Local Results Affiliate Agreement

THIS AGREEMENT (the "Agreement") is made and entered into as of the Effective Date, by and among Local Results, LLC, a Utah Limited Liability Company ("Local Results"), and the Affiliate and/or Lead Provider (collectively referred to as the “Affiliate”).  Local Results and Affiliate may hereinafter sometimes be referred to collectively as the “Parties” or individually as a “Party.”

Recitals

• A.                Whereas, Local Results performs marketing services by placing on-line map listings in order to generate customer interest for its clients (the “Business”);

• B. Whereas, Affiliate desires to provide certain marketing services to Local Results as specified in this Agreement and any associated Insertion Orders, and Local Results desires to acquire these services on the terms and conditions herein provided;

1. DEFINITIONS.

For the purposes of this Agreement including any schedules or exhibits hereto, the following terms have the meanings set forth below:

1.1."Affiliate" 

shall have the meaning ascribed to it in the Preamble.

1.1."Affiliate Customers"

means a customer for whom a Completed Sale has been performed during the Term pursuant to a contract initiated through Affiliate’s Marketing Activities.

1.3. "Agreement"

shall have the meaning ascribed to it in the Preamble.

1.4. "Approved Third Party Materials".

shall have the meaning ascribed to it in Section 3.1.

1.5. "Business".

shall have the meaning ascribed to it in the Recitals.

1.6. "Local Results Domain Names".

means the Domain Names registered and/or operated by Local Results.

1.7. "Local Results’ Material"

means any of the following that are supplied by Local Results to Affiliate, or which Local Results gives Affiliate a right to use or have access to pursuant to the terms of this Agreement during the Term to provide the Services: (i) text, pictures, sound, graphics, video and other data, (ii) information, reports, specifications, documentation, diagrams, flow charts, plans, methods, forms, practices, techniques, customer lists, dealer lists, and other lists and information, and (iii) any other tangible or intangible machine readable or human readable materials of any type whatsoever.

1.8. "Local Results' Property"

means any property owned by Local Results or to which Local Results obtains ownership pursuant to this Agreement including but not limited to Local Results’ Material, Local Results’ Marks, and the Local Results Domain Names, including any and all Intellectual Property Rights thereto.

1.9. "Local Results Tracking Portal"

means Local Results’ proprietary on-line Affiliate management system where Affiliates are able to access their account information, reporting statistics, and other materials for their marketing endeavors. The Local Results Tracking Portal can be found at __________________.

1.10. “Completed Sales”

arise when a customer has received the applicable Services and Local Results has received a resulting payment from the applicable Local Results customer.

1.11 "Confidential Information"

shall have the meaning ascribed to it in Section 9.

1.12 "Effective Date"

shall be the date on which an applicable Insertion Order is signed by both Parties.

1.13 "Intellectual Property Rights"

means any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship, including but not limited to copyrights, moral rights, and rights in architectural and mask works; (ii) trademark, service mark, trade dress and trade name rights and similar rights; (iii) trade secret rights; (iv) patent, design, algorithm and other industrial property rights; (v) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, reversions, continuations, continuations-in-part, divisions or reissues thereof, whether now or hereafter in force, throughout the universe.

1.14. “Marketing Activities”

means any activities which are carried out by Affiliate in an effort to generate Sales Leads for Local Results’ Services in accordance with this Agreement.

1.15. “Marketing Materials”

shall include anything, whether tangible or intangible, which is used in marketing or advertising the Local Results Services and includes any materials listed in parts (i), (ii), and (iii) of Section 1.8 above.

1.16. "Marks"

means the trademarks, service marks, trade names, logos or other commercial or product designations used by a person or entity.

1.17. “Offer”

shall mean any solicitation or communication designed to entice any person or entity into purchasing any Local Results Services.

1.18. Domain Name(s).

is any consumer or business information that becomes available to Affiliate during a request for Local Results Services or in the generation of Sales Leads in accordance with this Agreement, and includes, but is not limited to, the name, social security number, federal FEIN, address, telephone number, e-mail address, financial or credit information, and any other information related to such consumer or business.

1.19. Option to Purchase.

are the fees paid for Completed Sales that arise from Sales Leads generated by the Affiliate.

1.20. "Representatives"

means a party and any of its officers, directors, employees, and agents./span>

1.21. "Sales Leads"

means sales leads for Services generated by Affiliate.

1.22. "Services"

shall mean the Affiliate’s efforts, including its Marketing Activities, to generate Sales Leads on behalf of Local Results in accordance with this Agreement.

1.23. "Term"

shall have the meaning ascribed to it in Section 8.1.

1.24. "Third Party Mark Holders" 

shall have the meaning ascribed to it in Section 7.4.

1.25. "Third Party Mark Rights"

shall have the meaning ascribed to it in Section 7.4.

1.26. "Third Party Marks"

shall have the meaning ascribed to it in Section 7.4.

2. OBLIGATIONS OF AFFILIATE.

2.1 Services

During the Term, Affiliate shall provide the Services in accordance with this Agreement and as detailed in any associated Insertion Orders. Each Insertion Order shall include a complete description of the Local Results Services to be marketed, the Marketing Activities to be performed, deliverables or other materials to be produced, the applicable pricing, and any additional terms the Parties mutually agree to incorporate, including, without limitation, any specific terms and conditions of delivery or processing schedules. Each Insertion Order shall be effective, incorporated into and form a part of this Agreement when duly executed by both Parties. In the event of any inconsistency between the provisions of this Agreement and the provisions of the Insertion Order, the provisions of the Insertion Order shall prevail.

2.2Sales Personnel

Affiliate may allow only its employees (and not any other independent contractors, sub-agents or other parties) to perform the Marketing Services under this Agreement except with Local Results’ prior written consent, which may be withheld in Local Results’ discretion.

2.3Potential Customer Information

Except as provided for in Section 2.3.1, Affiliate shall not collect or maintain any Potential Customer Information. All Sales Leads shall be directed immediately to Local Results’ online ordering form or to Local Results’ dedicated call center, as applicable, where all customer information will be gathered and sales will be completed.

2.4. Approval of Marketing Materials Required.

All Marketing Materials and Marketing Activities to be used by Affiliate must first be approved in writing by Local Results. Failure to obtain Local Results’ approval before implementing any Marketing Materials or Marketing Activities under this Agreement will be considered a material breach of this Agreement.

3. THIRD PARTY MATERIALS.

3.1 Approval Required.

Affiliate shall not incorporate into its Marketing Materials or Activities any concept, design or matter that would infringe upon any Intellectual Property Right of any third party except any of the same that has been approved in writing by Local Results after full and complete disclosure by Affiliate of all material information pertaining thereto ("Approved Third Party Materials"). Affiliate shall comply in all respects with any conditions imposed on the use of Approved Third Party Materials, which may include, without limitation, Marks and Copyrighted Materials. Any failure to do so will be a material breach hereof.

4. REPRESENTATIONS AND WARRANTIES.

4.1 Warranties.

During the Term, Affiliate shall remain solely responsible for the operation of its Marketing Activities and shall ensure that such activities carried out pursuant to this Agreement do not: (i) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (ii) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (iii) be defamatory, libelous, threatening or harassing; (iv) be obscene, pornographic or indecent; or (v) contain any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

4.2 Conduct.

Affiliate shall use its best efforts to develop and promote Sales Leads through its Marketing Activities in cooperation with Local Results. Affiliate agrees that at no time shall Affiliate engage in flaming, spamming, or any other offensive, harassing or illegal conduct, or otherwise fail to meet Local Results’ high standards of professionalism. Affiliate warrants and represents that Affiliate shall perform the Services hereunder in a professional, diligent and expeditious manner and shall at all times use its best skills and judgment in furthering the interests of Local Results.

4.2.3 Local Results will notify Affiliate of any complaint regarding their e-mail practices or any alleged violation of the above warranties. Within forty-eight (48) hours of notification, Affiliate must respond to Local Results and provide source information as to any questionable e-mails along with the applicable “opt-in” information (e.g. time, date and IP address of opt-in source) of the recipient. If the Affiliate fails to provide source information satisfactory to Local Results to demonstrate that (i) the recipient “opted in” to receive such e-mail and (ii) the Affiliate did not send SPAM e-mail or otherwise breach the above warranties, then Local Results has the right to immediately suspend payment to and further performance of any services by the Affiliate.

4.2.4.Affiliate further agrees and warrants that under no circumstances will it use outbound telephone soliciting to generate Sales Leads, unless with prior written consent from Local Results.

4.2.5. Marketing Guidelines.

Along with agreeing to the terms of this Agreement, Affiliate also agrees to abide by all rules and regulations found in the most current version of marketing guidelines as provided by Local Results from time to time.

4.3. Compliance with Laws

Affiliate warrants and represents that, in connection with the Services performed hereunder, Affiliate is knowledgeable of and shall comply with all applicable federal, state and local codes, laws, rules and regulations that affect the performance of Services hereunder. Affiliate shall be responsible for any and all damages resulting from the failure of Affiliate to comply with such codes, laws, rules and regulations. Affiliate warrants and represents that Affiliate is fully and properly licensed to perform the Services contracted herein, if required by law, and has all necessary Internet sales and/or telemarketing licenses in those states and jurisdictions where required. Affiliate shall provide Local Results with evidence of all applicable licenses upon Local Results’ request. Affiliate acknowledges and agrees that Affiliate shall be responsible for filing all tax returns, tax declarations, and tax schedules, and for the payment of all the taxes required, when due, with respect to any and all compensation earned by Affiliate under this Agreement. Local Results will not withhold any employment taxes from compensation it pays Affiliate.

5. COMPENSATION.

 Local Results shall compensate Affiliate for all Completed Sales that are generated through Affiliate’s Marketing Activities as specified herein, and in the applicable Insertion Order. Unless otherwise specified in the Insertion Order, payment shall be made within thirty (30) days of the end of the month in which the Completed Sales occurred. 

Unless otherwise specified in the Insertion Order, the minimum resale amounts for any Local Results package sold to any Affiliate Customer (i.e. the minimum amount which Local Results shall collect from each Completed Sale) shall be determined by Local Results in its sole and absolute discretion.

6. OBLIGATIONS OF LOCAL RESULTS.

6.1 Customer Accounts

Local Results will determine, in its sole discretion, whether to accept or reject any Sales Leads. Local Results will have no obligation to Affiliate or any other third party for any Sales Leads rejected by Local Results.

6.2 Product Sales

Local Results will be responsible for completing all orders for Affiliate Customers who purchase any Services. Local Results will be responsible for collecting all revenue due from the Affiliate Customers as a result of such purchases.

6.3 No Exclusivity Required of Local Results

 Local Results may itself solicit Sales Leads from consumers, either directly, indirectly, or in conjunction with any third party, and may authorize parties other than Affiliate to act as its commissioned associates to solicit Sales Leads, for any compensation and upon any other terms as Local Results may determine in its discretion. Such compensation and terms may differ from those provided Affiliate in this Agreement. Affiliate acknowledges that Local Results and such other parties may compete with Affiliate in the solicitation of Sales Leads. Notwithstanding the foregoing, once Affiliate has introduced any affiliate, client, or customer to Local Results in any capacity, and such affiliate, client, or customer has entered into contract with Local Results, then Affiliate shall not work with, contact, or solicit such affiliate, client, or customer in any way for a period of two (2) years from the date that such party contracted with Local Results, unless such work, contact, or solicitation is done solely in conjunction with Local Results. The Parties agree that, so long as Local Results continues to work with any such affiliate, client, or customer introduced by Affiliate, then Affiliate shall be entitled to its compensation as specified in the Insertion Order, notwithstanding any prior termination of this Agreement.

7. LOCAL RESULTS’ PROPERTY.

7.1 Reservation of Rights

Affiliate shall have no right to use any of Local Results’ Property except as expressly and specifically permitted by Local Results in writing. Any such permitted use shall not include the right to assign or sublicense except as expressly and specifically permitted by Local Results in writing, and any permitted assignment or sublicense shall not include any right to further assign or sublicense except as expressly and specifically permitted by Local Results in writing. All rights not expressly and specifically granted by Local Results hereunder are expressly reserved.

7.3 Asset of Local Results

Affiliate acknowledges and agrees that Local Results’ Property is a valuable asset of Local Results. Affiliate agrees that it shall not execute any documents or take any actions that could, directly or indirectly, have a negative impact on, or in any way impair the value of Local Results’ Property and/or Local Results’ ownership or use of Local Results’ Property. Affiliate acknowledges and agrees that it has not acquired nor will acquire any right, title, interest or claim of ownership in any of Local Results’ Property or goodwill (whether or not arising from use of Local Results’ Property by Affiliate).

7.4 Third Party Marks.

Local Results presently has a limited right to use in the Business certain intellectual property, which may include the Marks ("Third Party Marks") of certain third parties ("Third Party Mark Holders"). Local Results will seek to obtain from such Third Party Mark Holders the permission to grant Affiliate a revocable limited right to use such Third Party Marks ("Third Party Mark Rights") as Local Results believes is desirable for carrying out the Services under this Agreement. Notwithstanding the foregoing, however, Affiliate understands and agrees that (i) Local Results cannot and does not guarantee that the Third Party Mark Holders will permit Local Results to grant Affiliate Third Party Mark Rights; and (ii) if the Third Party Mark Holders permit Local Results to grant Affiliate Third Party Mark Rights during the Term of this Agreement, the provisions of this Section 7 with respect to Local Results’ Property shall apply equally to the Third Party Marks, subject to any additional or varying restrictions on the use of Third Party Mark Rights imposed by the Third Party Mark Holders.

8. TERM AND TERMINATION.

8.1 Term

The Term of this Agreement shall commence on the Effective Date and shall continue for a period of one (1) year and shall automatically renew for successive one (1) year periods unless terminated by either Party hereto by giving the other notice of its intention to terminate the Agreement at least fifteen (15) days prior to the commencement of any renewal period, or in accordance with Section 8.2.

8.2. Termination

The Agreement may be terminated as follows:

8.2.1 By Local Results upon notice to Affiliate;

8.2.2. By Affiliate upon thirty (30) days written notice to Local Results.

8.3 Actions Upon Termination.

In the event of termination of this Agreement, at no cost to Local Results:

8.3.1 Affiliate shall immediately cease all Marketing Activities under this Agreement;

8.3.2 Affiliate shall immediately cease its use of Local Results’ Property and any Third Party Marks;

8.3.3 Affiliate shall promptly return in their original form, all of Local Results’ Property and any copies thereof; and

8.3.4 Affiliate shall provide Local Results with whatever assignments, releases or other documentation Local Results reasonably requests in order to document its ownership of Local Results’ Property.

8.3.5 Local Results shall pay, within forty-five (45) days of termination, all sums then due and owing to Affiliate after taking into account all chargebacks that have occurred up to that date.

9. CONFIDENTIAL INFORMATION.

Each party agrees that it will keep confidential any and all commercial, technical, trade secret, customer, financial or business information concerning the other party of which it may become aware (the "Confidential Information"), and will not disclose all or any part of such information to any third party. Each party will use such Confidential Information only in pursuit of its duties under this Agreement for the Term of this Agreement. Each party shall take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its Representatives. Each party shall promptly return all Confidential Information, including any and all copies of such Confidential Information, upon the termination of this Agreement. Confidential Information shall not include information that is known to the receiving party at the time of disclosure, publicly known information, information independently developed by the nondisclosing party, or information approved for release upon a prior written consent of the disclosing party. In the event of any breach of this Section 9, the non-breaching party will be entitled to any and all remedies available at law and/or in equity. The provisions of this Section 9 are in addition to any other rights provided under applicable law with respect to confidential or trade secret information and shall survive the expiration or termination of this Agreement.

10. CONFIDENTIAL INFORMATION.

10.1 Indemnification by Affiliate

Affiliate agrees to defend, indemnify, and hold harmless Local Results and its shareholders, officers, directors, agents, employees, and contractors (including the third parties referenced in Sections 3 and 7.4 hereof), against all costs, expenses, and losses incurred through claims of third parties against Local Results or a Local Results contractor based on or arising out of breach of this Agreement, or the breach of any covenants, representations and warranties herein, by Affiliate, including but not limited to (i) infringement or misappropriation by Affiliate of any Intellectual Property Rights including Third Party Marks; or (ii) misuse by Affiliate of Local Results’ Confidential Information or any other confidential information of a third party. In the event a third party claim is brought against Local Results or a Local Results contractor, Affiliate shall engage counsel reasonably satisfactory to Local Results or such contractor, provided that no settlement shall be made without Local Results’ prior written consent. If Affiliate fails or refuses to defend any such claim, Local Results or such contractor may assume control of the defense and Affiliate shall indemnify and hold harmless Local Results, such contractor, and its shareholders, officers, directors, agents and employees for all fees, costs and expenses associated with or arising from such defense. Local Results or such contractor will have the right to set off the amount of any indemnity claims made in good faith by Local Results against any compensation that may be owed to Affiliate under this Agreement pursuant to the Insertion Order or otherwise.

10.2 Indemnification by Local Results

Local Results agrees to defend, indemnify, and hold harmless Affiliate and its officers, directors, agents, and employees, against all costs, expenses, and losses incurred through claims of third parties against Affiliate based on or arising out of any breach of this Agreement, or the breach of any covenants, representations and warranties herein, by Local Results. In the event a third party claim is brought against Affiliate, Local Results will engage counsel reasonably satisfactory to Affiliate, provided that no settlement shall be made without Affiliate's prior written consent. If Local Results fails or refuses to defend any such claim, Affiliate may assume control of the defense and Local Results will indemnify and hold harmless Affiliate and its officers, directors, agents and employees for all fees, costs and expenses associated with or arising from such defense.

11. MISCELLANEOUS.

11.1 Assignment

Affiliate shall not assign or delegate or otherwise transfer its rights or duties under this Agreement except with the prior written consent of Local Results and in accordance with the provisions of this Agreement. Consent to such an assignment, delegation or transfer may be withheld by Local Results for no reason or for any reason whatsoever. A sale, transfer or encumbrance by the owners of Affiliate, whether voluntarily, involuntarily or by operation of law, of twenty-five percent (25%) or more of the ownership of Affiliate, or the merger of Affiliate into or with any other third party or entity, shall be deemed to be an attempted transfer in violation of this provision. Local Results may assign, transfer, delegate or grant all or any part of its rights pursuant to this Agreement to any other third party or entity. Any prohibited assignment will be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.

11.2 Severability

If any portion of this Agreement is held to be invalid, illegal or unenforceable, the parties agree that such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of the remaining portions of this Agreement, and the parties shall seek in good faith to agree to substitute for the invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.

11.3.Relationship.

The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.

11.5 Mandatory Mediation Prior to Litigation.

 Prior to either party filing any legal complaint and/or legal document in any District Court in accordance with Section 11.4, the parties agree to mediate any dispute arising from this Agreement. Any mediation that takes place in accordance with this section shall take place in Salt Lake County, Utah, unless Local Results agrees otherwise. In order to initiate the mandatory mediation, the aggrieved party shall provide the non-aggrieved party with notice of its intent to mediate the dispute (the “Notice”). The Notice shall be dated, and in writing, and shall provide sufficient details of the dispute to apprise the other party of the basis of the aggrieved party’s claims. Within ten (10) days of the date on the Notice, (i) the non-aggrieved party shall confirm its receipt of the notice with the aggrieved party, (ii) the parties shall agree upon a length of time for the mediation, which shall be at least one (1) day, but not more than three (3) days, (iii) the parties shall schedule a date for mediation with the aggrieved party, which such mediation shall be not less than thirty (30) days from the date listed on the Notice, but not more than ninety (90) days from the date listed on the Notice, and (iv) the parties shall select a mediator. In the event that the parties cannot agree upon a mediator, each party shall select one name from a list of mediators maintained by any bona fide dispute resolution provider or other private mediator, and the two selected mediators shall then choose a third person who will serve as mediator. The parties acknowledge and agree that any mediated settlement agreement may be converted to a judgment and enforced according to the Utah Rules of Civil Procedure. The parties agree to share the mediator’s fees equally. In the event that either party hereto fails to cooperate in a reasonable manner in the scheduling and/or facilitation of the mediation contemplated herein, then the cooperating party will have the right to recover from the non-cooperating party its costs and reasonable attorneys fees incurred in connection with any subsequent suit, or other proceeding, including costs, fees, and expenses on appeal.

11.6 Limitations of Liability.

IN NO EVENT SHALL LOCAL RESULTS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF LOCAL RESULTS WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

11.7 Notices

All notices and other communications pertaining to this Agreement shall be in writing and shall be deemed delivered (i) upon personal delivery, if delivered by hand, (ii) upon successful confirmed transmission if sent by facsimile, (iii) one (1) business day after the business day of deposit with Federal Express or similar overnight courier, overnight freight prepaid; or (iv) three (3) business days after the business day of deposit in U.S. mail via certified mail, return receipt requested, postage prepaid. All notices of communications between Affiliate and Local Results pertaining to this Agreement shall be directed to the parties as set forth below, or to such other respective address as a party may provide by written notice from time to time:

11.8 Waiver

No term or provision of this Agreement shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by one party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of or excuse for any other different or subsequent breach.

11.9 Complete Agreement

The terms and conditions contained in this Agreement, including exhibits and schedules, constitute the entire agreement between the parties and supersede all previous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter of this Agreement. No modification to this Agreement, nor any waiver of any right hereunder or any subsequent breach or default, shall be effective unless in a written document signed by both parties hereto. Without limiting the foregoing, this Agreement may not be modified, amended, supplemented, qualified or interpreted by any trade usage or prior course of dealing not made a part of the contract by its express terms.

11.10 No Third Party Beneficiaries

Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any other person other than the parties to this Agreement and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third party to any party hereto or give any third party any right of subrogation or action against any party to this Agreement.

11.11 Pronouns

Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.

11.12Counterparts, Facsimile, Signatures

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and both of which shall constitute one and the same document. This Agreement may be executed by facsimile signatures.

11.13 Section Headings

The section headings are for the convenience of the parties and in no way alter, modify, amend, limit, or restrict the contractual obligations of the parties.