THIS BRANDED SERVICES AGREEMENT (this “Agreement”) is effective upon completing the account sign up and is between HouseAmp Inc., and the Brokerage named in the account.WHEREAS, Company is the owner of the trademark “HouseAmp” (the “Licensed Mark”) and the goodwill of the business symbolized thereby;
WHEREAS, Company has developed and provides an online platform for products and services accessible by Brokerage; and includes all upgrades, updates and enhancements thereof that Company in its sole discretion may release for general availability in the normal course of its business, (the “Company Service”), which Company shall make available to Brokerage via a single Brokerage branded site, as provided in this Agreement;
WHEREAS, Brokerage is a full-service real estate brokerage with real estate professionals throughout the United States, providing clients access to online services (the “Brokerage Service”); and
WHEREAS, Brokerage desires to use the Licensed Mark and Company Service with the Brokerage Service;
NOW, THEREFORE, the parties, in consideration of the mutual agreements herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, do hereby agree as follows:
ARTICLE 1 LICENSES & OBLIGATIONS
1.1 TRADEMARK LICENSE.
(a) License to Brokerage. Subject to the terms and conditions hereof, Company grants to Brokerage, for the Term of this Agreement, a limited, revocable, non-exclusive, royalty-free license to use the Licensed Mark worldwide for and in connection with the marketing, promotion, advertisement, and distribution of a Brokerage branded version of the Company Service (“Branded Service”) to any actual or prospective consumer of the Brokerage Services (“User(s)”). Brokerage’s use of the Licensed Mark does not confer or imply any ownership, goodwill, or other rights in the Licensed Mark. The Licensed Mark shall only be used in conjunction with the Branded Service and pursuant to guidelines provided by Company.
(b) License to Company. Subject to the terms and conditions hereof, Brokerage grants Company a limited, revocable, non-exclusive, non-transferable royalty-free license, during the Term, to use the designated Brokerage trademark(s), logo(s), service mark(s), trade name(s), and/or legal notice(s) (collectively, “Brokerage Marks”) in the form delivered by Brokerage, as reasonably necessary to perform Company’s obligations hereunder. Company’s use of any Brokerage Marks does not confer or imply any ownership, goodwill, or other rights in the Brokerage Marks. The Brokerage Marks shall only be used in conjunction with the Branded Service and pursuant to guidelines provided by Brokerage.
1.2 COMPANY SERVICE LICENSE.
(b) Subject to the terms of this Agreement, Company grants Brokerage a nonexclusive, U.S. license during the term of this Agreement to use and distribute Company’s documentation for the Company Service solely in connection with the intent of this Agreement. Without additional charge, Company will make available Company’s end user documentation to Brokerage as it is updated and modified, which updates and modifications may occur from time to time.
(c) Brokerage will not disassemble, decompile, or reverse engineer any Company Service.
1.3 BROKERAGE DATA LICENSE.
Subject to the terms and conditions of this Agreement, Brokerage grants Company a limited, non-exclusive, non-transferable, royalty-free license during the Term to use the Brokerage Data solely to perform its obligations hereunder. “Brokerage Data” means all data and information provided by, relating to, of or concerning Brokerage and/or the Users, that is/was obtained by, disclosed to or otherwise made available to Company, including personal information, systems procedures, processes, business affairs, finances, product information, inventions, designs, methodologies, intellectual property, all reports and all data and information of such a nature that a reasonable person would believe to be confidential or proprietary. Notwithstanding the foregoing, in order to create performance reports or to promote the Company Services, Company may use statistical information regarding services and products applied for and issued through the Branded Service, provided that the use of such information will be solely in anonymous, aggregated form, together with any other available information related to the Company Service.
1.4 COMPANY OBLIGATIONS.
(a) Hosting. For the Term of the Agreement, Broker will have access to Co-Branded tools, giving Brokerage the ability to customize and configure the look and feel of Brokerage’s service application. Company, at its sole cost and expense, will be responsible for development, design, operation, hosting, maintenance and monitoring of the Branded Service in accordance with the Service Level Agreement (“SLA”) attached hereto as Schedule 1.4. The Branded Service will be provided in the form of the Company Service offering, as may be modified from time to time upon reasonable notice sent via electronic communication to Brokerage. Company will maintain such personnel, software, servers and other equipment/resources adequate to support its obligations under this Agreement, including:
(i) Setup & Configuration. Company will provide Brokerage assistance in the implementation and deployment for the Company Service and the Branded Service reasonably necessary to support Brokerage’s use as permitted under this Agreement.
(ii) Updates, Fixes and Support.
(1) Throughout the Term of this Agreement, the Company will update, as it determines appropriate in its reasonable discretion, the Company Service.
(2) Throughout the term of this Agreement, Brokerage will provide technical support for the Branded Services outlined on Schedule 1.4.
(b) Tracking & Reporting. Company will monitor activity on the Branded Service website, including transactions, statistics and such other information and will make that information readily available to Brokerage via a Brokerage dashboard.
ARTICLE 2 COMPENSATION & PAYMENT TERMS
Company waives set-up and operational fees to Brokerage for the Branded Service Users shall be charged Company’s regular service fees, which shall be paid directly to Company by the Users.
ARTICLE 3 MARKING COMPLIANCE
Brokerage will include the phrase “Powered by HouseAmp” on its electronic or printed collateral when used for marketing purposes for the Branded Service, in the form provided by Company. Company and Brokerage may enter into jointly approved marketing campaigns from time to time during the Term.ARTICLE 4
4.1 MAINTENANCE OF CONFIDENTIALITY. Each of the parties will take reasonable measures to cause its respective employees, attorneys, accountants, consultants and its agents and advisors (collectively, and together with their respective officers and directors, “Agents”) to maintain in confidence the terms of this Agreement and all information of the disclosing party that is marked as “Confidential,” “Proprietary” or some similar designation in connection with this Agreement, including each party’s software, and documentation (the “Confidential Information”). Notwithstanding the foregoing, in the case of Brokerage, Confidential Information includes the Brokerage Data. Each party agrees not to disclose Confidential Information except to its respective Agents that need to know such Confidential Information. Each party further agrees that it will not use the Confidential Information for any purpose other than determining and performing its obligations and exercising its rights against the other party in the event of a claimed breach of this Agreement. Each party will take reasonable measures necessary to prevent any unauthorized disclosure of the Confidential Information by any of their respective Agents. The measures taken by a party to protect Confidential Information will not be deemed unreasonable if the measures taken are at least as strong as the measures taken by the disclosing party to protect such Confidential Information.
4.2 PERMITTED DISCLOSURES. Nothing herein will prevent either party or its Agents from using, disclosing, or authorizing the disclosure of Confidential Information it receives which:
(a) has been published or is in the public domain, or which subsequently comes into the public domain, through no fault of the receiving party;
(b) prior to receipt hereunder was properly within the possession of the receiving party or, subsequent to receipt hereunder is lawfully received from a third-party having rights therein without restriction of the third party’s right to disseminate the Confidential Information and without notice of any restriction against its further disclosure, in either case as evidenced by the business records of the receiving party;
(c) is independently developed by the receiving party without use of such Confidential Information, as evidenced by the business records of the receiving party; or
(d) the receiving party is required to be produced under order of a court of competent jurisdiction or other similar requirements of a governmental agency, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.
4.3 NON-CIRCUMVENTION: Brokerage shall not offer Users, or potential Users, any service reasonably like the Branded Service during the term of this Agreement.
4.4 PRESS RELEASE. Neither party may issue any press release or public announcement regarding this Agreement without the other party’s prior written consent. Brokerage and Company may release a mutually approved public announcement regarding Branded Service any time after execution of this Agreement.
4.5 SURVIVAL. The obligations under Section 4.1 will survive, as to any party, until two (2) years following the date of termination of this Agreement.
ARTICLE 5 OWNERSHIP
5.1 COMPANY’S OWNERSHIP.
Brokerage acknowledges Company’s right, title and interest in and to the Licensed Mark and “Company” Service and “Pay At Close” and acknowledges that nothing herein will be construed to accord to Brokerage any rights in the Licensed Mark or Company Service except as expressly provided herein. Brokerage acknowledges that, except as expressly provided herein, its use of the Licensed Mark or Company Service will not create in Brokerage any right, title or interest in the Licensed Mark or Company Service and that all use of the Licensed Mark and the goodwill symbolized by and connected with such use of the Licensed Mark will inure solely to the benefit of Company. Brokerage covenants that (i) Brokerage will not at any time challenge Company’s rights, title, or interest in the Licensed Mark or Company Service or “Pay At Close” (other than to assert the specific rights granted to Brokerage under this Agreement), and (ii) Brokerage will not represent to any third party that Brokerage has any ownership or rights with respect to the Licensed Mark other than the specific rights conferred by this Agreement. Brokerage agrees that upon expiration or termination of the Agreement, Brokerage will immediately stop using the Licensed Mark.
5.2 BROKERAGE OWNERSHIP.
Company recognizes the unique value, goodwill, and secondary meaning associated with the Brokerage Marks. All rights, title, and interests in the Brokerage Marks, the Brokerage Data and the goodwill pertaining thereto automatically vests in Brokerage, and at all times will remain owned by and in the name of Brokerage. Company will not contest the validity of Brokerage’s ownership of any Brokerage Mark or Brokerage Data. Company agrees that upon expiration or termination of the Agreement, Company will immediately stop using the Brokerage Marks and Brokerage Data.
ARTICLE 6 REPRESENTATIONS, WARRANTIES AND COVENANTS OF HOUSEAMP
6.1 RIGHT TO GRANT LICENSE. Company represents, warrants, and covenants that (i) Company has the right to grant the licenses provided for in this Agreement, and (ii) the Licensed Mark and Company Service: (a) does not violate any applicable law, statute, directive, ordinance, treaty, contract, or regulation, (collectively, “Laws”), (b) does not infringe any copyright, patent, trademark or other intellectual property right of any person or entity, and (c) does not breach any agreement, duty toward, or rights of, any person or entity.
6.2 DISCLAIMER OF WARRANTIES.
Except as expressly provided in this Agreement, Company makes no representation or warranty of any kind or nature whether express or implied with respect to the Licensed Mark or the Company Service. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE COMPANY SERVICE IS PROVIDED “AS IS.” EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING IN LAW. COMPANY DOES NOT ASSUME OR AUTHORIZE BROKERAGE TO ASSUME COMPANY ANY OTHER WARRANTY.
ARTICLE 7 ADDITIONAL REPRESENTATIONS AND WARRANTIES
7.1 DUE INCORPORATION. Each party hereby represents and warrants that it is a corporation duly organized and validly existing under the laws of the jurisdiction of its incorporation and has the corporate power and authority to own its property and carry on its business as contemplated hereby.
Each party hereby represents and warrants that there are no actions, suits, proceedings or investigations pending or threatened against or affecting such part or any of its properties, assets or businesses in any court or before or by any governmental department, board, agency or instrumentality, domestic or foreign, or any arbitrator.
ARTICLE 8 PROSECUTION OF INFRINGEMENT CLAIMS
Brokerage agrees to notify Company promptly of any alleged infringement of the Licensed Mark or the Company Service of which Brokerage becomes aware; provided, Brokerage has no obligation to actively monitor for such infringement.
ARTICLE 9 INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 INDEMNIFICATION. (a) Brokerage agrees to indemnify, defend and hold harmless Company from any third-party claim, whether actual or alleged (collectively, “Loss”) suffered or incurred by Company to the extent that such Loss arises out of or in connection with Brokerage’s breach of this Agreement. Brokerage agrees to be solely responsible for defending any Loss against Company, subject to Company’s right to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Losses against Company, provided that Brokerage will not agree to any settlement that imposes any obligation or liability on Company without its prior express written consent.
(b) Company will indemnify, defend and hold harmless Brokerage from any Loss suffered or incurred by Brokerage that arises out of or in connection with (i) a Brokerage’s use of the Company Service and/or Licensed Mark, and/or (ii) Company’s breach of this Agreement. Company agrees to be solely responsible for defending any Loss against Brokerage, subject to Brokerage’s right to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Losses against Brokerage, provided that Company will not agree to any settlement that imposes any obligation or liability on Brokerage without its prior express written consent.
9.2 LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING OUT OF BREACH OF SECTION 4, ABOVE, AND/OR EACH OF COMPANY OR BROKERAGE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, ABOVE (“EXCLUDED LIABILITIES”), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF COMPANY AND/OR BROKERAGE IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WILL BE STRICTLY LIMITED TO THE AMOUNT BY BROKERAGE TO COMPANY PURSUANT TO THIS AGREEMENT IN THE THREE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
9.3 CONSEQUENTIAL DAMAGES. EXCEPT FOR EXCLUDED LIABILITIES, IN NO EVENT WILL COMPANY OR BROKERAGE BE LIABLE TO BROKERAGE OR COMPANY, AS APPLICABLE, FOR INCIDENTAL, SPECIAL, INDIRECT, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, OR DATA BEING RENDERED INACCURATE.
ARTICLE 10 MARKETING OPPORTUNITIES
10.1 All formal marketing, promotion, and advertising materials prepared by or for Brokerage in connection with the Branded Service, if any, will include references to the Licensed Mark, and with respect to Branded Service will include “Powered by HouseAmp” or such other phrase as the parties may agree.
10.2 Brokerage will use commercially reasonable efforts to promote the Branded Service throughout the Term.
ARTICLE 11 RELATIONSHIP OF PARTIES
It is the express intention of the parties that Company is and will be an independent contractor, and no partnership will exist between Brokerage and Company pursuant hereto. This Agreement will not be construed to make either party the agent or legal representative of the other party for any purpose whatsoever, and neither party is granted any right or authority to assume or create any obligations for, on behalf of, or in the name of the other party.
ARTICLE 12 TERM; TERMINATION; EFFECTS OF TERMINATION
12.1 TERM. This Agreement commences on the Effective Date, and continues for twelve (12) months (“Term”), and shall automatically renew of successive twelve (12) month Terms unless terminated pursuant to Section 12.2 below.
12.2 TERMINATION. Notwithstanding Section 12.1, either party may terminate this Agreement: (a) upon sixty (60) days written prior to the end of the then-current Term, which termination shall be effective as of the end of such Term; (c) upon thirty (30) days’ written notice if the other party breaches any provision of this Agreement and such breach is not cured within such thirty (30) days period; or (d) upon written notice effective immediately if (i) the other party ceases operations (other than in connection with a valid assignment pursuant to Article 13 below) or (ii) the other party becomes voluntarily or involuntarily subject to a bankruptcy or similar proceeding.
12.3 EFFECTS OF TERMINATION. (a) Upon the expiration or termination of this Agreement for any reason:
(i) Brokerage will (x) return all Company Confidential Information and remove copies of Company Confidential Information from its information systems, including any backup media or servers, and (y) stop using the Licensed Mark and Company Service.
(ii) Company will: (x) return all Brokerage Confidential Information and remove copies of Brokerage Confidential Information from its information systems, including any backup media or servers, and (z) stop using the Brokerage Marks.
(b) Sections 4 through 7, 9, 12.3, 13, and 14 will survive expiration or termination of this Agreement.
ARTICLE 13 ASSIGNMENT
By operation of law or otherwise, neither party may assign, sublicense, or transfer the Agreement or any right or duty under the Agreement, without the other party’s prior written consent, which will not be unreasonably withheld; provided, however, either party may assign this Agreement, in whole, to any third party in connection with any merger, consolidation, reorganization, liquidation, or sale of all or substantially all the business or assets of such party. Any purported assignment or transfer of the Agreement in violation of this Article 13 will be null and void.
ARTICLE 14 MISCELLANEOUS
14.1 NOTICES. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt, or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on the signature page, or to such e-mail address or address as subsequently modified by written notice given in accordance with this Section 14.1.
14.2 BINDING EFFECT; CONSTRUCTION. Except as otherwise provided in this Agreement, this Agreement will be binding upon and inure to the benefit of the parties and their permitted respective successors, transferees, and assigns. This Agreement will be construed simply according to its fair meaning and not strictly for or against any party.
14.3 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
14.4 HEADINGS. The Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement.
14.5 SEVERABILITY. If any term or provision hereof is illegal, invalid or unenforceable for any reason whatsoever, that term or provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and such illegality, invalidity or unenforceability will not affect the validity or legality of the remainder of this Agreement. If necessary to effect the intent of the parties, the parties will negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language which as closely as possible reflects such intent.
14.6 GOVERNING LAW; JURISDICTION. The laws of the State of Washington (without regard to principles of conflict/choice of laws) will govern this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties. Company and Brokerage each agree to submit to the exclusive jurisdiction of the state and federal courts located in King County, Washington if a claim is brought by Brokerage under this Agreement.
EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
14.7 SPECIFIC PERFORMANCE. Each party agrees with the other party that the other party may be irreparably damaged if the provisions governing the intellectual property rights of the parties or Article 4 of this Agreement are not performed in accordance with their specific terms and that monetary damages may not provide an adequate remedy in such event. Accordingly, in addition to any other remedy to which the nonbreaching party may be entitled, at law or in equity, the nonbreaching party will be entitled to seek injunctive relief to prevent those breaches of this Agreement.
14.8 ENTIRE AGREEMENT. The provisions of this Agreement, including the schedules attached hereto, set forth the entire agreement and understanding between the parties as to the subject matter hereof and supersede all prior and contemporaneous agreements, oral or written, and other communications between the parties relating to the subject matter hereof.
14.9 LIMITATION ON RIGHTS OF OTHERS. Nothing in this Agreement, whether express or implied, will be construed to give any party other than as expressly set forth herein any legal or equitable right, remedy or claim under or in respect of this Agreement.
14.10 WAIVERS; REMEDIES. Any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the party entitled to enforce such term, but any such waiver will be effective only if in writing signed by the party against which such waiver is to be asserted. Except as otherwise provided herein, no failure or delay of any party in exercising any power or right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, preclude any other further exercise thereof or the exercise of any other right or power.