Affiliate Agreement
The undersigned (“Affiliate”), by submitting the Affiliate Application and this Affiliate Agreement (collectively, the “Agreement”) to Status Digital Marketing., a subsidiary of Status Digital Marketing. In Maryland (“Status Digital Marketing”), acknowledges that it wishes to become an Affiliate, and in consideration of Status Digital Marketing´ approving Affiliate’s Application, agrees to be bound by the terms and conditions of this Agreement as well as any specific terms and conditions required by any Advertiser (as defined below) to participate in such Advertiser’s affiliate program (“Advertiser Specific Terms”). This Agreement as well as any Advertiser Specific Terms, supersede and replace any and all prior agreements entered into by and between Status Digital Marketing and Affiliate. To the extent that any Advertiser Specific Terms conflict with this Agreement, the Advertiser Specific Terms shall control. Affiliate warrants that all information provided in the Affiliate Application is true and accurate. Affiliate understands that Status Digital Marketing has sole discretion over whether to accept or reject Affiliate´s Application, and that this Agreement will not be binding unless Affiliate has been notified of such acceptance.
RECITALS:
- Affiliate is the owner or authorized operator or representative of the Internet web site(s), email lists, other segments or spaces on such web site(s) and web-based services upon which Advertiser’s Offers (as defined below) may be displayed in connection with and pursuant to the terms of this Agreement. Affiliate may be referred to as Lead Generator, Publisher or Web Publisher in other agreements entered into by Status Digital Marketing.
- Status Digital Marketing operates a performance-based marketing network of online distribution channels owned and/or operated by various entities with whom Status Digital Marketing has contracted (“Affiliates and Advertisers”) in order to arrange for the display of Offers (as defined below). Status Digital Marketing has also contracted with various entities (including, but not limited to advertisers, advertising agencies or others) (“Advertisers”) to place performance-based advertising offers (“Offers”) in the form of banners, textual links, data feeds, transactional ads or other relevant media with respect to each Advertiser´s products and services (“Products”). Advertiser may sometimes be referred to as Client or Advertiser in other agreements entered into by Status Digital Marketing.
- This Agreement governs Affiliate’s inclusion in the Network and the display of Advertiser’s Offer displayed by Status Digital Marketing.
1. Term
Status Digital Marketing reserves the right to terminate this Agreement at any time upon notice to Affiliate via e-mail or via Status Digital Marketing´ Web site. Status Digital Marketing may immediately terminate this Agreement without notice if Affiliate is in breach of any representation, warranty or covenant in this Agreement or any other agreement to which Affiliate and Status Digital Marketing are a party. Affiliate may terminate this Agreement upon thirty (14) days written notice to Status Digital Marketing. The rights and obligations contained in Sections 3, 5, 6, 7, 8 and 9 of this Agreement shall survive the termination or expiration of this Agreement.
2. Acceptance
(a) Affiliate at its discretion, and upon approval by Status Digital Marketing and each applicable Advertiser, shall determine which Affiliate is approved to run specific offers displayed in the network. Any offer that is to be Advertisered by Affiliate shall be displayed on the terms and conditions set forth in this Agreement and in accordance with all applicable Advertiser and Advertiser Specific Terms as outlined within each offer terms in he network. Affiliate shall not alter or modify the Offer as provided by Status Digital Marketing or Advertiser. Affiliate agrees and acknowledges that Affiliate’s contact information, including but not limited to Affiliate’s Name and Email Address, will be made available to Advertisers and potential Advertisers via the Status Digital Marketing(sm) interface. Affiliate further agrees and acknowledges that Advertiser may, in its sole discretion, direct Affiliate to immediately cease the display of any Offer. Upon receiving such notice in writing (which may be via email), Affiliate shall immediately remove the Offer from its Distribution Media. In the event that any Advertiser (or Status Digital Marketing on behalf of any Advertiser) directs Affiliate to cease display of that Advertiser’s Offers, Affiliate may not subsequently display any of that Advertiser’s Offers directly through Status Digital Marketing or indirectly through another Status Digital Marketing Affiliate without express written approval from the Advertiser and/or Status Digital Marketing.
3. Payment For Services
(a) Status Digital Marketing agrees to remit to Affiliate an Advertising Fee (“Advertising Fees”) payable in the amounts and on the terms as set forth in this Agreement as well as in accordance with all applicable Advertiser Specific Terms for all Offers placed with Affiliate which result in the sale of CPA/CPL/CPC as defined within each offer term or other specified actions completed by Qualified Customers upon the Advertiser´s Web site. All payment obligations will be based upon tracking and reporting provided by Status Digital Marketing.
(b) As used in this Agreement and in any applicable Advertiser Specific Terms: Net Monthly Sales are calculated exclusive of fraudulently generated leads as verified by Status Digital Marketing, “Qualified Lead” means any individual or entity that is tracked by Status Digital Marketing´ and any proprietary technology, whether it be a third party tracking software or Status Digital Marketing owned technology. Such fraudulent leads will be deducted by Status Digital Marketing at its discretion and will be considered a final number.
(c) Status Digital Marketing shall pay the Advertising Fees to Affiliate within thirty (30) days after the end of the month in which Status Digital Marketing has received payment from each applicable Advertiser for such Advertising payout. Status Digital Marketing shall not be obligated to make any payment of Advertising Fees to Affiliate until (1) it has received payment for such Advertising Payout from the Advertiser and (2) the aggregate amount of Advertising Fees due to Affiliate from a specific Advertiser equals or exceeds fifty dollars ($50.00). Status Digital Marketing does not aggregate payments remitted to it from different Advertisers for the benefit of Affiliate. Any earned but unpaid Advertising Fees shall carry over to the next regularly scheduled payment period.
(d) Status Digital Marketing will only remit payment to Affiliate if Affiliate has been accepted by Status Digital Marketing as an Affiliate and has provided Status Digital Marketing with a correct mailing address and a tax identification number (W-9 form). (e) Regardless of the timing of any payment made by Status Digital Marketing to Affiliate hereunder, Status Digital Marketing shall be authorized to chargeback any Fee paid to Affiliate that specifically relates to (i) Leads returned by Advertiser within seven (7) days from the date of purchase should such leads be deemed fraudulent:
(ii) refunds or credits issued to Advertiser will be no more than seven (7) days from the date of purchase; or (iii) overpayments to Affiliate, duplicate entries or other clear bona-fide errors. Status Digital Marketing shall deduct the amount of the chargeback from and offset such amounts against any monies owed by Status Digital Marketing to Affiliate. In the event that Status Digital Marketing has not fully recouped, via offset, any chargeback within sixty (60) days from the date of the chargeback, Affiliate shall issue payment to Status Digital Marketing for the outstanding amount of the chargeback.
(g) Amounts credited to Affiliate´s account will not bear interest.
(h) Affiliate hereby authorizes Status Digital Marketing to electronically transfer (via an automated clearing house or other means) amounts owed to Affiliate to Affiliate´s account at the financial institution set forth in the Affiliate Application (“Bank”). Affiliate authorizes Bank to accept and to credit any payments transferred by Status Digital Marketing to Affiliate´s account. In the event that Status Digital Marketing erroneously deposits funds into Affiliate´s account, Affiliate authorizes Status Digital Marketing to debit Affiliate´s account in an amount not to exceed the amount of the erroneous credit. This authorization is to remain in full force and effect until Status Digital Marketing and Bank have received written notice from Affiliate of its termination. If Affiliate changes bank accounts, it agrees to immediately notify Status Digital Marketing of such change in order to allow Status Digital Marketing to update its records accordingly.
4. Responsibilities of Status Digital Marketing
Status Digital Marketing covenants and agrees to use its commercially reasonable best efforts: (a) to provide, monitor and maintain the necessary technology applications required to link Affiliate to each Advertiser´s Web sites or any other advertising avenues by which the Advertiser listed as allowed under its offers in the network and track the relevant actions as set forth in the Advertiser Specific Terms. Status Digital Marketing Technology shall include the use of tags in HTML/Java or other appropriate languages to enable Status Digital Marketing to serve or provide Offers to Affiliate; (b) to provide Affiliate with product descriptions, GIF or JPEG Images, other product attributes lead availability, lead status, for each Advertiser that agrees to provide Status Digital Marketing and Affiliate with such information; (c) to provide Affiliate with real-time access to records that will allow it to monitor the volume of Offers delivered by Affiliate and the revenue produced thereby (subject to billing corrections and adjustments) in accordance with Section 3. All such records, including data, statistical information or other traffic analysis, produced or provided by either party in connection with the performance of this Agreement shall be the sole property of Status Digital Marketing.
5. Responsibilities of Affiliate
(a) Affiliate agrees and warrants that it shall: (i) only place Offers on Affiliate´s Distribution Medium and (including Web pages where any Offer appears) in accordance with the terms set forth in this Agreement and in accordance with all applicable Advertiser Specific Terms; (ii) maintain its data/email list in a manner that conforms with best practices of permission based solicitation and privacy policies; (iii) position the Offers on each Distribution Media (including any Web page where any Offer appears) in such a manner to assure that the Offers are fully and clearly visible; (iv) upon notification, update Offers in accordance with each Advertiser’s program specifications.
(b) Affiliate agrees and warrants that it shall not engage in any of the following prohibited activities: (i) violate any applicable law or regulation; (ii) promote or conduct any illegal or fraudulent activity through the network or any site linked to the network; (iii) send or cause to be sent unsolicited advertising e-mails; (iv) display obscene, offensive, violent or misleading content within any means that would otherwise be allowed by Advertiser to use for the purpose of generating leads; (v) provide or allow any incentive based promotion that provides compensation to Lead Applicants, unless specifically authorized by Advertiser; (vi) engage in any pop-up or pop-under advertising provided, supported or involving any third party to generate impressions, clicks, or transactions; (vii) use any cookie, device, program, robot, iframes, hidden frames, popup windows or any other operation or process that interferes with Status Digital Marketing ability to properly identify and track Qualified Customers; (viii) interfere with or seek to improperly influence the referral of an end user to a Advertiser’s Web site; (ix) automatically replace or alter any component of the Status Digital Marketing Technology that results in a reduction of compensation earned by Status Digital Marketing or another Affiliate; (x) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end user; (xi) utilize the Status Digital Marketing Technology in any manner that alters, changes, substitutes or modifies the content of another Affiliate’s Web site; (xii) use the Status Digital Marketing Technology with other software, whereby the installation and de-installation is not obvious, easy or complete. Licensing and terms of all software downloads and applications of any type must be clearly presented to and accepted by the end user. Software that utilizes the Status Digital Marketing Technology must be clearly marked in such a manner that the end user can identify the Affiliate’s software with an associated behavior that occurs on the end user’s computer, and receive visible notification of such behavior. In addition to any other remedies that may be available, in the event that Affiliate engages in any such prohibited activities, Status Digital Marketing or Advertiser may immediately terminate this Agreement or Affiliate’s display of any particular Offer.
(c) Affiliate shall not reproduce, distribute, republish, sub-license or otherwise make the Offers available to any third party (“Third Party Distribution”) for display on any web site not owned or exclusively operated by Affiliate other than as approved in writing by Status Digital Marketing or the applicable Advertiser. An Affiliate seeking approval for such Third Party Distribution shall submit to Status Digital Marketing in writing (i) notice of its intent to broker/redistribute Advertiser’s Offers on third party sites, (ii) a list of all such third party sites (identified by complete URL) to which Affiliate intends to broker/redistribute the Offers, and (iii) any additional information reasonably requested by Status Digital Marketing regarding Affiliate’s business practices, privacy policies, etc. If Affiliate is generally approved into a Advertiser’s program, Affiliate shall only engage in Third Party Distribution with web sites approved in writing by Status Digital Marketing. Any website upon which an Offer is displayed, including Offers displayed in connection with approved Third Party Distribution, shall be included within the definition of Status Digital Marketing.
(d) Affiliate agrees never to alter any Status Digital Marketing tags so as to include any personally identifiable or sensitive information of any visitors in such tags.
(e) Affiliate further agrees and warrants that it will comply with all local, state and federal laws and regulations (including, but not limited to, the “CAN-SPAM” Act, effective January 1, 2004, as may be amended from time to time). Furthermore, should Affiliate “run” offers that are internationally based, such Affiliate must comply with applicable data privacy policies to be compliant accordingly.
(f) Status Digital Marketing or Advertiser shall notify Affiliate of any complaint received by Status Digital Marketing or any Advertiser regarding the email practices of Affiliate or any alleged violation by Affiliate of the above warranties. Within forty-eight (48) hours of such notification, Affiliate shall respond to Status Digital Marketing and provide source information as to any questionable emails including, but not limited to, the time, date, IP address and content of the questionable emails. Additionally, as to each individual that agrees to be included in Affiliate’s outbound email solicitations, Affiliate shall maintain the information establishing the time and date that each individual granted such permission. If Affiliate fails to provide source information satisfactory to Status Digital Marketing to demonstrate that Affiliate did not send SPAM email or otherwise breach the above warranties, then, in addition to any and all other remedies available pursuant to this Agreement and under existing law, Status Digital Marketing shall have the right to immediately suspend payment to and further performance of any services by Affiliate.
(g) Affiliate shall not submit any bogus data through Status Digital Marketing’s forms. This includes testing the form by submitting test data or otherwise attempting to impersonate a consumer outside of Status Digital Marketing’s testing procedure. Affiliate is responsible to contact Status Digital Marketing for form testing and be familiar with the testing procedure. Affiliate agrees to a penalty of $1,000.00 per violation. (added June 9th, 2010)
6. Indemnification; Limitation of Liability
(a) Affiliate agrees to indemnify, defend and hold harmless Status Digital Marketing and each applicable Advertiser (and their respective officers, directors, employees, shareholders and agents) from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys´ fees) directly or indirectly arising from or relating to (i) any breach of this Agreement or any applicable law or regulation by Affiliate, (ii) the actual or alleged violation by Affiliate of any person’s or entity’s intellectual property or privacy rights or (iii) the operation and content of the Distribution Media. Affiliate acknowledges that each Advertiser who displays or allows to be displayed any Offer on Affiliate´s Web site or through any of Affiliate´s network an intended third party beneficiary of these indemnities. Affiliate agrees that it will not assert a defense based upon lack of privity against any Advertiser seeking to enforce these indemnities.
(b) Status Digital Marketing agrees to indemnify, defend and hold harmless Affiliate (and its respective officers, directors, employees, shareholders and agents) from and against any and all liability claims, losses, damages, injuries or expenses (including reasonable attorneys´ fees) directly or indirectly arising from or relating to any breach of this Agreement or any applicable law or regulation by Status Digital Marketing.
(c) Neither Affiliate, Status Digital Marketing nor any Advertiser shall be liable to one another for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses or any lost or imputed profits of any kind arising out of this Agreement or its termination, however caused, and whether based in contract, tort (including negligence), leads liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Each party hereto waives any claims that these exclusions deprive such party of an adequate remedy. Except for liabilities resulting from Status Digital Marketing´ willful misconduct or recklessness, the liability of Status Digital Marketing shall not exceed the total amount of the Advertising Fees actually paid by Status Digital Marketing to Affiliate under this Agreement and each applicable Advertiser Specific Terms. Affiliate shall not be liable for any errors or omissions included in the Offers received from Status Digital Marketing. Status Digital Marketing shall not be liable to Affiliate or any other person or entity for (i) any information provided to any person or entity by any Advertiser or any illegal, inappropriate act or act of misconduct on the part of any Advertiser; (ii) system downtime of Status Digital Marketing or any Advertiser; (iii) unauthorized access to, or alteration, theft or destruction of Affiliate´s Distribution Media, data files or systems or programs through accident, fraudulent means or device; or (iv) any claim attributable to errors, omissions or other inaccuracies in the Offers.
7. Confidentiality
In connection with the business relationship contemplated by this Agreement, each party may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, marketing and business plans, information concerning a party´s vendors, and such party´s contemplated plans, strategies and prospects (“Confidential Information”). Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party´s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing,
Confidential Information shall not include, and neither party will be liable for disclosure of, any information received by the receiving party under this Agreement if the information: (a) is or becomes generally available to or known to the public through no wrongful act of the receiving party; (b) was previously known by the receiving party through no wrongful act of receiving party; (c) was independently developed by the receiving party without reference to the Confidential Information; or (d) was lawfully disclosed to the receiving party by a third party under no obligation of confidentiality to the other party.
8. Trademarks and Proprietary Rights
(a) Status Digital Marketing, on behalf of each applicable Advertiser, grants Affiliate a limited, non-exclusive, non-transferable, revocable license to use, reproduce and display on the Distribution Media the Offers in accordance with the terms of this Agreement. Status Digital Marketing specifically does not grant Affiliate any right to use any Advertiser´s trade name without the express written consent of Status Digital Marketing. Status Digital Marketing grants Affiliate a limited, non-exclusive, non-transferable license for the term of this Agreement to use the Status Digital Marketing Technology solely in accordance with the terms of this Agreement. Affiliate grants Status Digital Marketing a limited, non-exclusive, non-transferable, revocable license to use, reproduce and distribute its company name and logo for use in Status Digital Marketing promotional materials. Each license granted in this Section 8(a) is hereinafter referred to individually as “Licensed Property.”
(b) Neither party shall use the other party´s Licensed Property in a manner that disparages the other party or its products or services, blurs, dilutes or otherwise diminishes the other party´s tradenames, trademarks, servicemarks or other intellectual property, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party shall comply with the other party´s requests as to the use of the other party´s Licensed Property and will avoid any action that diminishes the value of such marks. Without limiting the foregoing, Affiliate shall not, without written permission from Advertiser, (i) use any of Advertiser´s brand names, keywords or derivations of either of the above for any purpose; or (ii) purchase any URL containing any of Advertiser´s brand names, keywords or derivations of either of the above.
(c) Subject to the limited licenses granted to Status Digital Marketing and Affiliate under Section 8(a), each party and each Advertiser owns and shall retain all right, title and interest in its tradenames, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future (“Intellectual Property”). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express written consent of such party. All data that is collected by Status Digital Marketing while performing its obligations under this Agreement is the property of Status Digital Marketing. Status Digital Marketing currently uses and plans to continue to use data that it collects in an aggregate manner (i.e. that information which is gathered as a group of demographic data, and is not personally or company identifiable).
(d) None of such offers found in Status Digital Marketing’s possession or otherwise present may be attempted to: reverse engineer, locate advertiser for a better payout, or fill out forms to determine how the set up is conducted. “Affiliate” may not never fill out a live form, but is required to rely on Status Digital Marketing’s feedback and information.
9. General Provisions
(a) Representations and Warranties. Each party represents and warrants to the other party that: (i) such party has all necessary right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and (ii) nothing contained in this Agreement or required by such party’s performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and (iii) the performance of this Agreement shall not infringe or violate upon the Intellectual Property or privacy rights of any third party. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9(A), NEITHER Status Digital Marketing NOR AFFILIATE MAKE, AND EACH SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE DISTRIBUTION MEDIUM, PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, AND NON-INFRINGEMENT.
(b) Privacy. Affiliate’s use of the Services (including, without limitation, its utilization of the Distribution Media in connection therewith) (i) shall comply with all applicable laws, rules and regulations and (ii) shall not violate the terms or conditions of (x) any other agreement pursuant to which tags are delivered to the Distribution Media or (y) any Advertiser Specific Terms. Each of the advertising means shall feature a privacy policy that covers Affiliate’s use of the Services and complies with all applicable laws, rules and regulations.
(c) Jurisdiction and Governing Law. Affiliate consents to the exclusive personal jurisdiction of the state courts located in Maryland and agrees that any claim against Status Digital Marketing shall be brought in the state court located in Howard County, MD. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the State of Delaware without reference to conflict of laws principles. Affiliate consents to the personal jurisdiction of the state courts located in Howard County, MD, and agrees that any lawsuit between Affiliate and Status Digital Marketing shall be filed in this venue.
(d) Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
(e) Relationship. The relationship of Status Digital Marketing and Affiliate established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other. The detailed operations of Status Digital Marketing under this Agreement are subject to the sole control and management of Status Digital Marketing. The parties acknowledge that, except as set forth in Section 5 hereto, this Agreement sets forth a non-exclusive relationship between the parties. The parties acknowledge that this Agreement sets forth a non-exclusive relationship between the parties. Affiliate acknowledges that each Advertiser that displays or allows to be displayed any Offer on Affiliate’s site or through any of Affiliate’s “network” is an intended third party beneficiary of this Agreement. Affiliate agrees that it will not assert a defense based upon lack of privity against any Advertiser for claims arising in connection with this Agreement or in connection with Advertiser’s enforcement of the indemnity obligations set forth in Section 6(a) above.
(f) Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective parties as follows. To Status Digital Marketing at the address listed on its Web site; to Affiliate at the address set forth in the Affiliate Application; and to Advertiser at its principal business address. Each party shall be responsible to ensure that their respective contact information provided in Status Digital Marketing, including e-mail address and phone number, is updated, current and correct.
(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
(h) Amendments and Waivers. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. Status Digital Marketing reserves the right to modify this Agreement at any time. Any such modification shall be immediately effective upon the posting of the modified Agreement upon the Status Digital Marketing´ Web Site or within the Affiliate’s account with Status Digital Marketing. Affiliates continued display of Offers pursuant to this Agreement after the posting of such modifications shall constitute acceptance and ratification of all such modifications.
(i) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final nonappealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.