CEE Terms & Conditions (110m211vp)
EXHIBIT A – TERMS & CONDITIONS
(Last Updated June 28, 2012)
(1) Appointment and Services of Company. CLIENT agrees to retain the Company as a Lead generation and media-buying channel for the CLIENT’s marketing campaigns.
(2) Submission. Company will submit via email, XML feed or browser post any Leads generated pursuant to this Agreement to CLIENT after verifying such Leads in accordance with applicable Company standards and internal processes.
(3) Purchase & Payment Obligations.
(a) The Company shall use commercially reasonable efforts to provide the CLIENT with the Total Leads on an ongoing basis as such Leads are received and verified in accordance with the Company’s internal processes. The Company shall supply such Leads to CLIENT based on CLIENT’s then available account balance with the Company (the “CLIENT Account”), which shall be reduced by the applicable Pay Per Lead Price for each Lead submitted to CLIENT. CLIENT may chose to add to its CLIENT Account pursuant to a Company payment option form, a purchase order/request, and/or at the sole discretion of the Company.
(b) CLIENT shall pay the Company the applicable Lead Fees for all complete, non-duplicative Leads generated and delivered to CLIENT by the Company pursuant to the terms of this Agreement, excluding those Leads returned by CLIENT to the Company according to Appendix B (if applicable). In the event of a dispute with respect to the number of Leads and qualification level of such Leads submitted to CLIENT, the Company’s tracking and computer systems shall control.
(4) Monthly Invoice.
(a) For any Lead Fees not pre-paid by CLIENT, the Company may invoice CLIENT, semi-monthly, requesting payment of such unpaid Lead Fees incurred during the applicable month. CLIENT shall pay the Company such Lead Fees upon receipt of such invoices, unless another payment date is set forth in writing by Company and CLIENT.
(b) In the event that any payment due Company is delinquent, interest shall accrue on any overdue amount and be charged against CLIENT at the rate of one and two-thirds percent (1.667%) per month or the maximum rate permitted by law, whichever is more. The Company reserves the right to withhold any Leads or its performance if Company has not been paid in accordance with the terms set forth herein or as otherwise set forth in writing by Company and CLIENT.
(5) Other Obligations of the Parties.
(a) Obligations of CLIENT
1. Upon request by Company, CLIENT shall provide the Company all data related to the conversion of all Leads provided under this Agreement into customers of CLIENT or CLIENT’s affiliates.
2. CLIENT shall not have any right or authority to and shall not make any representation or warranty on behalf of the Company, or in any manner assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the Company, or act for or bind the Company in any respect except as expressly permitted pursuant to this Agreement.
3. CLIENT (a) represents and warrants that it has all applicable licenses, applicable insurance (including, without limitation, Workers Compensation and Commercial General Liability Insurance), certifications and accreditation, required to perform the work intended for the Leads and (b) shall bear the obligation to make all filings and obtain and maintain any and all necessary and/or applicable governmental approvals or licenses relating to CLIENT’s business and for the use of the Leads in all such jurisdictions.
4. CLIENT shall be responsible for all taxes, wages, commissions, and compensation due to its employees or agents resulting from this Agreement and shall defend, indemnify, and hold Company harmless therefrom.
5. CLIENT shall ensure that all Leads (and all corresponding underlying Lead information) provided hereunder are used, contacted (via direct mail, email or telephone), maintained and accessed by CLIENT and/or CLIENT’s affiliates in compliance with applicable law, including without limitation, the Telemarketing Sales Rule (as amended), the Telephone Consumer Protection Act of 1991, and the CAN-SPAM Act of 2003.
(b) Obligations of the Company
1. The Company shall not have any right or authority to and shall not make any representation or warranty on behalf of CLIENT, or in any manner assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the Client, or act for or bind the CLIENT in any respect except as expressly permitted pursuant to this Agreement.
2. The Company shall be responsible for all taxes, wages, commissions, and compensation due to its employees or agents resulting from this Agreement and shall defend, indemnify, and hold CLIENT harmless therefrom.
3. The Company (i) shall bear the obligation to make all filings and obtain any and all necessary and/or applicable governmental approvals or licenses relating to the Company’s business and (ii) shall defend, indemnify, and hold CLIENT harmless for any failure to make such filings or obtain such government approvals or licenses.
4. The Company shall retain sole discretion regarding the methods and manner (including, without limitation, purchases of media by the Company) in which the Company generates and provides any and all Leads to CLIENT under this Agreement.
(6) Confidentiality and Nondisclosure.
(a) Confidential Information. Each party recognizes that its directors, officers, employees and authorized representatives such as attorneys and accountants, may obtain knowledge of trade secrets, customer lists, vendor lists, membership lists and other confidential information of the other party which is valuable, proprietary, special or unique to the continued business of that party. Accordingly, each party hereto agrees to hold such confidential information (including, but not limited to all information contained in or pertaining to this Agreement) in confidence, not to disclose any such information to any third party, and to use its reasonable best efforts to ensure that such information is held in confidence by its officers, directors, employees, representatives and others over whom it exercises control and shall not use such information except for the performance of its obligations under this Agreement. Confidential information shall remain the property of each respective disclosing party to which the information originated, unless otherwise agreed to in writing.
(b) Exceptions. The restrictions set forth in this section shall not apply to confidential information that (i) was generally known or otherwise generally available to the public prior to disclosure hereunder, or becomes generally known to the public subsequent to such disclosure through no wrongful act or omission of the receiving party, (ii) was known to the receiving party at time of disclosure, (iii) was received by the receiving party, without restriction, from a third party not under an obligation to the disclosing party not to disclose it and otherwise not in violation of the disclosing party’s rights, (iv) is disclosed pursuant to the order or requirement of a court, administrative agency or governmental body, or (v) has been approved in writing in advance for release by the disclosing party.
(7) Warranties.
(a) Warranties. The Company and CLIENT each represent and warrant that:
1. Each individually is a corporation or limited liability company duly organized and validly existing under their respective states of incorporation and has full power, right and authority to enter into and carry out its respective obligations and grant the rights and licenses under this Agreement; and
2. This Agreement constitutes a valid and binding obligation of the Company and CLIENT respectively and is enforceable against each such party in accordance with its terms.
(b) Limitation. THE LEADS ARE PROVIDED “AS IS” AND EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 7, THE COMPANY PROVIDES NO WARRANTIES FOR THE LEADS OR THAT THE LEADS WILL RESULT IN ADDITIONAL BUSINESS OR REVENUE TO CLIENT OR CLIENT’S AFFILIATES, EITHER EXPRESSLY OR IMPLIEDLY, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE LEADS OR ANY SERVICE PROVIDED HEREUNDER, TO THE EXTENT SUCH WARRANTIES ARE APPLICABLE. THE COMPANY DISCLAIMS ANY WARRANTIES CREATED BY A COURSE OF DEAL, COURSE OF PERFORMANCE OR TRADE USAGE.
(8) Indemnification. CLIENT hereby agrees to defend and indemnify the Company against, and hold the Company harmless from, any loss, cost, claim, suit, judgement, liability or expense (collectively, “Claims“), including court costs and reasonable fees of attorneys and other professionals, arising out of or in connection with any third party Claim arising from (a) a breach of this Agreement by CLIENT; (b) the negligence or willful misconduct of CLIENT, its agents, employees, subsidiaries and/or affiliates or (c) any work performed by CLIENT, its agents, employees, subsidiaries and/or affiliates for any of the Total Leads provided to CLIENT hereunder; provided that (i) CLIENT shall have sole control of such defense, and (ii) Company shall provide notice promptly to CLIENT of any actual or threatened claim of which the Company becomes aware. In the event of any such claim, the Company shall provide CLIENT, at CLIENT’s expense, information and assistance as the CLIENT may reasonably request for purposes of defense.
(9) Trademark, Trade Names, and Proprietary Rights.
(a) Subject to Section 9(b), CLIENT grants to the Company a nonexclusive right to use the trademarks, marks, trade names and logos that CLIENT may adopt from time to time (“CLIENT Marks”) solely in connection with the Company obligations to CLIENT under this Agreement. Except as set forth in this Section 9, nothing contained in this Agreement will grant to the Company any right, title or interest in CLIENT Marks. At no time during or after the term of this Agreement will the Company challenge or assist others to challenge CLIENT Marks or the registration thereof or attempt to register any trademarks, marks, trade names or logos confusingly similar to those of CLIENT.
(b) All representations of CLIENT Marks that the Company intends to use will first be submitted to CLIENT for approval, which shall not be unreasonably withheld. In addition, the Company shall follow the instructions issued by CLIENT from time to time for the purpose of protecting the standards of quality established for the goods and services sold under CLIENT Marks.
(10) License and Intellectual Property Ownership. The Company hereby grants to CLIENT for the term of this Agreement a non-exclusive, non-transferable, limited license to use the Leads for purposes of contacting and soliciting such potential consumers about CLIENT’s products/services. CLIENT shall have no rights to grant sub-licenses without the prior express written approval of the Company. For the avoidance of doubt, the Leads are for the benefit of the CLIENT and CLIENT shall not transfer any Lead to a third party without the prior express written approval of the Company. Nothing in this Agreement shall transfer ownership of any intellectual property of the Company (including, without limitation, the Leads or underlying Lead information) to CLIENT, nor grant any right or license other than the limited license stated above. Such license shall terminate immediately upon termination of this Agreement for any reason.
(11) Termination of the Agreement.
(a) Termination. This Agreement may be terminated prior to the end of the term:
1. Either party upon thirty (30) days written notice to the other party; or
2. Either party immediately upon written notice without opportunity to cure if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if that petition or proceeding is not dismissed within sixty (60) days after filing.
(b) Termination of Obligations.
1. Except as otherwise provided herein, termination of this Agreement shall terminate all further rights and obligations of the Company and CLIENT hereunder provided that if such termination is based on a breach by a party hereto, the other party shall be entitled to pursue any and all rights it has to redress such breach in law or equity.
2. The provisions as set forth in Sections 6, 7, 8 and 13 hereof shall survive the termination and expiration of this Agreement.
3. Termination of this Agreement shall not relieve the parties of any obligation accruing prior to such termination.
(12) Payments Upon Term or Termination. Upon the end of the term or the termination of this Agreement, CLIENT shall continue to pay the Company the applicable Lead Fees for any Leads submitted to and received by CLIENT prior to such date for which such payments shall be due on or before thirty (30) days after such date. Also, upon the end of the term or termination of this Agreement, CLIENT shall be reimbursed the applicable Lead Fees for any Leads previously paid for but not submitted to CLIENT by the Company.
(13) Miscellaneous.
(a) Independent Contractor. The relationship between the Company and CLIENT established by this Agreement is that of independent contractor and the Company and CLIENT shall each conduct its respective business at its own initiative, responsibility and expense, and shall have no authority to incur any obligations on behalf of the other, except as otherwise provided herein.
(b) Notices. All notices required, excluding submission of Leads which shall be governed by Section 2 above, or permitted under this Agreement shall be made in writing and shall be deemed to have been duly given if delivered personally or sent by facsimile. All notices shall be addressed to the parties at the respective addresses indicated above. Notice shall be effective upon receipt or three (3) days after it is sent whichever occurs earlier.
(c) Governing Law. This Agreement and any transaction between the Company and CLIENT hereunder shall be governed by, construed and interpreted in accordance with the laws of the State of California. The parties hereunder consent to the exclusive jurisdiction of the Courts in Los Angeles, CA and that this Agreement shall be deemed to have been entered into and performed in Los Angeles, CA, U.S.A.
(d) Form and Venue. Except as otherwise specifically provided in this Agreement, any controversy or claim arising out of or relating to this Agreement shall be resolved by arbitration in accordance with the rules of the J.A.M.S., and judgment upon an award arising in connection therewith may be entered in any court of competent jurisdiction. Any arbitration, mediation, court action, or other adjudicative proceeding arising out of or relating to this Agreement shall be held in Los Angeles County, California, or, if such proceeding cannot be lawfully held in such location, as near thereto as applicable law permits.
(e) No Third Party Beneficiaries. CLIENT and Company intend that only CLIENT and Company will benefit from, and are entitled to enforce the provisions of, this Agreement and that no third party beneficiary is intended under this Agreement.
(f) Assignment. Neither party hereto may assign or otherwise transfer its rights and obligations under this Agreement, except that the Company may assign or otherwise transfer its rights and obligations hereunder to any parent or subsidiary corporation of the Company or to any purchaser of the business of the Company which agrees to assume the obligations of the Company hereunder.
(g) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY’S AGGREGATE LIABILITY TO CLIENT AND ALL THIRD PARTIES, INCLUDING ATTORNEY’S FEES, IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED AN AGGREGATE LIMIT OF THE TOTAL SUM OF LEAD FEES ACTUALLY PAID TO THE COMPANY BY CLIENT PURSUANT TO THE TERMS OF THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE CLAIM GIVING RISE TO ANY SUCH LIABILITY, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED. IN NO EVENT SHALL THE COMPANY BE LIABLE TO CLIENT FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED, EVEN IF THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE DAMAGES WERE FORESEEABLE.
(h) Entire Agreement; Amendment. This Agreement contains the entire agreement between the parties and this Agreement supersedes all previous agreements and proposals, oral or written, and all negotiations, conversations, or discussions between the parties related to this Agreement. The Company may change these terms and conditions at any time upon notice published on the Company’s website or by email notification to CLIENT.
(i) Waiver. The failure of any party hereunder to insist upon strict performance of any terms or provisions of this Agreement shall not be construed as a waiver or relinquishment for the future of any such terms or provisions. Rather such terms and provisions shall continue and remain in full force and effect. No waiver shall be deemed to have been made unless the waiver is made in writing and signed by the party making the waiver.
(j) Severability. If any term or provision is held to be unenforceable or invalid to any extent, the remainder of this agreement shall not be affected and each other term or provision of this Agreement shall be valid to the fullest extent permitted by law.
(k) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(l) Further Assurances. Each party hereto agrees to execute and deliver, by the proper exercise of its corporate, limited liability company, partnership or other powers, all such other and additional instruments and documents and do all such other acts and things as may be necessary to more fully effectuate this Agreement.
(m) Conflict. To the extent that any provision of these Terms & Conditions conflict with any provision of the Written Terms, the terms of the Written Terms shall govern.