HOMEAWAY.COM, INC.

INFLUENCER AGREEMENT

 

This HomeAway.com, Inc. Influencer Agreement (along with the SOW, the “Agreement”), made by and between HomeAway.com, Inc., a Delaware corporation located at 1011 W. Fifth Street, Suite 300, Austin, TX 78703 (“HomeAway”) and you (the “Influencer”) is made as of the day the influencer agrees to these terms and signs the corresponding Statement of Work (“SOW”) (the “Effective Date”).

 

1.              Influencer Services.

1.1.          Influencer Services.  Influencer will perform the Influencer Services in accordance with the descriptions, specifications, fees and delivery schedule set forth in the SOW, or otherwise agreed between the parties.  “Influencer Services” means the services performed under this Agreement. If the SOW does not set forth a delivery schedule or milestones for the performance of the Influencer Services, then Influencer will perform such Influencer Services with due diligence under the circumstances.  The parties agree that time is of the essence for Influencer’s performance hereunder.  Influencer will promptly notify HomeAway of any delay or anticipated delay in the performance of the Influencer Services, the reasons for the delay and the actions being taken by Influencer to overcome or mitigate the delay.  HomeAway may, at its option, provide any or all of the Influencer Services to one or more of its Affiliates (as defined below) or direct that any of the Influencer Services be provided to its Affiliates, in which case all rights granted and obligations incurred under this Agreement in connection therewith shall also inure to the benefit of such Affiliates.  As used herein, the term “Affiliate” of HomeAway shall mean HomeAway, Inc. (Delaware) and any entity that is directly or indirectly controlled by HomeAway, Inc. (Delaware) and its joint venture partners. 

1.2.          Reports.  Influencer will prepare and furnish reports to HomeAway, upon request or as otherwise required by SOW, concerning Influencer’s progress on the Influencer Services.  Influencer will provide the progress reports in the form and with the content reasonably requested by HomeAway.

1.3.          Changes to Influencer Services.  HomeAway may from time to time request changes to the Influencer Services and Influencer will promptly respond to any such request.  Any agreed upon changes must be evidenced in a written amendment (“Change Order”).  Changes will become effective only upon execution of a Change Order.

 

2.              COMPENSATION.

2.1.          Pricing; Invoices.  Influencer will issue an itemized invoice to HomeAway at the address shown in SOW. Payment of undisputed amounts due hereunder will be made by HomeAway to Influencer within ninety (90) days after HomeAway’s receipt and validation of properly submitted and correct invoice(s).  If any invoice is disputed, the disputed amount will be due and payable within forty-five (45) days after resolution of such dispute.  If Influencer does not invoice HomeAway for Influencer Services within twelve (12) months after completing such Influencer Services, Influencer hereby waives all right to payment or reimbursement by HomeAway. HomeAway may set off any amount owed by Influencer or any of its Affiliates to HomeAway against any amount owed by HomeAway or its Affiliates to Influencer under this Agreement and delay payment of any invoice pending correction of any errors or omissions.  Under no circumstances may Influencer include on its invoices charges arising out of or related to researching, reporting on or correcting tax, accounting or reconciling errors or shortfalls of which it has been notified in writing. 

2.2.          Taxes.  The price quoted for the Influencer Services is inclusive of all sales, use, value added, and other similar taxes (“Transaction Taxes”), although invoices must separately itemize all Transaction Taxes.   In the event taxes are required to be withheld on payments made hereunder by any U.S. (state or federal) or foreign government, HomeAway may deduct such taxes from any amounts owed to Influencer and pay them to the appropriate taxing authority.  At Influencer's written request, HomeAway shall provide Influencer with official tax certificates or similar documents evidencing the remittance of such taxes to the relevant tax authorities. Influencer shall deliver to HomeAway, prior to receipt of any payments hereunder, a duly completed and signed copy of IRS Form W-9, or IRS Form W-8BEN, or IRS Form W-8ECI (or any successor thereto), as appropriate, or other documentary evidence satisfactory to HomeAway to establish that Influencer is not subject to United States federal backup withholding or is entitled to an exemption from, or reduction of, United States federal withholding tax, as applicable. Influencer shall promptly notify HomeAway of any change in circumstances which would cause Influencer to be subject to United States federal backup withholding or modify or render invalid any claimed exemption or reduction of United States federal withholding tax.

 

3.              WARRANTIES AND REPRESENTATIONS.  Influencer represents and warrants to HomeAway as follows:

3.1.          Influencer Services Warranty.  The Influencer Services will be (a) of high quality; (b) will be performed in a timely, workmanlike manner and with professional diligence and skill and (c) will not infringe upon, violate or misappropriate any right, including any intellectual property right of any third party.  If Influencer is in breach of any of the foregoing warranties, Influencer will promptly re-perform the Influencer Services at no charge to HomeAway.  If Influencer is unable to re-perform the Influencer Services within thirty (30) days of being notified by HomeAway of the error or nonconformity then HomeAway will be entitled to a full and prompt refund in respect of such Influencer Services.

3.2.          Authority, Power; No Conflict.  Influencer has all necessary right, power and authority and has taken all necessary action to enter into and perform this Agreement and to grant the rights herein. The execution and performance of this Agreement by Influencer will not violate or conflict with the rights of any third party or with any service, employment, confidentiality, consulting or other agreement to which Influencer or its employees may be bound.

3.3.          Compliance with Laws.  Influencer will comply with all local, state and federal laws, ordinances, regulations and orders with respect to its performance under this Agreement including advertising and promotional laws as set forth by the Federal Trade Commission.  Influencer shall disclose that he or she was paid for his or her promotional services in all posts, tweets, ads, and other public communications.

3.4.          Survival/Waiver of Warranties.  All the foregoing warranties will not be deemed waived by reason of HomeAway's acceptance of, inspection of or payment for the Influencer Services.

   

4.              LIMITATION OF LIABILITY. EXCEPT FOR INDEMNIFIED CLAIMS UNDER SECTION 5 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY WILL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING WILL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.    EXCEPT FOR INDEMNIFIED CLAIMS UNDER SECTION 5 (INDEMNIFICATION), INFLUENCER’S LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) THREE TIMES THE AGGREGATE AMOUNTS PAID BY HOMEAWAY HEREUNDER; OR (B) ONE MILLION US DOLLARS (US$1,000,000).  UNDER NO CIRCUMSTANCES WILL HOMEAWAY, ITS AFFILIATES AND/OR RELATED COMPANIES BE LIABLE TO INFLUENCER OR ANY THIRD PARTY FOR AN AMOUNT GREATER THAN THE AGGREGATE AMOUNTS PAID BY HOMEAWAY HEREUNDER.

 

5.              INDEMNIFICATION.

5.1.          Indemnity.  Influencer agrees to defend, hold harmless, and indemnify HomeAway, its Affiliates and their respective directors, officers, employees, agents, and assigns (“Indemnified Parties”), from and against any and all claims, suits, actions, demands, and proceedings of any kind threatened, asserted or filed against HomeAway and/or any HomeAway Indemnified Party by any third party (collectively "Claims"), and any damages, losses, expenses, liabilities or costs of any kind, (including but not limited to reasonable attorneys' fees, witness fees and court costs) incurred in connection with such Claims (including those necessary to successfully establish the right to indemnification), arising out of or relating to any breach or alleged breach of the warranties in Sections 3.1(c), 3.2 or 3.3.

5.2.          Procedure.  HomeAway will have the right to approve the counsel selected by Influencer for defense of the Claims.  HomeAway will provide Influencer reasonably prompt written notice of any such Claims and provide Influencer with reasonable information and assistance, at Influencer’s expense, to help Influencer to defend such Claims.  Influencer will not have any right, without HomeAway’s written consent, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability, infringement or wrongdoing on the part of HomeAway or its Affiliates or otherwise requires HomeAway or its Affiliates to take or refrain from taking any material action.

 

6.              TERM AND TERMINATION.

6.1.          Term.  The term of this Agreement (the “Term”) will commence on the Effective Date and will continue until such time as the Influencer Services are completed.  HomeAway may terminate this Agreement or any or all of the Influencer Services for convenience upon five (5) days prior written notice to Influencer.  Either party may terminate this Agreement immediately (a) upon the other party's material breach that is not cured within twenty (20) days after notice of such breach; and (b) if the other party becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. 

6.2.          Effect of Termination.  Following any termination or expiration of this Agreement, (a) Influencer will not be obligated to continue performing any such terminated Influencer Services, (b) HomeAway will pay to Influencer all undisputed Influencer Services Fees earned prior to termination (c) each party will return any confidential information or property of the other party within ten (10) days from the date of such termination, and (d) the terms and conditions of Sections 2.1 and 4-10 will survive such termination or expiration of this Agreement.

 

7.              Governing Law; Attorneys’ Fees.  This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington, without reference to its choice of law principles.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in King County, Washington, and the parties hereby consent to the personal jurisdiction and venue therein.  In any action, suit or proceeding to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees, court costs and other expenses from the other party. 

 

8.              NOTICEAll notices, authorizations, and requests in connection with this Agreement will be deemed given: (a) three (3) days after they are deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; (b) one (1) days after they are sent by air express courier, charges prepaid, (c) on the date sent by facsimile (with confirmation of transmission); (d) when received by the addressee if sent by a nationally recognized courier from outside the US (receipt requested), in each case to the address set forth above or to such other address as the party to receive the notice or request so designates by written notice to the other.  All notices to HomeAway must be copied for the attention of HomeAway’s General Counsel.

 

9.              No Publicity.  Influencer shall not without HomeAway's prior written approval, (a) issue or make, or permit to be issued or made, any public communication of any kind regarding this Agreement or the relationship of the parties, or (b) use the name, trade name, service marks, trademarks, trade dress or logo of HomeAway, including in any Influencer customer list.  Requests for approval should be made to Influencer’s main HomeAway contact but must be authorized by HomeAway’s press team.  All authorized use of HomeAway branding must follow the brand guidelines provided by HomeAway.

   

10.            GENERALThis Agreement inures to the benefit of HomeAway and its successors and assigns.  Influencer may not assign any right or interest in this Agreement, nor delegate the performance of any of its obligations, without HomeAway's prior written consent.  HomeAway's approval of assignment or subcontract will not relieve Influencer from its obligations under this Agreement.  This Agreement is non-exclusive and nothing herein will be construed as creating a minimum commitment for business on the part of HomeAway to Influencer.  Nothing in this Agreement will be construed as creating an employer-employee, agency, joint venture or partnership relationship.  Influencer has no authority to bind or otherwise obligate HomeAway in any manner.  Influencer agrees that it is responsible for all of its’ own insurance coverage and that it shall maintain the requisite insurance coverage as required by all applicable laws and as necessary to meet its’ obligations under this Agreement. The insurance coverage(s), which covers commercial general liability and professional liability, must not be less than the annual fees under this Agreement.  Upon request, Influencer agrees to furnish proof of insurance coverage. This Agreement, and any agreement specifically incorporated herein by reference, contains the entire agreement between the parties, and no promises, provisions, terms, warranties, conditions or obligations whatsoever, whether express or implied, other than herein set forth, will be binding upon either party.  No waiver of any provision of this Agreement will be valid unless made in writing and signed by the waiving party.  No failure or delay to enforce any provision of this Agreement shall preclude a party from so enforcing at a later date.  This Agreement is not valid or binding unless signed by an authorized representative of HomeAway.  In the event that any Deliverables are shipped or provided outside of the United States, Influencer will be responsible for all compliance with export laws and any customs obligations. Any subsequent additions, deletions or modifications to this Agreement will not be binding upon the parties unless the same are mutually agreed upon and incorporated herein in writing signed by HomeAway.

 

 

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