recummend Business Partner Agreement

This Business Partner Agreement, along with the registration form (the "Registration Form"), constitute an agreement (the "Agreement") between RecUmmend, LLC ("RecUmmend") and the participant identified on the Registration Form ("Participant").

1. Payment : Participant will pay RecUmmend the Listing Fees (if any) associated with a Listing as specified on the Registration Form in accordance with the payment terms specified in such Registration Form. Participant will pay any Creative Service Fees mutually agreed upon by Participant and RecUmmend for any creative services provided by RecUmmend in relation to a Listing (including design or content development).  Fees paid after the due date will bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if lower). Participant will pay any taxes imposed on any fees. For purposes of this Agreement, "Listings" means any listing or promotional or informational content for Participant included in RecUmmend's online search service. RecUmmend may change any fees to be paid by Participant by providing thirty (30) days written notice (which may, in RecUmmend's discretion, be sent by email, mail or fax) to Participant. Participant may terminate this Agreement after an increase in fees by using the online cancellation form within ten (10) days after the date that Participant receives such written notice. Such termination will be effective as of the date that the new fees would have become effective.

1(A) Special Terms Regarding Enhanced Listing Services (an “Enhanced Listing” is any listing for which Participant pays a fee to RecUmmend).

(a) RecUmmend will provide a refund of Enhanced Listing fees only for the following reasons:

(i) A refund may be issued if RecUmmend, through no fault of Participant, fails to publish Participant's Enhanced Listing within 10 business days following the date Participant places the order for an Enhanced Listing and such Enhanced Listing remains unpublished as of the date Participant issues a cancellation to RecUmmend. (Note: Since RecUmmend has 10 business days to publish each Enhanced Listing, Participant may not cancel any unpublished Enhanced Listing during the first 10 business days following the date Participant places the order for an Enhanced Listing).

(ii) A refund may be issued if Participant mistakenly orders and pays for a duplicate Enhanced Listing and, upon prompt discovery by Participant, seeks to cancel and obtain a refund for the fees associated only with such duplicated Enhanced Listing(s). RecUmmend cannot provide a refund on the original Enhanced Listing. Likewise, RecUmmend cannot provide a refund for any duplicate Enhanced Listing(s) if Participant fails to cancel such duplicate Enhanced Listings(s) within thirty (30) days from the date Participant placed the order for such duplicative Enhanced Listings(s).

(b) Except for those instances covered under subsections (b)(i) or (b)(ii) above, RecUmmend cannot provide a refund for any other reason, even if Participant wants to cancel an Enhanced Listing immediately after placing an order. For example, RecUmmend cannot provide a refund if Participant (i) changes its mind about purchasing an Enhanced Listing; (ii) is displeased with the content, features or enhancements associated with an Enhanced Listing; (iii) makes a mistake in submitting content for an Enhanced Listing; or (iv) receives few or no inquiries or offers to purchase Participant's goods or services after ordering an Enhanced Listing. Likewise, RecUmmend cannot provide a refund if RecUmmend made mistakes with an Enhanced Listing’s content. In cases where such mistakes are made, RecUmmend will, of course, make appropriate corrections to the Enhanced Listing once Participant brings such mistakes to RecUmmend's attention.

(c) If Participant makes mistakes in submitting content for an Enhanced Listing, RecUmmend will assist Participant in making minor corrections to such Enhanced Listing. No charge will be assessed for such minor corrections unless Participant wishes to order additional Services or, in RecUmmend's reasonable judgment, such corrections amount to significant changes to Participant's current Enhanced Listing(s), in which cases additional charges will be assessed at RecUmmend's then-current rates. If Participant wishes to discontinue its Enhanced Listing(s) and revert to a less expensive or alternate Service, RecUmmend will reasonably accommodate such requests; provided, however, that RecUmmend cannot refund or reallocate any fees attributable to any such Enhanced Listing(s).

(d) For purposes of this Subsection 1A, a "business day" means a full 24 hour calendar day, occurring Monday through Friday, but excludes federally observed holidays and/or holidays observed by the state of California.

(e) Participant agrees that all cancellation requests contemplated or otherwise called for under this Subsection 1A must be submitted to and received by RecUmmend through Participant's use of the online cancellation form. Cancellation requests issued to RecUmmend under this Subsection 1A (including requests provided to RecUmmend's directors, officers, sales staff or customer support personnel) through any means other than the online cancellation form (e.g., email, voicemail, fax, overnight courier, U.S. mail, etc.) shall have no force and effect on RecUmmend or Participant under this Agreement or otherwise. Submission to RecUmmend of any non-conforming cancellation request(s) will not relieve Participant of its obligation to complete and submit an Enhanced Listing Cancellation Request Form.

2. Scheduling/Positioning/Right to Reject/No Resale: Though RecUmmend will consider positioning requests, the positioning and scheduling of Listings is at RecUmmend's discretion. Participant acknowledges that RecUmmend makes no guarantees with respect to usage statistics, levels of impressions, or readership or viewership levels for any Listings. RecUmmend reserves the right to edit, reject or cancel any Listing or position commitment at any time. In addition, RecUmmend may reject any URL link embedded in any Listing. Participant may not broker any listing or resell, assign or transfer any of its rights or obligations under this Agreement.

3. Creative Services/Ownership/License: If RecUmmend provides creative services in connection with the development of any of the Listings, then such services will be subject to RecUmmend's creative capacity and will be provided in accordance with reasonable professional standards, but otherwise on an "as-is" basis. Participant acknowledges that RecUmmend may obtain information relating to Participant from third party sources for inclusion in RecUmmend's online services in proximity to the Listings (the "Third Party Participant Information"), including, but not limited to, information regarding whether Participant is a member of the Better Business Bureau. RecUmmend will own all rights in all Third Party Participant Information and all materials and other content that is furnished by RecUmmend. Participant will not authorize the reproduction or use of any such material in any medium without RecUmmend's prior written consent. Participant hereby grants RecUmmend a non-exclusive, royalty-free, worldwide license to use or distribute, in any media for any purpose, any information that Participant provides to RecUmmend in the Listings or through RecUmmend's registration process (including, but not limited to, information provided by Participant on the Registration Form) (the "Participant Information"). Notwithstanding the foregoing, with respect to Confidential Participant Information, Participant grants RecUmmend a non-exclusive, royalty-free, worldwide license to use the Confidential Participant Information solely in connection with RecUmmend's performance of its obligations under this Agreement and the provision of, and billing for, the Listings. "Confidential Participant Information" means the following non-public information (if any) provided by Participant to RecUmmend: Participant's social security numbers, tax identification numbers, credit card numbers, bank account numbers and bank account routing information.

4. User Feedback: Participant acknowledges and agrees that users of RecUmmend's online services may be given the opportunity to provide reviews and/or feedback relating to Participant and its products or services; that some of such reviews and feedback may be positive, while other such reviews and feedback may be negative; that RecUmmend cannot and does not review all such reviews and feedback, nor does RecUmmend have any control over such reviews and feedback; and that under no circumstances shall RecUmmend be held responsible or liable for any claims or damages arising out of any reviews or feedback.  If Participant finds that certain user content is factually inaccurate, Participant may contact Recummend and RecUmmend may, at RecUmmend’s sole discretion, remove the content or request a user to revise the content.

5. Trademark License: Participant grants RecUmmend a non-exclusive, royalty-free license (with a right to sublicense) to use or distribute Participant's trademarks, service marks and logos (the "Participant Marks") in connection with the performance of RecUmmend's obligations under this Agreement. Should Participant find objectionable any use of the Participant Marks by RecUmmend, then Participant may revoke or suspend, with respect to the objectionable use, RecUmmend's rights to use the Participant Marks and RecUmmend will promptly cease using the applicable Participant Marks in the manner found objectionable by Participant (except as otherwise permitted by law).

6. Term/Termination: The term of this Agreement will begin on the date indicated in the Registration Form and, unless terminated earlier in accordance with this Agreement, will continue for 30 days, automatically renewing at the end of each month or such other period specified in the Registration Form. This Agreement will automatically renew for successive terms of the same duration as the initial term, unless either party notifies the other, in writing, of its decision not to renew at least thirty (30) days prior to the end of the then-current term. Notwithstanding anything to the contrary in this Agreement, RecUmmend may terminate this Agreement immediately upon a breach of this Agreement or Participant’s violation of RecUmmend’s Visitor Agreement available at www.recummend.com. Upon termination of this Agreement, all amounts due under this Agreement that accrued on or before the termination date will become immediately due and payable. Except as otherwise provided in Section 1, this Agreement is not cancelable by Participant.  RecUmmend also reserves the right (but assumes no obligation) to delete, move, or edit any Listings that RecUmmend considers unacceptable or inappropriate, whether for legal or other reasons.

7. Representations and Indemnification: Participant represents and warrants that the Listings, the Participant Marks, the Participant Information, the Participant Materials and all other materials provided by Participant (a) will not violate any applicable law, rule or regulation (including, but not limited to, any law relating to false or deceptive advertising), (b) will not be libelous and (c) will not infringe any right of any third party, including, but not limited to, any contractual right, copyright, trademark or trade secret right or any right of privacy or publicity. Participant will indemnify, defend and hold RecUmmend, its affiliates and the officers, directors, employees and representatives of each of these harmless against any and all claims, expenses, losses and costs of any kind (including reasonable attorneys' fees) incurred by them in connection with (x) any breach or alleged breach by Participant of this warranty or any other provision of this Agreement, (y) any Listings, Participant Materials, the Participant Information and/or Participant Marks, and/or (z) any actions of Participant. The person or entity entering this Agreement warrants that it is duly authorized and has the full power to bind Participant, and agrees to indemnify and hold RecUmmend, its affiliates and the officers, directors, employees and representatives of each of these, harmless from any and all claims, losses, damages and costs (including reasonable attorneys' fees) arising out of any breach of this warranty.

8. Provision of Listing Materials: Participant will, at Participant's expense, provide copy and other materials necessary for the Listings (the "Participant Materials") in accordance with RecUmmend's policies in effect from time to time. RecUmmend may dispose of any such materials unless acceptable prepaid return arrangements have previously been made. Participant is solely responsible for obtaining all necessary licenses for the use of the Participant Materials.

9. Marketing to RecUmmend Web Site Visitors: To the extent that Participant acquires consumer email addresses or other personally identifiable information ("Customer Information") from RecUmmend Web site visitors who respond to Listings or who otherwise contact Participant as a result of their use of RecUmmend's Web site, Participant agrees that: (a) Participant will not use such Customer Information to send or cause to be sent bulk unsolicited commercial email messages; (b) Participant will only use such information in compliance with all applicable laws and regulations, including, without limitation, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, 47 U.S.C. § 227, the Telemarketing Sales Rule, 16 C.F.R. pt 310 (2004), and all other laws and regulations governing email marketing and telemarketing; and (c) Participant will protect the privacy of the consumers who disclose Customer Information using measures no less robust than those described in RecUmmend's online privacy policy, available at RecUmmend.com, as it may be amended from time to time.

10. DISCLAIMER; LIMITATION OF LIABILITY: RECUMMEND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. RECUMMEND, ITS AFFILIATES AND THE OFFICERS DIRECTORS, EMPLOYEES AND REPRESENTATIVES OF ANY OF THESE (EACH A "COVERED PARTY") WILL NOT BE LIABLE TO PARTICIPANT FOR ANY LOSS, DAMAGE, OR EXPENSE CAUSED BY, OR ARISING OUT OF THE MANNER IN WHICH ANY SERVICES ARE PROVIDED, THE MANNER IN WHICH ANY LISTING OR OTHER MATERIAL RELATING TO PARTICIPANT IS DISPLAYED (INCLUDING, BUT NOT LIMITED TO, ANY ERRORS THAT MAY APPEARS IN ANY LISTING OR OTHER MATERIALS RELATING TO PARTICIPANT) OR ANY REVIEW OR FEEDBACK RELATING TO PARTICIPANT SUBMITTED BY ANY USER OF RECUMMEND'S SERVICES. IN NO EVENT WILL RECUMMEND OR ANY COVERED PARTY BE LIABLE TO PARTICIPANT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER RECUMMEND OR THE COVERED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF RECUMMEND AND THE COVERED PARTIES WILL BE LIMITED TO (I) THE AMOUNT PAID TO RECUMMEND BY PARTICIPANT UNDER THIS AGREEMENT WITH RESPECT TO THE LISTINGS OR SERVICES OUT OF WHICH THE CLAIM ARISES, OR (II) (IF APPLICABLE) THE DISPLAY OF THE RELEVANT LISTING AT A LATER TIME IN A COMPARABLE POSITION, AT RECUMMEND'S DISCRETION.

11. Use of Participant's Contact Information. Participant agrees that RecUmmend and its affiliates may use any contact addresses and numbers, including email addresses, telephone and fax numbers, provided to RecUmmend by Participant or otherwise used by Participant, to contact Participant for any customer service, business or marketing purpose.

12. Miscellaneous: The warranties, indemnification obligations, limitations of liability, and ownership rights set forth above will survive the termination of expiration of this Agreement. Should any provision of this Agreement be deemed unenforceable, such provision will be restated, in accordance with applicable law, to match most closely the intentions of the parties, and the remainder of this Agreement will remain in full force and effect. All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight courier or certified mail, postage prepaid, to the parties at their respective addresses set forth in the Registration Form. Notices will be deemed effective upon receipt or 2 days after deposit with courier or deposit in the US mail, whichever is earlier. This Agreement constitutes the entire Agreement between the parties pertaining to its subject matter and supersedes all prior agreements relating to such subject matter. This Agreement cannot be modified except in a writing signed by both parties. In the event of any inconsistency between this Business Partner Agreement and any other form submitted by Participant or its advertising agency or any correspondence from Participant or its advertising agency, this Business Partner Agreement will control. This Agreement may be signed in counterparts, which, taken together, will constitute one and the same agreement. This Agreement will be construed under the laws of the State of California, without reference to its conflict of laws principles.

13. Dispute Resolution: Any dispute which the Parties are unable to informally resolve shall be resolved by a final, binding confidential arbitration through the American Arbitration Association (“AAA”) under the then existing AAA Rules of Practice and Procedure, with such arbitration to be held at a location mutually agreed to by the Parties. Any such arbitration will be conducted in the utmost secrecy, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Nothing in this Section is intended to prevent either Party from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of such arbitration.

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