These Terms and Conditions (“ Terms & Conditions ”) are between WEBMAINLAND MEDIA LTD, a British Columbia incorporated limited company d/b/a Realtoraccess (“Marketer”), and the client/realtor/real estate agent/person/company/entity placing an order (“ Order ”) for Chinese marketing and media exposure services from the Marketer (“Company ”). The Marketer and Company are collectively referred to herein as the “ Parties ” and individually as a “ Party ”. These Terms & Conditions combined with the Order (collectively the “ Agreement ”) constitute an offer from the Company to Marketer for Chinese marketing and media exposure services. The offer is deemed accepted, and the Agreement deemed effective, upon the Company emailing a copy of the Order and Terms & Conditions to the Company (the “ Effective Date ”).
1. SCOPE OF SERVICES
1.1 Marketer will provide Chinese marketing and media exposure services for the purpose of helping the Company expand to the Chinese market. The Parties recognize that although the Company may have contracted with Marketer for a specific business or marketing or exposure goal (such as reducing days on market for listings or increasing views counts of 50% or bringing prospects for showings) that Marketer does not guarantee the achievement of any particular business or marketing or exposure goal.
1.2 The scope of services is defined according to the Plan that the Company is chosen. The name and the features of the chosen Plan are outlined in the invoices issued by the Marketer.
1.3 The Marketer reserves all rights to delete, modify, update and adjust the names and the features of the Plans. When the updated Plans differ from those set out in the issued invoices, the Agreement will not be affected. The Marketer will continue to execute the Agreement according to the Plan and features set out in the Invoices issued by the Marketer.
2. TERM OF THE AGREEMENT
2.1 The term of the Agreement is determined and reflected by the Order and will either be a flat fee or a subscription model. Notwithstanding anything here to the contrary, the Marketer may cancel this Agreement or suspend services provided hereunder at any time with five (5) days’ written notice if the Company fails to make any payment, or portion thereof, on time. Further, notwithstanding anything here to the contrary, either Party may terminate this Agreement upon the material breach of this Agreement by the other Party with thirty (30) days prior written notice to the other Party.
Term of a Flat Fee – The term of this Agreement (“ Term ”) for a flat fee Order will be twelve (12) months or the time it takes for the Marketer to complete its services, whichever comes first.
Term of a Subscription - The term of this Agreement shall be for twelve (12) months (“ Original Term ”) commencing on the Effective Date. Upon expiration of the Original Term, or an Extension Term, this Agreement will automatically extend for a period of twelve (12) months (each one-month extension being an “ Extension Term ”, and combined with the Original Term the “ Term ”) unless either Party sends to the other Party a termination notice thirty (30) days’ prior to the cancellation of the Agreement.
3. PAYMENT – In consideration of the above-referenced services, during the Term, the Company shall be billed as outlined in the Order, as amended from time to time. Payments will be automatically deducted from the credit card on file with the marketer using the third-party payment software chosen by the marketer. The marketer will email to Company a receipt for all fees charged under this Agreement per payment. Preapproved expenses which are not prepaid or billed in advance will be billed one month in arrears and payable within thirty (30) days.
A. Late Payments - All late payments shall accrue interest at the lower of fifteen percent (15.00%) interest per annum or the highest rate allowed by law.
B. Expenses Incurred in Collections - The Company is responsible for all costs and expenses of collecting payments, including court costs and attorney fees.
C. Billing Disputes - Billing disputes must be provided in writing prior to the applicable invoice due date (except for invoices which are payable immediately and invoices payable by payment card, with respect to which billing disputes must be received in writing within fifteen (15) days after the invoice date) or shall be deemed waived.
4. COOPERATION – Both Parties shall cooperate fully with each other in the performance of their respective obligations under the Agreement, including, without limitation, providing all necessary information, executing all documents and performing all actions reasonably required in connection with such performance. To that extent, the Company acknowledges that the ability of Marketers to successfully deliver Chinese marketing and media exposure services is dependent on the Company’s compliance with Marketer’s reasonable requests for information, cooperation, and support.
5. INDEPENDENT CONTRACTOR – This Agreement shall not constitute an employer-employee relationship. It is the intention of the Marketer that the Marketer shall be at all times an independent contractor of the Company and will not have the authority to act as an agent of the Company.
6. NO HIRING OF MARKETERS – TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CUSTOMER AGREES NOT TO HIRE ANY EMPLOYEE OF THE MARKETER FOR A PERIOD OF TWO (2) YEARS FROM THE EFFECTIVE DATE. THE PARTIES RECOGNIZE THAT ( i ) MARKER’S REPUTATION DEPENDS ON RETAINING QUALITY, TALENTED EMPLOYEES; ( ii ) THE LOSS OF ANY EMPLOYEE MAY ADVERSELY IMPACT PROJECTS THE MARKETER HAS CONTRACTED FOR; AND (III) THAT THE LOSSES TO MARKETER’S BUSINESS AND REPUTATION ARE DIFFICULT, IF NOT IMPOSSIBLE, TO QUANTIFY. CONSEQUENTLY, THE PARTIES AGREE THAT IF CUSTOMER BREACHES THIS SECTION THAT THE CUSTOMER SHALL PAY TO MARKETER $100,000.00 Canadian Dollars AS LIQUIDATED DAMAGES.
7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION – Both Parties acknowledge that it is their policy to maintain as secret and confidential all valuable information heretofore or hereafter acquired, developed or used by each other in relation to their respective businesses (all such information is hereinafter referred to as “ Confidential Information ”). The Parties recognize that, by performing the services under this Agreement, one Party may acquire Confidential Information of the other Party. All such Confidential Information is the property of the owning Party and the Parties agree that: (i) they shall never disseminate any Confidential Information obtained during the Term of this Agreement without the written consent of the other Party; (ii) they shall exercise all diligent precautions to protect the integrity of Confidential Information; and (iii) upon termination of this Agreement to return the Confidential Information of the other Party in its possession.
8. LIABILITY – In the absence of willful misconduct on the part of Marketer, the Marketer (and its officers and employees) shall not be liable to the Company (or to any of its officers, directors, employees, stockholders or creditors) for any act or omission in the course of, or in connection with, the provision of advice, assistance or consulting services hereunder. For the sake of clarification, this indemnification shall include claims for indirect, incidental, consequential, special or punitive damages and lost profits. Further, the Company agrees to and shall defend, indemnify and hold the Marketer harmless from and against any and all suits, claims, expenses and liability (including court costs and attorney’s fees) which may result from any activities pursuant to or in connection with this Agreement.
9. INDEMNIFICATION – The acts and statements made by a Party to any third parties are the sole responsibility of such Party who shall indemnify the other Party from such acts, statements and representations.
10. MISCELLANEOUS
A. Benefit of Agreement – This Agreement shall inure to the benefit of and be binding upon the Parties hereto, and their respective legal representatives, administrators, executors, successors, subsidiaries and affiliates.
B. Insolvency – Either Party may declare this Agreement immediately terminated upon the occurrence of any of the following events: (i) the other Party becomes insolvent, makes an assignment for the benefit of its creditors or has a receiver appointed over it or its assets; (ii) if bankruptcy or insolvency proceedings are commenced against the other Party; or (iv) if the other Party is liquidated, dissolved or ceases operations.
C. Promotional Rights – Marketer may list the Company as one of its clients on its webpage or in other marketing materials.
D. Governing Law - This Agreement shall be governed by the laws of British Columbia, without any application of the principles of conflicts of laws. It shall in all respects be treated as a British Columbia Contract.
E. Assignment – Neither Party may assign this Agreement without the written permission of the other Party.
F. Severability - In the event of the invalidity or unenforceability of any provision of this Agreement, such invalidity shall not affect the validity of the other provisions hereof.
G. Modification - This Agreement can be modified only in writing signed by both Parties hereto.
H. Continuing Effect – Sections 3, 5, 6, 7, 8 and 9 shall survive termination of this Agreement for an indefinite period.
I. Entire Agreement - These Terms & Conditions together with the Order, constitute the entire agreement between the Parties and no promises, guarantees or inducements have been made regarding the provision of any services, other than as contained in these Terms& Conditions and the Order. {datetimeSigned}