REVCONTENT STANDARD BUYER AGREEMENT
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY PRIOR TO REGISTERING AS A PUBLISHER, BUYER, OR USER OF REVCONTENT. YOUR AGREEMENT TO THESE TERMS CREATES A LEGAL BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU AND REVCONTENT, LLC. IF YOU REGISTER FOR THE REVCONTENT PROGRAM OR PARTICIPATE IN THE REVCONTENT PROGRAM YOU ARE AFFIRMATIVELY STATING AND AGREEING THAT YOU AGREE WITH THESE TERMS AND CONDITIONS AND FULLY ACCEPT THE COVENANTS, REPRESENTATIONS, WARRANTIES, AND TERMS CONTAINED HEREIN.
This Agreement (the "Agreement") is entered into by and between You and Revcontent, LLC ("Revcontent"). This Agreement shall govern the Revcontent Network, the Revcontent Self-Serve Content Recommendation Program (the "Program") and Your use, agreement, and relationship with Revcontent, and the Program. The Agreement consists of these Revcontent Standard Terms and Conditions (the "Terms" or "Agreement"), and the Revcontent Compliance Policies and Guidelines which can be found at http://faq.Revcontent.com. "Customer", "You", "Your", and/or "Buyer" shall be defined as any person or entity identified in the registration and application process (or listed at the time of enrollment), as submitted by the same person, entity, affiliated persons, and/or any agency, representative, or network acting on behalf of such person or entity, such being bound by this Agreement.
Subject to this Agreement, the Terms, and any and all rules, regulations, policies, or procedures that are developed, modified, or enacted by Revcontent from time to time, Revcontent hereby grants you the limited and revocable right of use, access, and participation in the Program. The Program gives users the ability to participate as Buyers to purchase media inventory made available by Publishers on Publisher Media. As used herein, "Publisher" means any third party that makes media inventory available for purchase by Buyers for the placement of Content Recommendations via the Program. "Publisher Media" means websites, applications, mobile websites, mobile applications and other media through or on which Content Recommendations may be delivered that is owned or operated by the Publisher or on which the Publisher has the right to place Content Recommendations. Participation in the Program as a Buyer is at your own risk.
2. PURCHASING MEDIA INVENTORY.
Upon accessing the Program, You affirmatively represent and warrant that You are at least 18 years of age and hereby agree to be bound by this Agreement and the policies and procedures of Revcontent. Buyer is solely responsible for all: (a) targeting options and keywords (collectively "Targets") and all text, content, information, images, and URLs ("Creative"), whether generated by or for Buyer; and (b) web sites, services and landing pages which Creative links or directs viewers to, and advertised services and products (collectively "Services"). Buyer shall protect any password(s) and take full responsibility for Buyer's own, and third party, use of any Buyer accounts. You understand and agree that Content Recommendations may be placed on any Publisher Media unless You opt out of such Publisher Media placement in the manner made available by the Program. You otherwise authorize and consent to all such placements. Revcontent may modify any of its Programs at any time without liability. Revcontent also may modify this Agreement at any time without liability, and Buyer's use of the Program after notice that these Terms or the Agreement has changed constitutes Buyer's acceptance of the new Terms. Revcontent or its Partners may reject or remove any Content Recommendation for any or no reason.
3. CONDUCT AND COMPLIANCE.
Revcontent makes available to Buyers various policies and guidelines
designed to combat consumer deception. Buyer hereby represents and warrants
that it: (a) has reviewed Revcontent's policies and guidelines that are
applicable to its Content Recommendations, which are made available here:
http://faq.Revcontent.com and this Agreement which is
available here: https://help.revcontent.com/knowledge/
Payment. Buyer shall be responsible for all charges up to the amount as set forth in the Revcontent online account, and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Unless agreed to by the parties in writing, Buyer shall pay all charges in accordance with the payment terms as set forth in the Program. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes including VAT, which shall be charged in addition where applicable. Revcontent is a USA entity, is exempt from VAT and Revcontent services are therefore subject to the reverse charge under EC Directive 2006/112. Buyer is responsible for paying all taxes, government charges, and reasonable expenses and attorneys fees Revcontent incurs collecting late amounts. To the fullest extent permitted by law, Buyer waives all claims relating to charges (including without limitation any claims for charges based on suspected invalid clicks) unless claimed within 7 days after the charge. Charges are solely based on Revcontent's measurements for the applicable Program, unless otherwise agreed to in writing. Any funds still left on deposit over one year after Buyer has terminated activity on the Revcontent network shall be forfeited to Revcontent. To the fullest extent permitted by law, refunds (if any) are at the sole and absolute discretion of Revcontent and only in the form of advertising credit for use on the Revcontent Network. Buyer acknowledges and agrees that any credit card and related billing and payment information that Buyer provides to Revcontent may be shared by Revcontent with companies who work on Revcontent's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Revcontent and servicing Buyer's account. Revcontent may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Revcontent shall not be liable for any use or disclosure of such information by such third parties.
Credit. Nothing in these Terms or this Agreement shall obligate Revcontent to extend credit to You or any other party. In the event that Revcontent decides, in its sole and absolute discretion, to extend Credit to You, You expressly acknowledge and confirm that You will be deemed a "Revcontent Credit Buyer" until the credit relationship is terminated and You pay any and all amounts due and outstanding to Revcontent in full. Revcontent Credit Buyer payments must be received on monthly net 30 terms, unless otherwise agreed to in writing. You further acknowledge and agree that in the event that you also act as a Revcontent Publisher, Revcontent will not remit the Publisher payment unless and until it receives the Revcontent Credit Buyer Payment. Revcontent shall remit such Publisher payments within five (5) business days of its receipt of the Revcontent Credit Buyer payment. You agree that Revcontent may require a financial accounting and inspection of Your books and records including, but not limited to, access to Your computer databases, in order to verify and corroborate financial information regarding the relationship established hereunder. You hereby authorize Revcontent to obtain credit reports regarding Your business and to require You to provide it with reasonable information regarding Your financial position.
Revcontent reserves the right, in its sole and absolute discretion, to terminate this Agreement and/or Your access to the Program at any time for any reason, without notice to You. Upon termination, the representations, warranties and obligations of Buyer contained within the Agreement shall survive and remain in full force and effect after termination of the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled. After receipt of Your written notice of cancellation, Revcontent will cease serving your Content Recommendations within a reasonable time period thereafter, not to exceed six (6) business days. The cancellation may be subject to Program policies or the ability of Revcontent to re-schedule reserved inventory or Content Recommendations already being served. Cancelled Content Recommendations may be served despite cancellation if cancellation of occurs after any applicable commitment date as set forth in advance by Revcontent, its affiliates, Partners, and/or Publishers, in which case Buyer must pay for the service of those Content Recommendations.
6. PROMOTIONAL USE.
Revcontent may, from time to time, use Your name and logo in presentations, marketing materials, Buyer lists, financial reports, Web site listings of Buyers, and search results. You may request in writing to use Revcontent's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, but at no time shall You use such trade names, marks, and/or identifying information without the prior express written consent of Revcontent.
Buyer represents and warrants that (a) it is authorized to act on behalf of and has bound to this Agreement any third party for which Buyer advertises (a "Principal"), (b) as between Principal and Buyer, the Principal owns any rights to Program information in connection with Content Recommendations, and (c) Buyer shall not disclose Principal's Program information to any other party without Principal's consent.
8. REPRESENTATIONS AND WARRANTIES.
You represent and warrant that (a) all of the information provided by You to Revcontent to enroll in the Program is true, accurate, correct, and current; (b) You are the owner of each Content Recommendation, Creative, and/or content or that You are legally authorized to act on behalf of the owner of such for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations in Your performance of any acts hereunder. You further represent and warrant that each Content Recommendation, Creative, content, and any material displayed therein: (i) complies with all applicable laws, statutes, ordinances, and regulations; (ii) does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content. Buyer represents and warrants that it holds and hereby grants Revcontent and its affiliates, Partners, and Publishers all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in the Content Recommendations, Creative, Content, Services and Targets needed for Revcontent and its affiliates, Partners, and Publishers to operate the Program (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Content Recommendations, Creative, Content, or Targets) in connection with this Agreement ("Use"). Buyer represents and warrants that any Use hereunder and Buyer's Content Recommendations, Content, Creative, Targets, and Buyer's Services will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including without limitation intellectual property rights). Violation of the foregoing may result in immediate termination of this Agreement and/or Buyer's account without notice and may subject Buyer to legal penalties and consequences.
Buyer agrees to defend, indemnify and hold harmless Revcontent and its Affiliates and their respective directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees, even if incident to any appeals) (collectively "Losses") incurred as a result of any claim, judgment or proceeding relating to or arising out of: (a) Buyer's breach of the Agreement; (b) the content of the Content Recommendations and any and all claims made therein; or (c) the products, services or content linked to from the Content Recommendations. Revcontent agrees to defend, indemnify and hold harmless Buyer from and against any and all Losses incurred as a result of a claim, judgment or proceeding relating to or arising out of Revcontent's breach of the Agreement.
If any action is brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware, except that failure to provide such notice shall not excuse the Indemnifying Party's indemnification obligations under this Section 9 unless such failure materially prejudices the Indemnifying Party. The Indemnified Party shall permit the Indemnifying Party to assume control over the defense of such claim, with counsel chosen by the Indemnifying Party that is reasonably acceptable to the Indemnified Party, provided however, that the Indemnified Party shall control the defense of any such claim that, in the reasonable opinion of such Indemnified Party, could have a material and adverse effect on the business, operations, assets or prospects of such Indemnified Party, and the reasonable costs and expenses thereof shall be included as part of the indemnification obligations of the Indemnifying Party hereunder. The Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.
10. REVCONTENT AND BUYER'S RIGHTS.
Revcontent owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including Revcontent's ad serving technology, search technology, referral technology, marketing technology, marketing strategies, code, programming, strategies, and features, including implied licenses, and excluding items licensed by Revcontent from third parties and excluding any third party media player that may comprise the Program or its Services), and that You will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Program, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto. You will not remove, obscure, or alter Revcontent's copyright notice, features, trademarks, symbols, or other proprietary rights notices affixed to or contained within any Revcontent services, software, or documentation (including without limitation the display of any Revcontent or third party Content Recommendations). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trademark law, international treaty, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and reinstatements thereof, now or hereafter in force and effect worldwide.
In the event it is necessary to integrate Buyer's API, Buyer grants to Revcontent a non-exclusive, non-transferable, revocable right and license, without the right to sublicense, to use the API for the sole purpose of the API Integration. Revcontent will not transfer or disclose, in whole or in part, access to any API, or any proprietary specifications, to any third party. The API provided to Revcontent under this Agreement is owned by Buyer, and/or its third party suppliers and licensors. This license confers no title or ownership in such materials and is not a sale of any rights to such materials. Buyer reserves all intellectual property rights with respect to the API not expressly granted to IP hereunder.
11. INFORMATION AND DATA.
Notwithstanding anything to the contrary contained in this Agreement, Revcontent shall have the right to use and disclose data transmitted through or otherwise derived from Your use of the Program at its discretion : (i) to perform its obligations under this Agreement, (ii) to operate the Program, including providing reporting to Publishers, (iii) to disclose campaign statistics and performance reporting about purchases made through the Program, (iv) for analytical and modeling purposes, (v) as required by court order, law or governmental or regulatory agency, (vi) for forecasting, internal business operations and to improve its product offerings, or (vii) as otherwise permitted by You. In addition, You grant Revcontent the right to access, index and cache all data, Content Recommendations, Creative, information, or any portion thereof, including by automated means including Web spiders or crawlers.
Buyer understands that the Program collects aggregated and non-personally identifiable data relating to users use of the Program, including, but not limited to, non-personally identifiable information provided by users in response to Content Recommendations ("Derivative Data"). Derivative Data, including all modifications thereto, is and shall be the sole and exclusive property of Revcontent. Subject to compliance with the terms of this Agreement, Revcontent hereby grants to Buyer the right to access Derivative Data solely for the purposes contemplated by this Agreement, specifically the purchase of Publisher Media through Revcontent. Revcontent shall have the right to use Derivative Data to improve the Program; develop new products, Platforms and features; understand usage; and generally for any purpose related to Revcontent's business without further obligation to Buyer. Revcontent may transfer or assign any of its rights in the Derivative Data to any third party.
12. DISCLAIMER AND LIMITATION OF LIABILITY.
IN NO EVENT SHALL REVCONTENT BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY PERSONS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE REVCONTENT NETWORK, THE PROGRAM, THE ADS, BUYERS' UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY AD, CONTENT, OR CREATIVE ON OR THROUGH A PUBLISHER, PARTNERS, OR AFFILIATE WEBSITE(S) AND/OR PROPERTY(IES) INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF REVCONTENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REVCONTENT'S MAXIMUM AGGREGATE LIABILITY TO BUYER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THREE HUNDRED DOLLARS ($300). BUYER AND REVCONTENT SPECIFICALLY STATE AND AGREE THAT THE FOREGOING DAMAGES LIMITATION IS REASONABLE AND ENFORCEABLE. REGARDLESS OF ANY LAW TO THE CONTRARY, BUYER SHALL HAVE NO RIGHT OF ACTION, AND WAIVES ITS RIGHT TO BRING A SUIT, CLAIM, OR PROCEEDING AGAINST REVCONTENT MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. BUYER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE REVCONTENT NETWORK, CODE, SCRIPT, PROGRAM, AFFILIATE PARTNER AND PUBLISHER SITES, AD SERVING, AND THE SERVICES OF THE PROGRAM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE REVCONTENT NETWORK, THE PROGRAM, CODE, SCRIPT, AND/OR PUBLISHER'S PARTNER'S AND AFFILIATES UNDERLYING SITES AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. REVCONTENT HAS NO LIABILITY, WHATSOEVER, TO BUYER, PRINCIPAL, OR ANY THIRD PARTY, FOR BUYER'S USE OF, OR INABILITY TO USE, THE REVCONTENT NETWORK, THE PROGRAM, AND/OR THE SERVICE AND DELIVERY OF THE ADS, AND/OR PUBLISHER'S PARTNER'S AND AFFILIATES UNDERLYING SITES OR SERVICES AND REVCONTENT DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT BUYER'S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE PROGRAM OR ANY OF THE SERVICES WILL BE AVAILABLE TO BUYER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN REVCONTENT AND BUYER. THE REVCONTENT NETWORK, THE PROGRAM, THE SERVICE AND DELIVERY OF ADS, AND/OR PUBLISHER'S PARTNER'S AND/OR AFFILIATES UNDERLYING SITES AND SERVICES WOULD NOT BE PROVIDED TO BUYER WITHOUT SUCH LIMITATIONS. REVCONTENT MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE REVCONTENT NETWORK, THE PROGRAM, AND/OR THE SERVICE AND DELIVERY OF THE ADS, AND/OR PUBLISHER'S PARTNER'S AND AFFILIATES UNDERLYING SITES OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY BUYER FROM REVCONTENT AND/OR ANY PUBLISHER, PARTNER, AND/OR AFFILIATE BY AND THROUGH THE REVCONTENT NETWORK, AND/OR THE PROGRAM SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
Revcontent may assign the Agreement, or any portion thereof, at its sole discretion. You may not assign, transfer or delegate any of Your rights under the Agreement without the prior written consent of Revcontent, which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in Revcontent, at its sole discretion, immediately terminating the Agreement and/or Your participation in any Program, without any liability to Revcontent. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties' successors and assigns.
14. SEVERABILITY WAIVER.
If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
The Agreement represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with the Revcontent Network, the Program, or the terms are in conflict or inconsistent with the Agreement, the Agreement shall take precedence.
"Confidential Information" means any information disclosed to You by Revcontent, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by Revcontent; (b) becomes publicly known and made generally available after disclosure to You by Revcontent other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by Revcontent as shown by Your files and records prior to the time of disclosure. Revcontent's Program rates are considered "Confidential Information." You shall not at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information; and/or (iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain Revcontent's personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Revcontent immediately upon Revcontent's request.
17. FORCE MAJEURE.
Revcontent shall not be liable to Buyer by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Revcontent.
You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the delivery system, Revcontent Network, and/or the Program. You may not take any action that imposes an unreasonable or disproportionately large load on the Revcontent infrastructure. You agree that any unauthorized and/or unlawful use of the Revcontent Network, the Program, Service, and/or Code will result in irreparable injury to Revcontent for which monetary damages would be inadequate. In such event, Revcontent shall have the right, in addition to any and all other remedies granted or available to it under this Agreement and/or by operation of law, to immediate injunctive relief against You without the requirement to post a bond. THE AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES JOINTLY WROTE IT.
Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other's behalf.
All notices shall be sent to the address submitted by You when You sign up for the Service and, if to Revcontent, to the address listed in the Contact section of the Revcontent Network.
21. BINDING ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement or the relationship resulting in or from this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association, 140 West 51st Street, New York, New York 10020-1203. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and the party bringing or appealing such action or opposing confirmation of such award does not prevail, such party will pay all of the costs and expenses (including without limitation, court costs, arbitrators' fees and expenses and reasonable attorneys' fees) incurred by the other party in defending such action. Additionally, if either party brings any action for judicial relief in the first instance without first pursuing arbitration prior thereto, the party bringing such action for judicial relief will be liable for and will immediately pay to the other party all of the others party's costs and expenses (including without limitation, court costs and attorneys' fees) to stay or dismiss such judicial action and/or remove it to arbitration. The failure of either party to exercise any rights granted hereunder will not operate as a waiver of those rights. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding. The parties consent and agree that jurisdiction and venue shall be in within the Middle District of Florida, Sarasota County Florida.