PRO ATHLETE, INC.
AFFILIATE PROGRAM AGREEMENT

TERMS AND CONDITIONS

1. General.

A. Pro Athlete, Inc., a Missouri corporation (the “Company”), operates the website www.justbats.com (the “Website”). In connection with the Website, the Company offers the Company Affiliate Program (the “Program”), through which approved affiliates providing marketing services through owned or third-party websites, subscription services, promotional services (including, without limitation, video content, newsletters and e-mail campaigns), and/or syndicated services (“Affiliates” or “you”) are granted a limited, non-exclusive, revocable right:

(i) to advertise and to promote the Company’s products and the Website in compliance with these terms and conditions (referred to herein as this “Agreement” or these “terms and conditions”);

(ii) to circulate and to post an approved graphical or textual internet hyperlink (“Link”) to the Website; and

(iii) to direct visitors to the Website using the specific URL(s)) posted on the Affiliate’s website.

B. This Agreement provides terms and conditions applicable to your membership, as an approved Affiliate, in the Program that are in addition to the terms and the conditions to which you have agreed in your Affiliate Agreement (the “Affiliate Agreement”), as applicable. Any capitalized term used herein and not otherwise defined herein shall have the same respective meaning as set forth in the Affiliate Agreement, as applicable.

2. Approval as an Approved Affiliate.

A. Your participation in the Program is subject to the approval of the Company. You must first submit an application to the Company through justbats.com/affiliates in order to become an approved Affiliate. After the application has been submitted, the Company may accept or reject your application, for any reason or no reason.

B. If the Company approves you as an approved affiliate, you will have already acknowledged your acceptance of this agreement, and the terms and the conditions herein, by having clicked through the “Apply” button, having checked the box stating “Yes, I agree to the terms and conditions” the terms and the conditions and having clicked the button “Apply.” You may also be required to execute and deliver a separate Affiliate Agreement. 

C. This Agreement applies only to approved Affiliates that accept this Agreement, and the terms and the conditions herein, and only Affiliates who accept the Affiliate Agreement, and the terms and the conditions thereto, as applicable.

D. Your participation in the Program creates only a contractual relationship between the Company and you. It does not constitute an agency, broker or employment relationship between the Company and you nor does it create any franchise, joint venture, partnership, sales representative or other relationship between the Company and you.

E. The Company and its service providers may share with each other the contact information provided by you during your registration. This information includes, without limitation, your name, address, phone number, and email. The Company will take commercially-reasonable steps to maintain the confidentiality of such information.

3. Obligations of the Parties

A. Subject to our acceptance of you in the Program, the execution of the Affiliate Agreement, as applicable and your continued compliance with the Affiliate Agreement and this Agreement, the Company agrees that it will make available to you via the Program graphic and textual links to the Website and/or other creative materials (collectively, the “Links”) which you may display on web sites owned or controlled by you, in videos created and posted or emails sent by you and clearly identified as coming from you and in online advertisements (collectively, “Media”). The Links will serve to identify you as a member of our Program and will establish a link from your Media to the Website. 

B. You agree to:

(i). have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media; 

(ii). ensure that all materials posted on your Media or otherwise used in connection with the Program (a) are not illegal, (b) do not infringe upon the intellectual property or personal rights of any third party (including, without limitation, any copyright, patent, trademark or trade secret),  and (c) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that the Company informs you that it considers objectionable (collectively, “Objectionable Content”); 

(iii). not make any representations, warranties or other statements concerning the Company or any of the ultimate purchasers of the Company’s products (each a “Client” and collectively the “Clients”) or any of their respective products or services, except as expressly authorized herein; 

(iv). ensure that your Media and/or other communications do not copy or resemble the look and feel of the Website or create the impression that your Media is endorsed by the Company or Clients or a part of the Website, without prior written permission from the Company; 

(v). comply with all (a) obligations, requirements and restrictions under this Agreement; (b) obligations, requirements and restrictions under the Terms of Use as posted on the Website from time to time; (c) obligations, requirements and restrictions under the Affiliate Agreement, as applicable; and (d) laws, rules and regulations as they relate to your business, your Media or your use of the Links; 

(vi). comply with the terms, conditions, guidelines and policies of any third-party services you use in connection with the Program, including but not limited to, YouTube, email providers, social networking services and ad networks;  

(vii). prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Program and the provision of such personally identifiable information to the Company and Clients for use as intended by the Company and Clients; 

(viii). prominently post and make available to end-users any terms and conditions in connection with any Offer provided by the Company (each, an “Offer”), or as required by applicable laws regarding such Offers; and 

(ix). not place ads on any online auction platform (i.e., eBay, Amazon, etc.).

(x). certify that you are duly authorized to work in the United States. Should the Company incur any liability or legal expenses in connection with your failure to comply with immigration laws of the United States, you agree to indemnify the Company for any such liability or legal expenses incurred.

 4. Restrictions.

A. You are solely responsible for the development, the maintenance and the operation of your website or other content (including, without limitation, videos, newsletters and e-mail campaigns), including, without limitation, assuring that the accuracy and the appropriateness of the content of your website, assuring that your website does not contain any viruses or other harmful properties, assuring that the content of your website is not defamatory or obscene or otherwise violates applicable laws, regulations, rules, and orders and assuring that your website does not infringe on the intellectual property, including, without limitation, the copyrights, the patents, the trademarks, and the trade secrets, of any other person. The Company is not responsible for your website or other content, or the content or the development, the maintenance or the operation thereof. You may post any number of Links to the Website on your website. The location, the nature, the position, and the prominence of such Link on your website shall comply with this Agreement and the Affiliate Agreement, as applicable. Your website and any other communications shall not copy or resemble the look and the feel of the Website and your website and any other communications shall not create the impression that your website is part of the Website. You acknowledge that the Company may monitor your website and your other communications for the purpose of determining your compliance with this Agreement and the Affiliate Agreement, as applicable. You are responsible for the proper formatting of the links between the Website and your website and any other communication containing a link to the Website. The Company is not liable or responsible for your failure to format properly such links.

B. You shall not make any representation, warranty or other statements concerning the Company, the Website or the products sold by the Company, except as expressly authorized by this Agreement or the Affiliate Agreement, as applicable. You shall not represent, warrant or otherwise state that you are authorized to bind the Company.

C. You shall not advertise or promote advertisements that are misleading and/or that claim inflated discounts or are otherwise in violation of any applicable law. You may only advertise or promote advertisements that state the actual discount, if any, that a visitor may derive by clicking on a link. You shall not use discounts or promotional codes, without the prior written consent of the Company.

D. You shall not send any email or other forms of electronic message that implies or suggests that the Company was the sender or directed or requested you to send the message. You shall identify yourself as the sender of any such email or other forms of electronic message. You shall not send any email or other forms of electronic message or advertisement containing the name, the product, the website address or the metatag of the Company or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from you or unless you have a pre-existing business relationship with the recipient. In addition, you shall provide all recipients of any such communication with the ability to “opt-out” of further communications from you by permitting the recipient to call a toll free number or permitting the recipient to send an “unsubscribe” email to you. You agree that the Company may, upon reasonable prior written notice, audit you to ensure compliance with this Section 4(D). You shall comply with all federal, state and local laws, regulations, rules, and orders, including, without limitation, the “CAN-SPAM Act,” in connection with your provision of services hereunder.

E. In the process of performing services hereunder, you shall not install or cause to be installed spyware on any person’s computer. In the process of performing services hereunder, you shall not install or cause any device, mechanism or program to display an advertisement that partially or wholly covers or obscures the content of any website or any part of a potential customer’s display.

F. You shall not use the trademarks or other intellectual property including, without limitation, copyrights, patents or trade secrets, of the Company without our prior written permission. You shall not modify our trademarks in any manner and you shall not display the trademarks in any manner that implies or suggests the endorsement by the Company of your business or your website. You shall not use the trademarks in a manner that disparages the Company or its products or that, in the judgment of the Company, damages or diminishes the trademarks and the goodwill associated therewith. You are not acquiring any ownership of, or any license or right to use, any of the intellectual property of the Company, including, without limitation, the copyrights, the patents, the trademarks or the trade secrets, except to the limited extent expressly permitted by this Agreement or the Affiliate Agreement, as applicable, all of which rights are reserved by, and remain with, the Company. You shall not use “www.justbats.com” or any variation thereof as the domain name or URL in any search engine or like marketing campaign without the prior written consent of the Company.

G. You shall not infringe on the intellectual property of any person, including, without limitation, any copyright, patent, trademark or trade secret. You shall not bid on any keyword, term or word in Pay-Per-Click Search Engines (PPCSE’s) that contains (i) any trademark, whether or not registered, of the Company or (ii) any keyword, term or word that is a variation of any such trademark or any other keyword, term or word that is likely to cause confusion regarding your affiliation with the Company.

H. You may bid on keyword strings.

I. You shall not bid on any of the trademarks of any competitor of the Company in conjunction with the Program.

J. You shall not use any “fat-finger” or “typosquatter” domain name to redirect Internet traffic to the Website or your website without the prior written approval of the Company. A fat-finger or typosquatter domain name is a domain name that amounts to a misspelling of any registered or unregistered trademark of the Company.

K. You shall not place the words “Pro Athlete” “Just Bats” or any variation of or similar spelling of the words “Pro Athlete” “Just Bats” in your top-level domain name. 

L. You shall not employ any automated or automated application, device, robot, software or any other technology that attempts to intercept or redirect referrals or traffic to or from any website without the prior written consent of the Company.

M. You shall not “frame” the Website so that it appears to viewers of your website that such viewer is viewing the destination Website. You shall not do anything to your website or any website you control that makes such website appear as though it is the Website.

N. You shall not use any device, application, robot, software or technology that forces your URL into a visitor’s bookmark when such visitor attempts to bookmark the Website.

O. You shall not represent to visitors that products of the Company may be purchased by or from you or through your website. You shall not sell the products of the Company. You shall not accept any order from a visitor, purchase the product ordered by the visitor from the Company and direct the Company to fulfill or drop-ship such product directly to the visitor. The Company shall have the sole right and responsibility for processing all orders made by visitors and all agreements relating to sales to visitors shall be exclusively between the Company and the visitor.

P. You shall use the product copy, descriptions, images and text as provided by the Company. You may alter the size, but not the content, of product copy as provided by the Company, descriptions, and images.

Q. You shall not redistribute the product feeds or the intellectual property of the Company to a website that the Company determines in its sole and absolute discretion to be competitors of the Company.

R.  You shall refer all inquiries from third parties about participation in the Program directly to the Company.

S. You shall not issue any press release that discusses or references the Company except with the prior written consent of the Company. You shall not use the logos, product copy, descriptions, images, and text, trade names, trademarks or other designations of the Company on any website other than your registered website, without the prior written consent of Company and solely in accordance with the terms of this Agreement and the Affiliate Agreement, as applicable.

T. You acknowledge that the privacy of the customers of the Company is an important aspect of our business. You are not entitled to access to any of the personal information that the Company collects from its customers.

U. You shall not take any action the Company reasonably determines, in its sole discretion, is inconsistent with its business, marketing, policies, practice, and preferences. You shall promptly comply with all of Company’s requests, including, without limitation, with respect to the content or the related content of your website.

You acknowledge that the Company may change its policies, practices, and preferences at any time. In particular and without limitation, the Company will determine the prices to be charged for products and you acknowledge that product availability and prices may vary from time to time. While the Company will use commercially reasonable efforts to present accurate and complete information, the Company cannot guaranty the availability or the price of any particular product.

5. Commission.

A. Subject to your compliance with this Agreement and the Affiliate Agreement, as applicable, you may be eligible to receive a commission if established by a separate fee schedule delivered and agreed to by you and the Company (which fee schedule (if applicable) may be sent via e-mail, and if it is, is hereby incorporated by reference). You may only be eligible to receive a commission if a visitor completes a purchase subject to the terms and conditions on the Website after having last arrived at the Website through a Link that you posted. In the event a commission fee schedule is agreed to by the parties, any monthly commission of less than $100 will not be invoiced and paid. Payments will only begin once a full month’s commission has exceeded the $100 minimum commission amount. The Company will in good faith use reasonable-commercial efforts to pay you all amounts due (if any), however, if you did not accept or process a certain payment within ninety (90) days (including, without limitation, if you do not bank a check that has been sent to you) then such payment will be void and you agree that it will no longer be owed to you. Unless otherwise agreed by us in writing, any customer refunds will be calculated in the month that such refunds occur and will be deducted from any current or future amount otherwise due or payable to you. You may be eligible to receive a commission only if (a) mutually agreed to by both parties in a written instrument, (b) the customer is not known to the Company, and (c) the system tracks the customer from the time the customer clicks on a link to the Website to the time of sale. The Company is not liable or responsible for failures for any reason to track customers, including, without limitation, a customer’s deletion of a required cookie or failures in tracking technology. The persons that visit the Website, regardless of whether or not such person places orders, are the exclusive customers of the Company, regardless of the manner in which such person arrived at the Website, and the policies, procedures, and preferences of the Company apply to those persons.

B. The Company reserves the right to refuse, delete or ignore any transaction, or correct or to reverse any amount owed to you, as the case may be, if, in the Company’s judgment, (i) you or your customer have acted in a fraudulent, dishonest or misleading manner; (ii) the Company has overpaid you; or (iii) you are obligated to indemnify Company for actual or anticipated losses.

C. Other than the payment of the commission (if any) according to the terms of this section, you are not entitled to any additional business, commission or compensation derived by or through the Website. You are not entitled to any reimbursement for any costs or expenses that you may incur in connection with this Agreement.

6. Term and Termination.

A. The term of this Agreement (the “Term”) shall be continuous, unless and until either the Company or you properly terminate this Agreement, in accordance with the following:

(i) the Company shall provide you with written notice of termination via e-mail or any other means;

(ii) you shall provide the Company with written notice of termination via e-mail or any other means.

B. Upon any termination of this Agreement, the Company and you are released from all liabilities and obligations to the other party from and after the date of such termination or the transactions contemplated hereby, other than those obligations that are stated to survive termination as provided herein, including, without limitation, Sections 6 through 12 and any right, obligation or required performance of the parties under this Agreement that, by its express terms or nature and context is intended to survive termination or expiration; provided that no such termination will relieve you from any liability or obligation arising from any breach of this Agreement occurring prior to termination.

C. Upon the termination of this Agreement, (i) the acceptance by the Company of additional referrals obtained through you shall not constitute a continuation or renewal of this Agreement or a waiver of such termination, (ii) if the parties have agreed to a commission structure payment schedule then you shall only be eligible to payment on those unpaid commissions, if valid and earned by you on or prior to the date of termination; (iii) you shall not be entitled to commissions with respect to any referrals delivered after the date of termination; (iv) all licenses and other rights that you have hereunder shall immediately terminate; and (v) you shall immediately cease all uses of any logos, trade names, trademarks, intellectual property, and other designations of the Company and/or the Program. 

7. Confidentiality.

A. In the performance of, or otherwise in connection with, this Agreement, the Company may disclose to you certain Confidential Information. “Confidential Information” shall mean all information regarding the Company that is not generally known to the public and that the Company deems confidential in its sole and absolute discretion. You will treat such Confidential Information as confidential and proprietary both during the Term and after the Term for the greater of a period of five (5) years or the maximum period permitted by law. You shall (a) not use the Confidential Information for any purpose other than in performing your obligations hereunder, (b) take suitable measures and precautions to maintain the confidentiality of the Confidential Information (such measures and precautions shall not be less than the manner in which you protect your own confidential information, and in any event shall not be less than commercially-reasonable measures and precautions as then existing in the Company’s industry) and (c) not disclose or otherwise furnish the Confidential Information to any third party other than your employees who need to know the Confidential Information to perform your obligations hereunder. All Confidential Information is supplied “as is” without express or implied warranties of any kind. The Company further disclaims the accuracy and the completeness of the Confidential Information. Upon the termination of this Agreement, you shall destroy or return all Confidential Information in your possession. You shall certify to the destruction or the return of the Confidential Property to the Company.

B. You shall not make to any other person or entity any statement, oral or written, that directly or indirectly impugns the integrity or quality of the Company or any director, manager, officer, employee, agent, shareholder, member, other Affiliate or representative thereof (collectively, “Company Parties”), or any of them, or any of the business or other practices of the Company and/or the Company Parties, or any of them, or any other derogatory or disparaging remarks about the Company and/or the Company Parties, or any of them.

C. You shall not initiate any proceeding, investigation, or inquiry, or any other action of any kind with any governmental agency, with respect to the Company and/or the Company Parties, or any of them (“Inquiry”). Except as required by applicable law, you shall not assist, cooperate with, or supply information of any kind to, any person or any entity in any Inquiry.

8. Remedies

In addition to any other rights and remedies available to us under this Agreement, the Company reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) the Company in its sole discretion determines that you have violated this Agreement, (ii) the Company receives any complaints about your participation in the Program which the Company reasonably believes to violate this Agreement or the Affiliate Agreement, as applicable. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. 

9. Anti-Spam Policy

You must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Program must include the appropriate party’s opt-out link. From time to time, we may request - prior to your sending emails containing linking or referencing the Program that you submit the final version of your email to the Company for approval by sending it to the Company representative and upon receiving written approval from the Company such email may be transmitted to third parties. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon the Company’s approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon the Company’s approval. 

10. Fraud

You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. The Company shall make all determinations about fraudulent activity in its sole discretion. 

 11. Representations and Warranties

You hereby represent and warrant that this Agreement constitute legal, valid, and binding obligations, enforceable against you in accordance with this Agreement and that you have the authority to enter into or otherwise agree with this Agreement and that by doing so you will not violate or breach the terms or conditions of any other agreement to which you are a party. You acknowledge that you have read this Agreement and agree to all of the provisions set forth herein.

12. Miscellaneous.

A. Affiliate shall be responsible for the payment of all attorneys’ fees and expenses incurred by the Company to enforce this Agreement. This Agreement (including any agreement contemplated by this Agreement, including, without limitation, the Affiliate Agreement and any other separate written agreement with Affiliate as applicable) contain the entire agreement between the Company and Affiliate with respect to the subject matter hereof and thereof, and supersede all prior and/or contemporaneous agreements or understandings, written or oral.  Affiliate agrees that the Company shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether the Company “clicks through” or otherwise indicates its acceptance thereof. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.

B. By submitting an application to Program, you affirm and acknowledge that you have read this Agreement in their entirety and agree to be bound by all this Agreement. If you do not wish to be bound by this Agreement, you should not submit an application to Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.

C. You shall defend, indemnify and hold the Company, Company clients and their respective subsidiaries, affiliates, partners and licensors, directors, managers, officers, shareholders, members, employees, owners, agents and other representatives harmless against all actions, allegations, causes of action, claims, costs, damages, expenses, lawsuits, liabilities and obligations, including, without limitation, attorneys’ fees (collectively “Losses”), arising out of, or related to (i) the development, the maintenance or the operation of your website and other communications (electronic or otherwise), (ii) your breach of this Agreement, (iii) your violation of applicable law, rule, regulation or order, (iv) your images, information, methodology, technology, service or text provided or supplied pursuant to this Agreement, (v) your violation of a third party’s or the Company’s intellectual property (including, without limitation, copyrights, patents, trademarks and trade secrets) and (vi) your violation of your confidentiality obligations.

D. THE COMPANY SHALL NOT BE LIABLE TO YOU FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, SUCH AS, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS OR REVENUE. THIS LIMITATION SHALL REMAIN IRRESPECTIVE OF WHETHER SUCH ACTION IS BASED IN CONTRACT, TORT, EQUITY OR ANY OTHER LEGAL THEORY. THIS LIMITATION SHALL REMAIN WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE MAXIMUM LIABILITY THAT THE COMPANY SHALL HAVE TO YOU IN CONNECTION WITH THIS AGREEMENT IS THE TOTAL AMOUNT PAID TO YOU DURING THE SIXTY (60) DAY PERIOD PRECEDING SUCH CLAIM.

E. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AS TO THE INFORMATION, PERFORMANCE, QUALITY, RESULTS, SERVICES AND TECHNOLOGY IN ANY WAY RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE UNDERLYING PRODUCTS SOLD BY OR THROUGH PRO ATHLETE INC, WWW.JUSTBATS.COM OR ANY AFFILIATED ENTITY OR WEBSITE. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF THE COMPANY.  THE COMPANY DOES NOT WARRANT THAT THE PROGRAM OR LINKS WILL MEET AFFILIATE’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM OR LINKS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. THE COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF ANY CLIENT, VENDOR, AGENT OR OTHER REPRESENTATIVE OF THE COMPANY OR THEIR RESPECTIVE PRODUCTS OR SERVICES. THE COMPANY DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS

F. You shall not assign, transfer or delegate your obligations hereunder, either in whole or in part, without the prior written consent of the Company, including, without limitation, transferring your Affiliate interest, Affiliate number and/or Affiliate identification. Any attempted assignment, transfer or delegation in violation of the provisions of this provision will be void. The Company may assign this Agreement at any time with or without notice.

G. The provisions of this Agreement are severable. If any provision of this Agreement, or the application thereof to any circumstance or person, is deemed invalid, illegal or unenforceable under any applicable law, such illegality, invalidity or unenforceability shall not affect the other provisions of this Agreement and such provision shall be enforced to the broadest extent that it would be enforceable, legal and valid under applicable law.

H. No delay or failure by the Company in exercising any right hereunder and no partial or single exercise of that right shall constitute a waiver of any right.

I. The rights and the remedies of the Company are not mutually exclusive and the exercise of one or more of the provisions hereof shall not preclude the exercise of any other provision hereof.

J. This Agreement shall be deemed a mutual agreement and shall not be construed and/or interpreted in favor or against either party on the basis of preparation of the Agreement.

K. By applying to the Program, using the automatic facility located at justbats.com/affiliates and by clicking–through the “Create Account” button and clicking on “I agree to terms and submit application’’ acknowledging your agreement to the Terms and Conditions (including this Agreement), you, accept, and enter into and become party to this Agreement, effective on the date of such acceptance to this Agreement.

L. The Company reserves the right to modify the terms and the conditions of this Agreement in its sole discretion. If any modification is unacceptable to you, your sole recourse is to terminate this Agreement by expiring the relationship and/or rejecting the new terms offered. Your continued participation in the Program by accepting the newly offered terms and conditions for this Agreement constitutes your binding acceptance to the change.

M. This Agreement shall be governed by the laws of the State of Missouri, without application of conflicts of law principles. The exclusive forum for any actions or disputes related to or arising out of this Agreement shall be in the state courts in Missouri and, to the extent, that federal courts have jurisdiction, in the federal courts in Missouri each located in Jackson County, Missouri. You consent to such personal jurisdiction and venue.

N. Nothing in this Agreement is intended, nor shall any provision be construed to benefit the third party. There are no third-party beneficiaries to this Agreement.

O. Official notices to the Company should be sent to:

Pro Athlete, Inc. 

[email protected]

Attn: Affiliate Program

BY APPLYING FOR THE PROGRAM AND CLICKING ON THE “APPLY” ICON BUTTON YOU ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY (i) THE TERMS OF THIS AGREEMENT, (II) THE TERMS OF THE AFFILIATE AGREEMENT; AND (III) THE TERMS OF USE ON THE WEBSITE TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS AGREEMENT.