Agreement
Agreement
This Subscription Agreement (“Agreement”) is entered into by Top Moving Company 4 U, DBA TopMovingCompany4u.com, a California corporation, (“Company”) with an office located at Sherman Oaks, CA , and between that certain moving company the description of which is detailed at the end of this Agreement (the “Subscriber“)
PLEASE NOTE: all users of our website, including Subscribers of the TopMovingCompny4u.com, are subject to the Terms of Use published on the TopMovingCompny4u.com website (the “Site”).
THE PARTIES TO THIS AGREEMENT HEREBY AGREE AND COVENANT THAT THE APPLICABLE TERMS AND CONDITIONS OF THE TERMS OF USE ARE HEREBY INCORPORATED INTO THIS AGREEMENT AS AN INTEGRAL PART THEREOF AND SHALL BE FULLY BINDING ON THE PARTIES HERETO AS IF ACTUALLY WRITTEN INTO THIS AGREEMENT.
IN ADDITION TO OTHER REPRESENTATION FURNISHED BY SUBSCRIBER HEREUNDER, SUBSCRIBER REPRESENTS TO COMPANY THAT SUBSCRIBER IS AT LEAST 18 YEARS OLD AND IS AUTHORIZED TO ENTER INTO THIS AGREEMENT. SUBSCRIBER IS ALSO REPRESENTING THAT SUBSCRIBER IS ENTERING INTO THIS AGREEMENT ON ITS OWN BEHALF, HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT, IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THAT SUBSCRIBER WILL NOT BE USE THE SITE IN CONNECTION WITH ANY ILLEGAL PURPOSE. SUBSCRIBER ACKNOWLEDGES THAT NOTHING IN THIS AGREEMENT SHOULD BE CONSTRUED AS GUARANTEEING THE PURCHASE OF ANY SERVICE AND/OR PRODUCT FROM SUBSCRIBER. AT ANY TIME UPON REQUEST BY COMPANY, SUBSCRIBER AGREES TO SIGN ANY OTHER AGREEMENTS OR STATEMENTS REASONABLY NECESSARY FOR COMPANY TO PROVIDE AND ACCOUNT FOR THIS SERVICE, INCLUDING (BUT NOT LIMITED TO) PROOF OF OWNERSHIP AND INCOME TAX RELATED DOCUMENTS.
NOW THEREFORE, for good and valuable consideration exchanged between the Parties hereto, Subscriber and Company agree as follows:
1. COMPANY’S UNDERTAKINGS
1.1 Supply of Leads. Following receipt of payment from Subscriber as detailed in Article 2 hereunder, Company shall sort out and deliver certain leads to Subscriber, submitted via the Site, in accordance with Subscriber’s lead requirements as indicated in the information Subscriber has supplied Company, and this Agreement. Leads sent to the e-mail address provided by Subscriber shall, until Company have received notice of any different e-mail address, be deemed to have been delivered to Subscriber whether actually received or not. Subscriber agrees to reply to the leads in a timely manner and not later than 5 days from the date each such lead was provided.
1.2 Opening an Account. Once Subscriber’s payment is received by Company, Company will establish an account for Subscriber on the Site. Subscriber will be given a username and password and have the ability to access its account, view its leads, and make changes to Subscriber’s information. Subscriber shall be responsible for the confidentiality and use of its username and password. Subscriber agrees that Company may rely on any notice, instruction or request furnished to Company using Subscriber’s username and password which is reasonably believed by us to be genuine.
2. REFERRAL FEES AND PAYMENTS
2.1 Referral Fees. Subscriber agrees to pay Company a monthly fee the amount of which is indicated in Annex A to this agreement, which is hereby incorporated as an integral part hereof, for the non-exclusive right to receive leads to be delivered to Subscriber by e-mail (the “Referral Fee”). Company does not guarantee the number of leads to be provided nor that any such leads actually order any of Subscriber’s services and/or products. Company reserves the right to modify the Referral Fee at any time and inform Subscriber of such modification by posting it on the Site.
2.2 Payment. Referral fee shall be paid in advance for the upcoming month via credit card or online check. Subscriber will receive an invoice 1 week prior to their payment day every month. Subscribers credit card will be charged automatically every month unless Company receives notification 48 hours before the Subscribers payment date. Subscriber also is required to keep Company updated with any changes that might occur to the contact or billing information of the Subscriber.
3. PRIVACY
3.1 This Agreement incorporates the current Privacy Policy as published on the Site. Subscriber has referred to that policy for information regarding Company’s privacy policies.
3.2 As part of the service of the Site, and subject to payment of the referral fee, Company will supply Contact information of certain persons and/or entities wishing to purchase moving services who have uploaded their information onto the Site (hereinafter: “Customer”). Upon receipt of the Customer’s information, Subscriber agrees to use this Customer information for its own business purposes only. Subscriber further agrees not to sell, rent, or transfer any customer information that has been provided to Subscriber to any third party except as required to support the normal operations of Subscriber’s business. Inappropriate use or abuse of customer information by Subscriber or any of its affiliates, agents, employees, representatives, directors or any other person acting on Subscriber’s behalf or at Subscriber’s direction, is grounds for immediate termination of this Agreement.
3.3 Subscriber acknowledges and agrees that Company does not control who may choose to be Subscriber’s Customer, nor who may order its services and/or products. Companies has no obligation to verify that people requesting any services and/or products are authorized to do so nor that such people will take all necessary actions, including but not limited to, remit payment for such service and/or product.
4. INDEMNIFICATION
Subscriber hereby agree to indemnify, defend and hold Company, and Site as well as Company’s affiliates, officers, employees, agents and representatives harmless from and against any claim, demand, action, damage, loss, costs or expenses, including, but not limited to, reasonable litigation, attorneys' and expert witness fees, relating to, arising out of or resulting from Subscriber’s use of the Site or any breach of this Agreement, including but not limited to claims arising from Subscriber’s contact, relationship and dealings with Customers, or related to Subscriber’s infringement of the intellectual property rights of any third party. Furthermore, Subscriber’s agree to indemnify, defend and hold Company, Site, and Company’s affiliates, officers, employees, agents and representatives harmless from and against any claim, demand, action, damage, loss, costs or expenses, including, but not limited to, reasonable litigation, reasonable attorneys' and expert witness fees, relating to, arising out of or resulting from:
4.1 the information uploaded by potential Customers and any portion thereof;
4.2 the services and/or products Subscriber provides to any Customer;
4.3 any of Subscriber’s actions or omissions, including, but not limited to the way Subscriber conducts its relationship with any Customer or Subscriber’s use of information gathered by Company or the Site; or
4.4 any infringement action involving Subscriber’s business and/or any portion thereof.
5. AVAILABILITY
5.1 Company does not warrant the availability of the Site and/or any portion thereof, or that the Site will operate uninterrupted or error-free. This Site or any portion thereof may be suspended from time-to-time for scheduled maintenance, for unscheduled down-time, or for any other reason without notice. While Company takes reasonable precautions to prevent problems, Company is not responsible for any deletion, alteration or loss of data due to network or system outages, file corruption, accidental deletion or any other reasons. Company makes no guarantees as to server reliability, performance, speed or consistency, and cannot be held liable for such. Subscriber understands that the Site is available on an "as-provided" basis.
5.2 Subscriber agrees to use the Site and infrastructure at Subscriber’s own risk. The Site is provided on an "as is" basis without warranties or guarantees of any kind, either expressed or implied. Company makes no warranty with respect to any Content, information, services or products provided through or in conjunction with the Site.
5.3 Company makes no guarantee of the accuracy, correctness or completeness of any information on the Site and are not responsible for any errors, omissions or delays arising from the use of such information. Company may link to or include on Site resources and information provided by third parties. Company does not guarantee or make any representations or warranties regarding the accuracy or completeness of any such information, nor does the inclusion of this information on the Site imply that Company recommends or endorses these third parties.
6. TERMINATION
The term of this Agreement will commence upon the execution of this Agreement and payment of the initial Referral Fee and will end when terminated by either party. Either Subscriber or Company may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, Subscriber will immediately cease use of the Site, Company will send a cancellation confirmation letter with the cancelation number to Subscriber, and Subscriber's account will be removed from the Site at a time convenient for the Company, at its sole discretion. Continued access to the Subscribers account will nullify all previous cancelation requests. The terms of Para 2 hereinabove regarding Referral Fees due from Subscriber to Company, shall survive the termination of this Agreement until all outstanding Referral Fees have been remitted by Subscriber to Company.
7. GENERAL RULES
7.1 Title to and ownership of the Site, all copies of documentation or instructions thereof and all data resident in the Site, excluding content uploaded onto the Site by users and/or subscribers, including, but not limited to, any trademarks, service marks, copyrights (whether in literal or non-literal form) and/or patents shall be and at all times remain with Company, its agents or assigns. Subscriber shall not reproduce or modify the Site or any portion thereof. Subscriber shall not all use of the Site or any pat thereof to the benefit of any third party that is not a Customer. In the event that Subscriber breaches this Para 7.1, in addition to all other legal remedies at its disposal, Company shall have the right to bring immediate injunctive action to halt said breach and shall have the right to terminate this Agreement immediately.
7.2 Company reserves the right, at its sole discretion, to change, suspend or discontinue any aspect of the Site, as well as change, modify, add, or remove portions of this agreement at any time. Changes to this Agreement will be posted on the Site. IF ANY FUTURE CHANGES TO THIS AGREEMENT OR TERMS OF USE OF THE SITE ARE UNACCEPTABLE TO SUBSCRIBER OR CAUSE SUBSCRIBER TO NO LONGER BE IN COMPLIANCE WITH THIS AGREEMENT, SUBSCRIBER’S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. SUBSCRIBER’S USE OF THE SITE, ACCEPTANCE OF LEADS REFERRED TO SUBSCRIBER BY THE SITE, OR AMENDMENTS MADE TO SUBSCRIBER’S CONTENT SUPPLIED TO THE SITE, WILL CONSTITUTE A BINDING ACCEPTANCE BY SUBSCRIBEROF SUCH CHANGES OR ADDITIONS.
7.3 In order to become a Subscriber, you shall fill in all of the requisite forms on the Site accurately and completely. Company is not responsible for any incorrect data filled in by you and not responsible nor liable for loss and/or damage of any kind which may result from any inaccuracy in the data supplied and/or in the Content.
8. REPRESENTATIONS AND WARRANTIES
8.1 THE SITE AND THE PARTICIPATION THEREIN ARE PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUBSCRIBER HEREBY ACKNOWLEDGES THAT USE OF THE SITE IS AT SUBSCRIBER’S SOLE RISK.
ADDITIONALLY, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT COMPANY DOES NOT WARRANT OR GUARANTEE THAT PARTICIPATION IN THE SITE WILL GENERATE ANY CUSTOMERS FOR SUBSCRIBER.
FURTHER, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT A PARTY TO ANY PART OF THE ASSOCIATION BETWEEN SUBSCRIBER AND ANY CUSTOMER AND THAT SUBSCRIBER SHALL HAVE NO LEGAL RECOURSE AGAINST COMPANY IN CONNECTION WITH ITS ASSOCIATION WITH ANY CUSTOMER.
8.2 Each party represents and warrants to the other party as follows:
8.2.1 It has the full power and authority and has taken all actions necessary to enter into and perform this Agreement;
8.2.2 The execution and performance by it of its obligations herein do not constitute a breach of or conflict with, any other agreement or arrangement, whether written or oral, by which it is bound; and
8.2.3 This Agreement is a legal, valid and binding obligation of the party execution this agreement, enforceable in accordance with the terms and conditions hereof.
8.3 Company reserves the right to refuse any the inclusion of any Subscriber and to refuse the Content of a Subscriber, in its sole discretion.
8.4 Company has no control over the Internet and cannot prevent the interception of information by unauthorized parties. Accordingly, under no circumstances will we be responsible for any loss or damage incurred by Subscriber as the result of unauthorized access to, or use or decryption of information transmitted between us or between Subscriber and a customer.
9. LIMITATION OF LIABILITY
9.1 NEITHER COMPANY NOR ANY OF OUR AFFILIATES, SERVICE PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, USE OF THE SITE, SUBSCRIBER’S ACTIONS OR OMISSIONS IN ITS RELATIONSHIP WITH COMPANY AND/OR ANY CUSTOMER, OR RESULTING FROM THE USE OR THE INABILITY TO USE THE SITE OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SITE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF SUBSCRIBER’S TRANSMISSION OF DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES. EVEN IF COMPANY OR ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.2 Company is not responsible for materials Subscriber sends us until Company receives them. Company is not responsible for damage that occurs to Subscriber’s materials in transit to us. Company strongly recommend that Subscriber always make copies of its materials and ship only copies with original signatures, and keep a duplicate original version, to us via an insured and traceable method.
9.3 If Company loses or destroy materials once Company has received them from Subscriber Company will contact Subscriber forthwith upon discovery of the loss and request replacement materials. This is Subscriber’s sole and exclusive remedy for such loss. Under no circumstances will Company be liable for any additional costs related to the destruction or loss of Subscriber’s materials.
10. INDEPENDENT INVESTIGATION
SUBSCRIBER ACKNOWLEDGE THAT SUBSCRIBER HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. SUBSCRIBER UNDERSTANDS THAT COMPANY MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMERS AND SUBMIT REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH ANY OF SUBSCRIBER’S WEB SITES OR THOSE OF ANY OTHER SUBSCRIBER. SUBSCRIBER FURTHER ACKNOWLEDGES THAT IT HAS HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE SITE AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
11. MISCELLANEOUS
11.1 Governing Law. This Agreement has been made in, and shall be construed and enforced in accordance with the internal substantive laws of California , without regard to conflict of law or choice of law principles. The parties hereto hereby voluntarily and irrevocably submit themselves to the jurisdiction of the competent courts located in Los Angeles County , California and any action to in connection with this Agreement shall be brought in the federal or state courts located in Los Angeles County , California .
11.2 Notices. All official correspondence regarding this Agreement shall be sent to TOP MOVING COMPANY 4U, INC at 20335 Ventura blvd STE 400 , Woodland Hills , CA 91364 .
11.3 Amendment. The terms of this Agreement can be amended by Company at any time. The current terms of this Agreement can be publicly accessed on the Site.
11.4 Assignment. Company may assign its rights and obligations under this Agreement to another party without any written notice to Subscriber or approval from Subscriber.
11.5 Force Majeure. Neither party will be deemed in breach of this Agreement to the extent that performance of its obligations are delayed or prevented by reasons of force majeure, such as riots, fire, flood, earthquake, acts of government and the like, provided that such party gives the other party written notice thereof promptly and uses its best efforts to continue to perform its obligations.
11.6 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be adjusted to the minimum extent required for enforceability, and the remainder of this Agreement shall continue in full force and effect.
11.7 Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by a duly authorized officer of the waiving party.
11.8 Costs. In any action to enforce the provisions of this Agreement, the prevailing party shall be awarded all arbitration and/or court costs and any reasonable attorney and expert witness fees incurred by such party in connection therewith, including such costs and attorneys' fees incurred in enforcing and collecting any judgment.
11.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to this subject matter, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding this matter.
11.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and enforceable against the Parties actually executing such counterpart, and all of which together shall constitute one and the same instrument.
11.11 Preamble, Recitals and Captions. The Preamble and Recitals to this Agreement constitute an integral part hereof. Captions to the sections in this Agreement are included for convenience only and do not modify any of the terms of this Agreement, nor shall any caption be used for the interpretation of any of the sections to this Agreement.
11.12 Capitalized Terms. Unless otherwise expressly stated, all terms spelled with initial capital letters in this Agreement will have the respective meaning given such term in this Agreement.
11.13 Construction. Each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that the Party has not breached, shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty or covenant.
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AUTHORIZATION
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Date Company Name
__________________________ __________________________
Title:________________________.
Company
Address
Telephone
Number: ( )_______________________.
Fax
Number: ( )_______________________.
E-mail
Address: ____________________________.
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ANNEX “A” – REFERRAL FEE
I THE UNDERSIGNED HEREBY CERTIFY THAT I HAVE READ AND UNDERSTOOD THE SUBSCRIPTION AGREEMENT LOCATED AT http://tmc4u.com/agreement
(THE “AGREEMENT”)_AND BY SIGNING THE SIGNATURE PAGE AND THIS ANNEX A TO THE AGREEMENT, I AGREE TO, AND UNDERTAKE TO COMPLY WITH, THE TERMS AND CONDITIONS OF THE AGREEMENT AND THIS ANNEX. ALL SALES ARE FINAL.
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Product
Type &
Descriptions:
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Begin
Date:
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Rate:
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Monthly
moving leads for:
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CHARGE INFORMATION
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I ______________________________
from _________________________________________
Do hereby authorized TopMovingCompany4u.com
to charge my credit card or
my bank account by E-Check (
Online Check).
Credit Card: AMEX / VISA / MC / _________ Number: ____________________________________
Expiration
Date: ________/_________ CVV (3-4
Digit Security Code): ___________
Name
on Card: _______________________________________________________________________
Billing
Address: ________________________________________________________________
I HEREBY ACCEPT ACKNOLEDGE AND AGREE TO THE TERMS OF THE AGREEMENT AND THIS ANNEX.
________________________________ ______________________________
Company Name Date
BY:
__________________________________ ______________________________
Printed Name Signature
________________________________
Title