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PRODUCT USE AGREEMENT
This Product Use Agreement (the “Agreement”) is entered into as of [____________], [______] (the “Effective Date”) by and between 1030CLOSER LLC, a Massachusetts limited liability company having a principal place of business at 85 Lawrence Street, Belmont, MA 02478 (the “Company”), [____________], a [____________] having a principal place of business at [___________, _____________, _________] (the “Client”).
WHEREAS, the Company is in the business of real estate consulting and advisory services;
WHEREAS, the Client is in the business of real estate; and
WHEREAS, Client wishes to engage the Company to provide certain products to assist with real estate and to perform such services, according to the terms, specifications, and conditions set forth in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
DEFINITIONS. For purposes of this Agreement, the following definitions apply:
“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Massachusetts are authorized or required by Law to be closed for business.
“Fee Schedule” means the document attached as Schedule A to this Agreement.
“Platform” means Google Drive.
“Product” means the 1030Closer real estate template and any other documents or products made available to the Client on the Platform.
“Term” has the meaning set forth in Section 5.2.
“Trial Period” has the meaning set forth in Section 5.1.
DUTIES OF COMPANY.
Product and Platform. During the Term of this Agreement, as defined below, the Company shall provide the Client with full access to the Platform housing the Product, which may be updated from time to time, in the Company’s sole discretion.
Maintenance. The Company shall maintain the Product, including but not limited to providing interactive links, downloadable templates, and schedules for the Client to reference and utilize during the Term. The Company shall notify the Client of any known scheduled maintenance or periods of inaccessibility to the Product or the Platform or will provide the Client with notice within a reasonable time of learning of the same. Maintenance may include any modifications or “bug fixes” as may be necessary for the Product continues to perform in accordance with its anticipated use, and/or updates, improvements, and/or enhancements to the Product itself.
Fee Processing. The Company shall process the monthly fee for access to the Product, as further described on the Fee Schedule, on the [●] Business Day of day of each month. The Company reserves the right to amend the Fee Schedule with written notice to the Client upon renewal of this Agreement.
Cooperation and Assistance. Client shall cooperate with the Company and respond promptly to any the Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for the Company to perform the services in accordance with the requirements of this Agreement.
DUTIES OF CLIENT.
3.1 Cooperation and Assistance. The Client shall cooperate with the Company and respond promptly to the Company to provide information, approvals, authorizations, or decisions that are reasonably necessary for the Company to perform the services in accordance with the terms of this Agreement. Such cooperation shall include, but is not limited to, providing client-information, billing information, or updating billing methods, as may be reasonably requested by the Company.
3.2 Terms and Use of Product and Platform. The Client acknowledges and agrees that use of the Product and access to the Platform shall only be permitted during the Term of this Agreement and may be revoked by the Company at any time for breach of the terms of this Agreement. Moreover, the Client acknowledges and agrees that as of the date of this Agreement, the Product is housed on the Platform, which is owned by a third-party. As such, the Client understands that the Company may not have full control over the Platform and the Client’s ability to use the Platform at certain times. Notwithstanding the foregoing, the Client acknowledges and agrees that unless otherwise indicated by the Company, the Client will not receive a credit for such events, so long as they are solely related to use of the Platform and are not related to use and performance of the Product. Furthermore, the Client hereby agrees that it shall not share or otherwise provide any third-parties or individuals with access to the Platform or the Product without first obtaining the written consent of the Company.
FEES.
Monthly Fee. The Client hereby acknowledges and agrees it shall be responsible for payment of a nonrefundable monthly fee, as further described on the Fee Schedule, as amended.
Auto-Payment. The Client hereby authorizes the Company to charge its credit card the monthly fee in accordance with the Fee Schedule on the [●] day of each month, unless otherwise agreed to in writing by the parties.
Default in Payment. If the Client fails to pay any amount when due, the Company may immediately suspend the Client’s access to the Platform, request the return of all downloads of the Product, and terminate this Agreement for breach, until all indebtedness of the Client has been paid in full.
TERM AND TERMINATION.
Trial Period. Upon execution of this Agreement and the Subscription and Waiver, as attached hereto substantially in the form of Exhibit A, the Client shall have restricted access to the Product on the Platform without charge, for a period of fourteen (14) days (the “Trial Period”). Upon expiration of the Trial Period, the Client, shall receive unrestricted access to the Platform and Product and shall be bound by the terms of this Agreement.
Term of Agreement. This Agreement shall be made effective once the Trial Period ends, which shall be fourteen (14) days from the Effective Date set forth above and shall remain in effect for a period of one (1) month and shall automatically renew for successive one (1) month periods until terminated in accordance with Section 5.3 below (the “Term”).
Termination for Cause. The Term shall terminate earlier than as provided in Section 5.2 upon the occurrence of any of the following:
upon five (5) days’ written notice, by the Company to the Client, if the Client fails to pay the amounts due to the Company pursuant to Section 4;
by either party for any material breach of this Agreement, other than failure to make payments under Section 4, which is not cured within fifteen (15) days of receipt by the party in default of a notice specifying the breach and requiring its cure;
by either party, effective immediately upon written notice if (i) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors to a receiver or to a trustee in bankruptcy, (iii) a proceeding is commenced by or against the other party for relief under the bankruptcy or similar laws, and such proceeding is not dismissed within sixty (60) days, or (iii) the other party is adjudged bankrupt; or
upon mutual written agreement of the parties.
Effect of Termination.
Upon termination of this Agreement pursuant to Section 5.3, the Company shall have no obligation to deliver or provide access to the Product to the Client or refund any fees or expenses paid in advance by the Client.
Upon termination of this Agreement, each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party’s Confidential Information, (ii) permanently delete all of the other party’s Confidential Information from its computer systems, and (iii) certify in writing to the other party that it has complied with the requirements of this clause.
OWNERSHIP OF PRODUCT.
Client and the Company hereby acknowledge and agree that the Product, and any and all related copyrights, trademarks, patents, trade secrets, Confidential Information, and any other proprietary rights are the sole and exclusive property of the Company. Except to the extent otherwise provided in this Agreement or under a separate licensing agreement, Client shall have no right, ownership, or title to the Product, or any related copyrights, trademarks, patents, trade secrets, Confidential Information, or any other proprietary rights obtained on the Product.
CONFIDENTIALITY.
Confidential Information. Each party acknowledges that it may receive confidential information and trade secrets (“Confidential Information”) from the other party during the Term of this Agreement. Confidential Information includes all information one party receives from the other party, except anything designated as not confidential. During the period this Agreement is in effect, and at all times afterwards, each party, its employees, contractors, consultants, and agents, will (a) safeguard the other party’s Confidential Information with the same degree of care that it uses to protect its own confidential information; (b) maintain the confidentiality of this information, (c) not use such information except as permitted under this Agreement; and (d) not disseminate, disclose, sell, publish, or otherwise make available this information to any third party without the prior written consent of the disclosing party.
Limitations on Confidentiality Restrictions. Section 7.1 above shall not apply to any information that (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is required to be disclosed by the receiving party as a matter of law (provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order); (e) is disclosed by the receiving party with the disclosing party’s approval; and (f) is independently developed by the receiving party without any use of Confidential Information. In all cases, the receiving party will use all reasonable efforts to give the disclosing party ten (10) days’ prior written notice of any disclosure of information under this Agreement. The parties will maintain the confidentiality of all confidential and proprietary information learned pursuant to this Agreement for a period of five (5) years from the date of termination of this Agreement.
Nondisclosure Agreements. Client agrees to execute a reasonable nondisclosure agreement if asked to do so by the Company.
Injunctive Relief for Breach. Client and the Company acknowledge that any breach of Section 7.1 by a receiving party will irreparably harm the disclosing party. Accordingly, in the event of a breach, the disclosing party is entitled to promptly seek injunctive relief in addition to any other remedies that it may have at law or in equity.
WARRANTIES, DISCLAIMER, LIMITATION OF LIABILITY.
Warranties. The Company warrants as follows:
The Company warrants that the Product, to the extent exclusively created by the Company, will not violate or in any way infringe upon the rights of third parties, including property, contractual, employment, trade secrets, proprietary information, and nondisclosure rights, or any trademark, copyright, or patent rights.
The Company warrants that the Product is intended for use in the Commonwealth of Massachusetts, only, and may not be relevant and/or applicable to the rules, laws, processes, or regulations of other states.
The Company shall not be liable for a breach of the warranty set forth in Section 8.1(a) unless the Client gives written notice of the defect, reasonably described, to the Company within fourteen (14) days of the time when the Client discovers or ought to have discovered the defect. If the Company reasonably verifies the Client’s claim, the Company shall use commercially reasonable efforts to correct any material defect and, in the event that the Company cannot, after repeated efforts, remedy such defect, the Company shall credit or refund the prorated remainder of the applicable Term of this Agreement, in accordance with the Fee Schedule. THE REMEDIES SET FORTH IN THIS SECTION 8.2 SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND THE COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 8.1(A).
Disclaimer. THE WARRANTIES SET FORTH IN SECTION 8.1 ABOVE, ARE IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (a) ANY WARRANTY THAT THE PRODUCT IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT, PLATFORM, AND SOFTWARE CONFIGURATIONS; (b) ANY AND ALL WARRANTIES OF MERCHANTABILITY; AND (c) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY THE CLIENT TO THE COMPANY FOR PERFORMANCE UNDER THIS AGREEMENT.
INDEMNIFICATION.
The Company shall indemnify the Client from any loss, claim, or damage (including reasonable attorneys’ fees and costs) arising out of this Agreement or the Product, to the extent that the loss, claim, or damage is caused by the Company’s material breach of any term of this Agreement or the intentional act of the Company.
Client shall indemnify the Company from any loss, claim, or damage (including reasonable attorneys’ fees and costs) arising out of this Agreement or the Product, to the extent that the loss, claim, or damage is caused by the Client’s material breach of any term of this Agreement or the intentional act of the Client.
NON-EXCLUSIVITY. The Company retains the right to perform and provide the same or similar Products and services for third parties during the Term as provided to the Client under this Agreement.
FORCE MAJEURE.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (the “Impacted Party”) reasonable control, including, without limitation, the following force majeure events (the “Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) national or regional emergency; and (f) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance. The affected party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume performance of its obligations as soon as reasonably practicable after the removal of the cause.
GENERAL.
Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, however, that, upon prior written notice to the other party, either party may assign the Agreement to an affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation, or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Entire Agreement. This Agreement, along with the Schedules and Exhibits attached and incorporated in this Agreement, constitutes the final, complete, and exclusive understanding between the parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements between the parties with respect to the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by an authorized officer of each party to this Agreement. If the parties sign this Agreement in multiple counterparts, each will be deemed an original, but all counterparts together will constitute one instrument.
Notices.
For a notice or other communication under this Agreement to be valid, it must be in writing and sent: (i) by hand; (ii) by a national delivery service (with all fees prepaid); (iii) by registered or certified mail, return receipt requested and postage prepaid; or (iv) by email, provided that such notice or other communication is also sent via one of the prior methods, to the following addresses, or at such other address for a party as specified in a notice in accordance with this section:
Company:
1030CLOSER LLC
Attn: Taylor Yates
85 Lawrence Street
Belmont, MA 02478
contact@1030closer.com
Client:
[CLIENT]
Attn: [___________________]
[___________________]
[___________________]
[___________________]
A valid notice or other communication under this Agreement will be effective when received by the party to which it is addressed. It will be deemed to have been received as follows: (i) if it is delivered by hand, national delivery service (with all fees prepaid), or registered or certified mail, return receipt requested and postage prepaid, upon receipt as indicated by the date on the signed receipt; (ii) if it is delivered by email (with confirmation of transmission), on the date sent if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; (iii) if the party to which it is addressed rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change of address for which no notice was given, then upon that rejection, refusal, or inability to deliver. If a notice or other recommunication addressed to a party is received after 5:00 PM on a business day at the location specified in the address for that party, or on a date that is not a business day, then the notice will be deemed received at 9:00 AM on the next business day.
Publicity. Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, except such disclosure may be made as is reasonably necessary to the disclosing party’s bankers, attorneys, or accountants or except as may be required by law.
Independent Contractor. The Company is, and at all times will be, an independent contractor. Nothing in this Agreement shall be deemed to create an employer/employee, principal/agent, or joint venture relationship. Neither party has the authority to enter into any contracts on behalf of the other party or otherwise act on behalf of the other party.
Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to any conflicts of laws provisions and the Parties consent to the jurisdiction of the courts located in the Commonwealth of Massachusetts. In the event that any part, term or provision of this Agreement shall be held or determined by a court of competent jurisdiction to be illegal, invalid or unenforceable, the validity or enforceability of the remaining parts, terms or provisions shall not be affected and this Agreement shall be construed as if it did not contain the part, term or provisions held to be illegal, invalid or unenforceable.
Severability. In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, that provision shall be severed from this Agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this Agreement.
Equitable Remedies. Each party acknowledges that a breach by a party of Section 6 (Ownership) and Section 7 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
Waiver. The failure of either party to enforce any provisions of this Agreement is not a waiver of the provisions or of the right of that party to subsequently enforce that, or any other, provision of this Agreement.
Attorney Fees. If any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing party.
Survival. Upon termination, the provisions of this Agreement including, without limitation, Section 4, and Section 6 through Section 8, of this Agreement, shall survive to the extent necessary to give effect to the provisions thereof. IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement on the date set forth above.
COMPANY:
1030CLOSER LLC
By:_________________________________
Print Name: Taylor Yates
Title: Manager
CLIENT:
[____________]
By:_________________________________
Print Name:__________________________
Title:_______________________________
SCHEDULE A
FEE SCHEDULE
DUE DATE
AMOUNT
Deposit due upon execution of this Agreement
$0.00
[Effective Date after Trial Period Ends]
$25.00
EXHIBIT A
Subscription Acknowledgement
Customer Name:
Telephone:
Fax:
E-mail:
Designated Customer Contact(s) Name(s):
Free Trial Period:
Fourteen (14) days.
Subscription Effective Date:
Subscription Fee as of the date below:
Name on Card:
Card Number:
CVV Number:
Billing Address:
SUBSCRIPTION ACKNOWLEDGEMENT
This Subscription Acknowledgement (the “Acknowledgement”) is entered into as of ____________, 20______ (the “Trial Period”), and effective as of ____________, 20______ (the “Effective Date”) by and between 1030CLOSER LLC, a Massachusetts limited liability company (the “Company”), and ____________ (“CLIENT”). This acknowledgement includes and incorporates the above Product Use Agreement (the “Agreement”) and such terms and conditions contained therein, and further provides the Company with Client’s explicit consent to charge Client’s card on or after the Effective date, in accordance with the Agreement.
IN WITNESS WHEREOF, the parties have executed this Subscription Agreement as of the Trial Period date above.