AFFILIATE PROGRAM TERMS AND CONDITIONS INSURANKS.COM

AFFILIATE PROGRAM

 

TERMS AND CONDITIONS

INSURANKS.COM

 

Version Date: May 8th 2018

 

The following are the complete terms and conditions (these “Terms and Conditions”) between Insuranks Ltd. and you governing the Insuranks Affiliate Program (the “Program”). By submitting the application form, you agree to be bound to the terms and conditions set forth below which will constitute a binding and enforceable agreement between you (hereinafter referred to as “You”, “Your” or “Affiliate”) and Insuranks Ltd. (hereinafter referred to as “We” or "Company"). All websites, companies, or individuals must obtain official written approval from Company before becoming an affiliate ("Affiliate"). Only approved Affiliates are permitted to participate in the Program. An Affiliate is only eligible to earn fees generated during the term of these Terms and Conditions.

 

1.              Definitions:

1.1.                        “Affiliate Site” means all web sites owned or operated by Affiliate that are identified in the Affiliate’s application on the Company Site.

1.2.                        “API” means the proprietary applied programming interface developed by Company designed to be accessed by Affiliate to integrate Company’s proprietary insurance offering product into the Affiliate Site.

1.3.                        “Company Content” means, collectively, all of the content on the Company Site and/or materials provided or made available to Affiliate by Company, including any and all audio and audiovisual materials, data, images, files, hypertext links, scripts, services, tests, reports and any and all derivative works, improvements or modifications made to or created from the Company Content. Company Content does not include PII.

1.4.                        “Company Partner” means an insurance agent or insurance carrier that sells an insurance policy and has an account on the Company Site.

1.5.                        “Company Site” means any and all web sites owned and operated by Company.

1.6.                        “Embedded Code” means code provided by Company for embedding in the Affiliate Site which allows access to the functionality of the Company Site to users of the Affiliate Site.

1.7.                        “Insuranker” means a consumer that opens an account on the Company Site.

1.8.                        “Links” mean URLs or graphic and textual links that serve to identify the Affiliate Sites as a member of one or more of Company’s marketing initiatives or programs. Each Link will establish a link from the Affiliate Site to (i) the Company Site which may be co-branded; (ii) Company Content which may be co-branded and/or (iii) offers from Company’s marketing partners.

1.9.                        “Net Revenues” means revenues and/or fees that Company deducts from Company partners Qualifying Events, net of Permitted Offsets.

1.10.                    “Permitted Offsets” means bank fees, credit card processing charges, refunds, charge backs and other commissions Company pays related to Qualifying Events.

1.11.                    “Personally Identifiable Information” (“PII”) means any information or data provided by an Insuranker to (i) Affiliate that Affiliate discloses to Company or (ii) Company that Company discloses to Affiliate.

1.12.                     “Qualifying Event”  means the sale of an insurance policy to an Insuranker by a Company Partner where the Insuranker comes to the Company Site from the Affiliate Site through Links, the API or Embedded Code, and where the Insuranker does not already have an existing account on a Company Site. Company charges Company Partners a fee when Insurankers purchase insurance from the Company Partners, and the fees that Company charges the Company Partners are determined by Company in its sole discretion. A Qualifying Event is an original purchase of an insurance policy and does not include renewals or subsequent purchases. Company Site accounts are created with an email username. In order for an Insuranker to be “new” he or she must not already have an active account with Company using any email address in Company’s database.

 

2.              Affiliate Program:

2.1.                             As an Affiliate, you are a participant in the Program and you may receive from Company, as specifically set forth in Your account located in the password protected Affiliate Section of the Company Site:

2.1.1.                  A variety of Links, which, subject to the terms and conditions hereof, you may display on relevant areas of the Affiliate Site.

2.1.2.                  Information and direction that will allow you to use Company’s API or Embedded Code to drive traffic to the Company Site.

 

3.              Company Responsibilities:

3.1.                        Company will be responsible for providing, as promptly as practicable following the start of the term of these Terms and Conditions, all information necessary to allow you (i) to make appropriate Links from Affiliate Sites or (ii) to use Company’s API and/or Embedded Code.

3.2.                        We will be solely responsible for processing and tracking the volume and amount of traffic generated by Affiliate Sites. Company will from time to time change its services and Company Content to cater to the needs of the marketplace. All Company enhancements and new offerings will be automatically accepted by Affiliate by virtue of their continued performance under these Terms and Conditions. Any such Company changes shall not constitute cause for termination as described herein.

 

4.              Affiliate Responsibilities:

4.1.                        Affiliate Sites should meet certain minimum requirements, unless otherwise approved by Company, specifically they should:

4.1.1.                  in our sole opinion, be professionally designed with substantial content and must not have broken links or pages under construction;

4.1.2.                  be located in the USA, Canada, UK or Israel;

4.1.3.                  have adequate human traffic, as determined by Company and/or have human traffic in the range stated on the application form;

4.1.4.                  be written primarily in the English language;

4.1.5.                  not contain content or links to any material that Company in its sole and absolute discretion finds objectionable.

4.2.                        In utilizing the API, Company Content, Links or Embedded Code, You agree that You will cooperate fully with Company to establish and maintain such API, Company Content, Links or Embedded Code, including using Links and any code as provided by Company without modification. In order to permit accurate tracking and reporting, You will be responsible for ensuring that the Links and Embedded Code between the Company Site and Affiliate Sites are accurate and properly formatted. You agree that You will maintain the integrity of the API, Company Content, Links and Embedded Code, that You shall not alter or modify them in any way, and that You will only use the API, Company Content, Links and Embedded Code as expressly set forth in these Terms and Conditions to participate in our Program.

4.3.                        Affiliate shall display Company Content, Links and Embedded Code prominently in relevant areas of Affiliate Sites, subject to any and all limitations herein and with our consent.

4.4.                           Company has the right, based on Company’s sole and absolute discretion, to monitor Affiliate Sites at any time to determine if You are in compliance with the terms of these Terms and Conditions.

4.5.                        Affiliate shall not engage in any fraudulent conduct with respect to its relationship with Company. In the event that Company determines, in its sole and absolute discretion, that Affiliate has engaged in fraud, including generating fraudulent traffic, Affiliate agrees to forfeit any and all fees payable or owed to Affiliate by Company and to be subject to any other remedies available to Company at law or in equity, including termination of these Terms and Conditions. Company reserves the exclusive right, in its sole and absolute discretion, to determine if and when any such fraud exists.

4.6.                        Affiliate agrees that its use of the API, Company Content, Links and Embedded Code on Affiliate Sites will not mimic the look, feel, or functionality of the Company Site. Affiliate shall not alter, modify, or expand the Company Content, Links or Embedded Code in any way without Company’s express prior written consent.

4.7.                        Affiliate agrees not to remove or obscure any proprietary rights or legends (such as copyright or trademark notices) contained in any Company Content, Links, or Embedded Code. Affiliate further agrees not to decompile, reverse engineer, disassemble or otherwise reduce the API, Links or any Company Content in any manner, including to a human perceivable form, or permit any other party to do so for any purpose without our express authorization.

4.8.                        Affiliate agrees not to register any domain names, or bid on search engines, with any words, phrases or keywords that are used by or are trademarks or domain names of Company or any of its affiliated companies, subsidiaries or competitors.

 

5.                Mutual Responsibilities:

5.1.                        Each party is solely responsible for the development, operation and maintenance of its respective sites and for all materials that appear on such sites, except that Company is responsible for the development, operation and maintenance of the API. These responsibilities include, but are not limited to, the technical operation of the sites and all related equipment; the accuracy and propriety of materials posted on sites; ensuring that materials posted on the sites do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal.

5.2.                        Neither party’s sites will, in any way, copy or resemble the look and feel of the other party’s site, the other party’s site in any manner to create consumer confusion with regard to site look, feel or identity.

5.3.                        Neither party will “scrape" or “spider" the other party’s site or any other website for proprietary content of the other party (such as images, logos and text); furthermore, upon Company’s reasonable request, Affiliate shall immediately remove from the Affiliate Sites any API, Company Content, Link or Embedded Code to the Company Site which is displayed on a page which We, in our sole discretion, deem objectionable.

 

6.              Commissions/Fees: Affiliates promoting the insurance marketing services offered through the Company Site using Company’s API, Links or Embedded Code will qualify for a commission upon the occurrence of a Qualifying Event. The commission payable to Affiliate shall equal X% of the Y earning generated from the referred Z. For the avoidance of doubt, Company only accepts and pays for non-fraudulent, unique Qualifying Events.

 

         Here is an example of how the commissions work:

 

You referred 100 users. XYZ. Note that the fee we charge our Company Partners is subject to change at any given time.

 

7.              Commission Payment:

7.1.                        Within forty-five (45) days after the end of each calendar quarter (or other frequency agreed to by Company) we will send Affiliate a check for the payment of commissions that Affiliate has earned during such measurement period less any taxes required to be withheld under applicable law, provided: (i) Affiliate has not breached any of the Terms and Conditions of these Terms and Conditions; (ii) the total payment for the commission period equals or exceeds fifty dollars (US$50.00); (iii) Affiliate has previously provided us with a valid mailing address to which the payment may be mailed; and (iv) Affiliate has provided us with Affiliate’s valid taxpayer identification number. If the balance of your account is less than fifty dollars (US$50.00), we will roll over the balance to the next payment period.

7.2.                        Company will track and report Qualifying Events from Links, API and Embedded Code in order to determine proper commissions; however, payments will be based solely upon the reporting and tracking of Company. Affiliate may view traffic performance by logging into their account available online.

 

8.              Publicity and Intellectual Property: We grant you a non-exclusive, non-transferable, revocable license during the term of these Terms and Conditions to (i) access the Company Site through the API, Embedded Code and Links solely in accordance with the terms of these Terms and Conditions; (ii) to use our marks and logos only in the forms that they appear as provided to Affiliate by Company (the "Marks") solely in connection with such Links and only as permitted herein; and (iii) display the Links, Embedded Code or Company Content contained therein. You may not alter, modify, or change the Marks or the Company Content in any way.

 

9.              Promotion: Affiliate is free to promote Company or the Company products or services on Affiliate’s Sites and in its own e-mail and direct mail campaigns. Company’s advanced written approval as to form, content and placement, must be obtained in order for Affiliate to promote Company or the Company products or services on Affiliate’s Sites in any other manner, including, but not limited to, print and television advertising; third party banner, email, direct mail or other campaigns; SEO or SEM campaigns; or general advertising on third party sites. Whether through its own promotional campaigns or pre-approved promotional campaigns, Affiliate shall not:

9.1.                        promote Company or its products or services as or to adult content or as a hacker site, or promote or advertise Company or its products or services on any adult content or hacker sites, or otherwise link to any adult or hacker sites;

9.2.                        make any misrepresentation or engage in any deceptive practices in the promotion of Company or its products or services;

9.3.                        promote Company or its products or services in any manner that reasonably could be construed as damaging to Company or its reputation in any way;

9.4.                        (v) violate any foreign, federal, state, or local laws, rules, regulations, and ordinances, including, without limitation, the CAN-SPAM Act of 2003 (as amended), the Federal Telemarketing Sales Rules (including, without limitation, the Telemarketing Sales Rule (16 C.F.R. Part 310), the Telephone Consumer Protection Act (47 U.S.C. 227), provisions relating to the National Do Not Call Registry (16. C.F.R. Part 310) and applicable state Do Not Call List requirements), the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.), Section 5 of the FTC Act (collectively, “Laws”) applicable to your products or services or your performance hereunderany other applicable U.S. federal or state law concerning privacy or data security;

9.5.                        obligate Company in any way;

9.6.                        promote Company or its products or services in a profane, obscene or unlawful manner; or

9.7.                        provide Links to Company’s Site on non-Affiliate websites.

 

Any violation of the foregoing shall constitute an immediate material breach of these Terms and Conditions and Company reserves the right at any time to demand that Affiliate cease and desist. Affiliate agrees that it will cease and desist from any advertising and promotion of Company if Company determines in its sole and absolute discretion that such advertising and promotion would be detrimental or harmful to Company or any goodwill therein. Affiliate also agrees that any email lists and practices used to promote Company are in full compliance with industry best practices, the CAN-SPAM Act of 2003, as amended, and any rules and regulations promulgated thereunder, as well as any and all other local, state or federal laws, rules or regulations. Nothing contained herein shall restrict or limit Company’s rights to advertise and promote Company products and services to anyone.

 

10.           Indemnification: Affiliate shall indemnify, defend and hold harmless Company, and its affiliates and the officers, directors, employees and agents of the other party and its affiliates (each an “Indemnified Party”) against and in any respect from any and all claims, obligations, demands, suits, actions, settlements, judgments, fines, penalties, liabilities, injuries, damages, losses, costs (including, but not limited to court costs), expenses and the like (including, but not limited to, reasonable attorney’s fees), whether liquidated or unliquidated (where applicable) (collectively “Claims”) that arise out of any third party Claims asserted against an Indemnified Party due to, or in any way connected with (i) Affiliate’s violation of any privacy right(s) recognized under any jurisdiction including U.S. state, U.S. Federal or international law, (ii) any breach of Affiliate’s obligations under these Terms and Conditions, (iii) services or products sold or conveyed by Affiliate, or (iv) any intellectual property infringement cause of action, negligent or willful misconduct or other breach of applicable law that was proximately caused by the acts or omissions of Affiliate, or the directors, officers, employees, agents or contractors of Affiliate. Affiliate’s obligation to indemnify, defend and hold harmless the Indemnified Party shall be conditioned upon the following:

10.1.                    The Indemnified Party shall promptly notify Affiliate of any Claim made against the Indemnified Party relating to Affiliate’s obligations under this Section.  However, the failure to give such notice shall release Affiliate from its obligations under this Section only to the extent the failure to give such notice has prejudiced Affiliate.

10.2.                    Affiliate shall have exclusive control over the defense of any Claims; provided, however, that in no event shall Affiliate settle or consent to any judgment in a Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.

10.3.                    The Indemnified Party shall offer Affiliate all reasonable cooperation and assistance in the defense of any such Claim at Affiliate’s expense.

 

11.               Use and Confidentiality of PII: Affiliate and Company may exchange PII during the course of these Terms and Conditions. By way of example, when a user is referred to Company through the API, Affiliate will likely disclose certain PII, including, but not limited to, name, postal address and email address to facilitate the user’s access to Company’s services. Both Company and Affiliate agree to use PII only in a manner consistent with their respective Terms of Use and Privacy Policies. Affiliate and Company each represents and warrants that (i) its Terms of Use and Privacy Policy (or links thereto) shall be conspicuously posted on its respective site and (ii) its Terms of Use and Privacy Policy shall comply with all applicable laws, rules and regulations.

 

12.           Ownership: Notwithstanding any other provision in these Terms and Conditions, each party shall be the sole and exclusive owner of (or have legal license to use) all its (i) intellectual property which includes, without limitation, technology, trademarks, trade names, patents and copyrights; (ii) Confidential Information and (iii) PII, except as provided herein. Neither party shall use the intellectual property, Confidential Information or PII of the other, except as provided herein, without the prior written permission of the owner.

 

13.            Exclusivity: Affiliate agrees not to enter into any agreement with any other provider of insurance product sales services for the placement of links or other forms of integration on Affiliate’s Site or to any co-branded site during the term of these Terms and Conditions.

 

14.           Assignment: Subject to the next sentence, these Terms and Conditions may not be assigned by Affiliate without the prior written consent of Company. Company may freely assign these Terms and Conditions. These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective permitted heirs, successors, and assigns.

 

15.           Tax Obligations: Each party shall be solely responsible for all tax obligations due to all taxing authorities arising from or in connection with its participation in the Program, including, without limitation, foreign taxes, United States federal, state, and local withholding taxes, FICA, FUTA, Social Security, and Medicare, and any other such taxes and deductions ("Taxes") with respect to any earnings or payments made hereunder, whether or not Company legally is required to deduct said Taxes from the payments due to Affiliate hereunder. Affiliate understands and agrees that Company shall not be responsible for withholding any Taxes from any payments due to Affiliate. Consistent with Section 10 above, Affiliate agrees to indemnify and reimburse Company from any claim for assessment of Taxes by any foreign, United States federal, state, and/or local taxing authority, and any other costs and damages, arising from or in connection with the operation of this Section.

 

16.            Disclaimer of Warranty: DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, WE CANNOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE API, LINKS, EMBEDDED CODE OR OUR SERVICES. WITHOUT LIMITING THE ABOVE, THE API, LINKS, EMBEDDED CODE, OUR SERVICE AND ANY OTHER MATERIALS PROVIDED TO YOU ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, AND: (A) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS THEREIN, (C) THAT A PARTY’S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE FACE OF ALL ATTACKS, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET FORTH THEREIN OR THEREON, OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF THE COMPANY SITE. ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK, AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. SINCE SOME JURISDICTIONS LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, COMPANY’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.

 

17.            Limitation on Liability: COMPANY SHALL HAVE NO LIABILITY TO AFFILIATE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, NOR FOR ANY LOSS OF DATA, EQUIPMENT DOWNTIME, OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, COMPANY’S AGGREGATE LIABILITY TO AFFILIATE ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM WILL IN NO EVENT EXCEED THE GREATER OF $100 AND THE FEES PAYABLE BY COMPANY TO AFFILIATE DURING THE PERIOD OF THREE MONTHS PRIOR TO A CAUSE OF ACTION ARISING. SINCE SOME JURISDICTIONS RESTRICT THE ABILITY TO LIMIT LIABILITIES, EACH PARTY’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.

 

18.           Relationship of Parties: The parties to these Terms and Conditions are independent contractors, and nothing in these Terms and Conditions will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party will have authority to make or accept any offers or representations on the other party’s behalf. Neither party will make any statement, whether on Affiliate's or Company’s Site(s) or otherwise, that reasonably could be construed to contradict anything in this section.

 

19.           Force Majeure: Neither party shall be liable to the other party for any delay or default hereunder to the extent due to any cause beyond its reasonable control regardless of whether such delays or failures in performance were foreseen or foreseeable as of the date of these Terms and Conditions, including, without limitation: acts of nature, unusually severe weather conditions, riot, sabotage, volcano, military authority, fire, explosion, power failure, acts of god, war, revolution, civil commotion, or acts of public enemies; labor unrest, including, without limitation, strikes, slowdowns, picketing or boycotts; or delays caused by the other party or by other service or equipment vendors; default due to Internet disruption or any other acts or occurrences beyond the party’s reasonable control (any of the foregoing, a “Force Majeure Event”). All obligations hereunder shall resume upon the cessation or remediation of such Force

Majeure Event. Notwithstanding the foregoing, in no case shall a Force Majeure Event require the non-performing party to settle any labor dispute except as the non-performing party, in its sole discretion, determines appropriate.

 

20.           Term and Termination: The term of these Terms and Conditions will begin upon written notice by Company that the Affiliate has been approved to participate in Company’s Affiliate Program (such approval may be in the form of electronic notification). The term will be continuous unless and until either party notifies the other in writing that it wishes to terminate these Terms and Conditions, in which case these Terms and Conditions will terminate immediately. TERMINATION MAY BE AT WILL, FOR ANY REASON, BY EITHER PARTY. Upon termination of these Terms and Conditions, Affiliate shall immediately remove all Company Content, Links and Embedded Code from the Affiliate Site and/or stop using the Company Content, Links, Embedded Code and API and provide Company with written confirmation of same. For purposes of notification of termination, delivery via email is considered a written and immediate form of notification. Affiliate will not be entitled to any compensation for post-termination traffic resulting from Links, API and Embedded Code remaining on the Affiliate Site following termination. Affiliate will not be entitled to any commission for any Qualifying Events occurring after termination. In the event Company terminates these Terms and Conditions for material breach, Affiliate shall forfeit its right to any unpaid commissions otherwise due and owing under these Terms and Conditions. Any provisions, rights or obligations that should reasonable be construed to survive termination shall survive any expiration or termination of these Terms and Conditions.

 

21.           Modification:  These Terms and Conditions may be modified by Company upon thirty (30) days’ prior written notice to Affiliate.

 

22.           Entire Agreement: These Terms and Conditions is the entire agreement between the Affiliate and Company with respect to the subject matter of these Terms and Conditions, and supersedes any affiliate agreement posted on the Company web site as well as all prior and contemporaneous agreements express or implied, oral or written, except as herein contained.

 

23.           Inaccuracies/Typos: Company is not responsible for typos or misprints contained within its web site, and therefore, Company reserves the right to correct typos, errors and descriptions as needed to maintain reasonably accurate information. Under no circumstances will Company be liable for misquoted content.

 

24.           Governing Law; Jurisdiction.

 

24.1.                    These Terms and Conditions and all aspects of the Company Site and services shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflict of law provisions. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in New York County, State of New York, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from these Terms and Conditions. Additionally, application of the Uniform Computer Information Transactions Act (UCITA) is excluded from these Terms and Conditions. In no event shall any claim, action or proceeding by you related in any way to the Company Site or services be instituted more than one (1) year after the cause of action arose.

 

24.2.                    To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms and Conditions ("Dispute"), you and Company agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other.

 

24.3.                    If you and Company are unable to resolve a Dispute through informal negotiations, either you or Company may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in New York County, State of New York. Except as otherwise provided in these Terms and Conditions, you and Company may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

 

24.4.                    You and Company agree that any arbitration shall be limited to the Dispute between Company and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

 

24.5.                    You and Company agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of any of your or Company’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief. If this Section is found to be illegal or unenforceable then neither you nor Company will elect to arbitrate any Dispute falling within that portion of this Section found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and you and Company agree to submit to the personal jurisdiction of that court.