Terms and Conditions
In consideration of the promises, consideration, warranties and representations stated herein, the exchange and receipt of which is hereby acknowledged, the parties agree as follows: I. DEFINITION OF SERVICE and PAYMENT
A. MARKETER agrees to market the products and services offered by Lexington Law Firm ("Lexington Law") at the website lexingtonlaw.com ("Lexington Services") and to seek to accomplish the submission of completed Lexington Services client applications ("completed applications).
B. For purposes of this Agreement, a "completed Acquisition" consists of (i) a customer who has completed an application for Lexington Law credit repair services with each of the following fields completed: first name, last name, address, city, state, zip code, email address, telephone number, (ii) the e-signature and power of attorney box at the end of the application is "checked," and (iii) the payment portion of the application is completed with either a valid credit card or bank account information. (iv) The client has not canceled the service prior to the initial payment being made.
C. For purposes of this Agreement, a "Lead" consists of (i) an application for Lexington Law credit repair services with each of the following fields completed: first name, last name, address, city, state, zip code, email address, and two telephone numbers.
D. Spherous agrees to pay MARKETER for a completed acquisition or completed lead form. The amounts paid by Spherous to MARKETER are exclusive of, and MARKETER will pay, all sales, value-added, use or other governmental fees and charges, except for taxes based on Spherous' net income.
II. COMPLETED ACQUISITION A completed acquisition shall be defined as an application for credit report repair service with Lexington Law that includes the following:
o Resident of the U.S.
o Must be 18 years of age or older
o All information in all sign up pages of the Lexington Law application must be complete and accurate and electronically submitted to Lexington Law.
o Must have paid the initial case set up fee.
III. AFFILIATE TERMS AND CONDITIONS MARKETER will agree to and will require all of its affiliates to agree to the Spherous, LLC affiliate terms and conditions as outlined in Exhibit A.
IV. BILLING MARKETER will be paid monthly by the 20th day of the month after the first completed applications are delivered to Spherous. Each billing cycle shall include all responses sent for the previous month.
V. CONFIDENTIAL INFORMATION
. The term "Confidential Information" will mean any confidential, nonpublic or proprietary information concerning Spherous' products and services, including without limitation: information concerning Spherous' financial affairs, partnerships, marketing plans or strategies, current or future business opportunities, current or future products, technology, websites, computer or other programs, customer or contact lists, relationships with third-party companies, reports, trade secrets, ideas or any other information in which MARKETER should reasonably know is confidential or proprietary.
A. MARKETER, acknowledges and agrees that any Confidential Information received from Spherous during the course of this Agreement is a valuable trade secret, constituting the confidential and proprietary property of Spherous. Spherous has taken steps that are reasonable under the circumstances to protect the confidentiality of such information. Such information derives Client economic value from not generally being known to and not readily being ascertainable by others.
B. MARKETER further agrees that all Confidential Information and all documents that contain, reflect or are generated from Confidential Information are the sole and exclusive property of Spherous. MARKETER covenants and agrees that they will not disclose Confidential Information to any third party, copy, use or modify Confidential Information received from Spherous for any purpose not authorized by Spherous. This covenant shall be enforceable during the term of this Agreement and shall continue to remain enforceable after the termination of this contract.
C. Non-Use and Non-Disclosure. MARKETER will (a) treat as confidential all Confidential Information and stringently protect its confidentiality, (b) not disclose such Confidential Information to any third Party, except on a "need to know" basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section V., and (c) will not use such Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. MARKETER may disclose the other Party's Confidential Information if required by law so long as Spherous is given prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting such information from public disclosure.
D. Confidentiality of Agreement. MARKETER will not disclose the terms of this Agreement to any third party without the consent of Spherous, except as required by applicable laws.
VI. TERM AND TERMINATION
. This Agreement starts on the Effective Date and continues for one year therefrom. It then renews in one year increments unless either party gives the other written notice to the contrary no less than 30 days before the beginning of an annual renewal period.
A. Either party may terminate this Agreement with 5-business-day written notice with or without cause.
B. Upon termination of this Agreement, MARKETER will immediately cease to use all Lexington Law's Trademarks and any listing by MARKETER of Lexington Law's name in any Internet directory, public record or elsewhere, will be removed by MARKETER as soon as possible, but in any event not later than the subsequent issue of such publication. VII Proprietary Rights and Notices
C. Proprietary Rights. Title to and ownership of all copies of Spherous or Lexington Law materials provided to MARKETER under this Agreement, whether in machine-readable or printed form, and including, without limitation, derivative works, compilations, or collective works thereof and all related technical know-how and all rights therein (including without limitation rights in patents, patents pending, copyrights, and trade secrets applicable thereto), are and will remain the exclusive property of Spherous and Lexington Law. MARKETER will not act to jeopardize, limit, or interfere in any manner with such ownership. MARKETER will have only those rights in or to the Spherous and Lexington Law materials, information and documentation granted to it pursuant to this Agreement.
D. Lexington Law Trademarks. Subject to the provisions of this Section VII., during the term of this Agreement, MARKETER will have the right to advertise the Lexington Law Products and Services with Lexington Law's trademarks, trade names, service marks, and logos ("Lexington Law's Trademarks"), subject to Spherous' prior inspection and written approval. MARKETER will fully comply with all Spherous guidelines and directions concerning the use of Lexington Law's Trademarks, which shall be made available upon request.
E. Use of Lexington Law's Trademarks. Except as set forth in this Section VII., nothing contained in this Agreement will grant or will be deemed to grant to MARKETER any right, title, or interest in or to Lexington Law's Trademarks. All uses of Lexington Law's Trademarks will inure solely to Spherous or to Lexington Law and MARKETER will obtain no rights with respect to any of Lexington Law's Trademarks, other than as expressly set forth in this Agreement. At no time during or after the term of this Agreement will MARKETER challenge or assist others to challenge Lexington Law's Trademarks or the registration thereof, or attempt to register any of Lexington Law's Trademarks or marks or trade names that are confusingly similar to those of Lexington Law.
VII. INTELECTUAL PROPERTY WARRANTIES Each party represents and warrants to the other that no intellectual property used to perform the Services will infringe any third-party patent, copyright, trade secret or other proprietary right. Each party also represents and warrants that it is not currently bound by any other employment or agreement, restriction or obligation which in any way interferes or is inconsistent with the Services to be furnished under this Agreement. Neither party will assume any such obligations or restrictions while this Agreement remains in force.
VIII. WARRANTY DISCLAIMER Spherous makes no warranty in connection with the subject matter of this agreement and hereby disclaims any and all implied warranties, including warranties of merchantability and fitness for a particular purpose.
IX. INDEMNIFICATION; LIMITATION OF LIABILITY
. Indemnification. The Marketer will defend, indemnify and hold harmless the other party from all damages, expenses, costs (including reasonable attorneys' fees) and other liabilities arising from the reckless, willful or negligent acts or omissions of the indemnifying party, its employees or agents in connection with its obligations under this Agreement.
A. Limitation of Liability. The Marketer will be liable to Lexington Law Firm for any special, indirect, exemplary, punitive or consequential damages (for example, lost profits), even if the parties know about the possibility of these damages.
B. Time. No action will be brought against Spherous more than 12 months after the cause of action first arises.
X. DISPUTE RESOLUTION AND GOVERNING LAW
. Governing Law. This Agreement is governed by Utah law without reference to its conflict-of-laws principles and will be deemed to have been entered into and wholly performed in Salt Lake City, Utah
A. Dispute Resolution and Venue. In the event of any dispute, controversy or claim (collectively "dispute") arising out of or relating to this Agreement, the parties shall meet and attempt in good faith to satisfactorily resolve the dispute. Any dispute not so resolved shall be resolved exclusively in the federal or state courts located in Salt Lake City, Utah. The parties waive any right to a jury trial and irrevocably consent to the personal jurisdiction and exclusive venue of those courts.
B. Attorneys' Fees and Costs. If any litigation or arbitration proceeding is commenced in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees (including allocated costs for in-house legal services), costs and necessary disbursements incurred in such action or proceeding, as determined by the court or arbitrator.
C. Equitable Relief. Any breach of a party's obligations with respect to intellectual property or confidentiality rights will cause irreparable injury for which there are no adequate remedies at law. The aggrieved party will be entitled to seek equitable relief in addition to all other remedies and money damages that may be available, without the posting of bond or other security, or if required, then the minimum bond or security so required.
XI. GENERAL PROVISIONS
XII. Amendments. Except as otherwise provided in this Agreement, any amendment or modification to this Agreement must be in writing signed by both parties.
XIII. Assignment. This Agreement will be binding upon and will inure to the benefit of each party and its successors and assigns; provided that, neither party will assign or transfer its rights under this Agreement by operation of law or otherwise, without the other party's prior written consent which will not be unreasonably withheld, except that MARKETER may assign its rights and obligations to its parent, subsidiary or affiliate as long as the assignment does not result in a substantial change to the Program or otherwise cause a breach of this Agreement.
XIV. Waiver. The waiver or failure of either party to exercise any right provided for in this Agreement will not be deemed a waiver of any further or future right under this Agreement.
XV. Sever ability. The invalidity or unenforceability of any term or provision in this Agreement will not affect the validity or enforceability of any other term or provision in this Agreement.
XVI. Entire Agreement. This Agreement is the final, full and exclusive statement of the agreement between Spherous and MARKETER with respect to the subject matter set forth here. It supersedes all prior agreements and inducements relating to the subject of this Agreement. No promise or agreement made at or after the execution of this Agreement is binding unless it is written and signed by both parties. Section headings are for convenience of reference only, will not be construed to limit or extend the meaning of any provision and will not be relevant in interpreting this Agreement. As used in this Agreement, the term "including" means by way of example and not limitation.
XVII. Counterpart and Facsimile. This Agreement may be executed in counterparts and, when fully executed, will be deemed effective on the date first written below without regard to the dates or times on when actually signed. The executed Agreement may be delivered by electronic facsimile transmission.
XVIII. Intentional Risk Allocation. The provisions of this Agreement reflect an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. This voluntary allocation was a material part of the bargain between the parties and the economic and other terms were negotiated and agreed to by the parties in reliance on that allocation.
XIX. Independent Contractors. The parties are independent contractors. Under no circumstances will the employees of one party be deemed the employees of the other. This Agreement does not grant authority for either party to act for the other in an agency or other capacity, or to make commitments of any kind for the account of or on the behalf of the other.
Exhibit A Spherous, LLC "The exclusive marketing agency for Lexingtonlaw.com" Important Notice: Affiliates are prohibited from sending commercial e-mail or using downloadable applications to promote Lexingtonlaw.com without prior approval from Spherous. Affiliate Marketing Terms and Conditions Spherous, LLC ("Spherous") recognizes the power of various online marketing programs and welcomes the promotional efforts of its affiliates. Spherous affiliates are required to comply with the following terms and conditions. Violation of the terms and conditions will result in termination of affiliate status and forfeiture of commissions. These terms and conditions are in addition to, and do not change or amend in any way, the terms and conditions of the Commission Junction Publisher Service Agreement that Affiliate executed in relation to executing this Agreement. E-mail Guidelines Spherous prohibits affiliates from engaging in commercial e-mail marketing without pre approval. Affiliate email lists should reflect the guidelines established by the IAB's ethical email guidelines. Spamming and/or unsolicited e-mail and indiscriminate advertising will not be tolerated. All marketing messaging must be approved by Spherous Media, LLC in advance of its commercial use and must comply with all federal and state Credit Repair laws and regulations. Website Guidelines Spherous provides its affiliates with approved creative for marketing purposes. Affiliates are prohibited from using any information found on the Lexingtonlaw.com website including textual content, graphics and pictures without prior approval from Spherous. Search Guidelines Spherous prohibits affiliates from link farming, page cloaking or other deceptive practices to manipulate the natural search rankings. As a general rule of thumb, the search engine and the end user should see the same content on your site. Paid Search Listings Guidelines Affiliates are prohibited from outbidding Lexington Law Firm on the search listing terms Lexington Law, Lexington Law Firm or any variation thereof. Affiliates are prohibited from portraying their website as the Lexington Law website. The titles and descriptions used for search listings must not be deceptive and must accurately reflect current Spherous promotions. VOIP/ HOT SWAP TRANSFERS All lists that are used to retain potential consumers, will be compliant pursuant to the national "Do Not Call Registry". This means that all lists will be "scrubbed", the term "scrubbed" is defined as, names that are located on the "Do Not Call Registry" will be immediately removed from all call list that are used to market credit report repair on behalf of Lexington Law Firm. Affiliates are prohibited from making any statement, give counsel or advise to any consumer which is untrue or misleading, or which upon the exercise of reasonable care should be known to be untrue or misleading. Affiliates are prohibited from making any statement or give advise or counsel to any consumer with the intended effect of which is to alter the consumer's identification, or identity for the purpose of concealing adverse information that is accurate and not obsolete from the consumer's credit history. Affiliates are prohibited from making or use any untrue or misleading representation of the services provided by Lexington Law Firm. Affiliates are prohibited from mentioning, or identifying themselves are partnered or affiliated with Lexington Law Firm. Affiliates are prohibited directly or indirectly in any practice or in the course of business to practice in any manner of communication which may constitute fraud, deception or misinformation in the attempt of sale or offer if credit report repair. Downloadable Application Policy Affiliates are prohibited from promoting the Lexington Law service via downloadable applications also know as spyware, parasiteware, adware or similar products or services without prior written permission. USING SOFTWARE THAT REDIRECTS TRAFFIC IS STRICTLY FORBIDDEN. 2600 South 533 West Ste. 300Salt Lake City, UT 84010(801) 397-2700F(801) 397-2704
