LICENSE AND SERVICES
Money Tree Lead Systems, LLC,
hereinafter referred to as “Licensor”, has developed the Market
Maker Leads online real estate marketing platform, which consists of
proprietary computer software, content and services (the
“Platform”), specifically with you in mind. You, (hereinafter
referred to as “Licensee”) wish to license from Licensor software
and content of the Platform and use the services of the Platform under the
terms and conditions of this License and Services Agreement
grants you this right only under the specific condition that you read and
accept all the terms and conditions contained herein. By clicking “I accept” you
are unconditionally accepting and agreeing to these terms and conditions.
For the duration of this Agreement, and in consideration
of timely and full payment of the Set-up fee, License Fees and Expenses as
defined herein, Licensor grants to Licensee a non-exclusive, nontransferable
license to access and use the Platform, including its software and content,
pursuant to the terms of this Agreement (the “License”). The License may not be resold, leased,
sublicensed or distributed, accessed or used by any other party or for any
other purpose without Licensor’s prior written approval. No implied licenses are granted, and
Licensor reserves all rights not expressly granted herein.
As part of the Platform, Licensor will also provide the
following services (“Services”) for the duration of this Agreement
and any renewals thereof:
Overview. Licensor will provide
Licensee with a personalized version of the standard customer-facing Market
Maker Leads agent website. Licensee’s website (the “Website”)
is designed to be an independent, stand-alone website. The Services provided by Licensor to
Licensee through the Website may allow Licensee to capture leads of homebuyers
and sellers who are on the Internet.
However, Licensee hereby acknowledges and agrees that Licensor makes no
guarantee with respect to Licensee’s ability to capture such leads.
Features. The Website will include:
Name. Licensee and Licensor will jointly choose an available domain name for
Licensor to add and use. In
addition, Licensee can forward site visitors from Licensee’s alternate
domain name(s). All domain names
remain property of the then-current owner unless otherwise agreed upon.
Branding. Licensee’s Website will be
customized to reflect the existing corporate brand presence of Licensee using
logos, taglines, headlines, photography, images, and language provided by
Licensee. Licensee will choose from
Licensor’s library of prebuilt themes to compliment branding.
Pages. Licensor will integrate Licensee’s custom content (the
“Content”) into Licensee’s Website prior to launch and may
choose to offer additional integration after launch at Licensor’s sole
Integration. Licensor will integrate Licensee’s local Multiple Listing
Service (“MLS”) data feeds from Licensee’s local MLS
provider, into the Website.
Licensee represents that Licensee is an owner/operator, broker or
licensed agent with a brokerage under Licensee’s own MLS/IDX account, and
not a licensee of such an account from a third party. Licensee is responsible for providing
Licensor access to the MLS data feeds and is responsible for all third-party
vendor set up fees and recurring service fees charged by the MLS/IDX provider
in order for Licensor to access the MLS data. All charges from the MLS data provider
must be paid by Licensee. Licensee
is also responsible for notifying Licensor concerning any change to the data
feed or MLS user agreement that may affect the functionality of the Website. Licensee agrees to do everything in its
power to provide this information and comply with Licensor’s MLS requests
in a timely manner. Failure to do so may result in the termination of this
Agreement at Licensor’s sole discretion and a forfeiture of all monies paid
to Licensor prior to termination.
Hosting. Licensor will host Licensee’s
Website. While Licensor will make
every effort to prevent, as much as possible, interruptions or other technical
problems to the Website, Licensor makes no warranty, express or implied that
the Website will be completely free of interruption or will not be subject to
other technical problems.
MARKETING/ADVERTISING. Licensor is
responsible for the creation and management of an online advertising campaign
to drive targeted traffic to Licensee’s Website. Licensee will provide a minimum of $500
monthly as an advertising budget (the “Advertising Spend”), and Licensor
will monitor and manage the online ad spending and ad sources in an attempt to
maximize the amount of traffic to Licensee’s Website. Any Advertising Spend in excess of the
$500 minimum will be solely at the Licensor’s discretion. The Advertising Spend is in addition to
any other Fees herein, will be billed in advance by Licensor, is non-refundable
and shall be paid to third party advertisers. Licensor
reserves the right to retain twenty percent (20%) of the Advertising Spend as
an administrative fee.
AND SUPPORT. Licensor will provide
a defined number of pre and post launch group training sessions for
Licensee’s permitted User (hereinafter defined) to teach them how to use
the Platform. Any additional
training will be provided at the sole discretion of Licensor and may incur an
Licensee will work together to provision Licensee’s use of the
Platform. Licensee is responsible
for delivery of the Content, MLS RETS feed and for the
service of a Sponsor (if applicable) by no later than Sixty (60) days after
this Agreement has been executed by all parties. Licensor and Licensee agree to work
together expeditiously to complete the provisioning by no later than forty-five
(45) days after such delivery.
Licensee’s failure to perform under this section shall constitute
a material breach and may result in early termination of this Agreement and forfeiture
of any monies paid.
have a defined number of users (collectively, “User”) or seats to
use the Platform pursuant to this Agreement. Any additional seats or users will
require Licensee to upgrade its platform or purchase additional seats at
Licensor’s sole discretion. Licensee
is responsible for all use by its User and by anyone using a password provided
shall pay to Licensor a monthly service license fee (the “License
Fee”) in the amount set forth below and a setup fee, the amount of which
will be determined at the time of sale.
The setup fee and first month License fee is due upon execution of this
Agreement. Any refund, if
applicable, will be outlined in an addendum to the Agreement.
LICENSE & SERVICE FEES. Licensee
agrees to pay Licensor the following fees: a License Fee each month throughout
the Term (hereinafter defined) of the Agreement, commencing on the effective
date of the Agreement and cancellable at any time by Licensee with 30-days’
notice, or one billing cycle, whichever is greater, to Licensor. The only acceptable
method of requesting a cancellation by Licensee is by utilizing the Cancel My
Account option on the support page of the Platform. In the event the Platform has been
disabled due to late payment or any other reason, notice of cancellation can be
made via email addressed to the Member Services Manager of Licensor. Renewal, if applicable, will be at the Licensor
market rate at the time of renewal.
EXPENSES. Licensee shall reimburse Licensor for
all out-of-pocket expenses incurred by Licensor in association with the
Services provided under this Agreement, including without limitation, MLS and
advertising fees (collectively, “Expenses”).
SPEND. The Advertising Spend will
be billed in advance by Licensor, is non-refundable and shall be paid to third parties.
In addition, Licensor reserves the
right to retain twenty percent (20%) of the Advertising Spend as an
FEES. In addition to the
aforementioned fees and Expenses, Licensee may choose to purchase dialer
minutes to utilize the dialer function of the Platform. Minutes are purchased in advance and any
monies paid are non-refundable.
BILLING. Licensee will provide a
credit card for automatic billing of License Fees for each month throughout the
Term of this Agreement. The credit
card will be charged every thirty (30) days beginning on effective day of the
Agreement. The License Fee and
Marketing Spend are recurring and are due even in the absence of an invoice
from Licensor. Licensee shall be
responsible for the payment of any applicable sales, use taxes, value added or
similar taxes payable with respect to Service, or arising out of or in connection
with this agreement. In the event Licensor pays any such taxes on behalf of
Licensee, Licensee shall reimburse Licensor for such taxes, including any
penalties and interest, as well as any costs associated with the collection or
OR OTHER SPONSOR PAYMENT. In the
event Licensee adds a lender or other sponsor (collectively
“Sponsor”) to contribute to the cost of the System, Licensee shall
remain responsible for the timely payments as required by this Agreement. Licensor will set up the recurring
billing to reflect the Sponsor paying its agreed upon amount of the fees and,
if Licensor is successful obtaining said payment, Licensee will only be
responsible for the remainder of the required monthly fees. However, if Licensor is unable to
collect on the scheduled payment with Sponsor, Licensee will be charged for the
full amount of fees due that month.
PAYMENT OR NON-PAYMENT. Any payment
that is not made when due shall, in addition to all other remedies available to
Licensor, bear interest at a rate of one percent (1%) per month, or the maximum
rate permitted by law, whichever is more, for the number of days such payment
is delinquent. In addition,
Licensor has the right to suspend access to the Platform by all users assigned
by Licensee. If any charge is declined or charged back for any reason
whatsoever, Licensor may terminate this Agreement immediately upon notice to
the rights granted in this Agreement, Licensor retains all right, title and
interest in and to the Services, all underlying technology, software and other
intellectual property incorporated in and/or used to deliver the Service, all
modifications, enhancements and improvements of and all derivative works based
upon the foregoing, any and all methods, business rules, algorithms,
discoveries, inventions, materials, ideas and other work product that is
conceived, originated, prepared or reduced to practice by Licensor in
connection with the Services or any other services provided by Licensor
hereunder, the look and feel of Licensor’s Website (including the trade
dress thereof), and all related tangible and intangible property rights in the
foregoing items. This Agreement
does not constitute a sale and does not convey to Licensee any rights of
circumstances shall Licensor be liable for any indirect, punitive, incidental,
special, consequential or other damages (other than direct damages) that result
from the content of, use of, or inability to use the platform, website,
services or any other Licensor work product. This limitation applies whether the
alleged liability is based on contract, tort (including, but not limited to,
negligence), infringement, or any other basis, even if Licensor has been
advised of the possibility of such liability. With respect to direct damages,
Licensee’s remedy is limited to one of the following: a refund of
Licensee’s most recent two (2) months’ payments of the License Fee,
or repair/replacement of the Website or Platform, at Licensor’s
discretion. These disclaimers and
limitations apply to the fullest extent permitted by law.
shall defend, indemnify, save and hold harmless Licensor (including the
officers, directors, employees, members, owners, contractors, representatives,
successors and assigns of Licensor) from any and all demands, liabilities,
losses, costs and claims, including reasonable attorney’s fees, that
arise from or are related to (i) Licensee’s or
its Users’ use of the Licensor Platform, Website and/or Services: (ii)
breach of this Agreement by Licensee (including its Users); (iii) injury to
person or property caused by any products or services sold or otherwise
distributed by Licensee through the Website or Platform; and (iv)
Licensee’s failure to comply with any and all applicable MLS regulations,
particularly with respect to such regulations that are State-specific.
INFORMATION. For purposes of this Agreement, the term “Confidential
Information” means any information disclosed to a party
(“Recipient”) or its representatives, counsel, shareholders,
directors, officers, employees, agents or consultants
(“Representatives”), by the other party (the “Disclosing
Party”) or its Representatives, including without limitation, the
Disclosing Party’s financial information, services, products, processes,
operations, technology, trade secrets, software, intellectual property,
analysis, strategies, concepts, ideas, and identifying information of the
Disclosing Party’s existing or potential customers or employees, or any
information derived from any of the foregoing. Confidential Information also
includes all information in the password protected areas of the Platform,
including without limitation the leads management information and system.
TO CONFIDENTIAL INFORMATION. Confidential
Information shall not include any information which (i)
is or becomes available to the public other than as the consequence of a breach
of any obligation of confidentiality; (ii) is actually known to or in the
possession of Recipient without any limitation on use or disclosure prior to
receipt from the Disclosing Party; (iii) rightfully received from a third party
in possession of such information who is not under obligation to the Disclosing
Party not to disclose the information; or (iv) is independently developed by
Recipient or its Representatives without access to the Confidential
Information. In addition, aggregate
or specific data concerning third party visitors to the Website, including
potential homebuyers, is not Confidential Information.
/ NON-USE OF CONFIDENTIAL INFORMATION. Recipient and its Representatives shall
hold in strict confidence and trust all Confidential Information, and shall not
disclose, sell, rent or otherwise provide or transfer, directly or indirectly,
any Confidential Information or anything related to the Confidential
information to any person or entity (“Person”) without the prior
written consent of the Disclosing Party.
Notwithstanding the preceding sentence, Recipient may disclose
Confidential Information to its Representatives who need to know such
information to enable Recipient to perform its obligations hereunder and who
agree to be bound by the terms of this Agreement. Recipient and its’ Representatives
shall use the Confidential Information only in connection with the performance
of its obligations hereunder.
Recipient shall require any of its Representatives who obtain the
Confidential Information to comply with this Agreement and shall be responsible
for any breach of this Agreement by such Representatives. Licensee understands and agrees that
disclosure of Licensor’s Confidential Information, such as information in
password protected areas of the Platform, is prohibited and could cause
significant harm to Licensor. In
addition to any other remedies available to Licensor, it is agreed that Licensor
may obtain preliminary and permanent injunctive relief in the event of wrongful
or threatened disclosure or use of its Confidential Information.
DISCLOSURE. Notwithstanding the
foregoing, Recipient shall be permitted to disclose Confidential information
pursuant to a court order, search warrant or any other legal requirement of
disclosure if no suitable protective order or equivalent remedy is available
provided that, if not legally prohibited, Recipient gives the Disclosing Party
written notice of such order or legal requirement of disclosure immediately
upon knowledge thereof and allows the Disclosing Party a reasonable opportunity
to seek to obtain a protective order, and further provided that Recipient shall
furnish only that portion of the Confidential Information which is legally
OR DESTRUCTION OF CONFIDENTAL INFORMATION.
Upon expiration or termination of this of this Agreement or upon the
earlier written request of the Disclosing Party, Recipient shall promptly
return to the Disclosing Party, or at the Disclosing Party’s option,
destroy all Confidential Information received by Recipient or its
Representatives from or on behalf of the Disclosing Party, including any originals
and all copies of the Confidential Information, summaries or synopses thereof
prepared by Recipient or its Representatives.
TERM. The “Term” of this Agreement
shall commence on the date initially agreed to by Licensee (the
“Execution Date”) and shall continue until the termination pursuant
to Section 11.b herein.
TERMINATION. Either party may terminate this
Agreement at any time and for any reason by providing 30 days’ notice, as
herein defined, to the other party.
In the event of Licensor giving termination notice, Licensor will
deliver to Licensee’s designated representative via electronic mail, its
intent to cancel.
OF DEFAULT. Either party may
terminate this Agreement at any time due to an Event of Default by the other
party. For the purposes of this Agreement, an “Event of Default”
shall mean the following (i) infringement of any
copyright, trademark, patent, intellectual property or other proprietary right
of a party to this Agreement where such infringement is not remedied within ten
(10) days of a demand notice thereto; (ii) insolvency or inability of a party to
pay its debts as they become due, appointment of a receiver for all or
substantially all of the party’s assets, making of any voluntary
arrangement to the party’s creditors, or liquidation or bankruptcy; (iii)
breach of any representation or warranty made in this Agreement; (iv) failure
to pay or failure to timely deliver the Content, or (v) any other material
breach of any provision of this Agreement which cannot be or is not cured by
the breaching party after the party has been given notice of the breach and ten
(10) calendar days after notice to cure the breach.
licenses granted hereunder shall terminate upon the expiration, cancellation,
or other termination of this Agreement.
Upon termination of the License, Licensee shall have no further right to
access or use the Website, Platform, or other property of Licensor.
the event that Licensor terminates this Agreement pursuant to an Event of
Default relating to failure by Licensee to timely deliver the Content any
initial and/or set up fee will be forfeited. If Licensee does not pay a setup fee,
then Licensee shall pay Licensor, at Licensor’s then current standard
hourly rate, for all the work performed by Licensor under the Agreement up
until the date of termination.
no event shall Licensee be entitled to a chargeback via its credit card company
or bank, even if Licensee rightfully cancels this Agreement. Licensee shall only be entitled to a
potential Refund as described in Section 6 herein. In the event that Licensee requests a
chargeback from its credit card company or bank, Licensor shall be entitled to
recovery of all costs related to the collection of such funds.
MISCELLANEOUS. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
any prior agreements or understandings between the parties, whether written or
oral. This Agreement may not be amended except in a writing signed by both
parties. This Agreement shall be binding upon, and inure to the benefit of,
Licensee and Licensor and their respective heirs, successors, assigns, and
legal representatives, including but not limited to any successors to the
business of Licensor. This
Agreement shall be construed, interpreted and enforced according to Missouri
law, without regard to conflicts of laws principles. The parties agree that the state
and federal courts within Springfield, Missouri, shall have exclusive venue and
jurisdiction over all disputes arising out of or relating to this Agreement,
including the formation hereof. No
failure or delay by any party in this Agreement to enforce any right specified
in this Agreement will operate as a waiver of such right, nor will any single
or partial exercise of a right preclude any further or later enforcement of the
right. All forms attached hereto
are incorporated herein by reference.
The terms of this Agreement are applicable to all such attachments. In the event of a conflict between the
terms of this Agreement and of any attachments, the terms of the attachments
shall apply if fully executed by both parties. The provisions of this section shall
survive the termination of this Agreement but shall not extend any statutory
limitation period. This Agreement
may be executed in counterparts, each of which shall be deemed as original.
ASSIGNMENT. Licensee may not assign any of its
rights or obligations hereunder without the prior written consent of Licensor,
and any purported assignment without such consent shall be null and void. In addition, in the event of a change of
control affecting Licensee, Licensor’s consent may be contingent upon an
increase in License Fees commensurate with any expanded use of the Services
WAIVER. The failure of either party to enforce
its rights under this Agreement at any time for any period shall not be
construed as a waiver of such rights.
REFERENCES. During the Term, Licensee agrees to
allow Licensor to refer to Licensee as a customer of the Service in Licensor’s
WITH LAWS. Each party agrees to
comply with all applicable laws, rules and regulations, including any Internet
regulation or policies and applicable export laws, in its performance under
Licensor may give notice by
electronic mail, facsimile or first-class mail to Licensee’s designated
contact. Licensee may give notice
to Licensor by electronic mail, facsimile, certified mail, or courier service so
long as receipt by Licensor can be confirmed. Notices may be sent to the
addresses specified by either party.
A party may change its address for notices from time to time by
providing notice to the other party pursuant to this section.
SEVERABILITY. If any provision of this Agreement is
held by a court of competent jurisdiction to be contrary to law, that provision
will be enforced to the maximum extent permissible and the remaining provisions
will remain in full force and effect.
No amendment or waiver of this Agreement shall be effective unless in
writing and signed by both parties.
Licensee agrees that it
shall not at any time engage in any form of conduct, or make any statements or
representations, whether in writing or orally, that disparage or otherwise
impair the reputation, goodwill or commercial interests of Licensor.
Notwithstanding the foregoing, nothing in this paragraph will prevent any
person from making any truthful statement to the extent (i)
necessary with respect to any litigation, arbitration or mediation involving
this Agreement, including, but not limited to, the enforcement of this Agreement
or (ii) required by law or by any court, arbitrator, mediator or administrative
or legislative body (including any committee thereof) with apparent
jurisdiction to order such person to disclose or make accessible such
information. Each of the parties agrees to notify the other of any statement
that is required to be made as provided in the preceding sentence. Such notice
will be given as much in advance of the making of such statement as is
NON-SOLICITATION. Licensee agrees that it shall neither
directly nor indirectly solicit to hire, or hire, or in the case of contractors
contract the services of, any employees or contractors of Licensor, during the
Term of this Agreement or for a period of one-year thereafter. Any violation of this non-solicitation
obligation shall require a payment by Licensee to Licensor hereunder of
liquidated damages in the amount of the annual salary of the solicited or hired
employee or contractor. In addition,
Licensee shall not interfere in any way with the contracts between Licensor and
OF THE PARTIES. Neither party is a
partner, joint venture partner, nor agent of the other, and neither party has
the authority or ability to bind the other party.
MAJEURE. Neither party shall be
liable for non-performance or delay in performance (other than of payment or
confidentiality obligations) caused by any event reasonably beyond the control
of such party including, but not limited to, wars, acts of terrorism,
hostilities, revolutions, riots, civil commotion, national emergency, strikes,
lockouts or other labor disputes or shortages or inability to obtain material
or equipment, unavailability of supplies, compliance with laws or regulation
(including, without limitation , those related to infringement), epidemics,
fire, flood, earthquake, force of nature, explosion, embargo, regulation,
ordinance or their act or order of any court, government or government
CONSTRUCTION. This Agreement shall be construed and
interpreted fairly, in accordance with the plain meaning of its terms, and
there shall be no presumption or inference against the party drafting this
Agreement in construing or interpreting the provisions hereof.