POWR PUBLISHER MONETIZATION TERMS AND CONDITIONS
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN FULL AND VERY CAREFULLY PRIOR TO REGISTERING AS A PUBLISHER OR USER OF POWR. YOUR AGREEMENT TO THESE TERMS CREATES A LEGAL BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU AND POWR, LLC. IF YOU REGISTER FOR THE POWR PROGRAM OR PARTICIPATE IN THE POWR PROGRAM YOU ARE AFFIRMATIVELY STATING AND AGREEING THAT YOU ARE IN AGREEMENT WITH THESE TERMS AND CONDITIONS AND FULLY ACCEPT THE COVENANTS, REPRESENTATIONS, WARRANTIES, AND TERMS CONTAINED HEREIN.
This Agreement (the “Agreement”) is entered into by and between You and Powr, LLC (“Powr”). This Agreement shall govern the Powr Video Portal and Player (the “Program”) and Your use, agreement, and relationship with Powr, and the Program. The Agreement consists of these Powr Standard Publisher Terms and Conditions (the “Terms”), and the Powr User Conduct Rules that are described here or at such other locations that Powr elects to disseminate them: https://powr.com/legal/publisher. “You”, “Your”, or “Publisher” shall be defined as any person or entity identified in the registration and application process (or listed at the time of enrollment), as submitted by the same person, entity, affiliated persons, and/or any agency, representative, or network acting on behalf of such person or entity, such being bound by this Agreement. In the event of any direct conflict between these Terms and Conditions and any applicable Insertion Order, the terms of the Insertion Order shall prevail and govern with respect to such specific term in conflict.
Subject to this Agreement, the Terms, and any and all rules, regulations, policies, or procedures that are developed, modified, or enacted by Powr from time to time, Powr hereby grants you the limited and revocable right of use, access, and participation in the Program. The Program gives Publishers the ability to participate as a website Publisher to display the Powr Video Player on the Publisher Website and distribute video content and advertisements to publisher website visitors. This may include the Publisher’s own video content, content licensed from the Powr video inventory, and/or advertisements sourced from Publisher’s own demand or from that sourced by Powr or other third parties. Participation in the Program as an User or Publisher is at your own risk.
Powr will provide You with certain specifications, rules, and regulations to be followed and adhered to at all times. Powr may in its sole and absolute discretion amend, modify, or change the specifications, rules, and regulations. Specifications may change to allow for network enhancements, including, but not limited to, code changes, delivery improvements, and optimization of displays, tracking, and reporting of Content. You shall not alter the code, link, script, programming, pixel, Content, and/or data provided to You by Powr without the prior express written consent of Powr.
4. PUBLISHER DUTIES.
You are solely responsible for Your Website(s) and/or Property(ies), including all content and materials, maintenance and operation thereof; the proper implementation of Powr specifications; adherence to the terms of this Agreement; all applicable laws, rules, regulations, statutes, and ordinances; compliance with all terms, conditions and requirements of any source of web traffic to your website(s); and any Powr rule, policy, or procedure. You hereby grant Powr the sole and exclusive right to investigate, at its own discretion, any violation, activity, or alleged breach of this Agreement, or any engagement in any activity prohibited by this Agreement. Powr shall not be liable or responsible for anything related to You or Your Websites, including, but not limited to, the receipt and/or collection of data, information, or queries from end users of Your Websites, or the transmission of any information or data between You, Your Website, and Powr. In addition, all Content provided by Powr are provided on an “AS IS” or “AS AVAILABLE” basis and Powr makes no warranty or representation that such Content will be available, delivered, or work properly. Powr is not required to notify You of any problems or issues relating to the Powr Program or the Content.
Approved Publishers shall be permitted to participate in the Program and receive served Content from Powr for publication on Publisher’s Website(s) and/or Property(ies) via the Program. Powr will specify the amount and terms under which You will earn payment (“Bounties”). Bounties are generated from a specified transaction (“Action”) as defined by Powr. Actions can include, without limitation, Plays, Player Impressions, clicks, click-throughs, sales, registrations, impressions and leads. A “Player Impression” shall be registered either (1) when the Powr Player first loads on the Publisher Website page; or (2) when the Powr Player comes into view of the user. The applicable metric of what constitutes a Play shall be as set forth in the applicable Insertion Order (“IO”), and the determination as to whether a Player Impression has occurred or not, for payment purposes or otherwise, shall be made at the sole and absolute discretion of Powr. Additionally, any and all applicable Action(s) associated with each campaign and/or Your account shall also be set forth in the terms listed on the applicable IO and, unless otherwise specified, such shall be subject to change at the sole and absolute discretion of Powr. If You accept Content to run on your Website(s), You agree to adhere to any specific policies, procedures, and specifications associated with those Content, and operate at all times in accordance with the Agreement. Powr may, at its sole discretion, change the Content or the terms of a campaign at any time, without prior notice to You, unless otherwise specified. Similarly, You may cease participation in the Program at any time, unless otherwise specified in this Agreement or other terms associated with the campaign. Powr is responsible for displaying and administrating the Program and tracking associated Bounties and Actions. Program data compiled by Powr including, but not limited to, numbers and calculations regarding Actions and associated Bounties (“Program Data”), will be calculated by Powr through the use of tracking technology and shall be final and binding on You. Publisher understands and agrees that on occasion the Service and/or Powr Program may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of Powr or which are not reasonably foreseeable by Powr including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Publisher acknowledges and agrees that Powr has no control over the availability of the Program or the Services on a continuous or uninterrupted basis. Terms of the Agreement are subject to Powr hardware, software, and bandwidth traffic limitations. Powr’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
Publisher may desire to use its business partners and/or associates to fulfill the obligations or exercise the rights under a particular Program. For the purposes of this section, any of Publisher’s business partners or associates that participate in or perform any activities on behalf of Publisher under the Agreement shall be considered to be a “Sub-Publisher.” Powr reserves the right to review and approve or reject any and all Sub-Publishers and may revoke a prior approval of any Sub-Publisher at any time and for any reason. Sub-Publishers must meet the same criteria for approval as the Publisher as set forth in the Agreement and must comply with all the terms and conditions that are applicable to Publisher under the Agreement and any and all other applicable terms required by Powr. Publisher is responsible for and shall fully and unconditionally indemnify Powr for any and all actions of any of its Sub-Publishers, including the payment of legal fees and costs if necessary. Further, Powr may, at its sole discretion, terminate a Publisher at any time based on the actions of that Publisher’s Sub-Publisher(s). Once express approval of a Sub-Publisher has been granted by Powr, notices to the Publisher shall be deemed notice to that Publisher’s approved Sub-Publisher(s). Publisher agrees that Powr is under no obligation to pay a Sub-Publisher. Powr further reserves the right to withhold or refuse payment to any Publisher in the event that any of its Sub-Publishers breach the Agreement.
7. TERMS OF PAYMENT.
You agree to be paid the applicable Bounty rate for each Action verified by Powr and as tracked by Powr in its platform, as specified by Powr approximately forty five (45) days after the last day of a given calendar month, for Bounties realized in that month, subject to a reduction based on Powr’s expenses associated with the delivery of any traffic to advertisers which would have otherwise been blocked by ad block software. You agree that payment for Bounties will be owed to You from the applicable Advertiser, and that corresponding payments shall be made by Powr to You out of the funds actually collected by Powr from the applicable Advertiser. Powr shall have no payment obligation to Publisher where Advertiser has not remitted sufficient payments to cover the Bounties otherwise due and owing Publisher. All Publisher accounts will be paid in United States dollars ($US). Notwithstanding anything contained herein to the contrary, no Bounty payments will be issued for any amounts otherwise due Publisher that total less than Fifty Dollars ($50.00) (“Payment Threshold”). Upon termination of the Agreement, all legitimate moneys due to Publisher that are actually collected from the applicable Advertiser, even amounts below the Payment Threshold, will be paid during the next billing cycle. Every Publisher account must have a unique, valid taxpayer identification number (TIN), valid Social Security Number, or other applicable unique government identification. All payments due hereunder shall be in U.S. dollars and are exclusive of any applicable taxes. Publisher is responsible for all applicable taxes (including without limitation VAT) with respect to Payments received from Powr and will on request provide a VAT invoice for any payments made to it by Powr if so requested by Powr.
An Advertiser may request that Powr, or Powr may on its own initiative, debit from the Bounties otherwise due and owing Publisher an amount equal to a Bounty previously credited to Publisher’s account where: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (c) there are Actions that do not comply fully with the terms of the Agreement, including where the applicable non-complying Action is not the result of Publisher’s action, omission and/or failure to comply with the terms and conditions of the Agreement; (d) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Action; or (e) there is any failure on the part of Publisher to comply with the Agreement and/or the applicable Program Terms (collectively referred to as a “Chargeback”). Chargebacks requested by an Advertiser in accordance with this Section may be applied up to one hundred and twenty (120) days after the end of the month in which the applicable Bounty was earned (“Chargeback Period”). An Advertiser may request that the payment of a Bounty be postponed for one (1) payment cycle where: (i) Advertiser is verifying a lead (for Programs in which lead generation is a component of the Action); (ii) Advertiser has a product return policy that allows the underlying purchaser to return the product during the Chargeback Period; or (iii) the applicable Program Terms provide for such a postponement. The number or amount of Actions, credits for payments and debits for Chargebacks, as calculated by Powr, shall be final and binding on Publisher. The parties expressly acknowledge, confirm, and agree that, at all times during Your participation in the Program, Powr specifically reserves the right to determine whether purported impressions, Plays, and/or other Actions are in fact valid and give rise to Powr payment obligations pursuant to these Terms and Conditions and the terms of any applicable Insertion Order(s). This determination shall be made at Powr’s sole and absolute discretion, and may be made in consideration of any factors deemed relevant by Powr in making such determination. Definition of Revenue for Revenue Share Arrangements: In the event the parties agree to a revenue share arrangement, Powr will pay you a revenue share based on “Net Revenue” which is defined as the gross revenue received by Powr as a result of valid Plays, less adjustments for chargebacks, commissions, direct cost charged to Powr by third party providers, discounts allowed, refunds and administrative fees, and bad debt deductions.
Powr actively monitors traffic, Actions, Bounties and other Program-related activities for potential fraud. If Powr suspects that Your account has been used in a fraudulent manner, Your account will be deactivated effective immediately and with no notice to You pending further investigation. If You add Actions or Plays, or inflate Actions or Plays, through the use of fraudulent means of traffic generation, as determined solely by Powr, You will forfeit all of the Bounties related to that Program, and Your Publisher account will be terminated effective immediately. Powr reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. It is the OBLIGATION of Publisher to prove to Powr that it has NOT engaged in fraud. Powr will hold Your Bounty-related payments in 'Pending Status' until You have satisfactorily provided evidence that demonstrates to Powr that You have not engaged in fraud. If You are unable to provide Powr with satisfactory evidence that You have not engaged in fraud within seven (7) days of Your Bounties being placed in “Pending Status,” then Powr reserves the right to terminate Your Publisher account and cancel payment on the applicable Bounties, at its sole discretion and without any further obligations to You.
Unless otherwise specified in an Insertion Order, this Agreement may be terminated by either Party upon forty eight (48) hour prior written notice. In addition, Powr reserves the right, in its sole and absolute discretion, to terminate You from the Program at any time for any reason, without notice to You. Powr also reserves the right to terminate Your access to the Powr Program at any time with or without notice to You. Termination notice may be provided via e-mail and will be effective immediately. Upon termination, Publisher agrees to immediately remove from its Website(s) and/or Property(ies) any and all Articles, Content, materials, and Powr Code or other intellectual property made available to Publisher in connection with its performance under the Agreement. The representations, warranties and obligations of Publisher contained within the Agreement shall survive and remain in full force and effect after termination of the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled.
Publisher hereby represents and warrants that it: (a) has read Powr’s User Conduct Rules, as same are made described at https://powr.com/legal/publisher; (b) will regularly check the Powr.com website for updates; and (c) shall comply with any and all such policies and guidelines, as well as updates to same. Publisher’s failure to comply with the aforementioned policies and guidelines will be considered a breach of the Agreement and may result in the immediate termination of the Agreement by Powr.
11. PROMOTIONAL USE.
Powr may, from time to time, use Your name and logo in presentations, marketing materials, customer lists, financial reports, Web site listings of customers, and search results. You may request in writing to use Powr’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, but at no time shall You use such trade names, marks, and/or identifying information without the prior express written consent of Powr.
12. REPRESENTATIONS AND WARRANTIES.
You represent and warrant that (a) all of the information provided by You to Powr to enroll in the Program true, accurate, correct, and current; (b) You hereby certify under oath that you are the owner of each Website and/or Property or that You are legally authorized to act on behalf of the owner of such Website and/or Property for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003, the European Union’s General Data Protection Regulation (“GDPR”), and/or any relevant data protection or privacy laws in Your performance of any acts hereunder. You further represent and warrant that each Property and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; (iii) fully comply with all terms, conditions and requirements of any source of web traffic to you website(s); and (iv) are not pornographic, hate-related or otherwise violent in content.
You shall indemnify, defend and hold Powr, its agents, advertisers, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, demand for payment, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the Program, the Property(ies), and/or Your breach of any term of this Agreement.
14. POWR RIGHTS.
Powr owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including Powr’s video hosting technology, video player technology, search technology, referral technology, marketing technology, marketing strategies, code, programming, strategies, and features, including implied licenses, and excluding items licensed by Powr from third parties and excluding any third party media player that may comprise the Property), and that You will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Powr services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto. You will not remove, obscure, or alter Powr’s copyright notice, features, trademarks, symbols, or other proprietary rights notices affixed to or contained within any Powr services, software, or documentation (including without limitation the display of any Powr or third party Content). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trademark law, international treaty, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
15. INFORMATION AND DATA COLLECTION.
16. DISCLAIMER AND LIMITATION OF LIABILITY.
IN NO EVENT SHALL POWR BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE POWR PROGRAM, THE DIRECTSELL AD SERVER, THE CONTENT, ADVERTISERS’ UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY CONTENT ON OR THROUGH YOUR PUBLISHER WEBSITE(S) AND/OR PROPERTY(IES) INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF POWR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POWR’S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THREE HUNDRED DOLLARS ($300). PUBLISHER AND POWR SPECIFICALLY STATE AND AGREE THAT THE FOREGOING DAMAGES LIMITATION IS REASONABLE AND ENFORCEABLE. REGARDLESS OF ANY LAW TO THE CONTRARY, PUBLISHER SHALL HAVE NO RIGHT OF ACTION, AND WAIVES ITS RIGHT TO BRING A SUIT, CLAIM, OR PROCEEDING AGAINST POWR MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. PUBLISHER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE POWR PROGRAM, CREATIVES, CONTENT, CODE, SCRIPT, PROGRAMS, THE ARTICLES, ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES, CONTENT AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE POWR PROGRAM, CONTENT, CREATIVES, THE PROGRAM, CODE, SCRIPT, THE ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. POWR HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE POWR PROGRAM, CREATIVES, CONTENT, THE PROGRAM, THE ARTICLES, AND/OR THE SERVICE AND DELIVERY OF THE ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS OR SERVICES AND POWR DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY THE PROGRAM OR ANY OF THE CONTENT WILL BE AVAILABLE TO PUBLISHER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN POWR AND PUBLISHER. THE POWR PROGRAM, CREATIVES, CONTENT, THE PROGRAM, THE ARTICLES, THE SERVICE AND DELIVERY OF CONTENT, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. POWR MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE POWR PROGRAM, CREATIVES, CONTENT, AND/OR THE PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM POWR AND/OR ANY ADVERTISER BY AND THROUGH THE POWR PROGRAM, CREATIVES, CONTENT, AND/OR THE PROGRAM SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
Powr may assign the Agreement, or any portion thereof, at its sole discretion. You may not assign, transfer or delegate any of Your rights under the Agreement without the prior written consent of Powr, which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in Powr, at its sole discretion, immediately terminating the Agreement and/or Your participation in any Program, without any liability to Powr. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.
18. SEVERABILITY WAIVER.
If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
The Agreement represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with the Powr Program are in conflict or inconsistent with the Agreement, the Agreement shall take precedence.
"Confidential Information" means any information disclosed to You by Powr, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by Powr; (b) becomes publicly known and made generally available after disclosure to You by Powr other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by Powr as shown by Your files and records prior to the time of disclosure. Powr’s Program rates are considered “Confidential Information.” You shall not at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information; and/or (iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain Powr’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Powr immediately upon Powr's request.
21. FORCE MAJEURE.
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party.
You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Content, delivery system, and/or the Powr Program. You may not take any action that imposes an unreasonable or disproportionately large load on the Powr Program infrastructure. You agree that any unauthorized and/or unlawful use of the Powr Program, Service, Creatives, Content, and/or Code will result in irreparable injury to Powr for which monetary damages would be inadequate. In such event, Powr shall have the right, in addition to any and all other remedies granted or available to it under this Agreement and/or by operation of law, to immediate injunctive relief against You without the requirement to post a bond.
You agree that Powr may require a financial accounting and inspection of Your books and records including, but not limited to, access to Your computer databases, in order to verify and corroborate financial information regarding the relationship established hereunder. You hereby authorize Powr to obtain credit reports regarding Your business and to require You to provide it with reasonable information regarding Your financial position.
Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf.
All notices shall be sent to the address submitted by You when You sign up for the Service and, if to Powr, to the address listed in the Contact section of the Powr Program or the Insertion Order, as applicable.
26. BINDING ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement or the relationship resulting in or from this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association, 140 West 51st Street, New York, New York 10020-1203. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and the party bringing or appealing such action or opposing confirmation of such award does not prevail, such party will pay all of the costs and expenses (including without limitation, court costs, arbitrators’ fees and expenses and reasonable attorneys’ fees) incurred by the other party in defending such action. Additionally, if either party brings any action for judicial relief in the first instance without first pursuing arbitration prior thereto, the party bringing such action for judicial relief will be liable for and will immediately pay to the other party all of the others party’s costs and expenses (including without limitation, court costs and attorneys’ fees) to stay or dismiss such judicial action and//or remove it to arbitration. The failure of either party to exercise any rights granted hereunder will not operate as a waiver of those rights. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding. The parties consent and agree that jurisdiction and venue shall be in within the Middle District of Florida, Sarasota County Florida.