This Agreement is made between ThinkTQ, Inc., a corporation in good standing with and organized under the laws of the state of Colorado, with its principal place of business at PO BOX 580126 NORTH PALM SPRINGS CA 92258-0126, hereinafter "ThinkTQ", and "Affiliate", whose name and current address has been entered into the TQ Affiliate Application Form and submitted to ThinkTQ effective today. By checking the box labeled "I have read, understand and accept the terms and conditions of this Affiliate Agreement", you are agreeing to be bound by the terms and conditions herein.
The effective date of this Agreement shall be the date upon which this Agreement was Accepted by an Officer of ThinkTQ, such acceptance to be communicated to Affiliate via email at the email address provided by Affiliate to ThinkTQ.
ThinkTQ and Affiliate, for and in consideration of their mutual promises and other good and valuable consideration, the sufficiency of which is hereby acknowledged, agree as follows:
ARTICLE I: RECITALS
1.1. Sales Opportunity: This Agreement relates to the advertising, publication, presentation, promotion, sales and marketing of software, books, DVDs, TeleSeminars and other web delivered products and services known as Success On Purpose, The Power of TQ and 10 Choices of Intentional Excellence, The Time Prism, Today's TQ, TimePrism.com, ThinkTQ.com, Intentional Excellence.com, TodaysTQ.com, TQsmart.com, TimeQuotient.com, PowerofTQ.com, MyPurposeMyLife.com, SuccessOnPurpose and other web properties owned and operated by ThinkTQ. These products and services have been designed and developed by ThinkTQ and are hereinafter, collectively and individually, referred to as the "Product." Affiliate desires to promote and sell the Product subject to the terms of this agreement.
1.2. Product: For purposes of this Agreement, the Product shall include any and all derivative works or extensions to them, published in any form, including but not limited to: books, audio and video tapes, CD ROM's, computer software, disks, seminars, watches, shirts, cups, mugs, TV or radio programming and any and all forms of electronic publishing including email, PDF files, eBook files or HTML files and the world wide web.
1.3. Ownership: Affiliate hereby acknowledges that the Product, including its content, overall graphic design and specific graphic elements, trademarks copyrights, audiovisual effects and methods of operation, are the exclusive property of ThinkTQ and that no rights of ownership of any nature are being transferred to Affiliate. Affiliate acknowledges that any and all information specific to a customer and his or her test results or to ThinkTQ methods of operation, including, but not limited to ThinkTQ unique methodology of identifying and accounting for prospective and existing customers, unique customer products produced as a derivative of any individual's test results, as well as all associated records, lists, and files, electronic or other, relating to such customers are the sole property of ThinkTQ and that no rights of ownership of any nature are being transferred to Affiliate and are subject to the confidentiality provisions contained herein.
ARTICLE II: REPRESENTATIONS OF ThinkTQ
2.1. Representations and Warranties: ThinkTQ represents and warrants that:
(a) It is able to enter into and perform this Agreement and that such ability is not limited or restricted by any agreements or understandings between ThinkTQ and other persons or companies;
(b) The Product is an original work created by ThinkTQ and does not rely, or is in any way based upon proprietary information obtained or derived by ThinkTQ from other sources unless ThinkTQ has received specific authorization in writing to use such information;
(c) With respect to the computer software aspects of the Product, the performance of the Product substantially conforms to commonly accepted standards for computer software design, development and programming.
(d) ThinkTQ is the Trademark Owner of: The Time Prism, The Power of TQ, ThinkTQ.com, Nine to Five ThinkTQ, A ScreenSaver With The Power to Change Your Mind, Smarter @ the Speed of Light and Time Quotient. All other trademarks used within the Product are owned by ThinkTQ unless otherwise indicated.
2.2. Indemnification: ThinkTQ, with respect to the Product, shall indemnify and hold harmless Affiliate against any suits, losses, liabilities, damages, legal claims, settlements, costs and expenses, including reasonable attorneys' fees, arising from: (i) any breach of an agreement or understanding between ThinkTQ and another person or company; (ii) any use of proprietary information ThinkTQ has obtained from other sources; or (iii) any breach of the representations and warranties contained in Article 2.1; as long as Affiliate notifies ThinkTQ immediately upon learning of the claim and cooperates with ThinkTQ in defending against the claim. ThinkTQ agrees to notify Affiliate immediately if ThinkTQ becomes aware of any claim that ThinkTQ has represented or warranted is not true.
ARTICLE III: RESPONSIBILITIES OF ThinkTQ
3.1. Sales Assistance: ThinkTQ will provide Affiliate such sales support as it, in its sole discretion, deems necessary to assist Affiliate in the sale of the Product. Upon acceptance of this Agreement by ThinkTQ, Affiliate will receive a Salesperson's Start Up Package that will include a unique six digit Affiliate Identification Number that shall be incorporated by Affiliate into one or more unique sequence of code numbers, hereinafter, "Source Code" to be used to track Affiliate's sales.
3.2. Payment of Commission: During the term of this Agreement, and any subsequent renewal, ThinkTQ shall pay Affiliate a commission on the Net Receipts, in US Dollars drawn on a US bank, as defined hereunder, of any sale of a ThinkTQ Product made by Affiliate, subject to the following:
(a) For the purposes of this Agreement, the term "Net Receipts" shall mean the gross payments actually received by ThinkTQ in respect of the Product from sales by Affiliate less (i) any excise, sales, value added, international transactional or similar taxes, (ii) freight and handling charges, (iii) returns, discounts or other credits, (iv) settlement charges for handling Amex, Discover, Visa, MasterCard and other such charges or factoring accounts, (v) promotional and/or volume discounts and (vi) amounts paid to ThinkTQ for support services.
(b) Commission for sales outside of the United States shall be computed in the national currency in which they are paid and shall be credited to Affiliate's account at the same rate of exchange as they are paid, and shall be proportionally subject to any transfer or comparable taxes which may be imposed upon receipts.
(c) No commission will be paid for distribution of the Product at no charge, or on sales that include discounts greater than Affiliate's commission or on sales that include discounts greater than ThinkTQ established Discounts. No commissions will be paid on certain Products so designated by ThinkTQ, such as upgrade charges for custom printing, expedited delivery or alternative publishing options. ThinkTQ will, from time to time, provide Affiliate with a current list of Products for which no commissions, or reduced commissions will be paid. ThinkTQ may, without prior notice, change the Commission Rates at any time. Any such list provided to Affiliate by ThinkTQ at ThinkTQ.com/Affiliates will be considered a written modification to this Agreement and will have the same force and effect as if fully written out herein.
(d) Commissions will not be paid to individuals who have become an Affiliate for purposes of lowering the cost of the Product to his/her/its company.
(e) On certain products, such as Get Acquainted Specials and One Time Offers, ThinkTQ may pay a fixed fee per transaction on items not normally covered in 3.2 (a) above. Affiliate will find a list of such products, along with their current commission amounts, at ThinkTQ.com/Commission Rates. For example, ThinkTQ may, in its sole discretion, pay Affiliate a percentage of shipping and handling fees, upgrade charges, etc. for acquiring a First Time Customer, as defined hereunder.
(f) For the purpose of commissions payable hereunder, the following definition of terms shall apply:
Prospective Customer: An individual person who is in the ThinkTQ Sales and Marketing Database as having registered at any ThinkTQ web site, but who has never purchased a ThinkTQ Product. For purposes of tracking sales and the payment of commissions, ThinkTQ shall recognize an individual person as one customer regardless of the number of sign-in names used by this same individual person.
Individual Purchase Code: A one time use of a unique code number used by an individual person at the time of purchasing a ThinkTQ Product to obtain a predetermined Product or group of Products as a single purchase.
Individual Customer: An individual person who purchased a ThinkTQ Product, directly or indirectly, or acquired a ThinkTQ Product through the use of a Individual Purchase Code. Affiliate understands and agrees that ThinkTQ will not track, account for or pay commissions on sales where an Individual Customer is not clearly identified by his or her First Name, Middle Initial if any, and Last/Family Name.
Affiliate understands and agrees that there is a clear distinction between an organization that purchases a ThinkTQ Product for, or on behalf of, its employees or members and an Individual Customer. ThinkTQ will not consider companies, partnerships, corporations, agencies, government organizations and the like to be an Individual Customer. For purposes of illustration only, companies such as Ford, General Motors, Kodak, Apple, or organizations such as the CIA, Navy, Army, HUD and the like, are not, and will not be considered an Individual Customer hereunder. Simply because a Affiliate sold a Product to an Individual Customer within an organization doesn't mean that the organization itself has become a ThinkTQ Customer.
First Time Customer: An Individual Customer who has made his or her first purchase of a ThinkTQ Product, or who has acquired his or her first Product through the use of a Individual Purchase Code, and who has never purchased or acquired any ThinkTQ Product previously.
First Time Purchase: The first purchase made by a First Time Customer of a ThinkTQ Product, or the first acquisition of a ThinkTQ Product through the use of a Individual Purchase Code, made by an Individual First Time Customer. The First Time purchase shall include all Products purchased at the time of this first order.
Date of First Time Purchase: The date that a First Time Customer acquired his or her first ThinkTQ Product either by means of a direct purchase or by use of a Individual Purchase Code.
Subsequent Purchase: Any purchase of a ThinkTQ Product made after the Date of a First Time Purchase.
Existing Customer: An Individual Customer who makes a Subsequent Purchase of a ThinkTQ Product, or uses a Individual Purchase Code to acquire any Product, at any time after making a First Time Purchase. For purposes of this Agreement, an Existing Customer, as defined, can never be a First Time Customer.
Corporate Site License: A single, prepaid purchase of a specific quantity of the same Product made by the same person, company or organization for the purpose of distributing the individual Products to others by way of a Individual Purchase Code.
Affiliate of Record for a Prospective or Individual Customer: The Affiliate whose Source Code was used at the time that an individual person first became a Prospective Customer shall be the Affiliate of Record for that Prospective Customer for a period of one year beginning on the day that the Prospective Customer first registered at a ThinkTQ web site, or until the Prospective Customer makes his or her First Time Purchase, whichever is the earlier.
The affiliate whose Source Code was used by an Individual Customer at the time of an Individual Customer's First Time Purchase shall be the Affiliate of Record for that Individual Customer.
The affiliate whose Source Code was used at the time a Corporate Site License was purchased from ThinkTQ, shall be the Affiliate of Record for any Individual Customer who used one of the individual Site Purchase Codes provided within that Corporate Site License to make his or her First Time Purchase.
Once an affiliate becomes an Affiliate of Record for a First Time Customer, as provided above, that affiliate shall remain the Affiliate of Record for that Individual Customer for a period of one year beginning on the Date of First Time Purchase. Under no circumstances can another Affiliate displace or "bump out" a Affiliate of Record after an Individual Customer has made his or her First Time Purchase. After one year from the Date of First Time Purchase, there shall be no Affiliate of Record for that particular Individual Customer, and any sales made by ThinkTQ to that Individual Customer shall not be included in any report for purposes of calculating commissions due herein.
For purposes of clarification, if a Prospective Customer used one Affiliate's Source Code at the time of registering and used a second Affiliate's Source Code at the time of his or her First Time Purchase, the second Affiliate shall become the Affiliate of Record for this Individual Customer for a period of one year from the Date of First Time Purchase. An Individual Customer will have only one Affiliate of Record. No Individual Customer will have an Affiliate of Record for more than one year from the Date of First Time Purchase.
For purposes of further clarification only, if an Existing Customer makes a purchase using a Source Code belonging to a representative different than the Representative of Record for that same Existing Customer, then the representative whose Source Code was used at the time of that Existing Customer's purchase shall be paid the Existing Customer Commission of 30% and no Commission shall be paid to the Representative of Record for that specific purchase. The original Representative of Record shall, however, remain the Representative of Record after the sale made in this example for that Existing Customer as previously defined.
If an Individual Customer fails to use any Affiliate's Source Code at the time of becoming a Prospective Customer and fails to use any Affiliate's Source Code at the time of his or her First Time Purchase, then, by definition, there is no Affiliate of Record for that particular Individual Customer.
3.3. Commission Paid on Sales To First Time Customers: ThinkTQ shall pay a commission of 30% of Net Receipts to Affiliate when Affiliate's Source Code was used by a First Time Customer at the time of his or her First Time Purchase of a ThinkTQ Product.
3.4. Commissions Paid on Sales To Existing Customers: ThinkTQ shall pay a commission of 30% of Net Receipts to Affiliate when Affiliate's Source Code was used by an Existing Customer at the time of his or her Subsequent Purchase of a ThinkTQ Product.
For purposes of clarification only, if an Existing Customer makes a purchase using a Source Code belonging to an affiliate different than the Affiliate of Record for that same Existing Customer, then the Affiliate whose Source Code was used at the time of that Existing Customer's purchase shall be paid the Existing Customer Commission of 30% and no Commission shall be paid to the Affiliate of Record for that particular purchase.
3.5. Commissions Paid on Sales of Corporate Site Licenses: ThinkTQ shall pay a commission of 30% of Net Receipts to Affiliate when Affiliate's Source Code was used at the time that an individual, company or organization made a prepaid purchase of a Corporate Site License.
(a) All Corporate Site License sales must be approved in advance by ThinkTQ. (b) Because of incremental discounts, Corporate Site Licenses are not subject to First Time Customer Commissions. If the Corporate Site License purchase is for a "virtual" or "electronic" Product, ThinkTQ will issue Blocks of Individual Site Purchase Codes directly to a Key Account Contact within the organization that made the purchase. (c) Once issued, Site Purchase Codes will not be duplicated if lost, stolen or improperly used by others. The secure distribution of these codes to the individuals intended within customer's organization will be the full responsibility the customer's Key Account Contact.
3.6 Affiliate Referral Commissions: TQ shall track the history of all customers of TQ products. When Affiliate is the Affiliate of Record for any customer who later signs up to become an affiliate, the first Affiliate shall automatically be paid a 5% "referral" commission by TQ on any sales that are a) attributed to this second "referred" affiliate and b) where the second "referred" affiliate is due a 30% commission. All "referral commissions" shall be paid per the same terms provided in this Agreement for other Affiliate Commission payments.
3.7. Commissions Paid on Sales To Recipients of Individual Purchase Codes: When an individual person acquires a Product through the use of a Individual Purchase Code, and thereafter purchases another ThinkTQ Product, ThinkTQ shall consider this Individual Customer to be an Existing Customer and shall pay a commission of 30% of Net Receipts to Affiliate when Affiliate's Source Code was used at the time of this individual's Subsequent Purchase.
For purposes of clarification only, if an employee of XYZ Corp receives a Individual Purchase Code for a personal copy of The Power of TQ and 10 Choices of Intentional Excellence, and then, after he or she reads the book, subsequently decides to personally order the full system CD for himself or herself, the Affiliate whose Source Code was used at the time of the subsequent purchase would be paid a commission of 30% of Net Receipts, since this Individual Customer is considered to be an Existing Customer, not a First Time Customer.
3.8. Residual Commissions Paid on Sales Made By ThinkTQ on Behalf of Affiliate: ThinkTQ shall directly communicate, on a frequent and regular basis, with all customers in the ThinkTQ Sales and Marketing Database and shall promote and market the sale of ThinkTQ Products directly to all Prospective, First Time and Existing Customers. Affiliate understands and agrees that he/she/it is a beneficiary of such communication, marketing and sales activity by ThinkTQ, and that this Section 3.7. shall govern the commissions paid on sales of the Product made by ThinkTQ as a result of its direct sales and marketing efforts.
(a) ThinkTQ shall pay a Residual Commission of 30% of Net Receipts to Affiliate on sales made to a Prospective Customer, provided that Affiliate is the Affiliate of Record for that Prospective Customer and became the Affiliate of Record as a result of Prospective Customer's use of Affiliate's Source Code at the time he or she registered.
(b) ThinkTQ shall pay a Residual Commission of 30% of Net Receipts to Affiliate on sales made to a an Existing Customer, provided that Affiliate is the Affiliate of Record for that Existing Customer and became the Affiliate of Record as a result of Existing Customer's use of Affiliate's Source Code at the time he or she made his or her First Time Purchase.
(c) ThinkTQ shall NOT pay Affiliate a Residual Commission on sales of the Product made by ThinkTQ to an Individual Customer one year after an Individual Customer's Date of First Purchase.
3.9. Commissions Paid to Current Affiliates Only. ThinkTQ may change the terms of this Agreement at any time without notice to Affiliate. However, any change of terms will only apply to sales made after the date of any such change. No commissions of any nature shall be due or payable to Affiliate outside the term of this Agreement.
3.10. Pricing: ThinkTQ shall, in its sole discretion, set the Wholesale and Retail Prices of all Products and the commissions to be paid thereon. No retail price shall be advertised to the general public nor sold by Affiliate other than the listed price currently established by ThinkTQ at the time of sale.
3.11. ThinkTQ Policy on Source Codes: A Prospective Customer, will, at the time of registering at a ThinkTQ web site, be allowed to enter any Source Code that the Prospective Customer so chooses. It shall be Affiliate's sole responsibility to make the Prospective Customer aware of the importance of entering Affiliate's Source Code at the time of Registering and/or at the time of a First Time and Subsequent Purchase. It is strongly recommended that Affiliate create a web site link from their web site to ThinkTQ.com and direct all of their prospective customers to use Affiliate's web site and its link to then go to ThinkTQ.com and make a purchase. If Affiliate's link is coded properly per ThinkTQ.com instructions found at http://thinktq.com/about/affiliate/tqs_linking.cfm, then ThinkTQ.com will automatically populate Affiliate's customer/visitor with Affiliates source code for the duration of the customer/visitor's visit at ThinkTQ.com
3.12. Actual Source Code Entry: It is the responsibility of a Prospective Customer, at the time of registering at a ThinkTQ web site, or an Individual Customer, at the time of making a First Time or Subsequent Purchase, to enter the correct Source Code desired by him or her. ThinkTQ will make no adjustments on commissions due, payable or paid for any Source Code that was accepted unknowingly, entered incorrectly, or omitted entirely by the customer either intentionally or unintentionally.
3.13. Accountings: Within twenty (20) days after the end of each calendar month, ThinkTQ shall submit to Affiliate a statement of commissions payable for the previous month, together with payment of any accrued and unpaid commissions, provided such payments due Affiliate exceed $100.00 US Dollars. ThinkTQ may retain up to twenty (20%) percent of commissions payable for that period as a reasonable reserve against credits and returns. Each such reserve shall be liquidated with the rendition of the second statement of commission following the statement upon which the reserves were established.
3.14. Audits: ThinkTQ shall maintain correct and complete books of account relating to sales of the Product. ThinkTQ will not permit Affiliate to audit ThinkTQ's books and records, due to the confidentiality Agreement and Terms of Services Agreement between ThinkTQ and its customers. In the event Affiliate believes there has been a mistake, Affiliate must provide such information as may be necessary to trace the origin of the sale, and if Affiliate shows good proof that he/she/it should have been credited with the sale, ThinkTQ will adjust its records accordingly.
ARTICLE IV: REPRESENTATIONS AND RESPONSIBILITIES OF AFFILIATE
4.1. Representations and Warranties: Affiliate represents and warrants that he/she/it is able to enter into and perform under this Agreement, and that such ability is not limited or restricted by any agreements or understandings between Affiliate and other persons or entities.
4.2. Confidentiality of Customer Information: Affiliate acknowledges that any and all information specific to a customer and his or her related test results or to ThinkTQ methods of operation, including, but not limited to ThinkTQ Source Codes, unique customer products produced as a derivative of any individual's test results, as well as all associated records, lists, and files, electronic or other, relating to such customers are the sole property of ThinkTQ. Affiliate agrees and warrants that such information will be treated with the utmost care and be held in strict confidence. Any disclosure of any of the above referenced information shall be sufficient reason for ThinkTQ in its sole discretion to terminate this Agreement. Affiliate shall be responsible, to the full extent of the law, for any damages that may occur as a result of making any of the above information public. This provision, Affiliate's agreement to keep all information private and confidential, and Affiliate's responsibility thereto shall survive this Agreement. For the purpose of this provision, a customer shall be defined as all entities, individuals, companies or organizations that have registered on a site owned or managed by ThinkTQ, regardless if Affiliate was the source of such sale or not.
4.3. Indemnification: Affiliate, with respect to the Product and Representatives services, shall indemnify and hold ThinkTQ harmless against any suits, losses, liabilities, damages, claims, settlements, costs and expenses, including reasonable attorneys' fees, arising from: (i) any breach of an agreement or understanding between Affiliate and another person or company; (ii) any use of proprietary information Affiliate has obtained from other sources; or (iii) any breach of the representations and warranties contained in Article 4.1. and 4.2.; as long as ThinkTQ notifies Affiliate of the claim and cooperates with Affiliate in defending against the claim at Representatives' expense. Affiliate agrees to notify ThinkTQ immediately if Affiliate becomes aware of any claim that what Affiliate has represented or warranted is not true.
4.4. Promotional Efforts: Affiliate shall use Affiliate's reasonable good faith efforts in accordance with Affiliate's good faith business judgment in the promotion, marketing, sales and distribution of the Product as contemplated herein.
4.5 Affiliate's Conduct: Affiliate shall act in accordance with the highest standards of conduct consistent with "excellent practices of individuals in business" while conducting his/her/its responsibilities under this Agreement. Affiliate shall not alter any ThinkTQ published materials or Products including promotional materials and may not alter any of ThinkTQ trademarks, icons or visual images in any way. Affiliate shall always conduct his/her/its business at the highest level of integrity and shall not misrepresent any of the Products at any time in any way either verbally or in written communication. Any action performed by Affiliate that, in ThinkTQ sole opinion, shall be deemed to be injurious to the value of the trade and service marks, good will and/or business reputation of ThinkTQ shall constitute a material breach of this Agreement.
4.6. Affiliate Authority: UNDER NO CIRCUMSTANCES DOES REPRESENTATIVE HAVE THE AUTHORITY TO BIND ThinkTQ TO THE TERMS OF ANY CONTRACT WITH ANY THIRD PARTY. ANY CONTRACT THAT INCLUDES ThinkTQ AS A PARTY MUST BE EXPRESSLY APPROVED AND SIGNED BY AN OFFICER OF ThinkTQ.
ARTICLE V: TERM; DEFAULT; TERMINATION
5.1. Term: The term of this Agreement shall begin upon the date this Agreement is executed by an officer of ThinkTQ and, unless terminated earlier pursuant to the provisions of this Article V, shall end one (1) year from the date of such execution, unless renewed hereunder. The provisions of Articles 4.2, 4.3, 6.2, 6.3 and 6.6 shall survive the termination of this Agreement for any reason.
5.2. Renewal: This Agreement shall automatically renew upon its anniversary date for an additional twelve (12) month term unless, ThinkTQ, in its sole discretion, notifies Affiliate of its non-renewal and termination of this Agreement.
5.3. Default: Neither party shall be deemed to be in default under the terms of this Agreement unless the other party shall have given notice to the party that a material breach of the Agreement has occurred, specifying in reasonable detail the nature of the breach and the breaching party does not cure the breach within thirty (30) days after receiving the notice of breach. Affiliate specifically understands and agrees that the benefits of this Agreement to ThinkTQ derive in part from Affiliate's general appearance and personal conduct of his/her/its business in accordance with "good practices of individuals engaged in business." If, in the sole opinion of ThinkTQ, the Affiliate is found to conduct business hereunder in a manner deemed to be injurious to the value of the trade and service marks and business reputation of ThinkTQ, then such actions shall constitute a material breach of this Agreement.
5.4. Termination: Upon the occurrence of a default by ThinkTQ or Affiliate this Agreement will automatically terminate.
ARTICLE VI: MISCELLANEOUS
6.1. This Is A Non-Exclusive Affiliate Agreement: Affiliate understands and agrees that he/she/it may be in competition with other Representatives in the marketing, promotion or sale of the Product. Additionally, Affiliate understands and agrees that ThinkTQ hereby retains the right to (a) Market, promote and sell the Product directly to the public or to any company or organization; and (b) Enter into marketing, advertising and promotional agreements with any third parties ThinkTQ, in its sole discretion, may so choose.
6.2. Affiliate's Communication With ThinkTQ: Affiliate understands and agrees that, as a part of the business activities and relationship created by this Agreement, Affiliate may offer or provide input, comments, ideas, recommendations, advice and/or other specific knowledge and expertise as Affiliate may have to ThinkTQ for the purpose of improving the overall marketing, promotion, sales, production, distribution or any other business practice of ThinkTQ or toward the contribution, benefit and improvement of existing or future ThinkTQ Products. Affiliate assigns any and all rights of every nature, or claims to the ownership of those ideas offered to ThinkTQ or any benefit that could accrue to ThinkTQ as a result of ThinkTQ incorporating any such information into a Product or business activity.
6.3. Confidentiality: (a) During the term of this Agreement, ThinkTQ and Affiliate may have access to information relating to each others' products, software research and development, inventions, processes, techniques, designs or technical and business information, as well as the Product and Proprietary Information developed by both parties in the course of developing and producing the Product. All such information ("Proprietary Information") shall be considered by both parties to be proprietary and confidential.
(a) During the term of this Agreement and thereafter, each party shall, except as authorized in writing by the other party: (i) preserve and protect the confidentiality of all Proprietary Information; (ii) not disclose to anyone, including each other's employees, the existence, source, content or substance of the Proprietary Information; (iii) not use Proprietary Information in any way other than in furtherance of each party's respective obligations pursuant to this Agreement; and (iv) not disclose, use or copy any information or materials received in confidence by each party during the term of this Agreement from a third party or about a third party.
(b) Each party shall have no liability to the other for disclosure of any Proprietary Information which either party can establish to have: (i) become publicly known without breach of this Agreement; (ii) been publicly released for disclosure by either party; or (iii) been given to either party by someone other than Affiliate or ThinkTQ without a duty to maintain confidentiality.
(c) Not later than thirty (30) days after the termination of this Agreement for any reason, or if sooner requested by either party, both parties shall return to the other all originals and copies of the other's Proprietary Information then in the possession of the parties.
6.4. Waiver: A waiver of a breach or default does not constitute a waiver of future or other breaches or defaults.
6.5. Modification: With the exception of Section 3.2.(c) this Agreement may not be changed in any manner whatsoever except by a written Amendment signed by both parties.
6.6. Applicable Law: This Agreement shall be deemed a contract made under the laws (and not the choice of rules) of the State of Colorado, United States of America, and for all purposes, it, plus any related or supplemental documents and activities, shall be construed in accordance with and governed by the laws of such state. ThinkTQ and Affiliate agrees that the District Court of Boulder County, Colorado shall have personal and subject matter jurisdiction over each of them in any action brought to enforce this Agreement.
ThinkTQ and Affiliate agree to submit all disputes regarding this Agreement to binding arbitration pursuant to the Commercial Arbitration rules of the American Arbitration Association; such arbitration shall be located in Denver, Colorado. Costs of any arbitration proceedings under this agreement, not including attorney fees, will be paid to the prevailing party.
6.7. Integration: This Agreement is the entire agreement between the parties with respect to the relationship and responsibilities created herein and the sale of the Product, superseding any prior conversations, offers, negotiations or agreements.
6.8. Uncontrollable Events: If either party cannot perform any of its obligations because something has happened which is beyond its reasonable control, then the non performing party will: (i) notify the other party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the period in which the failure to perform is beyond the party's reasonable control and for a reasonable time thereafter.
6.9. Independent Contractor Status: Affiliate is performing under this Agreement as an Independent Contractor. Nothing contained in this Agreement constitutes appointment of either party as an agent, partner, joint venturer or employee of the other party for any purpose. Affiliate expressly agrees and acknowledges that Affiliate is solely responsible for, and shall properly account for and pay all unemployment insurance, social security insurance, income and withholding taxes, or any other taxes related to Affiliate services provided hereunder and the compensation received therefore.
UNLESS AFFILIATE IS A CORPORATION, ThinkTQ IS REQUIRED TO, AND WILL, PRODUCE AND MAIL IRS FORM 1099 TO AFFILIATE AT THE END OF EACH CALENDAR YEAR.
6.10. Expenses: All expenses and disbursements incurred by Affiliate in connection with this Agreement shall be borne wholly and completely by Affiliate. Affiliate does not have, nor shall Affiliate hold itself out as having, any right, power or authority to create any contract or obligation, either expressed or implied, on behalf of, in the name of, or binding upon ThinkTQ. Designation by Affiliate as "Affiliate" shall not expand the limited authority to conduct Sales and Marketing activities granted under this Agreement. Affiliate shall have the right to appoint, and shall be solely responsible for Affiliate's own salespersons, employees, agents and Representatives, who shall be at Affiliate's own risk, expense and supervision and who shall not have any claim against ThinkTQ for compensation or reimbursement.
6.11. Independent Agreement: This Agreement is independent of any present and future agreements between the parties, and the performance or non-performance by either party of its obligations hereunder shall not affect the rights or obligations of either party pursuant to any such other agreement.
6.12. Severability: If any provision of this Agreement shall be held void, voidable, invalid or inoperative, no other provision of this Agreement shall be affected as a result thereof, and, accordingly, the remaining provisions of this Agreement shall remain in full force and effect as though such void, voidable, invalid or inoperative provisions had not been contained therein. In such event, the parties agree to negotiate in good faith substitute provisions which shall most nearly effect the parties original intent in entering into this Agreement.
6.13. Assignment: This Agreement may not be assigned by either party in whole or in part without the prior written consent of the other party hereto, except as specifically provided herein. This Agreement may be assigned by ThinkTQ, in its sole discretion, to any subsidiary of affiliate of ThinkTQ or to any successor of ThinkTQ either by merger or acquisition of substantially all of the assets or the business of ThinkTQ as a going concern.
6.14. Notices: All notices or other communications required or contemplated by this Agreement shall be in writing and delivered personally or by certified mail, return receipt requested, to the address for each party below written or to such other addresses as the parties may specify in writing from time to time. All correspondence to ThinkTQ shall be to:
ThinkTQ, Inc. PO BOX 580126 NORTH PALM SPRINGS, CA 92258-0126