Vloggi Affiliate Program Agreement

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Welcome to the Vloggi affiliate program

 

Our affiliates are very important to us. We do our best to treat you with the fairness and respect you deserve. We simply ask the same consideration of you. We have written the following affiliate agreement with you in mind, as well as to protect our company’s good name. So please bear with us as we take you through this legal formality.

If you have any questions, please don’t hesitate to let us know. We are strong believers in straight-forward and honest communication. For quickest results please email us at affiliates@vloggi.com.

Best regards

Vloggi Affiliate Team

 

Contractual relationship

PLEASE READ THE ENTIRE AGREEMENT.

YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND Vloggi, Pty Ltd (operator of vloggi.com).

Please read the terms and conditions of this affiliate program agreement carefully before you join our program or begin marketing our program. These terms and conditions are written in plain language intentionally avoiding legalese to ensure that they may be clearly understood and followed by affiliates. Each Affiliate is responsible for assuring that its employees, agents and contractors comply with this agreement.

BY SUBMITTING THE ONLINE APPLICATION TO JOIN OUR AFFILIATE PROGRAM, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.

This Agreement was last modified on 22 February 2022 (the Effective Date).

These terms and conditions govern the contractual relationship between Vloggi Pty Ltd of Sydney, NSW, Australia, its successors, affiliates, licensees (“Vloggi” , “Licensee” “us” or “we”)

and

you (“Affiliate” or “you” ) in relation to the grant of rights being provided by you in relation to the content created by you on our behalf.

1. Definitions

1.1  Except to the extent expressly provided otherwise, in this Agreement:

  • “We”, “us”, or “our” refers to Vloggi Pty Ltd and our website

  • “You” or “your” refers to the Affiliate

  • “Our website” refers to the Vloggi website located at www.vloggi.com

  • “Your website” refers to any websites that you will link to our website

  • “Program” refers to the Vloggi Affiliate Program

  • “User” means an individual who visits or uses the Vloggi platform, including via the API.

  • “Affiliate Interface” means FirstPromoter
  • “Registered User” means a User with an active account on the Platform.
  • “Project Owner” means a User that licenses video content submitted by Contributors. 
  • “Contributor” means the person providing footage and captions to Vloggi
  • “Content” means certain textual or audio-visual materials created by the Contributor or Project Owner in the Platform
  • “Montage” means the finished video program compiled by the project Owner from Contributor Content in the Platform
  • “Project” means a crowdsourcing project that is promoted by a Project Owner and in respect of which a Contributor can submit one or more entries via the Uploader tool or App.
  • “Project Brief” means the document setting out the scope of a Project, including but not limited to items such as a video story crowdsourcing.
  • “Inactive Account” means a User Account that has not been logged into for a 6 month period, or other period determined by us from time to time.
  • “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or not registrable, registered or unregistered, including any application or right of application for such rights (and these Intellectual Property Rights include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
  • “Schedule” means any schedule attached to the main body of this Agreement
  • “Contributor Services” means all services provided by a Contributor.
  • “Vloggi”, “we”, “our”, “company” or “the company” or “us” means Vloggi Pty Ltd (ACN 630 061 246).
  • “Term” means the term of this Agreement, 
  • “Platform” means the video creation websites operated by Vloggi and available at: vloggi.com, studio.vloggi.com, upload.vloggi.com and any of its regional or other domains or properties, and any related Vloggi service, tool or application, specifically including mobile web, any iOS App and any Android App, or API or other access mechanism.

2. Affiliate obligations

2.1 Enrolment

To begin the enrolment process, you will complete and submit the online application at FirstPromoter. After receiving your application, we will review your website and notify you of your acceptance or rejection into our Program.

Please allow up 48 hours for your application to be reviewed. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time.

We reserve the right to reject any application for any reason, however we encourage you to contact us if you feel we have made an incorrect decision. Including all of the websites that you use in your profile will help us make a better decision.

3. Website restrictions

3.1 Your participating website(s) may not:

  1. Infringe on our or any anyone else’s intellectual property, publicity, privacy or other rights.
  2. Violate any law, rule or regulation.
  3. Contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials.
  4. Contain any viruses, trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information.
  5. Contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website. This includes toolbars, browser plug-ins, extensions and add-ons.

4. Linking to our website

4.1 Link restrictions

Upon acceptance into the Program, links will be made available to you through the FirstPromoter interface.  You will be able to review the Program’s details and previously-published affiliate newsletters, download code that provides for links to web pages within the our website and banner creatives, browse and get tracking codes for our coupons and deals.

Your acceptance in our Program means you agree to and abide by the following.

  1. You will only use linking code we provide you for each banner, text link, or other affiliate link obtained from the affiliate interface without manipulation.
  2. We reserve the right, at any time, to review your placement and approve the use of Your Links and require that you change the placement or use to comply with the guidelines provided to you.
  3. All domains that use your affiliate link must be listed in your affiliate profile.
  4. Your Website will not in any way copy, resemble, or mirror the look and feel of our Website. You will also not use any means to create the impression that your Website is our Website or any part of our Website including, without limitation, framing of our Website in any manner.
  5. You may not engage in cookie stuffing or include pop-ups, false or misleading links on your website. In addition, wherever possible, you will not attempt to mask the referring url information (i.e. the page from where the click is originating).
  6. Using redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain (also known as cloaking) is prohibited. 
    If you are found redirecting links to hide or manipulate their original source, your current and past commissions will be voided or your commission level will be set to 0%. This does not include using “out” redirects from the same domain where the affiliate link is placed.
  7. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
  8. 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 will not be responsible (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.
  9. You will not, in connection with this Agreement, display or reference on your site, any trademark or logo of any third party seller appearing on our website unless you have an independent license for the display of such trademark or logo; use any data, images, text, or other information obtained by you from us or our website in connection with this Agreement only in a lawful manner and only in accordance with the terms of this Agreement.
  10. We grant you a limited, nonexclusive, non-transferable, revocable right to use the graphic image and text solely for the purpose of you participating in the Program. You may not modify the graphic image or text in any way. All of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights are reserved. Should we decide to revoke your license, we will give you notice.
  11. You acknowledge our ownership of our licensed materials, agree that you will not do anything inconsistent with our ownership and that all of your use of the licensed materials will inure to the benefit of, and on behalf of, the Program and, if requested, agree to assist us in recording this Agreement with appropriate government authorities. You agree that nothing is this Agreement gives you any right, title or interest in the licensed materials other than the right to use the licensed materials in accordance with this Agreement. You also agree that you will not attack the our title to the licensed materials or the validity of the Licensed Materials or this Agreement.

5. Pay Per Click Guidelines

5.1 Vloggi is a trademarked term used under license by Vloggi Pty Ltd on behalf of Ciné Souk Pty Ltd

 

  1. You may not bid on any of our trademarked terms (which are identified below), including any variations or misspellings thereof for search or content-based campaigns on Google, Bing, MSN, Yahoo, Facebook or any other network unless given written permission first from us.
  2. You may not use our trademarked terms, including any variations or misspellings as per Nº. 1 above, in sequence with any other keyword (including, but not limited to ‘Vloggi Coupons’, ‘Vloggi Discount Codes’, ‘Vloggi Promo’, etc).
  3. You may not use our trademarked terms in your ad title, ad copy, display name or as the display url.
  4. You may not direct link to our website from any Pay Per Click ad or use redirects that yield the same result. Customers must be directed to an actual page on your website.
  5. You may not bid in any manner appearing higher than us for any search term in position 1-5 in any auction style pay-per-click advertising program.
  6. If you automate your PPC campaigns, it is your responsibility to exclude our trademarked terms from your program and we strongly suggest you add our trademarked terms as negative keywords. We have a strict no tolerance policy on PPC trademark bidding. If discovered brand bidding on PPC campaigns, you will be sent an email asking to remove the ads in question within 24 hours. If the ads are not removed within 24 hours you will be removed from the program permanently and all commissions associated with the violations will be reversed.

7. Trademarked terms

TRADEMARKED TERMS

The following list of trademarked terms should not be treated as an exhaustive list (but as a list of some of the prohibited terms):

Vloggi, vloggi.com, www.vloggi.com, vloggi.net, vloggi.com.au, vlog.gi, Vloggi coupon, Vloggi coupon code, Vloggi discount, Vloggi discount code, Vloggi promo, Vloggi promo code, Vloggi sale, Vloggi sales, Vloggi deal, Vloggi deals

 

8.Coupon guidelines

8.1 If you are enrolled in our Program and your Website promotes coupon codes, you must adhere to our Coupon Guidelines as follows:

 

  1. You may ONLY advertise coupon codes that are provided to you through the affiliate program.
  2. Posting any information about how to work around the requirements of a coupon/promotion (i.e. first-time customers only) will result in removal from the program.
  3. Coupons must be displayed in their entirety with the full offer, valid expiration date and code.
  4.  You may NOT use any technology that covers up the coupon code and generates the affiliate click by revealing the code(s).
  5. You may NOT advertise coupon codes obtained from our non-affiliate advertising, customer e-mails, paid search, or any other campaign.
  6. You may NOT give the appearance that any ongoing offer requires clicking from your website in order to redeem. For example, if all items on the site have free shipping over $100, you may not turn this into an offer that infers that the customer must click from your site to get this deal.
  7. Additionally, if your website ranks on the first page of any search engine for terms related to our website or company name(s) combined with the words coupon, coupons, coupon code, promo code, etc. and/or your conversion rate exceeds 25%, you may be offered a lower commission than our standard rate to offset the reduced profitability of orders. 

9. Coupon attribution and authentication

9.1 Affiliates whose primary business is posting coupons, who are viewed by the program as being a coupon site, and/or who are tagged as a coupon affiliate in our system, may not be paid commissions for sales generated without a corresponding valid coupon code. Valid codes are defined as codes that are made available to the affiliate channel in general, through newsletters or the respective section in your affiliate interface, and directly or privately to affiliates. Coupon codes that are not real, expired, not specific (i.e. ‘up to 40% off sale items’) or are long-term, sitewide offers that do not require a code may not be considered valid codes and the affiliate will not be given commission on these orders

10. Sub affiliate networks

10.1 2nd tier affiliate promotion is permitted

Promoting us through a sub-affiliate network is permitted, however you must be completely transparent with regards to where traffic from your sub-affiliates originated. Sub-affiliate networks must ensure that all sub-affiliates promoting the Program adhere to our terms and conditions. This includes restrictions on advertising through toolbars, browser extensions, and through any paid placements such as a pay-per-click campaigns. Sub-affiliate networks must also receive approval prior to allowing any type of coupon sub-affiliate to promote the Program.
Failure to comply with our sub-affiliate network terms may result in a loss and/or reduction of commission from sales made through any sub-affiliate that does not comply with our terms.

11. Domain names

11.1 Use of any of our trademarked terms as part of the domain or sub-domain for your website is strictly prohibited. If you have any doubt, please contact our team prior to setting up your website.

    OK
    www.website.com/vloggi

    Not OK
    vloggi.website.com
    www.vloggi-coupons.com

12. Email marketing

12.1  If you intend to promote our Program via e-mail campaigns, you must adhere to the anti-spam and privacy regulations in your website’s registered territory. 

These include (but are not restricted to:

  • Emails originating in the United States or sent to United States residents must abide by the CAN-SPAM Act of 2003 
  • Emails originating in the Canada or sent to Canadian residents must abide by Canadian Anti-Spam Law (La Loi canadienne anti-pourriel)
  • Emails originating in the European Union or sent to European Union residents must abide by the European Union General Data Protection Regulation.
  • Emails originating in the United Kingdom or sent to United Kingdom residents must abide by the UK General Data Protection Regulation
  • Emails originating in Australia or sent to Australian residents must abide by the Anti-Spam Act (Cth). 
  • Emails originating in other jurisdictions or  sent to residents of other jurisdictions must abide by the regulations in place in that territory. It is your responsibility to ensure your communications are compliant and no responsibility will be borne b y us for any failure to observe laws in place. 

 

12.2. E-mail must be sent on your behalf and must not imply that the e-mail is being sent on behalf of us.

12.3. E-mails must first be submitted to us or our 2nd tier affiliate agent for approval prior to being sent or we must be sent a copy of the e-mail.

13. Social media marketing

13.1 Promotion on Facebook, Twitter, Instagram, YouTube and other social media platforms is permitted following these general guidelines:

  1.  You ARE allowed to promote offers to your own lists; more specifically, you’re welcome to use your affiliate links on your own Facebook, Twitter, etc. pages. For example, You may post, ‘25% off sale at Vloggi through Wednesday with code GET25’.
  2. You ARE PROHIBITED from posting your affiliate links on our Facebook, Twitter, Pinterest, etc. accounts or company pages in an attempt to turn those links into affiliate sales.
  3. You ARE PROHIBITED from running Facebook ads with our trademarked company name.
  4. You ARE PROHIBITED from creating a social media account that includes our trademark/s in the page name and/or username.

14. Operations inside the European Union

14.1 If you are conducting business in or taking orders from persons in the European Union you will comply with the European Union’s Privacy and Electronic Communications Directive, as well as the General Data Protection Regulation (GDPR), if you are conducting business in or taking orders from persons in one or more of the European Union countries.

15. Sponsored post disclosure requirements

 

15.1 Where required by law, you shall include a disclosure statement within any and all pages, blog/posts, or social media posts where affiliate links for our affiliate program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement.

15.2 This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from the affiliate management team for review, this also must be clearly stated in your disclosure.

15.3 Disclosures must be made as close as possible to the claims.
15.4 Disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure. (e.g. Disclosure should be visible before the jump).
15.5 Pop-up disclosures are prohibited.

For more information about disclosure requirements in the United States, please review the US Federal Trade Commission’s Dot Com Disclosures Guidelines and the FTC’s Endorsement Guidelines.

16. Vloggi rights and obligations

16.1 We have the right to monitor your site 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 site that we feel should be made, or to make sure that your links to our web site are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Program.

16.2 We reserve 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 this program in any way. If such fraud or abuse is detected, we shall not be liable to you for any commissions for such fraudulent sales.

 

17. Jurisdiction

17.1 This Agreement shall be governed by and construed in accordance with the law of New South Wales, Australia and the parties hereby agree that the courts of NSW shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.

18. Acceptance

18.1 This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.

19. Termination

19.1 Either you or we may end this Agreement AT ANY TIME, with or without cause, by utilizing the respective functionality of the affiliate platform. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.

19.2 Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to our website, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program.

19.3 You are eligible to earn commissions only on sales of qualifying products that occur during the term, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

20. Client ownership

20.1 Registered Users who buy products through this the Program are our customers. All of our standard policies and operating procedures will apply to these customers. We may change our policies and operating procedures at any time. Product prices and availability may vary from time to time. 

21. Order processing

21.1 Only items that were purchased by customers who use the Program Affiliate Link from your site to our website are considered ‘direct sales’. Direct sales placed through the Program Affiliate Link on your site are reduced by items that are not shipped, cancelled by customers, returned, charged back or refunded at a later date.

21.2. We reserve the right to exclude items ordered by you (using the Program Affiliate Link which would otherwise qualify for direct sales) and to not pay commissions for them, if we deem it necessary, in our sole discretion, to prevent abuse of the Program, or to reject orders that do not comply with any requirements that we periodically may establish.

21.3. We will be responsible for processing orders and will handle all customer service issues. We will track sales by customers who purchase products by using the Program Affiliate Link from your site to our website. A statement of activity is available to you through your affiliate interface.

22. Payment

22.1 You will be paid according to the conditions set out in the Affiliate Platform. To view conditions, log into FirstPromoter and head to dashboard. 

23. Access to FirstPromoter

23.1 You will create a password at Firstpromoter.com so that you may enter your secure affiliate account interface. From their site you will be able to receive your reports that will describe our calculation of the commissions due to you.

24. Transaction locks

24.1 All sales will remain in a ‘sales pending period’ and will not lock until the terms set forth within the locking period parameters of our Program. All locked payments will be processed by us after the lock date.

25. Reversal and communications

25.1 We take pride in our low reversal rate, which we attribute to open communication with our affiliates. However, we reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and program violations as outlined in these terms and conditions.

Additionally, if we ask you for clarification or more information on any orders or clicks that we suspect may be in violation of our terms and conditions, we expect that you will respond in a timely and honest manner. Below are violations of our communications policy:

  1. You are not forthcoming, intentionally vague or are found to be lying.
  2. You are not responsive within a reasonable time period and after multiple attempts to contact with information listed in your network profile.
  3. You cannot substantiate or validate the source of your traffic to our program with clear and demonstrable proof.
  4. If any of the above apply, then we reserve the absolute right to reverse orders, set your commission to 0% or suspend you from the program for the period or orders in question or terminate you from the program altogether. We know that many violations are a result of automated processes; however, it is incumbent upon each affiliate to ensure that it has the appropriate checks and balances in place to pro-actively address these issues and adhere to our program rules.

26. Grant of licenses

26.1 We grant to you a 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.

26.2. 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 the Program and the good will associated therewith will inure to the sole benefit of us.

26.3. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.

26.4. Except for the limited license granted under this section, you do not obtain any rights under this Agreement in any intellectual property, including, without limitation, any intellectual property with respect to our Affiliate Link, link formats, technical specifications, guidelines or graphical artwork referenced above, or with respect to our domain name.

27. Representations and warranties

27.1 You represent and warrant that:

  1. 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;
  2. 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;
  3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.

28. DISCLAIMER

VLOGGI MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING OUR PROGRAM, SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF OUR ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. 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

29. LIMITATION OF LIABILITIES

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 VLOGGI’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 COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.

30. Indemnification

You hereby agree to indemnify and hold harmless Vloggi, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, 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 Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.

31. Confidentiality

All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.

32. Relationship between parties

  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 us. 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 of Your Site or otherwise, that reasonably would contradict anything in this Section.
  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.
  3. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
  4. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
  5.  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.
  6. 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.
  7. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

33. INDEPENDENT INVESTIGATION

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME ADMIT OTHERS INTO THE PROGRAM ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.