Last Updated: July 1, 2011
1. The Abax Interactive LLC Platform
The Company maintains an advertising Platform that provides detailed campaign information including impressions, clicks, actions, and conversions. Advertisers work via the Platform with vetted publishers that can drive website traffic on their behalf. Your use of the Platform is subject to the prior approval of Company, and once approval is obtained, You are considered a member of the Abax Interactive LLC network (the “Network”). As a publisher, You can promote Your ability to drive such traffic to advertisers that run campaigns on the Network. When a publisher is selected to participate in an advertiser’s program and that publisher generates an Action (defined below), they earn a Bounty (defined below).
- Action – means any interaction of a user subsequent to an impression as outlined for an Advertiser’s Campaign, which may include, without limitation, clicks, click-throughs, a purchase of a product or service, user lead submission, and/or user completion of a survey.
- Ads – Means the offers and/or commercial messages offered by Advertisers via the Network.
- Advertiser – Means an entity seeking to use the Platform to promote a product or service via the Network.
- Bounty – the amount paid by Company to Publisher as specified in the Platform for each Campaign.
- Campaign – Means an advertising program whereby an Advertiser outlines the terms of the program, including but not limited to the number of Actions the Advertiser requires, a defined period of time when Advertiser seeks such Actions, the Traffic Source(s) which may be utilized to obtain such Actions, and applicable Bounty due Publisher for each valid Action (collectively, “Traffic Instructions”)
- Rate Type – Means the pricing mode of which a Publisher shall be paid
- Payout Rate – Means the amount of which a Publisher shall be paid based on the Rate Type.
- Email – Means a Text or HTML email sent to an 100% permission based (opt-in) subscriber list via electronic mail over the Internet.
- Email Subscriber – Means a person who provides Publisher with affirmative permission (“opt-in”), to receive Publisher’s Email message(s).
- Publisher Content – Means any content provided by Publisher, including but not limited to the content offered on Publisher’s owned or controlled Web Site(s), Emails, Blog Postings, Social Networking profile pages, search advertisements, and/or search words purchased. For the purposes of this definition, Publisher Content is deemed as “owned or controlled” by Publisher where the Publisher seeks a Bounty from Actions generated in connection with such Publisher Content.
- Traffic Source – Means the advertising distribution channel that is utilized by Publisher via the Network. The only recognized traffic sources on the Network are: Email, Web Site banner Ads, blog Ads, social media Ads, and search Ads.
- Trafficking Instructions – the terms and conditions that apply to any particular Campaign as listed on the Platform, including but not limited to the number of Actions the Advertiser requires, a defined period of time when Advertiser seeks such Actions, the Traffic Source(s) which may be utilized to obtain such Actions, and applicable Bounty due Publisher for each valid Action.
- Unique Actions – Means the number of times, as recorded by Company’s servers, an individual person accessing Publisher’s Traffic Source as identified by a cookie, web beacon, and/or IP Address, takes an Action, provided however, that an Action will only be counted as a Unique Action once.
- Web Site – Means information presented at a World Wide Web URL address commonly viewed through an Internet browser.
Your use of the Platform is subject to the prior approval of Company, and once approval is obtained, you are considered a member of the Network. Company reserves the right to withhold approval of membership in the Network for any reason whatsoever. The scope of Your membership in the Network is limited to the specific Traffic Source(s) specified by Company.
The Agreement may be terminated by You upon two (2) days’ prior written notice to Company. The Agreement shall terminate immediately upon the dissolution or insolvency of either Party. Company reserves the right to terminate any Advertiser, Campaign and/or Ad for any reason. Company also reserves the right to terminate any Publisher’s relationship with the Network for any reason whatsoever. Termination notice may be provided via e-mail or any other public means and will be effective immediately. Upon receipt of such termination notice, Publisher agrees to immediately cease using the Platform, including, but not limited to, removal of Ads, codes and/or site links from Publisher’s Web Site, Email publication(s) and other Traffic Sources. In the case of termination, all moneys due to Publisher that are not subject to dispute (e.g., allegations of fraud, non-U.S. traffic, multiple Actions via the same IP address) will be paid during the next billing cycle as set out in this Agreement.
5. Use of the Platform
Advertisers will generally post Ads that are then currently available on the Network (the “Currently Available Ads”) for any given Campaign. Publisher agrees to use the Currently Available Ads only in connection with the applicable Campaign. Without limiting the foregoing Publisher must use the Currently Available Ads only for Traffic Source(s) specified by Advertiser for that Campaign, in accordance with Advertiser’s Trafficking Instructions for that Campaign, and only via Traffic Sources that have been specifically approved for Publisher by Company. Even if the same Ad is available in the Network for more than one Traffic Source (i.e., the same Ad appears for a Web Site and an Email Campaign), ADS MUST BE ACCEPTED INDIVIDUALLY FOR EACH TRAFFIC SOURCE. EACH AD MAY HAVE ITS OWN CODE FOR TRACKING PURPOSES AND THEREFORE, ADS THAT APPEAR IDENTICAL TO THE EYE MAY NOT BE IDENTICAL. NO PUBLISHER MAY PLACE AN AD ON ANY TRAFFIC SOURCE OTHER THAN THE TRAFFIC SOURCE FOR WHICH SUCH AD WAS ORIGINALLY SPECIFIED ON THE PLATFORM. Publisher shall not use Ads designated for use in prior Campaigns, unless such Ads continue to be available in the then Currently Available Ads for such Campaigns. Abax Interactive LLC reserves the right to pay Publisher only for Unique Actions delivered on Ads placed via the Platform that pertain to Traffic Sources(s) which were appropriately selected from the then Currently Available Ads. PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF ADS THAT THEY HAVE PLACED VIA PUBLISHER’S DESIGNATED TRAFFIC SOURCE(S) ON A REGULAR AND TIMELY BASIS. IT IS THE PUBLISHER’S SOLE RESPONSIBILITY TO CHANGE ADS WHEN A CAMPAIGN IS NO LONGER ACTIVE IN THE NETWORK. ABAX INTERACTIVE LLC ASSUMES NO RESPONSIBILITY TO NOTIFY A PUBLISHER WHEN AN AD, CAMPAIGN OR ADVERTISER IS NO LONGER ACTIVE IN THE NETWORK.
6. Prohibited Content.
Publisher acknowledges that Publisher is prohibited from displaying via the Network, Publisher Content that may, in the sole opinion of Company: (A) violate any law, give rise to criminal or civil liability or infringe any copyright, patent, trademark or service mark, trade secret rights or any other personal, moral, contract, property or privacy right of any third party (collectively “Unlawful Content”); (B) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking, or warez content or conduct (collectively “Offensive Content”); or (C) encourage conduct that would constitute Unlawful Content or Offensive Content. Publisher represents and warrants that during the term of this Agreement that Publisher Content shall not contain either Prohibited Content or Offensive Content.
7. Fraudulent Activity
The Company actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made aware of the activity and The Company will investigate. It is Publisher’s responsibility to prove that it is not committing fraud. The following signs of fraud will be investigated:
– Have click-through rates that are much higher than industry averages and where solid justification is not evident to the reasonable satisfaction of The Company;
– Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;
– Have shown fraudulent leads as determined by the Advertisers;
– Have much higher conversions per click rates than industry averages and where solid justification is not evident to the reasonable satisfaction of The Company;
– Use of fake redirects, automated software, and/or fraud to generate Events from the Campaigns and/or steal other Publishers’ commissions by replacing or modifying Publisher tracking codes/cookies.
– If Publisher fraudulently adds Events (through pre-population of forms, use of Media not explicitly approved by The Company in writing, or use of other mechanisms not approved by the Company), as determined solely by The Company, Publisher may forfeit its entire commission for all Campaigns and its account may be terminated. In addition, in the event that Publisher has already received payment for fraudulent activities, The Company reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher. If Publisher is notified that fraudulent activities may be occurring on its Website, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to The Company, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities.
8. Invalid Clicks
Abax Interactive LLC validates, accepts and pays for only valid clicks in our CPC network. Eliminating invalid clicks improves overall traffic quality, which in turn increases the sustainability and overall value of Abax Interactive LLC publishers’ traffic and payouts. Clicks are deemed valid unless they meet one or more of the criteria below as determined by Abax Interactive LLC proprietary methods and supported by 3rd party tools and data.
Invalid clicks are:
-Clicks occurring within the same session within the prescribed period of time; 1 click per unique IP per 24 hours.
-Any clicks generated outside the geo-targeted region.
-Incentivized clicks (unless approved by exception).
-Clicks that demonstrate non-human behavioral trends, including but not limited to:
Clicks from IPs that have been previously identified to be responsible for producing invalid traffic.
Clicks from bots.
9. Limitation of Liability.
EXCEPT AS PROVIDED IN SECTION 9 BELOW WITH RESPECT TO INDEMNIFICATION, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. PUBLISHER AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST ABAX INTERACTIVE LLC FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ABAX INTERACTIVE LLC MORE THAN ONE YEAR AFTER THE DATE OF SERVICE UNDER THIS AGREEMENT. IN NO EVENT SHALL ABAX INTERACTIVE LLC’S LIABILITY EXCEED THE TOTAL AMOUNT PAID TO PUBLISHER BY ABAX INTERACTIVE LLC HEREUNDER.
Publisher is solely responsible for any and all legal liability arising out of or relating to (i) Publisher Content(s) and/or (ii) any content or material to which users can link through via Publisher Content (other than links provided through an Ad). Publisher hereby agrees to indemnify, defend and hold harmless Company and its officers, directors, agents, affiliates, Advertisers and employees from and against all claims, actions, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and the cost of indemnifying third parties) arising out of or related to: (a) libel, defamation, violation of right of privacy or publicity, breach of contract, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher Content; (b) any breach by Publisher of any duty, representation or warranty under this Agreement, including but not limited to breach of any of Publisher’s Responsibilities outlined in Section 9 of this Agreement; (c) a contaminated file, virus, worm, or Trojan horse originating from the Publisher Content (other than through an Ad); and, (d) the acts and/or omissions of any Sub-Publishers (defined below). Company shall indemnify, defend and hold Publisher harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys’ fees) by third parties arising out of any actual infringement of intellectual property rights resulting from Publisher’s display of the Ad in connection with any Campaign, so long as Publisher’s display of such Ad is in accordance with the terms and conditions of this Agreement. Without limiting the foregoing, Publisher agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Company and/or any of its Advertisers pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law.
11. Publisher Responsibilities.
Publisher represents and warrants that it will adhere to the following in executing this Agreement:
– In addition to the responsibilities set forth herein, Publisher accepts, represents and warrants that it will abide by Company’s Email Guidelines, which are hereby incorporated into this Agreement by reference.
– Publisher represents and warrants that it shall offer Ads and Publisher Content under this Agreement in compliance with all federal, state and local laws and regulations, including, but not limited to, the CAN-SPAM Act of 2003 and Section 5 of the FTC Act.
– Publisher represents and warrants that Publisher Content does not, and will not during the term of this Agreement, contain any Prohibited Content or Offensive Content.
– Publisher represents and warrants that it shall not spoof, obfuscate, re-direct traffic in order to make it more difficult for Company to identify which of Publisher’s approved Traffic Sources generate a particular Action.
– Publisher represents and warrants that it shall adhere to Trafficking Instructions as indicated for each Campaign.
– Publisher represents and warrants that it shall not use brokers or third parties (“Pub-Publisher to deliver advertisements on their behalf unless: (i) Publisher provides Company with a complete list of Sub-Publishers that it intends to contract with, and lists the specific Traffic Source(s) that each Sub-Publisher will use on the Network; (ii) Company grants Publisher written permission that lists each Sub-Publisher contracted on Publisher’s behalf as well as the approved Traffic Source(s) for each applicable Sub-Publisher; (iii) Publisher provides each Sub-Publisher with a copy of this Agreement; (iv) each Sub-Publisher contractually represents and warrants that they shall act in compliance with the terms and conditions of this Agreement; (v) each Sub-Publisher agrees to fully and completely indemnify Publisher for all damages arising from their breach of any of the obligations set forth herein; (vi) each Publisher agrees to fully and completely indemnify Company for all damages arising from its Sub-Publisher’s breach of any of the obligations set forth herein; and (vii) Publisher has both the right and the ability to terminate distribution with any such Sub-Publisher on not more than 24 hours notice. As between Company and Publisher, Publisher is solely responsible for any and all liability arising from a breach of these obligations by any such Sub-Publisher.
– Publisher represents and warrants that it shall not materially change Publisher Content unless it notifies Company of the changes in writing prior to making such changes, and Company confirms receipt of such notice in writing. Notice should be sent to email@example.com.
– Publisher recognizes that Company has proprietary relationships with its Advertisers and employees, and Publisher represents and warrants that it shall not solicit, induce, recruit, encourage, directly or indirectly, any Advertiser or Abax Interactive LLC employee for purposes of offering products or services that are competitive with Company (including the provision of advertising inventory) nor shall Publisher contact such Advertisers for any purpose, during the term of Publisher’s membership in the Network and for the 90 day period following termination of Publisher’s membership in the Network. Any attempt by Publisher to directly contact or solicit an Advertiser will, at Company’s sole discretion, be considered a material breach of this Agreement.
– Publisher represents and warrants that it shall not post any Ads to newsgroups, chat rooms, bulletin boards, message boards, blog comments, within any mechanism that utilizes a social media platform’s (e.g., Facebook or MySpace or Craigslist) internal email systems, or any similar places unless expressly approved in writing from Company.
– Publisher represents and warrants that it shall not induce visitors or subscribers to click on Ads based on incentives (including, without limitation, cash, lotteries, points, prizes and contest entries or other rewards) without prior written approval from Company.
– Publisher represents and warrants that it shall not, without the prior, written consent of Company: (i) modify Publisher Content and/or Ads so that it appears, in Company’s sole discretion, that such Publisher Content is offered by Company and/or an Advertiser(s); or, (ii) alter, modify or change in any manner any Ads; provided that Publisher may, without prior approval, change the font typeface, font style, and font size of the text within Ads for the sole purpose of matching the font in Publisher Content. Such activity is expressly prohibited and a material breach of this Agreement. Request for approval of modifications of any Ads should be sent to firstname.lastname@example.org.
– Publisher represents and warrants that it shall not alter, copy, modify, take, sell, re-use, or divulge any Network computer code, except as is necessary to participate in the Network as specified in this Agreement.
Publisher agrees that should they commit a breach of this Agreement, including but not limited to violation of any of the warrants outlined in Section 9 of this Agreement, Company may, in addition to other legal remedies: (i) terminate Publisher’s membership in the Network immediately; (ii) withhold any Bounty due; and, (iii) assess liquidated damages of up to $10,000.00 (“Liquidated Damages”) for each violation of the terms of this Agreement. Publisher further agrees that such Liquidated Damages are reasonable.
Publisher acknowledges that during the performance of its duties and obligations under this Agreement, Company may be required to disclose to Publisher certain information, which Company regards as proprietary or confidential (“Confidential Information”). Confidential Information means non-public information designated in writing as confidential by the disclosing party or that by the circumstances surrounding disclosure ought, in good faith, to be treated as proprietary or confidential, and as used in this Agreement, the term “Confidential Information” shall refer to: (i) Company’s party’s trade secrets, business plans, strategies, methods and/or practices; (ii) computer systems architecture and network configurations, including but not limited to the Publisher’s passwords to, or anything contained on the Platform (iii) Company’s list of Advertisers or any Ads currently or previously running on the Network, (iv) any and all information which is governed by any now-existing or future non-disclosure agreement between the parties hereto, (v) any and all email addresses on Company’s Advertisers’ “Suppression” list(s) provided for purposes of suppressing against Publisher’s mailing list; (vi) any other information relating to Company that is not generally known to the public, including information about Company’s personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (vii) any and all analyses, compilations, studies, notes or other materials prepared which contain or are based on Confidential Information received from Company. Publisher agrees that it will not disclose any Confidential Information to any third-party, and that it will not use Confidential Information for any purpose not permitted under this Agreement. The foregoing obligations shall not apply to the extent Confidential Information: (i) must be disclosed by Publisher to comply with any requirement of law or order of a court or administrative body (provided that Publisher will endeavor to notify Company of the issuance of such order and cooperate in its efforts to convince the court or administrative body to restrict disclosure); or (ii) is known to or in the possession of Publisher prior to the disclosure of such Confidential Information to Publisher hereunder, as evidenced by the Publisher’s written records; or (iii) is known or generally available to the public through no act or omission of Publisher or its officers, directors, employees, agents, consultants, attorneys or independent contractors (“Representatives”) in breach of this Agreement; or (iv) is made available free of any legal restriction to Publisher by a third party. Publisher shall promptly reimburse, indemnify and hold harmless Company and its Representatives and other persons acting on its behalf, from and against any damage, loss or expense incurred by Company as a result of the breach of the confidentiality provisions in this Section 11 by Publisher, its Sub-Publishers or its Representatives. The duties and requirements under this Section 11 relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the Agreement shall survive termination of this Agreement.
Company shall have the sole responsibility for calculation of statistics, including impressions, Actions and Unique Clicks. Statistics shall be available to Publisher on the Abax Interactive LLC Platform. Publisher understands that Company’s online statistics may not be 100% accurate and that Company may make adjustments to Publisher’s online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., bonuses) and statistical errors. In the event Publisher disagrees with any such calculation, a written request should be sent immediately to Company. Company will provide Publisher with a reviewed audit of the numbers, which shall be final and binding on the parties.
14. Traffic Quality.
The Company reserves the right to request that a publisher halt traffic being delivered to a campaign based on Traffic Quality. Traffic Quality is determined by the Company. If Traffic Quality is found to be below the Company standards, a publisher may be asked to halt traffic to that campaign via written or oral notice. Publisher must take immediate action to reduce volume of traffic to campaign and cease all traffic within 48 hours of the request to halt. In the case that traffic volume increases within the 48 hour window, Company reserves the right to withhold bounty for the increased volume. After 48 hours of requesting the traffic halt, Company reserves the right to terminate all tracking links to campaign and withhold any future bounty for any subsequent traffic to halted campaign.
Payment for Actions will be made based upon the Rate Type as outlined on the Platform for a particular Campaign, and depending on the Currently Available Ads selected by Publisher. Payout rates on Ads selected by Publisher from the Currently Available Ads shall be honored for a period of thirty-six (36) hours from the time such Ads are accepted by Publisher provided the Ad has units remaining for delivery. IT IS THE PUBLISHER’S SOLE RESPONSIBILITY TO CHANGE ADS IN HIS OR HER PUBLICATION WHEN A CAMPAIGN IS NO LONGER ACTIVE IN THE NETWORK (i.e., THE CAMPAIGN HAS NO UNITS REMAINING FOR DELIVERY). COMPANY ASSUMES NO RESPONSIBILITY TO NOTIFY A PUBLISHER WHEN AN AD IS NO LONGER ACTIVE IN THE NETWORK. Company reserves the right, in its sole discretion, to change the Payout Rate on any Ads selected by Publisher which are delivered on Publisher’s Web Site or in Publisher’s Email publications more than thirty-six (36) hours after Publisher’s acceptance of such advertisement. Publishers will be paid at the account level. If You have more than one account, each account is evaluated independently for purposes of payment. NOTWITHSTANDING THE FOREGOING, PUBLISHER UNDERSTANDS AND AGREES THAT FOR PURPOSES OF COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, COMPANY RESERVES THE RIGHT TO EVALUATE ALL PUBLISHER ACTIVITY ON THE NETWORK, INCLUDING ACTIVITIES GENERATED UNDER SEPARATE ACCOUNTS. Payment will be made on or about the 30th day after the end of the month in which such Bounty(s) were earned by Publisher. No checks will be issued for any amounts less than $100 U.S.D. All un-issued Bounty will rollover to the next pay period. Company, reserves the right not to delay and/or withhold Bounty for Actions which are obtained, in the sole discretion of Company, in violation of this Agreement. To insure timely, accurate payment of Bounty, Publisher must notify Company by contacting his or her account manager in writing and/or by emailing email@example.com in the event that Publisher changes any of the following: (i) Publisher’s contact information, including change of address, phone or email address; (ii) that Publisher has a reasonable belief that it may be unable to meet any of the Minimum Requirements outlined in Paragraph / Section 7 of this Agreement; or (iii) any other information which may affect payment.
Company reserves the right to change any conditions of this Agreement at any time, and will publish such changes to its company website located at www.abaxinteractive.com. Publishers are responsible for complying with any changes to this Agreement within 10 business days from the date of change.
COMPANY MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. ALL ORDERS ARE CONTINGENT UPON ABAX INTERACTIVE LLC’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND UPON DELAYS CAUSED BY ACCIDENTS, WAR, ACT OF GOD, EMBARGOES, OR ANY OTHER CIRCUMSTANCES BEYOND ITS CONTROL. ABAX INTERACTIVE LLC WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.
Participation in the Network is non-exclusive. Publisher has the right to include advertising from other sources within Web Sites; provided that any Promotional Emails delivered by Publisher with Ads supplied by Company may not include any other advertisements.
19. Choice of Law, Arbitration, Class Actions.
This Agreement, including but not limited to the relationship between Company and Publisher will be governed by, and construed in accordance with, the laws of the State of California without regard to its laws or regulations relating to conflicts of laws. Any and all disputes or controversies whether of law or fact of any nature whatsoever arising from or respecting the Agreement shall be decided by arbitration by the American Arbitration Association (“Arbitrator”), in accordance with the then current Commercial Rules of the Arbitrator. Arbitration shall take place in Los Angeles, California. At the request of Company, arbitration proceedings will be conducted in secrecy. In such case, all documents, testimony and records shall be received, heard and maintained by Arbitrator in secrecy under seal, available for the inspection only by Company or Publisher and by their respective attorneys who shall have agreed, in advance and in writing, to receive all such information confidentially and to maintain such information in secrecy. Arbitrator shall be able to decree any and all relief of an equitable nature including, but not limited to, such relief as a temporary restraining order, a temporary and/or a permanent injunction, and shall also be able to award damages, with or without an accounting and costs. Company shall be entitled to an award of its reasonable costs and expenses, including attorneys’ fees, in any action or proceeding in connection with, arising out of, or under the Agreement. Nothing contained herein shall prevent either Party from seeking injunctive relief pending an outcome in arbitration. The Agreement shall not be governed by the United Nations Convention on Contracts for the Sale of Goods. To the extent permitted by law, You agree that You will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that You may have against Company, its employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove You as a participant in the suit. You agree to pay the attorneys’ fees and court costs that Company incurs in seeking such relief.