Sales Affiliate Agreement
TERMS AND CONDITIONS
In consideration of the mutual agreements and obligations set forth herein, the Parties agree during the Beta Period as follows:
1. Definitions of Terms in the Sales Affiliate Agreement
a. “We”, “Our”, “Us”, and “the Company” mean the SuperWorld, Inc.
b. “You”, “Your” and “Affiliate” – mean you individually and any business or entity through which you are applying for participation in the SuperWorld SuperAffiliate Program, and includes any employee, agent, or representative of Affiliate.
c. “Affiliate Compensation Plan” – means the Company document which addresses the Compensation which an Affiliate may earn, and sets forth the requirements and limitations regarding such compensation, including without limitation the description of an Affiliate’s downline, and how that downline functions.
d. “Affiliate Programs” – means the SuperWorld SuperAffiliate Program, whereby Affiliates become Members of the SuperWorld SuperAffiliate Program and are approved to sell SuperWorld Products and Services and receive the affiliate benefits set forth in the Policies and Procedures.
e. “Affiliate Referral Tracking Link” – means a link to the Company’s web site which will contain the Affiliate’s unique Referrer ID so as to identify to the Company that the Affiliate is the originating source of a Referred Customer connecting to the Company Website through the Link, and therefore is entitled to a commission for any Qualified Purchases made through the Link by the Referred Customer.
f. “Commission(s)” – means compensation paid to Affiliate by the Company for each Qualified Purchase completed by a Referred Customer in accordance with this Agreement, pursuant to the terms of the Affiliate Compensation Plan.
g. “Policies and Procedures” – means the official policies and procedures regarding Membership and the Affiliate Programs published by the Company, and are a part of the Sales Affiliate Agreement such that they are binding on you as an Affiliate.
h. “Promotional Materials” – means those marketing materials prepared and approved by the Company to market SuperWorld and Services which an Affiliate may use to assist Affiliate in presenting SuperWorld and any other Products or Services, including any materials regarding the Affiliate Programs.
i. “Proprietary Property Licensing Agreement” – means the Company document which sets forth the permission given to an affiliate to use specific intellectual property belonging to the Company, including without limitation trademarks, copyrighted materials including artwork or written materials, trade dress or colors, and so forth (collectively the “Proprietary Property”), and the limitations on the use thereof. During the Beta Period, and until a formal Licensing Agreement is finalized, all use of any Proprietary Property must be approved on a case-by-case basis as set forth in the Policies and Procedures.
n. “Qualified Purchase” – means a fully consummated sale of SuperWorld or Services by the Company to a Referred Customer, which is successfully paid in full and meets the criteria set forth in the Policies and Procedures so as to entitle an Affiliate to receive a Commission.
o. “ Referred Customer” – means each and unique customer referred to the Company through the Affiliate’s Referral Tracking Link; and/or each and unique customer referred by Affiliate to Superworldapp.com who through any other portal to the Superworldapp.com website clearly identifies the Affiliate in the designated field (such as a “How did you hear about us?” field), on a properly submitted new customer Registration Form or Order Form.
p. “Registration Form” and “Order Form” – means any and all order forms or other signup or acceptance forms submitted by a Referred Customer to the Company in order to make a Qualified Purchase.
2. Term of the Sales Affiliate Agreement
The initial Term of this Agreement will be month to month. To remain active, each Affiliate must meet the requirements set forth in the Policies and Proceduress. Failure to renew in a timely manner will result in the automatic expiration of the Affiliate Agreement and the loss of Affiliate’s right to continue participating in the Affiliate Program, and will result in the termination of any further Commissions, provided that if the Company adopts a grace period in the Policies and Procedures, Affiliate may renew its Affiliate Agreement upon such terms set forth in the Policies and Procedures.
3. Relationship of the Parties – Independent Contractor Status
Affiliate may consist of an individual, or a company owned by an individual, which company is duly licensed and in good standing in its home state. SuperWorld is a California corporation, and Affiliate hereby expressly agrees that its sole recourse as to any dispute is to the corporate entity itself and not to any of its owners, officers, employees, agents, and so forth, and promises that Affiliate will never attempt to pierce the corporate veil in any dispute so as to reach any of the individuals involved with the Company, but will always look solely to the Company.
Affiliate is a self-employed, independent contractor who is only authorized to refer individual consumers to purchase the products of the Company on a non-exclusive basis. Any published reference to the relationship between Affiliate and the Company shall expressly indicate that Affiliate is an “independent contractor.”
Affiliate hereby expressly acknowledges and agrees the Sales Affiliate Agreement does not create an employee/employer relationship, agency relationship, partnership, or joint venture between the Company and Affiliate, and shall not represent Affiliate to be an employee, agent, or representative of the Company, or a purchaser of a franchise or a business opportunity.
Affiliate will use Affiliate’s own resources and shall exercise independent judgment as to when and how Affiliate will refer new customers to the Company to purchase KO Products and Services. Affiliate is solely responsible for all decisions made by Affiliate, and all costs incurred by Affiliate, and will assume all entrepreneurial and business risk as an Affiliate (Sales or Trainer).
Affiliate expressly agrees and acknowledges there is no guarantee that there is a market for the products or services of the Company, or any guarantee that an Affiliate will earn or will not lose money as an Affiliate. Affiliate’s primary focus must always be the promotion of the products and services of the Company for consumer use; the Company discourages Affiliate from focusing their efforts primarily on sponsoring others as Affiliates.
Affiliate further agrees that it is not entitled to any benefits that the Company may make available to its employees. Affiliate shall not be treated as an employee of the Company for any purpose, including without limitation, for federal, state or local tax purposes. The Company will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker’s compensation insurance on Affiliate’s behalf. Affiliate is solely responsible for all income tax returns and payments required to be filed with or made to any tax authority with respect to their activities. The Company will regularly report amounts paid to Affiliate with the IRS and other governmental entities as may be required by law.
Affiliate has no authority to make any representations, or accept any offers or commitments, on behalf of the Company. Affiliate expressly agrees to not make any statement or representation, or publish any information, in any form or manner, that could reasonably be construed as contradicting anything in this Section.
4. Qualifying as a Sales Affiliate
In order to be a Sales Affiliate, you must personally have a SuperWorld account in order to receive the benefits which come from the Program, as well as to explain such benefits to others.
If your application is accepted, you must also maintain a Sales Affiliate Agreement as set out in the Policies and Procedures. If for any reason your Sales Affiliate Agreement lapses, the Company reserves the right to immediately suspend your affiliation as “inactive,” including suspending payment of any Commissions you may otherwise earn during such suspension, until you reinstate your subscription. If for any reason, you cannot, or do not, reinstate your Agreement in full within the grace period allowed by the Policies and Procedures, you hereby agree that you forfeit any and all Commissions which would have otherwise been earned during the suspension period, even if you resume your subscription going forward.
You must actively complete any training required by the Company of its Sales Affiliates within the time frames required. If you fail to do so in the time allowed, your affiliation will be suspended until such training is completed within any grace period allowed by the Policies and Procedures. You hereby agree that if you still fail to complete the training within the grace period, your affiliation will be terminated and all Commissions which would have been otherwise earned during the suspension will be forfeited.
You must also maintain and display high moral character, and conduct all of your business affairs honestly. If the Company learns of any failure to do so, you agree the Company may in its sole and absolute judgment, immediately terminate the affiliation. You hereby acknowledge and agree that such misconduct by you will reflect poorly on the Company and its other Affiliates and cause them irreparable harm.
You may not participate in any domestic violence while an Affiliate. The Company has a zero tolerance policy against domestic violence, and may immediately suspend your affiliation and any possible Commissions pending final resolution of any formal charges.
Under the Sales Affiliate Program, and in accordance with the terms of this Agreement, in particular the Affiliate Compensation Plan, Affiliate will be paid a referral Commission of 20% for each Qualified Purchase by a Referred Customer that is correctly identified by the customer as being referred by Affiliate to Superworldapp.com, provided:
a. Each Referred Customer must register in a verifiable manner which, in the Company’s sole and absolute judgment, definitively establishes that the Referred Customer was in fact referred directly from Affiliate to Superworldapp.com under this Agreement. Such verifiable methods are:
i. Orders placed by Referred Customers who follow the Affiliate’s Referral Tracking Link to Superworldapp.com; and/or
ii. Orders placed by Referred Customers who when placing an order clearly identify the Affiliate in the referral source field, (such as a field captioned “How did you hear about us?”) on the Superworldapp.com new client registration form(s) in such a way that the referral can be successfully tracked to Affiliate; and/or
iii. Prior notification in writing to the Company by Affiliate that a specific organization is being actively referred to Superworldapp.com by Affiliate, and such organization in fact properly registers, confirms the referral by Affiliate, and completes a Qualified Purchase within 90 days of the Company’s receipt of the notification.
b. Commissions will not be paid to an Affiliate for Qualified Purchase(s) made by customers who originally registered through another Affiliate, or who independently joined SuperWorld ad bought property through any of the Company’s domains, web sites, partners, subsidiaries, etc., unless the Company has officially assigned that independent customer to Affiliate such that the independent customer becomes a Referred Customer of Affiliate.
c. In addition to the foregoing, each Referred Customer and each Qualified Purchase must meet the following criteria (the “Criteria”) in order to generate Commissions for the Affiliate:
i. Each Referred Customer must properly register on Superworldapp.com by completing and submitting the applicable Registration Form using valid and unique account and billing information; and
ii. Each Referred Customer must become an active, qualified customer of Superworldapp.com by making one or more Qualified Purchases, and
iii. Each Qualified Purchase must have a valid payment, actually received by the Company prior to the date the Commission Fees are processed, without being refunded, canceled, suspended, charged back, or any other reason Company cannot retain such funds; provided that any refund, credit, cancellation, suspension, chargeback or other reason of non-payment or non-receipt for which a Commission has previously been distributed to Affiliate will be deducted from Affiliate’s next Commission distribution; and
iv. Each Referred Customer must be, and remain, in compliance with the Company’s Terms of Service and other policies that are active at the time the Commissions are processed.
d. The Company is not responsible for any third-party fees charged by a bank or other financial institution or financial service provider used to receive Affiliate Commissions. Affiliate must pay such fees as its own expense.
e. The Company shall not be responsible for any taxes or similar obligation owed by Affiliate arising out of Affiliate’s Commissions or Affiliate’s participation in the Sales Affiliate Program. Accordingly, the Company shall not withhold any taxes or similar obligations from the Commissions paid to Affiliate. Furthermore, if for any reason the Company is held responsible for such taxes or similar obligations, Affiliate hereby irrevocably agrees to promptly pay such amounts in full within 30 days of notice of the obligation to do so, and any Commissions earned until such amounts are repaid in full will automatically be surrendered by Affiliate to the Company to pay such amounts.
f. The Company shall be responsible to collect from Referred Customers any sales tax which may be owed for any Qualified Purchases through the SuperWorld Website, and shall remit such taxes to the appropriate taxing entity. Affiliates may not collect sales tax for any purchases through the website, but shall be responsible to collect and remit to the proper taxing authority any applicable sales tax on any SuperWorld Products which Affiliate has purchased and resales to a customer as may be required by law.
g. Affiliate agrees that he or she has the primary responsibility for tracking their sales to determine the accuracy thereof, and that Affiliate will have one month to review the previous month’s Commissions, and any failure by Affiliate to adequately do so will constitute a waiver of mistake(s), and Affiliate will have no claim for any mistake not discovered or reported in time.
h. Where no Commissions are due and owing when Affiliate becomes obligated to the Company, or in the event of termination of this Agreement or the Affiliate Marketing Program, the Company will bill the Affiliate for the amount of the overpaid Commission(s) or other obligations, which payment shall be due from Affiliate within 30 days of receipt of the bill, and Affiliate promises to make the payment within the 30 days or pay any and all attorney fees and expenses incurred by the Company to recover said funds.
i. The Company reserves the right to suspend payment of Commissions at any time indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms in this Agreement by the Affiliate or its representative or agents, or by a Referred Customer(s), until a determination as to whether fraud or other improper activity has occurred. Any Commissions “earned” through fraudulent or other improper means, in the Company’s sole and absolute judgment, shall be forfeited. Any Commissions the Company in its sole and absolute discretion demands returned for fraudulent or other improper activity must be returned within 30 days after written demand, after which time the Company may pursue criminal charges or civil claims as it determines prudent, and Affiliate promises to return such amounts demanded within the 30 days or Affiliate will pay any and all attorney fees and expenses if the Company is forced to sue to recover the funds.
6. Assignment and Transfers
Affiliate may only assign, transfer or delegate its rights, obligations or benefits under this Agreement (Affiliate’s “Interest”), with the prior written consent of the Company, which consent will not be unreasonably withheld subject to any restrictions in the Policies and Procedures. Any approved transfer shall be binding on each of the Parties’ successors and permitted assigns. Affiliate and/or Affiliate’s transferee shall be solely responsible for any taxes or other financial consequences of any transfer.
Transfers shall be requested in the manner set forth in the Policies and Procedures. Affiliate’s Interests may not be divided into parts, so as to require any separate distribution of Commissions, or any additional tracking or administrative burden on the Company, but must always be treated as a single account with a single distribution.
Any attempted assignment, transfer or delegation in violation of these provisions will automatically be null and void ab initio, without the need for the Company to take any action to declare the transfer null and void.
Affiliate may not transfer or lien its Interest, including any interests in any Commissions, to any creditor for any reason. Any assignment or transfer to a creditor of Affiliate’s Interests, whether voluntary or by operation of law (as in the case of any attempted seizure), will automatically terminate this Affiliate Agreement and any right Affiliate may have in any past, present, or future Commissions, inasmuch as any rights and obligations under this Agreement are personal to Affiliate, and depend on Affiliate being actively engaged in the Affiliate Program.
7. Affiliate Commitments and Warranties
Affiliate hereby expressly agrees to:
a. maintain at all times a high standard of professionalism and honesty, demonstrated in a manner that reflects favorably at all times on the Company, the products and services of the Company, and the other Affiliates;
b. avoid deceptive, misleading, dishonest, questionable, or unethical practices;
c. make no representations, warranties, or other statements with respect to the products, services, or any business opportunity that are different from or in addition to those in the Affiliate Agreement and the Promotional Materials, etc.;
d. not attempt to bind the Company to any agreement, or pursue, waive, or compromise any of the Company’s rights (or purport to do any of the foregoing);
e. periodically review the Policies and Procedures, as amended from time to time and posted on the Company website; and
f. comply at all times with all applicable laws, regulations, rules, and the Policies and Procedures and accept exclusive liability for any non-compliance.
Affiliate further represents and warrants that:
g. Affiliate, if it is an entity, is duly organized, validly existing, and in good standing under the laws of the United States and state of Affiliate's origin; and
h. Affiliate has all requisite power and authority to enter into this Agreement and to carry out and perform its obligations under the terms of this Agreement; and
i. Affiliate agrees to indemnify, defend, and hold harmless the Company together with its Related Parties, namely its owners, officers agents, other Affiliates, members, employees, directors, and so forth, (collectively "Indemnified Parties”) from and against any and all losses or liabilities (including attorneys’ fees) they may suffer or incur as a result of any and all claims resulting or arising from Affiliate's acts or omissions, as well as those of Affiliate's agents or other representatives. Without limitation of the foregoing, Affiliate shall specifically indemnify the Indemnified Parties against any losses or liabilities they may suffer or incur as a result of Affiliate being deemed an employee, agent, or holding any status other than an independent contractor; and
j. Affiliate will perform a full investigation, within forty-eight (48) hours of receipt of a request, if either Party receives an inquiry or complaint from a governmental agency (including any third party claims asserted in state or federal courts) relating directly to the CAN-SPAM Act of 2003, the DO NOT CALL REGISTRY provisions, or any similar federal, state, or local marketing and/or telemarketing rules or other statute or regulation; or for providing information that was procured through fraud, identity theft or any illegal or illicit means, to determine the merits of the inquiry or complaint.
8. Presenting the SuperWorld Products and Services
Affiliate agrees to use only the Promotional Materials approved by the Company when presenting SuperWorld Products and Services, and/or the opportunity to become an Affiliate, and to always present the Company accurately in its entirety as described in those Materials and the Affiliate Agreement.
Affiliate expressly agrees to inform any potential Affiliate they introduce to the Affiliate Programs that Qualified Purchases to Referred Customers are a requirement to receiving Commissions, and to instruct potential Affiliates to review the Sales Affiliate Agreement in its entirety, including the most recent version of the Policies and Procedures and the Affiliate Compensation Plan, with due care to obtain a full understanding of the Affiliate Programs before applying to be an Affiliate. Affiliate may not make any representations or claims regarding actual or potential income or earnings not contained in approved Promotional Materials.
Affiliate may not use any marketing materials or sales aids other than Company approved marketing materials and business supplies without the advance written approval of the Company. The Company may, in its sole and absolute discretion, change or discontinue any Promotional Materials or Company business supplies at any time, in which event Affiliate agrees to stop using such items unless the Company has given advance written permission to do so.
Affiliate may not market or sell SuperWorld Products or Services in retail outlets or other locations open or available to the public, including without limitation trade shows, work fairs, community fairs, conventions, or similar venues, without express written permission from the Company obtained in advance of Affiliate registering for any such event.
Affiliate may not use any form of mass advertising to the public without advance written permission from the Company, provided that Affiliate may market SuperWorld Products and Services through Affiliate’s direct/personal social media venues, provided all other requirements and limitations in this Agreement are satisfied.
While the Company may refer an Affiliate to third parties who offer products and services that may be helpful to the Affiliate in the building of a business, it is up to Affiliate to decide whether to make any purchase or follow any recommendation, at their own risk, and Affiliate hereby agrees that Company will not be responsible or liable for any negative experience with any third party.
9. Affiliate Referral Tracking Link and Web Content
Affiliate will be assigned a unique Affiliate Referral Tracking Link, which will contain the Affiliate’s unique Referrer ID and will thereby identify the Affiliate as the source of the Referred Customers who purchase KO Products and Services through Affiliate.
The Affiliate’s use and display of the Promotional Materials on an Affiliate’s site shall conform to the following terms, conditions and specifications:
a. Affiliate may not place, display, bid on, or otherwise incorporate the SuperWorld logos, copy, information, etc. on any web site or other medium that has not been pre-approved by the Company for such use through the Company’s Proprietary Property Licensing Agreement, nor may Affiliate on any website or other platform:
ï Indicate that Affiliate is a Trainer Affiliate of the Company;
ï Shame or bully any person;
ï Promote or contain sexually suggestive or explicit materials, or any morally inappropriate content;
ï Promote or condone violence, in particular domestic violence;
ï Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
ï Promote or condone illegal activities;
ï Incorporate any materials which infringe, or assist others to infringe, on any copyright, trademark or other intellectual property rights or to otherwise violate the law;
ï Contain software downloads that may potentially enable manipulation or diversions of commission from other Affiliates in any of the Company’s Affiliate Programs, or otherwise manipulate or alter the Superworldapp.com website;
ï Send any traffic generated in the following ways: incentivized or core traffic, interstitials, Parasiteware, Parasitic Marketing, Shopping Assistance Application, Toolbar Installations and/or Add-ons, Shopping Wallets, deceptive pop-ups and/or pop-unders, fraudulent or bot traffic.
ï Contain any proprietary or confidential information belonging to the Company as may be defined by the Policies and Procedures, or as may be determined on a case by case basis;
ï Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to the Company in its sole and absolute discretion.
b. In addition, Affiliate may not create or design a web site or web page, or any other social media that Affiliate operates, in a manner which resembles the Superworldapp.com website or any other website published by the Company, nor design Affiliate’s website or web page in a manner which, explicitly or impliedly, could lead anyone to believe that Affiliate’s web site is part of Superworldapp.com, or any other Company affiliated website or business. Affiliate shall place appropriate disclaimers on any website as may be required by the Company in its Policies and Procedures.
d. The Company reserves the right, at any time, to review Affiliate’s placement and content, and approve or disapprove of the use of Affiliate’s Referral Tracking Link and/or text links, creative graphics, descriptions of Superworldapp.com or SuperWorld Products and Services, Promotional Materials, and so forth, for compliance with this Agreement, and may require that Affiliate comply with the guidelines provided to Affiliate by the Company. If Affiliate fails or refuses to immediately make the changes that the Company determines in its sole and absolute discretion and judgment are necessary or advisable for the benefit or protection of the Company, the Company reserves the right to terminate this Agreement and Affiliate’s participation in the Sales Affiliate Program immediately, and Affiliate will not object to such termination. If Affiliate refuses to remove any materials proprietary to the Company, including without limitation any confidential information as defined in the Policies and Procedures, Affiliate agrees that the Company shall be immediately entitled to a permanent injunction without any showing of irreparable harm, it being hereby conceded by Affiliate that such action is in fact irreparable harm.
10. Intellectual and Proprietary Property
The Company hereby retains all rights, titles, and interests in the SuperWorld Products and Services, its Promotional Materials, and in any content, copyright, trademark, design, trade dress or colors, or any other intellectual property (collectively “Proprietary Property”) owned by the Company or licensed to the Company. Nothing in this Agreement shall be construed to grant Affiliate any ownership or beneficial interest in the SuperWorld Products and Services, or in the Proprietary Property. Any permission to use any Proprietary Property is only granted through the Proprietary Property Licensing Agreement which is a part of the Sales Affiliate Agreement.
Affiliate shall not use or disclose any Confidential Information of the Company except as expressly permitted by the Policies and Procedures.
11. Order Processing, and Fulfillment
All aspects of order processing and fulfillment, including but not limited to sign-up, registration, purchase, fulfillment, cancellation, refunds and payment processing, access, interaction, general inquiries, and customer service and support will be the Company’s responsibility once a Qualified Sale occurs. The Company reserves the right, however, in its sole and absolute discretion and judgment, to reject any orders that do not comply with any requirements that the Company may establish from time to time, or on a case by case basis, and may cancel Products or Services without advance notice.
The Company will track the Qualified Purchases generated by the Affiliate and will report this information to Affiliate through monthly Commission Reports issued before distributing monthly Commissions. The Company will provide Affiliate a dashboard through its designated website to allow Affiliate to track and monitor Qualified Purchases.
12. Company Policies and Procedures, Products and Services, and Pricing
As part of this Affiliate Agreement, the Company will have formal Policies and Procedures which will set forth in greater detail the administrative terms and conditions of the relationship between the Company and the Affiliates, but it shall be equally binding on the Parties. The Policies and Procedures shall include applicable prices to Affiliate for any Promotional Materials, services, etc.
The Company may at any time revise the Policies and Procedures by posting the amended Policies and Procedures on the Company website, and any changes or additions will be effective immediately upon posting unless otherwise indicated. You are responsible to check the Company website frequently for revisions to the Policies and Procedures.
Company Products and Services pricing and availability may also vary from time to time, and may be changed at any time in the Company’s sole and absolute discretion, and Affiliate agrees it does not have any claim or recourse for any lost Commissions as a result of such changes.
Referred Customers who purchase SuperWorld Products and Services will be deemed Company Customers, and therefore Company may communicate with Referred Customers without limitation, and may market SuperWorld Products and Services directly to Referred Customers, provided that so long as Affiliate remains an active sales affiliate, Affiliate will receive Commissions on future Qualified Purchases by a Referred Customer in accordance with the Affiliate Compensation Plan even if the Company initiates the subsequent Qualified Purchase. Accordingly, all Company policies, terms and conditions, and operating procedures concerning orders and SuperWorld Products and Services will apply to those Customers.
The Company reserves the absolute right to terminate or suspend the Sales Affiliate Agreement generally, and/or the Sales Affiliate Program itself, at any time and for any reason, in the Company’s sole and absolute discretion and judgment, with or without prior notice to Affiliate. Affiliate hereby acknowledges and expressly irrevocably agrees that in the event the Company terminates an Affiliate Program or any provision of the Affiliate Agreement that Affiliate will have no claim against the Company or any of its Related Parties for doing so.
Affiliate may terminate its participation under this Agreement at any time upon written notice to the Company, provided that such termination will not terminate the Affiliate’s obligations identified in this Agreement as surviving any termination, including without limitation obligations regarding dispute resolution, duties to not use Proprietary Property or to disclose confidential information, and all similar obligations designed to protect the Company and other Affiliates (which obligations shall survive any termination regardless of cause).
Upon termination of the Agreement at Affiliate’s option, the Company may elect in its sole and absolute discretion to withhold Affiliate’s final Commissions for a reasonable period of time to ensure that all Qualified Purchases are valid and payment from Referred Customers are successful such that funds are actually received and retained by the Company.
Affiliate hereby recognizes and agrees that this affiliation is at the will of both Parties, and therefore Affiliate irrevocably agrees that the Company has the absolute right to terminate this Agreement, and thereby remove Affiliate from the Sales Affiliate Program, for any reason the Company deems advisable in its sole and absolute discretion and judgment, including without cause.
The Company will not be liable to any Affiliate for damages of any kind as a result of terminating this Affiliate Agreement in accordance with the terms set forth herein, and termination of the Affiliate Agreement will be without prejudice to any other right or remedy of the Company may have under the Affiliate Agreement or applicable law.
14. Dispute Resolution
Affiliate and Company hereby commit to make every effort in good faith to informally, quickly and fairly resolve any dispute which may arise.
Any claim or dispute arising under or relating to the Affiliate Agreement (whether arising in contract, tort, claim of fraud or fraudulent inducement, or otherwise) that cannot be resolved through internal dispute procedures, as set forth in the Policies and Procedures, or through direct negotiations with the Company, shall be mediated as set forth in the Policies and Procedures, which mediation must take place before any lawsuit may be filed by Affiliate (which lawsuit Affiliate agrees will only be filed in Los Angeles County, California). The failure to mediate before filing suit shall be grounds for immediate dismissal.
Affiliate hereby irrevocably agrees that Affiliate will never sue the Company’s owners, members, managers, agents, employees and so forth ("Related Parties”) and therefore they are intended third party beneficiaries of the Affiliate Agreement for purposes of the provisions of this Affiliate Agreement referring specifically to them, including the agreement to mediate. The parties acknowledge that nothing contained herein is intended to create any involvement by, responsibility of, or liability for, the Related Parties with respect to any dealings between Affiliate and the Company, and the parties further acknowledge that nothing contained herein shall be argued by either of them to constitute any waiver by the Related Parties of any defense which Related Parties may otherwise have concerning whether they can properly be made a party to any dispute between the parties.
Affiliate hereby expressly and irrevocably agrees to only pursue any possible claim Affiliate may have against the company on a solitary basis, without joining with any other plaintiff, and in particular without ever bringing or participating in a class action lawsuit against the Company or any of the Related Parties, or against any other Affiliate, agreeing specifically to irrevocably waive at the time the application to enter into this Affiliate Agreement is submitted any possible right to participate in any class action in any way, and expressly agrees that any attempted class action shall be automatically dismissed.
15. Disclaimers of any Warranties and Limitation of Liability
The Company makes no express or implied warranties or representations with respect to the Affiliate Program or any SuperWorld Products and Services sold (including, without limitation, NO WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, the Company makes no representation that the operation of the Superworldapp.com site will be uninterrupted or error free. The Company will not be liable for the consequences of any interruptions or errors, including the tracking of information about Referred Customers during the period of interruption.
The Company’s sole obligation, and Affiliate’s sole and exclusive remedy, for breach of any warranty shall be to return any defective products to the Company and receive a replacement or credit as described in the Policies and Procedures. To the maximum extent permitted by applicable law, the Company hereby disclaims all other warranties with respect to the Products and Services of the Company, the Promotional Materials, the Company business supplies, and so forth whether express, implied, or statutory.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO AFFILIATE; AFFILIATE'S CUSTOMERS OR SUBSCRIBERS: NOR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH AFFILIATE, FOR ANY LOSS, LIABILITY, INJURY, OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR THE PRODUCTS AND SERVICES PROVIDED HEREUNDER, NOW OR IN THE FUTURE, OR ANY MISTAKES, ERRORS, OMISSIONS, DELAYS, LOSSES, OR INTERRUPTIONS IN THE SERVICES ARISING OUT OF OR IN CONNECTION WITH THE KYNGDOMORGANIZER.COM SITE AND/OR KO PRODUCTS AND SERVICES; AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES, LOST PROFITS, LOST OPPORTUNITIES, LOST SAVINGS, LOST DATA, OR ANY OTHER FORM OF CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES, WHETHER RESULTING FROM BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE. FURTHERMORE, AFILLIATE HEREBY EXPRESSLY AGREES THAT THE TOTAL AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT SHALL NEVER EXCEED THE TOTAL COMMISSIONS PAID TO AFFILIATE UNDER THIS AGREEMENT DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
16. Severability and Survivability
The provisions of this Agreement are severable. If any provision of this Agreement, or the application thereof to any person or circumstance, shall be deemed invalid or unenforceable under any applicable law, such invalidity or unenforceability shall not affect the other provisions of this Agreement that can be given effect consistent with the original purpose and intent of the Parties.
Upon termination, regardless of the reason, those terms and conditions hereof designed to protect the Company, or the other Affiliates, shall survive the termination in order to continue to protect the Company.
17. No Waivers
No delay or failure by the Company in exercising any right under this Agreement, nor any partial or single exercise of the Company’s rights, nor any failure of the Company to enforce Affiliate’s strict performance of any provision of this Agreement, shall constitute a waiver by the Company of that or any other right.
18. Governing Law, Jurisdiction and Venue
The laws of the United States and the State of California will govern this Agreement, without reference to rules governing choice of laws. Affiliate hereby expressly acknowledges and agrees that this Agreement is entered into in California where SuperWorld, Inc is headquartered, and therefore expressly agrees that any action relating to this Agreement must be brought by Affiliate in the state or federal courts located in Los Angeles, California, and Affiliate hereby irrevocably consents to the jurisdiction and venue of such courts for all disputes and controversies.
The Parties hereto agree that this Agreement, and any other documents requiring a signature, may be executed using electronic signatures, or via electronic submission, and such signature pages shall be treated as originals for all purposes. This Agreement and any counterparts or addendums may be signed and executed with the same effect as if the signatures upon any counterpart or addendum were upon the same instrument. All electronically signed counterparts or addendums shall be deemed to be an original.
20. Full Understanding
Affiliate hereby expressly declares that he or she has read the Sales Affiliate Agreement in its entirety, including this Application, the Policies and Procedures, the Affiliate Compensation Plan and the Proprietary Property Licensing Agreement, and understands all of the terms and conditions to Affiliate’s satisfaction, and that Affiliate hereby declares Affiliate is ready, willing and able to be bound thereby and to perform Affiliate’s obligations hereunder.
IN WITNESS THEREOF, this Agreement, shall be effective as of the date accepted and executed electronically by the Company, Affiliate pays its subscription fees, and the Company provides Affiliate its Referral Tracking Link.