BROKER WEB SITE SALES ORDER FORM

Transcription

1 BROKER WEB SITE SALES ORDER FORM CLIENT: a(n) Company CLIENT ADDRESS DATE: VENDOR: VENDOR ADDRESS: The Enterprise, a division of Move Sales, Inc., a Delaware corporation ( MSI ) 823 South 60 th Street Milwaukee, WI DESCRIPTION FEES BILLING TERMS Broker Web Site Design Fee THIS BROKER WEB SITE IS BEING PROVIDED FOR NO FEE. MSI RESERVES THE RIGHT TO TERMINATE THE AGREEMENT AT ANY TIME, AND FOR ANY REASON. IN ALL OTHER RESPECTS THE TERMS OF THIS SALES ORDER - FORM GOVERNS THE PROVISION OF THE WEBSITE Broker Web Site Hosting $0 to include all NWMLS listings. (Limit 100,000 listings.) Monthly 1. Distribution of Products and Services. MSI offers the products and services hereunder subject to the following terms and conditions. 2. Terms of Payment. In exchange for the products, services and rights granted to Client in the Broker Web Site Agreement by and between Client and MSI, Client agrees to pay MSI the Total Fees noted above, along with all applicable taxes and shipping fees. MSI will bill Client at the address provided on this Sales Order Form and all payments shall be due and payable as and when set forth in the invoice from MSI, pertaining thereto unless specified above. A finance charge of one and one-half percent (1.5%) per month or the highest amount allowed by law, whichever is less, will be assessed on all past due payments. All payments are final and non-refundable. 3. Costs of Collections. Client agrees that it will, upon demand, pay to MSI the amount of any and all reasonable advances, charges, costs and expenses, including the fees and expenses of its counsel and of any experts or agents, that MSI may incur in connection with the failure by Client to perform or observe any of its obligations under this Sales Order Form. 4. Taxes. Amounts charged to Client and amounts payable to MSI under this Agreement are exclusive of taxes or customs duties (including but not limited to franchise, sales, or withholding taxes). Amounts payable to MSI are payable in full to MSI without offset or deduction for taxes (including, but not limited to, any franchise, sales or withholding taxes, or customs duties. In addition, Client shall be responsible for and shall indemnify and defend MSI for any franchise, sales, use, value-added and similar transaction taxes and customs duties paid or payable. By signing below, Client: (a) represents that it is authorized to execute this Sales Order Form; (b) acknowledges that this Sales Order Form constitutes the entire understanding between the parties regarding prices, payment terms and collections; (c) understands that this Sales Order Form and the underlying Broker Web Site Agreement between Client and MSI (the Broker Web Site Agreement ) are subject to termination only as provided herein and as provided in the Broker Web Site Agreement; and (d) understands that this Sales Order Form may not be altered or varied by oral agreements of any kind. MOVE SALES, INC. By: Date: CLIENT NAME By: Date: Move Sales, Inc Russell Ranch Road, Westlake Village, CA 91362

2 BROKER WEB SITE AGREEMENT MSI: The Enterprise, a division of MSI Sales, Inc., a Delaware corporation ( MSI ) MSI ADDRESS: Russell Ranch Road, Westlake Village, CA CLIENTNAME: a(n) Corporation ( Client ) CLIENT ADDRESS: DATE: Recitals A. MSI is in the business of selling products and services to the real estate industry. B. MSI products and services are exclusively distributed by Move Sales, Inc. ( MSI ). C. Client has the number of licensed real estate brokers and/or agents ( Sales Associates ) as set forth in Exhibit A. D. Client is a real estate brokerage firm and desires MSI to, and MSI agrees, subject to the terms and conditions of this Agreement, to (i) build a web site for Client as more specifically described in Exhibit A, attached hereto and incorporated herein by this reference (the Broker Web Site ) and (ii) host the Broker Web Site for Client once it has been built in accordance with the terms set forth in Exhibit A (the Software ), and the reporting user interface to the Broker Web Site that includes features as more specifically described in Exhibit A, (the User Interface, and together with the Software, the Licensed Material ) for use on the Broker Web Site. Now, therefore, in consideration of the promises and covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. MSI Responsibilities 1.1 Broker Web Site Construction. MSI will use commercially reasonable efforts to build the Broker Web Site in accordance with the specifications set forth in Exhibit A (if any). The Broker Web Site delivered to Client shall not include any Licensed Material but shall include all Broker Web Site Client Components (as defined below). 1.2 Hosting Services. MSI will use commercially reasonable efforts to provide the Hosting Services in accordance with the requirements set forth in Exhibit A. 1.3 Pass Through of Leads. MSI agrees that it will not utilize individual leads from the Broker Web Site provided for Client s use hereunder for any purpose other than in ways specifically requested by Client; provided that MSI may utilize any information gathered from the Broker Web Site to optimize Broker Web Site performance. 2. Client Responsibilities 2.1 MLS Data. If available, a REALTOR.com data feed shall provide the multiple listing service ( MLS ) data or other real estate listing data and related pictures for use on the Broker Web Site (the Real Estate Data ). In the event that a REALTOR.com data feed is unavailable, Client shall supply to MSI Real Estate Data in a format that is consistent with MSI field specifications. If applicable, Client shall also provide MSI with all access codes needed to download the Real Estate Data, including, but not limited to, usernames, passwords, dial-up telephone numbers, office codes and agent codes. In the event Client cannot provide the Real Estate Data or if the Real Estate Data is supplied by Client in a format that is inconsistent with MSI field specifications, Client shall pay additional charges as determined by MSI. 2.2 Client Content. Client shall be solely responsible for managing, editing, reviewing, deleting, creating (where indicated herein), and otherwise controlling the content of all Real Estate Data and other content provided to MSI by Client or any Sales Associate (the Client Content ). Client acknowledges that, in hosting the Client Content on the Broker Web Site for the benefit of Client, MSI is acting only as a passive conduit for the posting and/or displaying of such Client Content. Notwithstanding anything to the contrary herein, and without limiting any of Client s obligations and liabilities in respect of the Client Content, if MSI becomes aware or receives notice of any Client Content that MSI believes in its sole discretion may create liability for, or is materially adverse to the business interests of, MSI or its affiliates, Client agrees that MSI may take any actions with respect to such Client Content that MSI believes is prudent or necessary to minimize or eliminate MSI s or its affiliates potential liability or business risk, including, without limitation, removal from the Broker Web Site; provided, however, that in the event Client eliminates the potential liability or business risk, MSI shall restore such modified Client Content to the Broker Web Site within one (1) week of receipt of such modified Client Content. 2.3 Trademark License. Client is the owner of certain trademarks, service marks and trade names and hereby grants to MSI, during the term of this Agreement, a worldwide fully paid nonexclusive license to use said marks solely in connection with fulfilling its obligations under the terms of this Agreement. Upon termination of this Agreement, MSI agrees to immediately cease use of the marks referenced in this paragraph. Client will retain all right, title and interest in and to such marks, and all goodwill associated therewith, subject to the limited license granted to MSI hereunder 2.4 Revenue Sources. Client may, at its sole discretion, choose to charge fees to third parties for the placement of advertisements on the Broker Web Site (the Third Party Advertising ). Client is solely responsible for determining the price and availability of such Third Party Advertising offerings to third parties and will retain all revenue generated from these sources; provided, however, that all such Third Party Advertising shall not constitute a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing, malicious, vulgar, harmful or is similarly objectionable. Any services required by Client to display the Third Party Advertising on the Broker Web Site pursuant to this Section will be charged to Client at the rates specified in the MSI rate card then in effect at the time such services are rendered. 3. Licensed Material Restrictions/Ownership 3.1 Restrictions. The Licensed Material is copyrighted and contains material that is protected by patent, trade secret or other laws pertaining to proprietary rights. Client may not copy, modify or create derivative works of the Licensed Material, or permit or assist any third party in doing so. Client

3 3 - may not disclose to or allow the Licensed Material to be used or viewed by any third party except for that Licensed Material which is viewable on the Broker Web Site as developed by MSI. Client may not decompile, reverse engineer, copy, disassemble or otherwise reduce the Licensed Material to source code or other human readable form, or attempt or permit any third party to do so. Client agrees not to modify the Licensed Material or its functionality without the express written permission of MSI. 3.2 Licensed Material Development/Ownership. MSI will retain all right, title and interest in and to the Licensed Material, including but not limited to calculators, search mechanisms and any other Licensed Material developed for Client or, if preexisting, provided to Client hereunder. Client hereby irrevocably assigns to MSI all right, title and interest to any Licensed Material developed pursuant to this Agreement. All Licensed Material delivered or made available to Client by MSI hereunder is solely licensed (not sold) to Client without the right to sublicense. 3.3 Licensed Material License. Subject to the terms and conditions of this Agreement, MSI grants to Client a nonexclusive, nontransferable, limited license to access (a) the User Interface for generating reports with respect to the operation of the Broker Web Site and (b) the Software for operation of the Web Site. 4 Payments 4.1 Broker Web Site Fee. Client will pay MSI a non-refundable one-time fee in the amount more specifically described in the Broker Web Site Sales Order Form by and between MSI Company, Inc. and Client in consideration for MSI designing, building and delivering to Client the Broker Web Site (the Broker Web Site Fee ). Client may make subsequent requests for enhancements or changes to the Broker Web Site upon payment to MSI of the applicable rates then in effect on MSI s then current rate card. 4.2 Hosting Fee. Client will pay MSI a monthly hosting fee equal to the amount more specifically described in the Broker Web Site Sales Order Form by and between MSI Company, Inc. and Client commencing from the date the Broker Web Site is delivered to Client (the Hosting Fee ). The Hosting Fee shall be in consideration for ongoing Hosting Services and for maintenance of the Broker Web Site. MSI may amend the Hosting Fee upon thirty (30) days prior written notice at any time during the term of this Agreement. Payment of the Hosting Fee does not entitle Client to receive enhancements or changes to the Broker Web Site. Such requests are covered under Section Payment Terms. Payments will be due in U.S. currency net thirty (30) days from invoice date unless otherwise provided in this Agreement. Client will pay a late charge of one and one-half percent (1 ½%) per month or the maximum lawful rate, whichever is less, on any invoice that is not paid when due. Client agrees to reimburse MSI Company, Inc. for any costs of collecting late payments (including without limitation attorney s fees, court costs, and collection agency fees). 4.4 Optional Enhancements. Client understands and agrees that MSI may, from time to time, create additional optional enhancements to the Broker Web Site it offers and that implementation of these optional enhancements may cause additional expense to Client. Client agrees to pay for all such enhancements and services ordered pursuant to the MSI rate card in effect at the time such services are rendered which shall be paid in accordance with Section 4.3 set forth above. 5 Payment of Related Fees and Expenses 5.1 Domain Name Fees. Client is solely responsible for any and all fees charged by Network Solutions, or other entities as may assume such responsibilities in the future, with respect to the registration and maintenance of an Internet domain name for Client. 6. Compliance With Applicable Laws and Regulations MSI will comply with all applicable local, state and federal laws and regulations governing the performance of their respective duties and business activities arising out of or relating to this Agreement. 7. Confidentiality 7.1 Confidential Information. For the purposes of this Agreement, Confidential Information means information about the disclosing party s (or its affiliates or suppliers ) business or activities that is proprietary and confidential, and which shall be limited to the following: (i) with respect to MSI all its business, financial, technical and other information and (ii) for both parties the pricing, terms and existence of this Agreement. 7.2 Not Confidential Information. Confidential Information shall not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party, or (iv) the receiving party develops independently without use of or reference to any Confidential Information of the other party. 7.3 Obligations. Each party agrees (i) that it and its employees shall not (A) disclose to, and shall prevent disclosure to, any third party or (B) use any Confidential Information disclosed to it by the other party except as expressly permitted in this Agreement and (ii) that it shall take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. 7.4 Exceptions. Notwithstanding the foregoing, each party may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law; provided, however that the party required to so disclose Confidential Information of the other party shall use commercially reasonable efforts to minimize such disclosure and shall provide prior written notice of such disclosure and consult with and assist the other party in obtaining a protective order prior to such disclosure or (ii) on a need-to-know basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors. 8. Representations. 8.1 Requisite Authority. Each party has full organizational power and authority and has been duly authorized, to enter into and perform its obligations under this Agreement and all necessary approvals of any Board of Directors, shareholders, partners, co-tenants and lenders have been obtained. The persons signing this Agreement on behalf of each party personally represent and warrant to the other party that they are authorized to execute this Agreement for and on behalf of such party and have full authority to so bind such party. 8.2 No Conflicts. The execution, delivery and performance of this Agreement by Client will not violate, create a default under or breach of any charter, bylaws, agreement or other contract, license, permit, indebtedness, certificate, order, decree or security instrument to which Client or any of its principals is a party or is subject. 9. Indemnification. Client agrees to indemnify and hold MSI, its parent, affiliates and suppliers harmless from any liability, loss, claim, damage, and/or expense (including reasonable attorneys fees) arising out of, in connection with, or relating to any use of the Broker Web Site, any graphics, text, advertising, Real Estate Data

4 4 - or other content provided hereunder, or for any acts or omissions related to this Agreement and any violations of applicable laws or regulations including but not limited to violations of the Fair Housing Act. 10. Disclaimer of Warranties. MSI does not warrant that the operation of the Broker Web Site will be uninterrupted or error-free, or that the Broker Web Site is immune from fraudulent intrusion and/or unauthorized use or disclosure. Client assumes all responsibility for assuring the proper and lawful use of the Broker Web Site and all liability for any improper or unlawful use of the Broker Web Site. Client assumes all liability which may arise in connection with Sales Associates use of the Broker Web Site. MSI OFFERS THE BROKER WEB SITE WITH NO WARRANTIES OF ANY KIND. MSI SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ON THE BROKER WEB SITE, AND ANY SUPPORT OR MAINTENANCE SERVICES FURNISHED UNDER THIS AGREEMENT WHICH ARE INCLUDED AS PART OF THE BROKER WEB SITE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE LIMITATIONS SET FORTH HEREIN ARE INTENDED TO LIMIT THE LIABILITY OF MSI AND WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 11. Limitation of Liability. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT, ANY PURCHASE ORDER OR ANY DOCUMENT RELATED TO THIS AGREEMENT TO THE CONTRARY: (i) NEITHER MSI, ITS SUPPLIERS OR AFFILIATES WILL BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, FOR LOST PROFITS, FOR THE PROCUREMENT OF SUBSTITUTE GOODS OR FOR LOSS OF DATA OR ANY OTHER DAMAGE TO INTANGIBLE PERSONAL PROPERTY, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF MSI, ITS SUPPLIERS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) MSI S TOTAL LIABILITY TO CLIENT ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS RECEIVED FROM CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY; PROVIDED, HOWEVER, THAT MSI WILL BE LIABLE FOR BODILY INJURY AND DAMAGES TO TANGIBLE PERSONAL PROPERTY TO THE EXTENT DUE TO MSI S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 12. Term/Termination Term. The term of this Agreement (the Term ) will begin on the Effective Date and continue through the date the Broker Web Site is delivered to Client, after which time it shall continue on a month to month basis unless terminated earlier in accordance with the terms set forth in this Agreement Termination. Either party will have the right to terminate this Agreement immediately upon written notice in the event that the other party (a) becomes insolvent, files for bankruptcy or is the subject of an involuntary bankruptcy proceeding, has a receiver or similar officer appointed or has its assets assigned for the benefit of creditors; or (b) fails to comply with any material provision of this Agreement (including payment obligations) and such noncompliance is not remedied within thirty (30) days after written notice thereof has been given by the other party Broker Web Site Client Components. In the event of termination for any reason, MSI will deliver to Client any graphics, text or static HTML code that Client has supplied to MSI hereunder (the Broker Web Site Client Components ). MSI shall provide to Client a copy of all unique graphics, brochure pages and database information developed solely for Client by MSI under this Agreement. Examples of unique graphics include: Client logos, agent photos, office photos, property photos, and the user interface graphics. Examples of brochure pages include: the text Client has supplied to MSI relating to the About Us and History pages of the Broker Web Site. Examples of database information include: data gathered through user interfaces and user tables Survival of Termination. The provisions of Sections 3, 4, 7, 8, 10, 11, 12, 13, and 14 will survive the termination of this Agreement. 13 Notices Notices will be effective hereunder only when reduced to writing and delivered, by next day delivery service, with proof of delivery, or mailed via certified or registered mail, return receipt requested, to the appropriate party at its address stated below or to such person and at such address as may be designated by notice hereunder: If to MSI: Attn: Betty Lynch The Enterprise 823. South 60 th Street Milwaukee, WI If to Client: Client Name & Address provided on this form will be used 14 Miscellaneous 14.1 Relationship of Parties. MSI is an independent contractor. Neither party is the legal representative or agent of, or has the power to obligate (or has the right to direct or supervise the daily affairs of) the other or any other party for any purpose whatsoever. No partnership, joint venture, agency, fiduciary, or employment relationship is intended or created by reason of this Agreement Governing Law/Venue. This Agreement will be construed in accordance with the laws of the State of California without regard to conflict of laws provisions. MSI and Client consent to the personal jurisdiction of the state and federal courts of the State of California in the county of Los Angeles and further waive objection to venue in any such court No Third Party Beneficiaries. This Agreement is exclusively for the benefit of the parties hereto and may not give rise to liability or obligation to any third party Section Headings. The section headings in this Agreement are for convenience of reference only and will not affect its interpretation Partial Invalidity/Severability. Should any part of this Agreement, for any reason, be declared invalid, such decision shall not affect the validity of any remaining portion of this Agreement.

5 Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, MSI may assign this Agreement to an affiliate or in connection with a consolidation, merger or sale of substantially all of its assets without the consent of Client No Waiver. No failure or delay in requiring strict compliance with any obligation of this Agreement (or in the exercise of any right or remedy provided herein) and no custom or practice at variance with the requirements hereof shall constitute a waiver or modification of any such obligation, requirement, right or remedy or preclude exercise of any such right or remedy or the right to require strict compliance with any obligation set forth herein Force Majeure. Neither party will be liable to the other for any performance delay or failure to perform under this Agreement exclusive of payment obligations, due to any act, omission or condition beyond the reasonable control of the affected party, including but not limited to fire, theft, acts of nature, supply interruptions or similar occurrences Entire Agreement. This Agreement, together with all instruments, exhibits, attachments, schedules and Sales Order Form hereto, constitutes the entire agreement (superseding all prior agreements and understandings, oral or written) of the parties hereto with respect to the subject matter hereof and shall not be modified or amended in any respect except in writing executed by all such parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. MOVE SALES, INC. By: Date: CLIENT NAME: By: Date:

6 6 - BROKER WEB SITE AGREEMENT EXHIBIT A For purposes of this Agreement, a data source is defined as a MLS feed from the Northwest MLS (NWMLS). Integration of any other listing data sources is not included as part of this Agreement. Hosting Services MSI will provide the following Hosting Services for the Broker Web Site: 1. Public facing Broker Web Site. MSI will enable the listings from the NWMLS to be available to be searched over the Internet at the URL provided to Client. An Example of a URL (subject to change) is where brokeridentifier is a unique name for Client s company. Broker Web Site will show the following pages, which are not customizable: a. Listing Search Criteria b. Listing Search results c. Listing Detail Page 2. Technical Assistance. MSI agrees to provide technical consultation services to Client during the term of this Agreement. Such technical services will be charged to Client at MSI s standard rate card in effect at the time such services are rendered. (Current rate card is $100-$125/hr, depending on skill). support is available without charge by ing feeds@theenterprise.com. 3. Data Update Schedule. MSI will update the Broker Web Site database Monday through Friday, excluding holidays, within one (1) business day of downloading data, or receipt of data, from the Client's multiple listing service ( MLS ) or other system, which is acceptable to MSI. 4. Developer's Credit. MSI is permitted to display developer's credits on Broker Web Site and Client further grants MSI the right to make any such credits a hyperlink to Move.com and/or an MSI owned or controlled web site. 4. Software. Software shall mean the object code version of the system software, applications software, and any other software and documentation developed or made available to Client by MSI under this Agreement, including but not limited to: Web site software, mapping functionality, and functionality. 5. User Interface. A User Interface which allows for site navigation, which utilizes both static html and JavaScript (including Pull- Downs, Pop-Ups and Roll-Overs), and which provides for multi-tiered menus (main menu s with subcategories). The layout for all dynamic pages is not customizable.