Group Manager Agreement  
 

Last Revised May 5, 2004

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND Ingenio, LLC. ("INGENIO"). BY CLICKING ON THE "I AGREE" BUTTON AT THE END OF THIS AGREEMENT YOU AGREE, ON BEHALF OF YOURSELF AND EVERY CURRENT AND FUTURE MEMBER OF YOUR GROUP, THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR COMPLIANCE WITH EACH AND EVERY TERM AND CONDITION.

This Agreement contains the terms and conditions that apply to you becoming a member of the Group Manager Program on the Ingenio website (the "Site"). This Agreement will become effective upon your creation of a Group using the Group Management Tool. Ingenio reserves the right to accept or reject you as a Group Manager or your Group in Ingenio's sole discretion. Capitalized terms not defined herein will have the meanings set forth in the Member Agreement and related policies.

Eligibility to use the Site and Advisor Services is limited. The Site and Group Manager Program are available only to persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law.

Ingenio may modify this Group Manager Agreement, or suspend or terminate your Group, participation in the Group Manager Program, and/or use of the Site at any time without notice to you.
  1. Ingenio reserves the right in its sole discretion to modify or discontinue your Group or the Site, or modify the terms and conditions of your participation in the Group Manager Program, without notice. All modified terms and conditions of the Group Manager Agreement will be effective thirty (30) days after they are initially posted on the Site or emailed to the address you provide. If any modification is not acceptable to you, your only recourse is to cease using the Site and Advisor Services. By continuing to use the Site or any Advisor Services following any posting or notification of a new Group Manager Agreement, Member Agreement or policies, you accept and agree to be bound by the new Group Manager Agreement, Member Agreement and policies. You have the right to terminate this Group Manager Agreement at any time by filling out the Customer Support form, and selecting "Terminate Group Manager Agreement" in the Subject line.
  2. Without limiting other remedies, Ingenio may at any time suspend or terminate the Group and/or your participation in the Group Manager Program and refuse to provide access to the Site without reason or notice to you. In addition, Ingenio may notify your bank and/or authorities or take any actions it deems appropriate without notice to you, (a) if Ingenio suspects that you have failed to comply with any provision of this Group Manager Agreement, the Member Agreement or any policies or rules established by Ingenio; (b) if Ingenio is unable to verify or authenticate any billing or payment information you provide to Ingenio; or (c) if Ingenio suspects that your actions may be illegal or cause liability, harm or disruption for you, our users, Ingenio or the Site.

Payments of Fees from Ingenio to the Group Manager.
  1. As a Group Manager, you may collect a percentage of Net Fees for each Advisor in your group, minus Ingenio's commission from live calls and recorded calls that have been initiated through Advisors' listings in the Group, as described in the Advisor Rules Policy and Payment Policy. The Group Manager's agreed-upon percentage may range from 0% to 100% of the Advisors' Net Fees from live calls and recorded calls.
  2. As a Group Manager, Ingenio will pay you the percentage of the Net Fees generated from Advisors' listings in your Group as agreed upon between you and the Advisors in your Group as set forth below. You will only earn the percentage if the calls to the Advisors' listings originate from your Group's website, and are not subject to payments due to another Group Manager. Calls that originate elsewhere (such as the Member community at the Site) or are subject to payments to another Group Manager (such as where a new Customer is introduced to an Advisor through previous participation in another Group) will not generate earnings for you as the Group Manager. You will receive such agreed upon percentage of the Net Fees received by Ingenio only for:
    (a) All calls initiated from the Group's website, or initiated through a direct link to a listing in the Group that you created with the Link Management tool in My Groups, except as described in b. below.
    (b) All calls between an Advisor and a new Member introduced to the Advisor through the Group for a period equal to the "Term" agreed upon by you and the Advisors in your Group, beginning with the initial contact date between the Advisor and the new Customer. If the Member subsequently calls the Advisor through another Group, then Net Fees for calls between the Advisor and Member will continue to be paid to you (as the Group Manager responsible for the initial introduction of the Member to the Advisor) for the remainder of such Term; no Net Fees for such calls between the Advisor and Member will be paid to the Group Manager of the other Group while such Term is in effect.
  3. As the Group Manager for your groups, you authorize Ingenio to collect payments from Members on your behalf for any and all communications to Advisor listings in the Group.
  4. You will be responsible for marketing and driving traffic to your Group's website, as that is the only way you will earn a percentage of Net Fees from calls.
  5. Payment will be on a monthly basis.

Compliance with Applicable Laws.
You are solely responsible for the accuracy and appropriateness of all materials posted on your Group's website, and for ensuring that materials posted on your Group's website are not defamatory, in violation of copyright laws or otherwise illegal. Ingenio disclaims all liability for these matters.

Group Manager Conduct.
  1. You agree to abide by all Ingenio policies in the creation and management of the Group and the use of the Site, including the terms and conditions of the Member Agreement and Feedback Policy. If you create a group that contains materials that Ingenio, in its sole discretion, considers to contain "Adult Content," the Group Manager's group will be terminated and Ingenio reserves the right to terminate the membership and ability of the Group Manager to access the Group and/or Site immediately and without notice.
  2. You may not create, publish, distribute or permit any written or electronically transmitted publicity material (including without limitation, advertisements and press releases) that makes reference to Ingenio or the Site without first submitting the material to Ingenio and receiving its consent in writing (such consent not to be unreasonably withheld). You may not issue any public statement(s) regarding this Group Manager Agreement or the relationship with Ingenio without the prior written approval of Ingenio. Notwithstanding the foregoing, Ingenio may issue an initial press release regarding the relationship between you and Ingenio.
  3. Ingenio prohibits certain forms of advertising. Advertising commonly referred to as "spamming" is unacceptable to Ingenio and could damage our goodwill. You agree to comply with the terms of our Anti-Spam Policy. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, domain name, or return email address.
  4. You may not "frame" or "mirror" any part of Ingenio without the prior written authorization of Ingenio. Ingenio has the right, but not the obligation, to monitor the content on your Group's website for compliance with the terms of this Agreement and all applicable local, national, and international laws and regulations. Ingenio may notify you of any reasonable changes that you must make in order to make to comply with the Ingenio guidelines for Groups, and to otherwise comply with the terms of this Agreement.

Ownership and License.
As between the parties, Ingenio shall retain all ownership in the Site including all URLs and any content created or derived from the Site. You shall and hereby do assign to Ingenio all right, title and interest in any material, ratings, suggestions and/or comments submitted by you as part of the Member feedback system. You grant Ingenio the right to use or reference your username on the Site and elsewhere to promote the Site without your consent or compensation to you.

Term and Termination.
The term of this Agreement will begin upon creation of the Group and will end when terminated by either party. Upon the termination of this Agreement for any reason, all licenses granted hereunder shall immediately terminate and Group Manager will immediately cease use of, and remove from the Group's website, all links to the Site.

Warranty Disclaimer.
THE SITE AND ANY ADVISOR SERVICES OR OTHER SERVICES OBTAINED THROUGH THE SITE ARE PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND. INGENIO EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SITE AND ALL COMMUNICATIONS MADE THROUGH THE SITE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Some states do not allow the exclusion of warranty, so the above exclusions may not apply.

Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL INGENIO BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SITE WHETHER OR NOT INGENIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INGENIO'S AGGREGATE LIABILITY WITH RESPECT TO THIS GROUP MANAGER AGREEMENT WILL NOT EXCEED THE GREATER OF:
  1. THE TOTAL FEES ACTUALLY EARNED BY INGENIO FROM YOU (AFTER PAYMENTS TO YOU, ADVISORS AND OTHER THIRD PARTIES) IN THE PREVIOUS TWELVE (12) MONTHS; AND
  2. ONE HUNDRED DOLLARS ($100).
IN ADDITION, INGENIO MAKES NO REPRESENTATION THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND INGENIO WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusions may not apply.

Hold Harmless, Indemnity and Right to Withhold Payment.
YOU AGREE TO HOLD HARMLESS AND INDEMNIFY INGENIO, AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES, FROM AND AGAINST ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF THE SITE, INCLUDING ANY LIABILITY OR EXPENSE ARISING FROM ALL CLAIMS, LOSSES, DAMAGES (ACTUAL AND CONSEQUENTIAL), SUITS, JUDGMENTS, LITIGATION COSTS AND ATTORNEYS' FEES, OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED. In each case, Ingenio will provide you with written notice of such claim, suit or action. Ingenio shall have the right to withhold payments to you to offset liabilities and expenses covered hereunder.

Release and Waiver. YOU USE THE SITE, GROUP'S WEBSITE AND THE INGENIO ADVISOR SERVICES AT YOUR OWN RISK.
To the maximum extent permitted by applicable law, you hereby release, and waive all claims against, Ingenio and its employees and agents from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising out of or in any way connected with use of the Site. If you are a California resident, you waive your rights under California Civil Code 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations similarly waive their rights under applicable and/or analogous laws, statutes or regulations.

Relationship of the Parties.
Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent party and not as a contractor, partner, joint venture, agent, employee or employer of the other and shall not bind nor attempt to bind the other to any contract.

Arbitration.
Any controversy or claim arising out of or relating to this Agreement, the breach thereof or its subject matter shall be settled by binding arbitration in accordance with the consumer commercial arbitration rules of the American Arbitration Association. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in San Francisco, California, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Notwithstanding anything to the contrary, Ingenio, the Member, or any other party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.

Miscellaneous.

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision and the remaining provisions shall be enforced. Ingenio's failure to act with respect to a breach by you or others does not waive Ingenio's right to act with respect to subsequent or similar breaches. The failure of Ingenio to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision. The section headings and subheadings contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. This Agreement and the terms and policies referenced herein constitute the entire agreement between Ingenio and you with respect to the subject matter hereof.

YOU ATTEST THAT YOU HAVE READ THIS AGREEMENT CAREFULLY, HAVE HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL AND UNDERSTAND AND ACCEPT THE OBLIGATIONS WHICH IT IMPOSES UPON YOU WITHOUT RESERVATION. YOU HAVE ALSO TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. YOU FURTHER ATTEST THAT NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO YOU TO INDUCE YOU TO SIGN THIS AGREEMENT AND YOU AGREE TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND FREELY.

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