Peer-to-Peer Advertising Agreement | AdsOnline

Booking No.: [X] (this “Booking”)

This Bilateral Peer-to-Peer Advertising Agreement (“P2P Agreement”) is a direct, legally binding contract between the Platform Advertiser (“Platform Advertiser”) and the Platform Influencer (“Platform Influencer”) to document the specific Basic Track transaction for the Booking described in the relevant Order Document(s). Any use of the AdsOnline Platform (the “Platform”) provided by Ads Online LLC (“Ads Online”) is subject to the AdsOnline Platform Terms of Service and the AdsOnline Platform Payment Terms (collectively, the “Platform Terms”), which is explicitly incorporated for reference. Any capitalized term herein carries the same definitions as in the Platform Terms unless otherwise stated.

1. Integration and Platform Rules.

The individual commercial details of this transaction—including price, channel, timeline, and campaign instructions—are dynamically dictated by the automatically generated Order Document associated with this Booking.

2. Responsibilities & Obligations of the Platform Advertiser

Upon acceptance of a Booking, Platform Advertiser agrees to:

At its sole cost and expense, create and deliver, to Platform Influencer all content required for any ad or campaign to be distributed, or otherwise for any Booking to be fulfilled, by Platform Influencer, as described in the relevant Order Document (“Distribution Content”);
Provide Platform Influencer with the necessary briefing materials to enable the Platform Influencer to perform the Platform Influencer’s marketing services.
Submit the payment amount shown on the relevant Order Documents via the Platform according to the Platform Payment Terms. Any failure by Platform Advertiser to submit a required payment via the Platform renders this P2P Agreement void.
Respond to any reasonable messages, inquiries, or requests by the Platform Influencer related to the Booking, including without limitation, any additional Distribution Content;
If the Booking includes a specific promotional format where a Platform Advertiser (or its designated representative) appears as a live or recorded guest on a Platform Influencer’s broadcast to discuss their business, products, or services in exchange for a flat contractual fee (a “Paid Interview”), attend the Paid Interview at the time, location, and manner specified in the relevant Order Document. Platform Advertiser acknowledges that failure to attend the Paid Interview at the time, location, and manner specified in the relevant Order Document may result in partial or full forfeiture of any amounts paid subject to the refund requirements, as described in the Payment Terms.

Distribution Content Responsibility. Platform Advertiser shall be solely responsible and liable for all Distribution Content created and delivered to Platform Influencer related to this Booking, whether or not transmitted via the Platform, including, without limitation, the content contained therein and the consequences of their display by Platform Advertiser on any social media platform or other channel designated in the relevant Order Document. Platform Advertiser warrants that the products and services promoted pursuant to the Booking, and all related Distribution Content, are legal and compliant with any applicable law or regulation, and do not infringe on the rights of any third-party. Once Platform Advertiser has submitted Distribution Content to Platform Influencer, Platform Advertiser is prohibited from changing any aspect of that Distribution Content or any material to which users can link through related to an ongoing campaign, including, without limitation, any content, images, claims, or offer terms, without Platform Influencer’s prior consent, which may be granted or withheld in Platform Influencer’s reasonable discretion. Platform Advertiser acknowledges that at least forty-eight (48) hours may be required to incorporate any changes to Distribution Content requested by the Platform Advertiser applicable to a particular advertisement or campaign.
Disputes and Chargebacks. Platform Advertiser agrees to exhaust all dispute mechanisms available via the Platform or the relevant Third-Party Payment Provider according to their terms related to the applicable Booking, and to agree to their final decision. Platform Advertiser further agrees that it will not instigate any chargebacks, payment reversals, and other similar types of circumvention.
Minor Adjustments. Platform Advertiser acknowledges that Platform Influencer reserves the right to make any reasonable grammatical and/or spelling edits to Distribution Content even after it has been approved by Platform Advertiser. Platform Influencer shall attempt, if reasonable, to secure a subsequent approval for grammatical and/or spelling edits; however, any advertisements or campaigns incorporating previously approved Distribution Content may be delivered regardless of grammatical and/or spelling errors (or subsequent requests for alteration).

3. Responsibilities & Obligations of the Platform Influencer

Deliverables. The Platform Influencer will deliver the agreed number of “Deliverables” on the social media platforms or other channels on behalf of the Platform Advertiser according to the specifications in the relevant Booking and applicable Order Document. Platform Influencer shall also abide by the rules of any relevant social media platform or channel.
Compensation. The Platform Influencer acknowledges that, subject to any refund, return, or other terms and conditions described in the Platform Payment Terms or applicable Order Document, Platform Influencer shall be paid the amount set forth in the Order Document it receives applicable to a particular Placement upon completion of that Placement, including full satisfaction of the terms of this Agreement and the applicable Order Document. The Platform Influencer will otherwise perform any services related to fulfilling the applicable Placement at his/her own expense and use his/her own resources and equipment. The Platform Influencer acknowledges that the agreed upon compensation represents the Platform Influencer’s entire compensation with respect to that Placement under the Order Document and this Agreement, and neither Ads Online nor the applicable Platform Advertiser shall have any other obligation for any other compensation to or expenses or costs incurred by the Platform Influencer in connection with that Placement under this Agreement. Platform Influencer acknowledges that Platform Influencer will not be paid for Services that violate this Agreement or the applicable Order Document, and may only be partially paid for services according to any refund or return conditions described in the Platform Payment Terms in force at that time.
Material disclosures. When publishing posts/statuses about Platform Advertiser’s products or services, the Platform Influencer must clearly disclose his/her “material connection” with the Platform Advertiser, including the fact that the Platform Influencer was given any consideration, was provided with certain experiences or is being paid for a particular service. Such disclosure should be clear and prominent and made in close proximity to any statements that the Platform Influencer makes about the Platform Advertiser or the Platform Advertiser’s products or services. Such disclosure is required regardless of any space limitations of the channels on which Platform Influencer is distributing the content, such as where disclosure can be made via Hashtags, e.g. #sponsored. Before publishing Content, including without limitation posts or statuses, Platform Influencer shall review and confirm that such posts/statuses are in full compliance with any applicable local, state, and federal laws and regulations, including the U.S. Federal Trade Commission’s (FTC) Guides Concerning the Use of Endorsements and Testimonials in Advertising, as well as any equivalent laws, rules, or regulations in the Platform Influencer’s jurisdiction. To this end, the Platform Influencer’s statements should always reflect the Platform Influencer’s honest and truthful opinions and actual experiences. The Platform Influencer should only make factual statements about the Platform Advertiser or the Platform Advertiser’s products which the Influencer knows for certain are true and can be adequately verified. If Platform Influencer is relying on a study or survey to make a statement, scientific or otherwise, it should ensure that such a study can be verified by independent and qualified professional testing.
Ad Tracking & Deliverability. For any content identified in a Placement as “Pre Roll,” finish that content within the first 5 minutes of the start of the actual broadcast. You further agree that no other ads are permitted within this time frame. For any content identified in a Placement as “Mid Rolls,” complete that content exactly half-way through the video and no earlier than 15 minutes into the video. You further agree that no other ads are permitted within this time frame.
Restrictions. Platform Influencer shall strictly refrain from playing, broadcasting, or transmitting unlicensed copyrighted music or media during any active promotional broadcast or live-stream window. Any stream termination, muting, or platform penalty resulting from a background music copyright violation constitutes a material breach of this Agreement, voiding any Platform Influencer entitlement to partial fees and triggering an immediate 100% refund to the Platform Advertiser. Further, the Platform Influencer shall not broadcast any altered, removed, or replaced Distribution Content without Platform Advertiser authorization through the Platform. Platform Influencer warrants that any representations made via the Platform about its channels, audience, reach, and performance are accurate, and that it has not artificially inflated any metrics.

4. Intellectual Property

Distribution Content. Unless otherwise agreed in writing by the Platform Influencer and the Platform Advertiser, the Platform Advertiser hereby waives and disclaims any right, title, or interest in any material produced by the Platform Influencer that incorporates Distribution Content (the “Influencer Content”), and hereby grants a perpetual, non-exclusive, irrevocable, and sub-licensable license to the Platform Influencer to copy, reproduce, and distribute such Distribution Content solely for the purpose of fulfilling and delivering the services required under the Booking. The Platform Advertiser hereby waives any claims or liability against, and agrees to defend, indemnify, and hold the Platform Influencer harmless from and against, any harms, losses, or damages arising out of the Platform Influencer’s delivery of the Platform Advertiser’s advertisement, or other services described in the Booking after they are approved by Platform Advertiser, unless directly caused by the Platform Influencer’s gross negligence or intentional misconduct.
Advertiser Marks. Platform Influencer acknowledges that the applicable Platform Advertiser and its related entities are the sole and exclusive owners of the trademarks, service marks, trade names and logos of the Platform Advertiser and its subsidiaries (together, the “Platform Advertiser Marks”). Platform Influencer agrees that they will not make any use of the Platform Advertiser Marks except with the Platform Advertiser’s prior written consent, and that any use of the Platform Advertiser Marks by Platform Influencer and the goodwill associated with such use shall inure to the Platform Advertiser’s benefit. Platform Influencer agrees and acknowledges that it shall not acquire any interest in the Platform Advertiser Marks or the goodwill associated with the Platform Advertiser Marks by virtue of this Agreement or Platform Influencer’s use of the Platform Advertiser Marks. Platform Influencer shall have no interest in or right to the use of any of the Platform Advertiser’s Marks except for any limited right of usage in connection with the provided services and solely in accordance with this Agreement. Without limiting the foregoing, Platform Influencer shall not claim any right in or attempt to challenge the validity of any of the Platform Advertiser’s Marks. In connection with Platform Influencer’s performance of its obligations under any Booking, the Platform Advertiser provides Platform Influencer with a limited license to use Platform Advertiser Marks solely in connection with the performance of Platform Influencer’s services herein and display of the Influencer Content.
Influencer Likeness. Unless otherwise agreed in writing by the Platform Influencer and the Platform Advertiser, Platform Advertiser shall have the right to use for commercial purposes, including without limitation, the right to reproduce, distribute, make derivative works of, and display the Influencer Content, together with or without Platform Influencer’s name, image, photograph, voice, biography, quotes, statements, performance and/or other likeness, and/or Platform Influencer’s blog’s name, stage name, channel name, or any similar identifiers associated with the Platform Influencer’s distribution of Influencer Content for the purposes of fulfilling the Booking (collectively, “Platform Influencer’s Likeness”) in any media now known or hereafter invented, including without limitation, any and all internet media, including without limitation any and all social media channels, email newsletters, websites and press materials.
Influencer Content. Unless otherwise agreed in writing by the Platform Advertiser and the Platform Influencer, the Platform Influencer hereby retains all right, title, and interest in the Influencer Content produced pursuant to the Booking, and hereby grants a perpetual, non-exclusive, irrevocable, and sub-licensable license to the Platform Advertiser to copy, distribute, display, and otherwise exploit such Influencer Content solely for the purpose of promoting the Platform Advertiser’s products and services. The Platform Influencer hereby waives any claims or liability against the Platform Advertiser for any harms, losses, or damages arising out of the Platform Advertiser’s display, distribution, or exploitation of the Influencer Content, unless directly caused by the Platform Advertiser’s gross negligence or intentional misconduct.
Miscellaneous Platform Influencer Indemnification. The Platform Influencer agrees to defend, indemnify, and hold harmless the Platform Advertiser from and against any and all third-party claims, losses, damages, liabilities, or expenses (including reasonable attorneys’ fees) arising out of or in connection with: (a) any breach of the Platform Influencer’s representations, warranties, or material obligations under this Agreement; or (b) any regulatory action, consumer complaint, or legal claim arising from the Platform Influencer’s failure to clearly and conspicuously disclose their material connection with the Platform Advertiser in compliance with applicable Federal Trade Commission (FTC) guidelines or other local advertising laws.

Unless otherwise specified in an Order Document or otherwise agreed to in writing by the Parties, the licenses granted under this Section are perpetual and shall survive termination of this Agreement without any royalties or additional payment due.

5. Mutual Acknowledgements and Agreements

The Parties mutually acknowledge and agree:

Except for the costs and expenses contemplated in this P2P Agreement or the applicable Order Documents, Platform Advertiser shall not bear any other costs or expenses related to Platform Influencer’s development or creation of the Influencer Content.
Opportunity to Consult Legal Counsel. Each Party mutually represents, warrants, and acknowledges that it has been provided a full, fair, and sufficient opportunity to read, review, and deliberate upon the text, legal conditions, and operational risks of this Agreement, and to consult with independent legal counsel of its own choosing prior to executing or clicking “accept” in relation to this Booking. The Parties explicitly agree that the terms of this Agreement— including the mandatory individual arbitration agreement and jury trial waiver set forth in Section 10—are reasonable, understood, and voluntarily accepted. Each Party knowingly and explicitly waives any legal claim, defense, or argument that this Agreement constitutes an unenforceable contract of adhesion, was entered into under duress or unequal bargaining power, or is procedurally or substantively unconscionable under the statutory or common laws of the State of New Mexico or any other applicable jurisdiction.
Independent Contractors. The Parties acknowledge and agree that the Platform Influencer is retained as an independent contractor of the Platform Advertiser. The Parties acknowledge and agree that (i) the Platform Influencer is solely responsible for the manner and form by which the Platform Influencer performs under this Agreement, and (ii) the Platform Influencer is a self-employed individual, who performs services similar to the services outlined in the relevant Order Document for various entities and individuals other than the Platform Advertiser. The Platform Influencer is responsible for the withholding and payment of all taxes and other assessments arising out of the Platform Influencer’s performance of services, and neither the Platform Influencer nor any of the Platform Influencer’s employees or independent clients shall be entitled to participate in any employee benefit plans of the Platform Advertiser. If the Platform Influencer has obtained employees or agents (the “Platform Influencer Personnel”), the Platform Influencer shall be solely responsible for all costs associated with the Influencer Personnel as well as for all actions of Influencer Personnel. Each Party understands that it does not have authority to make or accept any offers or make any representations on behalf of the other. Neither Party may make any statement that would contradict anything in this section.
The Parties acknowledge and agree that Ads Online is not involved in or responsible for any work performed by Platform Influencers under this Agreement, is not involved in or responsible for any payment made under this Agreement, and has no control over any Platform Advertiser or Platform Influencer. Ads Online does not guarantee that Platform Advertiser or Platform Influencer will perform on the P2P Agreement or under any Booking or relevant Order Document. Ads Online does not have any power or authority to, and does not, determine any eligibility standards for any P2P Agreement, determine or control any term or condition of the P2P Agreement or Booking (outside normal Platform functionality), or cause any Party to accept any P2P Agreement or perform any Booking. The Parties agree that the Platform Advertiser will select the Platform Influencer, that the scope of work will be set exclusively by agreement between the Parties, and that the Parties will take up any issues with the work and/or its scope between each other according to any applicable terms. The Parties explicitly agree that Ads Online is not a party to this Agreement or the underlying advertising engagement, and that the Platform serves strictly as a technology pipeline and an intermediary facilitating the transaction.
Legality of Content. Each Party agrees that it is solely responsible for the legality of its content provided to the Party.

6. Term and Termination

This Agreement shall commence immediately upon the date both Parties electronically accept this Booking via the Platform (the “Effective Date”) and shall remain in full force and effect so long as the Booking remains active or until it is marked as completed, canceled, or otherwise finalized within the Platform interface in accordance with the Platform Terms and Platform Payment Terms. Either Party may terminate this Agreement immediately upon written notice if the other Party materially breaches any provision herein, or if the underlying Booking is canceled or voided pursuant to the automated milestone rules set forth in the Platform Payment Terms. Upon the expiration or termination of this Agreement, all further rights and obligations of the Parties shall cease, provided that any provisions which by their nature are intended to survive shall survive, and any outstanding accrued financial obligations or payment disputes.

7. Confidentiality

During the course of the Platform Influencer’s performance of services for the Platform Advertiser, the Parties may receive, have access to and create documents, records and information of a confidential and proprietary nature to the other Party. The Parties acknowledge and agree that such information is an asset of the other Party, is not generally known to the trade, is of a confidential nature and, to preserve the goodwill of the other Party must be kept strictly confidential and used only in the performance of the Parties’ duties and obligations under this Agreement. The Parties agree that they will not use, disclose, communicate, copy or permit the use or disclosure of any such information to any third party in any manner whatsoever except to the existing employees of the other Party, and to the employees of Ads Online and its partners (whether in connection with the proper use and provision of the Platform or Ads Online’s other services), or as otherwise directed by the other Party in the course of fulfilling this Booking or otherwise to effect the purposes of this Agreement, and thereafter only with the written permission of the other Party. Upon termination of this Agreement or upon the request of the other Party, each Party will return to the other Party all of the confidential information, and all copies or reproductions thereof, which are in the Party’s possession or control.

Each Party acknowledges and agrees that any information about this Agreement or about any transaction instigated according to its terms, including (but not limited to) pricing, discounts, or dates of payments or other payment information, but not including any information that is by its nature can by its nature be considered reasonably likely to already be publicly known (such as the existence of a relationship among the Parties), is expressly considered confidential information, and will be handled according to the requirements of this Agreement.

8. Consumer Privacy

Each Party acknowledges that in the course of fulfilling this Order, or otherwise within the context of its relationship with the other Party, it may receive, transmit, share, collect, use, store, or transfer “Personal Information” relating to an identified or identifiable natural person, consumer, household, or device (“Data Subject(s)”). For the purposes of this Agreement, Personal Information is any data or information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular Data Subject, including (but not limited to) any Data Subject’s identifiers (including, but not limited to, name, alias, postal address, unique personal identifier, online identifier, internet protocol address, email address, account name, social security number, driver’s license number, passport number, or other similar identifiers), telephone number, billing or financial information, characteristics of protected classifications under Federal, state, or any other law, commercial information, biometric information, internet or other electronic network activity (including, but not limited to, browsing history, search history, or information regarding a Data Subject’s interaction with a website, application, or advertisement), geolocation data, sensory data (including audio, electronic, visual, thermal, olfactory, or similar information), or professional or employment-related information. Personal Information also includes inferences drawn from any other items of Personal Information to create a profile about a Data Subject reflecting the Data Subject’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes. Personal Information does not include any information that could not be used (in coordination, relation, or linking with other Personal Information held by the other Party) to trace, identify, or contact a particular individual or Data Subject, including fully and perfectly de-identified or anonymized information.
Each Party acknowledges and agrees that Personal Information it receives from the other Party (“Received Personal Information”) is of a confidential nature and must be kept strictly confidential and used only in the performance of duties under any applicable Order, including without limitation this Order under this Agreement, as instructed by the other Party that disclosed such information (the “Disclosing Party”). Each Party agrees that they will not use, disclose, communicate, copy or permit the use or disclosure of any Received Personal Information to any third party in any manner whatsoever unless and except as directed by the Disclosing Party in the course of the Parties’ relationship under this Agreement or any other agreement between the Parties of a similar nature, and thereafter only with the written permission or direction of that Disclosing Party. Each Party agrees to return any Received Personal Information either: a) that it received from a Disclosing Party upon that Disclosing Party’s request; or b) to the Disclosing Party which disclosed it upon the later of the termination of this Agreement or of any other applicable agreement. Any copies or reproductions thereof which are in its possession or control and that cannot be returned for any reason will be deleted, destroyed, or obliterated, should any persist.
Each Party acknowledges and represents that it has been advised to and fully understands the requirements of the European Union’s General Data Privacy Directive (GDPR), the California Consumer Privacy Act (CCPA), the Canadian Personal Information Protection and Electronic Documents Act and any substantially similar Canadian provincial law (PIPEDA), any other state’s privacy laws, and any other law related to privacy or security applicable to Personal Information (collectively, “Privacy Law(s)”). Further, each Party represents that it has complied with, and continues to comply with, all requirements of any applicable Privacy Law to which it is subject regarding a Receiving Party’s collection, storage, use, sharing, cross-border movement, and retention of Personal Information. Each Party also represents that it has entered into appropriate data handling agreements that conform to any applicable Privacy Law with its agents, employees, contractors, vendors, partners, affiliates, or anyone else it may share any Personal Information.
Each Party agrees and represents that, if so required by any applicable Privacy Law, it will enter into a separate data transfer agreement with the other Party or any other third-party adhering to the requirements of that (or those) applicable Privacy Law(s). Further, each Party agrees to not transfer or receive any Personal Information to or from the other Party in any way that would violate any applicable Privacy Law (including, but not limited to, failure for such a data transfer to be subject to an appropriate and binding data transfer agreement).
The Parties mutually acknowledge and confirm that any Personal Information transferred between them via the Platform is subject to the Platform Privacy Policy. Except as related to use of the Platform as described by the Platform Privacy Policy, each Party acknowledges and agrees that at no times will Personal Information related to any transaction contemplated by this Agreement (other than that relating to the Parties or any of their agents) be transferred, shared with, or accessible to Ads Online, and that Ads Online does not constitute a party to any transaction involving the transfer of Personal Information between the Parties outside the use of the Platform. Consequently, the Parties mutually acknowledge and agree that Ads Online is only expected to receive, decide upon, or comply with any requests regarding Data Subjects’ individual or collective rights, such as requests for access, information, portability, erasure, rectification, or any other privacy right granted to Data Subjects under any Applicable Privacy Laws (a “Data Rights Request”) in connection with the use and administration of the Platform, and that Ads Online is not responsible for any other discussion or execution of Data Rights Requests for Personal Information shared outside the Platform will occur solely between the Parties without Ads Online’s involvement.
Each Party represents that it has implemented and enforces proper handling policies and security practices regarding Personal Information, as is consistent with both industry standard and any applicable Privacy Laws. Each Party further represents that it complies with all applicable Privacy Laws, and that it does not violate its privacy policy by entering this Agreement or fulfilling the obligations and expectations of this Booking. Each Party acknowledges that it has reviewed the privacy policy of the other Party and agrees to comply with its terms, including any expectations related to compliance with any Data Rights Request.
Each Party hereby agrees to defend, indemnify, and hold harmless the other Party, and its officers, officials, employees, contractors, affiliates, and volunteers (including without limitation Ads Online and its officers, officials, employees, contractors, affiliates, and volunteers) from any and all claims, injuries, damages, losses, regulatory actions, or lawsuits (including attorneys’ fees and costs) arising out of or in connection with the Party’s handling or sharing of (or any breach of) Personal Information.

9. Service Disclaimer and Live Broadcast Limitations.

Platform Advertiser acknowledges and agrees that while the Platform Influencer shall perform such services subject to any reasonable creative instructions, briefs, or scripts provided by the Platform Advertiser under the terms of this Agreement, the Platform Terms, or the Platform Payment Terms, no specific commercial result, conversion rate, financial outcome, or audience metric is promised or guaranteed. Notwithstanding the foregoing, Platform Influencer warrants that it will not damage the reputation or commercial success of Platform Advertiser or its offered products or services due to Platform Influencer’s gross negligence or intentional misconduct.

Furthermore, with respect to Bookings explicitly designated as a Paid Interview or live broadcast, the Platform Influencer will use commercially reasonable efforts to comply with the reasonable instructions, talking points, or formatting requests provided by the Platform Advertiser. However, the Platform Advertiser explicitly acknowledges and agrees that live, real-time media broadcast environments cannot be strictly or completely controlled. Accordingly, the Platform Influencer does not guarantee any specific outcome or event related to a live media placement, and shall not be held liable for the spontaneous real-time actions, commentary, statements, conduct, or omissions of the Platform Influencer, its designees, employees, co-hosts, or guests during the live execution of such a Paid Interview or broadcast window. Consequently, the Platform Advertiser expressly assumes all liability arising out of or relating to any Paid Interview and agrees to defend, indemnify, and hold the Platform Influencer harmless from and against any claims, losses, damages, or liabilities incurred as a result of such live performance, except to the extent directly caused by the Platform Influencer’s gross negligence or intentional misconduct.

10. Governing Law; Jurisdiction; Arbitration.

This Agreement, any relevant Order Document, and any dispute or claim arising out of or in connection with them or their subject matter shall be governed by, and construed in accordance with, the laws of the State of New Mexico, United States, without regard to its conflict-of-laws principles. Except for disputes that qualify for small claims court or claims seeking injunctive or equitable relief for the alleged unlawful use of intellectual property (such as trademarks, trade dress, logos, or copyrights), the Parties agree to waive any rights to a jury trial and resolve any dispute arising out of or relating to this Agreement or any relevant Order Document through final, binding individual arbitration. Except as limited by the foregoing, any other related disputes, controversies, or claims, including, without limitation, any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement, shall be resolved exclusively by arbitration conducted before a single arbitrator, in accordance with this provision and the American Arbitration Association’s (“AAA”) Rules for the Resolution of Commercial Disputes. The seat or place of arbitration shall be Albuquerque, New Mexico, unless otherwise mutually agreed. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. Any filing or administrative fee shall be initially advanced by the party commencing the arbitration subject to reallocation by the arbitrator. The prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled to the extent permitted by law, to reimbursement by the other party for all of the prevailing party’s costs, expenses and attorneys’ fees. In the event that the arbitration provision above is found to be unenforceable, or for any dispute falling under the small claims or intellectual property exceptions, the Parties explicitly agree that any legal action or proceeding shall be brought exclusively in the state or federal courts located in New Mexico. The Parties hereby irrevocably submit and consent to the personal and exclusive jurisdiction of such courts in such cases. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

11. Miscellaneous

Force Majeure. Neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation acts of war, acts of God, earthquake, flood, weather conditions, embargo, riot, epidemic, acts of terrorism, sabotage, governmental act, failure of the Internet or other acts beyond such Party’s reasonable control, provided that the delayed Party: (i) gives the other Party prompt notice of such cause; and (ii) uses reasonable commercial efforts to correct promptly such failure or delay in performance. Neither the COVID-19 pandemic, nor related event or condition which is publicly known as of the date of execution of this Agreement or Order Document, shall be deemed sufficient to justify any failure or delay of performance under this Section.
Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and in facsimile or electronically, each of which shall be an original but all of which together shall constitute one and the same instrument.
Entire Agreement. This Agreement and any applicable Order Documents contain the entire understanding of the Parties in respect of its subject matter and supersedes all prior agreements and understandings (oral or written) between the Parties with respect to such subject matter.
Assignment. Neither Party may assign this Agreement or any of its rights, obligations, or benefits hereunder, by operation of law or otherwise, without the other Party’s prior written consent; provided, however, either Party, without the consent of the other Party, may assign this Agreement to an affiliate or to a successor (whether direct or indirect, by operation of law, and/or by way of purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of such Party, where the responsibilities or obligations of the other Party are not increased by such assignment and the rights and remedies available to the other Party are not adversely affected by such assignment. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the Parties and their respective successors and permitted assigns.
Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, such provision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement shall remain in full force and effect.
Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by facsimile, or mailed by registered or certified mail, return receipt requested and postage prepaid to the address for the other Party registered on the Platform or provided in the Booking or at such other address as may hereafter be furnished in writing by either Party hereto to the other Party. Such notice will be deemed to have been given as of the date it is delivered, if by personal delivery; the next business day, if deposited with an overnight courier; upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail); and five days after being so mailed.
Headings. The headings of the sections of this Agreement are for convenience only, do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe its meaning, scope or intent.
Waiver. No failure or delay on the part of either Party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.
Survival. Sections of the Agreement intended by their nature and content to survive termination of the Agreement shall so survive.