TERMS AND CONDITIONS FOR AFFILIATE MARKETING AGREEMENT - WHOLESALE
Date Last Updated: October 23, 2020
The Terms and Conditions below govern Affiliate’s marketing of the Products. Capitalized terms used in these Terms and Conditions but not defined below are defined in the Affiliate Marketing Agreement or other agreement with 360 governing Affiliate’s marketing of the Products and that references and incorporates these Terms and Conditions (together, referred to as the “Agreement”).
Whereas 360 owns and licenses numerous online education and training courses and markets such courses through its proprietary websites and other means; Whereas Affiliate markets and offers for sale through its proprietary websites and other means various products and services including online education and training courses; and Whereas Affiliate desires to market certain 360 online training courses and related course materials and services, and 360 desires Affiliate to market and offer to sell such courses through Affiliate’s websites and other means. Now, therefore, in consideration of the mutual promises and conditions herein contained, the parties hereby agree as follows:
“Affiliate Purchase Price” means the price for each Product as set forth in the Agreement that shall be deducted from any related Commissionable Revenues before payment of commissions as specified in Section 4.1.
“Affwebs” means Affiliate website domains used in connection with this Agreement to attract Referrals as specified in the Agreement.
“Annual License Fee” means the non-refundable annual fee, if any, that is set forth in the Agreement for Affiliate’s access to LMS360.
“Annual License Fee Threshold” means the combined amount of Commissionable Revenues and Net Qualified Manual Referral Revenues as set forth in the Agreement that if achieved by Affiliate, would entitle Affiliate to a waiver of the Annual License Fee pursuant to Section 3.3.
“Commissionable Revenues” are (1) gross sales amounts of Products purchased by all Referrals except Manual Referrals, net of any discounts from Retail Prices of Products, less (2) the sum of the following items (i) through (iii) as applicable: (i) sales tax, (ii) credit card chargeback fees, and (iii) refunds and credit card chargebacks.
“Commission Rate” for Net Qualified Manual Referral Revenues is as follows: (a) Should 360 enter into a direct, committed contract one year or more in length with a Qualified Manual Referral, Affiliate will be entitled to a 20% Commission Rate on the Net Qualified Manual Referral Revenues attributable to the initial contract value; (b) Should 360 transact with a Qualified Manual Referral without entering into a direct, committed contract one year or more in length, Affiliate will be entitled to a 15% Commission Rate on the Net Qualified Manual Referral Revenues attributable to the transaction.
“Damages” means any and all claims, actions, demands, liabilities, losses, expenses or damages, including reasonable attorneys’ fees.
“LMS360” collectively means 360’s web-based storefront and online training delivery, enrollment, and testing applications and systems.
“Manual Referral” means any Referral that does not desire to purchase Products through the LMS360 but prefers to purchase directly from 360 pursuant to a different process and for which Affiliate contacts 360 by phone, email or other method to refer such Referral to 360.
“Minimum Price” means the lowest price at which Affiliate may market, promote, advertise, or offer to sell a Product as set forth for each Product in the Agreement.
“Net Qualified Manual Referral Revenues” are (1) gross sales amounts of Products purchased by Qualified Manual Referrals, net of any discounts from Retail Prices of Products, less (2) the sum of the following items (i) through (viii) as applicable: (i) sales tax, (ii) third party royalties associated with Products, (iii) cost of materials issued to Referrals for Products, (iv) cost of shipping such materials to Referrals, (v) credit card processing fees, (vi) regulatory filing fees associated with each Product enrollment or completion, (vii) credit card chargeback fees, and (viii) refunds and credit card chargebacks.
“Non-Qualified Manual Referral” is a Manual Referral that is a current or previous customer of 360 or has been involved in any communications or negotiations with 360 for services in the previous 12 months.
“Products” means those online training courses (“Course”), bundles of Courses, Course bundles and libraries, and related Course materials and services owned or licensed by 360 as specified in the Agreement that are authorized by 360 for Affiliate to market under this Agreement and which may be changed from time to time by 360 pursuant to Section 2.2.4.
“Qualified Manual Referral” is a Manual Referral that is not a current or previous customer of 360 nor has been involved in any communications or negotiations with 360 for services in the previous 12 months and has been approved by 360 pursuant to Section 2.2.5.
“Referrals” means individuals, businesses, or other entities and enterprises that may be interested in purchasing Products pursuant to the activities and efforts of Affiliate under this Agreement.
“Retail Price” means the list price for Products established by 360 as set forth in the Agreement which may be changed from time to time by 360 pursuant to Section 2.2.3.
“Set-Up Fee” means the non-refundable fee, if any, that is set forth in the Agreement for the customization of LMS360 specific to Affiliate as described in Section 2.2.1 below (“Storefront Set-Up Services”) to allow Referrals to purchase, access, and utilize Products.
2.1 Appointment. Subject to the terms and conditions of this Agreement, 360 appoints Affiliate as a non-exclusive, authorized marketing representative of Products, and Affiliate accepts such appointment.
2.2 360 Obligations. 360 will work with Affiliate to establish a storefront to which Referrals may be directed to purchase Products. Subject to the terms and conditions of this Agreement, 360 will provide the following to or on behalf of Affiliate:
2.2.1 Storefront Set-Up. Promptly after the Effective Date or the receipt by 360, if applicable, of any Set-Up Fee, whichever is later, 360 will provide the following Storefront Set-Up Services: (i) customize LMS360 to allow Referrals to purchase, access, and utilize Products, (ii) customize an internet link to LMS360 for Affwebs; and (iii) provide log-in credentials to LMS360.
2.2.3 Pricing Changes. Within 10 days of Affiliate’s written request and subject to the discounts, if any, permitted herein, 360 will implement changes to prices for Products that are displayed to Referrals in LMS360. 360 reserves the right to adjust the Retail Price of any Product at any time by giving at least 10 days prior notice to Affiliate.
2.2.4 Product Changes. For regulatory, licensing, and other reasons, 360 reserves the right to discontinue providing one or more Products specified in the Agreement upon written notice to Affiliate. In such an event, 360 shall use commercially reasonable efforts to promptly replace any discontinued Product with a similar, comparable, or substitute Product if and when available.
2.2.5 Determination of Qualified Manual Referral. For each Manual Referral directed to 360 by Affiliate pursuant to Section 2.3.1, 360 will notify Affiliate within seventy-two (72) hours if such Manual Referral is a Qualified Manual Referral or a Non-Qualified Manual Referral. 360, in its sole discretion will have the option to enter into, or decline to enter into, an agreement with any Qualified Manual Referral. In the event 360 declines, for any reason, to enter into an agreement with any Qualified Manual Referral, 360 will have no obligation to Affiliate under this Agreement or otherwise with respect to such Qualified Manual Referral.
2.2.6 No Other Rights. No other rights or licenses are granted to Affiliate under this Agreement and this Agreement does not grant Affiliate any right to resell or otherwise distribute any 360 Products, nor any right to use any 360 Trademarks (defined below), nor any right to provide any services related to any 360 Product. It is understood that Affiliate is acting as a finder only and will have no authority to enter into any agreements, obligations or commitments on 360’s behalf, or to negotiate the terms of a Referral’s or Manual Referral’s agreements with 360. Affiliate will indemnify, defend and hold harmless 360 from and against all claims, actions, lawsuits, damages, awards or judgments arising out of any such agreements, obligations or commitments undertaken by Affiliate or the breach thereof.
2.3 Affiliate Obligations
2.3.1 Promotion and Marketing of Products. Affiliate will use commercially reasonable efforts, subject to the terms, conditions, and limitations contained herein in this Agreement, to attract Referrals and promote, market, advertise, and offer for sale such Products to Referrals through its Affwebs or by directing to 360 any Manual Referrals.
2.3.2 Storefront Set-Up.
184.108.40.206 Affiliate will work with 360 to establish a storefront to which Referrals may be directed to purchase Products. Affiliate will place the link to the LMS360 supplied by 360 pursuant to Section 2.2.1 into Affwebs. Affiliate will obtain prior written approval from 360 before using any additional or new website domains other than Affwebs to market or offer to sell Products, or to redirect or link to any website that markets or sells Products or other 360 online training Products. In addition, Affiliate will obtain prior written approval from 360 before using, duplicating or copying any aspect of 360’s websites in Affwebs or otherwise.
220.127.116.11 Affiliate will promptly pay to 360 any applicable Set-Up Fee.
2.3.3 Operation of Affwebs. Affiliate is prohibited from (i) using any claims, advertising, or verbiage prohibited by any governing body, regulatory agency, or law pertaining to Products on Affwebs or any other Affiliate sales or marketing materials; (ii) bidding on branded keywords set to phrase match “learn2serve”, “osha campus”, “360 training”, or any other 360 trademarks, service marks (whether registered or not), domain names and social networking identifiers (“360 Trademarks) that may be added from time to time (y) upon written notice to Affiliate or (z) upon 360 providing Affiliate with a 360 website that reflects the most current 360 Trademarks; and/or (iii) using any internet spamming tools or methods, including but not limited to: (a) using hidden text or hidden links; (b) using cloaking or sneaky redirects; (c) sending automated queries to Google or other search providers; (d) loading web pages with irrelevant keywords; (e) creating multiple web pages, subdomains, or domains with substantially duplicate content; (f) creating pages with malicious behavior, such as phishing or installing viruses, trojans, or other malware; and/or (g) using "doorway" pages created just for search engines, or other "cookie cutter" approaches such as programs with little or no original content. 360 will notify Affiliate of the 360 website that specifies the current marketing and regulatory requirements associated with Products. Affiliate and Affwebs must comply with all such requirements.
2.3.4 Pricing. Affiliate will not, at any time, market, promote, advertise, or offer to sell Products at a price less than the Minimum Price. In addition, Affiliate must, for at least seven consecutive days each calendar month, offer to sell Products at Retail Prices.
2.3.5 Affiliate will (i) conduct Affiliate’s business in a manner that reflects favorably at all times on 360 and its good name, goodwill and reputation; (ii) not engage in any deceptive, misleading or unethical practice; (iii) not make false or misleading representations regarding 360, LMS360, or Products; (iv) not publish or employ or cooperate in the publication or employment of any false, misleading, or deceptive, obscene, or libelous material in the promotion, marketing, or advertisement of Products ; and (v) not make any representations, warranties or guarantees to Referral, Manual Referrals or the trade generally with respect to 360 which are inconsistent with those contained in any marketing literature provided by 360. Affiliate will comply at all times with all applicable laws and regulations in the performance of its rights and responsibilities hereunder. Affiliate will act and perform with commercially reasonable efforts in the best interest of 360 with respect to the Products and at no time do, cause or permit to be done, published or said, any information, act or thing which is or may be detrimental to the best interests or business reputation of 360. This provision will survive the termination of this Agreement consistent with the survival period of Section5.1.
3.1 License Grant. Subject to the terms and conditions of this Agreement, 360 grants to Affiliate during the term of this Agreement a non-exclusive, non-transferable and non-sublicenseable license to connect to the LMS360 pursuant to the terms herein. As between the parties and except for the limited express license granted to Affiliate under this Agreement, 360 will retain ownership of all right, title and interest, including all related intellectual property rights, in and to the Products, LMS360, 360 Trademarks, any data and content contained therein, and any underlying source code. Affiliate will not directly or indirectly through a third party do any of the following: (i) copy the LMS360 or any part thereof; (ii) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code from the LMS360; (iii) write or develop any derivative or other software program(s) based in whole or in part, upon the LMS360; (iv) provide access to the LMS360, in whole or in part to any third party; or (v) represent that Products or LMS360 are owned or controlled by Affiliate.
3.3 Annual License Fee. 360 will invoice Affiliate on or around the commencement of each annual period during the term of this Agreement for the Annual License Fee, and Affiliate will pay such invoice within 30 days of the invoice date. The first annual period hereunder will commence on the Effective Date. Notwithstanding the foregoing, if the sum of Commissionable Revenues and Net Qualified Manual Referral Revenues generated pursuant to this Agreement meet or exceed the Annual License Fee Threshold during any such annual period, 360 will waive the Annual License Fee for the subsequent annual period.
4.1 Commissions on Non-Manual Referrals. Affiliate will earn a commission for Commissionable Revenues generated each month. Such commission will be calculated monthly as (1) Commissionable Revenues generated during the month less (2) the sum of all Affiliate Purchase Prices for each Product sold that generated such Commissionable Revenues.
4.2 Commissions on Qualified Manual Referrals . Affiliate will earn a commission on Net Qualified Manual Referral Revenues. Such commission will be calculated monthly as (1) the product of (i) the applicable Commission Rate and (ii) Net Qualified Manual Referral Revenues during the month.
4.3 Other Commission Conditions. Affiliate will not earn any commissions with respect to sales of Products made to Non-Qualified Manual Referrals. All references to “months” in this Agreement are calendar months unless otherwise stated. Affiliate acknowledges that the commissions specified herein are the only compensation Affiliate will receive in connection with its efforts pursuant to this Agreement. Affiliate will be responsible for all of its own expenses in connection with any activities under this Agreement unless 360 agrees in writing to be responsible for such expenses before they are incurred.
4.4 Payment of Commission. 360 will pay to Affiliate commissions earned pursuant to Section 4.1 by the end of the month that follows the month in which such commissions were earned. 360 will pay to Affiliate commissions earned pursuant to Section4.2 by the end of the month that follows the month in which Qualifying Manual Referral paid 360. Notwithstanding the foregoing, 360 will not make any commission payments to Affiliate if the commissions due to Affiliate are less than $100.00. Payment of such commissions will be deferred until (i) the total commission due to Affiliate meets or exceeds $100.00. 360 may offset any outstanding amounts that Affiliate owes 360, whether arising from this Agreement or otherwise, from any commissions payable to Affiliate hereunder.
5.1 Exclusivity. During the term of this Agreement and for a period of one year after termination of this Agreement, Affiliate will not market, promote, sell, or represent any online training products that are competitive with Products. Notwithstanding anything to the contrary herein, this exclusivity will not survive termination of this Agreement (i) if this Agreement is not renewed by 360 pursuant to Section 6.1 or terminated by 360 pursuant to Section 6.2.2; or (ii) if this Agreement is terminated by Affiliate pursuant to Section 6.2.1.
6. TERM AND TERMINATION
6.1 Term. The Agreement will commence on the Effective Date and continue in full force and effect, unless earlier terminated in accordance with the express provisions of the Agreement, for period of time specified in the Agreement (“Initial Term”) and thereafter automatically renew for successive one-year terms (each a “Renewal Term”) without notice unless terminated by written notice by either party at least 90 days before the end of such Initial Term or Renewal Term. The “Initial Term” and each “Renewal Term” together are referred to herein as the term of the Agreement.
6.2.1 Either party may terminate this Agreement immediately upon written notice to the other party if the other party (i) is declared insolvent or bankrupt; (ii) ceases operations; or (iii) commits a material breach that is not cured by such party within 30 days after being provided written notice of such breach.
6.2.2 Either party may terminate this Agreement for convenience upon 90 days written notice to the other party.
6.2.3 360 may terminate this Agreement immediately upon written notice to Affiliate if Commissionable Revenues are $0 or less during any 90-day period during the term of this Agreement.
6.3 Effect of Termination.
6.3.1 Termination of this Agreement will not extinguish any financial obligations owed by the parties before the date of termination and will not affect either party’s rights or obligations that expressly or by their nature continue and survive. 360 will continue to provide access to the Products through the LMS360 to Referrals that purchased Products on or before any termination date through the earlier of (i) the date the Referral completes the Course; or (ii) the date the Course expires.
6.3.2 Upon termination this Agreement, each party will either return or destroy any and all Confidential Information of the other party, and all copies thereof, at the direction of the owning party and provide written proof of same upon the owning party’s reasonable request. Except as otherwise set forth in this Agreement, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party at law or in equity.
6.4 Remedies. The parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Sections 2.3.3, 3.1, 5, and 8 or any other provisions of this Agreement which may cause either party irreparable injury or may be inadequately compensable in monetary damages. Accordingly, each party is entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.
7. DISCLAIMER, LIMITS OF LIABILITY, AND INDEMNIFICATION
7.1 Disclaimer of Warranties. The Products, the LMS360, the Storefront Set-Up Services, and all other materials and services are provided "as is" without warranty of any kind. 360 DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. 360 DOES NOT WARRANT THAT THE PRODUCTS, THE LMS360, THE STOREFRONT SET-UP SERVICES, AND/OR ALL OTHER MATERIALS AND SERVICES PROVIDED BY 360 WILL MEET AFFILIATE’S OR ITS REFERRALS’ NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE PRODUCTS, THE LMS360, THE STOREFRONT SET-UP SERVICES, AND ALL OTHER MATERIALS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
7.2 Limitations of Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. To the extent allowed by law, and except for the parties’ obligations under Section 7.3 and breaches of Sections 2.3.3, 3, 5, and 8, in no event will a party’s aggregate liability to the other party or to any third party, from all causes of action and theories of liability, exceed the commissions earned by Affiliate hereunder during the six-month period before the date the actual or alleged cause of action arose. Multiple claims will not expand this limitation.
7.3.1 360 Indemnity. 360 will indemnify, defend and hold harmless Affiliate, its employees, directors, successors, and assigns from and against any third party Damages finally awarded against Affiliate, or agreed upon by 360 in settlement, to the extent based upon a claim that (i) Products or LMS360, as provided by 360 and marketed by Affiliate in accordance with this Agreement, infringes such third party’s patents, copyright, or trademark; or (ii) Products do not comply with regulatory requirements.
7.3.2 Affiliate Indemnity. Affiliate will indemnify, defend and hold harmless 360, its employees, directors, successors, and assigns from and against any third party Damages finally awarded against 360, or agreed upon by Affiliate in settlement, to the extent such is claim based upon Affiliate’s breach of its obligations and covenants specified in this Agreement.
7.3.3 Indemnity Process. The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 7 will not relieve the indemnifying party of its obligations under this Section 7, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such matter. The indemnifying party will have sole control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of a claim effected without its prior express written consent (which consent will not be unreasonably withheld or delayed). The indemnifying party will not enter into any settlement of any claim that would constitute an admission of guilt or liability on the part of the indemnified party, without the indemnified party’s prior express written consent (which consent will not be unreasonably withheld or delayed. The indemnified party may engage counsel of its choice at its own expense.
8. CONFIDENTIAL INFORMATION
8.1 Confidential Information. Each party acknowledges on its own behalf, that during the term of this Agreement it (“Receiving Party”) may receive from or on behalf of the other party (“Disclosing Party”) nonpublic information, including, without limitation, business, financial, and technical information reasonably considered by the Disclosing Party to be valuable and proprietary (“Confidential Information”). Confidential Information also includes the terms and conditions of this Agreement and may include proprietary or confidential information of third parties that have disclosed such information to the Disclosing Party in the course of its business. Confidential Information will not include information that the Receiving Party can prove: (i) was previously rightfully in the Receiving Party’s possession (in written or other recorded form) with no obligation to maintain confidentiality; (ii) was developed by or for Receiving Party independently of, and without use of or reference to, Disclosing Party’s Confidential Information; (iii) was received from a third party who is not prohibited from disclosing the information to the Receiving Party by a contractual, legal or fiduciary obligation; or (iv) is or became available to and widely known by the public as to be reasonably regarded as public information without breach of this Agreement by the Receiving Party.
8.2 Use and Nondisclosure Obligations. During the term of this Agreement and for three years after its termination, the Receiving Party will: (i) hold the Disclosing Party’s Confidential Information in confidence and use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses for its own Confidential Information of like importance but in no event using less than a reasonable standard of care; (ii) not divulge any such Confidential Information of the Disclosing Party or any information derived therefrom to any third person except as authorized hereunder; (iii) not make any use of the Disclosing Party’s Confidential Information except to carry out its rights and obligations under this Agreement; and (iv) not copy the Disclosing Party’s Confidential Information (except as necessary to carry out its rights and obligations under this Agreement). Any personnel of Receiving Party given access to the Disclosing Party’s Confidential Information must have a legitimate “need to know” and must have agreed, either as a condition of employment, representation or in a written agreement in order to obtain the Disclosing Party’s Confidential Information, to be bound by terms and conditions no less protective of the Disclosing Party than this Section 8. The Receiving Party will be liable for any of its personnel’s failure to comply with such obligation. If the Receiving Party suffers any unauthorized disclosure, loss of, or inability to account for Disclosing Party’s Confidential Information, the Receiving Party will promptly notify and cooperate with the Disclosing Party, and take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the damage.
8.3 Authorized Disclosures. The Receiving Party may disclose the Disclosing Party’s Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body. To the extent not prohibited by law, the Receiving Party will give reasonable notice to the Disclosing Party to allow the Disclosing Party to contest such order or requirement or seek confidentiality treatment. Each party may disclose the terms and conditions of this Agreement: (i) on a confidential basis to legal or financial advisors; (ii) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (iii) on a confidential basis in connection with any financing transaction or due diligence inquiry.
9. GENERAL PROVISIONS
9.1 Governing Law. This Agreement will be governed and interpreted in accordance with the laws of the state of Texas, exclusive of its choice of law rules, and where applicable, the laws of the United States of America.
9.2 Jurisdiction and Venue. Any action brought in connection with this Agreement will be brought exclusively in the county, district, state and federal courts in Austin, Travis County, Texas, and each party hereby consents to personal jurisdiction over it by such courts.
9.3 Non-Solicitation. Neither party will directly or indirectly solicit or encourage any employee to leave the other party’s employment during the term of this Agreement and one year thereafter. The provisions of this Section will not prohibit employment of a person who has responded to an advertisement in media circulated to the general public, including a posting on a party’s website.
9.4 Notices. All notices required or permitted to be given by one party to the other under this Agreement will be in writing and will be deemed to be delivered to the other party: (i) upon the date of receipt, if hand delivered, (ii) two business days (five business days for international addresses) after deposit in the U.S. mail if mailed to the other party by registered or certified mail, properly addressed, postage prepaid, return receipt requested, (iii) one business day (two business days for international addresses) after deposit with a national express courier for next business day delivery, or (iv) upon the date of electronic confirmation of receipt of a facsimile or email transmission, to the party’s address set forth in this Agreement or to such other address as designated by the receiving party in writing.
9.5 Assignment. Affiliate will not have any right or ability to assign or transfer (whether by merger, operation of law or otherwise) this Agreement, in whole or in part, including without limitation any rights, obligations or benefits under this Agreement without the prior written consent of 360 (and any such attempt will be void), such consent not to be unreasonably withheld. A change of control of Affiliate will be deemed an assignment for purposes of this Section. 360 may assign or transfer its rights and delegate its obligations under this Agreement, without Affiliate’s consent, in connection with (a) any merger, consolidation, sale of all or substantially all of 360’s assets, business, or capital stock, reorganization, or any similar transaction (whether by merger, operation of law or otherwise); (b) the sale, transfer or exchange of a majority interest by its shareholders; or (c) its merger with or into the third party. Subject to the foregoing, this Agreement will be bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.6 Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. Any waiver of any right or provision herein will not be effective unless in writing and signed by authorized representatives of both parties. The waiver or failure of either party to exercise any right provided herein will not be deemed a waiver of any further right under this Agreement.
9.7 Severability. In the event that any provision of this Agreement is determined to be invalid or unenforceable by a body of competent jurisdiction, that provision will be limited or severed only as necessary to eliminate such invalidity or unenforceability, and the other provisions of this Agreement will remain in full force and effect.
9.8 Relationship. The parties are independent contractors, and this Agreement is not intended to be nor will it be construed as a joint venture, association, partnership, or other form of a business organization or agency relationship. Neither party may represent that it has the authority to assume or create on an obligation on behalf of the other.
9.9 Modification of Terms and Conditions. 360 reserves the right, in its discretion, to change, modify, add to, or remove portions of these Terms and Conditions (collectively, “Changes”), at any time. The date that Changes were last made are indicated at the top of the page and such revisions are effective as of the “Last Updated” date. 360 will notify Affiliate of Changes by posting a revised version of these Terms and Conditions incorporating the Changes to 360’s website. Affiliate’s continued purchase, use of or access to the Products following the posting of these Terms and Conditions incorporating the Changes on the 360 website will mean that Affiliate accepts and agrees to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the 360 website.
9.11 Entire Agreement; Amendments. This Agreement constitutes the entire Agreement and understanding between the parties and supersedes all prior and contemporaneous agreements, written or oral, between 360 and Affiliate with respect to the subject matter hereof. Any such prior agreements are hereby terminated with immediate effect. This Agreement and each of its provisions will be binding upon the parties and except as otherwise provided in these Terms and Conditions, no addition to or change in the Agreement will be effective or binding on either of the parties unless agreed to in writing by an authorized representative of Affiliate and the CEO, CFO or COO of 360. In the event of a conflict between these Terms and Conditions and the terms in the Agreement that reference and incorporate these Terms and Conditions, the terms in the Agreement that reference and incorporate these Terms and Conditions will prevail.
9.12 Headings and Captions; Construction; Counterparts. Section headings are used for convenience only and will in no way affect the construction or interpretation of this Agreement. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof will not be construed for or against either party.