By participating in the Blackout Affiliate Network internet marketing program ("Affiliate Program"), you ("Affiliate", "You", "Your") agree with the Program terms and conditions set forth below, which were established by JACKSAM CORPORATION dba Blackout X ("Company", "We", "Our"), the owner of this program. The terms and conditions contained herein (this "Agreement") shall apply between Company and Affiliate, so long as Affiliate remains in the Affiliate Program, subject to periodic revision by the Company. No different or additional terms and conditions proposed by Affiliate shall have any force or effect unless in writing and signed by both Affiliate and the Company.
SECTION 1 – DEFINITIONS
1.1 "Affiliate" means an individual or business that has registered with, and has been approved by, the Company and is participating in the Affiliate Program by generating its own traffic for compensation by the Company.
1.2 "Link" means a hyperlink placed on an Affiliate's site or distributed otherwise that, when clicked on, sends a visitor through to the Company's Web site. Links take many forms including text, a product image, buttons, banners, videos, or any other format acceptable to the Company.
1.3 "Net Sales" means gross sale revenue less losses or other reductions due to the following: returns, markdowns, temporary price reductions, rebates, defective product, refunds, discounts, any shipping and handling charges, local and foreign taxes, and any other miscellaneous fees, and/or any other losses or reductions.
1.4 "Qualifying Purchase" has the meaning set forth in Section 5 - Affiliate Payment.
1.5 "Sales Commission" means a percentage of the Net Sales that the Company agrees to pay for Visitors referred to the Company's Web site that result in a sale of the Company's product. Such a sale could occur at the time of the visit or at any later time after the visit. Sales Commissions are tracked after the visit by (1) Tracking Cookie (no expiration), (2) IP Address tracking log (no expiration), or (3) Coupon Code use at checkout.
1.6 "Visitor" means any person or user that clicks on a Link to the Company's Web site placed on an Affiliate's Web site.
1.7 "VOID" means a reversal of a Sales Commission previously earned for a sale that is later rescinded or corrected by the Company. The Company may VOID transactions that are fraudulent, or are for returned merchandise, duplicate transactions, or violations of, or non-compliance with, the terms set forth in this Agreement.
1.8 "Your Account" means Your specific account within the Affiliate Program, where Commissions are credited.
1.9 "Solicitation" means a direct or indirect communication to a specific person or specific persons done in a manner that is intended to and calculated to incite the person or persons to purchase tangible personal property from the Company.
SECTION 2 - AFFILIATE WARRANTIES/REGISTRATION
2.1 You warrant that you are of the legal age in Your state or other jurisdiction, at least eighteen (18) years of age, and are able to supply a valid tax ID number, which is a social security number for individuals or a federal employer tax ID number for corporations and other entities. You warrant that any and all representations that you make about your person, corporate entity, and any representations related thereto is true and correct under the penalty of perjury.
2.2 You must identify Your Web site(s) in your application. You warrant that Your Web site(s) is suitable to the standards of the Company. Unsuitable sites include, but are not limited to Websites that:
(a) promote violence or contain violent materials;
(b) promote or contain libelous or defamatory materials;
(c) promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
(d) promote or undertake any illegal activities;
(e) include any trademark of the Company, or a variant or misspelling of a trademark or any other combination of letters and/or numbers that are the same as or confusingly similar to any of Company's trademarks or trade names;
(f) include any trademark of the Company in any username, group name, or other identifier on any social networking website - for example, a username such as "Blackout", "Blackout Cigs", or "Blackout ECigs" registered on a social networking site such as Twitter or Facebook; or
(g) contain any other violation of intellectual property rights of either the Company or a third party; or
(h) use Keywords, Pay Per Click advertising, and domain names involving any of the Company's trademarks, including but not limited to "BLACKOUT Cigs®" and variations thereof.
In addition, as set forth in Section 3 below, You shall not purchase search engine keywords or domain names that use any of the Company's trademarks and/or variations and misspellings thereof.
2.3 You shall notify Company with all relevant details in the event that You create a new Web site or deactivate one that You have previously listed with Company. You shall also ensure that the information in Your application and otherwise associated with Your account, including Your email address and other contact information and identification of Your site, is at all times complete, accurate, and up-to-date. Company may send notifications and/or other communications relating to the Affiliate Program and this Agreement to the email address then-currently associated with Your account. You shall be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
2.4 As part of the registration process, You will select a username and password combination that You use to access the BLACKOUT Profit Affiliate Network back office within the Affiliate Program. You shall provide the Company with accurate, complete, and updated registration information. You may not select the name of another person with the intent to impersonate that person or deceive members or other users as to Your true identity. You understand and acknowledge that the Company may rely on any data, notice, instruction, or request furnished to the Company by You which is believed by the Company to be genuine and to have been sent or presented by a person believed by the Company to be authorized to act on Your behalf. You shall notify the Company by e-mail at [email protected]
cigs.com of any known or suspected unauthorized uses of Your account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Your username and password. You shall be responsible for maintaining the confidentiality of Your username and password and You are responsible for all usage and activity on Your account, including use of the account by a third party authorized by You to use Your account. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination by the Company and referral to the appropriate law enforcement agencies.
2.5 You warrant and agree that You understand that this Affiliate Program Agreement is an at-will agreement, meaning the Company can terminate this Agreement for any or no reason by serving You with a written notice of termination in accordance with Section 11.3 of this Agreement. Such termination at-will by the Company shall not entitle You to any type of payment or compensation whatsoever with the exception of Sales Commissions earned before the date of termination.
2.6 You represent to the Company that all content You use on your site(s) is solely owned by You or provided by You with the express authority of the company You represent, does not infringe upon any other individual's or organization's rights (including, without limitation, intellectual property rights) and is not defamatory, libelous, unlawful or otherwise objectionable.
2.7 In addition, you hereby consent to the Company's monitoring, recording, using, and disclosing information about Your site and visitors to Your site that We obtain in connection with Your links to our site and from monitoring, crawling, and otherwise investigating Your site to verify compliance with this Agreement.
SECTION 3 - UNACCEPTABLE ADVERTISING ACTIVITIES PROHIBITED
(a) You shall not purchase or register keywords, Pay Per Click advertising, AdWords, search terms, domain names, or other identifying terms that include any of the words or terms "BLACKOUT CIGS", "Blackout ECigs", "Blackout Experience", or variations or misspellings thereof or any other combination of letters and/or numbers that are the same as or confusingly similar to any of Company's trademarks or trade names for use in any search engine, portal, sponsored advertising service or other search or referral service.
Specifically, but without limiting the rule, this prohibits You from bidding on and/or purchasing and/or registering any of the Company's trademarks or similar terms or any keyword string that includes these terms with any governmental agency or with any commercial business. The Company's trademarks include "BLACKOUT CIGS®", ". Examples of prohibited keyword strings include "BLACKOUT Cigs gadgets" or "BLACKOUT products".
(b) If the Company determines that You have registered, purchased or attempted to register or purchase keywords or domain names or similar terms in violation of this Agreement, the Company may in its sole discretion pursue any or all of the following actions in addition to any other legal remedy:
(i) Withhold all compensation otherwise payable to You beginning with the date on which You violated the Agreement;
(ii) Remove You from the Affiliate Program permanently; and/or
(iii) contact the search engine in which Your ad appears for removal of the ad immediately and permanently.
(c) In addition, You may not under any circumstances, intentionally or unintentionally:
(i) Cause the overwriting of affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a webpage or email;
(ii) Intercept searches to redirect traffic through an installed software, thereby causing pop-ups, commission tracking cookies to be put in place, or other commission tracking cookies to be overwritten, where a user would under normal circumstances have arrived at the same destination through the results given by the search;
(iii) Set commission tracking cookies through loading of merchant site in iFrames, hidden links, or automatic pop-ups that open the Company's website(s);
(iv) Target text on web sites, other than those web sites 100% owned by the Affiliate, for the purpose of contextual marketing; or
(v) Remove, replace or block the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the Affiliate.
(d) Links may not be placed in newsgroups, unsolicited e-mail, ICQ, banner networks, counters, chatrooms or guestbooks. Any Link placed must be placed in such a way that it is not misleading to any Visitor and for the purpose of delivering valid sales to the Company.
3.2 Smoking Cessation and Health Claims.
(a) YOU MAY NOT ADVERTISE THE COMPANY OR ITS PRODUCTS BY WAY OF ANY THERAPEUTIC CLAIMS, ANY CLAIMS THAT THE COMPANY'S PRODUCT IS A SMOKING CESSATION DEVICE OR ANY UNSUBSTANTIATED HEALTH CLAIMS. YOU SHALL COMPLY WITH ANY GUIDELINES NOTIFIED TO YOU FROM TIME TO TIME CONCERNING THE COMPANY'S STANDARDS (INCLUDING THE AVOIDANCE OF UNAUTHORIZED CLAIMS).
(b) Affiliate shall not market BLACKOUT Cigs® products or any other electronic cigarettes as a smoking cessation device in any way. Our products have not been approved by the FDA to aid in the cessation of smoking. You may not advertise Our products as providing any health benefits. You may not use any form or variations of the words "SAFE" or "HEALTH" in your advertising. You may not make any claims as to the chemical composition of any of Our products other than those statements expressly contained on the BLACKOUTcigs.com/blackoutx.com website. Notwithstanding anything to the contrary in this Agreement, any violation of this section shall result in immediate termination of Your account without notice and any unpaid earnings withheld.
(c) The following terms (and any variations thereof) cannot be used when referring to Our products:
• Healthier Alternative to Cigarettes
• Better for your Lungs / Heart
• No Carcinogens / Does not Cause Cancer
• No Toxins/No Chemicals
• Helps you Quit Smoking
• Contains No Tobacco
• Rid Yourself of Tobacco
• No Second Hand Smoke
• Harmless Vapor/Clean Vapor
• Smoke Anywhere
• No Harmful Gasses
• BLACKOUT Cigs® is a nicotine delivery system/device
• Cleaner Way to Smoke
• Contains Fewer Chemicals Known to be Harmful
• No Pollution
The following terms may be used when referring to Our products:
• No More Bad/Smoker's Breath
• No More Offensive Smoke
• No Ash
• No Fire / No Flame
• Cheaper than Cigarettes
• More Cost Effective/Saves Money
• No Butts
• Less Waste
• Smoking Alternative\Alternative to Smoking
• Non –intrusive
• Smoke More Freely
• Smoke "almost" Anywhere
• No Social Stigmas
• Provides an Authentic Smoking Experience
(d) The provisions and prohibitions of this Section 3.2 apply to any and all means of oral and written communications whatsoever and however published or transmitted, including but not limited to any and all online channels or methods, such as Twitter, Facebook, chatrooms, IMs, webmail, emails.
3.3 Spam, Telemarketing and FTC Requirements.
(a) Under no circumstances shall You send commercial electronic mail messages as defined in the new Federal spam law, the CAN-SPAM Act of 2003, 15 U.S.C. § 7701. et seq (the "Act"), (see also, Telephone Consumer Protection Act of 1991 and the Federal Trade Commission's Telemarketing Sales Rule) with respect to the Company's Affiliate Program. For clarification, this does not prohibit You from sending transactional or relationship messages as defined in the Act. The Company shall have the right to collect, withhold, or cancel any and all compensation related to the content You send via commercial electronic mail messages.
(b) In addition to SPAM, the Company expressly prohibits the scraping of email addresses from the Company's Web site(s) and expressly opts out of receiving commercial electronic mail messages to the Company's domain email addresses that were obtained in violation of the foregoing or by use of automatic address-generation software.
3.4 ANY VIOLATION OF THIS SECTION MAY RESULT IN POTENTIAL LOSS OF COMMISSIONS.
3.5 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN THE EVENT THAT YOU ARE IN BREACH OF ANY PROVISION OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO ANY PROVISION OF THIS SECTION) THE COMPANY MAY (1) TERMINATE THIS AGREEMENT BY GIVING YOU WRITTEN NOTICE; AND/OR (2) DISABLE YOUR ACCOUNT WITH IMMEDIATE EFFECT WITHOUT NOTICE.
SECTION 4 - RESPONSIBILITY FOR YOUR SITE
4.1 You will be solely responsible for Your site, including its development, operation, and maintenance and all materials that appear on or within it.
4.3 The Company shall have no liability for the aforementioned matters or for any of Your end users' claims relating to these matters, and You hereby agree to defend, indemnify, and hold Us, Our affiliates and licensors, and Our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) relating to: (a) Your site or any materials that appear on Your site, including the combination of Your site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of Your site or any materials that appear on or within Your site, and all other matters described in this section; (c) Your use of any Content, whether or not such use is authorized by or violates this Agreement or violates applicable law; (d) Your violation of any term or condition of this Agreement; or (e) Your or Your employees' negligence or willful misconduct.
4.4 You shall fully comply with the federal Telephone Consumer Protection Act of 1991 and the Federal Trade Commission's Telemarketing Sales Rule.
4.5 You shall give notice to the Company of any contact by, inquiry from, inspection or investigation by any governmental entity in which the Company or the Company's products are mentioned, directly or indirectly. Said notice shall be given within seventy-two (72) hours of Your becoming aware of such information.
4.6 You acknowledge that the Company places great emphasis upon ethical marketing. Consequently You shall ensure that Your marketing in respect of the Affiliate Program is honest and transparent. In particular You shall comply with all relevant rules, regulations and guidelines of the Federal Trade Commission.
SECTION 5 - AFFILIATE PAYMENT
5.1 You will receive a Sales Commission for sending the Company authorized sales via Your Links, tracking cookies, and/or coupon Code Usage. You understand that the Sales Commission percentage may be changed at any time by the Company under the terms and conditions of this Agreement. You shall be responsible for retrieving the Sales Commission information from Our Web site, including the current Sales Commission payout structure.
5.2 In the event Your customer, who came to the Company's Web site via Your Web site, becomes a participant in the Affiliate Program or otherwise a distributor of products for the Company, You will not be entitled to any further commission whatsoever for sales to that customer.
5.3 All sales statistics are collected and calculated by the Company, and are the only statistics used for determining Sales Commission.
As an affiliate, You can only have one (1) account, unless you have received prior written authorization expressly from the Company. You can list multiple domains in said one account, but only one account is allowed. Becoming a customer of Your own affiliate account, or signing up as a tier 2 affiliate of Your own affiliate account is strictly prohibited and Sales Commission generated in violation of this paragraph will not be paid.
In the event of termination of this Agreement, Sales Commission shall only be payable in respect of Qualifying Purchases completed prior to such termination.
Sales Commission payments on Net Sales are made by the last calendar day of each calendar month, with respect to Qualifying Purchases completed the previous calendar month, if Your account balance for any JACKSAM CORPORATION brand/website in BLACKOUT Profit reaches $100 USD or more (not including any bonuses, and not including the $25.00 Sign-Up Bonus offered by the Company). In the event your account balance for any JACKSAM CORPORATION brand/website in BLACKOUT Profit is under $100 USD, it will be credited toward the next monthly billing cycle. Commissions credited to Your Account do not accrue interest.
5.4 In the event of a VOID by the Company, we may recover from You the corresponding Sales Commission previously credited to Your account. The VOID Sales Commission will be immediately deducted from Your account balance. In the event that Your account balance is less than the VOID Sales Commission, the VOID Sales Commission will be deducted against Your future earnings.
5.5 Subject to the exclusions set forth below, a "Qualifying Purchase" occurs when a customer clicks through a Link on Your site to the Company's website and/or a customer uses a Coupon Code at checkout which has been directly assigned to the Affiliate and linked to your Affiliate account for tracking purposes, and that customer both: (i) adds a product to his or her shopping cart and places the order for that product, and (ii) the product is paid for by the customer, and shipped, and the product is not returned.
5.6 Qualifying Purchases exclude, and You will not be paid Sales Commissions on any of, the following, without limitation:
(a) any product purchase that is not correctly tracked or reported because the links from Your site to the Company's Web sites are not properly formatted;
(b) any product purchased for resale or commercial use of any kind;
(c) any product purchased after termination of this Agreement;
(d) any product purchased through the use of points earned by the customer under the Company's loyalty scheme (i.e., "Smoke For Free" Program); or
(e) any product purchased by a customer who is referred to the Company's site through a Prohibited Paid Search Placement (as defined below).
5.7 "Prohibited Paid Search Placement" means an advertisement that You purchased through bidding on keywords, search terms, or other identifiers (including Proprietary Terms, as defined below) or other participation in keyword auctions. "Proprietary Term" means keywords, search terms, or other identifiers that include the words "BLACKOUT Cigs", "BLACKOUT eCigs", or any other Our trademarks, or variations or misspellings of any of those words or trademarks.
5.8 After the approval of the Sales Commission (triggered by a Qualifying Purchase, as set forth in Paragraph 5.3), we will close out monthly commissions and the end of the calendar month in which the Sales Commission was approved, and we will pay You by the last day of each calendar month for Sales Commissions earned on Net Sales the previous calendar month using the payment method You choose from the following available options:
(a) Payment by PayPal
5.9 We may be obligated by law to obtain tax information from You if You are a U.S. citizen, U.S. resident, or U.S. corporation, or if your business is otherwise taxable in the U.S. If we request tax information from You and You do not provide it to Us, We may (in addition to any other rights or remedies available to us) withhold Your Sales Commission until you provide this information or otherwise satisfy Us that You are not a person from whom we are required to obtain tax information.
5.10 We may also request copy of Your valid government-issued photo identification to confirm your identity. If we request a government-issued Photo ID from You and You do not provide it to Us, We may (in addition to any other rights or remedies available to us) withhold Your Sales Commission until you provide this information or otherwise satisfy Us that You are not a person from whom we are required to obtain tax information.
SECTION 6 - CUSTOMERS
Customers who buy products through this Program are Our customers with respect to all activities they undertake in connection with the Company's Web site. Accordingly, as between You and the Company, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Company's Web site will apply to those customers, and We may change them at any time.
SECTION 7 - YOUR RELATIONSHIP WITH THE COMPANY
7.1 This Agreement does not create any relationship of principal and agent, partnership, joint venture, employer and employee, fiduciary, or similar relationship between the parties. You are not authorized to make any promise, warranty, or representation on behalf of the Company or obligate or attempt to obligate The Company in any manner whatsoever. You shall not represent to any person that You are an agent of the Company, nor fail to correct any misunderstanding as to such status.
7.2 Identifying Yourself as an Affiliate. You will not misrepresent or embellish the relationship between the Company and You (including by expressing or implying that We support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between the Company and You or any other person or entity except as expressly permitted by this Agreement. You must, however, clearly state the following statement, or one similar in form and substance, on your site: "This is an affiliate ad supported Web site. That means if you buy something from a link or ad on this Web site, or based on my recommendation, either expressed or implied, I/we/the company may be paid an affiliate commission by the company from which you have made the purchase."
7.3 Publicity. You shall not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement: (i) relating to this Agreement; (ii) using the Company's name or referencing the Company's products; or (iii) suggesting or implying any endorsement by the Company of You without the prior written approval of the Company, which the Company may withhold in its sole and unfettered discretion.
SECTION 8 - OWNERSHIP AND LICENSES
8.1 You, the Affiliate, are granted a non-exclusive, limited, revocable right to use the Company provided trademarks and banners in accordance with the terms and conditions of this Agreement. All images, technology and content provided for Your use is and shall remain the sole property of the Company, and no part thereof shall be deemed assigned or licensed to You except as explicitly provided for in this Agreement. All intellectual property rights, including trademarks, copyrights, patent rights, or applications, trade names, and service marks related to the foregoing shall remain the Company's sole property, including rights in and to any derivatives thereof. You may not modify the trademarks, banners, or the content or any of the images provided to You in any way. You must remove any Company trademarks and banners from Your site that the Company deems obsolete for any reason, at Our request. You must remove any such trademarks, banners and any other material referencing the Company upon Your or Our termination of this Agreement for any reason.
8.2 The Company may immediately terminate Your license to use the marks if the Company reasonably believes that such use dilutes, tarnishes, or blurs the value of its marks. You shall not make or create any environmental associations with the Company's trademarks. You acknowledge that Your use of the marks will not create in You, nor will You represent that You have, any right, title, or interest in or to the marks other than the license granted by the Company set forth above. You will not challenge the validity of or attempt to register any of the marks or Your interest therein as a licensee, nor will You adopt any derivative or confusingly similar names, brands, or marks or create any combination marks with the marks. You acknowledge the Company's ownership and exclusive right to use the marks and agree that all goodwill arising as a result of the use of the marks shall inure to the benefit of the Company.
SECTION 9 – DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY AND DAMAGES
9.1 The Company's Site may contain interviews, discussions, press releases, and other information (collectively the "Information") about the Company, Our business and Our services, including links to third-party Web sites that contain such Information, which are being provided as a convenience to visitors of the Web site. While all Information prepared by the Company was believed to be accurate as of the date prepared, We disclaim any duty or obligation to update any Information. Statements concerning companies other than the Company that are contained in any such Information should not be relied upon as being provided or endorsed by Us. The opinions expressed in any Information, including by employees and agents of the Company, are solely those of the author(s) and do not necessarily reflect those of the Company.
9.2 THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE AFFILIATE PROGRAM OR ANY SERVICES OR PRODUCTS PROVIDED HEREUNDER, WHETHER EXPRESSED OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OR ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR CUSTOM OR USAGE OF TRADE.
9.3 The Company shall not be liable for any special, incidental, or consequential damages arising out of or related to this Agreement, or the Company's performance or failure to perform any of its obligations hereunder.
9.4 In no event shall the Company be liable, in connection with this Agreement, for damages in excess of the aggregate amount of Sales Commissions earned by the Affiliate for the previous three (3) months prior to the incident giving rise to the relevant claim. This limitation applies to all causes of actions in the aggregate that arise out of or in connection with this Agreement including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and any and all other theories of tort or contractual liability.
SECTION 10 - CONFIDENTIALITY & NON-DISCLOSURE OBLIGATIONS
10.1 In connection with this Agreement, the Company may disclose to You and/or You may otherwise receive or have access to sensitive, confidential, and/or proprietary information of the Company and/or its owners, parent companies, subsidiaries and/or affiliates (all of which are included in the definition of "Company" for the purposes of this Section), including, but not limited to (a) the identities of and/or contact information for other Affiliates, brokers, customers, distributors or vendors of the Company (collectively, the "Associates"); (b) physical and data security information; (c) technical data; (d) The Company's marketplace statistics and sales data; and/or (e) know-how or business information relating to business processes, methods, or marketing strategies (collectively, "Confidential Information"). Except as required to perform Your obligations under and in accordance with the terms of this Agreement, You shall not (i) disclose the Confidential Information to any person or entity, or (ii) use the Confidential Information (whether for Your own benefit or the benefit of any other person or entity), without the express prior written consent of the Company. You shall not use any Confidential Information for the purpose of soliciting, or to permit any others to solicit, the Associates to subscribe to any other services or promote the sale of any product which competes, either directly or indirectly, with the Company.
10.2 You acknowledge and agree that any breach or threatened breach of Section 10.1 of this Agreement may cause immediate and irreparable harm to the Company which would not be adequately and fully compensated by money damages and that the Company may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
10.3 The Company does not invite and cannot accept any ideas or information You consider to be confidential and/or proprietary. Except with respect to Your personally identifiable information, any suggestions, submissions, comments, ideas, concepts, know-how, techniques material or feedback conveyed, offered, or transmitted by You to the Company, or otherwise in connection with the Company's products (collectively, the "Submissions"), shall be deemed to be non-confidential and non-proprietary and the Company shall have no obligation of any kind with respect to such Submissions, unless otherwise expressly agreed to in a writing executed and delivered by You and a duly authorized officer of the Company. The Company also reserves the right to disclose Your personal information where it is required to do so as a result of unlawful activity on Your part (for example an infringement of a third party's intellectual property rights). You hereby grant to the Company and its licensees a worldwide, perpetual, non-exclusive, fully-paid, royalty-free, transferable right and license, with right to sublicense, to reproduce, publicly display, distribute, and perform, transmit, edit, modify, create derivatives works of, publish, sell, commercially exploit, use, and disclose the Submissions for any purpose and in all forms and all media whether now known or to become known in the future. The Company shall have no obligation to compensate You for any such Submissions in any manner. Your Submissions shall not contain any unlawful, threatening, abusive, false, libelous, defamatory, obscene, pornographic, profane, or otherwise infringing or objectionable content or material of any kind. You are and shall remain solely responsible for the content of any Submissions You make and acknowledge that the Company is under no obligation to respond to or use any Submission You may provide.
SECTION 11 – COMPLIANCE
11.1 The Company reserves the right to monitor and ensure that You are in compliance with the Terms and Conditions set forth herein. Furthermore, the Company reserves the right, at its sole discretion, to withhold Sales Commissions, suspend and/or terminate Your Account(s) if You fail to be in compliance with the Terms and Conditions. Notwithstanding the foregoing, You agree to cooperate to the fullest extent possible and to comply with the policies and procedures instituted by the Company to ensure Affiliate compliance with all Terms and Conditions set forth herein.
11.2 You agree not to contract for or engage in solicitation activity or advertising services regarding BLACKOUT Cigs Products as defined by the appropriate statute of the State in which You reside. You agree to provide certification that You do not engage in such activities to BLACKOUT Cigs at the end of each calendar year, no later than twenty-one (21) days after December 31. Furthermore, the foregoing language shall be applied retroactively to the date on which You operated as an Affiliate whether you were registered in the Affiliate Program or not.
SECTION 12 - MISCELLANEOUS
12.1 Waiver. The waiver or failure by the Company to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of the Company set-forth in this Agreement are cumulative and are in addition to any rights or remedies the Company may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
12.2 Assignment. The Company may freely assign or transfer any or all of the rights and obligations described under this Agreement without Your consent and without notice to You. You may not assign this Agreement or any of Your rights and duties hereunder without the prior written consent of the Company. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
12.3 Notices. Except as otherwise expressly provided herein, any notice, request, approval, authorization, consent, demand, or other communication required or permitted to be given or made pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of: (i) actual receipt, irrespective of the method of delivery; (ii) the time of transmission if sent by facsimile, as evidenced by facsimile transmission report, (iii) the time of transmission if sent via email, as date stamped by the sending Party's systems; (iii) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (iv) on the sixth (6th) day after mailing by registered or certified United States mail, postage prepaid and addressed to the last address provided by a party.
12.4 Governing Language. This Agreement is in English and any and all disputes between the parties shall be resolved in English. You understand and acknowledge that any foreign language services provided by the Company are for informational purposes only and it is your obligation to obtain independent legal advice and/or translation services at Your own expense to ensure You understand the terms of this Agreement.
12.5 Governing Law; Venue and Jurisdiction. This Agreement is governed and construed in accordance with the laws of the State of Florida without giving effect to principles of conflict of laws. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING UNDER OR IN RELATION TO THIS AGREEMENT. The exclusive jurisdiction and venue for suits by You against the Company, for any reason, shall be the state and federal courts located in Miami, Florida.
12.6 Entire Agreement; Company's Right to Amend. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter. The Company reserves the right to change, alter, modify and/or amend this Agreement at its discretion at any time. When the Company amends this Agreement, the Company shall make reasonable efforts to provide You with general, not specific, notice of such changes via email, newsletter, or posting a conspicuous announcement on the Affiliate Program page of the Company's Web site of such changes or amendments.