Real Estate Newsletter Service
MARKETING AGREEMENT
This Marketing Agreement (the “Agreement”) is made effective on date of digital signing (the “Effective Date”),
BETWEEN
Websites 4 Real Estate Pty Ltd ABN 19126006237 (the “Company”), of PO Box 142, Windsor NSW, Australia.
AND
The signing party (the “Agent ”).
Recitals
A. The Company is a agent of an internet group which provides web-hosting and e-commerce services;
B. The Agent is a real estate agent operating in Australia and owns a database of customer details
C. The Company desires to provide the Agent with customised e-newsletters (the “Newsletter”) and distribute it to the Agent’s database of customers; and
D. Both parties desire to establish a business relationship (“Alliance”) with each other and engage in promotional and marketing activities as set forth below.
In consideration of the mutual premises and undertakings stated herein and Schedule A attached hereto and made a part hereof, the parties hereto agree as follows:
It is agreed as follows:
1. PURPOSE
The business and purpose of the Alliance is to establish a promotional and marketing relationship wherein the Agent agrees to use the newsletter services of the Company and allow the Company to distribute and circulate the Newsletter to the Agent’s database of customers. The Newsletter shall have features as set forth in Schedule A, which may be amended from time to time.
2. RIGHTS GRANTED
2.1. Rights granted to Agent.
Subject to the terms and conditions set forth in this Agreement by the Company, the Company grants to the Agent, the following:
(a) The non-exclusive right (without the right of sublicence) to direct, refer or send visitors or users from Agent’s database to websites operated or controlled by the Company via Affiliate Links included in the Newsletter provided by the Company to the Agent.
(b) A limited nonexclusive, nontransferable and revocable licence to access and download promotional banners, and other promotional materials created by the Company for use on the Newsletter for the exclusive purpose of advertising, marketing or promoting Affiliate Links of the Company ; however, the licence herein granted shall automatically and immediately cease upon the termination of this Agreement.
2.2. Rights Granted To Company
Subject to the terms and conditions set forth in this Agreement, the Agent grants to Company, the following:
(a) The Agent grants the exclusive rights to the Company to use space on Agent ’s Profile to direct, refer or send visitors or users of Agent ’s Profile/Website to Affiliate Links” of the Company .
3. THE OFFER
3.1. Newsletter
The Company agrees to produce 52 weekly Newsletters each year. The Newsletter is to be hosted on a website customizable by the Agent.
3.2. Database
The Agent agrees to upload its Database to the Company for the purposes of promoting the Newsletter. The Agent also agrees to allow the Company to contact the Database on a weekly basis to promote each Newsletter. The Database remains the property of the Agent. The Agent may add or remove data from the Database uploaded to the Company.
3.3. Access to Software
The Company will provide the Agent password protected access to the Software to upload and edit the Database, property listings and personal content section.
3.4. Establishment Cost
The Agent agrees to pay to the Company $450 + GST ("Establishment Cost") for the establishment of their customised Newsletter template & creation of Agent's login to the Newsletter software. The Company may, at it's discretion, choose to refund the Establishment Cost provided the Agent renews this agreement at the end of the term for a further 12 months.
3.5. Termination Fee
If the Agreement is terminated earlier than 12 months from the Effective Date then a Termination Fee of $500.00 + GST will apply.
3.6. Payment Location
The Company .
3.7. No Commissions
The Agent agrees that it will receive no commissions from any product or service sold to its Database by the Company.
3.8. Marketing Fee
The Company may, at its discretion, in future, pay a marketing fee to the Agent.
3.9. Payment Of Goods And Services Taxes (GST)
For the purpose of this Agreement "GST" means a goods and services tax imposed on the supply of goods and services (including intellectual property) under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
3.10. Taxation
(a) The Agent must provide the Company with:
i. a valid Australian Business Number (“ABN”); or
ii. a completed Australian Tax Office (“ATO”) declaration form relating to reasons for not quoting an ABN.
4. WARRANTIES.
4.1. The Agent’s Warranties to the Company.
The Agent agrees and warrants as follows:
(a) During the term of this Agreement, the Agent will not (a) permit another entity, other than Company, to display in any advertising, marketing material or website any affiliate links or any ad links that competes with the content served on the Affiliate Links of the Company , or (b) establish any direct hypertext links between the Agent Profile and the site of a competitor of the Company.
(b) The Agent will not copy or reproduce, alter, modify or change, broadcast, distribute, transmit or disseminate any banners or other promotional or advertising materials provided in Newsletter by Company pursuant to this Agreement and the arrangement in whole or in part, in any manner, at any time anywhere in the World except as authorised by Company in writing;
(c) The Agent has authorised permission to use Agent’s Database for the purpose of promotional activities.
4.2. The Company’s Warranties to Agent.
The Company agrees and warrants as follows:
(a) The contents, transmission and distribution of the Newsletter to the database of the Agent shall comply with the Spam Act 2003 (Cth).
(b) The contents, transmission and distribution of the Newsletter to the Database of the Agent shall fully comply with the Privacy and Personal Information Protection Act 1998 (NSW) and Records and Information Privacy Act 2002 (NSW).
(c) The contents of the Newsletter shall not be defamatory or violate any privacy or publicity rights of any customer or any third party associated with the Agent.
(d) The Company shall only contact the Database for the express purpose of promoting the Newsletter.
(e) The Company shall not contact the Database at any other time or by any other means other than at the times and by the means as specified in this Agreement.
(f) The Company shall not contact the Database with any other offer, other than offers in the Newsletter, unless it has the express written permission from the Agent to do so.
(g) The Company shall not sell the Database or allow any access to any third party.
5. REPORTING:
5.1 The Company agrees and acknowledges that the Company shall update and provide Agent with reports of visitor traffic as specified by the Company at times as agreed mutually by both parties.
5.2 The Agent shall not have an access to the web-tracking software of the Company.
6. TERM AND TERMINATION
6.1 Term.
The Term shall commence on the Effective date of this Agreement, as set forth above and shall continue in full force unless sooner terminated with a 15 (fifteen) days prior notice to the other party. This Agreement cannot be terminated within the first 30 (thirty) days of its term beginning on the Effective Date.
6.2 Termination.
Each party shall have the right to terminate this Agreement immediately on notice: (a) upon a breach of any material obligation hereunder by the other party, if such breach is not cured within 30 days following the date the breaching party receives notice from the non-breaching party describing in reasonable detail the elements of such breach; (b) in the event the other party becomes insolvent.
The Company can terminate this Agreement without reasonable notice to the Agent, if the Company determines the Agent is in breach of its obligation and warranties as stated in Section 4.1
6.3 Events upon termination
Upon the expiration or termination of this Agreement for any reason, the Company shall ensure that the then current Database is returned to the Agent and the copy with the Company destroyed after being notified by the Agent. The Company shall immediately decommission the Newsletter, remove all Affiliate links to the Company’s content and website(s) and cease all use of the Company’s properties and content of whatever kind on the Newsletter.
6.4 Survival
Sections 6, 7, 8 and 9 will survive the termination or expiration of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
Each party to this Agreement represents and warrants to the other that: (a) such party has all necessary right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (b) the execution of this Agreement by such party and its performance of its obligations hereunder do not and will not violate any agreement by which such party is bound; (c) The Company has (and will have throughout the Term) all necessary rights in and to the Affiliate Links, content links, profile and content described in this Agreement to allow it to make those indicia and materials available to the other party and users of that party's website) as contemplated by this Agreement without violating the rights of any third party; and (d) The Company has (and will have throughout the Term) all necessary rights in and to all underlying technology (including both hardware and software) utilised in connection with its website) and all such underlying technology does not infringe on any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party.
8. INTELLECTUAL PROPERTY.
8.1 The Company and the Agent agree that any elements of text, graphics, photos, designs, trademarks, or other artwork (“Intellectual Property”) furnished for inclusion in the Newsletter are owned by the Company, or that the Company has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend the Company, from any claim or suit arising from the use of such elements furnished by the Company. Intellectual Property also includes the source code, work-up files, and computer programs etc. which are being used while creating the Newsletter.
8.2 The Agent understands and agrees that Company has also licensed to Agent the right to use the Intellectual Property during the term of this Agreement.
8.3 The Agent must not copy, reproduce, alter, reverse engineer, or delete Intellectual Property without the written consent of the Company.
8.4 In the event of the termination of this Agreement, the Agent shall return all Intellectual Property to the Company and cease to use the same.
8.5 The provisions of this Clause shall survive the termination of this Agreement.
9. RELATIONSHIP OF PARTIES
Agent and Company are each independent contractors, and nothing herein contained shall be construed to imply the existence of a partnership or joint venture between them, nor to make either one an agent of the other. The use of the term "Agent" is not intended in any way to constitute any type of legal partnership whatsoever between the Company and the Agent. The relationship between Company and Agent is that of independent parties only, and is NOT employer-employee, partner, principal-agent or joint venture.
10. LAW GOVERNING
This Agreement shall in all respects be interpreted, governed, construed and enforced by and under the laws of the New South Wales, Australia.
11. ENTIRE AGREEMENT; MODIFICATION; WAIVER
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both parties. No waiver of any of the provisions of the Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed, in writing by the party making the waiver.
12. FORCE MAJEURE
Neither party is responsible for failure or delay in performance caused by acts of God, strikes, floods, fire, war, public enemy, electrical or equipment failure, failure of third parties or any event beyond its reasonable control.
13. MUTUAL INDEMNIFICATION.
Each party hereby agrees to indemnify and hold harmless the other party, its parent and subsidiary companies and their respective officers, agents, directors, employees and authorised representatives from and against any costs, losses, liabilities and expenses, including court costs, reasonable expenses and reasonable attorney's fees that any of them may suffer, incur or be subjected to by reason of any legal action, arbitration or other claim by a third party arising out of or as a result of a breach of the indemnifying party's representations and warranties made hereunder, the operations of the indemnifying party's website as authorised by this Agreement or otherwise, any allegations that the use of the indemnifying party's content links and/or content on its website violates any intellectual property rights of any third party, any allegation that any content on its website is defamatory or violates any privacy or publicity rights of any third party, and/or any of its other obligations under this Agreement.
14. SEVERABILITY.
If any provision of this Agreement shall be held invalid in a court of law, the remaining provisions shall interest, rights and obligations be construed as if the invalid provision were not included in this Agreement.
15. NOTICE.
Any notice due by one party to the other will be given to the address listed above and marked to the attention of the signatory specified below, unless a party hereafter designates a successor address or contact person. All notices will be transmitted by private courier or facsimile transmission, and will be deemed given as of the date of a written courier's receipt or electronic facsimile confirmation report.
16. CONFIDENTIALITY.
The terms and conditions of this Agreement shall be strictly confidential. All information about the Company and its business disclosed to the Agent or its representative shall be treated as confidential.
Schedule A:
PARTICULARS AND FEATURES OF NEWSLETTER
• The Newsletter
o is branded to the Agents company
o contains a section the Agent can edit to give their own weekly personal update
o contains the Agents listings
o contains a generic real estate based article and offer of interest to the Database
o contains a weekly weather forecast for the Agents local area
• The proof of the Newsletter will be sent out to the Agent each Tuesday.
• The Agent is able to insert a personal update and manually change the listings that would have been auto-fed into the newsletter.
• Changes by the Agent must be completed by 1pm Wednesdays NSW time
• The plain text e-mail containing the link to the Agent’s Newsletter is sent on Thursday to the Database