BUSINESS STRATEGIC AGREEMENT
BUSINESS
STRATEGIC AGREEMENT (this “Agreement”), dated as of May 30, 2006, between
Offline Consulting, Inc., a Delaware corporation (“we” or “us”), and
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (“you”).
RECITALS
A.
We
provide business consulting services and operate a website that has its primary
home page identified by the URL ▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ("our
site").
B.
You
operate a website that has its primary home page identified by the URL
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(“your
site”).
C.
You
and
we desire that you refer to us clients that are interested in our business
consulting services and that you provide links on your site to our site for
the
purpose of making such referrals. Subject to and in accordance with the terms
of
this Agreement, we have agreed to pay you referral fees as further described
herein and to grant you a license to provide links from your site to our
site.
NOW,
THEREFORE, in consideration of the covenants, promises and representations
set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1.
Referrals.
(a)
Subject
to the terms and conditions of this Agreement, you may from time to time refer
potential customers (each, a “Proposed Lead”) to us. You agree that you shall
refer potential customers interested in receiving business consulting services
exclusively to us and to no other person. You acknowledge that we may enter
into
referral agreements or other similar arrangements with other parties and that
you shall have no rights under such agreements or to any fees for customers
referred to us by others or identified by us. You shall give to us written
notice of Proposed Leads.
(b)
We
in our
sole discretion, shall have the option to enter into, or decline to enter into,
an agreement with any Proposed Lead. In the event we decline, for any reason,
to
enter into an agreement with any Proposed Lead, we shall have no obligation
to
you under this Agreement or otherwise with respect to such Proposed
Lead.
(c)
If
(i)
such Proposed Lead has: (1) not previously entered into an agreement with us;
(2) not previously been referred or introduced to us by any other person; and
(3) not already be or have been our customer; and (ii) we enter into an
agreement with any such Proposed Lead, upon such terms and conditions acceptable
solely to us and such Proposed Lead, within sixty (60) days of such Proposed
Lead being referred to us by you, such Proposed Lead shall be considered a
“Referred Customer” for purposes of this Agreement and we shall pay a fee to you
as set forth below in Section 3.
2.
Links
on Your Site.
(a)
Links.
We
hereby grant you a revocable, non-exclusive, worldwide, royalty-free license
for
the duration of the term of this Agreement, solely for purposes of facilitating
referrals from your site to our site, to provide on your site one or more of
the
following types of links to our site: (1) a general link on your site to the
home page of our site (a “General Link”); and (2) a link on your site that will
link to any particular page on our site (an “Any Page Link”, and together with
the General Link, a “Link”). During the term of this Agreement, you shall at all
times provide a General Link on the e-commerce section of your site.
(b)
Consent
to Information.
You
acknowledge that, by placing any of the above Links within your site, we may
receive information from or about visitors to your site or communications
between your site and those visitors. You hereby unconditionally consent to
and
authorize our access to, receipt, storage, use, and disclosure of any and all
such information, consistent with the policies and procedures set forth in
the
Privacy Notice on our site, as modified from time to time.
(c)
Right
to Intellectual Property.
Except
for the license granted under this Section 2, you do not obtain any rights
under
this Agreement in any intellectual property, including, without limitation,
any
intellectual property with respect to the Links, link formats, technical
specifications, guidelines or graphical artwork, our services, or with respect
to the our site’s domain name.
(d)
Site
Monitoring.
You
also acknowledge that we may monitor your site for the purpose of ensuring
the
quality and reliability of our Links on your site (for example, to detect links
that are broken or non-functional, links to services otherwise unavailable,
etc.). Therefore, you agree that we may take such actions and that you will
not
seek to block or otherwise interfere with such monitoring (and that we may
use
technical means to overcome any methods used on your site to block or interfere
with such monitoring).
(e)
Further
Limitations.
Further, you acknowledge and agree that you will: (1) not display on your site
any links or other advertisements of any other person or entity that competes
with us; (2) use any data, images, text, or other information obtained by you
from us or our site in connection with this Agreement ("Content") only in a
lawful manner and only in accordance with the terms of this Agreement; (3)
not
modify or alter any Content that consists of a graphic image, other than to
resize it; (4) not edit any Content that consists of text, other than to shorten
its length; (5) not sell, redistribute, sublicense or transfer any Content;
(6)
not use any Content in a manner intended to send sales to any site other than
our site; and (7) promptly delete any Content that is no longer displayed on
our
site or that we notify you is no longer available for your use.
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3.
Referral
Fees.
(a)
We
will
pay you a referral fee on any Proposed Lead that becomes a Referred Customer,
which will be equal to fifty percent (50%) of Qualifying Revenues (hereafter
defined). “Qualifying Revenues" mean the cash actually received by us from sales
of our services to Referred Customers, excluding items such as taxes,
disbursements to third parties, write offs, subsequently credited charges,
special promotional discounts, discounts, refunds, charge-backs, and fraudulent
charges.
(b)
We
will
pay you referral fees on a quarterly basis. Approximately 30 days following
the
end of each calendar quarter, we will send you a check for the referral fees
earned. Notwithstanding the foregoing, we will accrue and withhold referral
fees
until the total amount due is at least five hundred and 00/100 ($500.00)
dollars.
(c)
You
agree
that payment of the referral fee provided herein shall be the sole, exclusive,
and final compensation due to you with respect to the referral of a Referred
Customer.
4.
Policies
and Pricing.
Referred Customers who retain our services as described in this Agreement will
be deemed to be our customers. Accordingly, all of our rules, policies, and
operating procedures will apply to those customers. We may change our policies
and operating procedures at any time. For example, we will determine the fees
to
be charged for services sold under this Agreement in accordance with our own
pricing policies. Notwithstanding the foregoing, we will provide to Referred
Customers a ten percent (10%) discount on our fees charged to Referred
Customers.
5.
Limited
License.
We
grant you a nonexclusive, revocable right to use graphic images and text for
which we grant express permission, solely for the purpose of assisting in making
referrals as described herein. You may not modify the graphic images or text
in
any way. We reserve all of our rights in the graphic images and text, any other
images, our trade names and trademarks, and all other intellectual property
rights. You agree to follow any trademark guidelines that we may adopt, as
those
guidelines may change from time to time. We may revoke your license at any
time
by giving you written notice.
6.
Responsibility
for Your Site.
You
will be solely responsible for the development, operation, and maintenance
of
your site and for all materials that appear on your site. For example, you
will
be solely responsible for: (a) the technical operation of your site and all
related equipment; (b) creating and posting Links; (c) the accuracy and
appropriateness of materials posted on your site; (d) ensuring that materials
posted on your site do not violate or infringe upon the rights of any third
party (including, for example, copyrights, trademarks, privacy, or other
personal or proprietary rights); (e) ensuring that materials posted on your
site
are not libelous or otherwise illegal; (f) ensuring that your site accurately
and adequately discloses, either through a privacy policy or otherwise, how
you
collect, use, store, and disclose data collected from visitors, including,
where
applicable, that third parties (including advertisers) may serve content and/or
advertisements and collect information directly from visitors and may place
or
recognize cookies on visitors' browsers. We disclaim all liability for these
matters. Further, you will indemnify and hold us harmless from all claims,
damages, and expenses (including, without limitation, attorneys' fees) relating
to the development, operation, maintenance, and contents of your
site.
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7.
Compliance
with Laws.
You
agree that, during the term of this Agreement, you will comply with all laws,
ordinances, rules, regulations, orders, licenses, permits, judgments, decisions
or other requirements of any governmental authority that has jurisdiction over
you, whether those laws, etc. are now in effect or later come into effect during
the term. Without limiting the foregoing obligation, you agree that you will
comply with all applicable laws (federal, state or otherwise) that govern
marketing email, including without limitation, the CAN-SPAM Act of 2003 and
all
other anti-spam laws.
8.
Term
of the Agreement.
The
term of this Agreement will be for a three (3) year period, commencing as of
the
date hereof and continuing up to and including May 30, 2009. Either you or
we
may terminate this Agreement at any time, with or without cause, by giving
the
other party sixty (60) days’ prior written notice of termination. We may
terminate this Agreement immediately upon any breach of this Agreement by you.
Upon the termination of this Agreement for any reason, you will immediately
cease use of, and remove from your site, all links to our site, and all of
our
trademarks, trade dress, and logos, and all other materials provided by or
on
behalf of us to you pursuant hereto. You are eligible to earn referral fees
only
on Referred Customers that retain our services during the term of this
Agreement.
9.
Relationship
of Parties.
You and
we are independent contractors, and nothing in this Agreement will create any
partnership, joint venture, agency, franchise, sales representative, or
employment relationship between the parties. You will have no authority to
make
or accept any offers or representations on our behalf. You will not make any
statement, whether on your site or otherwise, that reasonably would contradict
anything in this Section.
10.
Limitation
of Liability; Indemnification.
(a)
We
will
not be liable for indirect, special, or consequential damages (or any loss
of
revenue, profits, or data) arising in connection with this Agreement, even
if we
have been advised of the possibility of such damages. Further, our aggregate
liability arising with respect to this Agreement will not exceed the total
referral fees paid or payable to you under this Agreement.
(b)
You
shall
indemnify and hold harmless us and our officers, directors, owners, agents
and
employees, from and against any and all claims, losses, actions, damages,
expenses and all other liabilities, including but not limited to reasonable
attorneys’ fees and costs, brought or imposed against us by you, your employees
or by any other parties, arising out of or resulting from the acts or omissions
of you, your agents, employees or contractors.
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11.
Disclaimers.
We make
no express or implied warranties or representations with respect to this
Agreement or any services sold pursuant hereto (including, without limitation,
warranties of fitness, merchantability, non-infringement, or any implied
warranties arising out of a course of performance, dealing, or trade usage).
In
addition, we make no representation that the operation of our site will be
uninterrupted or error-free, and we will not be liable for the consequences
of
any interruptions or errors.
12.
Independent
Investigation.
YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND
CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY)
SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN
THIS
AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB
SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF AGREEING TO THIS
AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT
OTHER THAN AS SET FORTH IN THIS AGREEMENT.
13.
Miscellaneous.
This
Agreement will be governed by the laws of the United States and the state of
New
York, without reference to rules governing choice of laws. The parties hereby
irrevocably consent to the in personam jurisdiction of the state or federal
courts located in the County of New York, New York, in connection with any
action or proceeding arising out of or relating to this Agreement or the
transactions and the relationships established thereunder. This Agreement sets
forth the entire agreement and understanding of the parties in respect of the
transactions contemplated hereby and supersedes all prior and contemporaneous
agreements, arrangements and understandings of the parties relating to the
subject matter hereof. This Agreement may be amended, modified, superseded
or
cancelled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties hereto. You may not assign this Agreement, by operation of law or
otherwise, without our prior written consent, and any such attempted assignment
shall be null and void and of no force or effect; subject to the foregoing
restriction, this Agreement will be binding on, inure to the benefit of, and
be
enforceable against the parties and their respective successors and assigns.
Our
failure to enforce your strict performance of any provision of this Agreement
will not constitute a waiver of our right to subsequently enforce such provision
or any other provision of this Agreement.
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IN
WITNESS WHEREOF, the parties have duly executed this Business Strategic
Agreement as of the date first above written.
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OFFLINE
CONSULTING, INC.
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| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
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Name:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title: President
and Chief Executive Officer
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▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
INC.
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| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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Title:
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