Sureson Appraisal Management Company (hereafter referred to as “Service Provider”) has developed http://www.sureson.com (the “Service”) to serve as an expeditious conduit for placing requests for appraisal services, tracking assignments and receiving completed reports. Use of the Service is conditioned upon acceptance of all the terms of use set forth in the Internet Marketing Agreement (the “Agreement”) below.
IF YOU DO NOT AGREE TO BE BOUND BY ALL TERMS OF THE AGREEMENT, DO NOT CLICK, “I AGREE”, AND DO NOT USE THE SERVICE.
BY CLICKING “I AGREE”, YOU ARE INDICATING THAT YOU HAVE READ AND COMPLETELY UNDERSTAND ALL PROVISIONS OF THE AGREEMENT, AND INTEND TO COMPLY FULLY WITH THE AGREEMENT AS STATED.
THIS INTERNET MARKETING AGREEMENT (“Agreement”), dated as of the date of the Registration Statement (the “Registration”) submitted concurrently with this Agreement (the “Effective Date”), made by and between Sureson Appraisal Management Company, a California limited liability company ("Service Provider"), and the affiliate identified in the Registration (“Affiliate”),
W I T N E S S E T H:
WHEREAS, Service Provider provides business Internet marketing services for the real estate appraisal industry, including (i) local search engine marketing setup and management, (ii) call tracking setup and reporting, (iii) e-newsletter setup and distribution, (iv) log creation and small business branding, (v) website development, (vi) video production and (vii) graphic design; and
WHEREAS, Affiliate desires that Service Provider provide certain services to Affiliate under the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows:
1. Services. Service Provider agrees to provide services to Affiliate as set forth in the Registration (the “Services”). In connection with Service Provider’s provision of the Services, Affiliate shall (i) promptly furnish accurate information to Service Provider necessary for the provision of the Services, to the use of which by Service Provider, including, without limitation, in Service Provider’s website, Affiliate hereby consents, (ii) comply with all applicable federal, state and local laws with respect to Affiliate’s business and website and (iii) not include in its website any content that Provider determines inappropriate or incorrect.
2. Term of Agreement; Termination.
(a) Initial Term. Unless earlier terminated as provided herein, this Agreement shall commence on the Effective Date and shall continue for the term set forth in the Registration (the “Initial Term”). If the term set forth in the Registration a month-to-month Term, the Initial Term shall terminate at the end of the same calendar month as the Effective Date.
(b) Renewal Term. Upon the expiration of the Initial Term, unless this Agreement has previously been terminated in accordance with Section 2(c) or 2(d) hereof, this Agreement shall automatically renew for consecutive twelve (12) month periods (a “Renewal Term”); provided, however, that either party may terminate this Agreement effective as of the expiration of the Initial Term or any Renewal Term by giving the other party written notice of such termination at least seven (7) days prior to the expiration of such Initial Term or any Renewal Term.
(c) Termination After Default. Should any party hereto commit a material breach of any representation, warranty, term or condition under this Agreement (a "Default"), the other party shall promptly give to the defaulting party written notice specifically describing the default (a "Default Notice"). The defaulting party shall have five (5) business days after receipt of a Default Notice to correct or cure such Default (the "Cure Period"). If after the expiration of the Cure Period the defaulting party has not corrected or cured the Default, then the non-defaulting party may terminate this Agreement by written notice of termination to the defaulting party, and such termination will be effective immediately; provided, however, that for purposes of this Section 2(b), “default” shall also include (i) any act of dishonesty or moral turpitude by Affiliate or any of Affiliate’s employees, if any; (ii) the unauthorized disclosure by Affiliate of Service Provider’s Confidential Information (as defined in Section 3(b) hereof); (iii) the conviction of Affiliate of any crime, except minor traffic infractions or misdemeanors; and (iv) the violation by Affiliate of any applicable law, rule or regulation not subject to cure within five business days, in any of which events Service Provider may terminate this Agreement immediately by written notice of termination without an intervening Cure Period.
(d) Termination Upon Bankruptcy. Any party hereto may, at its option and without notice, terminate this Agreement, effective immediately, should any other party hereto (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or in insolvency covering all or substantially all of such party's property or providing for the liquidation of such party's property or business affairs.
(e) Effect of Termination. Within 30 days after the termination of the Agreement, Service Provider shall return or destroy all Confidential Information (as defined in Section 3(b) hereof) received from Affiliate.
3. Confidentiality.
(a) Confidentiality. Each of Service Provider and Affiliate agrees to keep confidential all Confidential Information (as defined in Section 3(b) hereof) that either of such parties (each a “Party” and collectively the “Parties”) obtains from the other under or in connection with this Agreement and will not directly or indirectly sell or disclose such Confidential Information to any third parties, except as expressly contemplated by the terms of this Agreement. Affiliate’s Confidential Information may be utilized by Service Provider only (i) as necessary to carry out the Services that the Service Provider has agreed to provide to Affiliate or (ii) as otherwise required by applicable federal or state law. All documents and all copies thereof obtained by Service Provider from Affiliate will be promptly returned to Affiliate upon request. Any Confidential Information that either Party has disclosed to the other Party prior to the date of this Agreement will be subject to the terms and conditions hereof.
(b) Definition of Confidential Information. "Confidential Information" means any information (whether oral, written, electronic or otherwise) provided by either Party (hereinafter, the “Disclosing Party”) to the other Party (hereinafter, the “Recipient Party”) that (x) relates to the Disclosing Party's business, (y) is not known generally to the industry in which the Disclosing Party may be engaged, and (z) is not otherwise generally available to the public. Confidential Information includes, but is not limited to, any and all of the Disclosing Party's intellectual property, trade secrets, proprietary data or information relating to past, present or future business and products; price lists, customer lists, customer addresses, e-mail addresses and telephone numbers; customer financial information, including, but not limited to, social security numbers, income, credit scores, credit reports, debt information, homeownership status, and payments history; information pertaining to processes, procedures or standards; manuals, business strategies, records, drawings, specifications or designs; financial information, whether or not reduced in writing; and any other information or data which the Disclosing Party advises the Recipient Party in writing is to be treated as confidential information. Confidential Information does not include information that (i) is or becomes publicly available other than as a result of a disclosure by the Recipient Party or the Recipient Party's employees, (ii) is or becomes available to the Recipient Party on a non-confidential basis from a source (other than the Disclosing Party) that, to the best of the Recipient Party's knowledge after due inquiry, is not prohibited from disclosing such information to the Recipient Party by a legal, contractual or fiduciary obligation to the Disclosing Party, (iii) is independently developed by the Recipient Party without use of the Confidential Information or (iv) is already known by the Recipient Party.
(c) Rights of Service Provider in Work Product. Notwithstanding Section 3(a) hereof or any other term of this Agreement, in no event shall Service Provider be precluded from developing for itself, or for others, materials or services which are similar to the Services provided to Affiliate, irrespective of their similarity thereto. In addition, Service Provider shall be free to provide services to other Affiliates that use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques within the scope of its business practice that are used in the course of providing the Services.
(d) Security of Information. The Recipient Party shall maintain physical, electronic, and procedural safeguards to protect any Confidential Information. The Recipient Party shall promptly disclose to the Disclosing Party any and all breaches in security with respect to any Confidential Information that may materially affect the Disclosing Party.
4. Limitation of Liability.
(a) Direct Damages. Affiliate hereby agrees that Service Provider and its directors, officers, employees, agents, representatives, affiliates, and owners shall not be liable to Affiliate for any direct damages arising under this Agreement, regardless of the claim; provided, however, that if Service Provider is adjudicated to have engaged in gross negligence or willful misconduct that results in Affiliate having direct damages, then the liability of Service Provider for such direct damages shall be limited to an amount not to exceed the fees received by Service Provider from Affiliate for Services during the prior twelve (12) months.
(b) Indirect and Punitive Damages. Affiliate hereby agrees that Service Provider and its directors, officers, employees, agents, representatives, affiliates and owners shall not be liable to Affiliate in any event for any special, incidental, consequential, indirect or punitive damages (including, but not limited to, loss of business profits, business interruption, or loss of business information), regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise, and even if Service Provider is advised of the possibility of such damages.
(c) No Warranty for Services. SERVICE PROVIDER IS PROVIDING THE SERVICES TO AFFILIATE “AS IS.” SERVICE PROVIDER MAKES NO REPRESENTATIONS WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN. SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(d) Force Majeure. Neither party to this Agreement shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, fires, riots, wars or embargoes.
5. Representations and Warranties.
(a) Service Provider. Service Provider represents and warrants that (i) the execution, delivery and performance of this Agreement have been approved by all required actions of Service Provider, and that, when executed and delivered, this Agreement constitutes a valid obligation binding on Service Provider, and (ii) the execution, delivery and performance of this Agreement does not violate the terms of any other agreement to which Service Provider is a party.
(b) Affiliate. Affiliate represents and warrants that (i) the execution, delivery and performance of this Agreement has been approved by all required action of Affiliate, and that, when executed and delivered, this Agreement constitutes a valid obligation binding on Affiliate, (ii) the execution, delivery and performance of this Agreement does not violate the terms of any other agreement to which Affiliate is a party, (iii) during the Term of this Agreement, Affiliate’s business and (web site) advertisements are and will be in compliance with all applicable federal, state and local laws and regulations, (iv) all information provided by Affiliate to Service Provider pursuant to Section 1 of this Agreement is true and correct in all material respects, (v) Affiliate is duly licensed as a real estate appraiser under all applicable laws of the State in which he is domiciled and (vi) Affiliate maintains in full force and effect all insurance required under such applicable State law in at least the minimum coverages required thereunder, including, but not limited to, errors and omissions insurance and worker’s compensation insurance.
6. Appraisal Referrals.
(a) Referrals by Service Provider. Service Provider reserves the right to place orders for appraisals as it sees fit. Affiliate agrees to work diligently and employ its best efforts to conduct any and all appraisals referred to Affiliate by Service Provider, but Service Provider expressly disclaims any representation, warranty or covenant that Service Provider can or will provide any specific volume of appraisals to Affiliate.
(b) Compliance with Law. In conducting appraisals, Affiliate shall comply with all applicable laws of the State in which Affiliate is domiciled as well as the codes of conduct or ethics of any appraisal board or organizations of which Affiliate is a member, including, but not limited to, the Code of Ethics of the National Association of Realtors and the American Institute of Real Estate Appraisers.
(c) Fees and Expenses. Affiliate is solely responsible for all costs and expenses incurred by Affiliate in conducting any appraisals referred to it by Service Provider, including, but not limited to, transportation and automobile mileage expenses, which are not reimbursed by Service Provider. Affiliate has reviewed Service Provider’s Fee Schedule, which is contained on the registration form completed and submitted by Affiliate, and acknowledges that Service Provider may modify such Fee Schedule from time to time, including, but not limited to, by modifying the composition or formulae for determining fees and commissions applicable to a given transaction. In the event that two or more appraisers participate in such work, Affiliate’s share of the fee shall be divided between or among the participating Affiliates according to agreement between them or, in the absence of such agreement, in Service Provider’s reasonable discretion.
(d) Payment of Fees. All fees for appraisals referred to Affiliate by Service Provider shall be received from the client by Service Provider, with Affiliate’s portion thereof payable to Affiliate upon completion of the appraisal and collection of the fee, or as soon thereafter as practicable, subject, as the case may be, to any right of offset or other claim by Service Provider.
(e) Procedure Upon Termination of Agreement. In the event of termination of this Agreement by either Party, with respect to pending transactions at the date of notice of termination which require further services which would otherwise be rendered by Affiliate, Service Provider shall make arrangement with another Affiliate or Affiliates to perform the required work, and such Affiliate or Affiliates shall be compensated for completing the details of the pending transactions. Such compensation, in addition to any other sums that may be due to Service Provider, shall be deducted from the terminated Affiliate’s portion of the fees applicable to the pending transactions.
(f) Indemnification. Affiliate shall indemnify and hold Service Provider harmless from and against any and all losses, damages, claims, judgments, settlements and expenses, including, but not limited to, Service Provider’s attorney’s fees incurred in connection with the defense or settlement of any related action or proceeding, arising out of the conduct by Affiliate of any appraisal referred to Affiliate by Service Provider pursuant to this Agreement.
7. Miscellaneous.
(a) Notices. All notices, requests, demands or other communications hereunder shall be in writing and shall be deemed to have been duly given (i) when personally delivered, (ii) on the first business day following the business day on which delivered to a nationally recognized overnight delivery service, (iii) if sent by facsimile transmission, on the date that transmission is received by a responsible officer or employee of the recipient in legible form or (iv) if sent by certified or registered mail, return receipt requested, on the business day that it is delivered or its delivery is attempted, in any case addressed to Affiliate at the address set forth in the Registration and addressed to Service Provider at the following address:
Graham Kretchman
President
Sureson Appraisal Management Company
9107 Wilshire Boulevard
Beverly Hills, CA 90210
(b) Amendment. This Agreement may be amended only by a written agreement signed by all of the parties hereto.
(c) Survival of Provisions Upon Termination of Agreement. Sections 3, 4, 5 and 6 of this Agreement shall survive the termination of this Agreement.
(d) Relationship Between Parties. The relationship between the parties to this Agreement shall be that of independent contractors. Nothing in this Agreement shall be construed to create the relationship of employer and employee, joint venture, partnership or association between the parties to this Agreement and or any of their respective affiliates.
(e) Successors and Assigns. This Agreement and the rights hereunder are not assignable unless such assignment is consented to in writing by all parties hereto; provided, however, that all of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by, the respective heirs, beneficiaries, personal and legal representatives, successors and permitted assigns of the parties hereto.
(f) Entire Agreement; Waiver. This Agreement contains the entire understanding of the parties hereto with respect to the activities contemplated by this Agreement and supersedes all prior agreements and understandings between the parties relating thereto, whether written or oral. Any condition to a party's obligation hereunder may be waived by such party in writing.
(g) Law Governing. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California.
(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one agreement which is binding upon all parties hereto, notwithstanding that all parties are not signatories to the same counterpart. This Agreement may be executed by facsimile signatures, which shall be deemed to have the same force and effect as an original signature.
(i) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(j) Captions. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
(k) Compliance With Laws. Each party shall comply with all applicable laws and regulations. Each party shall at its own expense obtain and maintain any governmental approval, consent, license or other authorization necessary to the performance of the party of this Agreement.
(l) Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Affiliate (by clicking “I Agree” as hereinabove set forth) and the undersigned have hereby set their hands and seals as of the date of the Registration.
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