PROPERTY MANAGEMENT PARTNER SERVICES AGREEMENT
THIS MASTER MEDIA SERVICES AGREEMENT (“MSA“), together with the Insertion Order (as defined below) between Company and Intempus Realty (“Intempus”) and such other written specifications as Intempus may from time to time determine in its sole discretion (all such instruments are, together, the “Agreement”) govern and control the placement and promotion of the property management and related services of Company described in such Insertion Order across Intempus’s network of hosted web pages, search-engine channels, third-party web sites, email programs and other effective distribution vehicles (together, the “Network”). The term “Services” as used in this Agreement means the listing promotion and distribution services described in the Insertion Order. Capitalized terms not otherwise defined below shall have the meaning assigned in the Insertion Order. COMPANY’S EXECUTION OF AN INSERTION ORDER SHALL CONSTITUTE ITS ACCEPTANCE AND AGREEMENT TO THE TERMS AND CONDITIONS OF THIS MSA.
The parties agree as follows:
. Intempus shall provide the Services to Company according to written insertion order attachments to this Agreement upon which the parties may agree from time to time (each, an “Insertion Order”). Each Insertion Order contains additional terms and conditions that are specific to the Services that are the subject of such Insertion Order and is incorporated into this Agreement by reference and made a part hereof. Unless otherwise specifically described in an Insertion Order, all listings shall be deemed run of network subject to placement at Intempus’s sole discretion.
- Payment Terms
- Company shall pay to Intempus the fees and charges described in the Insertion Order, as such fees and charges may be amended from time to time by mutual agreement of the parties. Without limiting the generality of the foregoing, Company acknowledges and agrees (i) that Intempus’s media pricing is subject to change in response to Company’s fluctuating lead demand, (ii) that often such fluctuations occur with such frequency that price adjustments by written agreement is not practicable, and (iii) that in such situations, both lead requirements and the corresponding price adjustments are discussed and agreed to in telephonic and/or email communications. The parties agree that in such circumstances, Intempus’s records shall be conclusive proof of the agreed upon lead fee payable by Company for the related leads under the then current Insertion Order.
- Except as limited in this Section, Company may dispute payment for any lead that includes invalid registration information. All such disputes must be submitted via email in writing to Intempus within fourteen (14) calendar days from the date the lead in question is delivered to Company, together with an electronic report identifying the disputed lead and the reason that such lead is disputed. Intempus shall review disputed leads and corresponding reports within seven (7) days of receipt thereof and may, in its sole discretion, issue a credit for all or any portion of such disputed leads, provided that Company returns the rejected User Information (as defined below) to Intempus and destroys all copies or record of such data that may exist, in whatever form or medium, in Company’s database. Leads not disputed within such fourteen (14) day period shall be deemed accepted and payable by Company. In addition and notwithstanding the foregoing, use by Company of a lead or any element of the User Information contained in such lead shall be deemed Company’s acceptance thereof and payment therefor shall be due.
. Company grants to Intempus a limited, non-exclusive, royalty-free right and license to use, display and reproduce Company’s trademarks, service marks, logos, images, photographs, copyrights and proprietary ad copy (together, “IP Assets”) throughout the Network and in such media and collateral materials as Intempus may elect, all for the purpose of promoting the goods, services and relationship of Company and Intempus as herein contemplated. The license granted hereunder shall terminate upon the expiration or earlier termination of this Agreement, and Company shall at all times retain all rights in and to its intellectual property. Intempus retains all proprietary rights in and to all of Intempus’s IP Assets, including but not limited to, the listing service technology, any Services provided hereunder (including all software, source codes, modifications, updates and enhancements thereof or any other aspect of the Services), the name “Intempus “ “” or any derivatives thereof, and any other trademarks and logos that are owned or controlled by Intempus and made available to Company. No implied licenses are granted herein to either party.
. During the term of the Insertion Order and for a period of ninety (90) days following its expiration or earlier termination, Company shall not, directly or through any third-party agent or independent contractor, solicit (i) the distribution or promotional services business from any entity in the Network, or (ii) any employee of Intempus for the purpose of hiring, attempting to hire or offering such employee any type of employment opportunity whatsoever. Notwithstanding the foregoing, the prohibition in this Section 5 shall not prevent Company from maintaining a contractual relationship with a Network entity existing as of the Effective Date of the Insertion Order.
- Term; Termination
. Unless earlier terminated in accordance with the termination rights herein set forth, this Agreement shall commence as of the Effective Date set forth in the initial Insertion Order, and shall remain in effect until all Insertion Order(s) hereto have expired or terminated, as the case may be. Either party may terminate this Agreement at any time for cause or convenience by providing the other party not less than thirty (30) days prior written notice; provided the terms of Sections 3, 5, 7-13 and 16 hereof shall survive any such termination.
- Customer Information
. The parties acknowledge that certain data, including without limitation, all information disclosed by the parties’ respective users (“User Information”), data analytics, actual performance metrics and the terms of this Agreement shall be disclosed, developed and generated in the course of the parties’ performance hereunder. All such information shall be deemed the confidential information (“Confidential Information”) of the party disclosing, collecting or generating it, except that Confidential Information shall not include any information that (a) is publicly available at the time of disclosure; (b) becomes publicly available after disclosure without breach of this Agreement by the non-disclosing party; (c) is in the non-disclosing party’s possession prior to disclosure; or (d) is independently developed by the non-disclosing party without use of the Confidential Information of the disclosing party. Intempus and Company shall each treat the Confidential Information owned or developed pursuant to this Agreement in accordance with controlling law and their respective internal privacy policies then in effect. Unless law or legal process otherwise compels disclosure, the terms of this Agreement and any related information or data arising from or related to this Agreement shall remain Confidential Information and each party shall limit disclosure of any provision hereof or data related hereto to only those employees, consultants and third-party service providers with a need to know such information. Notwithstanding the preceding sentence, the parties may publicly disclose the general nature of the arrangement herein contemplated, provided that in no event shall such general description include the financial terms hereof. The confidentiality obligations set forth in this Section 7 are in addition to, and not in lieu of, the parties’ respective confidentiality obligations set forth in the Mutual Nondisclosure Agreement between the parties, if any, which remains in full force and effect. Notwithstanding the foregoing, Intempus retains sole ownership and proprietary rights in and to the User Information disclosed in all leads generated under this Agreement; provided, that Company may establish non-exclusive, separate ownership individual lead-sourced User Information upon Company’s payment of the corresponding lead fee to Intempus therefor. Except as provided in the immediately preceding sentence, all lead-sourced User Information is and remains the Confidential Information of Intempus.
- Privacy Considerations
. Intempus and Company shall at all times comply with all applicable laws, rules, regulations and guidelines as promulgated by the Federal Trade Commission, the Federal Reserve, federal and state legislative and regulatory bodies and the DMA in regard to customer privacy and related issues. Intempus and Company shall cooperate to insure the encryption of User Information prior to its delivery if and as necessary.
- Prohibited Search
. Unless otherwise approved by Intempus in writing, Company shall not use, purchase and/or bid on any pay per click advertising, premium search sponsorships or featured search listings involving an Intempus-branded term, including without limitation, Intempus, and any similar names, common misspellings, combinations and arrangements of any of the foregoing (together, “Search Terms”). In addition, such prohibited Search Terms must be defined as a “negative match” when bidding on search engine traffic in connection with the promotion by Company, directly or indirectly, of Company’s services.
. To the extent Company is executing this Agreement as an agent for the third-party principal (“Principal”) identified on the Insertion Order, Company hereby represents and warrants to Intempus that it is the duly authorized agent of Principal with authority to bind Principal to the terms of this Agreement, and that Principal is hereby bound to the terms of this Agreement with the same effect as if executing this Agreement on its own behalf. In the event of nonpayment by Principal for services performed by Intempus hereunder, Company agrees to and does hereby assign all rights to collection of such delinquent amounts (“Delinquent Payments”) to Intempus who may, at its sole option, undertake to collect such amounts directly from Principal. Company represents that it is authorized to make such assignment, and Company agrees to provide all reasonable assistance to Intempus in the collection of such accounts. Provided that Company assigns collection rights of Delinquent Payments to Intempus and reasonably assists in the collection thereof as herein described, Intempus shall look solely to Principal for payment thereof.
. Each party represents and warrants to the other as follows: (i) it has the full right, power and authority to enter into this Agreement, grant the rights and licenses herein granted and perform its obligations herein set forth; (ii) it shall perform its obligations hereunder in accordance with all applicable laws, rules and regulations; (iii) its entry into and performance under this Agreement shall not breach or constitute a default under any legal, statutory or contractual obligation or commitment to which it is bound, and (iv) its performance hereunder, including without limitation, the IP Assets it uses and/or licenses to the other party pursuant to Section 4 hereof, will not infringe or breach any third party (A) copyright, trademark or other intellectual property or proprietary right, or (B) right of privacy or publicity.
. Each party shall defend, indemnify and hold the other party harmless from and against any claim, suit or proceeding (together “Claim”) brought by a third party against the indemnified party resulting from breach of the indemnifying party’s obligations, representations and warranties set forth herein, and shall pay all damages or settlement amounts awarded by final decree or award against the indemnified party only to the limited extent such amounts are based on such Claim (including payment of reasonable attorney’s fees, court costs and costs of other professionals); provided that (i) notice is provided in writing of the Claim; and (ii) the indemnifying party has sole control of the defense and all related settlement negotiations, provided that no settlement requiring action or forbearance on the part of the indemnified party shall be entered into without the prior written consent of the indemnified party, which shall not be unreasonably withheld, conditioned or delayed. The foregoing indemnities shall survive the expiration or termination of this Agreement.
- LIMITATION OF LIABILITY
. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. INTEMPUS SHALL NOT BE LIABLE FOR THE CONTENTS OF ANY LISTING (INCLUDING ANY IP ASSETS INCORPORATED THEREIN), NOR SHALL INTEMPUS BE LIABLE FOR ANY LOSS, COST, DAMAGE OR EXPENSE OR LIABILITY (INCLUDING COUNSEL FEES) INCURRED BY COMPANY IN CONNECTION WITH COMPANY’S PARTICIPATION IN THE SERVICE. NEITHER PARTY WARRANTS AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICES, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION OR DAMAGE OR DISRUPTION OF COMPUTER SYSTEMS OF ANY KIND. EXCEPT FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, BREACHES OF USER INFORMATION OBLIGATIONS UNDER SECTION 7, OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR EACH INSERTION ORDER SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY COMPANY TO INTEMPUS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE LIABILITY FORST AROSE.
- Force Majeure
. Neither party shall be liable for damages of any kind arising from Acts of God, flood, civil unrest, strike, war or any similar condition beyond its reasonable control; provided that non-performance by Principal of any obligation in the Agreement is not an excuse for non-performance thereof by Company.
. The non-assigning party’s prior consent to assignment hereof is required; provided, however, that each party may assign this Agreement without the other party’s prior consent to a parent or subsidiary entity of such party or in connection with any merger, consolidation, or sale of all or substantially all of the party’s assets or any other transaction in which ownership of more than fifty percent (50%) of the party’s voting securities is transferred, provided that the assignee in any such transaction agrees in writing to assume all of the assignor’s obligations hereunder.
. This Agreement is the entire agreement between the parties and supersedes all prior proposals and understandings, both oral and written, relating to the subject matter hereof. Waiver of any right or obligation hereunder cannot be implied or inferred but must, in each instance, be in writing signed by the party to be bound. The relationship of the parties is that of independent contractor, and not of partnership, master-servant, principal-agent, joint venture or employer-employee. This Agreement shall be construed and enforced under the laws of the State of Washington without giving effect to its choice of law provisions, and venue for any proceeding hereunder shall be in the state and federal courts sitting in King County, Washington. The prevailing party in any suit or proceeding brought to enforce or interpret this Agreement shall be entitled to an award of its reasonable attorneys’ and other professionals’ fees and costs incurred therein. An Insertion Order may not be amended, except by a writing signed by both parties. Intempus may modify any of the terms and conditions of this MSA, at any time in its sole discretion, by posting a new MSA on http://www.allpropertymanagement.com/clientMSA.html. Unless otherwise provided in the revised MSA, the modified terms will take effect immediately when posted. IF ANY MODIFICATION IS UNACCEPTABLE TO COMPANY, COMPANY’S SOLE AND ONLY RECOURSE AND REMEDY IS TO TERMINATE THE AGREEMENT AS PROVIDED HEREIN. COMPANY’S CONTINUED USE OF AND BENEFIT FROM THE SERVICES FOLLOWING THE MODIFICATION OF THE MSA WILL CONSTITUTE COMPANY’S BINDING ACCEPTANCE OF AND AGREEMENT TO THE MSA, AS AMENDED.
- Legal Requirements
. Company certifies to meet all legal requirements to engage in a property management business, including maintaining an active state real estate broker’s license, if required. Company expressly agrees that if it fails to maintain an active license it shall immediately notify Intempus and Company’s Featured Listing Page shall be removed.
1900 The Alameda Ste. 100, San Jose, CA 95126
Phone (408) 748-7592