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Assignment and Waiver
You may not assign this agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this agreement.
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Disclaimers
We make no express or implied warranties or representations with respect to the Referral Program or any products sold through the Referral Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of performance, dealing, or trade usage). In addition, we make no representation that the website will operate, or that operation of our website will be uninterrupted or error free, and we will not be liable for the consequences of any of the foregoing.
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Referrer's Representations
You hereby represent and warrant to us as follows:
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This agreement constitutes a legal, valid, and binding obligation on your part, enforceable against you in accordance with its terms.
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You have the absolute right and authority to grant to us the license to use the Trademarks in the manner contemplated in this agreement, and such grant does not
and will not breach or conflict with any agreement or other instrument applicable to you, or infringe upon any proprietary right of any other person or entity.
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There is no pending or, to the best of your knowledge, threatened claim, action, pr proceeding against you, or any Referral of yours, with respect to the execution, delivery or consummation of this agreement, or with respect to the Trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
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Confidentiality
Except as otherwise provided in this agreement or with the consent of the other party hereto, we both agree that all information including, without limitation, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any of our Referrals provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be disclosed to third parties, or utilized, directly or indirectly, by such party for its own business purposes (except as contemplated by this agreement) or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its Referral. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to an order issued by any court or administrative agency, (b) to its accountants, lawyers, or other professional advisors on a confidential basis, and (c) otherwise as required by applicable law.
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Limitation of Liability
We will not for any reason whatsoever be liable for any direct, indirect, special, or consequential damages, or any loss of revenue, profits, or data, arising in connection with this agreement or the Referral Program, even if we have been advised of the possibility of such damages. Without limiting the generality of the foregoing, our aggregate liability will not for any reason whatsoever exceed the total commission fees paid or payable to you under this agreement.
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Indemnification
You hereby agree to indemnify and hold harmless 1-800-GET-LENS, and its subsidiaries and Referrals, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including solicitor's fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content not provided by us.
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Independent Investigation
You acknowledge that you have read this agreement, understand it in its entirety, and agree to all of its terms and conditions. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this agreement You have independently evaluated the desirability of participating in the Referral Program and are not relying on any representation, guarantee, or statement other than as set forth in this agreement.
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Governing Law
This agreement will be governed by the laws of the United States without reference to rules governing choice of laws.
