Agreement Addendum between User and Business Partnering International, Ltd. (BPI)
This Web site and service is offered to the User (advertiser, client, consultant) conditioned upon acceptance by the User without modification of the terms and conditions contained herein. This Agreement Addendum supplements the General Agreement. Use of the services, contents and/or products presented in any and all areas of this site constitutes the User’s agreement to abide by the General Agreement and by the following terms and conditions.
The process to find and ultimately hire a new marketing partner is both revealing and exciting, but it is equally demanding and challenging. A successful “agency search” (as it is generally known) is best done as a linear process under close supervision and control. Both parties (agency candidates and client advertiser) will invest time, talent, energy and money. As the managing party, AgencyFinder too must be treated with courtesy and respect.
These “terms” provide the guidelines for start-to-finish fair-play …
BPI provides its conditional “no-fee” AgencyFinder search and consulting services to registered corporate, not-for-profit and government advertisers and public relations clients, and to registered selector consultants hired by them subject to these Agreement Addendum terms and conditions.
AgencyFinder is patterned after the traditional “selling model” – the sellers (vendor, advertising agency, integrated marketing communications firm, public relations firm, etc.) bear the cost of the AgencyFinder outreach, search and consulting process.
By registering, you confirm that the information you supply is complete and accurate; that you are involved in preliminary research or an actual search for a new, additional or replacement advertising, public relations, direct marketing, digital, interactive, media buying, sales promotion, experiential or similar capabilities firm; that you, by your actions and/or title are authorized to conduct this search on behalf of your company; that your company is capable of funding the assignment at the budget level you indicate; that it is your intention to award your business to an agency identified through this process; that your award will be consistent with the afore-mentioned budget; and that this search is not being conducted under false pretenses.
During the active course of your search, your search as well as your corporate and personal identity is held in strict confidence. Nothing is revealed to anyone other than to BPI management and staff and the agencies we contact at your direction.
During the active course of your search, our Certified Agencies do not learn the names of companies and/or individuals conducting searches except in those cases when a specific inquiry is extended to a specific agency at your request.
During the active course of your search, at your option and for release when we invite your selected agencies, we can help prepare a press release for distribution to our media contacts at AdAge, ADWEEK, the New York Times and Wall Street Journal and other industry publications. If and when you or your selected agency announce to the press, please make the following mention of us: Agency selection, invitation and process assistance provided by BPI’s AgencyFinder. At the conclusion of your active search and award of your business, we may do so as well.
Following your on-line registration, if we communicate with you by e-mail or telephone but receive no response in a reasonable amount of time, your search is considered inactive and no longer entitled to confidentiality. Likewise, your search is no longer active and no longer entitled to confidentiality if you don’t engage AgencyFinder to extend agency invitations. If you did have an active search but are 60-days or more beyond agency invitations and if we have not granted a written extension or you have not kept us abreast of the status, we may choose to publicly announce your intentions to conduct an agency search or agency choice based on our last known information. In all cases where confidentiality is no longer entitled, we may elect to alert some of our agencies and suggest they contact you directly.
Certified Agency Confidentiality
Our Certified Agencies agree to hold each invitation they receive and the details of that invitation confidential; they understand that revealing information about a search to any outside party may cause them to be immediately excluded by you from further consideration and may lead to their removal from our database.
Agency Identity & Invitations
As soon as possible following the conclusion of your online registration, we telephone you to discuss our process, the CONFIDENTIALITY of our service, and the agencies you may have already pre-selected. If you need to expedite your search, you may call us Toll-Free at 1-877-XFINDER.
We will furnish you access to complete individual agency profiles on our website. You will use this material to create your short list for invitational purposes. Until we speak with you by phone, agencies are NEVER notified or invited to respond. That single call or multiple calls are to confirm your search, learn more about your requirements and, if appropriate, assist in making positive adjustments in your search criteria. Our BPI consultants provide on-going process and candidate counsel. BPI then prepares an RFD (Request for Dialogue) and all the paperwork to issue agency invitations and initiates the first contact with agencies on your behalf. In order to elicit a sufficient number of qualified and interested candidates, and based on our experience, we will generally invite at least 15 agencies. If you identify fewer than 15, we will identify the balance. Agencies are asked to respond directly to you; they do not communicate through BPI.
Only BPI is authorized to extend an invitation. You must not contact agencies directly until after we have invited them. Agencies need time to study your opportunity, explore potential conflicts, conduct preliminary research and then place their call to you.
The AgencyFinder process is successful because agencies are considered and invited only when they meet all your selection and assignment criteria.
That’s why all agencies participating in your search and review process (except those we declare as exempt) must be invited by BPI. If you already have agencies you wish to consider, then you agree to give us the identify of all such agencies in writing by name, URL, city and principle contact name in advance of learning the identity of BPI-identified agencies. Of those not already in the BPI database, we will contact, invite and enter their data and present it for your evaluation and subsequent invitation by BPI. For those agencies, we waive all but the $500 Registration Fee of the $5,500 annual subscription fee (for your specific review only). See North American or UK and European Subscription Plan.
You may exclude (exempt) agencies from this exclusivity condition only if you identify them in writing to BPI at the beginning of your search, and only if you have already established some form of invitational dialogue relative to this specific search.
Following initial agency invitations on your behalf, if you are approached by any agency wishing to be included in your review, please direct them to BPI for data entry, invitation and compliance with our terms & conditions.
As a result of cost reductions and time saved by the AgencyFinder process, BPI clients have frequently conducted and concluded rigorous agency searches and reviews in 60 days or less once the agency invitations have been issued. If you anticipate a delay that would extend your search decision and notification beyond 60-days of invitation, please explain the circumstances and advise us in writing so we can arrange for an authorized extension.
Your Due-Diligence Interview
In our agency review process, the agency/client due-diligence telephone interview is a vital component. Each party has the opportunity to learn and explore the likelihood that the two are a potential “good” match. That determination is based on whatever takes place during that single but otherwise unlimited telephone conversation. Following that call, unless there is mutual agreement that a “match” does not exist, the client will consider the agency a “Contender.” As such, the client will investment-spend time and resources to weigh the agency’s candidacy. Each “Contender” agency has the potential to bump another from contention, so each agency must clearly decline their intentions and desires (immediately and in writing) both to client and AgencyFinder.
“Contender” agencies must be fully fee-paid and are eligible for client inclusion only when they are. We depend on your periodic reports to monitor agency compliance. We prefer not to involve you in fee issues, but we will when an agency is non-compliant. At the conclusion of your interview, to help avoid that, we suggest you announce this to each agency:
We understand AgencyFinder may have allowed this call even if you are not yet fee-paid. We do not want to prejudice your candidacy by getting involved in fee issues. We simply ask that you comply with their Terms & Conditions. We will provide them with periodic updates; they will confirm your status.
You are responsible for keeping BPI posted on your search status. That feedback ensures that all invited agencies contact you to learn more about your opportunity, or advise us promptly so we can advise you when they must decline for reasons of conflict or workload. In some cases, it may be appropriate to invite additional agencies so you have an adequate group of contenders. That feedback also serves to ensure that all participating agencies are fee-paid with BPI. You are furnished with a candidate agency list with provision for simplified reporting via fax or e-mail. You must respond in writing to BPI update requests within 48 hours of that request.
No-Fee Conditions & Surcharges
Client or selector consultant searches, including staff assistance for search definition and the Request for Dialogue, candidate identification, agency invitations and appropriate after-invitation consulting, when conducted in accordance with all BPI terms & conditions are provided on a “free” no-fee basis. The only fees (surcharges) that may apply are not for services but for non-compliance with our terms as follows:
A. Exclusivity: BPI is granted exclusivity (see Exclusivity above) as a condition for providing no-fee search and consulting service. If you invite, include and/or conclude an AgencyFinder initiated search with an agency not registered with and/or invited by BPI, or not made exempt in writing by BPI, you are subject to a search surcharge of $5,000 for each such agency. An invoice will be rendered and payment is due upon receipt.
B. Search Duration: Clients and consultants shall conclude their reviews and notify BPI of the chosen agency within 60 calendar days from the date of initial agency invitations. Unless an extension has been granted by BPI in writing, you are subject to a search surcharge of $5,000. An invoice will be rendered and payment is due upon receipt.
C. Invitations: Under Agency Identity & Invitations, it is stipulated that “Only BPI is authorized to extend an invitation. You must not contact agencies directly until after we have invited them. Agencies need time to study your opportunity, explore potential conflicts, conduct preliminary research and then place their call.” To contact them prior to invitation is detrimental to the process, to your search and is only confusing to the agencies in its brevity or incompleteness. If you contact any of the identified agencies prior to invitation by AgencyFinder, you are subject to a surcharge of $10,000 and the search may be cancelled. An invoice will be rendered and payment is due upon receipt.
D. Failure to Invite: Following BPI’s staff-managed agency searches and identification of candidates provided to you with spreadsheet detail, if for whatever reason you elect not to issue invitations, you shall be subject to a $5,000 surcharge. An invoice will be rendered and payment is due upon receipt. If however you elect to have BPI invite your agencies at a later date (within 6-months of registration), that surcharge payment shall be refunded. In addition, BPI may terminate your search process for cause prior to agency introductions. In that case, if any BPI-identified agency is hired or compensated by you within 12 months of the date of your registration, you are subject to a surcharge of $10,000. An invoice will be rendered and payment is due upon receipt.
E. Misrepresentations: If you make any material misrepresentation to BPI or to invited agencies at any time during the process, you shall be subject to a $5,000 surcharge. An invoice will be rendered and payment is due upon receipt.
F. Search Termination: At any time after agency invitations have been sent, if you violate any of these terms & conditions; if we receive and confirm agency reports that you are non-responsive to their calls, their attempts to schedule and hold their “due diligence” telephone interviews or any subsequent commitments you have made to contending agencies; or if you engage in unprofessional, unethical or illegal activities, we have the unilateral right to immediately terminate the process and advise the agencies accordingly. We have the right to determine the value of the appropriate surcharge and an invoice will be tendered and payment is due upon receipt.
We make every effort to see that each client finds and hires a great new marketing partner. The success of our process has been based on each client’s selection of agency candidates with attributes and characteristics identified by the client as they outline and conduct their initial and subsequent search revisions. Since we encourage a complete and free flow of communication and information between the client and the candidates, we elect not to comment or assist in making recommendations. We are available however for telephone consultation, and we are also available (subject to schedules) to be present at your agency final presentations. We cannot accept any fee payment for those services; only out-of-pocket travel and lodging expenses are applicable.
If you are not successful identifying an acceptable marketing partner at the conclusion of a full and complete review, we will again help you identify a second group of qualified candidates, and will manage a second set of invitations. There is no charge for this, and at our option, the search duration may be extended an additional 60 days.
During the active portion of an agency search, only BPI management and staff and the invited agencies shall learn the identity of the client or details of the search itself. However, with your permission, if the magnitude of the project dictates or if there has been an unavoidable leak, it may be appropriate to make a public announcement or to respond to inquiries from the press.
At the conclusion of an agency search, whether it results in the award of business or not, BPI may elect to post the non-confidential details of that search (Client name, consultant name, location, logo, business category, budget range, agency finalists, awarded agency and location) on the AgencyFinder website; in the agency Flash Report newsletter; the Client Search News newsletter; industry trade publications; or within the framework of an industry association presentation.
Registered clients and consultants appear in the periodically updated Client List. Those companies are introduced this way: “We’re honored that clients and consultants throughout the world complete the registration process to search @ AgencyFinder. Nationwide or worldwide, large or small, these are long-established or newly emerging brands looking either for first-time, replacement or additional advertising and public relations category marketing partners. This partial listing of more than XXX registered companies is both broad and deep – enjoy.” The section stipulates “Due to BPI’s CONFIDENTIALITY regulations, other than name and location shown below, no additional information is available.” These posting are not editable.
You are invited to work with us in our Glen Allen, Virginia headquarters, although like most, you’ll probably favor the cost-savings and efficiency of working via telephone, Internet, e-mail and fax. You’ll discover that in performing our work on your behalf, our interaction is quite extensive, both in communicating and interacting with you as well as the agencies you identify for invitation and introduction. Your registration, the creation of your Client Search Criteria RFD (Request for Disclosure), multiple telephone interviews and business development discussion with BPI consultants and staff, and the subsequent steps of your agency search constitute conducting business in the Commonwealth of Virginia.
We communicate with our registered agencies and registered searchers (clients & consultants) via e-mail, fax and/or telephone. Where available, we use the “read-receipt” feature on e-mails and a delivery confirmation on faxes. When telephoning, if we fail to reach the intended party, we leave messages, either with a human or via voicemail. We cannot be held accountable or liable if these methods fail to reach the intended parties.
Governing Law, Forum Selection & Waiver of Jurisdiction
This Agreement Addendum shall be governed by and construed in accordance with the substantive laws of the Commonwealth of Virginia, without regard to the conflicts of law provisions thereof. User hereby consents to the jurisdiction and venue of the federal and state courts in the Commonwealth of Virginia located in Henrico County or the City of Richmond and further agrees that said courts shall have exclusive jurisdiction for the resolution of all disputes hereunder. User hereby waives any objection to venue or personal jurisdiction.
I understand that by entering into this agreement that I have subjected myself to personal jurisdiction in the Courts of the Commonwealth of Virginia pursuant to 8.01-328.1 of the Code of Virginia and I further understand that by the use of the computer or computer network which is located in the Commonwealth of Virginia that this shall constitute an act in the Commonwealth of Virginia which is the basis for personal jurisdiction under that statute.
This Agreement Addendum shall be deemed to include all other notices, policies, disclaimers, and other terms contained in this Web site; provided, however, that in the event of a conflict between such other terms and the terms of this Agreement Addendum, the terms of this Agreement Addendum shall control.
If you fail to perform any or all of your obligations under this Agreement Addendum, then you agree to pay all of BPI’s costs, including attorney’s fees (not to exceed 30%), the fees of collection agencies, and other expenses incurred by BPI in enforcing any of the terms of this Agreement Addendum. If you fail to pay any obligation within 30 days from the date that it is due, then you agree to pay 24% interest on the amount due at the rate of 2% per month.
If any provision is deemed to be unlawful or non-enforceable, that shall not affect the validity and enforceability of the remaining provisions. Any rights not expressly granted herein are reserved.