Section 20: Miscellaneous
The waiver by SALT WAVE of any SALT WAVE CLUB MEMBER's breach of any provision of the Contract must be in writing and will not be construed as a waiver of any subsequent or additional breach. The failure by the Company to exercise any right or prerogative under the Contract will not operate as a waiver of that right or prerogative.
B. Integrated Contract
1. The Contract is the final expression of the understanding and agreement between the Company and a SALT WAVE CLUB MEMBER concerning all matters touched upon in the Contract and supersedes all prior and contemporaneous agreements of understanding (both oral and written) between the parties. The Contract invalidates all prior notes, memoranda, demonstrations, discussions and descriptions relating to the subject matter of the Contract. The Contract may not be altered or amended except as provided therein. The existence of the Contract may not be contradicted by evidence of any alleged prior contemporaneous oral or written agreement.
2. Should any discrepancy exist between the terms of the Contract and verbal representations made to any SALT WAVE CLUB MEMBER by any employee, the express written terms and requirements of the Contract will prevail.
C. Dispute Resolution.
In the event of any dispute, claim, question, or disagreement arising from or relating to the Contract or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 30 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered in Provo, in accordance with the provisions of its Commercial Arbitration Rules and there shall be no right or authority for any dispute, claim, question or disagreement to be arbitrated on a class action basis. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This agreement to arbitrate shall survive any termination or expiration of the Contract.
Notwithstanding this dispute resolution provision, nothing herein shall prevent SALT WAVE from applying to and obtaining from any court having jurisdiction a writ of attachment, a temporary restraining order, preliminary injunction, permanent injunction, or other relief available to safeguard and protect SALT WAVE's interest prior to, during, or following any mediation or other proceeding.
D. Litigation and Claims.
In order to protect SALT WAVE, its assets, and its reputation from claims or disputes created by outside (non- SALT WAVE CLUB MEMBER) third parties, the Company requires that if any SALT WAVE CLUB MEMBER is charged with any infringement of any proprietary right of any outside third party (who is not a SALT WAVE CLUB MEMBER) arising from any of the Company's proprietary assets, or if the SALT WAVE CLUB MEMBER becomes the subject of any claim or suit related to that SALT WAVE CLUB MEMBER's business-related conduct or any other action that directly or indirectly negatively affects or puts the Company, its reputation, or any of its tangible or intangible assets at risk, the affected SALT WAVE CLUB MEMBER shall immediately notify the Company. The Company may, at its own expense and upon reasonable notice, take whatever action it deems necessary (including, but not limited to, controlling any litigation or settlement discussion related thereto) to protect itself, its reputation, and its tangible and intangible property. The SALT WAVE CLUB MEMBER shall take no action related to that claim and suit, unless the Company consents, which consent shall not unreasonably be withheld.
E. Governing Law/Jurisdiction.
The parties consent to exclusive jurisdiction and venue before any federal court in OTTAWA ON CANADA. If the law of the state in which the applicant resides prohibits consensual jurisdiction and venue provisions for purposes of arbitration and litigation, that state’s law shall govern issues relating to jurisdiction and venue. SALT WAVE CLUB MEMBERS agree that, notwithstanding any statute of limitation to the contrary, any claim or action a SALT WAVE CLUB MEMBER may wish to bring against SALT WAVE for any act or omission relating to the Contract must be brought within one (1) year from the date of the alleged act or omission giving rise to the claim or cause of action. Failure to bring such action within the permitted time shall act as a bar against all claims against SALT WAVE for such act or omission. The SALT WAVE CLUB MEMBER waives any and all claims or rights to have any other statute of limitation apply.
Any provision of the Contract that is prohibited, judicially invalidated, or otherwise rendered unenforceable in any jurisdiction is ineffective only to the extent of the prohibition, invalidation, or unenforceability in that jurisdiction, and only within that jurisdiction. Any prohibited, judicially invalidated or unenforceable provision of the Contract will not invalidate or render unenforceable any other provision of the Contract, nor will that provision of the Contract be invalidated or rendered unenforceable in any other jurisdiction.
G. Force Majeure.
The parties to the Contract shall not be responsible for any failure or delay in the performance of any obligations hereunder caused by acts of God, flood, fire, war or public enemy.
The headings in the Contract are for convenience of reference only and shall not limit or otherwise affect any of the terms or provisions of the Contract.
Unless otherwise provided in the Contract, any notice or other communications requested or permitted to be given under the Contract shall be in writing and shall be delivered personally, transmitted by facsimile or sent by first class, certified (or registered) or express mail, postage prepaid. Unless otherwise provided in the Contract, notices shall be deemed given when delivered personally, or if transmitted by facsimile, one day after the date of that facsimile, or if mailed, five days after the date of mailing to the address of the Company's headquarters or to the SALT WAVE CLUB MEMBER’s address as provided on the SALT WAVE CLUB MEMBER Agreement Form, unless notice of an address change has been received by the Company. The Company shall have the right, as an alternative method of notice under this Section, to use mailers, Company websites, or other normal channels of communications with
SALT WAVE CLUB MEMBER.