REFERRAL AGREEMENT
WHEREAS,
Bidawiz operates a referral community via the Site (as defined below)
that connects users of the Site with accounting and finance
professionals; and
WHEREAS, Wizard wishes
to advertise its services on the Site and pay Bidawiz a referral fee on
all business generated by Wizard through its advertisement on the Site,
all subject to and in accordance with terms and conditions of this
Agreement.
NOW
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Bidawiz and Wizard (each
a "Party" and collectively, the "Parties") agree as follows:
1.
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THE SITE.
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1.1.
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Description
of the Bidawiz Web Site. Bidawiz operates a website located at http://www.bidawiz.com (the "Site"). Users of the Site (the "Users") post
accounting and/or finance related questions on the Site. In accordance
with the terms of this Agreement, Wizard shall have the opportunity to
place an offer of service by responding to a User's question with
Wizard's credentials and proposed fee for answering such question. If
the User accepts Wizard's offer, Wizard agrees to provide an answer to
such question. The provision of such answers shall be referred to
herein as the "Services." Wizard acknowledges and agrees that Bidawiz
may modify the features and services available through the Site at any
time without notice to Wizard.
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1.2.
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Verification
of Ability to Provide Services. Wizard shall not be permitted to
provide the Services until receiving email notification from Bidawiz
notifying Wizard that he/she is authorized to provide the Services. On
or before the Effective Date, Wizard shall provide Bidawiz with the
following information in the format requested by Bidawiz: first and
last name, mailing address, email address, telephone number, fax
number, professional credentials, work experience, education, date of
birth, and any other information reasonably requested by Bidawiz
(collectively, the "Wizard Information"). Bidawiz may share all Wizard
Information with its third party service providers for the purpose of
verifying the Wizard Information and Wizard's ability to perform the
Services. Wizard agrees to execute all documents requested by Bidawiz
or such third party service provider in connection with such purpose.
The determination of whether Wizard is authorized to perform the
Services shall be made in Bidawiz's sole discretion. Wizard shall
promptly notify Bidawiz of any and all changes to the Wizard
Information. Bidawiz may change such determination at any time based
upon any change in the Wizard Information.
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1.3.
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Restrictions
on Wizard. Wizard shall not (i) communicate with Users via any means
other than the Site; (ii) communicate with Users regarding the referral
fee paid to Bidawiz by Wizard; (iii) communicate with other wizards
providing services via the Site or otherwise regarding the referral fee
paid to Bidawiz by Wizard or such other wizards; (iv) provide any
services or answers to Users that would cause Wizard or Bidawiz to be
in violation of any Law (as defined below); or (v) offer to or actually
provide Services to any User who is located in a state in which Wizard
is not licensed to provide professional accounting and/or financial
services.
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1.4.
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Additional Services. From time to time, Bidawiz may request that Wizard
provide services for Bidawiz, including, but not limited to, writing an
article to be posted on the Site, or participating in a video to be
aired on the Site. In the event that Bidawiz requests any such
services, Wizard agrees to negotiate in good faith a separate agreement
with Bidawiz covering such services.
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COMPENSATION
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2.1. |
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Referral
Fee. In consideration for the right to advertise its services on the
Site, Wizard agrees to pay Bidawiz a referral fee of [fifty percent
(50%) of the total fees that Wizard charges each User for whom Wizard
provides Services] (the "Referral Fee"). The Parties agree that Bidawiz
shall collect all fees from Users via the site and shall pass all such
fees to Wizard, minus all Referral Fees, in accordance with Section 2.2 Below. Bidawiz
may, in its sole discretion, provide Wizard with a bonus based on
feedback from Users regarding Wizard's services. The amount of such
performance bonus shall be in Bidawiz's sole discretion.
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2.2.
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Payment. On the 1st and 15th of each month during the term of this
Agreement, Bidawiz shall deposit all fees collected from Users via the
Site, minus all Referral Fees, into Wizard's Paypal account. It is
Wizard's sole responsibility to open and manage such Paypal account,
and to provide Bidawiz with the information necessary for Bidawiz to
make deposits to such account.
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3.
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TERM AND TERMINATION
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3.1.
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Term. The
term of this Agreement will begin on the Effective Date and continue in
force for an initial period of 1 year, unless and until terminated in
accordance with this Article 3. Upon expiration of the initial term,
this Agreement shall automatically renew for consecutive one (1) year
terms, unless either party notifies the other party of its intent not
to renew this Agreement at least thirty (30) days prior to the
expiration of the then-current term.
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3.2.
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Termination
of Agreement. Bidawiz may terminate this Agreement at any time, for any
or no reason, immediately upon notice to Wizard. This Agreement is
terminable immediately upon notice by a Party if the other Party
commits a material breach of this Agreement and fails to cure such
breach within fifteen (15) days from notice of such breach by the other
Party.
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3.3.
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Return
of Confidential Information. Upon termination or expiration of this
Agreement for any reason, and at the Disclosing Party's (as defined
below) request at any other times during the term hereof, the Receiving
Party (as defined below) shall return to the Disclosing Party, or
provide the Disclosing Party with written certification of the
destruction of, all Confidential Information (as defined below),
including all copies thereof, within the Receiving Party's possession
or control.
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3.4.
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Survival. The provisions of Article 4 ("Confidentiality"), Article 6
("Indemnification"), Article 8 ("Miscellaneous Provisions") and this
Section 3.4 shall survive any termination or expiration of this
Agreement.
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4.
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CONFIDENTIALITY
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4.1.
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Definition
of Confidential Information. For the purposes of this Agreement, "Confidential Information" means any confidential or other proprietary
information that is disclosed by or on behalf of either Party (the "Disclosing Party") to the other Party (the "Receiving Party"), whether
disclosed orally or in writing, whether disclosed before or after the
Effective Date, and whether or not marked or otherwise designated as
confidential, including, without limitation, the terms and conditions
of this Agreement, information relating to the Disclosing Party's
customers, potential customers, suppliers, financial and business
information, technological information, specifications, business and
product plans, the terms and conditions of this Agreement, and any
other non-public information disclosed. For the avoidance of doubt,
Bidawiz's Confidential Information includes (i) all information
relating to, and all content available through, the Site, and (ii) all
information relating to the Users. Notwithstanding the foregoing,
Confidential Information does not include information which: (i) is or
becomes public knowledge without any action by, or involvement of, the
Receiving Party; (ii) is publicly disclosed by the Receiving Party with
the prior, written approval of the Disclosing Party; (iii) is
independently developed by the Receiving Party without use of or access
to Confidential Information; or (iv) is intentionally disclosed by the
Disclosing Party to a third party without restriction on disclosure.
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4.2.
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Restriction on Use and Disclosure. The Receiving Party agrees: (i) to
observe complete confidentiality with respect to, and not to disclose,
or permit any third party or entity access to, the Confidential
Information (or any portion thereof) without prior written permission
of the Disclosing Party; (ii) not to utilize, except as expressly
permitted under this Agreement, Confidential Information (or any
portion thereof); (iii) to ensure that its employees shall only be
given access to Confidential Information to the extent necessary for
such employees to perform their duties under this Agreement; and (iv)
to ensure that any of its employees who receive access to Confidential
Information are advised of the confidential and proprietary nature
thereof and are prohibited from copying, utilizing or disclosing
Confidential Information, except as required to perform any obligations
under this Agreement. The Receiving Party shall remain at all times
responsible for any breach of this Agreement by any of its employees.
The Disclosing Party retains all right, title and interest in and to
its Confidential Information, and the Receiving Party does not obtain
any rights to such Confidential Information except for the limited
right to use such information as expressly permitted herein. Without
limiting the foregoing, the Receiving Party agrees to employ, with
regard to the Confidential Information, procedures that are no less
restrictive than the procedures used by it to protect its own
confidential and proprietary information of similar sensitivity (and
that in no event are less restrictive than reasonable procedures). If
the Receiving Party is requested to disclose any of the Confidential
Information pursuant to any judicial or governmental order, the
Receiving Party will not disclose the Confidential Information without
first giving the Disclosing Party written notice of the request and
sufficient opportunity to contest the order. The Parties agree that
nothing in this Article 4 shall restrict Bidawiz from sharing the
Wizard Information with its third party service providers, as set forth
in Section 1.2 above.
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5.
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REPRESENTATIONS AND WARRANTIES.
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5.1.
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Mutual
Representation and Warranty. Each Party represents and warrants to the
other Party that this Agreement constitutes its valid and binding
obligation and is enforceable against it in accordance with the terms
of this Agreement.
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5.2.
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Representations and Warranties by Wizard. Wizard hereby represents and
warrants to Bidawiz that:
(a) Wizard is qualified to perform the Services and shall perform the
Services in a competent, professional, workman-like manner;
(b) all Wizard Information is accurate and complete;
(c) neither the Services nor Wizard' provision of the Services will
conflict with or violate any applicable federal, state or local law,
rule, regulations, ordinance, binding order of any court, agency or
other governmental authority, or the rules or regulations required of
professionals in Wizard's profession (collectively, "Laws");
(d) Wizard shall protect all information relating to Users in
accordance with all Laws;
(e) Wizard is located in the United States and holds valid licenses,
registrations, certifications and/or other requirements necessary to
perform the Services in accordance with all Laws; and
(f) Wizard shall at all times comply with the terms and conditions of
Bidawiz's Wizard Manual as defined in the hardcopy referral agreement.
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6.
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INDEMNIFICATION.
Wizard will indemnify, defend and hold harmless Bidawiz and its
affiliates and each of their respective officers, directors, members,
managers, employees, independent contractors and agents (each, an "Indemnitee") from and against any claim, suit or proceeding brought by
a third party (including, without limitation, any User) against an
Indemnitee to the extent that it is based on or arises from: (i) the
Services, (ii) breach by Wizard of any of the representations and
warranties or other obligations set forth herein, or (iii) the
negligent or willful misconduct of Wizard. Wizard shall pay all costs
incurred by (including reasonable attorneys' fees and disbursements)
and damages awarded against the Indemnitee. Bidawiz shall promptly
notify Wizard in writing of any claim, suit or proceeding for which
Wizard may have obligations under this Article 6; provided, however,
that any failure of Bidawiz to provide prompt written notice pursuant
to this Article 6 shall excuse Wizard only to the extent that it is
materially prejudiced thereby. Bidawiz shall reasonably cooperate with
Wizard with regard to the defense of any claim, proceeding, suit or
threatened suit. Wizard shall have full control of any such claim,
proceeding or suit and the authority to settle or otherwise dispose of
any suit or threatened suit. In no event, however, may Wizard agree to
any settlement of any claim, suit or proceeding for which it has agreed
to provide indemnification under this Agreement if such settlement
would impose any liability or obligation upon Bidawiz, without
Bidawiz's prior, written consent.
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7.
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MISCELLANEOUS PROVISIONS.
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7.1.
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Publicity.
Neither Party shall use the name or marks of the other Party for any
advertising or other purpose, except as expressly set forth herein,
without the prior written consent of such other Party.
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7.2.
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Relationship
Of The Parties. Each Party is an independent contractor of the other
Party. Nothing in this Agreement will constitute a partnership between
or joint venture by the Parties, or constitute either Party the agent
of the other. Other than the collection of fees pursuant to Section 2.1
above, Bidawiz does not have any involvement in interactions between
Wizard and any User. Bidawiz has the right, but not the obligation to,
edit, modify, filter, screen or otherwise monitor the content of the
questions, answers, profiles qualifications or comments between Wizard
and any User. Bidawiz cannot ensure that Wizard or a User will actually
complete a transaction. The Parties agree that no professional-client
relationship is created between Bidawiz and any User by formation of
this Agreement or provision of the Services by Wizard via the Site.
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7.3.
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Governing
Law. This Agreement, and any and all disputes arising out of or
relating to this Agreement, will be governed by and construed under the
laws of New York, without reference to its conflicts of law
principles.
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7.4.
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Assignment and Subcontracting. Wizard understands and acknowledges that
its rights and duties under this Agreement are personal to Wizard and
that Bidawiz has entered into this Agreement with Wizard in reliance
upon, among other things, the particular skills and abilities of
Wizard. Therefore, Wizard may not assign, subcontract or otherwise
transfer (including by operation of law) any of its rights or
obligations under this Agreement to any Person without the prior,
written consent of Bidawiz. Any assignment, subcontracting or other
transfer not in accordance with this Section will be null and void.
This Agreement is binding upon and will inure to the benefit of each
Party and their respective permitted successors or assigns.
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7.5.
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Notices.
All notices and other communications hereunder will be in writing and
will be deemed effective when delivered by hand or by facsimile
transmission, or upon receipt when mailed by registered or certified
mail (return receipt requested), postage prepaid, or by bonded
overnight courier, to the Parties at the addresses listed above (or at
such other address for a Party as shall be specified by written
notice).
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7.6.
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Unenforceable Provisions. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the
other provisions of this Agreement will remain in full force and
effect, and, if legally permitted, such offending provision shall be
replaced with an enforceable provision that as nearly as possible gives
effect to the Parties’ intent.
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7.7.
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Modification
and Waiver. No modification of or amendment to this Agreement will be
effective unless in writing signed by authorized representatives of
both Parties. No waiver of any rights is to be charged against any
Party unless such waiver is in writing signed by an authorized
representative of the Party so charged.
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7.8.
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Entire
Agreement. This Agreement sets forth the entire agreement and
understanding of the Parties relating to the subject matter hereof and
merges all discussions, representations, covenants, promises,
discussions, negotiations, and exchanges between them with respect
thereto.
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7.9.
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Counterparts.
This Agreement and any exhibit attached hereto may be executed in
multiple counterparts (which may be exchanged by facsimile), each of
which will be deemed an original and all of which together will
constitute one instrument.
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