This Agreement ("Agreement") is entered into as of the date set forth below between WhiteFence ("WhiteFence") and the undersigned party (the "Company") (collectively, the "Parties," individually, a "Party.").
WhiteFence provides an online comparison shopping marketplace that enables consumers to conveniently set up and purchase essential home services and other home and move-related products in one easy stop (the "Service"). The Company's customers may access the Service through a WhiteFence provided link on the homepage and other locations on the Company's website.
NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. The Service. WhiteFence will provide the Company with use of the Service and the Company will introduce and promote the Service to all of its customers. The Parties will cooperate and work together on an ongoing basis to implement marketing plans and programs in connection with the Service. The Company may elect to utilize other services or products now or hereafter offered by WhiteFence upon terms to be mutually agreed at such time. WhiteFence will maintain technical and customer support for the Service.
2. Fees; Rebates. WhiteFence will pay the Company a rebate ("Rebate") for each service listed below that is ordered through the Company's link to the Service and for which a commission is payable to WhiteFence from the applicable service provider:
| Satellite television | $30 |
| Local telephone | $8 |
| High-speed Internet | $8 |
| Cable television | $6 |
| Newspaper delivery | $7 |
| Appliance rental | $10 |
WhiteFence will bear all risks associated with fee credits and charge-backs ("Charge-backs") claimed by service providers with respect to accepted orders that do not result in completed transactions or qualified customer accounts; provided, that, WhiteFence reserves the right upon written notice to adjust Rebate amounts with respect to any service category where Charge-backs exceed 10% from the Company's Service. WhiteFence will pay Rebate amounts to the Company within 20 days following the end of the month in which commissions are invoiced to the applicable service provider; provided, that, if the Rebate amount due for any period is less than $100, then no payment will be made for that period and such Rebate amount will be carried forward and included in the Rebate amount due for next period. The Company agrees that it will accept electronic payment of Rebates, which shall be accompanied by reports detailing the source of such Rebates.
3. Term. The initial term of this Agreement shall be for a period of one (1) year commencing on the date hereof and shall automatically renew for successive annual terms (the "Term"), unless either Party shall provide written notice of its election not to renew at least 60 days prior to the expiration of the initial term or any renewal term. WhiteFence may at any time elect to terminate this Agreement for any or no reason upon written notice to the Company, which notice may be made by email to the address provided by the Company in connection herewith.
4. Confidentiality. Each of the Parties covenants and agrees that all Confidential Information (defined below) of either Party ("Disclosing Party") that is disclosed or communicated to the other Party ("Receiving Party") during the Term or thereafter is done so in strict confidence, shall be used by the Receiving Party solely for the purposes of performing its obligations contained in this Agreement, and shall not be disclosed, divulged, disseminated or otherwise made available to any third party without the prior written consent of the Disclosing Party, except as specifically permitted under this Agreement. "Confidential Information" shall mean all proprietary, non-public information of either Party, in any form or format, including, without limitation, technology, intellectual property or other information concerning a Party's business affairs. For purposes hereof, Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party, (ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party, or (iii) becomes available to the Receiving Party on a non-confidential basis from a person other than the Disclosing Party who is not known by the Receiving Party to be bound by a confidentiality agreement with the Disclosing Party or otherwise under any obligation (whether contractual, legal or fiduciary) to keep such information confidential. The Company will not at any time reverse engineer, recompile, reverse assemble, copy or create derivative works based upon WhiteFence proprietary technology. The provisions of this Section shall survive the termination of this Agreement.
5. Liability. Neither Party shall in any event be liable for any special, indirect, incidental, punitive, exemplary or consequential damages, or any damages whatsoever resulting from loss of use or data, arising out of or in connection with either party's performance or non-performance under this Agreement or for any other reason, regardless of the form of action, whether in contract or tort or otherwise (including, without limitation, negligence, strict liability or otherwise), whether or not such damages are foreseen or either party has been advised of the possibility of such damages.
6. Remedies. In the event that either Party shall breach or be in default under this Agreement in any material respect, then the non-breaching Party may, in addition to any other rights and remedies available to such Party, elect to terminate this Agreement following the breaching Party's failure to reasonably cure the alleged breach or default within 60 days following its receipt of written notice setting forth in specific detail the events and circumstances giving rise to each alleged breach or default. The Parties agree that the non-permitted use or disclosure of Confidential Information will cause the non-breaching Party irrevocable damage for which adequate remedy at law will not be available and, accordingly, each of them shall be entitled to obtain temporary and/or permanent injunctive relief. Such rights shall not limit in any manner their respective rights to seek other and/or additional remedies, at law or in equity.
7. Miscellaneous. The Parties are each providing services hereunder as an independent party. Nothing contained in this Agreement shall be deemed or interpreted to constitute the relationship between the Parties as a legal partnership, agency, joint venture or any other relationship in which either party is responsible for or shall incur liability to outside parties as a result of the actions or omissions of the other Party. The Company's trademarks and logos will be displayed on the Service for the limited purpose of promoting the Service. Services provided hereunder are without express or implied warranty, including, without limitation, warranties of merchantability and fitness for a particular purpose. This Agreement contains the entire agreement between the Parties and supersedes all agreements, representations, warranties and understandings, whether written or verbal, with respect to the subject matter hereof. This Agreement may not be amended, modified, or assigned except pursuant to a written agreement signed by both Parties. This Agreement shall not be for the benefit of, or enforceable by, any person or entity not a party hereto and shall not confer any rights or remedies upon any party other than the Parties and their respective successors and permitted assigns.
By accepting the terms of this Agreement in the manner set forth below, the Company thereupon agrees to be legally bound by the terms of this Agreement. This Agreement shall not, however, become effective unless and until WhiteFence has notified the Company in writing that this Agreement has been accepted and approved by WhiteFence, and WhiteFence has provided the Company with an appropriate link(s) to the Service.