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PROPERTY MANAGER AGREEMENT
This Property Manager Agreement (Agreement) is made and entered into by Property Management Search, LLC (PMS), a Nevada limited liability company, and the property manager named below (Manager), as of the date of the last signature by PMS or Manager (the Effective Date).
DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings as set forth below.
1. Manager Data: Information regarding Manager Property Management Services, including their nature, prices, and terms, whether in the form of text, photographs, or any other data format now known or hereafter discovered, that Manager has entered or caused to be entered into the PMS System.
2. Manager Property Management Services: Property Management Services of Manager, descriptions of which Manager has entered or caused to be entered into the PMS System.
3. Manager Members: Employees and agents of Manager authorized by Manager to interact with the PMS system on Manager's behalf.
4. Confidential Information: Information or material proprietary to a party or designated "confidential" by the party and not generally known to the public that the other party may obtain knowledge of or access to as a result of this Agreement. Confidential Information includes, but is not limited to, the following types of information (whether in oral, visual, audio, written or other form): (a) IP addresses, access codes and passwords; (b) any information that either party obtains from any third party that the receiving party treats as proprietary or designates as Confidential Information, whether or not owned or developed by the receiving party; (c) any information designated as confidential or private by any applicable state, federal, local or other law, regulation, code or directive; and (d) any claims or evidence presented by any party under arbitration pursuant to paragraph 32. Confidential Information does not include information that is or becomes publicly available by other than unauthorized disclosure by the receiving party; independently developed by the receiving party; received from a third party who has obtained and disclosed it without breaching any confidentiality agreement; or already possessed by the receiving party at the time of its disclosure.
5. Non-Manager Data: All information in the PMS System that is not Manager Data, including data relating to other companies that supply property management and relating to their products and services.
6. Owners: Property owners seeking Property Management Services by means of the PMS System.
7. Permitted Uses: Use of the PMS System to market Manager Property Management Services to Owners.
8. PMS Marks: PMS's trade and service marks, including Property Management Search.
9. PMS Policies: PMS's policies regarding the operation of the PMS System, published on the PMS System, as they are amended from time to time.
10. PMS System: PMS's proprietary sales automation software system, which includes collecting, compiling, and disseminating information about Property Management Services.
11. Property Management Services: Products and services relating to the leasing, maintenance, and other management functions performed on behalf of owners of real estate to be rented for residential and commercial purposes.
12. Standard Service Information: The standard industry information necessary for considering the purchase of Property Management Services, including pricing schedules, service descriptions, and licensure information, where applicable. PMS shall define the minimum Standard Service Information in the PMS Policies.
As used in this Agreement: (a) "including" means "including, without limitation"; and (b) nouns and verbs of the singular and plural numbers, and nouns and pronouns of masculine, feminine, and neuter genders shall be interchangeable. The terms of the preceding sentence apply except where the context would make such an interpretation impractical.
INTELLECTUAL PROPERTY/GRANTS OF LICENSE
13. As between the parties: (a) PMS owns all intellectual property, including copyrights, patents, and trade secrets, in the software and systems comprising the PMS System; and (b) Manager owns all intellectual property in the Manager Data.
14. During the term of this Agreement, PMS grants to Manager a non-exclusive, world-wide license to make copies of and display the PMS System only to the extent necessary to affect the purposes of this Agreement.
15. During the term of this Agreement, Manager grants to PMS a non-exclusive, world-wide license to make copies of, display, perform, and make derivative works of the Manager Data only to the extent necessary to affect the purposes of this Agreement.
16. All licensees hereunder shall terminate upon the termination of this Agreement. This Agreement is a non-exclusive license, and not a sale, assignment, or exclusive license. Each party retains all rights not expressly granted herein.
17. Neither party shall use the trade or service marks of the other party, including the PMS Marks, in any communication, verbal, written, or electronic, except to make factual statements about the relationship between the parties under this Agreement. During the term of this Agreement, neither party shall publicly disparage the marks of, or cast into doubt the quality of the products or services of, the other party.
ACKNOWLEGEMENTS
18. Manager acknowledges that PMS may revise the PMS Policies in PMS's sole and complete discretion, except as set forth in paragraph 18.
19. Manager acknowledges that PMS has no responsibility to exercise editorial control over the Manager Data. PMS nevertheless retains the right to delete from the PMS System any portion of the Manager Data that is, in PMS's sole reasonable judgment, offensive, unlawful, harmful or not deemed to be in accordance with PMS’s best interest.
20. Manager acknowledges that PMS provides no guarantee of sales or traffic to Manager's web site as a consequence of this Agreement. Consumer queries for Property Management Services will produce responses from the PMS System containing Non-Manager Data relating to the Property Management Services of other companies.
21. Manager acknowledges that it is solely responsible for the conduct of Manager Members it authorizes to access the PMS System or the Manager Data.
22. Manager acknowledges that Owners who purchase Property Management Services will be permitted to rate Manager and its Property Management Services on the PMS System, subject to the PMS Policies. Manager agrees that no comment of any Owner shall be the basis for any claim against PMS or the Owner accept as provided in this Agreement.
PMS’s OBLIGATIONS
23. PMS shall maintain the PMS System in good operating order. The PMS System shall be available via TCP/IP on the world-wide computer network known as the Internet.
24. PMS shall issue to Manager unique user IDs and passwords necessary for Manager to manage the Manager Data and access to it by Manager Members.
25. PMS shall use commercially reasonable efforts to deliver Manager Data and updates of it to Owners. Owners shall search the PMS System for property management services which match their respective needs. The PMS System shall deliver a list of matching Managers and default the appearance order of matching companies the Manager to the closest to furthest in proximity (within 200 miles) to the property address inputed by Owner. The Owner will then have the ability to sort the list of matching Managers by several other options. When Owners search for Property Management Services, and those searches result in matches against the services of other companies, PMS shall rotate the appearance of matching “Featured Management Companies” within 200 miles of the property address input by Owner to ensure equal displays.
26. PMS will display Manager's web site address on ads where Manager Property Management Services match the search criteria entered by Owners. Manager shall choose the search criteria from a drop-down menu supplied by PMS. The PMS System will contact Manager when an Owner submits a completed request for additional information form on the web site.
27. In the event Manager objects to the content of any Owner review of Manager or its Property Management Services on the grounds that it is inaccurate or misrepresents Manager or its Property Management Services, PMS shall facilitate contact between Manager and Owner for them to resolve the difference between them. In the event they are unable to resolve the difference between them via informal discussions, Manager must submit any claim against any Owner to arbitration subject to paragraph 32. PMS shall determine in its sole discretion whether to suspend the review content during the pendency of any dispute between Manager and any Owner.
28. PMS shall maintain and update the PMS Policies, promptly informing Manager of all material changes to them at least 30 days in advance of the effective date of the changes. PMS may amend the PMS Policies in it sole discretion, except that it may not amend them so as to diminish the level of service Manager receives.
29. PMS warrants that the PMS System: (a) does not infringe the rights, including intellectual property rights, of any third party; and (b) does not violate any applicable law.
MANAGER'S OBLIGATIONS
30. Manager shall enter the Manager Data into the PMS System. For each of Manager's services or products, Manager shall enter at a minimum the Standard Service Information. Manager shall place a link to PMS’s web site on Manager’s web site.
31. Manager agrees to use the PMS System solely for the Permitted Purposes under this Agreement; any other use is strictly prohibited. Under no circumstances is Manager permitted to disclose the PMS System, its designs, or PMS's Confidential Information to any competitor of PMS, or to use any of the foregoing for purposes of developing any software or system that will compete with the PMS System.
32. Under no circumstances is Manager permitted to use the PMS System for the purpose of gathering competitive intelligence regarding other property management companies or their pricing. Without limiting the generality of the preceding sentence, Manager shall not use the PMS System to gather or communicate information to allow it to coordinate or fix the prices for Property Management Services.
33. Manager shall maintain the security of all user IDs and passwords. PMS shall bear no responsibility or liability for disclosures of Manager's Confidential Information due to Manager's failure to comply with this paragraph.
34. Manager shall provide all equipment and services necessary for it to obtain access to the Internet (and thus to the PMS System). PMS shall bear no responsibility or liability for the performance of third parties Manager has engaged to provide such equipment and services.
35. Manager warrants that it holds all licenses and certifications required by law to offer the Manager’s Property Management Services. If Manager breaches the terms of this paragraph, PMS shall be entitled to terminate this Agreement immediately, retaining all other remedies available to it, and without any obligation to make a pro rata refund of fees to Manager.
36. Manager warrants that the Manager Data: (a) does not infringe the rights, including copyright and all other intellectual property rights, of any third party; (b) does not violate any applicable law; and (c) provides an accurate representation of the Manager Property Management Services in all material respects. Manager shall not make any warranties or representations to any third party on behalf of PMS; without limiting the generality of the foregoing, Manager shall not represent that PMS warrants the Manager Property Management Services.
37. Manager shall pay the initial and periodic fees set forth in Pricing, below, according to the payment terms disclosed in Pricing, below. Except as expressly provided in this Agreement, in the event this Agreement terminates before the expiration of its then-current term for any reason other than breach by PMS, Manager shall not be entitled to any refund of fees already paid to PMS, and Manager shall be liable to PMS for any fees due but not paid at the time of termination. In the event any amount due PMS remains unpaid for 30 days or more, PMS may suspend its obligations under this Agreement and Manager's access to the PMS System, without terminating this Agreement, until such time as Manager's account is current and paid in full.
CONFIDENTIAL INFORMATION
38. Each party shall protect the Confidential Information of the other party with the same degree of care it takes to protect its own sensitive business information of like kind, but in no event less than reasonable care. A party may disclose Confidential Information of the other party only if such disclosure is required by law or court order; provided, however, that the disclosing party makes commercially reasonable efforts to notify the other party in writing in advance of disclosure.
39. Within five days after termination of this Agreement, each party shall: (a) return to the other party all Confidential Information of the other party; and (b) erase or destroy Confidential Information of the other party stored on magnetic media or other computer storage, including system backups; and (c) at the other party's request, certify in writing that all materials have been returned or destroyed.
TERM AND TERMINATION
40. The term of this Agreement begins on the Effective Date and shall continue for successive periods as described by the level of membership subscribed or until terminated in writing in accordance with the terms of this paragraph and written notice provided pursuant to paragraph 47, below. This Agreement shall terminate upon the occurrence of any one or more of the following events: (a) 30 days after any party's written notice to the other party that the other party has breached this Agreement, provided the breach remains uncured; (b) upon PMS's written notice to Manager that PMS is terminating this Agreement without cause, provided PMS makes a pro rata refund of Manager's fees hereunder for the period between the termination and end of the term for which Manager has paid; (c) upon either party's voluntary or involuntary petition in bankruptcy, entry into receivership, or assignment of assets for the benefit of creditors; and (d) as provided in paragraph 35.
GENERAL PROVISIONS
41. Applicable law: This Agreement shall be governed by and interpreted according to the laws of the State of Nevada, without regard to its conflicts and choice of law provisions. The parties hereby exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods (CISG) (1980, 1987 UN-certified English text) and the Uniform Computer Information Transactions Act (UCITA) (proposed).
42. Arbitration and Attorney's fees: Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be adjudicated in the State of Nevada by arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules, including its Optional Rules for Emergency Measures of Protection (collectively, the "Arbitration Rules"), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof in Clark County, State of Nevada. Any arbitration under this Agreement shall be held at a location in Clark County, State of Nevada selected by the AAA. The parties irrevocably agree, consent, and submit themselves to personal jurisdiction in the courts of Clark County, State of Nevada or the federal court of the United States situated therein, as applicable, which shall have sole and exclusive jurisdiction over any action under this Agreement not subject to arbitration. If any party prevails in an action or proceeding to enforce or interpret this Agreement or any provision hereof, it shall be entitled to its reasonable attorney's fees and costs in the action or proceeding. Manager agrees to submit any dispute with an Owner regarding the content of any Owner review on the PMS System to arbitration subject to this paragraph. The arbitrator(s) may order, as a remedy in any such dispute, that PMS remove or modify the Owner review.
43. Indemnification: Subject to paragraph 44, in the event a party breaches any provision of this Agreement, that party (the Breaching Party) shall indemnify the other party, its subsidiaries and affiliated companies, and all their respective employees, directors, agents, and authorized successors and assigns (the Indemnified Parties), against any and all losses, damages, and costs (including reasonable attorney’s fees) arising from each claim of any third party resulting from the breach. The Indemnified Parties shall: (a) promptly notify the Breaching Party of any claim and give the Breaching Party the opportunity to defend or negotiate a settlement of any such claim at the Breaching Party's expense; and (b) cooperate fully with the Breaching Party, at the Breaching Party's expense, in defending or settling any claim.
44. Limitation of liability/exclusion of warranties: IN THE EVENT OF ANY INTERRUPTION IN THE PMS SYSTEM, MANAGER'S SOLE AND EXCLUSIVE REMEDIES SHALL BE TO OBTAIN A PRO RATA EXTENSION OF SERVICE FOR THE PERIOD OF THE INTERRUPTION AND TO TERMINATE THIS AGREEMENT PURSUANT TO PARAGRAPH 30. In no event shall PMS be responsible or liable to Manager for any other damages, including direct, indirect, incidental, consequential, special, or punitive damages (even if PMS has been advised of the possibility of such damages), or lost profits arising from this Agreement or any breach of it. In no event shall PMS be liable to Manager for any amount in excess of the fees Manager has paid PMS in the year immediately preceding the first event giving rise to any claim for damages. Manager acknowledges that PMS provides the PMS system without representations or warranties of any kind, either express or implied, except as expressly set forth in this Agreement. Manager is solely responsible and liable for the content of the Manager Data, and PMS shall not be liable to Manager for any claim arising from inaccuracies in the Manager Data, any failure to update the Manager Data promptly, or the Manager Data's inadequacy for any particular use, whether personal or commercial.
45. Limitations Essential to Bargain: Manager stipulates that it has consulted its legal counsel before entering this Agreement. PMS has set its prices and service levels based upon the limitations of liability, exclusions of warranty, indemnification, and dispute resolution provisions of this Agreement; as such, the same constitute essential terms of the bargain between the parties.
46. Relationship of the Parties: The relationship of PMS to Manager is that of independent contractors. Neither party shall be deemed to be the agent, partner, joint venturer, franchisor or franchisee, or employee of the other party or have any authority to make any agreements or representations on the behalf of the other party. Each party shall be solely responsible for the payment of compensation, insurance, and taxes of its own employees.
47. Notice: All notices to be given under this Agreement shall be by personal service or express mail, U.S. certified mail (return receipt requested), facsimile transmission (if transmission confirmation is retained), or electronic mail (if sender receives a return receipt) to the parties at their respective addresses as set forth below under their respective signature line or such other address of which either party may advise the other in writing during the term of this Agreement; and shall be effective the earlier of the date of receipt, the date of facsimile transmission, the date of electronic mail, or three days after U.S. certified mailing.
48. No Waiver: No waiver or modification of this Agreement or any of its terms is valid or enforceable unless reduced to writing and signed by both parties.
49. No Assignment: Manager may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of PMS. Any purported assignment or delegation in contravention of this paragraph is null and void, and of no legal effect, and shall immediately cause this Agreement to terminate.
50. Entire Agreement: Subject to PMS Policies, this Agreement contains the full and complete understanding of the parties regarding the subject matter of this Agreement and supersedes all prior representations and understandings, whether oral or written, relating to the same.
51. Survival of Obligations: The "Definitions," "Confidential Information," and "General" provisions of this Agreement shall survive its termination or expiration in perpetuity.
52. Severability: Each provision of this Agreement is severable from the whole, and if one provision is declared invalid, the other provisions shall remain in full force and effect. Subject to paragraph 45, in the event that any provision of this Agreement is held invalid or unenforceable by a court having jurisdiction over the parties, the invalid or unenforceable provision shall be replaced, if possible, with a valid provision which most closely approximates the intent and economic effect of the invalid provision.
53. Applicable Law/Jurisdiction: This Agreement shall be deemed to have been made in the State of Nevada and its validity, construction, performance and breach shall be governed by the laws of the State of Nevada applicable to agreements made and to be wholly performed in the State of Nevada. All actions concerning any dispute regarding this Agreement shall take place in Clark County, State of Nevada.
54. Counterparts: This Agreement may be signed by the parties in counterparts. The signatures of the parties by facsimile or in counterparts shall be joined together as one document and shall be considered one document for purposes of validity. Facsimile signatures are considered valid signatures that bind the parties.
55. Legal Advice: All parties to this Agreement acknowledge and warrant that they have received legal advice, or had the opportunity to receive legal advice, regarding the legal ramifications of entering into and signing this Agreement.
PRICING
PMS shall determine the price by period terms, level of service, and additional features chosen by Manager. Regular pricing shall be available on PMS’s web site.
PMS may unilaterally change its prices at any time by providing written notice to Manager under paragraph 47, above, which price change shall become effective UNLESS Manager objects in writing to PMS within 14 days of the date of the written notice provided by PMS. The parties anticipate that the prices will be fluid and may change on a regular basis.
Initial payment is by credit card/online authorization. All renewal payments are by credit card/online authorization and shall be assessed automatically against Manager's credit card/online account, provided PMS provides at least 14 days' advance notice and opportunity for Manager to cancel the automatic renewal.
The pricing available on PMS’s web site does not apply to the extent it contradicts any promotional offer from PMS, but only during the term of any such promotional offer. Manager may choose at the end of any promotional offer to cancel or extend this Agreement on the terms outlined herein.
Agreed to and accepted by:
_________________________________________________
(Name, address, phone, fax, e-mail) Date:
_________________________________________________
(Name, address, phone, fax, e-mail) Date:
