Affiliate Program Terms and Conditions

Last updated 8/20/15

This agreement is a legally binding agreement and contains the terms and conditions that govern your participation in the Vita-Mix Corporation (“Vitamix”) Affiliate Program (the “Program”). "We," "our" and "Vitamix" refer to Vita-Mix Corporation, the terms "you" and "your" refer to the applicant accepting these terms and conditions. BY REGISTERING FOR AND PARTICIPATING IN THE PROGRAM, YOU AGREE THAT YOU HAVE READ THE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THIS AGREEMENT

You acknowledge that you have read this Agreement and agree to all 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, or operate websites that are similar to, or compete with, your website. You have independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.

DESCRIPTION OF THE PROGRAM

The essence and purpose of the Affiliate Program is for you to demonstrate how the use of Vitamix products complements the lifestyle you live and promote. We permit you to advertise our products and earn advertising fees for Qualifying Purchases made by your customers. In order to ensure consistency, we may make available to you images, text, link formats and other information.

Vitamix Affiliates may only sell the Vitamix machines and accessories listed at Vitamix.com (http://www.vitamix.com/) under this Affiliate Program.

ELIGIBILITY

The program is a Vitamix owner program for United States and Canadian residents who use and want to promote the use of Vitamix products to other United States and Canadian customers.

YOU MUST OWN A QUALIFYING HOUSEHOLD VITAMIX MACHINE TO BE CONSIDERED FOR THE VITAMIX AFFILIATE PROGRAM. Commercial machines do not qualify for the program. Proof of ownership is determined by the serial code number located on your machine. Vitamix confirms the ownership status and country of residency of every Affiliate Program applicant. For promotional reasons, such as non-profit organizations, Vitamix may, in its sole discretion, allow a United States or Canadian resident who does not own a Vitamix household machine become a Vitamix Affiliate.

The program is not available to Vitamix employees, family members of Vitamix employees who reside in the same household or persons currently serving as Vitamix show demonstrators.

The USA/Canadian Affiliate Program is not available to our international Vitamix owners.

Distributors/Dealers of Vitamix Commercial Foodservice products are not eligible.

ENROLLMENT

To begin the enrollment process, you will need to review the terms of this Agreement and indicate your acceptance of these terms by clicking "I Agree" at the bottom of the page. Once you have agreed to the terms, you will be linked to our Affiliate Application. After you submit a complete Affiliate Application via our website, we will evaluate your application and notify you of your acceptance or rejection in a timely manner. We have no obligation to accept you as a Vitamix Affiliate.

You must receive prior written approval from Vitamix before posting any Vitamix material on your site and prior to making such site operational. The sole purpose of your site should not be just to sell Vitamix products. Your site should also contain original content created by you promoting the Vitamix brand and lifestyle. The essence and purpose of the Affiliate Program is for you to show your customers how the use of Vitamix products complements the lifestyle you live and promote. You are solely responsible for keeping your website and the content posted thereon current and up-to-date. As new information or graphics are provided to you by Vitamix, any and all old or outdated postings, materials or content must be promptly removed from your site.

We may reject your Affiliate program application if we determine your site is unsuitable Unsuitable sites include, but are not necessarily limited to those that: (a) promote or contain sexually explicit materials; (b) promote violence or contain violent materials; (c) engage in spamming, indiscriminate advertising or unsolicited commercial e-mail; (d) promote discrimination, or employ discriminatory practices based on race, sex, religion, nationality, disability, sexual orientation, or age; (e) include any trademark of Vitamix or a variant or misspelling of a trademark of Vitamix, in any domain name, subdomain name, or any other identifier on any social networking site; or (f) otherwise violate intellectual property rights.

You will ensure that the information in your Program application and other information associated with your account is correct. It is also your responsibility to keep all your Account information (including e-mail address) updated with us once you are accepted into the program. We may send notification relating to the Program to the email address currently associated with your Program account. We will assume that any communication sent to that email address is received, even if the email address associated with your account is no longer current.

ADVERTISEMENT/LINKS

You may only use the banner advertisements, links, text links to our website and images promoting Vitamix products that are provided to you through the Vitamix Affiliate Center (https://affiliate.Vitamix.com/). In utilizing the Links, you as an Affiliate, agree that you will cooperate fully with us in order to establish and maintain such Links. Using URL shortening services such as TinyURL or Bit.ly are prohibited.

You are expressly prohibited from framing our website in any manner, including without limitation causing your website's tool bar to appear on our website.

You are permitted to use and post on your website the content that we have provided to you in the Affiliate Center (https://affiliate.Vitamix.com/); however, you may not create, publish, distribute, or print any material that makes reference to the Vitamix name or the Marks (defined herein) or otherwise uses any variation or misspelling of our name, Marks, or trade names in any marketing or promotional materials, whether print, broadcast or electronic, without first submitting such material to Vitamix and receiving our written consent. You may not modify the creative elements without Vitamix’s prior written consent. Vitamix Affiliates are also prohibited from displaying in fairs, trade shows, and exhibitions or any public forum where Vitamix is present or displaying. You can view the Vitamix Show Schedule at https://www.vitamix.com/Where-To-Buy/Find-Retailer-Live-Demo for current show listings. Vitamix Affiliates may not interfere with the sales process of Vitamix show personnel. Vitamix Affiliates may NOT place the name Vitamix, Vitamix product names, Vitamix Free Shipping/Affiliate Promotion, any Vitamix trademark or trade name, or any derivative thereof in internet page titles or top-level, second-level or sub-level domain names.

UNDER NO CIRCUMSTANCES WILL YOU PERMIT, ENABLE OR ALLOW THE NAME VITAMIX, ANY OF VITAMIX'S TRADEMARKS, TRADE NAMES, PRODUCT NAMES, OR ANY DERIVATIVES OF ANY OF THE ABOVE LEAD DIRECTLY TO ANY OTHER WEBSITE ON THE INTERNET.

We will have no obligation to pay you advertising fees if you fail to properly format the links on your site as instructed in the Affiliate Center. In order to permit accurate tracking and reporting, you will be responsible for ensuring that the Links between our website and yours are properly formatted.

PROGRAM REQUIREMENTS

By participating in the Program, you agree to comply with the Program’s Terms and Conditions. You agree that Vitamix reserves the right to refuse to sell, or allow any of its products to be sold, to any person, including, but not limited to, any person Vitamix believes is causing, or is likely to cause, harm to the image or reputation of the company or to the image, reputation or marketability of our products. If we allow you to promote our products on your website, you agree to abide by the following conditions:

1. RIGHT TO MONITOR:
   • Vitamix has the right to monitor your website or social marketing pages controlled by you at any time to determine if you are in compliance with the terms of this Agreement.
2. PROHIBITED SITES:
   • You agree not to buy or encourage others to buy Vitamix machines or accessories through your Links for subsequent resale. Allowing Vitamix products (new, used or reconditioned), parts or accessories or special Vitamix offers or benefits, such as shipping codes, dealer codes, Affiliate Codes, Vitamix discounts, or Vitamix promotional codes, to be listed, posted, sold or bid upon at auction websites, such as eBay® or similar websites or stores, or advertisement only sites, such as Craig's List or similar sites or stores, is strictly prohibited. Affiliate Codes may not appear on any website other than that Affiliate’s own Vitamix approved website.
3. COUPON SITE POSTING IS PROHIBITED:
   • You acknowledge and agree that you are strictly prohibited from directly or indirectly posting your Affiliate Code or any other form of advertisement or promotion related to the Vitamix Affiliate Program on any coupon website that promotes coupons or savings codes.
4. SEARCH ENGINE MARKETING IS NOT THE ACCEPTABLE WAY TO MARKET YOUR VITAMIX AFFILIATE BUSINESS:
   • You agree that neither Vitamix nor any variation or misspelling of the name Vita-mix or Vitamix, nor Vitamix's trademarks, trade names, products or product names will be used in your website’s top-level, second-level or sub-level domain names.
   • You may not promote a discount, free shipping, or use or promote your Affiliate Code in search engine result pages that directly link to a Vitamix website that are obtained through the use of search engine optimization, paid placement, contextual advertising, and paid inclusion. This includes, but is not limited to, Google Adwords, Yahoo! Search Marketing and Microsoft adCenter.
   • We will not pay any referral fees on sales generated from Prohibited Paid Search Placements.
5. PROHIBITED USES OF "VITAMIX" NAME AND INTELLECTUAL PROPERTY:
   • You are prohibited from using Vitamix logos on your website. Affiliate Program logos have been provided in the Affiliate Center.
   • Except as otherwise permitted by this Agreement, you are prohibited from using any registered Vitamix names (or confusingly similar names) in your email address and on your website.
   • You shall not include or permit any Vitamix mark or trade name to be used or included in any username, group name, or other identifier registered with any social networking site such as Twitter, Pinterest, YouTube or Facebook. In addition, you shall not use or promote your Affiliate code on any social networking site such as Twitter or Facebook unless those are controlled by you.
6. YOUR WEB MARKETING CAN NOT RESEMBLE VITAMIX OR VITAMIX PROPERTY:
   • You acknowledge and agree that you are prohibited from cutting and pasting any Vitamix advertising, marketing, newsletters, or other web text, pictures, links or content onto your website. You may however, link to pages on www.Vitamix.com that you wish to use. This can be done via banners, photos or web modules through the Affiliate Center.
   • You may not utilize, advertise or otherwise promote any Vitamix promotional code outside of your Vitamix approved website or social media pages.
7. CONTACT INFORMATION MUST BE VISIBLE ON YOUR WEBSITE:
   • Your website must include your contact information where you can be contacted in a location easily identifiable and accessible by the average consumer on your website.
8. MARKETING IS THE RESPONSIBILITY OF THE AFFILIATE:
   • A portion of the commissions you earn are intended to reimburse you for costs you may incur in establishing and maintaining your website. You are solely responsible for the design and promotion of Vitamix products on your website. Vitamix has provided website marketing tools for your use located in the Affiliate Center.
   • It is not the responsibility of Vitamix or the purpose of the Affiliate Program to assist you in properly conducting and/or marketing your business. We have, however, provided promotional tools in the Affiliate Center for you. It is your responsibility to make sure Vitamix has your valid and current email address, so you can receive important updates.
9. DEMONSTRATIONS:
   • You are responsible for ensuring that you are using and/or distributing the most recent, up-to-date Vitamix product materials and literature at all times. You will be responsible for all losses and liabilities incurred by you or any third party as a result of or in connection with any demonstration conducted, arranged or sponsored by you. We strongly recommend that you check with your insurance agent to ensure that you have sufficient insurance to cover you in the event of an accident, personal injury or property damage to you or any third party as a result of or in connection with any demonstration conducted, arranged or sponsored by you.

You may post or otherwise display a live product demonstration or demonstration video on your website. You are not required to post videos or perform any public demonstrations, but if you choose to post or link to such demonstrations you must ensure that a Vitamix household machine is used in such demonstration.

Failure to comply strictly with the forgoing restrictions may result in termination of this Agreement.

If any of the above conditions have not been met, Vitamix reserves the right to (i) revoke your right to link to our website, (ii) terminate your participation in the Affiliate Program, (iii) terminate your right to receive commissions, regardless of whether such commissions were previously earned, due or payable, or (iv) take any combination of the above referenced actions.

To remain an active Affiliate, you must sell SIX (6) qualifying Vitamix machines each calendar year. If you do not sell SIX (6) Vitamix machines each year, we may terminate your Affiliate status and this Agreement with you. Commissions earned through the date of termination will remain payable only product orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct commission is paid. We will offset the amount of any commissions previously paid on products or accessories which are subsequently returned against any commissions due to you.

COMMISSION FEES

Your customer must use your Affiliate Code and provide the customer's contact information when placing the order for you to get your commission and for your customer to receive any Affiliate offers.

Commission rates are as follows: 15% of net sales for qualifying Vitamix machines and 5% of net sales on accessories. The term "net sales" means the aggregate amount actually paid to Vitamix for qualifying purchases, excluding amounts attributable to sales taxes, duties, and shipping and handling changes.

Commissions will be paid quarterly on those qualifying, shipped sales that have not been returned by the customer within one year of purchase. In the event that a commission has been paid to you and we have to refund payment to a customer in respect to the products or accessories to which the commission relates, we will offset such sum against future commissions due you, or we may demand repayment from you. The commissions to be paid under this Agreement may not be assigned by you to any third party.

All product orders must contain your Affiliate Code and your customer’s contact information, including e-mail address, if any, telephone number and shipping address, as Vitamix machines are billed and shipped directly to your customer by Vitamix. Commissions will not be paid to you if the customer’s contact information is not included in the purchase order. Vitamix machines and accessories must be purchased by your customers by one of the following methods:

1. Your customer can call our toll free number (1-800-848-2649) and place their order by phone using your Affiliate Code to receive active Affiliate offers.
2. Your customer can log onto Vitamix.com and place their order online using your Affiliate Code.
3. Your customer can purchase by clicking on a Vitamix banner or web module on your website. The web banner or module needs to be coded with your Affiliate Code in the link. The link will take the customer directly to Vitamix.com and your code will drop onto the customer’s order.
4. Your customer can mail a check or money order made out to Vitamix. Make sure to instruct your customer to write your Affiliate Code in the memo section on the check. Your customer must use your Affiliate Code and provide the customer's contact information when placing the order for you to get your commission and for your customer to receive any active Affiliate Offers
5. Affiliates may not place orders for customers using the customer’s credit card data. (If PCIDSS compliance standards are not followed, stiff penalties can result.) This violates Payment Card Industry (PCI) standards which Vitamix follows.

COMMISSION PAYMENT SCHEDULE

Affiliate commissions are paid quarterly:

Returned commission checks with no forwarding address will be registered with the State of Ohio Unclaimed Funds Program.

AFFILIATE RESPONSIBILITIES

You will be solely responsible for the development, operation, and maintenance of your website and for all materials that appear on your website. Such responsibilities include, but are not limited to, the technical operation of your website and all related equipment; the accuracy and propriety of materials and information posted on your website (including but not limited to, all Vitamix product-related materials); ensuring that materials posted on your website do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability for all such matters and for any content on your websites. Further, you will indemnify and hold us harmless for all claims, damages, and expenses, including, but not limited to attorneys' fees, relating to the development, operation, maintenance, and contents of your website.

All advertising, literature, etc. of Vitamix products must be pre-approved in writing by Vitamix. We are not responsible for any content or information other than that which is produced by us and then only so long as the same has not been altered or used inappropriately as determined in our sole discretion. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this section. You are responsible for all of your own expenses and all taxes and workers compensation which are payable or required for you to conduct your activities under this Agreement, and you shall indemnity Vitamix accordingly. You are solely responsible for providing Vitamix with your current contact information, including your e-mail address, telephone number and home address, at all times. You can submit your contact information by emailing your Account Manager listed in your Affiliate Center Dashboard located at affiliate.Vitamix.com or by emailing Affiliates@vitamix.com.

Privacy Policy - You will develop and maintain a privacy policy for your website that describes the information you collect from visitors and how that information will be stored and used. You must have a prominent link to your privacy policy on your

Your Affiliate Code is a unique account number assigned to you by Vitamix. It is a tracking number used to identify you and your customers in the Affiliate Program. The number looks like 06-XXXXXX. It always starts with 06, is followed by a dash and then 6 digits. The Affiliate Code does two things:

1. It provides affiliate promotions such as Free Standard Shipping on an order to an Affiliate customer

2. It is an account number that identifies which Affiliate gets credit for a sale and who to pay commissions to.

The Affiliate Code is not a "Coupon Code." Affiliates should never refer to their Affiliate Code as a "Coupon Code." Vitamix does not distribute coupons. According to Vitamix Affiliate Program rules, Affiliates may ONLY post their Affiliate Code(s) on their own website, Twitter, Facebook, social media pages controlled by YOU. Affiliate Codes are not permitted to appear on ANY third party, auction or coupon website. Any Affiliate whose Affiliate Code is found on a website other than that Affiliate's own Vitamix approved website will be terminated from the Affiliate Program and not be paid commissions.

Permitted ways to refer to your Affiliate Code when using electronic media include:

"Use my Affiliate Code"

"Affiliate number"

"Learn how to receive (insert affiliate promotion) through me"

"Learn how to receive (insert affiliate promotion) with my Affiliate Code"

"Use my Affiliate Code to receive (insert affiliate promotion)”

It is the sole responsibility of the Affiliates to ensure that their Affiliate Code(s) do not appear on any coupon website.

ORDER PROCESSING

Customers purchasing Vitamix machines and accessories through the Affiliate Program will be deemed customers of Vitamix. All orders are billed and shipped directly to your customer by Vitamix.

All Vitamix rules, policies, terms and conditions and operating procedures concerning customer orders, customer service, and Vitamix product sales will apply to your customers. We may change our policies and operating procedures, including pricing, at any time. Vitamix will, in its sole discretion, determine the prices to be charged for Vitamix products sold under the Affiliate Program in accordance with our own pricing policies. You may not include price information on your website other than pricing information that is made available on the Links we provide to you.

Prices and availability of Vitamix products may vary from time to time. We will use the affiliate Center and to notify you of promotions. We will use commercially reasonable efforts to present accurate information, but we do not guarantee or warrant the availability or price of any particular product. Vitamix reserves the right to refuse to sell or allow any of its products to be sold to any person, including, but not limited to, any person Vitamix believes is causing, or is likely to cause, harm to the image or reputation of the company or to the image, reputation or marketability of our products.

We will track affiliate generated orders for reporting and commission fee accrual purposes and will make available to you reports that summarize those purchases.

INTELLECTUAL PROPERTY

You hereby agree that your website will not, in any way, copy or resemble the look or feel of our website nor will you do anything to create the impression that your website is our website or part of our website, including without limitation, framing our website in any manner. You also hereby agree that your website will not contain any content of our website or any materials which are proprietary to Vitamix, except: (a) with our prior written permission or (b) if the materials were obtained by you via the Vitamix business building site in accordance with the provisions hereof or the policies or instructions therein. You further hereby agree that your website’s top-level, second-level, or sub-level domain names will not contain the words Vitamix, Inc. or any variation thereof.

We grant you a non-exclusive, non-transferable, revocable right to 1) access our website through the Links solely in accordance with the terms of this Agreement and 2) to use our marks and logos (the "Marks") only in the format that we have provided to you (or such other images or messages for which we grant prior express written permission, hereafter "Pre-approved Images") solely in connection with such Links and only as permitted herein. You may not alter, modify, or change the Marks or Pre-approved Images or message in any way. You are only entitled to use the Marks to the extent that you are a member in good standing of the Affiliate Program. You cannot make any use of any Marks or any Pre-approved Images for purposes other than Links without first submitting a sample to us and obtaining our prior written consent. You agree that you will not in any way dispute, or do anything to impair the validity of, our rights in our Marks or our ownership and right to use and control the use of our Marks. You further agree that all permitted uses of our Marks by you shall inure to our benefit of and on behalf of us and agree that nothing in this Agreement shall give you any right, title or interest in or to our Marks other than to use the Marks strictly in accordance with this Agreement. You agree not to use the Marks in any manner that is disparaging, portrays us in a negative light or that may adversely affect the goodwill of Vitamix or its Marks. We may revoke your status at any time by giving you written or verbal notice. You grant us a non-exclusive license to utilize your names, titles, and logos ("Affiliate Marks") to advertise, market, promote, and/or publicize in any manner, provided however, that we shall not be required to do so. This license shall terminate upon the date of termination of this Agreement.

DISCLAIMERS

We make no express or implied warranties or representations with respect to the Affiliate network or any Vitamix products sold through the Affiliate networks (except our standard product warranty and our money-back guarantee). In addition, we make no representation that the operation of our website will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors.

TERM AND TERMINATION

The terms of this Agreement will become binding upon our acceptance of your Affiliate Application and will end immediately when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. If this Agreement is terminated or we notify you of a breach by you, you shall be required to remove all Vitamix graphic and/or textual links (each of these links referred to herein as "Links" or, individually, as a "Link") within 24 hours of receipt of such notice.

Representations and warranties

You hereby represent and warrant to Vitamix as follows:

1. You are a United States or Canadian resident and, unless otherwise permitted by Vitamix pursuant to Q1:B, are an owner of a Vitamix qualifying household machine.
2. You will use the Links only as authorized in this Agreement.
3. This Agreement has been duly and validly executed and delivered by you and upon our acceptance of your Affiliate Application constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
4. Your execution, delivery, and performance of this Agreement, and your consummation of the transactions contemplated hereby will not, with or without notice, lapse of time, or both, conflict with or violate any provision of law, rule, or regulation to which you are subject, any provision of your governing documents, or any agreement or other instrument applicable to you or binding upon your assets or properties.
5. You are the sole and exclusive owner of the Affiliate Marks and have the right and power to grant us the license to use the Affiliate Marks in the manner contemplated herein, and such grant does not and will not breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. No consent, approval, or authorization of, exemption by, or filing with any governmental authority or third party is required in connection with the execution, delivery, and performance of this Agreement or any other action taken by you under this Agreement.
6. To the best of your knowledge there is no pending or threatened claim, action, or proceeding against you, or any affiliate of yours with respect to the execution, delivery or performance of this Agreement, or the Affiliate Marks. To the best of your knowledge there is no basis for any such claim, action, or proceeding.

MODIFICATION

We reserve the right to modify any terms and conditions contained in this Agreement at any time. A change notice will be posted in the Affiliate Center. Modifications may include, but are not limited to, changes of the scope of available commissions, commission schedules, payment procedures, and Affiliate network rules. If any modification is unacceptable to you, your only recourse and sole remedy is to terminate this Agreement. Your continued participation in the Affiliate network following our posting of a change notice or new agreement on our website will constitute your binding acceptance of the change.

CONFIDENTIALITY

Each of the parties hereto agrees to keep confidential all information obtained by such party as a result of entering into this Agreement including, without limitation, business and financial information, product designs, customer and vendor lists and pricing and sales information, concerning us, you, or any of your or our affiliates. Such information shall not be utilized, directly or indirectly by either party for any purpose except as contemplated by this Agreement, or 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 affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information to any person pursuant to an order issued by any court or administrative agency of competent jurisdiction, or otherwise as required by applicable laws, rules, regulations, or legal processes.

RELATIONSHIP OF PARTIES

The parties to this Agreement are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Members of the Affiliate Program are "independent businesses" and are not considered to be employees or agents of Vitamix. As an independent business, you are in no way authorized to represent or to make claims for or on behalf of Vitamix, directly or indirectly, written or otherwise expressed, or to bind Vitamix in any way without the prior written consent of Vitamix.

You are solely responsible for providing Vitamix with your current contact information, including your e-mail address, telephone number and home address, at all times. You can submit your contact information updates to Affiliates@vitamix.com.

LIMITATION OF LIABILITY AND INDEMNIFICATION

WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE NETWORK, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE NETWORK WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.

You hereby agree to indemnify, defend and hold harmless Vitamix and our subsidiaries and affiliates, 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 reasonable attorneys' fees, any or all of the foregoing hereinafter referred to as "losses") insofar as such losses, or actions in respect thereof, arise from or are based on:

1. any claim that our use of the Affiliate Marks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, or any failure or breach of any representation, warranty, covenant, or agreement made by you herein, any misuse of our Marks;
2. any claim related to your website, including, without limitation, content therein not attributable to Vitamix; or
3. any death, personal injury or damage to or loss of any property as a result of or in connection with any act or omission by you or your agent in conducting, arranging or sponsoring any demonstration of a Vitamix machine or accessory.

ASSIGNMENT

You may not assign this Agreement or your rights and obligations hereunder by operation of law or otherwise, without our prior written consent; however, we shall have the right to assign this Agreement, our rights or our obligations, or any or all of the foregoing hereunder to any of our related or affiliated entities. Subject to that restriction, this Agreement will be binding on, for the benefit of, and enforceable against the parties and their respective successors and assignees.

WAIVER OF DEFAULT

Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right subsequently to enforce such a provision or any other provision of this Agreement.

DISPUTES AND GOVERNING LAWS

This Agreement will be governed by the laws of the United States and the State of Ohio, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in federal or state court located in Cleveland, Ohio, and you irrevocably consent to the venue and jurisdiction of such courts.