THIS UPDATED SERVICE AGREEMENT will be in effect upon commencement of service and payment (the “Effective Date”) by and among CONVERSION MONSTER, LLC, and the Client.
WHEREAS, the Servicer desires perform certain Services, as hereinafter defined, for the Client, and the Client desires to accept such contracting Services from the Servicer on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1.1 The Services. The Client hereby engages the Servicer, and the Servicer hereby accepts such engagement, as an independent Servicer to provide the services set for on Schedule A of this Agreement (the “Services”) to the Client on the terms and conditions set forth in this Agreement and the Schedules attached hereto.
1.2 Relationship of Parties. The Servicer is an independent contractor of the Client, and this Agreement shall not be construed to create any association, partnership, joint venture, employment, or agency relationship between the Servicer and the Client for any purpose. The Servicer (i) has no authority to bind the Client, and shall not hold itself out as having such authority; and (ii) the Servicer shall not make any agreements or representations on the Client’s behalf without the Client’s prior written consent.
MONTHLY FEE AND EXPENSES
2.1 Compensation. The Client shall pay to the Servicer, as full compensation for the Services provided by Servicer, a fee (the “Fee”) payable (the “Monthly Payment”) as set forth on Schedule A of this Agreement. The first Payment shall be due no later than the Effective Date.
3.1 Confidential Information. For the purpose of this Agreement, “Confidential Information” shall mean all information, and all tangible and intangible embodiments thereof, which is disclosed by the Servicer or the Client (“Disclosing Party”) to the other party hereto (“Recipient”) pursuant to this Agreement, including (a) any trade secrets of the Disclosing Party; (b) any information disclosed in writing or other tangible medium, that is marked or identified as confidential at the time of disclosure to the Recipient; or (c) any information, whether or not marked or identified as confidential in the manner set forth above, that is information the Recipient should reasonably understand to be, or those in the industry typically treat as, confidential or proprietary information.
3.2 Duration of Confidentiality. During the term of this Agreement, and thereafter following the expiration or earlier termination thereof, the Recipient shall hold as secret and maintain in confidence the Confidential Information of the Disclosing Party, shall use such Confidential Information only as explicitly set forth in this Agreement, and shall not disclose, use, or grant the use of the Confidential Information of the Disclosing Party to any third party, and may only disclose the Disclosing Party’s Confidential Information to the Recipient’s directors, officers, members, managers and employees on a need-to-know basis and to the extent such disclosure is reasonably necessary to carry out the Recipient’s activities as expressly authorized by this Agreement.
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties. Except as expressly stated in this agreement, the servicer makes no express or implied warranties, including warranties of merchantability, fitness for a particular purpose, non-infringement, accuracy or condition of data or that services will be uninterrupted or error free. Except as expressly provided in this agreement. (i) The services are provided “as is” without warranty of any kind, either expressed or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose and non-infringement. The servicer does not warrant that the services will meet the requirements of any third party and, in particular, the service does not warrant that the services will be error free or will operate without interruption.
INDEMNIFICATION, LIMITATION OF LIABILITY
5.1 Client Indemnification. The Client shall defend, indemnify, and hold harmless the Servicer, its affiliates and their officers, directors, members, managers, employees, agents, successors, and assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from: (a) any damage to the Servicer resulting from Client’s acts or omissions; and (b) the material breach of any representation, warranty, or obligation of the Client under this Agreement.
5.2 Limitation of Liability. The Servicer’s entire liability to the Client, or to any party or person claiming through the Client, relating in any manner to the Services rendered pursuant to this Agreement, shall be limited exclusively to the return of the Fee paid pursuant to this Agreement.
TERM & TERMINATION
6.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue on a monthly basis unless the Client or Servicer provides the other party with party with written notice thirty (30) days prior to the end of the service agreement.
a. 30 day notice must be given to cancellation
b. If service is cancelled for any reason within 90 days of the effective day, all and any promotional pricing related to startup, lead management or referral fees will be charged prior to cancelling.
7.1 Governing Law. This Agreement shall be governed by and construed and enforced exclusively under the laws of the State of New York in all respects as such laws are applied to agreements among New York residents entered into and performed entirely within New York.
7.2 Entire Agreement.
This Agreement (a) constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof, and (b) supersedes and merges all prior agreements, contracts, understandings and negotiations regarding the subjects hereof. No party shall be liable or bound to any other in any manner by any oral or written representations, warranties, covenants and agreements except as specifically set forth herein and therein.
7.3 Force Majeure.
1. Neither party will be liable for any delay or failure in performance of any part of this Agreement as a result of Force Majeure.
In the event the Client exceeds the agreed upon lead volume per month, the Client will billed for additional leads at the agreed upon price per lead. If the amount to be charged exceeds the cost of the next package size, Client will be automatically upgraded to the next package available at the reduced cost per lead. The overage amount will be billed monthly with payment method on file and due upon the beginning of the next billing cycle. If client does not use full number of leads, all unused leads will roll over into excess capacity indefinitely until used. Upon notice, client will have the option of downsizing their package back to their original package at the end of the billing month before the next billing cycle.
Cost per overage lead will be at the per lead price of the original package until upgraded. Upon being upgraded, all leads for the month in question and going forward will be billed at the upgraded, lower rate. This does not apply to leads used in prior months.
Rollover leads will be applied prior to any overage charges.
Client shall supply Servicer with data subscriptions (the “Leads”) for Companies’ online real estate marketing subscriptions. Servicer shall receive direct access to all leads provided to it by Client through those online marketing subscriptions, and respond to each lead to effectuate at the highest contact rate possible. Servicer shall qualify each lead to determine the validity of each lead, and engage in communication on qualified leads to determine specific information about what each potential client is looking for; i.e. purchasing, selling, time frames, etc.
Servicer shall work each lead diligently at the information gathering stage, and once Servicer determines that a lead is ready to move into an action stage for selling, purchasing, leasing etc., Servicer shall arrange appointments for with Companies’ agents for personal contact with a qualified lead. Servicer will use best efforts to reach each lead in less than 5 minutes.