This agreement (this “Agreement”) is entered into by and between WyzAnt, Inc., a Delaware corporation (“WyzAnt”), and my company (the “COMPANY”), effective as of today (2/8/16). Each of WyzAnt and COMPANY are sometimes referred to in this Agreement as a “Party,” and together as the “Parties.”
Either Party may terminate this Agreement upon written notice to the other Party. Upon notification, COMPANY will remove all “Tutor Information” and all other information related to WyzAnt from COMPANY within 10 business days. Sections 1(g), 3, 4, 5, 6 and Exhibit B of this Agreement will survive termination of this Agreement.
Each Party hereby acknowledges and agrees that in the course of activities under this Agreement it may have access to confidential and/or proprietary information which relates to the other Party’s marketing, business, and technology development efforts (the “Confidential Information”). Each Party shall treat the terms of this Agreement as Confidential Information. Each Party agrees to: (a) preserve and protect the confidentiality of the other Party’s Confidential Information; (b) refrain from using the other Party’s Confidential Information except as contemplated herein; and (c) not disclose the other Party’s Confidential Information to any third party. Notwithstanding the foregoing, each Party may disclose Confidential Information of the other Party which is: (i) already publicly known; or (ii) required to be disclosed by law or court order. Moreover, either Party may disclose any Confidential Information hereunder to its agents, attorneys and other representatives or any court of competent jurisdiction or any other party empowered hereunder as reasonably required to resolve any dispute between the Parties.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES EXPRESSLY AGREE THAT WYZANT AND COMPANY PROVIDE THEIR SERVICES AS CONTEMPLATED HEREIN ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND THAT EACH PARTY’S USE OF THE OTHER’S MATERIALS OR SERVICES THEREOF IS AT SUCH PARTY’S OWN RISK. EACH PARTY HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ALL OF ITS AFFILIATES AND LICENSORS, PARTNERS, LICENSEES, CONTRACTORS AND AGENTS AND THIRD PARTY SERVICE PROVIDERS ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES, INCLUDING ANY WARRANTIES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT.
Any term of this Agreement may be amended or waived only with the written consent of the Parties. This Agreement constitutes the sole agreement of the Parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Illinois, without giving effect to the principles of conflict of laws. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one (I) and the same instrument. In any dispute between the Parties involving this Agreement, the prevailing Party will be entitled to collect attorneys’ costs and fees actually incurred by it from the non prevailing Party.
The Tutor Information provided by WyzAnt shall be presented by COMPANY on the web pages, in the format and with the presentation specified by WyzAnt at the time this Agreement is executed and as may be modified by WyzAnt from time to time thereafter.
As the sole and exclusive consideration for the Services, WyzAnt will pay COMPANY the following Fees:
Lead Generation Fee: WyzAnt will pay COMPANY a fee equal to $8 for each student lead (email conversion) originated via the Services and sent through the WyzAnt website. For these purposes, a “student lead” is an e-mail from an individual in search of a tutor and, for clarification, the Parties have agreed does not include requests from any of the following: corporations or other entities, recruiters, individuals who have made previous or multiple contacts (in this latter case, only the first, or initial, contact, counts for payment of the fee). WyzAnt shall be obligated to provide COMPANY continuous and up-to-date reporting of student leads in a form accessible by COMPANY. WyzAnt will automatically pay such fees on the 15th of the following month (or the subsequent business day if the 15th falls on a weekend or holiday) for all leads generated during the prior month. Fees payable will be based solely on the reporting counts that are available only on WyzAnt’s systems, and COMPANY agrees WyzAnt may withhold payment of amounts in dispute.