Modified on: December 31, 2015
Subject to this Agreement, the Terms, and any and all rules, regulations, policies, or procedures that are developed, modified, or enacted by AdverBid from time to time, AdverBid hereby grants you the limited and revocable right of use, access, and participation in the Program. The Program gives users the ability to participate as an Advertiser and distribute campaigns, advertisements, offers, and/or promotional materials across the Internet on various websites for a fee. The Program also gives certain users the ability to participate as a Publisher (website owner), Publishers distribute and/or list advertisements, campaigns, offers, and/or promotional materials on their site for a fee. Participation in the Program as an Advertiser or Publisher is at your own risk.
Upon accessing the AdverBid Network or participating, registering, and/or enrolling in the Program, You affirmatively represent and warrant that You are at least 18 years of age and hereby agree to be bound by this Agreement and the policies and procedures of AdverBid. Advertiser is solely responsible for all: (a) ad targeting options and keywords (collectively "Targets") and all ad content, ad information, ad images, and ad URLs ("Creative"), whether generated by or for Advertiser; and (b) web sites, services and landing pages which Creative links or directs viewers to, and advertised services and products (collectively "Services"). Advertiser shall protect any password(s) and take full responsibility for Advertiser’s own, and third party, use of any Advertiser accounts. You understand and agree that ads may be placed on any content or property provided by AdverBid ("AdverBid Property"), and/or any other content or property provided by a third party (“Partner”) upon which AdverBid places ads (“Partner Property”)unless You opt out of such Partner Property placement in the manner specified by AdverBid. You authorize and consent to all such placements. With respect to AdverBid online auction-based advertising, AdverBid may send Advertiser an email notifying Advertiser that it has 72 hours ("Modification Period") to modify keywords and settings as posted. The account (as modified by Advertiser, or if not modified, as initially posted) is deemed approved by Advertiser in all respects after the Modification Period. Advertiser agrees that all placements of Advertiser's ads shall conclusively be deemed to have been approved by Advertiser unless Advertiser produces contemporaneous documentary evidence showing that Advertiser expressly disapproved such placements in the manner specified by AdverBid. With respect to all other advertising, Advertiser must provide AdverBid with all relevant Creative by the due date set forth on the AdverBid Network or as otherwise communicated by AdverBid. Advertiser grants AdverBid permission to utilize an automated software program to retrieve and analyze websites associated with the Services for ad quality and serving purposes, unless Advertiser specifically opts out of the evaluation in a manner specified by AdverBid. AdverBid may modify any of its Programs at any time without liability. AdverBid also may modify this Agreement at any time without liability, and Advertiser's use of the Program after notice that these Terms or the Agreement has changed constitutes Advertiser's acceptance of the new Terms. AdverBid or its Partners may reject or remove any ad or Target for any or no reason.
AdverBid will provide You with certain specifications, rules, and regulations to be followed and adhered to at all times. AdverBid may in its sole and absolute discretion amend, modify, or change the specifications, rules, and regulations. Specifications may change to allow for network enhancements, including, but not limited to, code changes, delivery improvements, and optimization of displays, tracking, and reporting of Ads. You shall not alter the code, link, script, programming, pixel, content, and/or data provided to You by AdverBid without the prior express written consent of AdverBid.
You are solely responsible for Your Ad(s), Creative, including all content and materials, maintenance and operation thereof, the proper implementation of AdverBid specifications, and adherence to the terms of this Agreement, all applicable laws, rules, regulations, statutes, and ordinances, and any AdverBid rule, policy, or procedure. You hereby grant AdverBid the sole and exclusive right to investigate, at its own discretion, any violation, activity, or alleged breach of this Agreement, or any engagement in any activity prohibited by this Agreement. AdverBid shall not be liable or responsible for anything related to You, Your Ad(s), and/or Creative, including, but not limited to, the receipt and/or collection of data, information, or queries from end users of Your website, service, or product, or the transmission of any information or data between You, Your website, third party landing pages, publisher pages, and AdverBid. In addition, the Program and all AdverBid services are provided on an “AS IS” or “AS AVAILABLE” basis and AdverBid makes no warranty or representation that such Program or service will be available, delivered, or work properly. AdverBid is not required to notify You of any problems or issues relating to the AdverBid Network, the Program, or the delivery of Your Ads.
Advertiser represents and warrants that (a) it is authorized to act on behalf of and has bound to this Agreement any third party for which Advertiser advertises (a "Principal"), (b) as between Principal and Advertiser, the Principal owns any rights to Program information in connection with those ads, and (c) Advertiser shall not disclose Principal's Program information to any other party without Principal's consent.
Payment. Advertiser shall be responsible for all charges up to the amount as set in the AdverBid online account, and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Unless agreed to by the parties in writing, Advertiser shall pay all charges in accordance with the payment terms as listed on the AdverBid Network. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Advertiser is responsible for paying all taxes, government charges, and reasonable expenses and attorneys fees AdverBid incurs collecting late amounts. To the fullest extent permitted by law, Advertiser waives all claims relating to charges (including without limitation any claims for charges based on suspected invalid clicks) unless claimed within 7 days after the charge. Charges are solely based on AdverBid's measurements for the applicable Program, unless otherwise agreed to in writing. Any funds still left on deposit over one year after Advertiser has terminated activity on the AdverBid network shall be forfeited to AdverBid. To the fullest extent permitted by law, refunds (if any) are at the sole and absolute discretion of AdverBid and only in the form of advertising credit for use on the AdverBid Network. Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to AdverBid may be shared by AdverBid with companies who work on AdverBid's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to AdverBid and servicing Advertiser's account. AdverBid may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. AdverBid shall not be liable for any use or disclosure of such information by such third parties.
a. Nothing in these Terms or this Agreement shall obligate AdverBid to extend credit to You or any other party. In the event that AdverBid decides, in its sole and absolute discretion, to extend Credit to You, You expressly acknowledge and confirm that You will be deemed a “AdverBid Credit Advertiser” until the credit relationship is terminated and You pay any and all amounts due and outstanding to AdverBid in full. AdverBid Credit Advertiser payments must be received on monthly net 30 terms, unless otherwise agreed to in writing. You further acknowledge and agree that in the event that you also act as an AdverBid Publisher, AdverBid will not remit the Publisher payment unless and until it receives the AdverBid Credit Advertiser Payment. AdverBid shall remit such Publisher payments within five (5) business days of its receipt of the AdverBid Credit Advertiser payment.
AdverBid actively monitors traffic, Actions, Bounties and other Program-related activities for potential fraud. If AdverBid suspects that Your account has been used in a fraudulent manner, Your account may be deactivated at AdverBid’s discretion and without notice to You. AdverBid reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. It is the OBLIGATION of Advertiser to prove, to the satisfaction of AdverBid, that Advertiser has NOT engaged in fraud when suspected by AdverBid, and that Advertiser’s account has been subject to fraudulent actions, clicks, and/or traffic, when so alleged by Advertiser. If You are unable to provide AdverBid with satisfactory evidence of any alleged fraud and/or dispute within seven (7) days of such being requested by AdverBid, or within seven (7) days that such action, charge, click, or traffic giving rise to the allegation of fraud, then all such charges shall be accepted by you without further right to dispute, all charges shall be final, and AdverBid reserves the right to terminate Your account, at its sole discretion and without any further obligations to You.
This Agreement may be terminated by either Party upon five (5) days’ prior written notice. In addition, AdverBid reserves the right, in its sole and absolute discretion, to terminate You from the Program at any time for any reason, without notice to You. AdverBid also reserves the right to terminate Your access to the AdverBid Network at any time with or without notice to You. Termination notice may be provided via e-mail and will be effective immediately. Upon termination, the representations, warranties and obligations of Advertiser contained within the Agreement shall survive and remain in full force and effect after termination of the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled. After receipt of Your written notice of cancellation, AdverBid will cease serving your Ads within a reasonable time period thereafter, not to exceed six (6) business days. The cancellation of advertising may be subject to Program policies or the ability of AdverBid to re-schedule reserved inventory or cancel ads already in production. Cancelled ads may be published despite cancellation if cancellation of those ads occurs after any applicable commitment date as set forth in advance by AdverBid, its affiliates, Partners, and/or Publishers, in which case Customer must pay for those ads.
From time-to-time, AdverBid makes available to advertisers various policies and guidelines designed to reduce fraud and combat consumer deception. The policies and guidelines cover many topics including but not limited to general advertising compliance, lead generation, blog-based marketing and product review websites. Advertiser hereby represents and warrants that it: (a) has read AdverBid’s policies and guidelines, as same are made available here: http://faq.adverbid.com/ (b) will regularly check the Policy Web Pages for updates; and (c) shall comply with any and all such policies and guidelines, as well as updates to same. Failure to comply with the aforementioned policies and guidelines will result in termination. Furthermore, you shall not, nor shall You authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions; (b) use any automated means or form of scraping or data extraction to access, query or otherwise collect AdverBid advertising related information from any Program website or property except as expressly permitted by AdverBid; or (c) advertise anything illegal or engage in any illegal or fraudulent business practice.
AdverBid may, from time to time, use Your name and logo in presentations, marketing materials, Advertiser lists, financial reports, Web site listings of Advertisers, and search results. You may request in writing to use AdverBid's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, but at no time shall You use such trade names, marks, and/or identifying information without the prior express written consent of AdverBid.
You represent and warrant that (a) all of the information provided by You to AdverBid to enroll in the Program is true, accurate, correct, and current; (b) You hereby certify under oath that you are the owner of each advertisement, Creative, and/or content or that You are legally authorized to act on behalf of the owner of such for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. You further represent and warrant that each Ad, advertisement, Creative, content, and any material displayed therein: (i) complies with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content. Advertiser represents and warrants that it holds and hereby grants AdverBid and its affiliates, Partners, and Publishers all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in the Ads, advertisements, Creative, Content, Services and Targets needed for AdverBid and its affiliates, Partners, and Publishers to operate Programs (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Ads, Creative, Content, or Targets) in connection with this Agreement ("Use"). Advertiser represents and warrants that any Use hereunder and Advertiser's Ad, Advertisement, Content, Creative, Targets, and Advertiser's Services will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including without limitation intellectual property rights). Violation of the foregoing may result in immediate termination of this Agreement or Advertiser's account without notice and may subject Advertiser to legal penalties and consequences.
Advertiser agrees to defend, indemnify and hold harmless AdverBid and its Affiliates and their respective directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys‘ fees, even if incident to any appeals) (collectively "Losses") incurred as a result of any claim, judgment or proceeding relating to or arising out of: (a) Advertiser‘s breach of the Agreement; (b) the content of the Ads and any and all claims made therein; or (c) the products, services or content linked to from the Ads. AdverBid agrees to defend, indemnify and hold harmless Advertiser from and against any and all Losses incurred as a result of a claim, judgment or proceeding relating to or arising out of AdverBid‘s breach of the Agreement.
If any action is brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware, except that failure to provide such notice shall not excuse the Indemnifying Party’s indemnification obligations under this Section 19 unless such failure materially prejudices the Indemnifying Party. The Indemnified Party shall permit the Indemnifying Party to assume control over the defense of such claim, with counsel chosen by the Indemnifying Party that is reasonably acceptable to the Indemnified Party, provided however, that the Indemnified Party shall control the defense of any such claim that, in the reasonable opinion of such Indemnified Party, could have a material and adverse effect on the business, operations, assets or prospects of such Indemnified Party, and the reasonable costs and expenses thereof shall be included as part of the indemnification obligations of the Indemnifying Party hereunder. The Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior written consent of the Indemnified Party.
AdverBid owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including AdverBid's ad serving technology, search technology, referral technology, marketing technology, marketing strategies, code, programming, strategies, and features, including implied licenses, and excluding items licensed by AdverBid from third parties and excluding any third party media player that may comprise the Program or its Services), and that You will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any AdverBid services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto. You will not remove, obscure, or alter AdverBid's copyright notice, features, trademarks, symbols, or other proprietary rights notices affixed to or contained within any AdverBid services, software, or documentation (including without limitation the display of any AdverBid or third party Ads). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trademark law, international treaty, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
IN NO EVENT SHALL AdverBid BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY PERSONS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE AdverBid NETWORK, THE PROGRAM, THE ADS, ADVERTISERS’ UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY AD, CONTENT, OR CREATIVE ON OR THROUGH A PUBLISHER, PARTNERS, OR AFFILIATE WEBSITE(S) AND/OR PROPERTY(IES) INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF AdverBid HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AdverBid’S MAXIMUM AGGREGATE LIABILITY TO ADVERTISER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THREE HUNDRED DOLLARS ($300). ADVERTISER AND AdverBid SPECIFICALLY STATE AND AGREE THAT THE FOREGOING DAMAGES LIMITATION IS REASONABLE AND ENFORCEABLE. REGARDLESS OF ANY LAW TO THE CONTRARY, ADVERTISER SHALL HAVE NO RIGHT OF ACTION, AND WAIVES ITS RIGHT TO BRING A SUIT, CLAIM, OR PROCEEDING AGAINST AdverBid MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. ADVERTISER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE AdverBid NETWORK, CODE, SCRIPT, PROGRAM, AFFILIATE PARTNER AND PUBLISHER SITES, AD SERVING, AND THE SERVICES OF THE PROGRAM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE AdverBid NETWORK, THE PROGRAM, CODE, SCRIPT, AND/OR PUBLISHER’S PARTNER’S AND AFFILIATES UNDERLYING SITES AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. AdverBid HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER, PRINCIPAL, OR ANY THIRD PARTY, FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AdverBid NETWORK, THE PROGRAM, AND/OR THE SERVICE AND DELIVERY OF THE ADS, AND/OR PUBLISHER’S PARTNER’S AND AFFILIATES UNDERLYING SITES OR SERVICES AND AdverBid DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ADVERTISER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE PROGRAM OR ANY OF THE SERVICES WILL BE AVAILABLE TO ADVERTISER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN AdverBid AND ADVERTISER. THE AdverBid NETWORK, THE PROGRAM, THE SERVICE AND DELIVERY OF ADS, AND/OR PUBLISHER’S PARTNER’S AND/OR AFFILIATES UNDERLYING SITES AND SERVICES WOULD NOT BE PROVIDED TO ADVERTISER WITHOUT SUCH LIMITATIONS. AdverBid MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE AdverBid NETWORK, THE PROGRAM, AND/OR THE SERVICE AND DELIVERY OF THE ADS, AND/OR PUBLISHER’S PARTNER’S AND AFFILIATES UNDERLYING SITES OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ADVERTISER FROM AdverBid AND/OR ANY PUBLISHER, PARTNER, AND/OR AFFILIATE BY AND THROUGH THE AdverBid NETWORK, AND/OR THE PROGRAM SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
AdverBid may assign the Agreement, or any portion thereof, at its sole discretion. You may not assign, transfer or delegate any of Your rights under the Agreement without the prior written consent of AdverBid, which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in AdverBid, at its sole discretion, immediately terminating the Agreement and/or Your participation in any Program, without any liability to AdverBid. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.
If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
The Agreement represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with the AdverBid Network, the Program, or the terms are in conflict or inconsistent with the Agreement, the Agreement shall take precedence.
"Confidential Information" means any information disclosed to You by AdverBid, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by AdverBid; (b) becomes publicly known and made generally available after disclosure to You by AdverBid other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by AdverBid as shown by Your files and records prior to the time of disclosure. AdverBid’s Program rates are considered “Confidential Information.” You shall not at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information; and/or (iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain AdverBid's personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to AdverBid immediately upon AdverBid's request.
AdverBid shall not be liable to Advertiser by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such AdverBid.
You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the delivery system, AdverBid Network, and/or the Program. You may not take any action that imposes an unreasonable or disproportionately large load on the AdverBid infrastructure. You agree that any unauthorized and/or unlawful use of the AdverBid Network, the Program, Service, and/or Code will result in irreparable injury to AdverBid for which monetary damages would be inadequate. In such event, AdverBid shall have the right, in addition to any and all other remedies granted or available to it under this Agreement and/or by operation of law, to immediate injunctive relief against You without the requirement to post a bond. THE AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES JOINTLY WROTE IT.
You agree that AdverBid may require a financial accounting and inspection of Your books and records including, but not limited to, access to Your computer databases, in order to verify and corroborate financial information regarding the relationship established hereunder. You hereby authorize AdverBid to obtain credit reports regarding Your business and to require You to provide it with reasonable information regarding Your financial position.
Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf.
All notices shall be sent to the address submitted by You when You sign up for the Service and, if to AdverBid, to the address listed in the Contact section of the AdverBid Network.
Any controversy or claim arising out of or relating to this Agreement or the relationship resulting in or from this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association, 140 West 51st Street, New York, New York 10020-1203. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and the party bringing or appealing such action or opposing confirmation of such award does not prevail, such party will pay all of the costs and expenses (including without limitation, court costs, arbitrators’ fees and expenses and reasonable attorneys’ fees) incurred by the other party in defending such action. Additionally, if either party brings any action for judicial relief in the first instance without first pursuing arbitration prior thereto, the party bringing such action for judicial relief will be liable for and will immediately pay to the other party all of the others party’s costs and expenses (including without limitation, court costs and attorneys’ fees) to stay or dismiss such judicial action and/or remove it to arbitration. The failure of either party to exercise any rights granted hereunder will not operate as a waiver of those rights. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding. The parties consent and agree that jurisdiction and venue shall be the State of Florida.