PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN FULL AND VERY CAREFULLY PRIOR TO REGISTERING AS A MARKETER OF PERFORM[CB]. YOUR AGREEMENT TO THESE TERMS CREATES A LEGAL BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU AND PERFORM[CB]. IF YOU REGISTER FOR THE PERFORM[CB] PROGRAM OR PARTICIPATE IN THE PERFORM[CB] PROGRAM YOU ARE AFFIRMATIVELY STATING AND AGREEING THAT YOU ARE IN AGREEMENT WITH THESE TERMS AND CONDITIONS AND FULLY ACCEPT THE COVENANTS, REPRESENTATIONS, WARRANTIES, AND TERMS CONTAINED HEREIN.
The following Terms and Conditions are entered into by and between Clickbooth.com, LLC dba Perform[cb], LLC, owner and operator of Perform[cb] (“Perform[cb]”), Guarantor (if applicable), and you (“Marketer,” “you,” “yours”), and shall govern the placement and delivery of advertising that you implement in the Perform[cb] platform and as may be set forth in any applicable Insertion Order(s) ("IO") and regulated by the Data Protection Addendum (as defined below), together with these Terms and Conditions, form the "Agreement").
Introduction. Perform[cb] provides you, as Marketer, with the ability to post Ads (as defined below) for distribution through the Perform[cb] Network, as defined herein, subject to your compliance with the terms and conditions of the Agreement. By enrolling as a marketer, Marketer, its agents, representatives, employees and any other person acting on its behalf with respect to the use of the Perform[cb] Network, shall be bound by, and agrees to be bound by, the Agreement.
Perform[cb] Network. The Perform[cb] Network is defined as various independent third party partners ("Partners") that may be authorized by Perform[cb] to post Ads on or through websites, newsletters and/or applications that they exclusively control. Partners are paid a commission based on revenue generated from Marketer‘s campaign(s). The Perform[cb] Network can be accessed at www.performcb.com.
Perform[cb] Services/Ads. Upon accessing the Perform[cb] Network or participating, registering, and/or enrolling in the Program, Marketer agrees to accept and pay for, and Perform[cb] agrees to provide, the services identified and set forth in the Agreement ("Services"). Perform[cb]‘s exclusive obligation is to distribute advertising campaigns (“Campaigns”) consisting of advertisements provided by Marketer within the Perform[cb] Network, in accordance with the Agreement. Marketer will, at its sole cost and expense, create and deliver all advertisements to Perform[cb] prior to publication ("Marketer Provided Ad" and/or "Ad(s)"). If such content does not conform to Perform[cb]’s technical specifications or does not arrive timely enough to deliver such Ad on the agreed display dates, then Perform[cb], in its sole discretion, may: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after (i) the non-conforming content is corrected, or (ii) the late-arriving content is received. Perform[cb] does not guarantee that the Ads will be available or displayed, will not be required to publish any Ad and may refuse or stop publication of any Ad at any time for any reason in its sole discretion. Perform[cb]‘s failure to reject or cancel any Ad shall not be construed as an acceptance of the Ad, nor shall it negate other provisions of the Agreement, specifically with respect to liability. Perform[cb]‘s policies, specifications and/or recommendations with respect to Ads should not be construed as legal advice, or as sufficient guidelines to ensure that such Ads comply with applicable law. Perform[cb] does not represent or warrant that the Ads, or such policies, specifications and/or recommendations associated with the Ads, are legally compliant or appropriate. Perform[cb] assumes no obligation and hereby disclaims any liability for Marketer‘s use of the Ads or Marketer‘s reliance on any such policies, specifications and/or recommendations. Marketer should consult with its legal counsel and/or other professional advisors before utilizing any Ads or acting on any policies, specifications and/or recommendations as provided by Perform[cb]. Marketer is solely responsible for the content of the Ads. Perform[cb] shall not be responsible for Marketer‘s website(s) including, but not limited to, content, maintenance of Marketer‘s website(s), order entry, customer service, payment processing, shipping, cancellations or returns.
Distribution of Ads. Positioning of the Ads within the Perform[cb] Network is at the sole discretion of Perform[cb] and its Partners. Perform[cb] does not guarantee that your Ads will be available through any specific part of the Perform[cb] Network, when your Ads will run and/or the placement and positioning of your Ads.
Suppression. Along with the delivery of the content for any Ad to Perform[cb], Marketer shall also deliver to Perform[cb] instructions for any suppression files to be accessed and downloaded in connection with the Ad. Marketer shall be solely responsible for complying with all applicable laws and regulations (including the CAN Spam Act, as amended) regarding suppression files for Marketer’s Ads, including maintaining and timely updating its suppression files and providing Perform[cb] with access to the suppression files and updates for use in connection with the Ad.
Exclusivity. If the "Exclusive" option has been selected on an IO, then Perform[cb] shall be the exclusive online distribution source for that offer, and Marketer shall not duplicate the same or similar offer for any other affiliate, publisher, or network without Perform[cb]’s prior written consent. In the event of a breach of this provision by Marketer, Perform[cb] shall be entitled to, in addition to all other rights and remedies that Perform[cb] may have at law or in equity, an injunction (without the requirement to post a bond) enjoining and restraining Marketer and/or all other persons involved therewith from continuing such breach for each applicable "Exclusive" offer. Marketer acknowledges that any breach by Marketer of this provision will result in irreparable injury to Perform[cb] for which money damages may not adequately compensate Perform[cb].
Representations and Warranties of Marketer. Marketer represents and warrants that: (1) it is the owner of or is licensed to use the entire contents and subject matter contained in the text, links, creative, website, mobile application and other material provided by Marketer to Perform[cb] (collectively, the “Ad”); (2) the Ad is free of any "worm," "virus" or other device that could impair or injure any person or entity; (3) the Ad and any products or services offered therein do not violate any applicable laws or regulations, including, without limitation, those laws and regulations governing false or deceptive advertising, sweepstakes, gambling, comparative advertising, trade disparagement, or obscenity (including child pornography); (4) the Ad does not contain any misrepresentation or content that is defamatory or violates any rights of privacy or publicity; (5) the Ad does not and will not infringe any copyright, trademark, patent, trade secret or other proprietary right; and (6) if the Ad is for display and distribution in any foreign country, Marketer represents and warrants that the Ad and any products or services offered in the Ad will comply with all applicable laws and regulations of such foreign country.
Marketer further represents that it will access the Perform[cb] network solely and exclusively to manage its account and shall not: (1) without Perform[cb]’s prior written consent, share, transfer, or assign its Perform[cb] account with or to any third party, regardless of its relation to or common ownership with Marketer; (2) use any automated or unauthorized means to access its account; and (3) disseminate or monitor the Perform[cb] network platform or service for any purpose not explicitly granted in this Agreement.
Terms of Payment. Marketer shall be responsible for all charges incurred for traffic ordered by Marketer as set forth in Marketer’s online account. Marketer shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Perform[cb] may also elect to submit an invoice to Marketer for the total fees and charges associated with the Marketer's applicable offers in accordance with the payment model outlined below, and the applicable compensable events (each, an "Action"). Invoicing and payments are governed by the credit decision issued to Marketer by Perform[cb]. Payments for invoices will be overdue if unpaid after the due date listed on the invoice. Overdue invoices will accrue interest at the statutory interest rates then in effect. Payments are subject to a 2.5% processing fee; at Perform[cb]’s discretion, cash discount(s) for wire/ach/check payments will apply.
Actions. For purposes of this Agreement, “Action” means an act or event by a third party upon which payment hereunder is based or determined, such CPA (cost per action), CPI (cost per install), CPL (cost per lead), CPC (cost per click) or CPM (cost per thousand), as set forth in the IO. Actions are defined as Internet users interested in your Ad or offer, who have clicked-thru to your landing page or website, and have signed up for, purchased, or installed, as applicable, your service or product as determined by the firing of the pixel.
Payment. If Marketer has elected to enroll in the CPA, CPI or CPL program payment model defined as follows: Marketer shall pay Perform[cb] the designated CPA, CPI or CPL fee, as stated on any applicable IO, email confirmation, or as You (the Marketer) implement in the Perform[cb] platform for each Action delivered by Perform[cb] and its Partners. The total fees will be based on the number of Actions received from all of Marketer‘s Ads, multiplied by the applicable CPA/CPI/CPL rate. Marketer shall provide Perform[cb], within five (5) days after the end of the previous traffic period, the total number of Actions generated by Perform[cb] and its Partners in the previous traffic period. Notwithstanding the foregoing, upon Perform[cb]’s reasonable request Marketer shall provide Perform[cb] with the Action total for the previous traffic period within forty-eight (48) hours of the request. Marketer understands and agrees that Perform[cb] shall invoice Marketer using the higher of the numbers tracked by Perform[cb] or tracked by Marketer, and Marketer agrees to pay for all amounts as invoiced. If Marketer has elected to enroll in the CPC program, payment model is defined as follows: Marketer shall pay Perform[cb] an amount solely based on the number of clicks and redirects multiplied by the amount Marketer bid to pay for each click or redirect and not Marketer's ability to convert clicks or redirects to sales, registrations or other user actions. When Marketer is the winning bidder for the display on the Network of Marketer's Ad, the winning CPC bid price may be below Marketer's maximum CPC bid price, and shall not exceed Marketer's maximum CPC bid price, unless otherwise approved by Marketer. Marketer understands and agrees that Marketer shall pay Perform[cb] using the higher of the numbers tracked by Perform[cb] or tracked by Marketer, and Marketer agrees to pay for all amounts as invoiced.
Traffic Level Adjustments. If, in Perform[cb]‘s sole determination, the projected fees payable by Marketer for any traffic period during the term of billing period are targeted to exceed the credit decision previously provided to Marketer, then Perform[cb] may, in its sole discretion, take any one or more of the following actions at any time (a) require a deposit or increase in deposit; (b) increase the frequency of invoices to daily, weekly or bi-weekly, as applicable: (c) require that Marketer secure any current and/or future payment obligations through the issuance of promissory notes, establishment of joint accounts and/or collateralization of receivables, real property and/or other assets; (d) suspend the placement of Ads in the Network until the payment terms have been revised to Perform[cb]‘s satisfaction; (e) cap the number of Actions generated by the Ad.
Taxes. Marketer shall also pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, except for taxes on Perform[cb]’s income.
Audit Right. Marketer shall be obligated to retain books and records pertaining to the Actions and other data necessary to compute the charges hereunder for at least one year after the conclusion of each Ad. Perform[cb] shall have the right to audit such books and records. If the audit reveals an underpayment, Marketer shall promptly pay to Perform[cb] such underpayment along with past due interest charges from the time originally due until paid. If the amount of the underpayment is more than 5%, Marketer shall also be obligated to pay to Perform[cb] its reasonable audit costs.
Refund Policy. All refunds, if any, are at the sole and absolute discretion of Perform[cb] and are subject to an administrative handling fee of an amount not to exceed $500. Any funds still left on deposit over one year after Marketer has terminated activity on the Perform[cb] Network shall be forfeited to Perform[cb].
Claims or Disputes. Marketer shall submit any and all claims and disputes in writing with Substantiating Data to Perform[cb] within ten (10) days after month‘s end or five (5) days after the invoice date, whichever is earlier, time being of the essence. Claims and disputes not timely submitted to Perform[cb], in accordance with this provision, are waived and all charges are final. For purposes of this Agreement, “Substantiating Data” shall mean and include the following, for each disputed Action: (i) Partner identifier; (ii) consumer identifiers, including user IP address, transactions IDs, MAC address or mobile device ID, (iii) for Ad campaigns wherein specific lead qualifications are set forth in the IO, full lead details including all fields that were completed and provided to the Marketer in connection with the disputed Action, (iv) information on any patterns observed or documented by Marketer, and (v) all reasons, stated in writing, for the suspected fraud or dispute. To be clear, merely noting that the Action was deemed fraudulent by a fraud-tracking application (e.g., ForensIQ or 24 Metrics) does not fulfill the requirement for Substantiating Data unless mutually agreed upon prior to launch. If specific lead qualifications are not set forth in the IO or prior to launch, Marketer shall not object to any based on the validity of an Action. Perform[cb] may use the foregoing data to notify its Partners and sub-partners of fraudulent users and to generally increase the quality of leads and Actions. If Marketer fails to object in writing to an Action within the timeframe set forth in this section, or if Marketer fails to provide all the requisite Substantiating Data, Marketer permanently waives and releases any right to contest or otherwise challenge the Action and must timely pay Perform[cb] for it at the rate agreed upon.
Failure to Make Payment. The failure by Marketer to make timely payment shall constitute material breach. Marketer is responsible for all reasonable expenses (including, but not limited to, attorneys‘ fees and costs) incurred by Perform[cb] in collecting such amounts due plus interest.
Tracking System. You agree that you will not alter the pixel or remove or alter the location of the pixel or other tracking method deployed by Perform[cb] ("Pixel") to track leads. If you disrupt, interfere, or disable the tracking system, you will be obligated to pay Perform[cb] for all Actions, based upon the historical earnings per click ("EPC"), to have been generated during the period of disruption. The historical EPC is determined by dividing the total earnings by the number of clicks generated by a campaign during the most recent uninterrupted traffic period. Marketer shall place Perform[cb]‘s Pixel on a unique confirmation page that does not contain the pixel or tracking method of any third party. If you place Perform[cb]‘s Pixel on the same page as a third party‘s pixel or tracking method, you will be obligated to pay Perform[cb] based upon each firing of the Perform[cb] Pixel (based upon Perform[cb]‘s tracking logs) regardless of any payment made to any third party for the subject action in reliance on any other pixel and/or tracking method appearing on the same page.
Fraud. Marketer acknowledges and agrees that Perform[cb] shall not be liable for any instances of fraud on the part of end-user consumers and Marketer agrees to pay Perform[cb] in full for all services performed under the Agreement regardless of consumer fraud. Marketer shall not be liable for Actions that are the result of Partner fraud and are timely disputed in accordance with Section 5 of this Agreement; however without definitive proof of fraud as determined by Perform[cb], Marketer agrees to pay Perform[cb] in full for all services performed under the Agreement.
Non-Circumvent. Marketer recognizes that Perform[cb] has proprietary relationships with Perform[cb] Network Partners. Marketer agrees not to knowingly circumvent Perform[cb]‘s relationship with such Partners, or otherwise obtain, directly or indirectly, services similar to those performed by Perform[cb] or such Partners hereunder, from any Partner that is known, or should reasonably be known, by Marketer to have such a relationship with Perform[cb]. Marketer shall not solicit the Partners of Perform[cb], nor shall Marketer use or attempt to use reverse engineering or tracing of Partner traffic as a means to solicit and/or identify Perform[cb]‘s Partners. Failure to comply with this Section may, at our discretion and without limiting or excluding other remedies that may be available to Perform[cb] (all such other remedies being expressly reserved), result in immediate termination of the Agreement.
Confidentiality. Any confidential information and/or proprietary data provided by one party ("Discloser") to the other party ("Recipient"), including the Ad descriptions and the pricing of the Ad, shall be deemed "Confidential Information" of the Discloser. Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know the same and that is bound by confidentiality obligations at least as strict as those contained herein, but in no event less than a reasonable confidentiality standard. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under the Agreement. Notwithstanding anything contained herein to the contrary, the term "Confidential Information" shall not include information that: (a) was previously known to the Recipient; (b) was or becomes generally available to the public through no fault of the Recipient; (c) was rightfully in Recipient‘s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by Discloser; or (d) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser. Notwithstanding the foregoing, either party may disclose, upon written notice to the other party, Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under the Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
License. For the term of the Agreement, Marketer hereby grants to Perform[cb] and Perform[cb]‘s Partners and sub-partners a non-exclusive, royalty-free, worldwide license to: (a) use, perform and display all Ads delivered hereunder in accordance with the terms of the Agreement; and (b) use all associated Marketer intellectual property in connection therewith. In addition, Marketer agrees that Perform[cb] may, during the term of this Agreement and thereafter, include Marketer’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on Perform[cb]’s customer list and in its marketing materials and sales presentations. Title to and ownership of all intellectual property rights of all Ads and associated Marketer intellectual property shall remain with Marketer or its third party licensors.
Acknowledgement of FTC and Florida Orders; Compliance. You acknowledge that you have received, read, and agree to comply with the "Stipulated Final Judgment and Order for Permanent Injunction" entered on November 29, 2012 (the "FTC Order") and the "Assurance of Voluntary Compliance" entered on November 16, 2012 (the "Florida Order"), warrant that there are no misrepresentations or material omissions in your advertisements, and understand and agree that engaging in acts or practices prohibited by the FTC Order and the Florida Order will result in the immediate termination of this Agreement and a forfeiture of all monies received or owed. You may read the FTC Order and the Florida Order by clicking here: https://performcb.com/assets/FTC_Order_&_AVC_Combined.pdf. Furthermore, you acknowledge that you have reviewed and agree to comply with Perform[cb]’s compliance policies applicable to your advertisements and activities on the Perform[cb] network. Perform[cb]’s compliance policies can be found by clicking here: https://support.performcb.com/support/solutions/4000008094. Perform[cb] does not accept Ads from Marketers that produce or provide adult content. Ads and content thereof (along with any linked URLs) shall not include nudity, partial nudity or adult language without prior written consent. Adperio does not accept Marketers that engage in, promote or facilitate illegal activities. Perform[cb] may in its sole discretion refuse or restrict use of any Ad that it deems inappropriate or requires special handling.
Data Protection Addendum; International Compliance. Marketer has read and agrees to comply with the Data Protection Agreement, available at https://support.performcb.com/support/solutions/articles/4000153893, which is incorporated herein by reference. Marketer agrees that, where applicable, its marketing and data collection practices shall comply at all times with the United Kingdom Data Protection Act of 1998 (as amended), the General Data Protection Regulation (GDPR) (EU) 2016/679, as amended and adopted by the member states of the EU, and all related directives, acts, or regulations. Marketer represents and warrants that its consumer data collection practices are performed in a manner that obtains the necessary knowing and frequent consent from consumers and that all consumer data is stored using industry-standard or better security protocols. If Marketer is either located outside the United States or running or distributing (or potentially distributing) an Ad or offer outside the United States, Marketer represents and warrants that (1) Marketer is familiar with the particular laws, regulations and industry customs in those countries in which Marketer is located and/or running the Ad or offer, (2) Marketer has previous experience distributing Ads and offers in such countries, and (3) Marketer will comply with all laws, regulations and industry customs applicable to the operation of its business, its marketing practices, and the collection and/or transfer of consumer data by Marketer in such countries. To be clear, Marketer is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Marketer is located.
Representations and Warranties. EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT: (A) IT HAS THE FULL CORPORATE RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT, TO GRANT THE LICENSES GRANTED HEREUNDER AND TO PERFORM THE ACTS REQUIRED OF IT HEREUNDER; (B) THE EXECUTION OF THE AGREEMENT BY IT AND THE PERFORMANCE OF ITS OBLIGATIONS AND DUTIES HEREUNDER, DO NOT AND WILL NOT VIOLATE ANY AGREEMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS OTHERWISE BOUND; AND (C) WHEN EXECUTED AND DELIVERED, THE AGREEMENT WILL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATION OF EACH PARTY, ENFORCEABLE AGAINST EACH PARTY IN ACCORDANCE WITH ITS TERMS.
Disclaimer of Warranties. THE PERFORM[CB] NETWORK, SERVICES AND THE RESULTS GENERATED THERE FROM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, PERFORM[CB]‘S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. EXCEPT AS STATED HEREIN, PERFORM[CB] DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY EXPECTED AD PERFORMANCE, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Limitation of Liability. Other than for gross negligence and willful misconduct, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever including, without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of the Agreement, even if such party has been advised of the possibility of such damages.
Indemnification. Marketer agrees to defend, indemnify and hold harmless Perform[cb] and its Partners and their respective directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys‘ fees, even if incident to any appeals) (collectively "Losses") incurred as a result of any claim, judgment or proceeding relating to or arising out of: (a) Marketer‘s breach of the Agreement; (b) the content of the Ads and any and all claims made therein; or (c) the products, services or content linked to from the Ads. Perform[cb] agrees to defend, indemnify and hold harmless Marketer from and against any and all Losses incurred as a result of a claim, judgment or proceeding relating to or arising out of Perform[cb]‘s breach of the Agreement.
If any action is brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware, except that failure to provide such notice shall not excuse the Indemnifying Party’s indemnification obligations under this Section 19 unless such failure materially prejudices the Indemnifying Party. The Indemnified Party shall permit the Indemnifying Party to assume control over the defense of such claim, with counsel chosen by the Indemnifying Party that is reasonably acceptable to the Indemnified Party, provided however, that the Indemnified Party shall control the defense of any such claim that, in the reasonable opinion of such Indemnified Party, could have a material and adverse effect on the business, operations, assets or prospects of such Indemnified Party, and the reasonable costs and expenses thereof shall be included as part of the indemnification obligations of the Indemnifying Party hereunder. The Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior written consent of the Indemnified Party.
Scope of Relationship. Each party is an independent contractor and not a partner, joint venturer or employee of the other. Neither party shall have the right to bind the other or to incur any obligation on the other‘s behalf
No Other Agreements. This Agreement and any related IO’s sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a writing signed by both parties may change this Agreement. In the event that Perform[cb] is required to agree to additional terms when using Marketer’s website, mobile application, or tracking platform for purposes of performing the Services, calculating payment, or obtaining creative at Marketer’s direction, the parties hereby acknowledge and agree that such agreement is inconsequential and in no way binding and that it is a result of a technical requirement that cannot be altered; therefore, any such terms are to be disregarded and deemed non-effective and shall be explicitly superseded by this Agreement.
Miscellaneous. The Agreement will be governed and construed in accordance with the laws of the State of Florida without giving effect to conflict of laws principles. Marketer and Perform[cb] each: (a) hereby irrevocably submits to the exclusive jurisdiction in the Twelfth Judicial Circuit in and for Sarasota County, Florida, or in the United States District Court for the Middle District of Florida for the purposes of any suit, action or proceeding arising out of or relating to the Agreement; and (b) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction or that such proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Any controversy or claim arising out of or relating to this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If Marketer brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and does not prevail, Marketer will pay all of the costs and expenses (including without limitation, court costs, arbitrators‘ fees and expenses and reasonable attorneys‘ fees) incurred by Perform[cb] in defending such action. The failure of Perform[cb] to exercise any rights granted hereunder will not operate as a waiver of those rights. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding. Marketer may not assign the Agreement without the prior written consent of Perform[cb]. The parties‘ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors, joint administrators and permitted assigns. The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. The Agreement may be executed and delivered by electronic signature and/or facsimile and the parties agree that such execution and delivery shall have the same force and effect as delivery of an original document with original signatures.