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DX Products LLC Terms *
AFFILIATE AGREEMENT

This Affiliate Agreement ("Agreement") is entered into as of March 1st, 2020, by and between DX Products, LLC ("DXP"), and you ("Affiliate"), each being referred to individually hereinafter as, a "Party," and collectively as, the "Parties."

1. Definitions.
"Action" means a Click, Lead, or sale generated as a result of an Advertisement.

"Advertisements" means those certain advertisements of DXP for the sale of certain products and/or services which DXP expressly authorizes Affiliate to distribute under the terms of this Agreement.

"Click" occurs when an internet user clicks through a Link that Affiliate has placed for DXP.

"Lead" occurs when an internet user completes a lead form as described in an applicable Insertion Order.

"Link" means a hyperlink placed by Affiliate that, when clicked on, serves DXP's website or other designated landing page to the internet user's browser.  The Link may be in the form of text, a product image, a button, a banner, or any other format acceptable to DXP and defined in an applicable Insertion Order.

2. Advertisements and Insertion Orders.  Pursuant to the terms of this Agreement and as specified on the applicable "Insertion Order," Affiliate can distribute Advertisements via one or more online channels to earn commissions for each Action generated for DXP.  When executed by DXP and Affiliate, each Insertion Order becomes a part of this Agreement.

3. Eligibility; Collection and Use of Personal Information.  Affiliate must be at least 18 years of age or older and otherwise legally able to enter into this Agreement.  If Affiliate is an entity, Affiliate must be operated by persons 18 years of age or older.

In order to become an advertising Affiliate of DXP pursuant to this Agreement, Affiliate must provide to DXP truthful and correct personally identifiable information as requested by DXP.  If Affiliate chooses to provide information through an online registration process or through any other means, Affiliate may be asked to provide his or her name, company name, physical address, billing address, telephone number, facsimile number, email address, website address, tax payer ID number, or social security number, billing or payment information, and other identifying information.  Submission of false or incorrect identifying information or tax information is grounds for immediate termination of Affiliate's account with DXP.  DXP reserves the right to share this personal information that Affiliate provides with DXP's partners, outside accounting firms, legal counsel, state and federal tax services, and any government or law enforcement agency that requests such information.

Affiliate must register with DXP all active domain names, subdomain names, and email addresses used by Affiliate to display or distribute Advertisements.  Affiliate must update its list of registered domain names, subdomain names, and email addresses in real-time to ensure the list is accurate and complete at all times.  Domain names used to send Advertisements via electronic mail must be properly registered such that each domain name is traceable to the sender by performing a single WHOIS lookup.

DXP may contact you by email, telephone, or any other contact method you provide, in order to communicate with you about DXP, this Agreement, or any other purpose.

4. Payment.  DXP shall pay Affiliate between fourteen (14) and sixty (60) days after the end of the month, unless another payment arrangement is agreed to in writing by an officer of DXP, as based on DXP's electronic tracking system.  Affiliate will be paid per the terms of the applicable Insertion Order.  DXP, in its sole discretion, may use any commercially reasonable method for making payments to Affiliate.  No payment will be made for Actions that are determined, in the sole and good faith discretion of DXP, to be fraudulent, incomplete, not in compliance with the time or terms of the particular Insertion Order.  DXP shall not be responsible to pay Affiliate for traffic, actions, impressions, clicks, or any other desired actions that are not recorded due to Affiliate's error. No payment will be issued for any amount less than $100 ("Minimum Payment").  All unpaid earnings will rollover to the next period.  Based on the Minimum Payment, any Affiliate account that goes unpaid for six (6) months becomes subject to account inactivity and may lead to account termination. As a condition for payment hereunder, Affiliate must provide:  (a) the correct mailing address or payment instructions; (b) email address; and (c) a completed and accurate W-9 or equivalent (for U.S. Affiliates) or W-8 or equivalent (for Non-U.S. Affiliates).  DXP shall be entitled to withhold payment and recoup expenses for (y) any stop payment it is required to issue; or (z) wire fee incurred.  DXP may take legal action and reserves the absolute right to withhold payment from accounts for Affiliates that violate any of the terms of this Agreement or the applicable Insertion Order.

DXP shall only be obligated to make payments to Affiliate in accordance with, and subject to, the foregoing payment restrictions.

Affiliate is responsible for any taxes that may be due on the payments provided by DXP to Affiliate under this Agreement.

Additionally, DXP reserves the right to reduce any payments owed to Affiliate as a consequence of any offsets taken by DXP for technical errors, tracking discrepancies, and the like.

DXP is unable to wire Affiliates located in Myanmar (MM), Iran (IR), North Korea a/k/a Democratic People's Republic of Korea (KP), Sudan (SD), or Syria a/k/a Syrian Arab Republic (SY).  This list is subject to change without notice to Affiliate.

5. Disputes.  If Affiliate has a bona fide dispute with respect to a payment, Affiliate must provide DXP with written notice of the dispute within seven (7) days of the receipt of such payment.  Affiliate must identify the specific payment(s) in dispute, provide a reasonably detailed written explanation of the basis for the dispute within seven (7) days of the payment date, and reasonably cooperate with DXP in investigating and resolving the dispute.  If Affiliate does not provide a written dispute to DXP regarding payment or the payment terms within such time period, Affiliate will have waived the right to bring an action regarding a payment dispute.

6. Term and Termination.  The term of this Agreement, shall commence on the date of its execution or other acceptance by both Parties and shall continue in full force and effect for a period of one (1) year (the "Initial Term").  Thereafter, this Agreement shall automatically renew on a yearly basis unless terminated pursuant to the terms of this Agreement (the "Renewal Term").  In the absence of written acceptance by Affiliate, Affiliate's act of tendering services to DXP, or otherwise distributing Advertisements, shall constitute acceptance by Affiliate of this Agreement.

Either Party may terminate this Agreement upon sixty (60) days written notice to the other Party.

This Agreement or any Insertion Order(s) (unless the Insertion Order is designated as non-cancelable) may be terminated by a Party if (a) the other Party breaches a material obligation provided hereunder, and the breaching Party fails to cure such breach within thirty (30) calendar days of receipt of a written notice to the breaching Party, specifying:  (i) the nature of the default; and (ii) the intent of the non-breaching Party to terminate this Agreement if such default is not so cured; (b) the other Party has had an Insolvency Event; or (c) as otherwise provided by the applicable Insertion Order.  As used herein, "Insolvency Event" means making a general assignment for the benefit of a Party's creditors, filing a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization or similar relief or an involuntary petition in bankruptcy or other insolvency protection is filed against the applicable Party.

Upon termination, Affiliate shall immediately discontinue distributing any Advertisements and return all Confidential Information.

7. Rules and Compliance with Applicable Laws and Terms.  Affiliate warrants and agrees that it will at all times comply with the following rules:  Affiliate agrees to follow the exact specifications of each Advertisement, offer, or campaign as stated in the applicable Insertion Order or otherwise stated in writing from DXP.  Affiliate agrees not to alter or modify any Advertisement in any manner unless prior written approval is obtained from DXP.  Affiliate agrees not to spawn malicious, false, or deceptive pop-ups or exit pop-ups, use pop-ups that block or interfere with other affiliates or Advertisements, use any downloadable applications unless the downloader has been given clear and conspicuous notice of the terms of the download, generate leads that are not initiated by the affirmative acts of a consumer, promote any illegal activity including, without limitation, gambling, illegal substances, software piracy, or hacking, use invisible methods to generate impressions, clicks, or transactions that are not initiated by a user, attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the network internet protocol, media site tags, source codes, links, pixels, modules, or other data provided by or obtained from DXP that allows DXP to serve the Advertisements and/or measure performance, place statements near the Advertisements requesting action (e.g., "please click here") or use misleading statements (e.g., "you will win"), intentionally place Advertisements on blank web pages, place Advertisements on non-approved websites, or direct or redirect traffic to websites other than those approved and listed by DXP.  All links and Advertisements must be clearly recognizable as an advertisement.  Affiliate agrees not to post Advertisements on personal websites, free websites, on Craigslist or similar websites, on websites that use nonsensical or misleading domain names, that include sexually explicit content, or that are just a list of Advertisements.  Websites must be content based.

The Affiliate acknowledges and agrees to comply with all rules relating to the authorized, unauthorized, and proper use of the Seller’s trademarks, logos, and brand identifiers, as outlined in this Agreement and any accompanying Brand Guidelines issued by the Seller.

Authorized use of the Bathmate logo and associated brand elements is limited to Affiliates who have received prior express written consent from the Seller. In such cases, the Affiliate may use the Bathmate name, logo, and associated brand identifiers solely for the purpose of promoting the Seller’s products via approved affiliate marketing channels, and only in strict compliance with the Seller’s Brand Guidelines. Affiliates must clearly identify themselves using approved language such as “Authorized Bathmate Affiliate” to avoid confusion with the Seller, and all promotional materials must include proper trademark attribution (e.g., “BATHMATE is a trademark of DX Products Ltd., registered in the U.K. and other countries and regions”) to indicate that the materials are not issued by the Seller.

Unauthorized uses include any incorporation of “Bathmate,” “Hydro,” “Hydromax,” “HydroXtreme,” or any other Seller trademarks—whether wordmarks or graphic assets—in the Affiliate’s company name, product name, service name, website name, or any other branding element. The Affiliate may not use terms such as “Official,” “Certified,” or similar terminology in any context that may suggest endorsement or operation by the Seller. Examples of prohibited names include, but are not limited to, “Official Bathmate Store,” “BathmateHydromax,” “HydroBathmate,” “HydromaxNewYork,” or any similar variation. The Affiliate further acknowledges that DX Products Ltd. is the sole owner of the Bathmate and Hydromax trademarks and agrees not to interfere with, challenge, or dilute those rights in any way.

The Bathmate logo or any other Seller-owned graphic symbol or icon must not be used in a way that suggests the Affiliate’s website or promotional material is owned or operated by the Seller. Specifically, Affiliates are prohibited from placing the Seller’s trademarks in a visually dominant or primary position, such as in the header, navigation bar, or hero section of a webpage. Seller trademarks must always appear subordinate to the Affiliate’s own branding, and must not appear on any digital property without the Affiliate’s own logo clearly visible and hierarchically prominent. The use of Bathmate’s logo or trademarks in the header, footer, or navigation of any website, landing page, or app—whether desktop or mobile—is strictly prohibited unless explicitly authorized in writing by the Seller. For example, it is not acceptable for an Affiliate landing page to display only the Bathmate logo without a corresponding and prominent Affiliate logo.

Affiliates may not use phonetic equivalents, abbreviations, foreign language translations, or visual modifications of Seller trademarks in any capacity. This includes, but is not limited to, uses such as “HydroX,” “Bmate,” “HydromaxDeals,” or other derivative branding. The Affiliate must not present their promotional materials in a way that implies affiliation, endorsement, or sponsorship by the Seller. This includes the use of any phrase or layout suggesting that Bathmate is operated by or delivered through the Affiliate, such as “Bathmate by EXAMPLE LLC” or “Hydromax Support by EXAMPLE LLC.”

Imitating the Seller’s distinctive trade dress—including packaging design, website UI/UX, typography, color schemes, or structural layout—is prohibited. Affiliates must avoid replicating the Seller’s site fonts, layout hierarchy, navigation patterns, or design language, in part or in whole. Additionally, the Affiliate may not register or use any domain names that incorporate Seller trademarks or closely resemble them. Examples of prohibited domain names include “bathmatestore.com,” “bathmatepump.com,” and “officialbathmate.com.”

All use of Seller trademarks must adhere to the original spelling, capitalization, and formatting as shown in the Seller’s Trademark List. The Affiliate may not abbreviate, hyphenate, or otherwise modify Seller product names. For example, “HydroXtreme” is acceptable, while “Hydro Xtreme,” “Xtreme,” or “HydromaxX” are not.

For the purposes of this clause, “Use” shall mean any action to advertise, market, or promote the Seller’s products, whether directly or through any form of affiliate placement or performance marketing.

The Affiliate may not operate any affiliate, referral, or incentive program that implies it is part of, sponsored by, or officially affiliated with the Seller. The Affiliate shall not use Seller trademarks—such as “Bathmate,” “Hydromax,” or “HydroXtreme”—within any legal policies on their website, including Terms of Use, Privacy Policies, or Shipping and Returns Policies, in a way that binds the Seller or implies that such content was written or endorsed by the Seller. Prohibited examples include phrases such as “Bathmate shall...” or “Hydromax is responsible for…”

The Affiliate may not use the Seller’s trademarks in the naming or description of any customer service function, including but not limited to “Bathmate Customer Support” or “Official Hydromax Support.” Nor may the Affiliate use any Seller trademarks in the naming or branding of any affiliate program or promotional initiative. Examples of prohibited terms include “Bathmate Affiliate Program,” “Hydromax Partner Network,” or “HydroXtreme Rewards.”

All marketing communications, websites, landing pages, or other customer-facing material associated with any Affiliate-operated program must clearly state that the program is independently operated and is not affiliated with, endorsed by, or officially associated with the Seller. An acceptable disclosure would be: “This program is operated by EXAMPLE LLC and is not affiliated with Bathmate or DX Products Ltd.”

Any breach of these provisions shall constitute a material breach of this Agreement, entitling the Seller to terminate the Affiliate relationship with immediate effect, without prejudice to any other rights or remedies available to the Seller.

Affiliate agrees not to use, or allow the use of, incentivized traffic or incentivized ad placement, or to provide any incentive to the recipient of any electronic Advertisement for any purpose, including to induce the recipient to initiate an Action.

Unless expressly provided in writing, Affiliate is prohibited from publishing or otherwise distributing Advertisements by telemarketing, fax, or text messaging in any form to any device.

DXP may subsequently add, change, or remove some or all of the advertising content.  If such a change is made, Affiliate shall ensure that it is using the most current version of the advertising content within twenty four (24) hours of DXP's notification to Affiliate of such change.

Affiliate may not use any trademarks, service marks or branded terms of DXP, or any other term excluded in any applicable Insertion Order, in any manner to Link or otherwise direct traffic to any DXP sites or landing pages.  This prohibition includes, but is not limited to, purchasing keywords from search engine service providers, or purchasing inclusion in search engine networks, where the associated keywords include the trademark, service mark and/or brand name of DXP including, without limitation, any derivative or misspelling of any such trademark, service mark or brand name.

Affiliate may not publish any discount codes without the express, written consent of DXP. In such event, Affiliate may only publish official DXP discount codes on Affiliate’s site that DXP may send directly to Affiliate as part of its marketing program, in DXP's sole discretion. Affiliate may not publish discount codes that are not directly provided by DXP to Affiliate expressly for use in marketing DXP products. In cases where the sale generated has such a discount code applied, payable commission will be reduced to 5% of the sale amount. Affiliate may not publish misleading or false information about DXP discount codes or other DXP site discount codes or promotional offers.  Misleading information includes, but is not limited to, the following: posting a discount code with the wrong corresponding description of the discount, posting an expired discount code, directing visitors to click a link to receive a discount automatically (i.e. “Click here for 10% off”), using a domain or URL structure that includes the terms discount, coupon or other related term(s).

Affiliate agrees not to post on any platform or channel any Advertisements or other material that is, in the sole discretion of DXP, illegal, obscene, indecent or offensive to the average reasonable person; is threatening or abusive; is libelous or defamatory; is discriminatory or promotes racism, bigotry or hatred; infringes on any intellectual property or is in violation of any copyright or trademark law; violates any right of privacy or celebrity; promotes harmful, unlawful, seditious, or criminal activity; could give rise to civil liability; or contains viruses, worms, Trojan Horse, or other harmful files.

Affiliate represents and warrants that Affiliate has the appropriate authority to operate Affiliate's websites or other mechanisms of distributing Advertisements (including the publication of any content on any such websites or mechanisms) and that Affiliate will at all times comply with all applicable state and federal laws, rules, and regulations, including, but not limited to, the following:  the CAN-SPAM Act of 2003, as amended, together with any similar state laws (collectively, "CAN-SPAM"), California & Business Code 17529, et seq., the Canadian Anti-Spam Legislation, the Restore Online Shopper's Confidence Act, the Children's Online Privacy Protection Act, all Federal Trade Commission rules and guidance concerning online advertising, the FTC Guides Concerning Use of Endorsements and Testimonials in Advertising, the FTC's Business Opportunity Rule, as amended from time to time, the FTC Guide Concerning Use of the Word "Free" and Similar Representations, the FTC's Advertising Guide for Dietary Supplements, all applicable FDA statutes, regulations, and guidelines, including, but not limited to, the Nutrition Labeling and Education Act, the Federal Food, Drug, and Cosmetic Act, the Dietary Supplements Health and Education Act, and the regulations implementing these Acts, and if applicable the Telemarketing and Consumer Fraud and Abuse Prevention Act, and all rules and regulations promulgated by the Federal Trade Commission or Federal Communications Commission thereunder.

Affiliate represents and warrants that Affiliate will at all times comply with all Terms and Conditions required by any and all third-parties utilized by Affiliate to distribute Advertisements under this Agreement.

Affiliate must notify DXP of any complaint received by Affiliate or its affiliates or agents regarding any of Affiliate's marketing practices within twenty-four (24) hours of receiving such complaint.  If Affiliate becomes aware that Affiliate or Affiliate's affiliate or agent has breached one or more of the rules set forth in this Agreement, Affiliate will inform DXP within twenty-four (24) hours of the breach, and provide DXP with detailed information of the breach and the corrective action taken to resolve the breach.  Without limiting the generality of the foregoing, Affiliate acknowledges and agrees that Affiliate:

• Will comply with the following procedures to allow a recipient to request not to receive future commercial electronic mail messages (the "Opt-Out Procedures").  Affiliate shall include a clearly and conspicuously displayed, functioning return email address or other Internet-based mechanism that (a) a recipient may use to request not to receive future commercial electronic mail messages from Affiliate or DXP at the email address where the message was received; and (b) remains capable of receiving such messages or communications for no less than thirty (30) days after the transmission of the original message.

• Will not promote, recommend or advertise for sale other external penile rigidity devices that use water as the medium for operation - devices that are deemed to be counterfeit or replica in nature. Such counterfeit or replica brands should not be mentioned alongside Bathmate content; in the same article, product review or product comparison, within the same video, publisher website domain or marketing channel.

• Will not initiate, assist, or cause any person to initiate or assist, the transmission to the recipient, more than ten (10) business days after the receipt of a request not to receive some or any commercial electronic mail messages from Affiliate or DXP, a commercial email message that falls within the scope of the request.
• Will not sell, lease, exchange, or otherwise transfer or release the email address of the recipient (including through any transaction or other transfer involving mailing lists bearing the email address of the recipient) for any purpose other than to supply a suppression list or in compliance with any Federal, State, or local law, statute, regulation, or ordinance.
• Will not access any computer without authorization, and intentionally initiate the transmission of multiple commercial electronic mail messages from or through such computer to accomplish any email broadcast for DXP.
• Will not use a computer to relay or retransmit multiple commercial electronic mail messages, with the intent to deceive or mislead recipients, or any internet access service, as to the origin of such messages to accomplish any email broadcast for DXP.
• Will not take any actions to falsify the header information in any commercial electronic mail messages, including but not limited to the inclusion of header information that (A) includes an originating email address, domain name, or Internet Protocol address, the access to which was obtained by means of false or fraudulent pretenses or representations; (B) fails to identify accurately a computer used to initiate the message because Affiliate knowingly used another computer to relay or retransmit the message for purposes of disguising its origin; (C) is altered or concealed in a manner that would impair the ability of any person or internet access service processing the message on behalf of a recipient, to identify, locate, or respond to Affiliate or to investigate the alleged violation and intentionally initiate the transmission of such messages to accomplish any email broadcast for DXP; or (D) uses privately registered domains.
• Will not register any electronic mail or online user accounts using information that materially falsifies the identity of the actual registrant and intentionally initiate the transmission of multiple commercial electronic mail messages from any combination of such accounts or domain names to accomplish any email broadcast for DXP.
• Will not falsely represent itself to be the registrant or the legitimate successor in interest to the registrant of any Internet Protocol addresses and intentionally initiate the transmission of multiple commercial electronic mail messages from such addresses to accomplish any email broadcast for DXP.
• Will not falsify or forge any electronic mail transmission information or other routing information in any manner to accomplish any email broadcast for DXP.
• Will not use a subject heading that is misleading about a material fact regarding the contents or subject matter of the message or falsify the subject heading in any messages that are part of any email broadcast for DXP, and will only use subject lines which have been approved by DXP.
• Will not take any actions to alter any message transmitted for DXP in a manner that would prevent that message from containing (I) a clear and conspicuous identification that the message is an advertisement or solicitation; (II) a clear and conspicuous notice of the opportunity to decline to receive further commercial electronic mail messages from Affiliate or DXP; and (III) a valid postal address.
• Will immediately scrub its data against any suppression lists provided by DXP, will update the suppression list every three (3) days, and will not to use any provided suppression lists for any use other than to scrub its data and agrees not to share or disseminate suppression lists in any manner.
• Will follow all FTC guidelines and comply with other applicable laws in the use of any testimonials; not to make claims as to the effectiveness of an advertised item unless approved by DXP, supported by factual, documented evidence and in compliance with all applicable State and Federal laws; and not use celebrity photos or claimed endorsements unless prior consent has been obtained from the celebrity and DXP.
• Will conspicuously post a privacy policy on Affiliate's website that complies with all laws and regulations and fully and accurately discloses Affiliate's collection, use and disclosure of user data.

8. Breach of Rules and Termination Procedure.  Affiliate acknowledges that DXP strictly enforces the requirements discussed in Section 7 above and will subject Affiliate to discipline, up to and including immediately terminating Affiliate's accounts, for a violation of any of the rules expressed above.  All discipline under this Section 8 is subject to DXP's sole discretion.  DXP reserves the right to immediately terminate Affiliate depending on the facts and circumstances of Affiliate's violation.

For Affiliate's first violation of any rule set forth in Section 7, Affiliate shall receive a notification from DXP that Affiliate has violated DXP's Rules.  If Affiliate commits a second violation of any rule set forth in Section 7 (whether or not Affiliate violates the same rule twice), DXP shall terminate Affiliate's accounts.  Any commissions or payments owed to Affiliate will be canceled and DXP may report the identifying information to the Federal Trade Commission and other agencies for civil and criminal prosecution.

9. Indemnification.  Affiliate agrees to indemnify, defend, and hold harmless DXP, its directors, officers, employees, affiliates, and customers (collectively, the "Covered Entities") from and against any and all claims, actions, or demands brought by or against any of the Covered Entities alleging (a) infringement or misappropriation of any intellectual property rights; (b) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; (c) any offensive harassing or illegal conduct; (d) violation of the Federal CAN-SPAM Act of 2003 (15 U.S.C. 7701, et seq.); (e) any violation of any applicable State or Federal law or regulation whether or not specifically enumerated in this Agreement; (f) any breach of this Agreement by Affiliate; or (g) the actions of any of Affiliate's Marketing Affiliate(s) (defined below), if any.  Affiliate further agrees to indemnify the Covered Entities from and against any and all losses, damages, costs, expenses, and fees (including attorney's fees) awarded in favor of any third parties or suffered by any Covered Entity which result from or arise out of Affiliate's operation of Affiliate's business.  Affiliate agrees to provide DXP with prompt written notice of any claim of which Affiliate becomes aware which may affect any Covered Entity's interests.  DXP reserves the right, at Affiliate's expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder.  No settlement may be consummated without DXP's express written authorization, which shall not be unreasonably withheld.  As part of this indemnification obligation, DXP shall have the right of offset against any amounts owed hereunder to Affiliate for any indemnification obligations set forth above.

10. Relationship of Parties and Use of Marketing Affiliate.  The relationship between DXP and Affiliate shall not be that of partners, agents, or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes, including, but not limited to, tax purposes.  DXP and Affiliate, in performing any of their obligations hereunder, shall be independent contractors or independent parties and shall discharge their contractual obligations at their own risk subject to the terms this Agreement.

If Affiliate engages or arranges for other affiliates ("Marketing Affiliate(s)") to distribute Advertisements, Affiliate must:  (a) obtain DXP's written consent to using the Marketing Affiliate; (b) require each Marketing Affiliate to agree to terms and conditions substantially similar to the requirements set forth in this Agreement; (c) indemnify DXP for all of the actions and/or omissions of any Marketing Affiliates or any other parties working with, for, or under Marketing Affiliates; and (d) obtain a working email address or other internet-based mechanism for consumers to report complaints regarding the practices of any Marketing Affiliate.  Affiliate must keep records of all Marketing Affiliates (including full contact information) and Advertisements distributed by Marketing Affiliates during the term of this Agreement, and upon the written request by DXP, provide such information in a timely manner.  Affiliate's failure to comply with the preceding provision will result in (a) Affiliate automatically forfeiting the right and claim to any payment due under this Agreement or in connection with any other services between DXP and Affiliate; and (b) automatic termination of this Agreement by DXP.  The rights provided in this Section 10 shall not be deemed exclusive of any other rights or remedies to which DXP may be entitled to under this Agreement.


11. Website and Material Usage.  DXP grants Affiliate a nonexclusive, nontransferable, revocable, limited right and license to access and make use of DXP's Advertisements, website, software, and material provided thereon (collectively the "Materials"), for the limited purpose of providing the services contemplated by this Agreement and the applicable Insertion Order(s), provided that Affiliate fully complies with this Agreement.  No online or click-through terms, conditions, policies, or documents shall be deemed to have modified this Agreement, notwithstanding the fact that a Party may have affirmatively accepted such terms as a condition of accessing any online service.  Both Parties agree not to download (other than page caching) or modify DXP's website(s) or software or any portion of it.  This license does not include any derivative use of the website or its contents or software; any downloading or copying of account information or software for the benefit of anyone other than DXP; or any use of data mining, robots, or similar data gathering and extraction tools.  DXP's website, or any portion of the website, may not be reproduced, duplicated, copied, sold, or resold.  Affiliate agrees not to frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including, without limitation, images, text, page layout, or form) of DXP without its express, written consent.  Affiliate agrees not to use any metatags or any other "hidden text" utilizing DXP's names or tradenames, trademarks, or service marks without the express, written consent of DXP.  Affiliate agrees not to disclose to any third party any website content contained in any section of DXP's website that requires a username and password for access.  Affiliate agrees it is responsible for maintaining the confidentiality of its account and password, and agrees to accept responsibility for all activities that occur under its account or password.

12. Intellectual Property.  The registered and unregistered trademarks, service marks, tradenames, graphics, logos, page headers, button icons, scripts, trade dress, or other indicia of trade origin of DXP may not be used in connection with any business, product, or service whose source is not DXP, in any manner that is likely to cause confusion among customers, the trade, or the public, or in any manner that disparages or discredits DXP or any of its affiliates.  All other trademarks, service marks, tradenames, and logos not owned by DXP that appear in the Materials are the property of their respective owners, who may or may not be affiliates with, connected to, or sponsored by DXP.  Nothing contained in the Materials should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of the trademarks, service marks, tradenames, graphics, logos, page headers, button icons, scripts, trade dress, or other indicia of trade origin of DXP or it’s affiliates displayed or contained in the Materials without the express, written consent of that DXP or its affiliates.

All content on the Materials, including, but not limited to, text, design, graphics, logos, button icons, images, audio clips, digital downloads, interfaces, data compilations, software, and code, and the compilation of all content on the site, as well as all software used on this site is the property of DXP and/or its affiliates and is protected by United States and international copyright laws.  Nothing contained on the Materials should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the copyrighted works displayed or contained in the materials without the express, written consent of DXP.

13. Confidentiality.  Affiliate recognizes that DXP may from time to time furnish to Affiliate information of a proprietary or confidential nature relating to DXP ("Confidential Information").  Affiliate shall (a) utilize Confidential Information only to the extent necessary in order to perform its obligations pursuant to this Agreement; (b) use commercially reasonable efforts to preserve and safeguard the proprietary or confidential nature of all Confidential Information; (c) not use DXP's Confidential Information for competing with DXP or for any purpose not solely in furtherance of its performance under this Agreement; and (d) not disclose to any person or entity (other than Affiliate's agents, and employees on a need-to-know basis) any Confidential Information except with DXP's prior consent.

The obligations under this section shall not apply to the disclosure or use of Confidential Information which (i) is or becomes publicly known other than by breach of this section or other action by Affiliate; (ii) is obtained without restriction by Affiliate on a non-confidential basis from a third party lawfully possessing and lawfully entitled to disclose such information; (iii) is previously known by Affiliate as evidenced by written material containing such information; (iv) is at any time independently developed by Affiliate without use or reference to any Confidential Information; or (v) is required to be disclosed by a government or judicial entity having proper jurisdiction over Affiliate provided that Affiliate promptly provides DXP notice and an opportunity to seek a protective order.

Affiliate agrees to keep confidential the terms of this Agreement, payment amounts, payment terms, and all other aspects of this relationship.
Affiliate acknowledges and agrees that any breach of this confidentiality provision would cause irreparable harm to DXP and Affiliate agrees that DXP may seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond.

Upon termination of this relationship, Affiliate agrees to immediately return or destroy all confidential information of DXP that is in its possession.  This Section 13 shall survive the termination of this Agreement.

14. Disclaimer of Warranty.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, DXP DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, OF NON-INFRINGEMENT, OF MERCHANTABILITY, OR OF FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, INCLUDING ANY AND ALL WARRANTIES WITH REGARDS TO AFFILIATE'S USE OF THE MATERIALS, ANY ADVERTISEMENTS, ANY WEBSITE, OR ANY OTHER WARRANTIES IN ANY OTHER WAY RELATED TO THIS AGREEMENT.  THE SERVICES DESCRIBED UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND "AS AVAILABLE."

15. Limitation of Liability.  IN NO EVENT SHALL DXP BE LIABLE FOR (A) LOSS OF ANTICIPATED PROFITS, BUSINESS, REVENUE, GOODWILL, OR OTHER LOSSES INCURRED IN CONNECTION WITH ANY SERVICES PROVIDED BY AFFILIATE OR DXP UNDER THIS AGREEMENT; (B) FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, DIRECTLY OR INDIRECTLY ARISING FROM THE PROVISION OF ANY ADVERTISEMENTS; (C) CLAIMS BY THIRD PARTIES THAT DXP OR AFFILIATE HAS VIOLATED ANY LAWS OR RIGHTS OF THIRD PARTIES; (D) AFFILIATE'S USE OF ANY OF DXP'S WEBSITES OR SERVICES; (E) AFFILIATE'S PARTICIPATION IN ANY PROGRAM OR CAMPAIGN; OR (F) AFFILIATE'S DISPLAY OF ANY MARKETING MATERIALS.  IN THE EVENT DXP IS FOUND LIABLE FOR ANY ACTION OR INACTION PURSUANT TO THIS AGREEMENT, DXP'S TOTAL CUMULATIVE LIABILITY FOR SUCH BREACHES, LOSSES, AND INJURIES SHALL BE THE LESSER OF (I) THE ACTUAL VALUE OF THE DAMAGES OR LOSSES INCURRED; OR (II) THE AMOUNT OF FEES PAID BY DXP TO AFFILIATE FOR THE APPLICABLE INSERTION ORDER DURING THE THREE (3) MONTHS PRIOR TO THE CLAIM ARISING.

16. Force Majeure.  Neither Party shall be responsible for any failure to perform its obligations under this Agreement if such failure is unforeseeable by the affected Party or beyond the reasonable control of the affected Party, such as acts of God, acts of civil or military authority, government regulations, labor strikes, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts, volcanic action, other major environmental disturbances, or unusually severe weather conditions.

17. Entire Agreement and Amendments.  This Agreement, along with any applicable Insertion Orders, are the entire Agreement between the Parties with respect to the subject matter hereof and supersede all prior oral or written Agreements, commitments, or understandings with respect to the matters provided for herein.  No course of prior dealings between the Parties and no usage of trade shall be relevant to supplement or explain any term used in this Agreement.  No amendment to or modification of this Agreement will be binding unless in writing and signed by both Parties.

18. No Assignment.  Affiliate may not assign this Agreement or any rights hereunder without the express written consent of DXP.  This Agreement is binding on the Parties' respective successors and permitted assigns.

19.	Severability.  If a court or arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, shall remain in full force and effect.

20. Waiver.  Failure to invoke any right, condition, or covenant in this Agreement by either Party shall not be deemed to imply or constitute a waiver of any rights, condition, or covenant.  No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of such claim or right unless the waiver or renunciation is in a written and signed agreement.

21. Third Party Benefit.  The Parties intend that no other person or entity is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the Parties, and that the covenants, undertakings, and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the Parties and their respective successors and assigns as permitted hereunder.

22. Attorney Fees.  In any action brought to enforce any provision of this Agreement, the losing Party shall pay the prevailing Party's reasonable attorney fees and costs.

23. Survival.  All terms and provisions of this Agreement that should be their nature survive the termination or expiration of this Agreement shall so survive.

24. Governing Law.  This Agreement and all rights and obligations hereunder, including matters of construction, validity, and performance, shall be governed by and construed according to the laws of the State of Delaware, without regard to its conflicts of laws provisions, and any disputes arising under or relating to this Agreement shall be brought exclusively in the state or federal courts of Wilmington, Delaward.

25. Execution.  This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.  The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or other electronic transmission shall be sufficient to bind the Parties to the terms and conditions of this Agreement.

26. Audit of Records.  Affiliate agrees to maintain adequate books and records related to Affiliate's distribution of Advertisements hereunder.  Such books and records shall be available at a place of business for inspection by DXP or its representative, for the purpose of determining whether the correct traffic amounts and payments have been provided in accordance with the terms of this Agreement.  DXP shall have the right to have such books and records audited twice (2) per year, upon thirty (30) days advance notice.  In the event that such examination finds a discrepancy greater than five percent (5%) of the total amount documented by Affiliate during any six (6) month period, Affiliate shall pay the full costs of such audit.

DXP AND AFFILIATE HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
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