Agreement; (b) perform its obligations in accordance with this Agreement; and (c) comply with applicable laws, rules and regulations.
9.4. The execution and delivery of this Agreement, and the performance by Affiliate of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which Affiliate or any of its affiliates are a party, or violate any rights of any third parties arising from those agreements, including without limitation any rights related to exclusivity.
9.5. Affiliate and its directors, officers, employees and agents have not, and will not offer, pay, promise or authorize the payment, directly or indirectly through any other person or entity, of any monies or anything of value for the purpose of inducing or rewarding any favorable action or influencing any act or decision in connection with GameChanger's business to a candidate for public office, or to any of the following for the purpose of inducing or rewarding any favorable action or influencing any act or decision of such person or entity in connection with GameChanger's business: (a) any governmental official or employee of a government; (b) any official or employee of any government-controlled entity, public international organization or any political party; or (c) any candidate for political office.
10. Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, GAMECHANGER, ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE SERVICES, AND EXPRESSLY DISCLAIM THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. AFFILIATE HEREBY WAIVES ANY RIGHTS THAT IT MIGHT OTHERWISE HAVE IN CONNECTION WITH THIS SECTION. GAMECHANGER WILL NOT BE OBLIGATED UNDER THIS AGREEMENT TO TAKE ANY ACTION OR REFRAIN FROM TAKING ANY ACTION THAT IT BELIEVES, IN GOOD FAITH, WOULD CAUSE IT TO BE IN VIOLATION OF ANY LAWS OF THE TERRITORY OR ANY OTHER APPLICABLE JURISDICTION, INCLUDING, WITHOUT LIMITATION, THE UNITED STATES.
11. Limitation of Liability. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED HERETO FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY GAMECHANGER TO AFFILIATE HEREUNDER IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. THESE LIMITATIONS OF LIABILITY IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW BUT DO NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS, VIOLATIONS OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR BREACHES OF CONFIDENTIALITY OBLIGATIONS.
12.1. Non-Exclusivity. GameChanger expressly reserves the right (on a worldwide basis) to promote, advertise, market, sell, license and distribute the Products either directly itself, and directly or indirectly through other partners, dealers, distributors, or other third parties, and reserves the right (on a worldwide basis) to promote, advertise, market, sell, license, and distribute the Products to any customer of Affiliate, subject to the confidentiality provisions of this Agreement. Nothing in this Agreement shall be deemed to preclude GameChanger from contacting Customers directly. Notwithstanding the foregoing, Affiliate agrees that it shall not compete with GameChanger by the offering of any transdermal patches offering substantially similar functionality nor shall Affiliate try to determine, reverse engineer, or copy the Products including, but not limited to formulae.
12.2. Non-Disparagement. Each party agrees and covenants that it will not at any time make, publish, or communicate to any person or entity or in any public forum, including, without limitation, on any digital or online review sites or forums, any defamatory, discrediting or disparaging remarks, comments or statements concerning the other party or its businesses, or any of its employees or officers, now or in the future. For purposes of this paragraph, a disparaging or discrediting statement or representation is any communication which, if publicized to another, would cause or tend to cause the recipient of the communication to question the business condition, integrity, competence, good character, or product quality of the person or entity to whom the communication relates, but will not include any disclosure required to be made to any governmental or quasi-governmental agency, or any disclosure made in the course of any pending or threatened litigation, mediation, arbitration or agency action.
12.3. Notices. All notices must be in writing and addressed to the attention of the other party at the address first set forth above or on the signature page hereto, or at such other address as provided by a party from time to time by like notice. Notice will be deemed given: (a) when delivered by personal courier, (b) one (1) business day after sending via a nationally-recognized overnight courier, (c) three (3) business days after sending via certified mail, or (d) when verified by automated receipt or electronic logs if sent by facsimile or email.
12.4. Beneficiaries; No Agency; Assignment. There are no third-party beneficiaries to this Agreement. In connection with its performance under this Agreement, Affiliate shall not represent itself as an agent of GameChanger for any purpose. Affiliate is an independent contractor. Neither GameChanger nor Affiliate is a legal representative, agent, partner, employee, joint venturer, or franchisee of the other, nor does the Agreement create a joint venture between GameChanger and Affiliate. Neither GameChanger nor Affiliate will assume or create any obligations on behalf of the other or make any representations or warranties about the other, other than those authorized in writing by an authorized signatory of the other party.
12.5. Affiliate may not assign or transfer any part of this Agreement, including without limitation, by change of control or an assignment by operation of law, without GameChanger’s prior written consent. Any attempt by Affiliate to transfer or assign this Agreement in violation of this Section is void.
12.6. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, epidemic or pandemic, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
12.7. No Waiver; Severability. Failure to enforce any provision of this Agreement will not constitute a waiver. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose.
12.8. Governing Law; Jurisdiction. This Agreement is governed by the laws of the State of Texas, excluding its choice of law rules. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN DALLAS COUNTY, TEXAS AND THE EXCLUSIVE VENUE OF THE LOCAL, STATE, AND FEDERAL COURTS THEREIN.
12.9. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
12.10. Equitable Relief; Survival. Nothing in this Agreement will limit either party's ability to seek equitable relief. Upon expiration or termination of this Agreement, the rights and obligations of the parties will cease, except for the rights and obligations in all provisions of this Agreement which by their nature contemplate performance or applicability after the expiration or termination hereof, which will survive termination or expiration of this Agreement.
12.11. Entire Agreement; Modification by GameChanger; Counterparts. This Agreement constitutes the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. GameChanger may, from time to time and at any time, modify this Agreement in its sole discretion and without Affiliate’s consent. Affiliate agrees that GameChanger has the right to modify this Agreement or revise anything contained herein. Affiliate further agrees that all modifications to this Agreement are in full force and effect immediately upon posting on the Affiliate Site and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement. If GameChanger updates or replaces the terms of this Agreement, GameChanger will let you know via electronic means, which may include an email. If you don't agree to the update or replacement, you can choose to terminate this Agreement as described above. The parties may execute this Agreement electronically (including, without limitation, via Affiliate’s acceptance of this Agreement through the Affiliate Site, or electronic signatures and the parties may exchange executed signature pages in counterparts, including by facsimile, PDF or other electronic method, which taken together will constitute one instrument.
12.12. Affiliate agrees that Affiliate’s website, service or correspondence does not contain any materials that in GameChanger’s sole discretion are considered to:
(i) Promote adult content, including nudity, sexual terms and/or images of people in positions or activities that are excessively suggestive or sexual, or provocative images in violation of legislation in your local jurisdiction;
(ii) Includes violent, obscene, defamatory, libelous, slanderous and/or unlawful content;
(iii) Promote hate speech, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, marital status, sexual orientation, gender identity, or language of such individual or group;
(iv) Incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
(v) Includes “GameChanger” or variations or misspellings thereof in its domain name and as keywords in PPC campaigns;
(vi) Promote politically religious agendas and/or any known associations with hate, criminal and/or terrorist activities;
(vii) Promote gambling, including without limitation, any online casino, sports books, bingo, or poker;
(viii) Contain software downloads that potentially enable diversions of commission from other affiliates in our program;
(ix) Make representations through code, designs, imagery, video, text or otherwise that makes your website resemble the GameChanger sites in a manner which leads customers to believe the Affiliate is GameChanger, its business or a legal representative of GameChanger in any way.
(x) Offer rebates, coupons, or other form of promised kickbacks from your Commission as an incentive. Adding bonuses or bundling other products with GameChanger, however, is acceptable, if prior permission is received from the Affiliate Program Manager.
(xi) Generate pop-ups, pop-unders, iframes, frames, or any other seen or unseen actions that set affiliate cookies unless the user has expressed a clear and explicit interest in activating a specific savings by clicking on a clearly marked link, button or image for that particular coupon or deal. Affiliate Program links must direct users to the GameChanger sites and may not use any interstitials or other methods to collect information from potential customers or Customers. For the avoidance of doubt, GameChanger owns all potential customer and Customer information received therefrom and Affiliate obtains no rights nor will it collect any such information without GameChanger’s express written consent.