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AFFILIATE PROGRAM AGREEMENT |
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This Affiliate Program Agreement ("Agreement")
contains the complete terms and conditions that apply to your participation in
the Home Concepts Affiliate Program and the establishment of links from your
web site to the Home Concepts web site located at "www.homeconcepts.ca"(the
"Web Site"). You may also be referred to herein as "PARTICIPANT", "You" or
"Party". Home Concepts may also be referred to as "We" or "Us". |
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1.The Affiliate Program: |
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(a) As a PARTICIPANT, we will make available to
you via the Web Site a variety of graphic and textual links (each of these
links sometimes being referred to herein as "Links" or, individually, as a
"Link"), which, subject to the terms and conditions of this Agreement, you may
display as often and in as many areas of your web site as you desire. The Links
will serve to identify your site as a PARTICIPANT of our Affiliate Program and
will establish a link from your site to the Web Site for your participation in
the Affiliate Program. You agree that you will display on your Web Site only
those graphic or textual images (indicating a Link) that are provided to you by
Home Concepts.
(b) To commence the process of enrolling as a PARTICIPANT in
the Affiliate Program, you will submit an Enrollment Application via our Web
Site or as otherwise authorized by Home Concepts. We will evaluate your
application and notify you of your acceptance or rejection; which determination
shall be in our sole discretion. |
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2. Term: |
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(a) This Agreement is conditioned upon and will
become effective on our acceptance of your Enrollment Application and your
acceptance of the terms of this Agreement. By joining or participating in the
Affiliate Program you are acknowledging that You have read this Agreement and
are agreeing to abide by all the terms of this Agreement, which may be amended
from time to time in the sole discretion of Home Concepts. We will notify You
of any amendment by posting a notice on the Web Site or, in our sole
discretion, by E-mail and Your continued participation in the Affiliate Program
after such notice is posted or sent via E-mail shall constitute your binding
and legally enforceable agreement to such amendment and acceptance of the
Agreement as amended. Either party may terminate this Agreement at any time,
with or without cause by giving the other party notice of termination. The
first twelve months following the date this Agreement becomes effective and
every twelve months thereafter that this Agreement remains in full force and
effect are each a "Term Year". You fully understand that this Agreement creates
legally binding obligations on Your part.
(b) PARTICIPANT is only eligible
to earn commissions on sales which are completed during the term of this
Agreement, and commissions earned through the date of termination will be
payable only if the related purchases are not canceled or returned. Home
Concepts may withhold PARTICIPANT'S final payment for a reasonable time to
ensure that the correct amount is paid. |
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3. Commissions: |
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(a) For products that are purchased by consumers
upon linking to the Web Site directly from your web site, or other approved
promotional tools (e.g. emails), utilizing a URL(s) approved by Home Concepts
and for which Home Concepts has delivered the ordered products and received
full payment (each a "Qualifying Purchase(s)"), PARTICIPANT will receive the
following commission which will be based on "Net Sales" of Qualifying
Purchase(s): An 18% commission for quarterly Net Sales. "Net Sales" is defined
as the gross sales price of a Qualifying Purchase less taxes, service charge,
shipping, relay and handling charges, discounts, gift certificates, promotional
offers (e.g., airline miles, points, e-money etc.), credit card processing
fees, credits, refunds, rebates and chargebacks. PARTICIPANTS are responsible
for inserting a tracking code in the manner designated by Home Concepts to
ensure accurate tracking of Qualifying Purchases.
(b) Home Concepts will
pay you or cause you to be paid, within twenty (20) days after the end of each
calendar quarter in accordance with the above mentioned commission structure
provided total commissions due to you for such quarter exceed Fifty Dollars
($50) CAD (Canadian Dollar). The check (or other alternate payment method as
selected by Home Concepts) will be for the applicable commission (less any
taxes required to be withheld pursuant to applicable law). For any calendar
quarter in which your commissions do not exceed $50, Home Concepts shall have
the option to pay same or to withhold such payment and add such commissions to
the next calendar quarter for which you are entitled to receive a commission
payment. Furthermore, you will be given a password which will enable you to
receive your sales statistics on a reasonable basis.
c) All commisions are
paid in Canadian Dollars (CAD). |
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4. Legal Compliance; Representations and
Warranties: |
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PARTICIPANT shall operate your web site and
render your services in compliance with all applicable laws, rules and
regulations, and PARTICIPANT will be solely responsible for obtaining all
required governmental authorizations necessary for its web site and the full
performance of your services as provided for under this Agreement. PARTICIPANT
hereby further represents and warrants that:
(a) if a corporation, you are
a corporation duly organized and validly existing and in good standing under
the laws of the state or province of your incorporation;
(b) you have full
power and authority to enter into this Agreement and to perform your
obligations hereunder;
(c) you have obtained all permits, licenses, and
other governmental authorizations and approvals required for your performance
under this Agreement;
(d) your web site and the services to be rendered by
PARTICIPANT under this Agreement neither infringes nor violates any patent,
copyright, trade secret, trademark, or other proprietary right of any third
party;
(e) this Agreement has been duly and validly executed, accepted and
delivered by PARTICIPANT and constitutes your legal, valid and binding
obligation, enforceable against PARTICIPANT in accordance with its terms;
(f) the execution, acceptance, delivery and performance by PARTICIPANT of
this Agreement, and the consummation by you of the transactions contemplated
hereby will not, with or without the giving of notice, the lapse of time, or
both, conflict with or violate (i) any provision of law, rule or regulation to
which you are subject, (ii) any order, judgment or decree applicable to
PARTICIPANT or binding upon its assets or properties; (iii) any provision of
PARTICIPANT'S by-laws or certificate of incorporation, or (iv) any agreement or
other instrument applicable to PARTICIPANT or binding upon your assets or
properties;
(g) PARTICIPANT is the sole and exclusive owner of
PARTICIPANT'S Marks, as defined herein, and has the right and power to grant
Home Concepts the license to use PARTICIPANT'S Marks in the manner contemplated
herein, and such grant does not and will not (i) breach, conflict with, or
constitute a default under any agreement or other instrument applicable to you
or binding upon your assets or properties, or (ii) infringe upon any trademark,
trade name, service mark, copyright, or other proprietary right of any person
or entity;
(h) no consent, approval, authorization of, or exemption by, or
filing with, any governmental authority or any third party is required to be
obtained or made by you in connection with the execution, delivery, and
performance of this Agreement, or the taking by you of any other action
contemplated hereby;
(i) there is not pending, or to the best of
PARTICIPANT'S knowledge, any threatened claim, action, or proceeding against
PARTICIPANT, or any affiliate of yours, with respect to the execution, delivery
or consummation of this Agreement, or with respect to your Marks, and, to the
best of your knowledge, there is no basis for any such claim, action or
proceeding and
(j) PARTICIPANT will fully comply with all laws, rules and
regulations applicable to Privacy and the sending of unsolicited commercial
emails (SPAM) and other communications to consumers and other third parties.
PARTICIPANT shall ensure that your web site accurately and adequately
discloses, either through a privacy policy or otherwise, how you collect, use,
store, and disclose data from visitors, including, where applicable, that third
parties (including advertisers) may serve content and/or advertisements and
collect information directly from visitors and may place or recognize cookies
on visitors' browsers. |
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5. Maintenance; Representations and
Warranties: |
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(a) PARTICIPANT shall monitor and periodically
test the general availability and operation of your web site. PARTICIPANT
represents and warrants that its web site will perform adequately so that
customers will be able to shop for Home Concepts' products.
(b) PARTICIPANT
is solely responsible for the development, operation and maintenance of its web
site and for all materials and content that appear on PARTICIPANT'S web site.
Such responsibilities include, but are not limited to, the technical operation
of PARTICIPANT'S web site and all related equipment; the accuracy and propriety
of all materials and content posted on PARTICIPANT'S web site; and ensuring
that materials and content posted on your web site will not (i) violate any
laws, rules or regulations; (ii) violate or infringe upon the rights of any
third party including, without limitation, copyright, patent, trademark, trade
secret or other proprietary rights or right of publicity or privacy; (iii) be
lewd, pornographic, sexually explicit, or obscene; (iv) violate any laws
regarding unfair competition, anti-discrimination or false advertising; (v)
promote violence or contain hate speech, (vi) contain viruses, trojan horses,
worms, time bombs, cancelbots or other similar harmful or deleterious program
routines; or (vii) be libelous, harmful, threatening, abusive, harassing,
defamatory, derogatory or otherwise illegal or objectionable to Home Concepts;
(viii) be a homepage or a personal website created through free webspace
offered by third parties; (ix) use or promote promotion codes, coupon codes or
any discount offers unless specifically authorized by Home Concepts; and (x)
contain promotional materials about Home Concepts or the Affiliate Program
unless specifically authorized by Home Concepts. PARTICIPANT shall not (a)
include any of the Marks as defined in Section 8, or variations or misspellings
thereof in any of Participant's domain names or any metatags; (b) send any
emails or other promotional or marketing materials which mention Home Concepts,
the Affiliate Program or the Web Site without the prior written consent of Home
Concepts; (c) shall not make any press releases or other public statements
regarding the Affiliate Program or Home Concepts or the Web Site without first
obtaining the express written approval Home Concepts; (d) take any action that
could reasonably cause any customer confusion as to our relationship with You,
or as to the web site on which any functions or transactions (e.g., search,
order, browse, etc.) are occurring; and (e) post or serve any advertisements or
promotional content around or in conjunction with the display of the Web Site
(e.g., through any "framing" technique or technology or pop-up windows.
(c)
Home Concepts disclaims all liability for all matters set forth in Section 4
and 5(b). Further, PARTICIPANT will indemnify and hold Home Concepts, its
parent company, subsidiaries, affiliates and their respective officers,
directors, shareholders and employees free and harmless against and from all
claims, damages, losses, liabilities and expenses (including, without
limitation, attorneys' fees) relating to the development, operation,
maintenance, and contents of PARTICIPANT'S web site.
(d) Home Concepts
reserves the right, in its sole discretion, to monitor PARTICIPANT'S Web Site,
at any time and from time to time, to ascertain whether PARTICIPANT is in
compliance with the terms of this Agreement. |
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6. Fulfillment: |
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Home Concepts will fulfill all fully paid orders
for products in accordance with Home Concepts' customary business practices.
Home Concepts shall be solely responsible for fulfilling all orders placed by a
customer as a direct result of the Links. Customers who purchase through the
Affiliate Program are deemed to be customers of Home Concepts. Accordingly, all
of Home Concepts' rules, policies, and operating procedures concerning customer
orders, customer service, and use of customer names and information, will apply
to those customers. |
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7. Promotion: |
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(a) Any promotional activities you may wish to
engage in requires the prior written consent of Home Concepts. PARTICIPANT
shall not create, publish, distribute, or permit any written material,
including, without limitation, promotion codes, coupons and discount offers
that make reference to Home Concepts without first submitting such material to
Home Concepts and receiving prior written consent thereto.
(b) PARTICIPANT
will represent themselves on search engine results for related listings only as
"AFFILIATE OF Home Concepts". That without limiting the foregoing, PARTICIPANT
shall not purchase, use or bid for placement any of the Marks, as defined in
Section 8 or any variations or misspellings thereof, with any search engine. In
addition, upon Home Concepts' request, PARTICIPANT will immediately cease
bidding, purchasing or using any Marks and other terms used to promote the
Affiliate Program and PARTICIPANT's participation therein.
(c) PARTICPANT
shall not, in any manner, misrepresent or embellish the relationship between
PARTICIPANT and Home Concepts or expressly imply any relationship or
affiliation between us and You or any other person or entity except as
expressly permitted by this Agreement (including by expressly or implying that
Home Concepts supports, endorses, or contributes money to any charity or other
cause). |
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8. Licenses: |
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(a) Home Concepts grants to PARTICIPANT a
non-exclusive, non-transferable, royalty-free, revocable license to (i) access
the Web Site through the Links solely in accordance with the terms of this
Agreement and (ii) solely in connection with such Links, to use Home Concepts
and its parent company's, subsidiaries' and affiliated companies' logos, trade
name, trademarks, service marks and similar identifying material (collectively
the "Marks"), for the sole purpose of selling Products on your Web Site for
Home Concepts (but only in the form(s) as they appear on the Web Site). You may
not alter, modify, amend, or change the Marks in any way. You are only entitled
to use the Marks to the extent that this Agreement remains in full force and
effect. The use of any such Marks requires the prior written approval of Home
Concepts in all instances.
(b) PARTICIPANT shall not make any specific use
of any Marks for purposes other than selling Home Concepts' products on
PARTICIPANT'S web site for Home Concepts. No use of the Marks can be made
without first submitting a sample of such proposed use to Home Concepts, and
obtaining the prior written consent of Home Concepts. PARTICIPANT agrees not to
use the Marks in any manner that is disparaging or otherwise portrays Home
Concepts in a negative light. Home Concepts reserves all of its rights in the
Marks and all of its other proprietary rights. No right, property, license or
interest in any Marks is intended to be given to or acquired by PARTICIPANT by
the execution or the performance of this Agreement. Home Concepts may revoke
this license at any time, by giving you written notice. PARTICIPANT may not
alter, modify, or change the Marks in any way. All goodwill arising from the
use of the Marks shall inure solely to the benefit of Home Concepts.
(c) All
intellectual and proprietary property and information, supplied or developed by
Home Concepts shall be and remain the sole and exclusive property of Home
Concepts. Upon termination of this Agreement, PARTICIPANT shall immediately
cease using and return to Home Concepts any and all such property and
information it receives from Home Concepts and, without limiting the foregoing,
immediately cease use of Home Concepts' Marks. Participant agrees not to
contest or challenge the Marks or to use any confusingly similar marks.
(d)
PARTICIPANT grants to Home Concepts a non-exclusive, non-transferable,
royalty-free license to access the PARTICIPANT web site through the Links; and
(ii) use PARTICIPANT'S trade name, titles, logos, trademarks, service marks,
products and similar identifying material relating to PARTICIPANT (the
"PARTICIPANT'S Marks"), to advertise, market, promote and publicize in any
manner this Agreement, the transactions contemplated hereunder or Home
Concepts' rights hereunder; provided, however, that Home Concepts shall not be
required to advertise, market, promote or publicize, in any manner, this
Agreement, the transactions contemplated hereunder, or PARTICIPANT'S Marks.
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9. Confidentiality: |
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Pursuant to this Agreement, the Parties may
disclose to one another certain information ("Information") which is considered
by the disclosing party to be proprietary or confidential information,
including, without limitation, the term of this Agreement, business, marketing
and financial information, customer and vendor lists, and pricing and sales
information. All such Information shall remain the sole property of the
disclosing party, and its confidentiality shall be maintained and protected by
the receiving party with the same degree of care as the receiving party uses
for its own confidential and proprietary Information and the receiving party
shall not disclose such Information to any third party without the prior
written consent of the disclosing party. The restrictions of the use or
disclosure of any Information shall not apply to any information: (i) after it
has become generally available to the public without breach of this agreement
by the receiving party; (ii) is independently developed by receiving party;
(iii) is rightfully in the receiving party's possession prior to disclosure to
it by the disclosing party; (iv) is rightfully received by receiving party from
a third party without duty of confidentiality; or (v) is disclosed under
operation of law or pursuant to legal or regulatory process. |
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10. LIABILITY: |
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HOME CONCEPTS SHALL NOT HAVE ANY LIABILITY
HEREUNDER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES,
WHETHER OR NOT HOME CONCEPTS KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGE MIGHT
BE INCURRED. FURTHERMORE, HOME CONCEPTS' AGGREGATE LIABILITY ARISING WITH
RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREUNDER WHETHER
IN CONTRACT, TORT, OR ANY OTHER THEORY OF RECOVERY SHALL NOT EXCEED THE TOTAL
COMMISSIONS PAID OR PAYABLE TO PARTICIPANT UNDER THIS AGREEMENT. |
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11. Indemnification: |
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PARTICIPANT agrees to indemnify, defend and hold
harmless Home Concepts, its successors and assigns and it's officers,
directors, shareholders and employees, from and against any and all losses,
liabilities, damages, actions, claims, expenses and costs including, without
limitation, reasonable attorneys' fees, which result or arise from or are based
on (i) the negligence of PARTICIPANT, its agents, servants and/or employees,
(ii) PARTICIPANT'S breach of this Agreement or any of the terms hereunder,
(iii) any breach of a representation or warranty, or breach of a covenant or
agreement made by PARTICIPANT herein, or in the Enrollment Application, (iv)
any claim that Home Concepts' use of PARTICIPANT'S Marks infringe on any
trademark, trade name, service mark, copyright, license, intellectual property,
or other proprietary right of any third party, or (v) any claim related, in any
way, to PARTICIPANT'S web site, including, without limitation, content therein
not contributed directly by Home Concepts. |
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12. Reporting of
Income: |
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For the purpose of this agreement the
relationship between Home Concepts & the PARTICIPANT shall be that of
Contractor-Subcontractor. Home Concepts shall be deemed to be the "Contractor"
& the PARTICIPANT shall be deemed to be the "Subcontractor". As a
subcontractor, it is the sole responsiblity of the PARTICIPANT to report all
commission earnings for income tax purposes as provided for in the
PARTICIPANT'S jurisdiction. Home Concepts cannot be held liable for income tax
incurred by the PARTICIPANT. |
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13. Independent Parties: |
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Nothing contained herein shall imply any
partnership, joint venture or agency relationship between the Parties and
neither Party shall have the power to obligate or bind the other in any manner
whatsoever, except to the extent herein specifically provided. |
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14. Binding Effect; Benefit: |
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This Agreement shall inure to the benefit of and
be binding upon the Parties hereto and their respective successors and assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any
person or entity other than the Parties hereto or their respective successors
and assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement. |
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15. Severability: |
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If any provision of this Agreement shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement shall not be affected and
shall remain in full force and effect. |
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16. Notices: |
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Any notices required or permitted under this
Agreement shall be sent electronically to you at your web site, or to Home
Concepts at "affiliates@homeconcepts.ca" with the subject line "Legal
Notice"and shall be deemed duly made and received when sent. |
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17. Force Majeure: |
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Except as otherwise expressly provided in this
Agreement, Home Concepts shall not be liable for any breach of this Agreement
or for any delay or failure of performance resulting from any cause beyond such
Party's reasonable control, including without limitation, the weather, strikes
or labor disputes, war, terrorist acts, riots or civil disturbances, government
regulations, acts of civil or military authorities, or acts of God. |
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18. Entire Agreement: |
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This Agreement constitutes
(a) the binding
agreement between the Parties;
(b) represents the entire agreement between
the Parties relating to the subject matter hereof and supersedes all prior
agreements; and
(c) may not be modified or amended except in a writing
signed by the Parties. Notwithstanding anything to the contrary contained
herein, Home Concepts may modify and change any of the terms and conditions of
this Agreement, at any time in its sole discretion. We will notify You of any
such modification or change as provided for in Section 2 (a) hereof.
Modifications and changes may include, without limitation, changes in the scope
of available commission fees and payment procedures. If any modification or
change is unacceptable to PARTICIPANT, PARTICIPANT'S only recourse is to
terminate this Agreement. Your continued participation in the Program after the
notice is posted or sent pursuant to Section 2(a) hereof, will constitute Your
legally binding acceptance of the modification or change. |
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19. Governing Law: |
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This Agreement shall be governed by, and
construed in accordance with the laws of the Province of Ontario, Canada
without regard to conflicts of law principles thereof. |
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20. Arbitration; Venue; |
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Each Party hereby agrees to submit to binding
arbitration in Ottawa, Ontario, Canada all disputes or controversies arising
out of or in conjunction with this Agreement in accordance with the commercial
arbitration rules of the Arbitrations Act of Ontario then in effect and
judgment upon the award shall be final and unappealable and may be entered in
any court having jurisdiction thereof. Nothing contained herein shall, however,
be construed to limit or preclude Home Concepts from bringing any action in any
court of competent jurisdiction for injunctive or other provisional relief as
Home Concepts may deem to be necessary or appropriate against conduct or
threatened conduct by PARTICIPANT. Venue for purposes of any action brought in
connection with or arising out of this Agreement shall be conclusively presumed
to be in Ottawa, Ontario, Canada and the Parties hereby irrevocably consent to
jurisdiction in said courts. |
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21. Arbitration; Venue; |
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Each Party hereby agrees to submit to binding
arbitration in Ottawa, Ontario, Canada all disputes or controversies arising
out of or in conjunction with this Agreement in accordance with the commercial
arbitration rules of the Arbitrations Act of Ontario then in effect and
judgment upon the award shall be final and unappealable and may be entered in
any court having jurisdiction thereof. Nothing contained herein shall, however,
be construed to limit or preclude Home Concepts from bringing any action in any
court of competent jurisdiction for injunctive or other provisional relief as
Home Concepts may deem to be necessary or appropriate against conduct or
threatened conduct by PARTICIPANT. Venue for purposes of any action brought in
connection with or arising out of this Agreement shall be conclusively presumed
to be in Ottawa, Ontario, Canada and the Parties hereby irrevocably consent to
jurisdiction in said courts. |
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22. INDEPENDENT INVESTIGATION: |
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PARTICIPANT ACKNOWLEDGES THAT IT HAS READ THIS
AGREEMENT AND AGREES TO ALL OF ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT
PLOW & HEARTH MAY AT ANY TIME, DIRECTLY OR INDIRECTLY, SOLICIT CUSTOMER
REFERRALS AND ENTER INTO SIMILAR AGREEMENTS ON TERMS THAT MAY BE THE SAME,
SIMILAR OR DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR ENTER INTO AN
AGREEMENT WITH COMPETITORS OF PARTICIPANT, OR MAY OPERATE WEB SITES THAT ARE
SIMILAR TO OR COMPETE WITH PARTICIPANT'S WEB SITE. PARTICIPANT HAS
INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE TRANSACTIONS
CONTEMPLATED HEREUNDER AND IT IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE,
OR STATEMENT OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT |
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23. NO GUARANTEE: |
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PARTICIPANT ACKNOWLEDGES THAT IT HAS READ THIS
AGREEMENT AND AGREES TO ALL OF ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT
HOME CONCCEPTS MAY AT ANY TIME, DIRECTLY OR INDIRECTLY, SOLICIT CUSTOMER
REFERRALS AND ENTER INTO SIMILAR AGREEMENTS ON TERMS THAT MAY BE THE SAME,
SIMILAR OR DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR ENTER INTO AN
AGREEMENT WITH COMPETITORS OF PARTICIPANT, OR MAY OPERATE WEB SITES THAT ARE
SIMILAR TO OR COMPETE WITH PARTICIPANT'S WEB SITE. PARTICIPANT HAS
INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE TRANSACTIONS
CONTEMPLATED HEREUNDER AND IT IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE,
OR STATEMENT OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT |
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24. Survival: |
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PARTICIPANT ACKNOWLEDGES THAT IT HAS READ THIS.
Sections 4, 5, 6, the last two sentences of Section 7, 8(c), 10, 11, 12, 19,
20, 21 and 22 of this Agreement shall survive the termination or expiration of
this Agreement. |
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