Date of Last Revision: June 18, 2020
PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT BETWEEN YOU (“you”) AND vidIQ, INC. (“vidIQ” or “we” or “us” or similar terms).
BY CLICKING “I AGREE” TO THIS AGREEMENT OR BY SUBMITTING THE ONLINE APPLICATION, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO ITS TERMS AND CONDITIONS.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in the vidIQ Affiliate Program (the “Program”). Any person or entity that participates or attempts to participate in the Program must accept this Agreement without change. The purpose of this Agreement is to allow linking from your content hosted online or offline directly to the vidIQ web site using the special “tagged" link formats we provide (each, a “Qualifying Link”). Please note that throughout this Agreement, "we," "us," and "our" refer to vidIQ, and "you," "your," and "yours" refer to the affiliate.
By enrolling in the Program, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are participating in the Program with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to participate in the Program and agree to this Agreement. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to this Agreement and to fully indemnify and hold harmless vidIQ if the Minor breaches any of terms and conditions of this Agreement. If you are not at least 13 years old, you may not participate in the Program in any manner.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application at the vidiq.com/affiliate. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including (as examples and without limitation) if it:
- 2.1.1. Promotes sexually explicit materials;
- 2.1.2. Promotes violence;
- 2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- 2.1.4. Promotes illegal activities;
- 2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
- 2.1.6. Includes "vidIQ" or variations or misspellings thereof in its domain name, branding, or impersonates vidIQ through other means;
- 2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion;
- 2.1.8. Contains software downloads that potentially enable diversions of payments from other affiliates in the Program;
- 2.1.9. You may not expressly or impliedly create or design your website or any other website that you operate in a manner that resembles our website nor design your website in a manner that leads customers to believe you are vidIQ or any other affiliated business.
2.2. As a member of the Program, you will have access to an Affiliate Dashboard, through which you will be able to review the Program’s details and previously-published affiliate newsletters, collect your affiliate link and contact our affiliate team. In order for us to accurately keep track of your referred users, you must use the links and codes as provided in the Dashboard without modification.
2.3. vidIQ reserves the right, at any time, to review your placement and approve the use of the Qualifying Links and require that you change the placement or use to comply with the guidelines provided to you. You must comply with this Agreement to participate in the Program and receive payment. You must promptly provide us with any information that we request, including tax information and information to verify your compliance with this Agreement. If you violate this Agreement, or if you violate terms and conditions of any other applicable vidIQ agreement, then, in addition to any other rights or remedies available to us, we reserve the right to permanently (to the extent permitted by applicable law) withhold (and you agree you will not be eligible to receive) any and all fees otherwise payable to you under this Agreement, whether or not directly related to such violation, without notice and without prejudice to any right of vidIQ to recover damages in excess of this amount.
2.4. The maintenance and updating of your content is your responsibility. We may monitor your content as we feel necessary to make sure that it is up-to-date and to notify you of any changes that may enhance your performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. We disclaim any liability (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third party rights.
3. vidIQ Rights and Obligations
3.1. We have the right to monitor your content at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your content that should be made, or to make sure that your links to our web site are appropriate. If you do not make the changes we request, we reserve the right to terminate your participation in the Program.
3.2. vidIQ reserves the right to terminate this Agreement and your participation in the Program immediately and without notice to you should you commit fraud in your use of the Program or should you abuse the Program in any way. If such fraud or abuse is detected, vidIQ shall not be liable to you for any amounts for such fraudulent sales.
3.3. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless and until terminated hereunder.
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice of termination. Written notice can be sent by mail or email. In addition, we may terminate this Agreement or suspend your account immediately upon written notice to you for any of the following reasons: (a) any breach of this Agreement by you, (b) potential claims or liability of us for in connection with your participation in the Program, (c) tarnishment or damage to our brand or reputation in connection with your participation in the Program, (d) deceptive, fraudulent or illegal activity in connection with your participation in the Program, (e) previous termination of this Agreement or suspension of your account with respect to you or other persons that we determine are affiliated with you or acting in concert with you for any reason, or (f) termination of the Program generally.
Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with this Agreement, except that the rights and obligations of the parties under Sections 4, 10, 11, 12, 13, 14, 15 and 16 of this Agreement, together with any payable but unpaid payment obligationsamounts then-owing under this Agreement, will survive the termination of this Agreement. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination. No payments will be made to you on amounts received by VidIQ from subscribers post-termination.
We may modify this Agreement or the Program (including payment rates and terms) at any time at our sole discretion. In such an event, you will be presented with the updated text of the agreement or terms for the Program upon logging in to the Affiliate Dashboard. Modifications may include but are not limited to, changes in the payment procedures and the vidIQ Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your assent to the new terms, which may be obtained through a new click-through agreement or by your continued participation in the vidIQ Affiliate Program following the posting of the change notice or new agreement on our site, will indicate your agreement to the changes as reflected in the new or amended agreement.
6. Payment; Taxes
6.1 The Program’s payment terms are set forth in this Section and on the VidIQ affiliate program Internet page available via this link: http://vidiq.com/affiliate uses a third party to handle all of the tracking and payment. The third party is the Post Affiliate Pro affiliate software for tracking purposes and PayPal for payment purposes. Kindly review the network’s payment terms and conditions. All referral fee percentages are based on Net Receipts. “Net Receipts” means money paid to and actually received by VidIQ from sales of subscriptions to persons directed by you to our site via your Qualifying Link, less any associated costs including, but not limited to, the following: (x) taxes (including sales, VAT, excise and use taxes); (y) third party credit card or payment processing fees (e.g., PayPal, credit card fees, etc.), and (z) returns, refunds, reversals and chargebacks. Payment will be made in US dollars only. We will pay you approximately 60 days following the end of a calendar month in which the underlying money is paid to VidIQ from the referred subscriber. Payment may be made by PayPal, electronic funds transfer, check or another method selected by VidIQ. You understand that payment is contingent upon: (a) your compliance with the terms and conditions of this Agreement and your participation the Program not violating any laws, rules or regulations, and (b) you providing an email address associated with a valid, existing PayPal account and complete, true and correct tax information and signed forms to VidIQ. You shall only be eligible to receive referral fees for purchases from our site made by prospects who were directed to our site via a Qualifying Link and any referral fees due to you shall accrue only upon payment by a prospect to us for products and services purchased by persons referred to us through such link who subscribe to our service. Payment will be made only on continuous subscriptions for subscribers that are in compliance with their subscription agreement with us and otherwise in good standing. We are not responsible for payment if a subscriber joins without using the special “tagged" link formats we provide or does not enable cookies on his or her Internet browser or if the cookie is deleted or expires. We have the sole discretion to determine whether or not to accept or reject a subscriber.
6.2 You are responsible for determining the applicability of any income, sales, use, excise, or similar or other taxes that may be applicable to your participation in the Program, if any. You are obligated to pay any applicable taxes for your participation in the Program, including without limitation, any and all interest, penalties and attorneys’ fees. We are not responsible to you or any governing body for any taxes relating to amounts that you receive hereunder, including but not limited to foreign, federal or state income tax, social security tax, or unemployment tax. You shall bear any and all costs, and shall indemnify us against the same, including, without limitation, penalties, interest and attorneys’ fees. We shall be entitled to contest, pursuant to applicable law and at our own expense, any taxes we may ultimately be obligated to pay, and you shall reasonably cooperate with any such contest.
7. Access to Affiliate Dashboard
You will create a password so that you may enter the Affiliate Dashboard. From their site you will be able to receive your reports that will describe our calculation of the amounts due to you. You are responsible for keeping your password secure.
8. Promotion Restrictions
8.1. You are free to promote your own web sites, but any promotion that mentions vidIQ could be perceived by the public or the press as a joint effort, which is not permitted. You should know that certain forms of advertising are always prohibited by vidIQ:
- Unsolicited commercial email (UCE), postings to non-commercial newsgroups, and cross-posting to multiple newsgroups at once;
- In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote vidIQ so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote vidIQ so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from vidIQ.
If it comes to our attention that you are spamming or otherwise engaging in inappropriate or unlawful conduct, we will consider that cause for immediate termination of this Agreement and your participation in the Program. Any pending amounts that may owed to you will not be paid if your account is terminated due to such spamming or otherwise unacceptable conduct.
8.2. Affiliates that bid in their Pay-Per-Click (“PPC”) campaigns on keywords such as vidIQ.com, vidIQ, www.vidIQ.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – will be considered trademark violators, and will be banned from the Program. We will make reasonable efforts to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
8.3. Affiliates are not prohibited from keying in prospect’s information into the lead form as long as the prospects’ information is real and true, the prospect consents to their data being used this way, and the leads are valid (i.e. sincerely interested in vidIQ’s service).
8.4. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a Qualifying Link until such time as the consumer has fully exited the vidIQ site (i.e., no page from our site or any vidIQ’s content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate payment tracking cookies through any other means than a customer initiated click on a Qualifying Link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing pop ups or payment tracking cookies to be put in place or other payment tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set payment tracking cookies through loading of the vidIQ site in IFrames, hidden links and automatic pop ups that open the vidIQ site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
9. Grant of Licenses
9.1. We grant to you a limited, non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the Program. You agree that all uses of the Licensed Materials will be on behalf of vidIQ and the good will associated therewith will inure to the sole benefit of vidIQ. You will not take any action that conflicts with our rights in, or ownership of, any of the Licensed Materials. You will immediately take corrective action to bring into compliance with our requirements all use of the Licensed Materials as we may direct from time to time.
9.2. You agree not to use our proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays us in a negative light. We reserve all our rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, we retain all right, title, and interest to such rights and no right, title, or interest is transferred to you.
VIDIQ MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE PROGRAM, THE vidIQ SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN. WE DISCLAIM AND EXCLUDE ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. WE MAY DISCONTINUE ANY PRODUCT OR SERVICE, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY PRODUCT OR SERVICE, AT ANY TIME AND FROM TIME TO TIME. WE WILL NOT BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH OUR SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. WE MAKE NO REPRESENTATION OR GUARANTEES ABOUT THE AMOUNT YOU WILL RECEIVE UNDER THE PROGRAM OR WHETHER YOU WILL RECEIVE ANYTHING AT ALL.
We do not make any representation, warranty, or covenant regarding the amount of traffic or fees you can expect at any time in connection with the Program, and we will not be liable for any actions you undertake based on your expectation.
11. Representations and Warranties
You represent and warrant that: (a) this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms; (b) you have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party; (c) you have sufficient right, title, and interest in and to the rights granted to us in this Agreement; (d) you will participate in the Program and create, maintain, and operate your site in accordance with this Agreement, (e) neither your participation in the Program nor your creation, maintenance, or operation of your site will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing), (f) you are lawfully able to enter into contracts (e.g. you are not a minor or otherwise legally prevented from contracting), (g) you have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement, (h) you will not participate in the Program if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are; (i) you will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services, and (j) the information you provide in connection with the Program is accurate and complete at all times.
We do not make any representation, warranty, or covenant regarding the amount of traffic or fees you can expect at any time in connection with the Program, and we will not be liable for any actions you undertake based on your expectations.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL VIDIQ's CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
You hereby agree to defend vidIQ, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners (the “Indemnitees”), from and against any and all claims, actions, demands, and suits (any or all of the foregoing hereinafter referred to as “Claims”), and indemnify and hold harmless the Indemnitees against any liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Claims arise out of or are based on (i) any infringement or misappropriation of the intellectual property rights or other proprietary rights of any third party, (ii) any breach by you of this Agreement , (iii) any claim related to your site, including, without limitation, content therein not attributable to us, or (iv) your or your employees’ or contractors’ negligence or willful misconduct.
All non-public information, including, but not limited to, any business, technical, financial, and customer information, disclosed by us to you during negotiation or the effective term of this Agreement which is marked "Confidential" or by its nature should reasonably be considered under the circumstances to be confidential (“Confidential Information”), will remain our sole property, and you will keep in confidence and not use or disclose such Confidential Information without our express written permission. You (a) shall not disclose our Confidential Information to any third party without our prior written consent, (b) will notify us if you become aware of any breach of confidentiality in any manner whether through (i) your negligence, acts or omissions, or (ii) computer virus, or theft of your computer or login information; or (c) shall not use our Confidential Information for any purpose other than in performance of this Agreement. You acknowledge that misuse or disclosure of any of our Confidential Information by you will give rise to irreparable injury to us or the owner of such information, which is inadequately compensable in damages. Accordingly, we or such other party may seek injunctive relief against the breach or threatened breach of these confidentiality obligations, in addition to any other available legal remedies.
15. Dispute Resolution and Arbitration; Class Action Waiver
Please Read This Provision Carefully. It Affects Your Legal Rights.
15.1 This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding.
This Provision provides that all disputes between You and Us shall be resolved by binding arbitration because acceptance of this Agreement constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
15.2 Pre-Arbitration Claim Resolution. For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at firstname.lastname@example.org the following information: (1)Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If We do not resolve the Dispute within 45 days after receiving Your notification, than You may pursue Your Dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below.
15.3 Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, Your or We may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing us at email@example.com the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with Us through arbitration. Either way, We will not take any decision You make personally. In fact, We promise that Your decision to opt-out of this Arbitration Provision will have no adverse effect on Your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
15.4 Arbitration Procedures. If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because the Program and this Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or We may initiate arbitration in either [System Value #20] or the federal judicial district that includes Your billing address.
Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon Your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
15.5 Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both You and We specifically agree to do so in writing following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
15.6 Jury Waiver. You understand and agree that by accepting this Provision in these Terms, You and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g.,, the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
15.7 Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
15.8 Continuation. This Provision shall survive the termination of Your account with Us or Our affiliates and Your discontinued use of this Website. Notwithstanding any provision in these Terms to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the present language in this Provision if a dispute between Us arises.
16.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and vidIQ. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or any other site or otherwise, that reasonably would contradict anything in this Section.
16.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
16.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws and principles thereof.
16.4. You may not amend or waive any provision of this Agreement unless in a writing that both identifies itself as an amendment or waiver to this Agreement and is signed by both parties.
16.5. This Agreement represents the entire agreement between us and you with respect to its subject matter, and shall supersede all prior agreements, understandings and communications of the parties, oral or written.
16.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
16.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.