MANAGED DEALERSHIP SERVICE PROVIDER AGREEMENT RECITALS

Transcription

1 MANAGED DEALERSHIP SERVICE PROVIDER AGREEMENT This Service Provider Agreement is entered into as of / / 20 by and between RoJo Max Opp LLC, a California (LLC) Limited Liability Corporation (the Service Provider ), and, a [corporation/partnership/etc.] (the Company, and together with the Service Provider, the Parties ). RECITALS The Company wishes to be provided with the services as defined in Exhibit A by the Service Provider and the Service Provider agrees to provide the Services to the Company on the terms and conditions of this agreement. 1. Key Terms 1.1 Services The Service Provider shall provide the following services ( Services ) to the Company in accordance with the terms of this Agreement: A managed dealership service whereas the Service Provider will setup, organize and manage an electronic database using the Company supplied list or database of their customer and prospect addresses. On a recurring Twice a Month basis, the Service Provider will develop, (See Exhibit A.) create and send a friendly contact to each address contained in the Company s database. The Company agrees to provide the Service Provider with: (a) Initial list or database of customer/prospect information i.e. address and First/Last names if available. (b) Newly gathered permission-based customer or prospect information twice a month. (c) Company Graphic/Logo, Dealership Address, Phone/Fax Numbers, Contact (for Sales, Service, Parts, and Information) for inclusion and use in Content of Exhibit A. (d) Contact info for designated dealership database manager/representative. (e) addresses for dealership staff members to be copied on ings. 1.2 Delivery of Services 1.3 Site a. The Service Provider will commence the provision of Services upon receipt of initial customer list/database (1.1a). b. The Service Provider agrees to provide this Service on a Twice a Month basis. The service provide the services from an off-site location unrelated and independent of the Company s place of business. 1.4 Service Price Managed Dealership Service (Exhibit A) fees based on the number of addresses in a Company s database to be ed twice a month. Monthly service consists of independent ings being created twice a month and sent to each address in a customer database. 1

2 1.5 Setup Fee An initial Setup Fee of $250 is due at initiation for initial setup, organization and cleanup of Company s list/s and/or database. 1.6 Optional Custom Services Optional Custom services may be offered or requested by the Parties, related to special promotions which might include, but are not limited to: New Model Releases, Over-Stocks, APR Programs, O.E.M., Manufacturers or Distributor Promotions, Special Events, etc. These Custom services may be requested by the Company or offered on an individual basis by the Service Provider. Optional services must be agreed to in advance in writing and are billed separately from services related to section (1.4). 1.7 Payment a. The Company agrees that recurring pre-payments under (1.4) will be billed and charged automatically monthly, that Service Provider may apply the amount due to the Service Provider card at any time, and will issue no refunds. Client agrees to notify Service Provider via or fax of any change in credit card details. If the credit card is denied for any reason on the first attempt, Service Provider will automatically attempt to resubmit such card within three (3) business days of the original attempt. Should the card be denied again, Client may provide alternative billing arrangements, or Service Provider may terminate the account. b. Company will receive an as billed receipt from the Service Provider identifying the number of individual addresses contained in the Company s database as maintained by Service Provider (supported by reasonable documentation upon request) for all managed Services performed for the Company under section (1.4). c. Payments for Setup Fees (1.5) are due and payable by credit card upon service initiation. d. Payments for Optional Services (1.6) will be billed as agreed in writing; billing will be to credit card on file after services are rendered, unless otherwise agreed in writing. e. Any charges payable under this Agreement are exclusive of any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity arising as a result of the provision of the Services by the Service Provider to the Company under this Agreement and such shall be payable by the Company to the Service Provider in addition to all other charges payable hereunder. f. All rates and prices quoted by Service Provider are in US Dollars. All charges will appear on Client's credit card statement. Client is also required to advise Service Provider of any changes in credit card details. 2. General terms 2.1 Intellectual Property Rights If any third party intellectual property rights are used in the Material the Service Provider shall ensure that it has secured all necessary consents and approvals to use such third party intellectual property rights for the Service Provider and the Company. For the purposes of this Clause 2.1, "Material" shall mean the materials, in whatever form, used by the Service Provider to provide the Services and the products, systems, programs or processes, in whatever form, produced by the Service Provider pursuant to this Agreement. 2

3 2.2 Warranty a. The Service Provider represents and warrants that: i. it will perform the Services with reasonable care and skill; and ii. the Services and the Materials provided by the Service Provider to the Company under this Agreement will not infringe or violate any intellectual property rights or other right of any third party. 2.3 Limitation of liability a. Subject to the Company s obligation to pay the Price to the Service Provider, either party s liability in contract, tort or otherwise (including negligence) arising directly out of or in connection with this Agreement or the performance or observance of its obligations under this Agreement and every applicable part of it shall be limited in aggregate to the Price. b. To the extent it is lawful to exclude the following heads of loss and subject to the Company s obligation to pay the Price, in no event shall either party be liable for any loss of profits, goodwill, loss of business, loss of data or any other indirect or consequential loss or damage whatsoever. 2.4 Term and Termination a. This Agreement shall be effective on the date hereof and shall continue, until terminated. b. Either Party may terminate this Agreement upon notice in writing with 30 days notice with or without cause. 2.5 Relationship of the Parties The Parties acknowledge and agree that the Services performed by the Service Provider, its employees, agents or sub-contractors shall be as an independent contractor and that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the parties. 2.6 Confidentiality The Service Provider agrees, during the Term and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, firm, or corporation without the prior written authorization of the Company, any Confidential Information of the Company. Confidential Information means any of the Company s proprietary information, customer lists, database or information disclosed to the Service Provider by the Company, either directly or indirectly. The Service Provider may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with Company personnel or authorized representatives or for any other purpose the Company may hereafter authorize in writing. 2.7 Notices Any notice which may be given by a Party under this Agreement shall be deemed to have been duly delivered if delivered by hand, first class post, facsimile transmission or electronic mail to the address of the other Party as specified in this Agreement or any other address notified in writing to the other Party. Subject to any applicable local law provisions to the contrary, any such communication shall be deemed to have been made to the other Party, if delivered by: i. first class post, 2 days from the date of posting; ii. hand or by facsimile transmission, on the date of such delivery or transmission; and 3

4 iii. electronic mail, when the Party sending such communication receives confirmation of such delivery by electronic mail. 2.8 Miscellaneous a. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. b. If any part, term or provision of this Agreement is held to be illegal or unenforceable neither the validity or enforceability of the remainder of this Agreement shall be affected. c. Neither Party shall assign or transfer all or any part of its rights under this Agreement without the consent of the other Party. d. This Agreement may not be amended for any other reason without the prior written agreement of both Parties. e. This Agreement constitutes the entire understanding between the Parties relating to the subject matter hereof unless any representation or warranty made about this Agreement was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations or understandings with respect hereto. f. Neither Party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion or industrial dispute. If such delay or failure continues for at least 7 days, the Party not affected by such delay or failure shall be entitled to terminate this Agreement by notice in writing to the other. g. This Clause 2.8(g) and Clauses 2.3, 2.5, 2.6, 2.7 and 2.8 of this Agreement shall survive any termination or expiration. h. This Agreement shall be governed by the laws of the jurisdiction in which the Service Provider is located: San Diego, CA. 4

5 EXHIBIT A MANAGED DEALERSHIP SERVICE DUTIES, SPECIFICATIONS, AND COMPENSATION A. MANAGED DEALERSHIP SERVICE DUTIES: The Service Provider will perform the following [work] [services] and is solely responsible for: Selection and Development of; Opening introduction, Tip of the Week, Featured/Highlighted products, Copywriting, Logos, Graphics and Photos, Background colors, Borders, i.e. Content. CONTENT DEVELOPMENT: All Content and Copywriting is at the sole discretion of the Service Provider. Best practices applicable to marketing will be followed, and the Service Provider will use their Power Sports experience and knowledge to write effective copy that appropriately represents the general services of a friendly, interactive knowledgeable and appreciative dealership. DESIGN-LAYOUT: Creative development of design layout for Content is at the sole discretion of the Service Provider. Company s logo/s, address, contact information, website, and Facebook links (as supplied, available and applicable) will be included. FEATURED PRODUCTS & SPECIAL OFFERS: Featured or highlighted products included in s will or may include the manufacturer s retail price or price range. s may randomly include coupons of special offers valid for a limited time for a discount of up to 10% off retail redeemable through the Company s dealership (Valid only on parts or service). REPORTING: Service Provider will submit basic analytic reports (i.e. Quantity of s sent, Open, Bounced, Clicked, Un-subscribed rates) by to Designated dealership contact representative (1.1d). B. SERVICE FEE(s) MANAGED DEALERSHIP SERVICE Level 1 $99 Includes up to s* sent per month Level 2 $179 Includes up to s* sent per month Level 3 $249 Includes up to 10,000 s* sent per month Level 4 $299 Includes up to 20,000 s* sent per month Greater than 20,000 s sent per dealership will be priced and agreed to in writing. *Monthly service consists of independent ings being created and sent twice each month to each address in a Company s database. (i.e Each address will be sent a new and different twice a month) SETUP FEE: An initial setup fee of $250 is due at initiation for initial setup, organization and cleanup of Company s database. (SIGNATURE PAGE FOLLOWS) 5

6 SIGNATURE PAGE AS WITNESS the hands of the Parties hereto or their duly authorized representatives the day and year first above written. SIGNED by: for and on behalf of: (the Company) SIGNED by: for and on behalf of: RoJo Max Opp LLC (the Service Provider) 6