INFLUENCER TERMS AND CONDITIONS

Effective date 11/01/19

 

These Influencer Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the WiFiesta Sales Influencer Agreement between WiFiesta and Influencer (collectively, the “Agreement”). WiFiesta, subject to the provisions of this paragraph, may amend the Terms and Conditions in its sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by WiFiesta from time to time) will be available: (i) in WiFiesta App, and/or (ii) as part of the WiFiesta Website. Influencer agrees that either or both of these notification methods constitute adequate notice to inform Sales Influencer of any amendments to the Agreement and Sales Influencer further agrees to be bound by any such amendments to the Agreement upon such notification. 

 

Definitions

 

“ACTIVE INFLUENCER PROFILE” is an Influencer Profile that meets WiFiesta requirements including, but not limited to, being subscribed to Core RPSP Plans. Influencer Profile must not be, otherwise, suspended. Influencer Profile must not be deactivated by Legal Representative or administrators of Influencer Profile.

 

“INFLUENCER” refers to the individual who promotes the WiFiesta App to other users.


 

“ID FOR REFERRALS” refers to the alphanumeric code, which appears in the Influencer Profile section in the WiFiesta app. This code can be used as a referral code to refer other users to WIFiesta.

“INFLUENCER PROFILE” refers to the WiFiesta entity through which the Influencer manages its activities on the WiFiesta app and website. The term Influencer and Influencer Profile may be used interchangeably in this Agreement.

 

“LEGAL REPRESENTATIVE” refers to the person legally authorized to control Influencer Profile.

 

“PAYOUT AMOUNT” refers to the amount WiFiesta shall remit to Influencer against their Profit Sharing Profits, subject to the payout terms.

 

“PAYOUT PERIOD” refers to the period, as specified in a plan, during which Influencer Profile shall receive a percentage of the Profits generated from the associated Merchants and referred users. 

 

“PROFITS” are deemed to be calculated by the sale price less any expenses WiFiesta paid on behalf of Influencer Profile in furtherance of the sale, the cost of goods sold and any fees charged by third party service providers including, but not limited to, payment and payout processing fees, App Store fees and / or Google Play Store fees.

 

“PROFIT SHARE COMMISSION” refers to a percentage of the Profits earned from the Referred Entities by the Influencer Profile, if subscribed to RPSP. Profit Share Commission solely applies to WiFiesta Intangible Products.

 

“REFERRAL PROFIT SHARING PROGRAM (RPSP)” refers to the WiFiesta program that pays recurring Profit Share Commission for Payout Duration to Influencers for referring users and associating Merchants to WiFiesta Business Community.

 

“REFERRED ENTITY” refers to users who create a WiFiesta account using Influencer Profile’s ID for Referrals code.

 

“WIFIESTA TANGIBLE PRODUCT” refers to any WiFiesta Product that has a physically deliverable component.

 

“WIFIESTA INTANGIBLE PRODUCT” refers to any WiFiesta Product that does not have any physically deliverable component.

 

“WIFIESTA PRODUCT” refers to WiFiesta Tangible and / or Intangible Product.

 

  1. Influencer Profile 

    1. Influencer shall create and maintain an Influencer Profile on the WiFiesta prior to referring users to WiFiesta. 

    2. Influencer shall maintain up-to-date legal information of the WiFiesta Business Profile.

    3. Only Individuals may establish a WiFiesta Influencer Profile. Companies are strictly prohibited.

    4. Legal Representative and administrators of Influencer Profile may temporarily deactivate Influencer Profile. While Influencer Profile is deactivated, it loses all benefits of WiFiesta Referral Profit Sharing Program (RPSP) including, but not limited to, all pending and future Payouts.

    5. Legal Representative of Influencer Profile may, at their own discretion, delete Influencer Profile. Deletion of Influencer Profile is permanent. Influencer Profiles continue to be liable for any amount due, prior to the deletion date. Deleted Influencer Profile will lose all privileges of WiFiesta Referral Profit Sharing Program (RPSP) including, but not limited to, all pending and future Payouts.

    6. Influencer may refer users globally. 

    7. IT IS STRICTLY PROHIBITED FOR INFLUENCER TO REQUEST ANY CREDIT CARD OR FINANCIAL INFORMATION RELATED TO USERS. VIOLATING THIS CONDITION WILL SUBJECT INFLUENCER TO SEVER LEGAL ACTION.

  2. Referral Profit Sharing Program (RPSP)

    1. The RPSP is operated in good faith and the same good faith is expected in return. WiFiesta may withhold payouts where WiFiesta believes Influencers are acting in bad faith or otherwise acting contrary to the intent of the program. Commercializing, advertising, publishing, mass distributing, selling or paying for use of Influencer’s ID for Referrals is not appropriate, and WiFiesta will not honor such ID for Referrals Code. While WiFiesta cannot foresee every possible unacceptable scenario, some general guidelines for what is and is not permissible to promote your ID for Referrals include: : 

      1. Not permissible:

        1. Advertising

        2. Spam

        3. Publishing anything misleading information

        4. Paying or offering incentives for use of Influencer’s ID for Referrals

      2. Permissible:

        1. YouTube channels

        2. Informational and fan websites

        3. Social media sharing

    2. If subscribed to a relevant RPSP plan, Influencer is to act, in good faith, as a representative of WiFiesta to promote to:

      1. Influencer’s followers on social media platforms

      2. Other potential user

    3. In consideration for the duties performed hereunder, Influencer, acting through their WiFiesta Influencer Profile, shall be entitled to a percentage of the profits, Profit Share Commission, earned from the Referred Entities. The referral must be “direct result” of Influencer Profile’s efforts. The exact percentage and duration is governed by the specific plan to which the Influencer Profile is subscribed.

    4. To be considered a “direct result” of Influencer Profile’s efforts: 

      1. Influencer Profile must be Active at the time of the creation of a user account. 

      2. Substantially all of the contacts with users, which lead to the creation of an active WiFiesta user account, must have been made by Influencer. 

      3. REFERRED ENTITIES MUST USE THE ID FOR REFERRALS OF REFERRING INFLUENCER PROFILE DURING THE SIGNUP PROCESS TO BE QUALIFIED AS A REFERRAL.

    5. In consideration for the Profit Share Commission granted herein, Influencer Profile shall perform the following duties:

      1. Promote WiFiesta App to other users;

      2. Encourage users to engage on the App;

      3. Promote local businesses to friends and followers.

    6. This RPSP shall last from the start date of the RPSP plan until any of the following events happen, whichever event happens first:

      1. The end of the Payout Period of a specific plan of the RPSP;

      2. The Influencer Profile terminates subscription of the RPSP plan;

      3. WiFiesta terminates RPSP;

      4. WiFiesta terminates the plan;

      5. WiFiesta terminates the subscription;

      6. WiFiesta deletes or suspends the Influencer Profile.

    7. Upon termination, the following shall occur:

      1. The Influencer Profile shall receive the Profit Share Commission described herein up until the termination date;

      2. The Influencer Profile shall direct all further inquiries regarding the WiFiesta app back to WiFiesta;

      3. The Influencer Profile shall return or destroy any physical or digital copies of the Company’s proprietary information in its possession including (but not limited to): marketing material, business plans, customer lists, and pricing information.

    8. Influencer Profile will cease to earn Profit Share Commission, if at the time of the revenue generation, Influencer Profile was inactive.

    9. The Referred Entity may opt, at their own discretion, to switch the ID for Referrals to which they are associated. Under this scenario, Influencer Profile will cease to earn Profit Share Commission generated from Referred Entity. 

    10. The WiFiesta and Influencer agree that Influencer shall be considered independent contractors and not agents or employees of the other Party. Neither Party shall have authority to make any statements, representations or commitments of any kind, nor to take any action which shall be binding on the other Party, except as may be expressly provided for herein or authorized in writing.

    11. The Influencer is responsible for all taxes and local requirements and fees. Program Payouts are conditional on and subject to local laws and regulations.

    12. The Influencer shall not be entitled to reimbursement for any expenses except those that have been previously approved in writing by WiFiesta. 

    13. The Influencer shall receive written confirmation from WiFiesta before using any marketing materials related to WiFiesta Products that were not directly provided by WiFiesta.

    14. The Legal Representative of Influencer Profile participating in RPSP may not be an employee, legal representative of a partner of WiFiesta or any affiliate of WiFiesta

    15. The RPSP shall not be deemed to create any kind of relationship between the Influencer and WiFiesta or any of WiFiesta’s affiliates. The Influencer has no authority to represent or bind WiFiesta. 

    16. Profit Share Commission is non-transferable.

    17. Profit Share Commission is redeemable for cash.

    18. NOTWITHSTANDING ANYTHING TO THE CONTRARY, WIFIESTA WILL HAVE NO OBLIGATION TO ADVANCE ANY PROFIT SHARE COMMISSION WHOSE REVENUES HAVE NOT YET BEEN COLLECTED BY WIFIESTA. INFLUENCER WILL ONLY GET PAID WHEN WIFIESTA GETS PAID.

    19. In the event of a chargeback, refund or otherwise of a revenue source for which Payout has been processed, WiFiesta is authorized to recover the amount of the processed Payout from future Payouts.

    20. WiFiesta reserves the continuing right to, at any time, for any reason and without prior notice in WiFiesta’s sole discretion, to terminate RPSP.

    21. WiFiesta reserves the continuing right to, at any time, for any reason and without prior notice in WiFiesta’s sole discretion, to change the terms of RPSP and / or its associated plans.

    22. WiFiesta reserves the continuing right to, at any time, for any reason and without prior notice in WiFiesta’s sole discretion, to change how Profit Share Commission is paid out, cash or otherwise, and the timing of the Payout.

    23. WiFiesta reserves the continuing right to, at any time, for any reason and without prior notice in WiFiesta’s sole discretion, to terminate the subscription of any Influencer Profile.

    24. WiFiesta reserves the continuing right to, at any time, for any reason and without prior notice in WiFiesta’s sole discretion, to change the Profit Share Commission percentage and Payout Duration of RPSP plans.

  3. Payout

    1. WiFiesta is authorized to initiate credit transaction entries to Influencer’s depository account at the depository financial institution or any third party financial service providers including, but not limited to, PayPal, Stripe and Adyen, associated with the Business Profile of Influencer. Only in the event of an error, WiFiesta is authorized to initiate debit entry adjustments to the Influencer Account, at the depository financial institution or third party financial service provider associated with its Influencer Profile on WiFiesta, to correct any error. Influencer hereby acknowledges that WiFiesta’s origination to Influencer Account must comply with provisions of U.S. law. Payments take up to five (5) business days to become available in the Influencer Account after processing.

    2. Payouts are subject to minimums set by WiFiesta RPSP plans and / or third party financial service providers including, but not limited to, PayPal, Stripe and Adyen. 

    3. Influencer will not attempt to bill or collect reimbursement from any third-party payor, including but not limited to, any user, any Merchant, any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local governmental program or entity (“Third-Party Payor”), for any of Influencer’s services. 

    4. Tax Levy. In the event WiFiesta receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Influencer, WiFiesta may, in accordance with applicable law, deduct any such amounts from payouts due to Influencer.

    5. Taxes Generally. It is Influencer’s responsibility to determine what, if any, taxes apply to the payments Influencer makes or receives, and it is Influencer’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. WiFiesta is not responsible for determining whether taxes apply to Influencer’s transaction with either purchasers or WiFiesta, or for collecting, reporting or remitting any taxes arising from any transaction with or by Influencer and purchaser. Influencer may be asked to provide WiFiesta with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Influencer’s name for the value of payments made. Notwithstanding anything else in this Agreement, Influencer shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Influencer is required to be registered in connection with the Influencer Offering and pursuant to the terms and redemption of the Coupon, and shall be responsible for paying any and all sales, use or any other taxes related to the Influencer Offering or the goods and services.

    6. Transaction Taxes. Influencer bears sole financial responsibility for any and all sales, use, excise, general, goods and services tax, or other similar taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement between WiFiesta and Influencer (“Transaction Taxes”), if any. WiFiesta shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to WiFiesta pursuant this Agreement. Transaction Taxes are calculated using the Influencer’s billing address and will be included on invoices. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current law.

    7. Withholding Taxes. WiFiesta may be required by the tax authorities to withhold taxes on behalf of Influencer. WiFiesta reserves the right to deduct any such taxes from amounts due to Influencer and to remit them to the appropriate tax authority. WiFiesta may also be required to report the withholding tax payments to the tax authorities. WiFiesta shall provide evidence of payment of withholding taxes to Influencer no later than 60 days after payment of the withholding taxes.

    8. Until Influencer has complied with Influencer’s obligations under this Agreement. If WiFiesta reasonably believes that Influencer has breached any provision of this Agreement, WiFiesta may offset, delay, withhold, or suspend future Payouts to Influencer, in WiFiesta’s sole discretion. In addition, if Influencer is unwilling to, or in WiFiesta’s reasonable discretion appears unable to perform its obligations under this Agreement, WiFiesta is authorized to offset, delay, withhold, or suspend future payments to Influencer in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Influencer for any refunds and/or other amounts payable by Influencer under this Agreement.

  4. Customer Data Restrictions

    1. “Customer Data” means all identifiable information about users & Merchants generated or collected by WiFiesta or Influencer, including, but not limited to, user’s name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.

    2. Influencer shall use Customer Data only to fulfill its obligations in connection with the Influencer duties as authorized by this Agreement. Influencer expressly agrees that any Customer Data shall be used only for this purpose and not to enhance a file or list owned by Influencer, or any third party. Influencer represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Influencer engages the services of any third party to facilitate its obligations hereunder, Influencer shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Influencer or a third party engaged by Influencer to facilitate its obligations hereunder, Influencer shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.

    3. As long as Influencer uses Customer Data in compliance with applicable law and Influencer’s posted privacy policy, restrictions stated in this Agreement on Influencer’s use of Customer Data do not apply to: (i) data from any user who is already a customer of Influencer before the user’s first interaction with Influencer Profile of Influencer on WiFiesta, if such data was provided to Influencer by such user independent of this Agreement or any transaction hereunder; or (ii) data supplied by a user directly to Influencer who becomes a customer of Influencer in connection with such user explicitly opting in to receive communications from Influencer.

    4. Influencer shall immediately notify WiFiesta if Influencer becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of WiFiesta, and shall cooperate with WiFiesta in the investigation of such breach and the mitigation of any damages. Influencer will bear all associated expenses incurred by WiFiesta to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Influencer’s reasonable possession or control. Upon termination or expiration of this Agreement, Influencer shall, as directed by WiFiesta, destroy or return to WiFiesta all the Customer Data in Influencer’s or any agent of Influencer’s possession.

  5. Term and Termination
    This Agreement will continue in effect until terminated by either party in accordance with this Section (“Term”). WiFiesta is authorized to terminate this Agreement, at any time for any reason, by suspending or deleting Influencer Profile on WiFiesta. Influencer is authorized to terminate this Agreement by deleting Influencer Profile on WiFiesta. All Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term. 

  6. Marketing
    WiFiesta and its business partners may communicate with Influencer with regard to products, promotions, and other services that may be of interest to Influencer. This may include email or other communications. WiFiesta may also solicit Influencer’s opinion for market research purposes.

  7. Intellectual Property Rights

    1. Influencer grants to WiFiesta a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Influencer’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Influencer (collectively, “Influencer IP”); and (b) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Influencer (collectively, “Third Party IP”), in each case in connection with the promotion of WiFiesta to users and to WiFiesta Business Community. Any use of the Influencer IP or Third Party IP as contemplated in this Agreement is within WiFiesta’s sole discretion.

    2. Influencer acknowledges and agrees that, as between the parties, WiFiesta owns all interest in and to the Website, Mobile apps, Customer Data, WiFiesta trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by WiFiesta or at WiFiesta’s direction, or assigned to WiFiesta, and any materials, software, technology or tools used or provided by WiFiesta to promote, sell/resell (as may be applicable) or distribute the Influencer Offering and conduct its business in connection therewith (collectively “WiFiesta IP”). Influencer shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the WiFiesta IP or any portion thereof, or use such WiFiesta IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that WiFiesta grants Influencer a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of WiFiesta’s mobile merchant software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Influencer shall keep the WiFiesta IP confidential, and shall not prepare any derivative work based on the WiFiesta IP or translate, reverse engineer, decompile or disassemble the WiFiesta IP. Influencer shall not take any action to challenge or object to the validity of WiFiesta’s rights in the WiFiesta IP or WiFiesta’s ownership or registration thereof. Except as specifically provided in this Agreement, Influencer and any third party assisting Influencer with its obligations in this Agreement, are not authorized to use WiFiesta IP in any medium without prior written approval from an authorized representative of WiFiesta. Influencer shall not include any trade name, trademark, service mark, domain name, social media identifier, of WiFiesta or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Influencer shall not use or display any WiFiesta IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Influencer or a third party and WiFiesta. All rights to the WiFiesta IP not expressly granted in this Agreement are reserved by WiFiesta.

    3. If Influencer provides WiFiesta or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a WiFiesta product or service or otherwise in connection with this Agreement or any WiFiesta IP, (collectively, “Feedback”), Influencer irrevocably assigns to WiFiesta all right, title, and interest in and to Feedback. In the event Influencer  assignment to WiFiesta is invalid for any reason, Influencer hereby irrevocably grants WiFiesta and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Influencer warrants that: (A) Feedback is Influencer’s original work, and Influencer obtained Feedback in a lawful manner; and (B) WiFiesta and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Influencer agrees to provide WiFiesta such assistance as WiFiesta might require to document, perfect, or maintain WiFiesta’s rights in and to Feedback.

  8. Representations and Warranties
    Influencer represents and warrants that: (a) Influencer has the right, power and authority to enter into this Agreement; (b) Influencer, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Influencer’s services will be provided; (c) Influencer owns all interest in and to the Influencer IP and has licensing rights in (with the right to sublicense to WiFiesta) the Third Party IP, and has the right to grant the License stated in this Agreement; (d) the Influencer IP and the Third Party IP, the Influencer promotion and association practices, WiFiesta’s use and promotion thereof, and the results of such Influencer efforts, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (e) the Influencer IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (f) Influencer has had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Influencer duties to provide the services described in this Agreement; (g) Influencer’s business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Influencer is the authorized entity to receive the funds forwarded by WiFiesta; (h) Influencer is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Influencer is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Coupons in connection with this Agreement and.

  9. Indemnification
    To the extent allowed under applicable law, Influencer agrees to defend, indemnify and hold WiFiesta, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys’ fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Influencer of this Agreement, or the representations and warranties made in this Agreement; (b) any claim arising out of a violation of any law or regulation by Influencer or governing Influencer’s goods and/or services; (c) any claim by a purchaser or anyone else arising out of or relating to the goods and services provided by Influencer including, but not limited to, any claims for false advertising, product defects, personal injury, death, mount paid; (d) any claim arising out of Influencer’s misuse of Customer Data, or any violation of an applicable data privacy or security law; and (e) any claim arising out of Influencer’s negligence, fraud or willful misconduct. WiFiesta maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between WiFiesta and Influencer. Influencer’s duty to defend and indemnify WiFiesta includes the duty to pay WiFiesta’s reasonable attorneys’ fees and costs, including any expert fees.

  10. Confidentiality
    The terms for the Influencer Offering described in this Agreement are confidential, and Influencer agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if Influencer has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, WiFiesta is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).

  11. Limitation of Liability
    EXCEPT FOR INFLUENCER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. WIFIESTA’S SOLE AND COMPLETE LIABILITY TO INFLUENCER FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS IS LIMITED TO THE AMOUNT OF FEES CHARGED TO INFLUENCER BY WIFIESTA AS PART OF AGREEMENT FOR THE PRECEDING SIX(6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF AN INFLUENCER IN CONNECTION WITH ANY PAYMENT MADE BY WIFIESTA, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A INFLUENCER WAS UNDERPAID, MUST BE MADE IN WRITING TO WIFIESTA WITHIN NINETY (90) DAYS FROM THE DATE WIFIESTA REMITS THE PAYMENT AT ISSUE. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY INFLUENCER.

  12. Dispute Resolution
    All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 13, Dispute Resolution.

    1. Binding Arbitration
      EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN INFLUENCER AND WIFIESTA ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 12 TO ARBITRATE, INFLUENCER AND WIFIESTA ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 12). The provisions of this Section 12 shall constitute Influencer’s and WiFiesta’s written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at http://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.
      To begin an arbitration proceeding, Influencer or WiFiesta must comply with the limitations provision set forth in Section 11 and submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org. If Influencer demands arbitration, it shall simultaneously send a copy of the completed demand to the following address: 920 Mohawk St., Suite 202, Lewiston NY 14092. If WiFiesta demands arbitration, it shall simultaneously send a copy of the completed demand to the Influencer’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. WiFiesta will reimburse those fees for Disputes totaling less than $10,000 if Influencer is the prevailing party in such arbitration. WiFiesta will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that an Influencer Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Influencer requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Lewes, Delaware, unless the arbitrator determines or we agree that the matter should proceed in the county of Influencer’s principal place of business.

    2. Class Action Waiver
      WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.

    3. Choice of Law / No Jury Trial
      If for any reason a Dispute proceeds in court: (i) Influencer and WiFiesta agree that any such Dispute may only be instituted in a state or federal court in Sussex County, Delaware; (ii) Influencer and WiFiesta irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Influencer and WiFiesta agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Delaware, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) INFLUENCER AND WIFIESTA AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.

    4. Injunctive Relief / Attorneys’ Fees
      Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.
      In the event WiFiesta is the prevailing party in any Dispute, subject to any exceptions in this Section 12, Influencer shall pay to WiFiesta all reasonable attorneys’ fees and costs incurred by WiFiesta in connection with any Dispute.

  13. Other

    1. The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.

    2. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.

    3. Influencer is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without WiFiesta’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of WiFiesta. WiFiesta is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Influencer.

    4. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.

    5. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WIFIESTA DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE OR MOBILE APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE COUPONS OR PROMOTIONS ARE ERROR-FREE, OR THAT ANY INFLUENCER OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR INFLUENCER OR THE RPSP WILL RESULT IN GUARANTEE PROFIT