This JYM Ambassador Agreement (“Agreement”) is made and entered into by and between PHD Fitness, LLC, a California limited liability company, (“PHD”) and the user ("JYM Ambassador”) (each a “Party” and collectively, the “Parties”).
1. Purposes The “Purposes” of this Agreement is to memorialize the terms and conditions for
JYM Ambassador to market products and services authorized by JYM Supplement Science (JYMSUPPS) and to recruit JYM Ambassador s according to the terms of this Agreement, and for the parties to protect Confidential Information and key relationships as set forth herein.
2. Definitions
i) “Confidential Information” means any information or material which is disclosed by the Discloser to the Recipient, either directly or indirectly, or acquired in the course of the business relationship, either in writing, orally, by inspection of tangible objects or electronically that is i) non-public business, technical or other information or material of Discloser, including but not limited to the Discloser’s financial statements, products, services, programs, partners, clients, campaigns, pricing, procedures, processes, know-how, any reports or other communications with the Discloser’s auditors, legal counsel or other advisors and consultants, as well as any information or material relating to marketing and sales seminar and training techniques, current and planned product and service offerings, finances, prices, costs, suppliers, business operations or plans, electronic content files of products and pricing, databases, customer information, ii) any
information or material which is designated as “Confidential,” “Proprietary,” or some similar designation whether so designated in writing or orally, iii) any information or material which under the circumstances surrounding disclosure indicate such ought to be treated as confidential, iv) any information or material which by its nature a reasonable person would conclude such is likely to be considered or desired by Discloser to be confidential information, and/or v) third party information or material disclosed to the Discloser. Notwithstanding anything to the contrary herein, information regarding a customer or potential customer for the purchase of JYMSUPPS that is provided to PHD by Ambassador shall be the Confidential Information of PHD and not the Confidential Information of JYM Ambassador or any of its agents. ii) “Discloser” means in regard to specific information or material, the Party disclosing such information or material, directly or indirect to the other Party.
iii) “JYM Ambassador Portal” means the portion of the website athref@@http://publisher.jymsupps.com/@@_blank@@ @@hrefportal.Ambassador .jymsupplementscience.com that requires a password for access, or any successor location as provided in writing by PHD and is intended for the management of PHD ’s relationships with JYM Ambassador s, and JYM Ambassador , who wish to market the JYMSUPPS products. The JYM Ambassador Portal contains additional terms of use for marketing practices and restrictions which are incorporated in this agreement for reference.
iv) “Engagement” occurs when JYM Ambassador has reviewed the Offer Terms in section 15, and executes this agreement indicating that JYM Ambassador will promote and market JYMSUPPS and recruit JYM Ambassador s to promote and market JYMSUPPS.
“Engagement” ends upon termination as set forth in Section 13. “Engaged” refers to being into an Engagement and does not include any time period after the end of an Engagement.
v) “JYMSUPPS” means the products and services of PHD and associates authorized by PHD, to promote and market during the Term of this Agreement. vi) “Accepted Offer Terms” means the Offer Terms outlined in section 15. vii) The “JYM Ambassador Terms” means the guidelines and terms in this agreement. viii) The “Protected Relationships” of PHD are the clients, suppliers, associates, and vendors of PHD involved with the marketing or provisioning of the products and services of PHD and its clients, including but not limited to advertisers, but excluding those that JYM Ambassador has a preexisting relationship with where JYM Ambassador uses them to provide promotion or marketing of products or services that are the same as or are similar to the JYMSUPPS.
ix) “Recipient” means with regard to specific information or material, is the Party receiving such information or material, directly or indirect from the other Party.
x) “Associated JYM Ambassador Marketers” means the entities that are working with the JYM Ambassador in the promotion or marketing of the JYMSUPPS during the Term of this Agreement.
xi) “PHD software” means the software, databases, system architecture, network architecture, user interfaces, processes, methodologies, as well as any form of program integration, of or used by PHD.
xii) “Term” means the period starting as of the Effective Date and ending upon the termination of this Agreement.
xiii) An “Actionable Event” means an event defined in the applicable Accepted Offer Terms that defines what results in a fee being due JYM Ambassador from PHD. An “Actionable Event” excludes any action that was procured in a manner in violation of this Agreement or via any illegal means, including but not limited to fraud, identity theft, or coercion or general manipulation of a consumer in the effort to generate an actionable event.
xiv) “Fraud” means any event in which a consumer is marketed to in a manner that conflicts with the JYM Ambassador terms of use. All fraudulent transactions that are determined to be such will not qualify as an “Actionable Event”. xv) “Compliant Marketing” is marketing compliant with (a) the guidelines promulgated by the
Federal Trade Commission including the “.com disclosure” regulations set forth at:
http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf and (b) the terms and conditions of this Agreement. xvi) Contact. The term “Contact” shall mean an individual who has purchased or signed up for products and services defined as JYMSUPPS under the appropriate JYM Ambassador ID, as that term is defined in the Accepted Offer Terms.
xvii) Lead. The term “Lead” shall mean an individual who HAS NOT purchased or signed up for products and services defined as JYMSUPPS under the appropriate JYM Ambassador ID associated with JYM Ambassador , but that will remain a possible contact for JYM Ambassador for the term as defined in the Accepted Offer Terms.
A Lead is generated pursuant to the terms of this Agreement and does not include any invalid lead including, but not limited to, those made via google ads or any other paid advertising program, including prize promotions without prior consent by PHD. Under no circumstances will deceptive advertising be allowed to acquire contacts or leads, as described by the Federal Trade Commission (FTC). JYM Ambassador is responsible for adhering to, and understanding what constitutes acceptable marketing practices in the linked document found here: href@@https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf@@_blank@@.com Disclosures How to Make Effective Disclosures in Digital Advertising@@hrefhref@@https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf@@_blank@@.@@href
xviii) Service Provider. The term “Service Provider” shall mean PHD, PHD Fitness, or any other naming convention.
xvix) “Advertiser” is PHD Fitness and all associated products.
xvx) Associated JYM Ambassador Marketer is any JYM Ambassador that was recruited by JYM Ambassador into their Ambassador network for the term of this agreement.
xvxi) Ambassador network is the JYM Ambassadors associated with your JYM Ambassador ID.
3. Services of JYM Ambassador
JYM Ambassador and any Associated JYM Ambassador Marketer shall follow any rules, regulations or other requirements and limitations provided to it in writing by PHD with regard to the services it provides hereunder. JYM Ambassador and any Associated JYM Ambassador Marketer shall be liable and responsible for ensuring that the agents of JYM Ambassador and any Associated JYM Ambassador Marketer, comply with the obligations as set forth herein.
The Offer Terms and the Acceptance Terms may be modified by PHD at any time by the provision of written notice of such changes, whether directly or through changes posted on the JYM Ambassador Portal. Such modifications are fully binding JYM Ambassador if not terminated by JYM Ambassador as set forth in Section 13.
4. Compensation
The JYM Ambassador may earn, as a “Commission”, the associated fees as set forth in the Accepted Offer Terms (section 15). Determining whether an Actionable Event has occurred shall be in the sole but reasonable discretion of PHD, Advertiser based on PHD’s and Advertisers tracking systems and determination of Fraud as described Section 2(xv).
Unless otherwise set forth in the Accepted Offer Terms, JYM Ambassador shall be paid Commissions earned for a given calendar month within 30 days of the end of such calendar month. However, if all Commissions due to JYM Ambassador are less than $100, such shall be credited to the next calendar month and not paid until all outstanding Commissions due exceed $100 in aggregate. In order to receive Commissions, JYM Ambassador must provide PHD with a fully completed W-9 or other similar such documentation typically requested.
PHD will use all commercially reasonable efforts to notify JYM Ambassador of fraudulent
“Actionable Events” within 30 days of the “Actionable Event”.
JYM Ambassador must dispute, in writing, any issue in the calculation of Commissions due within 14 days of receiving a Commission payment or JYM Ambassador shall then be deemed to have waived any dispute. Notices of dispute must be provided by email to disputes@jymsupplementscience.com, or by any successor method that PHD indicates in writing as the applicable method.
5. JYM Ambassador and any Associated JYM Ambassador Marketer Advertising Practices and Restrictions
For any Engagement, subject to any greater restrictions in the applicable Accepted Offer Terms,
JYM Ambassador and any Associated JYM Ambassador Marketer may promote the applicable
JYMSUPPS by social media post, banner advertisements, button links and/or text links
(collectively hereafter the "Links"), and contextual links for popup advertisements and email that is compliant with all applicable laws. Subject to the prior written and continuing approval of PHD, promotional Links may contain the trade names, service marks, banners, buttons, and/or logos provided by PHD on the JYM Ambassador Portal for display on the websites used for JYM Ambassador and any Associated JYM Ambassador Marketer. Use of creative material that is not approved by PHD will disqualify any resulting events from being “Actionable Events”. If the applicable Accepted Offer Terms says, “WEB ONLY”, the foregoing materials are only allowed on the websites of JYM Ambassador and any Associated JYM Ambassador Marketer (and for avoidance of doubt cannot be used in email or in Links). If the applicable Accepted Offer Terms says, “EMAIL ONLY”, JYM Ambassador and any Associated JYM Ambassador Marketer (and its agents) must limit the related promotional activities to emailing to lists, which for the avoidance of doubt are limited only to those created, managed, and treated in compliance with all applicable law. If the applicable Accepted Offer Terms says, “CONTEXTUAL LINK ONLY”, then JYM Ambassador and any Associated JYM Ambassador Marketer may only promote JYMSUPPS using Links, using them to direct potential customers of JYMSUPPS directly to the website(s) designated in the Accepted Offer Terms.
In instances when an JYM Ambassador and any Associated JYM Ambassador Marketer is advertising the JYMSUPPS and collecting data or generating traffic or interest in the JYMSUPPS the Associated JYM Ambassador must adhere to:
a. Data Collection Practices Generally Any Leads, Contacts, and/or data JYM Ambassador and any Associated JYM Ambassador Marketer provides to Advertiser shall be obtained, collected, and compiled using methods that fully comply with all (federal and state) applicable laws, rules, and/or regulations, including, without limitation, the CAN SPAM Act, 15 U.S.C. § 7701 et seq. and all amendments thereto, all laws governing deceptive trade practices and/or online marketing and advertising, all other applicable federal, state, county, and local laws, ordinances, regulations and codes, and any additional guidance that Advertiser in good faith believes to be appropriate. JYM Ambassador and any Associated JYM Ambassador Marketer will obtain pre-approval in writing from Advertiser prior to making any changes to any material or requirements provided by Advertiser to Associated JYM Ambassador . Advertiser must approve in writing, in advance of its commercial use, all advertising and/or messaging that JYM Ambassador and any Associated JYM Ambassador Marketer uses to (a) deliver any Lead and/or Contact to
Advertiser, and/or (b) obtain, collect, and compile data that JYM Ambassador and any
Associated JYM Ambassador Marketer provides to Advertiser. JYM Ambassador and any Associated JYM Ambassador Marketer will be solely liable for any and all damages, losses, expenses, costs (including reasonable attorneys’ fees) and other liabilities arising out of or related to Advertising Practices, advertising, creative, and/or messaging not pre-approved in writing by Advertiser.
b. JYM Ambassador and any Associated JYM Ambassador Marketer represents and warrants, and shall ensure that all of its acts or omissions will:
1. Be and are aware of and comply with all applicable law at all times, including but not limited to the CAN-SPAM Act of 2003 (15 U.S.C. §7701, et seq.), the regulations of the FTC, the Consumer Legal Remedies Act (Cal. Civil Code §1750, et seq.), and Cal.
Business and Professions Code §17529.5.
2. Comply with the Accepted Offer Terms, including but not limited to those indicating restrictions on the locations which JYM Ambassador and any Associated JYM Ambassador Marketer (which includes its agents) may be associated with.
3. Review and conduct all activities in compliance with all third-party obligations, including but not limited to conducting all bulk emailing activities in compliance with all applicable service providers such as ISP and email service providers.
4. Not engage in “harvesting” or “phishing” for email addresses from any public or other sources such as, but not limited to, chat rooms and message boards, including community websites that prohibit such activity.
5. Not use false or misleading subject lines or headers, nor transmit e-mail that makes use of or contains invalid or forged headers, invalid or non-existent domain names or other means of deceptive addressing.
6. Not transmit e-mail that is relayed from any third party's mail servers without the permission of that third party, or which employs similar techniques to hide or obscure the source of the e-mail.
7. Not mail to anyone who has specifically unsubscribed to any previous e-mail campaigns.
8. Ensure any “opt out” procedure it provides or is required to provide properly functions.
9. Not send unsolicited text (SMS) messages to any cell phone.
10. Not engage in infringement of any patent, copyright, trademark, trade secret, rights of publicity or privacy, or any other proprietary right of any third party.
11. Not libel or slander any third party.
12. Not commit or otherwise permit any actual or alleged unfair business practices, false advertising, misrepresentation or fraud.
13. Not allow any false, deceptive, or misleading description, depiction or comparison of the JYMSUPPS with any competitive products(s) or services(s).
14. Not, directly or indirectly, link or otherwise associate the JYMSUPPS with any material which constitutes child pornography or matter which involves depictions of nudity or sexuality by an age inappropriate-looking performer (i.e., someone who looks younger than 18 years of age), or by a performer who is portrayed or made to appear to be a person under the age of 18 years of age by virtue of the script, make-up, demeanor, costuming, setting, etc.
15. Not directly or indirectly, link or otherwise associate the JYMSUPPS with any material in which persons under the age of eighteen are depicted in actual, simulated or suggestive sexual situations.
16. Not, directly or indirectly, link or otherwise associate the JYMSUPPS with any material displayed or transmitted in a way as to constitute harmful matter or indecent communications to minors.
17. Not, directly or indirectly, link or otherwise associate the JYMSUPPS with any material not fully in compliance with 18 U.S.C. Sec. 2257 et seq. or any similar statute, law, code or regulation of any country, province or jurisdiction worldwide.
18. Not, directly or indirectly, link or otherwise associate the JYMSUPPS with obscene material, including without limitation any material depicting bestiality, rape or torture.
19. Not, directly or indirectly, link or otherwise associate the JYMSUPPS with any material which can be construed as threatening, abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious to the reputation of any person or entity.
20. Not, directly or indirectly, link or otherwise associate the JYMSUPPS with any material constituting an infringement, misappropriation or violation of any person's intellectual property rights such as copyrights, trademark rights, rights of publicity, patent rights, personal property rights, privacy rights or other rights.
21. Not, directly or indirectly, link or otherwise associate the JYMSUPPS with any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive feature, regardless whether damage is intended or unintended, which may cause damage to any computer equipment, loss or corruption of data or programs or inconvenience to any person.
22. Not, directly or indirectly, link or otherwise associate the JYMSUPPS with any adware onto a user’s computer unless such user specifically approves and/or acknowledges the installation of such material.
23. Not, position the JYMSUPPS with any Craigslist, or any other similar site or job posting site, incentivized consumer path, or using stolen consumer information in an effort to drive an Actionable Event. This is considered fraudulent and will lead to all transactions for the current invoice period to be 100% invalid.
24. JYM Ambassador and any Associated JYM Ambassador Marketer agrees to make marketing changes on Non-Compliant Marketing messages or advertisements within 48 hours of receiving the request from JYMSUPPS.
25. JYM Ambassador and any Associated JYM Ambassador Marketer agrees to and will use no methods other than Compliant Marketing to market any of the JYMSUPPS products.
6. Protection of Protected Relationships During the Term, JYM Ambassador shall not, except as engaged by PHD herein, directly or indirectly engage, seek to engage, or provide services to the Protected Relationships of PHD. JYM Ambassador acknowledge that doing so represents a tortious interference with the agreements and prospective economic relationships between PHD and its Protected Relationships and may subject JYM Ambassador to separate tort claims and punitive damages.
At no time during the Term of this Agreement or afterward shall JYM Ambassador, directly or indirectly, divert any business opportunity or contract from PHD. At no time during the Term of this Agreement or afterward shall JYM Ambassador disparage PHD.
Except as needed for the provision of services to PHD pursuant to this Agreement and only to the degree permitted by PHD, JYM Ambassador (and its agents, including but not limited to the Associated JYM Ambassador ) shall not, directly or indirectly, reverse engineer, disassemble, decompile, replicate, alter, create derivative works from, distribute or provide to others, extract information from, translate, or attempt to derive the source code of the JYM software, except to the extent allowed under any applicable law. If applicable law permits such activities, any information so discovered must be promptly disclosed to PHD and shall be deemed to be the Confidential Information of PHD.
7. Confidentiality Except as set forth in this Section, Recipient will not disclose, distribute, copy or use any Confidential Information, without the prior written consent of the Discloser and then only to the extent specified in such consent. Confidential Information may be used only to the extent reasonably required for the performance of this Agreement hereof; provided however, that Recipient may only disclose the Confidential Information to those of its directors, officers, advisors, agents and employees (“Representatives”) who need to know such Confidential Information for the Purposes and who shall be bound by an agreement or other legally enforceable duty to preserve the confidentiality of the Confidential Information in a manner consistent with this Agreement. In addition, Recipient may authorize access to the Confidential Information to non-employees only after obtaining written consent from the Discloser to do so, and then only to those persons who have entered into appropriate confidentiality agreements, and Recipient will ensure compliance with the terms of such agreements. The Recipient will be responsible for any breach of this Agreement by it or its Representatives, whether or not such Representatives are associated with the Discloser at the time of the breach.
The obligations of confidentiality set forth hereunder do not extend to any item of Confidential
Information which (i) is publicly known at the time of its disclosure, (ii) is lawfully received by a Recipient from a third party not under a confidential obligation to Discloser, (iii) is published or otherwise made known to the public by the Discloser of Confidential Information, (iv) was generated independently by the receiving Recipient without reliance on Confidential Information (with supporting documentation evidencing such independent generation), or (v) was received either prior to the effectiveness of this Agreement or was received for the first time only after the termination or expiration of this Agreement.
8. Maintenance of Confidentiality. Recipient agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Recipient shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no event less than reasonable measures. Recipient shall reproduce Discloser’s proprietary rights notices on any copies, in the same manner in which such notices were set forth in or on the original. Recipient shall immediately notify Discloser upon discovery of any loss or unauthorized disclosure of any Confidential Information. In the event that the Recipient receives a request to disclose all or any part of the Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or governmental body, or pursuant to applicable regulatory or professional accounting standards, Recipient agrees to (i) immediately notify the Discloser of the existence, terms and circumstances surrounding such a request, so that the Discloser may seek an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the disclosed information, and (ii) only disclose that portion of the Confidential Information which counsel advises is legally required to be disclosed. At all times, the Discloser shall retain sole ownership of its Confidential Information.
9. Model Release In consideration of my engagement as a JYM Ambassador , and for other good and valuable consideration herein acknowledged as received, I hereby grant the following rights and permissions to PHD, his/her heirs, legal representatives, and assigns, those for whom PHD is acting, and those acting with his/her authority and permission. They have the irrevocable, perpetual and unrestricted right and permission to take, use, re-use, publish, and republish posts by me promoting JYMSUPPS with photographic portraits or pictures of me or in which I may be included, in whole or in part, or composite, without restriction as to changes or alterations, in conjunction with my own or a fictitious name, or reproductions thereof in color or otherwise, made through any medium at their studios or elsewhere, and in any and all media promoting JYMSUPPS now or hereafter known, specifically including but not limited to print media and distribution over the internet for illustration, promotion, art, editorial, advertising, trade, or any other purpose whatsoever. I specifically consent to the digital compositing of the portraits or pictures, including without restriction any changes or alterations as to color, size, shape, perspective, context, foreground or background. I also consent to the use of any published matter in conjunction with such photographs. I hereby waive any right that I may have to inspect or approve the finished product or products and the advertising copy or other matter that may be used in connection with them or the use to which they may be applied.
I hereby release, discharge, and agree to hold harmless PHD, his/her heirs, legal representatives, and assigns, and all persons acting under his/her permission or authority or those for whom he/she is acting, from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form, whether intentional or otherwise, that may occur or be produced in the taking of such photographs or in any subsequent processing of them, as well as any publication of them, including without limitation any claims for libel or violation of any right of publicity or privacy. I hereby warrant that I am of full age and have the right to contract in my own name. I have read the above authorization, release, and agreement, prior to its execution, and I am fully familiar with the contents of this document. This document shall be binding upon me and my heirs, legal representatives, and assigns.
10. Return of Materials At the request of the Discloser, Recipient will promptly return to the Discloser or destroy any written or electronic Confidential Information and all physical media on which Confidential Information was received from the other Recipient, including any copies thereof, with a letter confirming that the Confidential Information has in no way been reproduced or copied or that all copies have been returned and that none of the Confidential Information was furnished to anyone except in accordance with this Agreement. The Recipient and its
Representatives shall not retain any copies, extracts or other reproductions, in whole or in part, of such written or electronic material.
11. Limits on Liability; Disclaimers. EXCEPT FOR A MATTER INDEMNIFIED FOR
UNDER SECTION 11, OR A BREACH OF SECTION 6, OR MALICIOUS ACTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION,
ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS
OR LOSS OF BUSINESS OR DAMAGE TO REPUTATION, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PHD MAKES NO REPRESENTATIONS OR EXPRESS OR IMPLIED WARRANTIES WITH
RESPECT TO THE JYMSUPPS (INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF
PERFORMANCE, DEALING, OR TRADE USAGE). PHD MAKES NO REPRESENTATION
THE OPERATION OF ITS WEBSITE(S) WILL BE UNINTERRUPTED OR ERROR-FREE,
AND PHD WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY
INTERRUPTIONS OR ERRORS CAUSED BY FAILURE OF PERFORMANCE, ERROR
OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION,
TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR
DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF
RECORD, WHETHER FOR REACH OF CONTRACT, TORTIOUS BEHAVIOR,
NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. PHD MAKES NO
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY INFORMATION
DELIVERED HEREUNDER (INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, WHETHER ARISING BY LAW, CUSTOM OR CONDUCT) OR AS
TO THE ACCURACY OR COMPLETENESS OF INFORMATION REGARDING
JYMSUPPS AND PHD SHALL NOT HAVE ANY LIABILITY RESULTING FROM JYM
AMBASSADOR S (OR ITS AGENTS) USE OR ANY THIRD PERSON'S USE OF THE INFORMATION.
12. Indemnification (a) JYM Ambassador agrees to indemnify, hold harmless and defend
PHD , and its customers, affiliates, employees, agents, shareholders, officers and directors (collectively the “PHD Indemnities”) from and against any and all third party claims of loss, liability, suits, damages, fines, costs or expense, including reasonable attorneys’ fees, and all other expenses of litigation (including expert witness fees and court costs) asserted against PHD Indemnities as a result of any claim of: (i) infringement by JYM Ambassador (or the Associated JYM Ambassador Marketers) of any patent, copyright, trademark, trade secret, rights of publicity or privacy, or any other proprietary right of any third party; (ii) libel or slander by JYM Ambassador (or the Associated JYM Ambassador Marketers); (iii) the violation or alleged violation of any applicable law, statute or governmental ordinance by JYM Ambassador (or the Associated JYM Ambassador Marketers); (iv) any actual or alleged unfair business practices, false advertising, misrepresentation or fraud by JYM Ambassador (or the Associated JYM Ambassador
Marketers); (v) any false, deceptive, or misleading description, depiction or comparison of the JYMSUPPS by JYM Ambassador (or the Associated JYM Ambassador Marketers) with any competitive products(s) or services(s); (vi) any actual or alleged personal injury or actual or alleged property damage arising from or in relation to the services or products of JYM Ambassador (or the Associated JYM Ambassador Marketers); (vii) any breach or alleged breach of a representation or warranty or any other provision of this Agreement by JYM Ambassador (or the Associated JYM Ambassador Marketers); (viii) which relates to any issues of product or service liability from use of the JYM Ambassador (or the Associated JYM Ambassador Marketers) products or services; or (ix) breach by JYM Ambassador (or the Associated JYM Ambassador Marketers) of any agreement with any third party.
PHD agrees to indemnify, hold harmless and defend JYM Ambassador , and its employees, agents, shareholders, officers and directors from and against any and all third party claims of loss, liability, suits, damages, fines, costs or expense, including reasonable attorneys’ fees, and all other expenses of litigation (including expert witness fees and court costs) asserted against the other as a result of any claim of: (i) infringement by the JYMSUPPS of any patent, copyright, trademark, trade secret, rights of publicity or privacy, or any other proprietary right of any third party; (ii) libel or slander by PHD; (iii) the violation or alleged violation of any applicable law, statute or governmental ordinance by PHD; (iv) any actual or alleged unfair business practices, false advertising, misrepresentation or fraud by PHD; (v) any breach or alleged breach of a representation or warranty or any other provision of this Agreement; or (vi) breach by PHD of any agreement with any third party.
This Section 12 will not be construed to limit or exclude any other claims or remedies that a Party or its respective affiliates, successors and assigns (and its and their respective directors, employees and agents) may assert.
(b) Promptly after receipt by the other of notice of the commencement of any action or claim, the indemnifying Party shall notify the indemnified Party of the commencement thereof. The indemnifying Party shall have the right to assume and control the defense, including the selection of counsel; provided, however, no settlement may be made that results in restrictions or obligations on the part of an indemnified Party without the written consent of the indemnified Party.
13. Termination and Survival Either Party may terminate this Agreement for convenience at any time, upon 5 days prior written notice to the other Party. In addition, PHD may terminate any Engagement at any time. In the event PHD modifies Offer Terms and Accepted Offer Terms, JYM Ambassador may terminate the modified Engagement, but must do so within 1 business day of such modification. All sections of this Agreement shall survive termination of the Agreement between the Parties and shall be binding upon their heirs, successors and assigns.
14. Remedies Each Party acknowledges that a violation of this Agreement would cause irreparable harm to the other Party for which no adequate remedy at law exists and each Party therefore agrees that, in addition to any other remedies available, a Party will be entitled to seek injunctive relief to enforce the terms of this Agreement. In the event a dispute arises under this
Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and costs in addition to all other remedies available to the Party under this Agreement, at law or otherwise.
15. Accepted Offer Terms For every Actionable Event related to JYMSUPPS for which JYM
Ambassador and any Associated JYM Ambassador Marketer has been Engaged, JYM Master
Ambassador shall earn, as a “Commission”, the associated fees below, as a JYM Ambassador .
Miscellaneous The terms of this Agreement may be modified or waived only by a separate writing signed by the Parties expressly so modifying or waiving such terms. No failure or delay by any Party in exercising any right, power or privilege shall operate as a waiver, nor shall any single or partial exercise preclude any other or further exercise of any right, power or privilege hereunder. The unenforceability of any provision of this Agreement will not affect the validity or enforceability or any other provision. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and assigns. PHD may assign this Agreement to any of its affiliates, or to an entity in connection with the sale, acquisition, or merger of its business or assets. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California without giving effect to any conflicts or choice of law’s provisions that would cause the application of the domestic substantive laws of any other jurisdiction. The Parties agree that any disputes relating to this Agreement will be adjudicated exclusively by federal of state courts located in Los Angeles County, California. This Agreement and the JYM Ambassador Terms contains the entire agreement between the Parties with respect to the subject matter hereof, and neither party shall have any rights to the trade secrets or proprietary information of the other Party except as set forth herein. In the event of a conflict between this Agreement and the terms incorporated from the JYM Ambassador Terms, the terms most protective or favorable to PHD shall supersede and take precedence. This Agreement may be executed by facsimile or electronic transmission and in counterparts, with each an original and both of which together shall constitute one and the same instrument.
