ONLINE MARKETING AGREEMENT
This ONLINE MARKETING AGREEMENT (the "Agreement") is made by and between Relocation.com LLC, a New York limited liability company with principal offices at 80 Broad Street, Suite 1900, New York, NY 10004 (hereinafter, "Relocation.com") and you, the undersigned (in case this Agreement is an offline hard-copy) or the party on behalf of which this Agreement is accepted online (in case you enter into this Agreement online) (hereinafter “Partner”), effective as of the later of April 3, 2009 or the date Partner accepted this Agreement (the “Effective Date”) . Each of Relocation.com and Partner may also be referred to herein as a “Party” and, collectively, as the "Parties".
RECITALS
WHEREAS, Relocation.com is in the business of providing leads and marketing services to moving and relocation-related companies and wishes to purchase Valid Leads, as defined in Section 1.9 below and described herein, from Partner in exchange for an agreed-upon payment; and
WHEREAS, Partner is the direct owner and operator of a website or multiple websites generating leads the “Partner Sites”; and
WHEREAS, the visitors to the existing and future additions to the Partner Sites (the “Partner Users”) may at certain times have an interest in securing moving quotes, and as Partner Users, may further agree to receive moving quotes, thereby becoming Valid Leads, which Partner wishes to provide to Relocation.com in exchange for an agreed upon payment; and
WHEREAS, the Parties agree that the terms, conditions, prices, and information provided by Partner during the sign-up process, are hereby incorporated into this Agreement and made a part hereof.
NOW, THEREFORE, in consideration of the premises and covenants of the Parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
- DEFINITIONS
The following terms will have the following meanings for the purposes of this Agreement:
“Internet” means the universe of Hypertext documents linked together on the Internet via HTTP and commonly referred to as the “World Wide Web.”
“Rejected Lead” is a Valid Lead provided by Partner which is subsequently accurately disallowed by Relocation.com for failing to comply with the requirements listed in Section 1.9.
“Relocation.com Partner Account Management System” means the website which may be accessed by utilizing a user name and password provided by Relocation.com, currently located at http://login.relocation.com, which may be relocated to a different URL and a notice thereupon will be sent to Partner.
“Relocation.com Site” means the website owned and operated by Relocation.com, and located at www.relocation.com.
"Valid Lead" will mean a lead which (i) is a set of data provided by a Partner User (consisting of the fields listed in Exhibit A hereto which is incorporated herein and made a part hereto) who has knowingly permitted the transfer of such data to Relocation.com; (ii) in accordance with Section 2.4 below, is not known by Partner to be fraudulent; (iii) includes a move date or service date occurring more than three (3) days and less than one-hundred and eighty (180) days from the date the lead is submitted by Partner to Relocation.com; (iv) is the first lead in which the unique electronic transmission, phone number and consumer name has been received by Relocation.com within the last 14 days from any source whatsoever. In addition, Valid Leads mean the following:
“Local Leads” means all Valid Leads which have a “Move from Destination” and a “Move to Destination” within the same U.S. State, regardless of the distance.
“Long Distance Leads” means all Valid Leads which have a “Move from Destination” in one U.S. State and a “Move to Destination” in another U.S. State, regardless of the distance.
“Self-Service Leads” means all Long Distance Leads which, are reasonably determined by Relocation.com to have interest in receiving moving quotes from companies identified as self-service movers.
“International Leads” will mean all Valid Leads which have a “Move to Destination” and/or a “Move from” provided as a foreign country.
“Auto Transport Leads” will mean all Valid Leads which, after being delivered to Relocation.com, are reasonably determined by Relocation.com to be interested in receiving moving quotes to transport their automobile, separate and apart from any other requested quotes.
“Valid Lead Delivery” means the method by which Partner will transfer the Valid Leads to Relocation.com, as described in Exhibit A hereto.
- RIGHTS AND OBLIGATIONS OF PARTNER
Data Delivery Test. Upon execution of this Agreement, the Parties will complete a test in which sample data will be delivered by Partner to Relocation.com in accordance with the format described in Exhibit A hereto. This data delivery will be deemed to be accepted when Relocation.com provides a notice of acceptance via an email to Partner.
Display of Relocation.com Offer, Collection and Transfer of Valid Leads. Partner will display an option for users to receive moving quotes. Partner may also develop additional presentation placements, and will notify Relocation.com if and when such placements are created. Partner will make commercially reasonable efforts to collect Valid Leads and transfer them to Relocation.com in the manner described in Exhibit A hereto.
Display of Relocation.com Articles. Relocation.com may make relevant, contextual articles on moving and relocation topics written by or for Relocation.com (the “Relocation.com Articles”) available to Partner, and Partner may display any such Relocation.com Article provided hereunder, on the Partner Sites. Partner will have sole approval over any Relocation.com Article that is published on the Partner Sites; provided, however, that each Relocation.com Article used by Partner will include (i) a maximum of 3 text links pointing to specifically relevant web pages within the Relocation.com Site, each of which will be provided by Relocation.com at the time the Relocation.com Article is provided to Partner, and (ii) will have mutually agreed-upon Relocation.com attribution.
Lead Quality. Partner will use commercially reasonable efforts to ensure the quality of the leads provided. Specifically, Partner will (i) refrain from creating or utilizing applications to deliver non-interested online visitors as leads, and (ii) will only utilize websites which are fully owned and operated by Partner to collect leads.
Exclusivity. Partner agrees to provide Valid Leads only to Relocation.com, and not to any other parties who provide services similar to Relocation.com (i.e., moving) during the Term.
- RIGHTS AND OBLIGATIONS OF RELOCATION.COM
Support for Data Delivery Test. Relocation.com will work closely with and assist Partner with the test described in Section 2.1, to ensure that sample data is received and analyzed. Relocation.com will provide further assistance, if needed, to ensure the data is delivered in accordance with the agreed upon format described in Exhibit A hereto.
Acceptance of Leads, Reports, Payments.
Acceptance of Leads. Relocation.com will pay Company only for Valid Leads. Relocation.com reserves the right to qualify leads and will not pay for duplicate leads, incomplete leads, or leads that are determined to originate from fraudulent activity. Relocation.com also reserves the right to refuse to pay for leads originating from any program where incentives or rewards were used as an incentive to increase lead conversion. Relocation.com will also not be paid for leads or sales generated through methods that are considered inappropriate by search engines, such as, without limitation, Spam, cloaking, link farms, or hidden text.
Reports. Relocation.com will provide reports listing all of the Valid Leads provided by Partner and accepted by Relocation.com in the immediately preceding calendar month. Relocation.com will further segment the Valid Leads into (a) Local Leads, (b) Long Distance Leads, (c) Self Service Leads, (d) Auto Transport Leads, and (e) International Leads. Such reports will also document any Rejected Leads and the reason(s) for such rejection. To the extent a lead is not accurately deemed a Rejected Lead, it will be considered a Valid Lead. Partner will have access to these reports on the Relocation.com Partner Account Management System at all times, subject to usual downtime for routine reasons such as, without limitation, maintenance and updates.
Payments. For each Valid Lead reported in accordance with Section 3.2.2, Relocation.com will pay Partner the sum designated as the price per qualified lead agreed to by Partner in writing, and/or during Partner’s sign-up into the Relocation.com Partner Account Management System, and/or during Partner’s (or any person on behalf of Partner) modification of terms in the Relocation.com Partner Account Management System.
- TERM
Initial Term. This Agreement will commence on the Effective Date, and unless terminated in accordance with the termination provisions of this Agreement will continue for a period of one (1) year from the Effective Date (the "Initial Term").
Renewal Term. The Agreement will automatically renew ("Renewal Term") under the terms and conditions of this Agreement for additional one year periods unless written notice of termination is provided at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term.
Term. The Initial Term as well as any and all Renewal Term(s), if any, shall be referred to herein collectively as the “Term”.
- TERMINATION
Termination. Either Party may terminate this Agreement for any reason upon thirty (30) days prior written notice to the other Party. During the period following notice of termination and prior to the effective date of termination, the Parties will have the same rights, duties, privileges, and obligations as if notice had not been given.
Insolvency. In the event either Party files a petition of bankruptcy, seeks relief under any law regarding insolvency, makes an assignment for the benefit of creditors, or adopts a resolution for discontinuance of its business, this Agreement hereto will automatically terminate, unless otherwise agreed to by the Parties in writing.
Breach. If either Party is in breach of this Agreement and fails to cure said breach within thirty (30) days after receiving written notice of such breach, the non-breaching Party may terminate this Agreement upon written notice.
- USER DATA The Parties agree that all user data provided by Partner as part of the delivery of Valid Leads will be owned by Relocation.com. Relocation.com will treat the consumer data in accordance with the Relocation.com then-current privacy policy.
- REPRESENTATIONS AND WARRANTIES
The representations, warranties and indemnities contained in this section will survive the termination of this Agreement. Each of Relocation.com and Partner hereby represents and warrants as follows:
Good Standing. It is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all the necessary power and authority to enter into this Agreement and perform its obligation under this Agreement, and the signature of this Agreement is by a duly authorized officer of each of the Parties.
No Default. The execution, delivery and performance of and compliance with this Agreement does not and will not conflict with, or constitute a default under (i) any contract, agreement, instrument, with any other individual and/or entity, and/or (ii) order, statute, rule or regulation applicable to either Party.
Performance. It is authorized and capable of carrying out and performing, and will carry out and perform, all of its obligations as set forth herein.
- CONFIDENTIALITY
All material and information supplied by one Party to the other Party hereunder, and all information learned by a Party about the other Party as the result of the transactions contemplated by this Agreement, including but not limited to information concerning marketing plans, business plans, objectives, and/or financial results, are confidential and proprietary (each, and collectively, "Confidential Information"). Each Party will receive the Confidential Information of the other Party in confidence and will not disclose such Confidential Information to any third party, except (i) as may be agreed upon in writing by the other Party, or (ii) as otherwise required, on written advice of counsel and/or by court order, by applicable laws, rules or regulations. Each Party will ensure that its officers, employees, agents, and representatives take such action as may be necessary or advisable to preserve and protect the confidentiality of the Confidential Information of the other Party. Upon written request or upon the termination of this Agreement, each Party will return to the other Party all Confidential Information in its possession and/or control. Confidential Information will not include information (i) in the public domain not in the same order, manner, or mode, (ii) lawfully obtained from a third party, or (iii) ordered disclosed by a court or administrative order, provided that the Party required to disclose same shall employ best efforts to allow the other Party the opportunity to apply for and secure a protective order to protect from such required disclosure. This Section 8 will survive termination of this Agreement for three (3) years.
Except as may be required by law or regulation or a court or regulatory authority or in connection with tax matters, neither Party will disclose any or all provision(s) of this Agreement to any third party, other than the Party's accountants, attorneys, applicable regulatory agencies requiring such disclosure in writing, and other representatives with a demonstrated need to know such information, without the prior written consent of the other Party.
- INDEMNIFICATION Partner agrees to indemnify, defend and hold Relocation.com harmless from and against any and all claims, suits, actions, liabilities, losses, expenses or damages which may hereafter arise, which Relocation.com or its affiliates, directors, officers, agents or employees may sustain due to or arising out of (i) any negligent or intentional act or omission by Partner, its affiliates, officers, agents, representatives or employees or out of any act by Partner, its affiliates, officers, agents, representatives or employees in violation of this Agreement or in violation of any applicable law or regulation, or (ii) negligent actions or inactions or willful misconduct of a Partner employee or consultant, or the relationship or dealings between a consumer and Partner; provided, however, that the indemnification provided for herein shall not provide coverage to Relocation.com for any claim, suit or action, liability or loss, expense or damage that resulted from gross negligence or an intentional act or omission of Relocation.com. No final settlement of any action or claim as to which there is an obligation of indemnification may be made without the consent of Relocation.com, This provision shall survive termination of the Agreement (but shall not toll any applicable statute of limitations).
- LIMITATION OF LIABILITY EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, OR IN THE CASE OF FRAUD OR BREACH OF CONFIDENTIALITY OR BREACH OF THE REPRESENTATIONS AND WARRANTIES HEREIN, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES ARISING FROM BREACH OF CONTRACT OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS OR LOSS OF USE THEREOF, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY WAS AWARE OR NOTIFIED THAT SUCH DAMAGES COULD RESULT; AND (B) EACH PARTY’S AGGREGATE LIABILITY ARISING UNDER, WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID HEREUNDER.
- ENTIRE AGREEMENT; AMENDMENT; NO PRESUMPTION. This Agreement, including Exhibit A hereto, constitutes the entire understanding and agreement with respect to its subject matter, and supersedes any and all prior representations, understandings and agreements, whether oral or written, between the Parties, relating to the subject matter of this Agreement, all of which are merged in this Agreement. This Agreement may be amended only by a written agreement signed by both Parties. There shall be no presumption against the Party that had this Agreement drafted.
- SEVERABILITY In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement will remain valid and enforceable according to its terms, and the Parties will work in good faith to amend such invalid or unenforceable provisions to make such provisions valid and enforceable and maintain the original benefit of the bargain with respect to such provision for each Party to the maximum extent possible.
- WAIVER No change, waiver or discharge of this Agreement will be valid unless in writing and executed by the Party against whom such change, waiver or discharge is sought to be enforced. A waiver by either of the Parties of any provision or breach will not be a waiver of a preceding or subsequent breach of the same or any other provision or breach. This Agreement may be amended only by an written amendment signed by both Parties.
- RELATIONSHIPS Partner is referred to as such for convenience only. Neither this Agreement nor the performance of the Parties' respective obligations hereunder will result in the creation of an actual and/or implied partnership or joint venture or an employment or agency or any other relationship between them other than being parties to a services agreement on an ‘independent contractor’ basis.
- PUBLICITY Neither Relocation.com nor Partner will issue any advertising, promotional activity, press or publicity release relating to this Agreement or each other without securing the prior written consent of the other Party, which may be unreasonably withheld.
- GOVERNING LAW This Agreement will be governed in accordance with the laws of the State of New York, without reference to its conflict of laws principles. Any claim between the Parties, their agents, employees, officers and/or directors will be resolved by the federal or state courts of New York County, New York, and each of the Parties hereby submits to the personal jurisdiction of such courts and waives any right to file for a change of venue.
- NOTICE Any notice to be delivered by either Party to the other Party shall only be valid if given in writing via electronic mail confirmed by the other Party, registered mail, facsimile transmission confirmed by the other Party, or in person, addressed to the other Party at its address set forth herein, as may from time to time be changed or updated in accordance with this notice provision.
EXHIBIT A: LEAD DELIVERY
Fields of a Valid Moving Lead: First Name; Last Name; Current Phone number; Email address; Moving from Destination; Moving to Destination; Estimated Moving Date.
Fields for a Valid Auto Transport Lead: First Name; Last Name; Current Phone number; Email address; Moving Auto from destination; Moving Auto to Destination; Vehicle Type; Estimated Vehicle Move Date.
Lead Delivery Method - Partner will deliver the leads to an internet location provided by Relocation.com using a secure connection. At Relocation.com’s option, a co-brand hosted and maintained by Relocation.com will be the source of lead delivery.