Kiya Tomlin
Program Terms
INFORMATION.
Affiliate Agreement (Rev. 13417FA) 3 / 12
The Company is solely responsible for processing and fulfillment of all orders of goods and
services on the Site, which shall be governed by the terms and conditions established by the
Company in its sole and absolute discretion. All information about such orders and the
Customers are the sole and exclusive property of the Company.
Additionally, you agree that the Company may collect, process and sell certain information about
you.
5 LIMITED LICENSE RIGHTS.
You agree to place one or more of the Links on the Affiliate Site. Links may contain logos,
trademarks, service marks (collectively, “Marks”). Pursuant to this Agreement, the Company
grants you a limited, non-exclusive, non-transferable and revocable license to display the Links
on the Affiliate Site, and nowhere else, subject to the terms and conditions of this Agreement.
You may not use the Links or the Marks for any other purpose absent the express written consent
of the Company. You may not change, add to or delete from the Links or Marks. You may not use
the Marks independently of the Links for any purpose without the Company's express written
consent; and you may not use or present the Links in any manner that suggests the endorsement
of or by any other goods, services, persons or entities without the express written consent of the
Company. In addition, you agree to not (a) acquire or attempt to acquire, register or attempt to
register, make a claim to or in any way use domain names, trademarks, service marks, keywords,
handles, screen names or other forms of identification incorporating the Marks; or (b) not to use
the Marks in a way that suggests that the source of the Affiliate Site is the Company.
All intellectual property rights in and to the Marks, and any goodwill generated by your use of the
Marks shall inure solely to the benefit of the Company.
Upon suspension of this Agreement, the rights granted herein may, in the Company's sole
discretion, be suspended. Upon termination of this Agreement, the rights granted in this section
shall automatically terminate.
6 REPRESENTATIONS AND WARRANTIES.
You represent and warrant that:
(a) You are legally capable and authorized to enter into this Agreement; and, if you represent an
entity, all actions necessary to authorize you to enter into this Agreement have been taken.
(b) You are the sole owner and operator of the Affiliate Site.
(c) The Affiliate Site does not and shall not:
(i) depict anyone less than eighteen (18) years of age;
(ii) contain material subject to 18 USC §2257 (but if it does, you will notify us not less than
thirty (30) days in advance of such inclusion and you will comply in all respects therewith);
Affiliate Agreement (Rev. 13417FA) 4 / 12
(iii) contain any information which you know or reasonably should know is false;
(iv) contain or transmit any apps or programs that are or can be installed or downloaded to
a Customer’s computer or other device without the Customer’s express and knowing
consent as to the exact nature, purpose and function of such apps or programs;
(v) not use the Company's name or the Marks in any form of unsolicited communication,
including unsolicited email (spam)
7 DISCLAIMERS.
The Company makes no representations or warranties as to the Site. To the maximum extent of
the law, the Company disclaims all representations, warranties and conditions, express and
implied, including the warranties of merchantability, fitness for particular purpose, title and noninfringement.
The Site is provided “as is.”
8 LIMITATION OF LIABILITY.
IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES INCLUDING
BUT NOT LIMITED TO THE LOSS OF PROFITS OR BUSINESS OPPORTUNITY, EVEN IF WE
HAD BEEN ADVISED OF SUCH POSSIBILITY.
IN NO EVENT SHALL THE LIABILITY OF THE COMPANY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID TO YOU BY THE
COMPANY. THIS LIMITATION APPLIES TO ANY LIABILITY ARISING FROM ANY CAUSE OF
ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES.
For purposes of this section, any reference to “the Company” shall include the Company's
affiliates, officers, employees, principals, agents and contractors.
9 TERM AND TERMINATION.
This Agreement shall commence upon the last signing by a Party and may be terminated by
either Party upon written notice to the other. If we terminate this Agreement due to breach by you,
no further Fees shall be paid to you and we may seek such other relief, equitable and legal, as
may be available. If you terminate, the Fees due and owing to you shall be paid as provided
herein. Regardless who terminates, upon termination, any and all rights and licenses granted by
us to you shall immediately cease and you shall immediately stop using and remove the Links
and the Marks from the Affiliate Site.
10 RELATIONSHIP.
(a) You are an independent contractor with respect to the Company. Nothing in this Agreement is
intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or
Affiliate Agreement (Rev. 13417FA) 5 / 12
employer-employee relationship between you and the Company. You shall not, in any manner or
respect, represent, suggest or convey the impression that you are an employee or agent of the
Company, or that the Company has endorsed you and/or the Affiliate site or that you represent
the Company in any manner or capacity. You have no authority to and shall not enter into any
agreements or obligations purporting to be binding upon the Company.
(b) As an independent contractor, you are solely and exclusively responsible (i) for all taxes
payable with respect to income earned through the Site; (ii) to obtain any liability, health, workers’
compensation, disability, unemployment, or other insurance needed, desired, or required by law,
and that you are not covered by or eligible for any insurance from the Company; and (iii) for
ensuring that you comply with any Licensing Authority’s rules or practices.
11 CONFIDENTIALITY.
You promise and agree to hold Confidential Information in strict confidence and in trust for the
sole benefit of the Company, both during the term of this Agreement and at all times thereafter,
and shall not use such Confidential Information for any purpose, whether or not for consideration,
business or personal, other than as may be reasonably necessary for the performance of its
duties pursuant to this Agreement, without the Company's prior written consent. You shall not
disclose any Confidential Information to any person or entity, other than to such of its employees
or consultants as may be reasonably necessary for purposes of performing its duties hereunder
and have executed agreements of confidentiality no less protective than this Agreement, without
the Company's prior written consent. You shall use not less than the same degree of care it uses
to protect its own Confidential Information, but in any event not less than a reasonable degree of
care. For purposes of clarity, your obligations hereunder include taking all actions necessary to
ensure that your affiliates, employees, contractors and agents and any other person or party who
obtains Confidential Information from or as a result of provider abide by the terms of this section
in their entirety.
Confidential Information does not include information that (a) is or becomes publicly known
through lawful means; (b) was rightfully in provider’s possession or part of your general
knowledge prior to the effective date of this Agreement; or (c) is disclosed to you without
confidential restriction by a third party who rightfully possesses the information (without
confidential restriction) and did not learn of it, directly or indirectly, from the Company.
If you are required to disclose Confidential Information by virtue of a lawful court order, subpoena
or similar legal request, you will promptly notify the Company in writing of such requirement and
cooperate so that the Company may seek an appropriate protective order. You will not use, copy,
publish, distribute or summarize any Confidential Information except as necessary to carry out
the activities contemplated herein.
12 WAIVER.
You expressly and unconditionally waive any and all claims against the Company, regardless the
bases upon which such claim(s) may be made, that may be based on, arise in connection with or
be related to any of the following acts, circumstances or conditions:
Affiliate Agreement (Rev. 13417FA) 6 / 12
(a) the Site is partially or totally inoperative or inaccessible;
(b) there are bugs, errors or inaccuracies in the Site;
(c) a suspension, termination or other action was taken with respect to your account by the
Company even if such suspension, termination or other action resulted in a loss of profits to you;
(d) any claim relating to a change in this Agreement by the Company;
(e) withholdings, deductions or offset in connection with payment of Fees due to applicable tax or
currency control restrictions.
For purposes of this section, any reference to “the Company” shall include the Company's
affiliates, officers, employees, principals, agents and contractors.
No waiver by the Company of any breach by you of any condition or provision of this Agreement
shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any
prior or subsequent time, nor shall the failure of or delay by the Company in exercising any right,
power, or privilege under this Agreement operate as a waiver to preclude any other or further
exercise thereof or the exercise of any other such right, power, or privilege.
You are solely responsible for the security of your Account, and the username and password
associated with your Account. You hereby waive and dismiss any claims against us and agree to
indemnify, defend and hold us harmless against any unauthorized use of or access to your
Account by an unauthorized person using your username and password.
You agree that any dispute you raise shall be as an individual only, not as a class or with or
behalf of anyone else. You expressly waive any right to bring a class or collective action, or be a
member in a class or collective proceeding. The Company may take any and all actions
necessary to dismiss a class or collective actions or claims thereunder.
13 ASSIGNMENT; SUCCESSION.
You may not assign this Agreement. Any attempted assignment or transfer in violation of this
subsection will be null and void. Subject to the foregoing restrictions, this Agreement is binding
upon and will inure to the benefit of the successors, heirs and permitted assigns of the Parties.
This Agreement shall be binding upon the Parties and their successors, permitted assigns, heirs,
affiliates, directors, shareholders, officers, employees and/or agents.
14 CHOICE OF LAW.
This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without
regard to its conflict of laws rules or principles.
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15 VENUE.
Affiliate hereby consents to exclusive jurisdiction and venue in the Commonwealth of
Pennsylvania for all proceedings arising out of this Agreement.
16 DISPUTE RESOLUTION.
To the fullest extent permitted by law, all disputes arising out of and related to this Agreement
(“Disputes”) shall be resolved as follows:
(a) Manner of Resolution.
Any Dispute(s) shall be submitted to mediation conducted in accordance with the rules of the
American Arbitration Association. Either Party may initiate mediation by filing a request for
mediation with a copy served on the other Party. Neither the attorney-client nor work product
privilege shall be deemed to have been waived by any statement or disclosure made in the
proceedings. If the Parties have not settled the Dispute by mediation the Dispute shall be settled
exclusively by arbitration. The arbitration shall be initiated and conducted pursuant to the
arbitration rules of the American Arbitration Association in effect at the time the request for
arbitration is made. Arbitration shall be final and binding upon the Parties. Any Party may bring an
action in court to compel arbitration under this Agreement and to enforce an arbitration award.
Otherwise, no Party shall initiate or prosecute any lawsuit or administrative action in any way
related to any Dispute. In any arbitration arising out of or related to this Agreement, the arbitrator
shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by
the prevailing Party in connection with the arbitration. The Parties shall maintain the confidential
nature of the arbitration proceeding and the award, except as may be necessary in connection
with a judicial challenge to an award or its enforcement, or unless otherwise required by law or
judicial decision. Notwithstanding anything herein to the contrary, either Party shall be entitled to
seek to obtain any provisional remedy, including injunctive or similar relief, from any court of
competent jurisdiction as may be necessary to protect such Party’s rights and interests.
(b) Equitable Relief.
Each Party acknowledges that (i) a breach or threatened breach by such Party of any of its
obligations under this Agreement would give rise to irreparable harm to the other Party for which
monetary damages would not be an adequate remedy and (ii) if a breach or a threatened breach
by such Party of any such obligations occurs, the other Party will, in addition to any and all other
rights and remedies that may be available to such Party at law, at equity, or otherwise in respect
of such breach, be entitled to equitable relief, including a restraining order, an injunction, specific
performance, and any other relief that may be available from, notwithstanding anything to the
contrary contained herein, any court of competent jurisdiction, without any requirement to (1) post
a bond or other security, or (2) prove actual damages or that monetary damages will not afford an
adequate remedy.
17 WAIVER OF JURY TRIAL.
Each of the Parties knowingly, voluntarily and irrevocably waives, to the fullest extent permitted
by law, all right to trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the actions of any Party
in negotiation, administration, performance or enforcement of this Agreement.
18 REMEDIES.
All rights, remedies, undertakings, obligations and agreements contained in this Agreement or
available at law, in equity or otherwise, shall be cumulative, and none shall be a limitation of any
other remedy, right, undertaking, obligation or agreement.
This Agreement shall be binding upon the parties and their successors, permitted assigns, heirs,
affiliates, directors, shareholders, officers, employees and/or agents.
19 FORCE MAJEURE.
The Company shall not be responsible or liable for any delay or failure to fulfill any provision of
this Agreement if such a delay or failure results directly or indirectly from any act of God, war, riot,
insurrection, embargoes, acts of civil or military authorities, fires, floods, explosions, accidents, or
any other cause beyond the reasonable control of the Company.
20 INTERPRETATION.
You acknowledge and agree that you had sufficient time and opportunity to have this Agreement
reviewed by your legal counsel. If this Agreement is ever construed, whether by a court or
arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof,
against any party as drafter.
This Agreement is written in English and, notwithstanding the translation or translatability into
other languages, the English language version of this Agreement shall be controlling.
The headings used herein are for convenience only and shall not be deemed to define, limit or
construe the contents of any provision of this Agreement. The meanings given to terms defined
herein will be equally applicable to both the singular and plural forms of such terms. Whenever
the context may require, any pronoun includes the corresponding masculine, feminine and neuter
forms.
21 COUNTERPARTS.
This Agreement may be executed in counterparts, via any means (including facsimile and e-mail),
all of which shall be effective, but when taken together shall comprise one agreement.
22 SEVERABILITY.
If any provision of this Agreement is unenforceable under any applicable law or is held invalid,
such holding shall not affect any other provision hereof, and the defective provision shall, if
applicable law permits, be modified and interpreted in a manner that it is enforceable. Otherwise,
the offending term or provision shall be omitted and not affect any other term or provision of this
Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
23 AMENDMENTS.
The Company may modify or amend the terms of this Agreement at any time by posting such
changes on the Site and/or notifying you by email. No such amendment shall be effective until at
least thirty (30) days after the posting or email notice, whichever occurs first. Notwithstanding any
modification, the rights and obligations of the Parties relating to the consideration to be received
hereunder and any fees to be charged as between Parties as to any occurrence prior to the
effective date of such modification shall remain unchanged by any such modification.
24 NOTICES.
Any notices or other communications required or permitted hereunder shall be sufficiently given if
in writing and delivered in Person or sent by registered or certified mail (return receipt requested)
or nationally recognized overnight delivery service, postage pre-paid, or delivered via telecopier
or facsimile transmission addressed as follows, or to such other address has such Party may
notify to the other Parties in writing:
To the Company:
Kiya Tomlin
388 Butler Street
Pittsburgh , Pennsylvania 15223
Email: kiyatomlin.us
To the Affiliate:
__________
____________________, __________ __________
Email: __________
Notices, demands or requests which we or you are required or desire to give the other hereunder
shall be deemed to have been properly given for all purposes if (a) hand-delivered to the Party's
notice address, (b) delivered to a nationally recognized overnight courier such as FedEx, UPS or
DHL to its addressee at such Party's notice address, or (c) delivered via telecopier or facsimile
transmission to the Party's facsimile number. Each such notice, demand or request shall be
deemed to have been received upon the earlier of (i) actual receipt or refusal by the addressee if
hand-delivered in accordance with clause (a) or (b) above, or (ii) the date and time of
transmission if sent during business hours in accordance with clause (c) above. The Parties shall
notify the other of any change in address, which notification must be at least two business days in
advance of it being effective. Notices may be given on behalf of any Party by such Party's legal
Affiliate Agreement (Rev. 13417FA) 10 / 12
counsel. For a notice to be valid and effective, an email copy of such shall notice shall be sent
concurrently to the addressee’s email. An email notice alone shall be sufficient upon
acknowledgment of receipt by the recipient or the recipient’s reply to such email, direct or indirect.
25 ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement and understanding between you and the
Company relating to the subject matter hereof and thereof and supersedes any prior or
contemporaneous discussions, agreements, representations, warranties and other
communications between you and the Company, written or oral, to the extent they relate in any
way to the subject matter hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement this date, September
16, 2022.
THE COMPANY
Authorized Signature
Printed Name: Kiya Tomlin
Title: Principal
THE AFFILIATE
Authorized Signature
Printed Name: __________
Title: __________
SCHEDULE 1
FEES
For each Completed Transaction, you will be paid Fifteen (15%) Percent of the Net Sale Price.
The Company is not responsible to pay any Fees in the event you do not use the Links provided
by the Company without modification OR you do not properly install those Links, meaning
the traffic will not be properly tracked to reflect that a Customer came from the Affiliate Site.
Affiliate Agreement (Rev. 13417FA) 3 / 12
The Company is solely responsible for processing and fulfillment of all orders of goods and
services on the Site, which shall be governed by the terms and conditions established by the
Company in its sole and absolute discretion. All information about such orders and the
Customers are the sole and exclusive property of the Company.
Additionally, you agree that the Company may collect, process and sell certain information about
you.
5 LIMITED LICENSE RIGHTS.
You agree to place one or more of the Links on the Affiliate Site. Links may contain logos,
trademarks, service marks (collectively, “Marks”). Pursuant to this Agreement, the Company
grants you a limited, non-exclusive, non-transferable and revocable license to display the Links
on the Affiliate Site, and nowhere else, subject to the terms and conditions of this Agreement.
You may not use the Links or the Marks for any other purpose absent the express written consent
of the Company. You may not change, add to or delete from the Links or Marks. You may not use
the Marks independently of the Links for any purpose without the Company's express written
consent; and you may not use or present the Links in any manner that suggests the endorsement
of or by any other goods, services, persons or entities without the express written consent of the
Company. In addition, you agree to not (a) acquire or attempt to acquire, register or attempt to
register, make a claim to or in any way use domain names, trademarks, service marks, keywords,
handles, screen names or other forms of identification incorporating the Marks; or (b) not to use
the Marks in a way that suggests that the source of the Affiliate Site is the Company.
All intellectual property rights in and to the Marks, and any goodwill generated by your use of the
Marks shall inure solely to the benefit of the Company.
Upon suspension of this Agreement, the rights granted herein may, in the Company's sole
discretion, be suspended. Upon termination of this Agreement, the rights granted in this section
shall automatically terminate.
6 REPRESENTATIONS AND WARRANTIES.
You represent and warrant that:
(a) You are legally capable and authorized to enter into this Agreement; and, if you represent an
entity, all actions necessary to authorize you to enter into this Agreement have been taken.
(b) You are the sole owner and operator of the Affiliate Site.
(c) The Affiliate Site does not and shall not:
(i) depict anyone less than eighteen (18) years of age;
(ii) contain material subject to 18 USC §2257 (but if it does, you will notify us not less than
thirty (30) days in advance of such inclusion and you will comply in all respects therewith);
Affiliate Agreement (Rev. 13417FA) 4 / 12
(iii) contain any information which you know or reasonably should know is false;
(iv) contain or transmit any apps or programs that are or can be installed or downloaded to
a Customer’s computer or other device without the Customer’s express and knowing
consent as to the exact nature, purpose and function of such apps or programs;
(v) not use the Company's name or the Marks in any form of unsolicited communication,
including unsolicited email (spam)
7 DISCLAIMERS.
The Company makes no representations or warranties as to the Site. To the maximum extent of
the law, the Company disclaims all representations, warranties and conditions, express and
implied, including the warranties of merchantability, fitness for particular purpose, title and noninfringement.
The Site is provided “as is.”
8 LIMITATION OF LIABILITY.
IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES INCLUDING
BUT NOT LIMITED TO THE LOSS OF PROFITS OR BUSINESS OPPORTUNITY, EVEN IF WE
HAD BEEN ADVISED OF SUCH POSSIBILITY.
IN NO EVENT SHALL THE LIABILITY OF THE COMPANY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID TO YOU BY THE
COMPANY. THIS LIMITATION APPLIES TO ANY LIABILITY ARISING FROM ANY CAUSE OF
ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES.
For purposes of this section, any reference to “the Company” shall include the Company's
affiliates, officers, employees, principals, agents and contractors.
9 TERM AND TERMINATION.
This Agreement shall commence upon the last signing by a Party and may be terminated by
either Party upon written notice to the other. If we terminate this Agreement due to breach by you,
no further Fees shall be paid to you and we may seek such other relief, equitable and legal, as
may be available. If you terminate, the Fees due and owing to you shall be paid as provided
herein. Regardless who terminates, upon termination, any and all rights and licenses granted by
us to you shall immediately cease and you shall immediately stop using and remove the Links
and the Marks from the Affiliate Site.
10 RELATIONSHIP.
(a) You are an independent contractor with respect to the Company. Nothing in this Agreement is
intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or
Affiliate Agreement (Rev. 13417FA) 5 / 12
employer-employee relationship between you and the Company. You shall not, in any manner or
respect, represent, suggest or convey the impression that you are an employee or agent of the
Company, or that the Company has endorsed you and/or the Affiliate site or that you represent
the Company in any manner or capacity. You have no authority to and shall not enter into any
agreements or obligations purporting to be binding upon the Company.
(b) As an independent contractor, you are solely and exclusively responsible (i) for all taxes
payable with respect to income earned through the Site; (ii) to obtain any liability, health, workers’
compensation, disability, unemployment, or other insurance needed, desired, or required by law,
and that you are not covered by or eligible for any insurance from the Company; and (iii) for
ensuring that you comply with any Licensing Authority’s rules or practices.
11 CONFIDENTIALITY.
You promise and agree to hold Confidential Information in strict confidence and in trust for the
sole benefit of the Company, both during the term of this Agreement and at all times thereafter,
and shall not use such Confidential Information for any purpose, whether or not for consideration,
business or personal, other than as may be reasonably necessary for the performance of its
duties pursuant to this Agreement, without the Company's prior written consent. You shall not
disclose any Confidential Information to any person or entity, other than to such of its employees
or consultants as may be reasonably necessary for purposes of performing its duties hereunder
and have executed agreements of confidentiality no less protective than this Agreement, without
the Company's prior written consent. You shall use not less than the same degree of care it uses
to protect its own Confidential Information, but in any event not less than a reasonable degree of
care. For purposes of clarity, your obligations hereunder include taking all actions necessary to
ensure that your affiliates, employees, contractors and agents and any other person or party who
obtains Confidential Information from or as a result of provider abide by the terms of this section
in their entirety.
Confidential Information does not include information that (a) is or becomes publicly known
through lawful means; (b) was rightfully in provider’s possession or part of your general
knowledge prior to the effective date of this Agreement; or (c) is disclosed to you without
confidential restriction by a third party who rightfully possesses the information (without
confidential restriction) and did not learn of it, directly or indirectly, from the Company.
If you are required to disclose Confidential Information by virtue of a lawful court order, subpoena
or similar legal request, you will promptly notify the Company in writing of such requirement and
cooperate so that the Company may seek an appropriate protective order. You will not use, copy,
publish, distribute or summarize any Confidential Information except as necessary to carry out
the activities contemplated herein.
12 WAIVER.
You expressly and unconditionally waive any and all claims against the Company, regardless the
bases upon which such claim(s) may be made, that may be based on, arise in connection with or
be related to any of the following acts, circumstances or conditions:
Affiliate Agreement (Rev. 13417FA) 6 / 12
(a) the Site is partially or totally inoperative or inaccessible;
(b) there are bugs, errors or inaccuracies in the Site;
(c) a suspension, termination or other action was taken with respect to your account by the
Company even if such suspension, termination or other action resulted in a loss of profits to you;
(d) any claim relating to a change in this Agreement by the Company;
(e) withholdings, deductions or offset in connection with payment of Fees due to applicable tax or
currency control restrictions.
For purposes of this section, any reference to “the Company” shall include the Company's
affiliates, officers, employees, principals, agents and contractors.
No waiver by the Company of any breach by you of any condition or provision of this Agreement
shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any
prior or subsequent time, nor shall the failure of or delay by the Company in exercising any right,
power, or privilege under this Agreement operate as a waiver to preclude any other or further
exercise thereof or the exercise of any other such right, power, or privilege.
You are solely responsible for the security of your Account, and the username and password
associated with your Account. You hereby waive and dismiss any claims against us and agree to
indemnify, defend and hold us harmless against any unauthorized use of or access to your
Account by an unauthorized person using your username and password.
You agree that any dispute you raise shall be as an individual only, not as a class or with or
behalf of anyone else. You expressly waive any right to bring a class or collective action, or be a
member in a class or collective proceeding. The Company may take any and all actions
necessary to dismiss a class or collective actions or claims thereunder.
13 ASSIGNMENT; SUCCESSION.
You may not assign this Agreement. Any attempted assignment or transfer in violation of this
subsection will be null and void. Subject to the foregoing restrictions, this Agreement is binding
upon and will inure to the benefit of the successors, heirs and permitted assigns of the Parties.
This Agreement shall be binding upon the Parties and their successors, permitted assigns, heirs,
affiliates, directors, shareholders, officers, employees and/or agents.
14 CHOICE OF LAW.
This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without
regard to its conflict of laws rules or principles.
Affiliate Agreement (Rev. 13417FA) 7 / 12
15 VENUE.
Affiliate hereby consents to exclusive jurisdiction and venue in the Commonwealth of
Pennsylvania for all proceedings arising out of this Agreement.
16 DISPUTE RESOLUTION.
To the fullest extent permitted by law, all disputes arising out of and related to this Agreement
(“Disputes”) shall be resolved as follows:
(a) Manner of Resolution.
Any Dispute(s) shall be submitted to mediation conducted in accordance with the rules of the
American Arbitration Association. Either Party may initiate mediation by filing a request for
mediation with a copy served on the other Party. Neither the attorney-client nor work product
privilege shall be deemed to have been waived by any statement or disclosure made in the
proceedings. If the Parties have not settled the Dispute by mediation the Dispute shall be settled
exclusively by arbitration. The arbitration shall be initiated and conducted pursuant to the
arbitration rules of the American Arbitration Association in effect at the time the request for
arbitration is made. Arbitration shall be final and binding upon the Parties. Any Party may bring an
action in court to compel arbitration under this Agreement and to enforce an arbitration award.
Otherwise, no Party shall initiate or prosecute any lawsuit or administrative action in any way
related to any Dispute. In any arbitration arising out of or related to this Agreement, the arbitrator
shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by
the prevailing Party in connection with the arbitration. The Parties shall maintain the confidential
nature of the arbitration proceeding and the award, except as may be necessary in connection
with a judicial challenge to an award or its enforcement, or unless otherwise required by law or
judicial decision. Notwithstanding anything herein to the contrary, either Party shall be entitled to
seek to obtain any provisional remedy, including injunctive or similar relief, from any court of
competent jurisdiction as may be necessary to protect such Party’s rights and interests.
(b) Equitable Relief.
Each Party acknowledges that (i) a breach or threatened breach by such Party of any of its
obligations under this Agreement would give rise to irreparable harm to the other Party for which
monetary damages would not be an adequate remedy and (ii) if a breach or a threatened breach
by such Party of any such obligations occurs, the other Party will, in addition to any and all other
rights and remedies that may be available to such Party at law, at equity, or otherwise in respect
of such breach, be entitled to equitable relief, including a restraining order, an injunction, specific
performance, and any other relief that may be available from, notwithstanding anything to the
contrary contained herein, any court of competent jurisdiction, without any requirement to (1) post
a bond or other security, or (2) prove actual damages or that monetary damages will not afford an
adequate remedy.
17 WAIVER OF JURY TRIAL.
Each of the Parties knowingly, voluntarily and irrevocably waives, to the fullest extent permitted
by law, all right to trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the actions of any Party
in negotiation, administration, performance or enforcement of this Agreement.
18 REMEDIES.
All rights, remedies, undertakings, obligations and agreements contained in this Agreement or
available at law, in equity or otherwise, shall be cumulative, and none shall be a limitation of any
other remedy, right, undertaking, obligation or agreement.
This Agreement shall be binding upon the parties and their successors, permitted assigns, heirs,
affiliates, directors, shareholders, officers, employees and/or agents.
19 FORCE MAJEURE.
The Company shall not be responsible or liable for any delay or failure to fulfill any provision of
this Agreement if such a delay or failure results directly or indirectly from any act of God, war, riot,
insurrection, embargoes, acts of civil or military authorities, fires, floods, explosions, accidents, or
any other cause beyond the reasonable control of the Company.
20 INTERPRETATION.
You acknowledge and agree that you had sufficient time and opportunity to have this Agreement
reviewed by your legal counsel. If this Agreement is ever construed, whether by a court or
arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof,
against any party as drafter.
This Agreement is written in English and, notwithstanding the translation or translatability into
other languages, the English language version of this Agreement shall be controlling.
The headings used herein are for convenience only and shall not be deemed to define, limit or
construe the contents of any provision of this Agreement. The meanings given to terms defined
herein will be equally applicable to both the singular and plural forms of such terms. Whenever
the context may require, any pronoun includes the corresponding masculine, feminine and neuter
forms.
21 COUNTERPARTS.
This Agreement may be executed in counterparts, via any means (including facsimile and e-mail),
all of which shall be effective, but when taken together shall comprise one agreement.
22 SEVERABILITY.
If any provision of this Agreement is unenforceable under any applicable law or is held invalid,
such holding shall not affect any other provision hereof, and the defective provision shall, if
applicable law permits, be modified and interpreted in a manner that it is enforceable. Otherwise,
the offending term or provision shall be omitted and not affect any other term or provision of this
Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
23 AMENDMENTS.
The Company may modify or amend the terms of this Agreement at any time by posting such
changes on the Site and/or notifying you by email. No such amendment shall be effective until at
least thirty (30) days after the posting or email notice, whichever occurs first. Notwithstanding any
modification, the rights and obligations of the Parties relating to the consideration to be received
hereunder and any fees to be charged as between Parties as to any occurrence prior to the
effective date of such modification shall remain unchanged by any such modification.
24 NOTICES.
Any notices or other communications required or permitted hereunder shall be sufficiently given if
in writing and delivered in Person or sent by registered or certified mail (return receipt requested)
or nationally recognized overnight delivery service, postage pre-paid, or delivered via telecopier
or facsimile transmission addressed as follows, or to such other address has such Party may
notify to the other Parties in writing:
To the Company:
Kiya Tomlin
388 Butler Street
Pittsburgh , Pennsylvania 15223
Email: kiyatomlin.us
To the Affiliate:
__________
____________________, __________ __________
Email: __________
Notices, demands or requests which we or you are required or desire to give the other hereunder
shall be deemed to have been properly given for all purposes if (a) hand-delivered to the Party's
notice address, (b) delivered to a nationally recognized overnight courier such as FedEx, UPS or
DHL to its addressee at such Party's notice address, or (c) delivered via telecopier or facsimile
transmission to the Party's facsimile number. Each such notice, demand or request shall be
deemed to have been received upon the earlier of (i) actual receipt or refusal by the addressee if
hand-delivered in accordance with clause (a) or (b) above, or (ii) the date and time of
transmission if sent during business hours in accordance with clause (c) above. The Parties shall
notify the other of any change in address, which notification must be at least two business days in
advance of it being effective. Notices may be given on behalf of any Party by such Party's legal
Affiliate Agreement (Rev. 13417FA) 10 / 12
counsel. For a notice to be valid and effective, an email copy of such shall notice shall be sent
concurrently to the addressee’s email. An email notice alone shall be sufficient upon
acknowledgment of receipt by the recipient or the recipient’s reply to such email, direct or indirect.
25 ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement and understanding between you and the
Company relating to the subject matter hereof and thereof and supersedes any prior or
contemporaneous discussions, agreements, representations, warranties and other
communications between you and the Company, written or oral, to the extent they relate in any
way to the subject matter hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement this date, September
16, 2022.
THE COMPANY
Authorized Signature
Printed Name: Kiya Tomlin
Title: Principal
THE AFFILIATE
Authorized Signature
Printed Name: __________
Title: __________
SCHEDULE 1
FEES
For each Completed Transaction, you will be paid Fifteen (15%) Percent of the Net Sale Price.
The Company is not responsible to pay any Fees in the event you do not use the Links provided
by the Company without modification OR you do not properly install those Links, meaning
the traffic will not be properly tracked to reflect that a Customer came from the Affiliate Site.