CONSTELLATION WEB SOLUTIONS, INC. DBA MARKET LEADER ("ML") SERVICE AGREEMENT
THIS PRODUCT AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL OR LEGAL ENTITY ("CLIENT") SUBSCRIBING FOR USE OF THE ML PRODUCT AND ML. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE AGREEING TO THESE TERMS. BY AGREEING TO THESE TERMS OR USING THE ML PRODUCT, WHICHEVER OCCURS EARLIER, CLIENT IS AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT
1. Subscription to ML Product.
Client hereby agrees to license the ML real estate sales prospect cultivation and management tools (consisting of a hosted real estate website and integrated CRM tools) as described on the web form submitted in conjunction with Client's acceptance of this Agreement (the "Web Form") (the "System"). Client hereby also agrees to purchase real estate advertising services (consisting of advertising to be purchased by ML for the purpose of generating visitor traffic to the website) ("Advertising Services"), as described on the Web Form. The specific System and Advertising Service components (collectively, the "Product") and the fees payable with respect to such components are set forth in the Web Form. ML warrants that it will provide the System and Advertising Services specified in this Agreement with reasonable diligence in a professional and workmanlike manner, consistent with generally accepted standards in the information systems industry. Subject to the foregoing, ML may add to, change or terminate any component of the System or the Advertising Services at any time; provided however, that no such change shall materially increase Client's obligations or materially decrease Client's entitlements under this Agreement.
2. Email Use.
Client and each of its Users agree to comply with all ML policies and all laws, rules and regulations relating to the sending of email messages (including the CAN-SPAM Act) through the System. Additionally Client and all if its Users agree not to disable or attempt to circumvent any consumer protection implemented by ML for email communication through the System. Any violation of this section may result in loss of features, up to and including termination of your account. If Client or any of its users imports lists for the purpose of sending email to such list, then Client warrants that each person on such list has previously opted-in to receive email communication from Client. Client will indemnify ML for any costs or damages incurred by ML due to Client's or its User's failure to comply with this section.
3. Grant of License.
During the Term, ML grants Client a non-exclusive, non-transferable, non-sublicensable license to use, and, in the case of ML Products that permit additional Users (as set forth in Section 19), to allow such Users to use, the System, on the terms set forth in this Agreement.
4. License Restrictions.
5. Term of Agreement.
The "Initial Term" shall mean (i) the number of full calendar months in the term as specified in the Web Form beginning on the date on which ML notifies Client that the System is ready for Client's production use ("Production Date"), plus (ii) an additional prorated portion of a calendar month if the Production Date occurs prior to the first day of a calendar month ("Prorated Month"). Upon expiration of the Initial Term, this Agreement will automatically renew on a month-to-month basis (such Initial Term and renewal period, the "Term") until terminated by Client in accordance with Section 10.3 or by ML by delivery of written notice to Client at least thirty days prior to the date of such termination. Except as specified in Section 10.1 below, Client may not terminate this Agreement prior to the expiration of the Initial Term. Following expiration of the Initial Term, ML may increase the fees payable by Client under this Agreement, upon not less than 30-days' written notice.
6. Fees and Payment.
Client shall pay ML the One Time Setup Fee and monthly System Fees and Advertising Fees specified in the Web Form, in accordance with the timing specified in the Web Form. All payments by Client to ML under this Agreement shall be non-refundable, and made via automatic payment from either Client's bank account or credit card. Client shall undertake any additional actions reasonably requested by ML to implement the foregoing automated fee payment process. Any amounts past due from Client under this Agreement shall accrue interest at a rate which is the lesser of two percent (2%) per month or, if less, the maximum rate allowable by law. Sales tax, if applicable will be added to fees owing pursuant to this Agreement.
7. Client's ML Site.
Client shall promptly provide all information and materials reasonably requested by ML to implement Client's ML Site. ML shall have sole discretion with respect to the content and layout of Client's ML Site and banner ads, pop-up ads and all other forms of advertising of any nature whatsoever shall be prohibited on Client's ML Site. Client hereby grants ML a royalty-free, limited, non-exclusive right, authorization, and license to use the name, logos, trademarks, copyrights and related intellectual property of Client, its Users, or its licensors, solely as necessary to fulfill the purposes contemplated in this Agreement.
8. Confidential Information.
ML and Client (and its Users) shall each retain in confidence all information received from the other party pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information"), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under the terms and during the term of this Agreement. Each party shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its immediate legal and financial consultants as required in the ordinary course of that party's business. Notwithstanding the foregoing, the restrictions set forth above will not apply to (i) information previously known to the receiving party without reference to the disclosing party's Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the receiving party, (iii) information that is independently developed by either of the parties, or (iv) information required to be disclosed pursuant to applicable law. The foregoing shall also not prevent ML from using Client's name and brokerage affiliation and/or any non-proprietary components of Client's ML Site in its marketing and training materials.
9. Client's Representations and Indemnification.
Client represents and warrants that currently and throughout the Term (i) Client and any Users are real estate agents or brokers in good standing and are fully authorized to publish, and authorize ML to publish without the necessity of obtaining any further permissions from or payments to any third party, all of the materials provided for publication on Client's ML Site, including without limitation, MLS listings, text, logos, photos and other graphics, (ii) Client and any Users are in compliance with all applicable laws and regulations with respect to its activities related to this Agreement, and (iii) Client and any Users will honor any "opt out" requests received from any sales prospects who are identified through the activities contemplated in this Agreement. Client shall indemnify, defend and hold harmless ML and its officers, employees, agents and affiliates from and against all losses, expenses, liabilities, damages and costs including, without limitation, reasonable attorneys' fees (collectively "Costs"), to the extent that such Costs are attributable to any breach by Client or any User, employee, independent contractor, or affiliate thereof, of any representations, warranties or other obligations set forth in this Agreement.
10.1 Termination for Breach. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by giving the breaching party written notice specifying the nature of the breach in reasonable detail and the non-breaching party's intention to terminate (a "Termination Notice"). If the breach has not been cured within the period ending thirty (30) days following delivery of the Termination Notice, then this Agreement shall automatically terminate. Notwithstanding the foregoing, if Client is in breach of any material provisions of this Agreement, including the license restrictions of Section 4, the payment terms of Section 6 or the confidentiality restrictions of Section 8, then ML may immediately suspend or terminate Client's use of the System and Advertising Services. Any such suspension shall not relieve Client of any of its obligations under this Agreement or entitle Client to any refund of payments previously made.
10.2 Termination by ML. ML may terminate this Agreement at any time, without cause, upon thirty (30) days prior written notice to Client.
10.3 Client Termination Procedure. If termination is permitted by this Agreement, Client may terminate by giving notice on or before the 25th day of the then current month (in the manner set forth below or as modified in written notice from ML), and signing and returning the cancellation confirmation provided by ML on or before the 25th day of the then current month, in which case termination will become effective on the last day of the next calendar month. To terminate the Business Suite Products, Client must provide termination notice by email to email@example.com or by telephone to 1-877-732-6544. To terminate the Professional or Essentials Products, Client must provide termination notice by email to firstname.lastname@example.org or by telephone to 1-800-491-3687.
10.4 Effect of Termination. Upon termination of this Agreement, Client shall discontinue its use of the System and Advertising Services. Notwithstanding the foregoing, termination of this Agreement by ML shall not limit Client's obligation to pay all of the applicable fees, nor restrict ML from pursuing any other remedies available to it, including injunctive relief. Sections 2, 4, 6, 8, 9, 10, 12, 13, 15, 16, and 18 shall survive termination of this Agreement, along with any other provisions that are intended by their terms to survive.
11. Application of Advertising Fees.
ML shall use its reasonable commercial judgment with regard to the application of any amounts paid by Client with respect to the Advertising Services under this Agreement ("Advertising Fees"), with the goal of driving visitors to Client's ML Site. Notwithstanding the foregoing, ML shall have sole discretion with respect to the application of all Advertising Fees and may, without limitation, utilize any or all of the following methods, and retain a portion of the Advertising Fees as payment for such services: (i) contract with third-parties to place advertisements on Client's behalf, (ii) purchase web traffic from third-parties, which traffic will be directed to Client's ML Site, (iii) contract with ML or its affiliates to place advertisements on Client's behalf, and/or (iv) redirect visitors from any web site owned by ML to Client's ML Site.
12. Limitation of Liability.
ML AND ITS AFFILIATES AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT WITH RESPECT TO SYSTEM FEES ONLY (AND NOT AMOUNTS PAID WITH RESPECT TO ADVERTISING FEES OR ANY OTHER FEES) DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE TO SUCH LIABILITY WAS FIRST ASSERTED. EXCEPT WITH RESPECT TO (i) ANY WILLFUL OR DELIBERATE INFRINGEMENT OR MISAPPROPRIATION BY CLIENT OF ANY OF ML'S OR ITS SUPPLIERS' INTELLECTUAL PROPERTY RIGHTS, AND (ii) CLIENT'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. CLIENT HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT AS BETWEEN THEM.
CLIENT ACKNOWLEDGES THAT (i) ML CANNOT GUARANTEE THE NUMBER OR QUALITY OF LEADS, PROSPECTS OR RESULTS GENERATED THROUGH THE SYSTEM OR THE ADVERTISING SERVICES, OR THAT THE SYSTEM WILL BE CONTINUOUSLY AVAILABLE FOR USE WITHOUT TEMPORARY INTERRUPTION, AND (ii) EXCEPT WITH RESPECT TO THE WARRANTY SET FORTH IN SECTION 1, THE SYSTEM AND THE ADVERTISING SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY REPRESENTION, WARRANTY OR CONDITION OF ANY KIND, AND ML HEREBY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE SYSTEM AND THE ADVERTISING SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY (a) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (b) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, (c) WARRANTY OF TITLE; OR (d) STATUTORY REMEDY.
14. Assignment and Contractors.
Client may not assign any of its rights or obligations under this Agreement without ML's prior written consent. Subject to the foregoing, the provisions of this Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and assigns. ML shall be free to perform all or any part of this Agreement through one or more subcontractors.
15. Governing Law, Venue and Attorneys' Fees.
This Agreement shall be governed by and interpreted in accordance with the laws of The State of Delaware. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the parties agree to submit to the exclusive jurisdiction of the State of Delaware. Each party hereby waives all defenses of lack of personal jurisdiction and forum non conveniens in connection with any action brought in the foregoing courts. If ML prevails in any action or proceeding (including for collection) under this Agreement, then ML shall be entitled to recover from Client, in addition to all other relief, its reasonable attorneys' and other experts' fees and expenses incurred with respect to such action or proceeding.
16. Severability, Force Majeure, Entire Agreement, Amendment.
If one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of this Agreement shall be unaffected. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. This Agreement may not be amended or waived, except pursuant to a written document executed by the parties. Any terms or conditions appearing on the face or reverse side of any purchase order, acknowledgment, or confirmation that are different from or in addition to those set forth in this Agreement shall not be binding on the parties, even if signed and returned.
17. Syndication of Listings.
Client acknowledges that certain MLS listings to be displayed on Client's ML Site may also be "syndicated" (e.g., displayed in advertising placed on Clients behalf by ML pursuant to this Agreement) or otherwise used by ML, in each case, solely for the purpose of generating additional traffic to Client's ML Site. Client represents and warrants that it has permission and authority to use all MLS listings to be displayed on Client's ML Site in the manner contemplated hereby.
Client has reviewed, understood and accepted the terms and conditions set forth in this Agreement and has either consulted with legal counsel prior to executing this Agreement or has knowingly forgone its right to consult with legal counsel prior to such execution. The provisions of this Agreement shall not be construed against either party by virtue of their authorship. It is the express wish of the parties that this agreement and all related documents be drawn up in English.
19. Provisions Applicable to Specific ML Products.
Business Suite Product. If the applicable ML Product under this Agreement is Business Suite, then the following provisions apply:
The System may be utilized by additional users ("Users") as follows: maximum 99 (or as otherwise specified on the Web Form) real estate agent users and one administrative user.
Client may designate not more than one third-party real estate mortgage service as authorized advertisers on Client's ML Site (each an "Advertising Partner"). In addition, Client may request that ML provide such third party with access to ML's mortgage related CRM tools ("Mortgage CRM Tools"). To designate an Advertising Partner, Client must provide ML with a payment form completed and signed by such Advertising Partner specifying the monthly payment amount that has been negotiated between them and specifying the amount to be billed directly by ML to Advertising Partner (the "Advertising Partner Payment Amount"). Upon receipt of such payment form, Client shall be deemed to have authorized (a) ML to display mutually agreeable advertisements on Client's ML Site that promote Advertising Partner's products and services, and (b) to provide the Mortgage CRM Tools to such party. Advertising Partner provided content shall be subject to the same terms and conditions of this Agreement applicable to Client content, and Advertising Partner's use of the Mortgage CRM Tools shall be subject to the same terms and conditions applicable to Client's use of the System (other than the right to add additional Users), and Client shall be responsible for Advertising Partner's failure to comply therewith. ML will reduce the monthly fees it bills Client under this Agreement by the Advertising Partner Payment Amount(s), provided that Client hereby agrees that it is the unconditional guarantor of all Advertising Partner Payment Amount(s) and in the event that any Advertising Partner fails to timely pay any Advertising Partner Payment Amount when due to ML, then ML shall invoice and Client shall promptly pay to ML all such delinquent Advertising Partner Payment Amount(s) in accordance with the terms of this Agreement.
Lead Guarantee Products:
For products that include a guaranteed number of leads per month (as specified on the Web Form), ML will provide a guaranteed average monthly volume of prospects who are searching for homes in or around the area specified in the Web Form (provided that during the months of November and December, the guaranteed average monthly volume of prospects shall be reduced by twenty-five percent from the number set forth in the Web Form). If ML delivers fewer prospects, on average, than guaranteed during any three consecutive full calendar months, ML will review Client's account upon prompt notice from Client and, provided Client has met the requirements of this Agreement, as Client's exclusive remedy, ML will adjust Client's monthly fee and/or monthly lead guarantee for any remaining months (but not prior months).
To the extent that any Product depends on ML receiving a data feed from Client's MLS, the Term for such Product will terminate automatically upon the expiration, cancellation or termination of the agreement between ML and the applicable MLS. Client's MLS is not responsible for any and all damages in the event that the Product cannot access or otherwise use the data from such MLS or any other breach of this Agreement.
Office Professional/Volume Seat Products.
Some products may allow one principal Client (the "Payee") to purchase multiple accounts for individual Clients ("Individual System Users") for access to a particular Product (a "Volume Seat Product"). The terms of this section will apply to all Volume Seat Products.
Each Individual System User will maintain ownership of all prospects and content in their account. Each Individual System User must accept the ML service agreement at the time their account is activated. Any agent data, website name or other information is the sole property of the Individual System User. The Volume Seat Product is for payment of system fees only by Payee for the benefit of the Individual System Users Payee will notify ML of the identity of each Individual System User on Payee's account. Each Individual System User may purchase additional products from ML at their own expense, however any default of payment by the Individual System User on charges owed for additional products may result in temporary suspension of their Volume Seat Product account, and/or cancellation of the Individual System User's account. If the Payee would like to add or remove an Individual System User from its Volume Seat Product, such request must be received in writing by the 25th of the month, in order to be effective at the end of the following month.
Notwithstanding the terms of Section 3 (License Restrictions), Payee may designate any agent in Payee's office, brokerage, franchise or other designated group approved by ML to access the Volume Seat Product.
Any Individual System User may choose to cancel or leave the Volume Seat Product and maintain an individual account directly with ML by contacting support in writing at email@example.com. Request must be received in writing by the 25th of the month, in order to be effective at the end of the following month.
Individual System User acknowledges and agrees that Payee may be provided with Individual System User performance data and that the Payee may terminate his/her access to the Volume Seat Product at any time.