Effective February 14, 2013
Yodle, Inc. (“Yodle”) designs, develops and markets online advertising solutions and internet-services for businesses. Yodle has created a customer Referral Program to reward any person who recommends Yodle’s services to third parties, if such recommendation results in Yodle contracting with such third party as a new customer. By completing all of the required information fields in the Referral Program Sign Up Form (the “Sign Up Form”) , checking the box to agree to these Referral Program Terns and Conditions (the “Terms” and together with the Sign Up Form, the “Agreement”) and then clicking the “Send” button, you agree to be bound by this Agreement. This Agreement will not become binding upon Yodle until Yodle issues you a Referral Partner ID number, as described below. You are referred to as “Referral Partner” for purposes of this Agreement.
1. Referral Program:
1.1 Once Referral Partner accepts this Agreement, Yodle will send to Referral Partner a confirmatory email. Referral Partner MUST RESPOND to Yodle’s confirmatory email in order to complete the application process. After Yodle receives Referral Partner’s response email, Yodle will send another email to Referral Partner containing an identification number unique to Referral Partner (“Referral Partner ID”). The Effective Date of this Agreement is the date on which Yodle sends the Referral Partner ID to Referral Partner and this Agreement shall then continue in effect until terminated as provided herein (“Term”).
1.2 A “Referral” occurs when Yodle accepts a contract to provide its services to a customer (each, a “Referred Customer”) that provides Referral Partner’s Referral Partner ID to Yodle’s sales representative responsible for receiving such customer’s contract at or prior to the time the customer enters into such contract, and agrees to pay a monthly recurring fee of at least $99 for the Yodle services covered by the contract. Notwithstanding the foregoing, a Referred Customer shall not include any customer whose contact information is already within Yodle’s customer and potential customer database(s) and who has been in contact with a Yodle representative at any time during the 12 months prior to the date of the Referral. Yodle, in its sole and absolute discretion, determines whether and when a Referral has occurred.
1.3 Yodle will pay Referral Partner a one-time fee of (a) $50 for each Referral with a monthly recurring fee of at least $99 but not more than $398, (b) $100 for each Referral with a monthly recurring fee of at least $399 but not more than $749 and (c) $200 for each Referral with a monthly recurring fee of at least $750 (each, a “Referral Fee”).
1.4 Payments of Referral Fees to Referral Partner will be tallied and processed at the end of each month and paid within 45 days after the end of the applicable month. If Referral Partner is an existing customer of Yodle, Referral Partner will receive payment of the Referral Fees in the form of a credit on Referral Partner’s account, unless Referral Partner notifies Yodle in writing that Referral Partner desires payment by check. If Referral Partner so notifies Yodle, the payment of Referral Fees shall be made by check for the month beginning immediately after the month in which the notice is received. If Referral Partner is not a Yodle customer, Referral Partner will receive payment of Referral Fees by check. All checks will be sent by regular mail.
1.5 As incentive to the Referred Customer to participate in this Referral Program, Yodle will provide $50 of Yodle Media Credit to each Referred Customer that purchases a service that includes paid search marketing services. “Yodle Media Credit” is a credit that will be applied to the Referred Customer’s Yodle account balance that is used to advertise such Referred Customer’s business through the Yodle platform.
1.6 Referral Partner acknowledges and agrees that Referral Partner’s level of earnings under this Agreement are a direct result of Referral Partner’s own efforts and that Yodle does not guarantee that Referral Partner will earn any payments under this Agreement.
2.1 Referral Partner agrees and acknowledges that no payment of any kind, other than the Referral Fees as provided in this Agreement, is due from Yodle to Referral Partner as a result of Referral Partner making Referrals under this Agreement. Referral Partner shall not charge any Referred Customer any fees, costs or charges of any kind on behalf of Yodle nor accept any payment of any kind on behalf of Yodle. Nothing in this Agreement is intended to prohibit Referral Partner from providing services on Referral Partner’s own behalf to any Referred Customer.
2.2 Nothing in this Agreement shall operate to create an employment relationship of any kind between Referral Partner and Yodle. If any court or agency construes this Agreement to have created an employment relationship between Referral Partner and Yodle, then this Agreement shall have no force and effect, and shall be null and void, beginning on the date on which such employment relationship is deemed to have taken effect. Referral Partner represents and warrants that Referral Partner is not currently an employee of Yodle and that if Referral Partner becomes an employee of Yodle after the Effective Date, this Agreement shall immediately terminate without the need for any notice upon the date such employment begins.
2.3 Referral Partner represents and warrants that Referral Partner is not an agent of Yodle and has no authority to make any representations to any third party on behalf of Yodle, nor any right or authority to bind Yodle to any action or agreement whatsoever. Referral Partner represents, warrants and covenants that Referral Partner shall not make any misrepresentations, including by omission, regarding Yodle or the services that Yodle provides, in any manner whatsoever.
2.4 Referral Partner represents and warrants that Referral Partner is not a member of the immediate family of any Yodle employee within Yodle’s Sales Department. For this purpose, “immediate family” includes parents, spouses, children, siblings, grandparents and grandchildren.
3. Termination. This Agreement may be terminated by either party upon 5 days written notice to the other party. In addition, this Agreement will terminate immediately and automatically (i) upon any default by Referral Partner under this Agreement; or (ii) as set forth in Section 2.2 above. The following provisions shall survive the termination of this Agreement: Paragraphs 2, 4-10, and this sentence.
4. Non-Solicitation and Non-Competition. Referral Partner acknowledges the character of Yodle’s business and the substantial amount of time, money, and effort that Yodle has spent and will spend in building relationships with customers and recruiting competent employees and service providers. Referral Partner agrees that, during the Term and for a period of one year thereafter, Referral Partner will not (i) solicit, hire or engage, or actively assist any other person or entity which competes with Yodle in soliciting, hiring or engaging, any consultant, manager, executive, or any other person who is on the Effective Date or at any time during the Term employed or engaged by Yodle as an employee or service provider; and (ii) compete with Yodle, directly or indirectly, including as a consultant or an advisor, during the Term.
5. Assignment. This Agreement is personal to Referral Partner and any assignment made by Referral Partner of any rights or obligations hereunder shall be null and void. Yodle shall have the unrestricted right to assign this Agreement, or any rights and obligations hereunder, without consent or notice to Referral Partner.
6. Call Recording And Monitoring. For quality assurance, Yodle records and/or monitors calls between Referral Partner and Yodle agents, employees and/or its affiliates (the “Service Calls”). By this Agreement, Referral Partner consents to any and all recording and monitoring of Service Calls performed by Yodle or its agents, employees and/or its affiliates, and Referral Partner acknowledges that it is responsible for notifying and obtaining consent to recording and monitoring from all of its agents (including employees and independent contractors) who may be recorded or monitored in a Service Call (the “Recorded Persons”). It is Referral Partner’s sole responsibility to provide and/or obtain, and Referral Partner covenants that it will provide and/or obtain, all notices, consents, and permissions relating to Recorded Persons as may be required by applicable laws and regulations.
7. Indemnification. Referral Partner shall at all times during the Term and thereafter, indemnify and hold harmless Yodle and its directors, officers, employees, agents, and affiliates, against all claims, proceedings, demands, costs, damages, and liabilities of any kind whatsoever, including legal expenses and reasonable attorneys’ fees, arising out of, connected with, resulting from, or sustained as a result of Referral Partner’s breach of this Agreement.
8. Limitation of Liability. IN NO EVENT SHALL YODLE BE LIABLE TO REFERRAL PARTNER (NOR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM REFERRAL PARTNER’S RIGHTS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING COST OF COVER, LOST REVENUES OR PROFITS OR LOSS OF BUSINESS OR DATA, REGARDLESS OF WHETHER YODLE WAS ADVISED, SHAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES. YODLE’S LIABILITY TO REFERRAL PARTNER FOR DAMAGES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT WHICH YODLE HAS PAID TO REFERRAL PARTNER IN THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. THIS LIMITATION OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
9. General. This Agreement (a) is governed by the laws of the State of New York, excluding its conflict of laws principles, (b) may be amended only (i) by Yodle e-mailing revised terms and conditions to Referral Partner (and Referral Partner shall then have the right to terminate the then modified Agreement immediately upon written notice to Yodle) or (ii) in a writing signed by both parties and (c) constitutes the complete and entire expression of the agreement between the parties, and supersedes any and all other representations, warranties and agreements, whether written or oral, with respect to the subject matter hereof. The exclusive venue for any dispute between Yodle and Referral Partner shall be New York County, New York, and Referral Partner hereby waives any jurisdictional, venue or inconvenient forum objections thereto. YODLE AND REFERRAL PARTNER EXPRESSLY WAIVE ANY RIGHT TO A JURY TRIAL. Prior to initiating any legal action, the initiating party shall give the other party 60 days written notice of its intent to file an action. Yodle will provide such notice by e-mail to Referral Partner’s e-mail address on file with Yodle, and Referral Partner must provide such notice by e-mail to firstname.lastname@example.org. During such notice period, the parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever. Failing such amicable settlement and expiration of the notice period, any controversy, claim, or dispute shall finally be settled in a court of competent jurisdiction as set forth herein. These terms shall be severable and construed to the extent of their enforceability in light of the parties’ mutual intent. Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section. Referral Partner expressly agrees that any varying or additional terms contained in any purchase order or any other written notification or document issued by Referral Partner shall be of no effect and may be accepted for administrative convenience only. Referral Partner and Yodle agreed and intend that there are no third party beneficiaries to this Agreement.
10. Electronic Contract. This Agreement is an electronic contract. Referral Partner (or its authorized agent) indicates acceptance of this Agreement by checking the box to agree to the Terms and then clicking the “SEND” button. This action creates an electronic signature that has the same legal force and effect as a handwritten signature on a written contract under any applicable law or regulation, and is equally binding. By clicking the “SEND” button, Referral Partner (or its authorized agent) acknowledges reading and accepting this Agreement and represents, warrants and agrees that Referral Partner (or its authorized agent) has the power, authority and legal right to enter into this Agreement on behalf of Referral Partner.
By: /Court Cunningham/