This Agreement (this “Agreement”) is made as of the date (“Effective Date”) that BuyerZone.com, LLC (“BuyerZone”) accepts the publisher’s application to participate in the BuyerZone Publisher Program. This Agreement is by and between BuyerZone, a Delaware limited liability company, and the publisher indentified on the Webform as defined below (“Publisher”).
BuyerZone operates an online service that permits individuals and businesses (“Buyers”) to obtain purchasing advice and to complete and submit requests for quotes that BuyerZone may forward to suppliers of products and services (“Suppliers”); and
Publisher wishes to provide end users of those web site(s) owned and operated by Publisher and located on the websites identified by Publisher on the form at http://www.buyerzone.com/affiliates/signup/ (the “Webform”) (together or each individually, the “Publisher Site”) with access to all categories available on BuyerZone’s web site buyerzone.com (“Referral Categories”) to request quotes for products and services from Suppliers, and BuyerZone wishes to enable such access, as more particularly described and subject to all terms and conditions set forth herein.
Throughout the Term, the parties will perform as follows to enable users of the Publisher Site (“Users”) to be matched with Suppliers.
a. Publisher shall display on the Publisher Site, in accordance with all terms and conditions of this Agreement, the BuyerZone questionnaires (“Questionnaire(s)”) and such other materials and code as may be provided by BuyerZone for purposes of linking to or otherwise promoting BuyerZone Questionnaires (the “BZ Creative”, together with the Questionnaires, the “BZ Materials”). The Questionnaires will be hosted by BuyerZone and made accessible employing an i-frame implementation on the Publisher Site via which Questionnaires completed and submitted by Users (each, an “RFQ”) will be transmitted directly to BuyerZone servers and not received by Publisher. Publisher shall obtain BuyerZone’s written approval of its technology implementation and messaging and marketing strategy prior to Publisher’s display of BZ Materials on the Publisher Site. Publisher shall also obtain BuyerZone’s written approval of all URLs and web sites where Publisher will display the BZ Materials. Publisher shall obtain BuyerZone’s written approval of any material changes to its technology implementation, messaging, and marketing strategy prior to implementation of same. BuyerZone shall inform Publisher of its approval or disapproval within three (3) business days.
b. In response to the User’s clicking on any BZ Creative or other link to a Questionnaire, Publisher shall cause the User to be served or redirected to the Questionnaire for the relevant Referral Category and specifically no other intervening, interstitial or concurrent other content such as, by way of example and not limitation, transition page advertising, pop-ups, pop-unders or the like (“Intervening Content”). Further, Publisher shall not serve, allow to be served, or cause to be served any Intervening Content in response to any User action in interacting with or navigating through (including but not limited to exiting) the Questionnaire.
d. Publisher shall disclose on the Publisher Site that information submitted by Referred Buyers (as defined herein) will be transferred to a third party, by use of the statement “Get FREE price quotes for <product/service> from multiple sellers with BuyerZone.” Publisher shall obtain prior written consent from BuyerZone for any additional or different statement. BuyerZone will use commercially reasonable efforts to match each Qualifying RFQ (as defined below) with at least one (1) Supplier. Notwithstanding the foregoing, BuyerZone reserves the right to decline to submit any Qualifying RFQ to any Suppliers at its discretion.
e. Publisher agrees that throughout the Term it shall not display on the Publisher Site any materials or trademarks, including but not limited to questionnaires and advertising, of any competitor of BuyerZone.
f. Publisher shall not display BZ Materials on any sites containing any offensive or problematic content, including but not limited to: (i) pornographic material, (ii) hate-related content, (iii) violent content or (iv) any other illegal content.
g. All information provided by Users on the Questionnaire (“RFQ Data”) will be owned by BuyerZone and on submission of such Questionnaire the submitting User shall become a Buyer (also referred to herein as a “Referred Buyer”). The foregoing does not effectuate a transfer of ownership in any User information previously or subsequently provided to Publisher, in which information Publisher will have a separate ownership interest. To the extent Publisher implements the Questionnaires in a manner such that the RFQ is submitted to Publisher, Publisher shall receive the RFQ and all RFQ Data solely for the benefit of BuyerZone, and Publisher shall not use or disclose the RFQ or any RFQ Data other than to forward the same to BuyerZone. Publisher shall forward all RFQs and RFQ Data provided in such manner within one (1) business day of its receipt thereof, and shall provide BuyerZone with a summary report of all RFQs provided hereunder.
2. Prohibited Actions.
Publisher shall not, directly or via the services or acts of any third party, conduct or engage in any of the following (“Prohibited Actions”):
a. search engine "spamming” (i.e., the inappropriate use of search engine optimization tactics such as doorway pages or cloaking);
b. fraudulent, misleading or automated activity or any program where incentives or rewards are used to increase lead conversion or generate clicks;
c. methods that are considered inappropriate by search engines, for example: SPAM, cloaking, link farms, hidden text, etc.;
d. contextual marketing program which installs software programs on the user’s machine or which is based on recording the keystrokes of the user; or
e. telemarketing, email or other direct marketing in conjunction with the performance of services by Publisher pursuant to this Agreement.
In addition to, and not in lieu of, all other remedies, in the event BuyerZone deems Publisher in violation of any of the foregoing, BuyerZone may suspend this Agreement and all rights granted hereunder, until such time as such violation has been remedied to BuyerZone’s satisfaction.
3. License Grants; Restrictions.
a. BuyerZone hereby grants to Publisher a limited, nonexclusive, non-assignable, and non-sublicensable right and license to display to Users on the Publisher Site the BZ Materials, including such BuyerZone trademarks and logos as may be specified by BuyerZone from time to time, solely for purposes of fulfilling its obligations hereunder with respect to referring Users to BuyerZone and providing necessary disclosure with respect thereto. All use of the BuyerZone trademarks and logos shall be in accordance with BuyerZone’s quality control standards and trademark usage guidelines as established by BuyerZone from time to time. Should BuyerZone notify Publisher of any non-compliant use, Publisher shall immediately remedy such noncompliance to BuyerZone’s satisfaction. All use of the BuyerZone trademarks and logos, and all goodwill associated therewith, shall inure solely and exclusively to the benefit of BuyerZone.
b. Publisher shall not display BZ Materials (including any trademarks or logos) other than on the Publisher Site as described herein. Any other use of the BZ Materials (including trademarks and logos), including but not limited in advertising, publicity and marketing materials, shall require the prior written consent of BuyerZone. Publisher shall not alter or modify the BZ Materials.
4. Fees; Payment.
a. In consideration of Publisher’s performing its obligations hereunder, BuyerZone will pay Publisher, for each Qualifying RFQ (as defined below) in respect of which BuyerZone has received a referral fee from at least one (1) Supplier, a Fee of 30% of the net referral fee received by BuyerZone. Such payment will be reduced by credits, refunds, chargebacks and any taxes required to be withheld by law. For avoidance of doubt, the Fee is a per-RFQ Fee and shall be paid once for each Qualifying RFQ regardless of the number of Suppliers with which the Qualifying RFQ is matched.
b. Fees will be reported and paid monthly within thirty (30) days following the end of each month. If the amount due Publisher is less than $100, BuyerZone may withhold payment until such month as the aggregate amount equals or exceeds $100.
c. “Qualifying RFQ” means an RFQ that: (a) was obtained by BuyerZone, or Publisher and forwarded to BuyerZone, through such Buyer’s submission of a Questionnaire on the Publisher Site; (b) is complete, bona fide and unique, from a United States-based Referred Buyer unaffiliated with Publisher, as determined by BuyerZone’s verification process, (c) is submitted by an individual representing a legitimate business entity; and (d) was not obtained in connection with the use of any Prohibited Actions and otherwise complies with BuyerZone’s rules, policies and procedures. BuyerZone’s determination of whether an RFQ is a Qualifying RFQ shall be final and binding.
a. This Agreement shall have an initial term of one (1) year commencing on the Effective Date, and thereafter shall renew automatically for additional one (1) year terms unless either party provides written notice of non-renewal prior to the expiration of the then current term.
b. Either party may terminate this Agreement as follows: (i) at any time, on at least thirty (30) days prior written notice, for any or no reason; (ii) immediately on notice to the other party, if such other party files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for the other or its business; or (iii) upon the occurrence of a material breach by the other party other than a late payment of a Fee.
c. Immediately upon termination of this Agreement, all licenses granted hereunder shall also terminate, and Publisher shall immediately remove all BZ Materials (including all trademarks and logos) from the Publisher Sites. The provisions of Sections 5-11 hereof shall survive the termination of this Agreement.
6. Representations and Warranties. Each party represents and warrants to the other that: (a) it has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder; and (b) it shall comply with all applicable laws and regulations in its performance of this Agreement. Publisher represents, warrants and covenants that the Publisher Site, the operation thereof and all actions taken by Publisher in connection herewith shall comply with all applicable laws, rules, regulations and privacy policies and shall not violate or infringe upon any third party rights. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Indemnity. Publisher agrees to defend, indemnify and hold harmless BuyerZone, its subsidiaries and affiliates, and their respective officers, directors, agents, and employees against any and all losses, liabilities, injuries, damages, expense, or cost, including reasonable attorneys’ fees and expenses, arising out of any claim, demand, action, suit, investigation, arbitration or other proceeding by a third party based on a claim that, if true, would constitute a breach of Publisher’s representations, warranties or covenants hereunder.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY OR ITS AGENTS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES OR PROFITS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL NOT APPLY WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS HEREUNDER, OR IN THE CASE OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9. Confidentiality. Each Party (the “Receiving Party”) acknowledges that in the performance of this Agreement, such Party may gain access to Confidential Information (as defined below) of the other Party (the “Disclosing Party”). The Receiving Party: (i) will keep the Confidential Information of the Disclosing Party confidential and will not (except as required by applicable law, regulation or legal or judicial process, and only after compliance with subsection (d) below), without the Disclosing Party’s prior written consent, disclose any of the Disclosing Party’s Confidential Information in any manner whatsoever and (ii) will use such Confidential Information solely in connection with its performance of its obligations under this Agreement and shall make no use of any such Confidential Information, directly or indirectly, in any manner to the detriment of the Disclosing Party or in order to obtain any competitive benefit with respect to the Disclosing Party; provided, however, that the Receiving Party may reveal Confidential Information of the Disclosing Party to its and its parent company’s offers, directors and employees with a need to know for the purpose of the Receiving Party performing its obligations under this Agreement who agree to be bound by the terms of this Section
“Confidential Information” means any technical, marketing, financial, employee, planning, and other confidential or proprietary information of the Disclosing Party, including customer and supplier lists. Without limiting the foregoing, “Confidential Information” of BuyerZone shall include all RFQ Data submitted by Users. Confidential Information does not include information that: (a) is or has been independently developed by the receiving party without use of the other party’s Confidential Information; (b) has been rightfully received from a third party authorized to make such disclosure; (c) has been approved for release in writing by the Disclosing Party; or (d) is required to be disclosed by law; provided that the Receiving Party promptly notifies the Disclosing Party of the required disclosure and cooperates with the Disclosing Party, at the other Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. Upon the earlier to occur of termination of this Agreement or the request of the Disclosing Party, the Receiving Party shall destroy or return all of the Disclosing Party’s Confidential Information to the Disclosing Party. Each party acknowledges that its breach of the provisions set forth in this paragraph will cause irreparable damage to the Disclosing Party and hereby agrees that the Disclosing Party shall be entitled to seek injunctive relief for the enforcement of this provision in addition to any other remedy available at law.
10. Notices. All notices and communications under this Agreement shall be in writing, deemed given upon receipt, and sent by personal delivery, courier or registered or certified mail, return receipt requested, addressed, or to such other address as may be designated in writing by such party:
11. Miscellaneous. Publisher and BuyerZone are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. Neither party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, provided that no such consent shall be required for an assignment by a party to an entity which succeeds to all or substantially all of such party’s assets or stock whether by merger, sale, consolidation or otherwise. If any provision of this Agreement shall be declared void or unenforceable by any judicial or administrative authority, the validity of any other provisions and of the entire Agreement shall not be affected thereby. This Agreement shall be governed by and interpreted according to the laws of the State of New York without reference to the conflict of laws principles thereof. Any action relating to this Agreement shall be brought in the federal or state courts located in the State of New York and County of New York, and the parties irrevocably consent to the jurisdiction of such courts over the parties and any dispute. The headings herein are for convenience of reference only and shall not be considered in any interpretation of this Agreement. No waiver of any default in performance of this Agreement by either party, or waiver of any breach or a series of breaches of any of the terms, covenants or conditions of this Agreement shall constitute a waiver of any subsequent breach or a waiver of such terms, covenants or conditions. There shall be no third party beneficiaries in connection herewith. This Agreement describes the entire agreement between BuyerZone and Publisher and supersedes any other verbal or written agreements regarding the subject matter of this Agreement.