isNowListed.com
LICENSING, MARKETING AND SERVICES AGREEMENT
This Licensing, Marketing and Processing Services Agreement ("Agreement") is dated and made effective as of the date of your acceptance hereof ("Effective Date") by and between REALTECH LLC, an Ohio limited liability company ("REALTECH"), and (iii) subscribing Real Estate Agent, Lender, Broker, Bank, or Loan Officer ("AGENT "; collectively with REALTECH, the "Parties").
RECITALS
A. REALTECH will provide the software application, IsNowListed, (the "Software"); marketing, advisory and technology services for seller and buyer lead generation/management for AGENT; and related marketing services (collectively, "Services") to AGENT .
B. AGENT wishes to engage REALTECH to provide Property Marketing and Advanced Real Estate Training so that AGENT may increase AGENT’s business.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. ADVISORY SERVICES, MARKETING AND TECHNOLOGY FOR LEAD GENERATION
AGENT hereby agrees to obtain and REALTECH agrees to provide, on a mutually non-exclusive basis, advisory, Software and Services to AGENT. AGENT in its sole discretion will determine whether and on what terms to provide real estate services to any leads generated from the tools and techniques provided by REALTECH.
2. LICENSE GRANT
Subject to the terms and conditions in this Agreement and Exhibit A attached hereto, REALTECH grants to AGENT a limited, nonexclusive, nontransferable license to access and use the Software and related enhancements, modifications, revisions, versions, updates, and upgrades ("Software License"). REALTECH may sell the same or similar software to other AGENT .
AGENT may also allow its clients to have access to the client-facing applications of the Software. AGENT shall not use Software for the benefit of any third party other than its clients or use Software for the benefit of any third party that competes with REALTECH. AGENT may not, in whole or in part, copy, reproduce, translate, reverse engineer, disassemble, decompile, create derivative works based on Software. Any use, reproduction, or redistribution of Software or any other software provided by REALTECH not in accordance with the terms of this Agreement is expressly prohibited. Collectively, the Software, the Services, the Marketing and the deliverables related to them shall hereinafter be referred to as "Deliverables." During the term of this Agreement and for the period set forth in Section 7 below, AGENT may advertise the Deliverables under the trademarks and trade names that REALTECH may adopt for the Deliverables from time-to-time.
3. FEES FOR SERVICES
As compensation for the Deliverables, REALTECH shall receive monthly payments as provided in the schedule set forth in Exhibit A attached hereto (collectively, the "Fees"). Notwithstanding anything in this Agreement to the contrary, the obligation to pay the Fees shall be solely that of the AGENT who acknowledges this agreement. REALTECH sole remedy as it relates to AGENT for failure of an AGENT to pay the fees for which that AGENT is obligated will be for REALTECH to terminate the Services for that AGENT.
4. INDEPENDENT CONTRACTOR AND SCOPE OF AUTHORITY
The relationship of REALTECH with AGENT in connection with this Agreement is that of an independent contractor. As an independent contractor and service provider to AGENT , REALTECH cannot legally make, bind, or obligate AGENT to any contract, lease, promissory note, loan, or financial obligation, nor pledge the credit of AGENT , without the express written consent of the Originator or AGENT to do so.
5. CONFIDENTIAL INFORMATION
a. Definition. "Confidential Information" shall mean: (i) all information disclosed in tangible form by a party, and (ii) all information disclosed orally or otherwise in intangible form by a party and designated as confidential or proprietary at this time of disclosure. Confidential information may include personally identifying and financial information, without limitation, names, addresses, telephone numbers, email addresses, social security numbers, account numbers, account information and such other information of REALTECH Staff and AGENT employees and customers; computer, fax and other communications, computer programs, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information.
b. Purpose. The parties to this Agreement shall use the Confidential Information only to fulfill all commitments or exercise rights under this Agreement.
c. Confidentiality Obligation. Each party agrees to protect the other party's Confidential Information by using the same degree of care, but not less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as that party uses to protect its own confidential or proprietary information of a like nature. Each party shall limit the use of and access to the other party's Confidential Information to the party's employees or independent contractors who need to know such Confidential Information for the purposes set forth in paragraph b above and who have entered into binding obligations of confidentiality substantially similar to the obligations set forth herein.
d. Survival of Provisions. Except where otherwise required to be kept confidential for a longer duration by any applicable law or regulation, all duties of confidentiality under this section shall continue for a period of one year after the last disclosure of Confidential Information.
e. Exclusions. Confidential Information as defined in paragraph a above shall not include Confidential Information that: (i) is or becomes a matter of public knowledge through no fault of the party seeking to use such information; or (ii) was in a party's possession or known to it prior to receipt from the other party; or (iii) was rightfully disclosed to a party by another person without restriction; or (iv) in independently developed by a party without access to such Confidential Information. A party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order, provided the applicable protected party is given prompt written notice of such requirement and the scope of disclosure is limited to the extent possible.
f. Independent Development. The terms of confidentiality herein shall not be construed to limit either party's right to independently develop or acquire products without use of the other party's Confidential Information. The foregoing shall not, however, be deemed to grant to either party a license under the other party's copyrights, trademarks or patents.
g. Return of Confidential Information. Upon written request by a party at any time, a party possessing Confidential Information shall: (i) turn over to the requesting party all Confidential Information of the requesting party all documents or media containing the Confidential Information, and any and all copies or extracts thereof, or (ii) destroy the Confidential Information, and any and all copies or extract thereof, and provide the requesting party with written certification of such destruction.
h. Equitable Relief. The parties acknowledge and agree that due to the unique nature of Confidential Information, money damages would not be a sufficient remedy for any breach of these confidentiality provisions and the damaged party shall be entitled to injunctive relief as a remedy for such breach, without prejudice to any other rights and/or remedies available to the damaged party under applicable law. A breaching party will notify a protected party in writing immediately upon the occurrence of any such unauthorized release or other breach.
i. Intellectual Property Rights. No party acquires any intellectual property rights or any other rights in the Confidential Information under this Agreement or through any disclosure hereunder, except the limited right to use the Confidential Information in accordance with this Agreement.
6. REPRESENTATIONS AND WARRANTIES; COVENANTS
a. Good Standing, Authority. Each AGENT and REALTECH represent and warrant in respect of itself that it is properly formed, validly existing and in good standing under applicable law, and has all authority necessary to enter into the Agreement.
b. Compliance with All Applicable Laws, Regulations, and Policies. Each AGENT and REALTECH represent and warrant in respect of itself that it shall comply with all applicable laws, regulations, binding agreements, and internal AGENT policies, all as amended, as it performs its obligations or exercises its rights under the Agreement.
c. Marketing without the expectation of referral. Each AGENT represents and warrants that isNowListed is not and shall not be used as a mechanism to exchange a thing of value for the referral of business. isNowListed is a marketing tool offered to Real Estate Agents free of charge to market listings and grow a Real Estate Agent’s buyer and seller business. Real Estate Agents are using the isNowListed tool freely with permission of REALTECH. Lender, Bank, Loan Officer and other advertisers are purchasing advertising subscriptions directly from REALTECH. Real Estate Agents are not granted license to isNowListed by any Lender, Bank or Loan Officer, they are granted license only by REALTECH subject to the terms and conditions contained in the isNowListed Licensing, Marketing and Services Agreement. Loan Officer fees are for marketing, training and services offered by REALTECH. If any party offers to exchange the isNowListed marketing, advisory and technology services for the referral of business, this is considered a violation of AGREEMENT any AGENT must immediately report the violation to REALTECH using the address contained in the notices paragraph of the agreement.
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d. REALTECH further represents, warrants and covenants as follows:
i. The Deliverables do not and will not infringe any valid intellectual property rights or other proprietary rights of any third-party and said Deliverables shall be clear of any claims, liens and encumbrances;
ii. REALTECH has the right to grant AGENT the License hereunder. REALTECH has not previously granted, and will not grant any rights, to any third-party which are inconsistent with the rights granted to AGENT hereunder;
iii. All Deliverables shall meet reasonable standards of clarity and detail, will be compatible with existing systems and third-party programs used by AGENT and also compatible with all other Deliverables hereunder. The documentation accompanying the Deliverables shall be reasonably adequate, complete, and enable exploitation of all features thereof.
7. INITIAL TERM OF AGREEMENT; TERMINATION
a. Initial Term. This Agreement shall have an initial term of 30 days ("Initial Term") from the Effective Date, subject to automatic renewal after the Initial Term for successive monthly terms absent notice of termination pursuant to paragraph 7.b below and subject to termination for Cause (as defined below) pursuant to paragraph 7.c below.
b. Notice of Termination. During the Initial Term either party may for any reason provide notice of termination or nonrenewal of this Agreement at any time. Such notice must be provided no fewer than 15 days before the end of the Initial Term. During the contract periods subsequent to the Initial Term, either party may for any reason provide notice of termination or nonrenewal of this Agreement at any time. Such notice must be provided no fewer than 15 days before termination.
c. Termination for Cause. This Agreement may be terminated immediately by AGENT or REALTECH for "Cause." "Cause" shall include any of the following with respect to the relationship established by this Agreement: (i) fraud; (ii) misrepresentation, misappropriation, embezzlement or act of dishonesty; (iii) conviction of a felony; (iv) breach of any material covenant, representation, or warranty in this Agreement and a failure to cure such within five days notice from the nonbreaching party; (v) knowing, willful, reckless, or grossly negligent failure by AGENT or their AGENT or REALTECH to perform their respective material obligations and duties under this Agreement and a failure to cure such within five days notice from the nonbreaching party; and (vi) knowing, willful, reckless, or grossly negligent disregard of material AGENT policies and procedures or material violation of applicable laws and regulations governing AGENT or REALTECH and failure to cure such within five days notice from the nonbreaching party.
d. Termination for Performance. This Agreement may be terminated immediately by REALTECH for REALTECH "Performance." "Performance" shall include any of the following with respect to the relationship established by this Agreement: (i) inability of REALTECH to collect seller leads; (ii.) inability to offer single property marketing services; (iii.) inability to provide a contact management system for emailing potential clients or (iv) any other technical inabilities to performed promised services.
e. Survival of Termination. The rights and obligations which by their very nature are intended to survive expiration or termination of this Agreement, including, but not limited to, the provisions of Sections 5, 7, and 10(i), shall survive any expiration or termination of this Agreement.
8. NON-SOLICITATION OF EMPLOYEES
Neither party hereto shall, during the term of this Agreement and for one year thereafter, solicit for employment any of the employees of the other party. This provision, however, does not restrict: (a) REALTECH from doing business with former AGENT , employees, or associates of AGENT if such persons become employees or associates of other third party entities with whom REALTECH does business or for whom REALTECH otherwise provides services; or (b) any current employee, associate, or AGENT of AGENT or REALTECH who contacts the other party directly or responds to a general advertisement of such other party soliciting employees.
9. ARBITRATION
If there is any controversy between the parties involving this Agreement, the parties shall first use their best efforts to resolve such controversy by exchanging relevant information and negotiating in good faith.
If such controversy cannot be resolved by the parties negotiating in good faith within thirty (30) days, either party may submit such controversy to binding arbitration before the American Arbitration Association ("AAA"). The arbitration shall be conducted in accordance with the AAA’s Commercial Arbitration Rules. The arbitration shall be convened in an agreed upon location in the Cincinnati , Ohio area. The parties shall maintain the confidentiality of the arbitration, including the documents produced in discovery, all filings and the existence of the arbitration proceeding, except as disclosure may be required or compelled by applicable law or regulation. The arbitrator(s) shall have the right to render equitable, as well as other, awards and relief, and shall provide the parties with a reasoned explanation of their decision in writing, together with a computation of any damage award. The costs of such arbitration, including the costs of the arbitrator and of preparation and presentation of the case, shall be borne by the losing party or, if both parties are found by the arbitrator to have some liability in the case, then by the parties in the proportion that such liability is determined to exist.
If a court of competent jurisdiction determines that the arbitration provisions of this Agreement do not cover any dispute arising out of this Agreement or involving these parties, then the parties agree to submit themselves to the jurisdiction of the courts of the State of Ohio , venue in Hamilton County . If any action, in law or in equity, is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and necessary disbursements.
10. MISCELLANEOUS PROVISIONS.
a. Assignment. This agreement may be transferred, assigned or conveyed by either party only with the prior written consent and approval of the other.
b. Entire Agreement. This writing contains the entire agreement between the parties and supersedes any previous drafts or executed agreements for Services. It shall not be changed, supplemented, modified or amended in any manner except by an instrument in writing properly executed by both parties.
c. Notice. Any notice, request, or other communication required to be given pursuant to the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered in person or the business day following deposit with an overnight delivery service for next day delivery or three (3) days after being deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, and addressed as follows:
If to AGENT :
AGENT
Contact information as entered
and updated on Subscription Profile
If to REALTECH:
REALTECH
7655 Cox Lane, West Chester Ohio 45069
Attn: General Counsel
The addresses of either party may be changed by providing notice to the other party delivered in accordance with this provision.
d. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their successors and assigns
e. Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio , without regard to the conflict of law provisions thereof.
f. Integration Clause. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this Agreement or the application of any provision to any party or circumstances shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of the provisions of this Agreement or the application of the provision to the other parties or circumstances.
g. Waiver of Provisions. The waiver of any right or breach under any term or condition of this Agreement shall not be deemed to constitute the waiver of any other right or breach under the same or any other term or condition of this Agreement.
h. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same agreement.
i. Indemnification. AGENT and REALTECH each agree to indemnify, defend and hold harmless the other with regard to any claims, causes of action, losses, damages, costs, and expenses (including attorney fees and other professional fees and expenses) incurred by the indemnified party as a result of any willful, reckless, or grossly negligent act or omission to act by the indemnifying party in respect of any of its obligations under this Agreement, including but not limited to any representation, warranty, indemnity, covenant, or agreement made pursuant to this Agreement. REALTECH further agrees to indemnify, defend and hold AGENT harmless from any claims, causes of action, losses, damages, costs, and expenses (including attorney fees and other professional fees and expenses) incurred by AGENT arising out of or related to a claim of intellectual property infringement made by a third-party against AGENT (including, but not limited to infringement of patents, copyrights, trademarks, trade dress and trade secrets) due to use by AGENT of the Deliverables.
EXHIBIT A
Subscription Fees
IsNow Listed for Loan Officers
1-20 Users $157.00 monthly per user Advertise on up to 20 Real Estate Agent Pages with Unlimited Listings
IsNow Listed for Brokers, Banks & Lenders
Bronze 21-50 Users $137.00 monthly per user
Silver 51-100 Users $117.00 monthly per user
Gold 101-250 Users $97.00 monthly per user
Diamond 250 - 500 Users $87.00 monthly per user
Enterprise Users with over 500 Loan Officers, Call for pricing
isNowListed Exclusive Market Option
All users have the option of purchasing market exclusivity in a specific metro and/or state. Simply take the number of Real EstateAagents available in a current market and multiply that number by 20%. Then divide the result by 20 (Real Estate Agents per account). The result is the number of accounts which must be purchased for area exclusivity. (e.g., A lender requesting the Knoxville metro exclusively would take the total number of agents, 4000, and multiply this number by 20%, or 800 agents. This is our target reach in a market. Since the average loan officer can advertise on 20 Real Estate Agent pages, this means that the lender would need to sign up 40 Loan Officers in Knoxville.) Exclusivity may not be purchased in markets where users are active prior to the new "exclusive" user agreement; however any remaining accounts may be purchased, which would effectively close the market to new subscribers.
isNowListed for Real Estate Agents
All Agents Free of charge, provided that REALTECH has paid advertisers within the AGENT’S market.
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