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Certified Consultant Agreement
THIS AGREEMENT (this "Agreement") is made and entered into by Top Producer Systems Company
("Consultant")
("TP"), a real estate software company; and
WITNESSETH:
WHEREAS, Consultant desires to sell TP real estate software products; and
WHEREAS, TP desires to allow Consultant to sell TP real estate software and related products.
NOW THEREFORE in consideration of the mutual promises and covenants herein, and other valuable
consideration, the receipt and sufficiency of which are acknowledged hereby, the parties agree as follows:
Section 1: DEFINITIONS
When used in this Agreement, the capitalized terms listed below shall have the following meanings:
1.1 "Products". As used herein, the term "Products" shall mean the computer software and related
documentation and accessories made available for resale by TP.
1.2 "Sale". As used herein, the term "Sale" and its derivatives include the marketing and distribution of
fully paid, non-exclusive licenses to end-users for the use of the Products.
1.3 "Orders". As used herein, the term "Orders" and its derivatives shall mean the requests for Products
by online form, email, fax or phone with full payment included.
1.4 "Customers". As used herein, the term "Customer(s)" shall mean any individual or company that
inquires about Products, purchases Products, or has in the past purchased Products for its own use and consumption
and not for resale.
Section 2: APPOINTMENT OF CONSULTANT
TP hereby appoints Consultant as a non-exclusive reseller of the Products, subject to the terms and
conditions set forth herein. TP may, in its sole discretion and without limitation, designate and appoint
other resellers, agents, or employees to sell the Products.
Section 3: OBLIGATIONS OF TP
3.1 Obligations of TP. TP shall at no additional cost to Consultant:
3.1.1 Furnish to Consultant such available information related to the Products as Consultant may
reasonably request, including online promotional materials and online order forms.
3.1.2 Furnish to Consultant a minimum of one (1) sample website account and one (1) sample Top
Producer 8i account. TP may, in its sole discretion, furnish additional sample accounts of some or all Products to
Consultant.
3.1.3 Notify Consultant from time to time of current information regarding sales terms, pricing,
estimated delivery schedules, and availability of Products, all of which shall be established at the sole discretion of
TP.
3.1.4 TP shall at its own expense defend any action brought against Consultant to the extent that
such action alleges that any Product, in and of itself and not as a result of any combination with any third party
product or service, infringes any patents, copyrights, licenses or other intellectual property rights held by any third
party. TP's duty is specifically conditioned upon Consultant giving TP prompt written notice of the institution of
any such claim, suit, or other proceeding. In assuming these duties, TP shall have the exclusive right to control the
defense of any such claim, suit, or other proceeding. In no event shall Consultant settle any such claim, lawsuit, or
proceeding without TP's prior written consent.
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Section 4: OBLIGATIONS OF RESELLER
4.1 Obligations of Consultant. Consultant shall at its sole expense and at no additional cost to TP:
4.1.1 Solicit Orders for the Products consistent with the prices, terms, and conditions contained in
this Agreement and/or any subsequent written communication from TP. Consultant may sell Products to Customers
only, and in no circumstances shall Consultant sell or provide Products to any third parties intending to resell them.
In the event of any breach of this Section 4.1.1 by Consultant, TP shall have the right to terminate this Agreement,
effective immediately upon notice to Consultant.
4.1.2 Promptly forward all Orders to TP via online order form, email, fax or telephone, properly
and completely filled out and signed by the Customer.
4.2 Advertising. Subject to the terms and conditions stated herein, Consultant shall be entitled to market
Products to Customers. All logos, marketing materials and intended distribution channels must be submitted to and
approved by TP in its sole discretion prior to distribution. In the event of any breach of this Section 4.2
by Consultant, TP shall have the right to terminate this Agreement, effective immediately upon notice to Consultant.
Section 5: COMPENSATION
5.1 Commissions. TP shall pay to Consultant, as full compensation for each Order obtained by or through
Consultant hereunder, a one-time commission with respect to each Order accepted by TP during the term of this
Agreement for which payment is received by TP (each, a "Commission"). The Commission payable with respect to
each Order shall be equal to 15% of "Net Sales" for such Order, less the adjustments set forth in Section 5.2, below.
"Net Sales" is defined as all up front (i.e., set-up) fees for a particular Order plus, in the case of Orders for
subscription products, an amount equivalent to the aggregate subscription fees payable during the first 12 months of
the subscription period.
5.2 Adjustment of Commissions. In the event that (a) TP is unable to collect funds from a Customer for
subscription based software due to any reason that is out of the reasonable control of TP, including but not limited to
invalid credit card information; (b) a Customer cancels a Product within 30 days of the purchase date in accordance
with the terms stated in such Customer's agreement with TP; or (c) TP chooses, at its sole discretion, to allow a
Customer to cancel a Product more than 30 days after the purchase date, Consultant's Commission will be adjusted
such that any amount not received by TP as the result of any of the aforementioned events shall be subtracted from
the Net Sales for the applicable Order.
Section 6: SALES MINIMUMS
Consultant acknowledges and understands that TP expects its resellers to meet a quarterly sales minimum
equal to the lesser of ten (10) Orders or Five Thousand Dollars ($5000) in revenue from Orders (the "Sales
Minimum"). In the event that Consultant fails to meet the Sales Minimum in any quarter during the Term,
Consultant may, in its sole and absolute discretion, immediately suspend without notice Consultant's access to any
and all of the services and privileges generally provided to resellers, including without limitation the partner portal
and the partner-branded online store. The suspension rights granted to TP pursuant to this Section 6 are in addition
to any suspension or termination rights set forth elsewhere in this Agreement, including without limitation
the termination rights contained in Section 9 hereof.
Section 7: LIMITATIONS ON AUTHORITY
7.1 Consultant's Authority. Consultant's sole authority and activities hereunder shall be limited to those
directly related to the marketing and solicitation for the sale of TP's Products directly to Customers in accordance
with the terms stated herein.
7.2 Quotes. Consultant shall not, without TP's prior written consent, quote any terms (including without
limitation delivery schedules), prices, or other matters not then authorized in writing by TP. Consultant shall not
alter, enlarge or limit Orders, modify in any way the terms of TP's licenses with Customers, or make or purport to
make any representations, warranties or guaranties relating to the Products or TP. Consultant shall not accept the
return of any Products, or make or offer unauthorized discounts, rebates, or allowances on any of the Products. No
authorization to Consultant shall be valid unless provided in writing by TP.
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7.3 Acceptance of Orders. No Order shall be binding unless and until accepted by TP. TP shall in its sole
discretion have the right to determine whether any Order should be accepted or rejected, and TP shall not be liable
under any circumstances to Consultant or to any Customer for TP's failure to accept any solicited offer or Order.
7.4 Fulfillment of Orders. The satisfaction, shipping, and billing of Orders shall be done directly by TP.
Section 8: WARRANTIES AND REPRESENTATIONS
Consultant acknowledges and agrees that TP has not made, and Consultant is not relying upon, any express
or implied warranties or representations to Consultant regarding the value of this Agreement or the marketability,
merchantability, or fitness of the Products. In no event shall TP be liable for any third party claims of any type or
kind, except as specifically set forth in Section 3.1.4, or any incidental, special, or consequential damages, whether
for loss of business or profits or otherwise, even if TP is aware of the possibility thereof. Consultant's rights as
stated herein are its exclusive remedies.
Section 9: TERM AND TERMINATION
9.1 Term of Agreement. This Agreement shall become effective upon execution by both parties and,
unless sooner terminated hereunder, including as stated in Section 4.1.1 and 4.2, shall remain in force for a period of
one (1) year thereafter.
9.2 Termination of Agreement. Either party, at its option, shall have the right to terminate this
Agreement at any time upon written notice to the other party, and such termination shall become effective thirty (30)
days after giving such notice. In addition, if Consultant is a member of TP's Certification Program, TP shall have
the right to terminate this Agreement at any time effective immediately upon written notice to Consultant, in the
event that TP receives three (3) complaints regarding Consultant promoting sales during training events.
9.3 Rights after Termination. Except as provided in Section 10.1, Consultant acknowledges and
understands that it shall have no other or further right or interest hereunder or otherwise after the termination or
expiration of this Agreement, whether relating to such termination or expiration, any good will associated with the
Products, or this Agreement, or the loss of prospective profits or anticipated sales or other opportunities; or
on account of expenditures, investments, or leases made or committed; or for any other reason whatsoever growing
out of such termination or expiration.
9.4 Use of Name, Products, and Materials after Termination of Agreement. Upon the termination or
expiration of this Agreement, Consultant shall remove and shall not use TP's name or any of its trademarks in any
manner, and Consultant shall, at TP's sole option, immediately return to TP or destroy all software or other TP
Products, all advertising material and other printed matter in its possession or under its control containing TP's name
or proprietary marks.
Section 10: INTELLECTUAL PROPERTY
10.1 Proprietary Rights. Consultant recognizes the exclusive right, title, and interest of TP in and to all of
the copyrights, patents, patent rights, trademarks, trade secrets, and all other proprietary rights contained in
or associated with the Products except for any proprietary marks or information owned by third parties which have
been authorized by their owners to be used, incorporated, or associated with the Products. Nothing in this
Agreement shall be deemed to grant the Consultant any right, title, or interest in any copyrights, patents,
patent rights, trademarks, trade secrets, or any other proprietary rights contained in or associated with the Products or
TP.
10.2 Product Trademarks. Consultant agrees that it shall not use, make reference to or otherwise
designate TP's trademarks or trade names except as they may be used for the benefit of TP as provided in
this Agreement in the promotion of the marketing and sale of the Products.
Section 11: INDEMNIFICATION
11.1 Indemnification. Consultant shall indemnify and hold TP and its employees, owners and agents
harmless, both during the term of this Agreement and after its termination or expiration, from and against any and all
liabilities, claims, actions, damages, and expenses (including without limitation costs and reasonable attorneys' fees)
arising from or related to any breach of this Agreement by Consultant or any actions or omissions of Consultant or
its agents or contractors in connection with this Agreement or the marketing of the Products.
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Section 12: CONFIDENTIAL INFORMATION
12.1 Confidentiality. "Confidential Information" means information (tangible or otherwise) that TP
designates as proprietary or confidential or that Consultant should know from the circumstances of disclosure TP
considers to be confidential and that (a) relates to TP's business, products, services, technology, research, methods,
software, databases, systems, financial plans or information, marketing or business plans, strategies, projections,
customers or suppliers, including trade secrets, and/or (b) consists of, contains or relates to information of the kind
described in "(a)," above, but is (in whole or in part) information of or about a third party and was entrusted in
confidence to, or otherwise held by TP. Consultant shall protect and preserve, both during the term of this
Agreement and after its termination or expiration, the confidentiality of any and all Confidential Information
to which Consultant may gain access hereunder or in connection herewith. Confidential Information shall not include
information that becomes generally known or available to the public, other than through a violation of this
or another agreement. All tangible embodiments of any such Confidential Information shall be returned to
TP immediately following expiration or termination of this Agreement for any reason.
Section 13: MISCELLANEOUS
13.1 NO ASSIGNMENT. This Agreement shall not be assigned, transferred, or subcontracted in whole or
in part by Consultant without the prior written consent of TP. Any purported assignment, transfer, or subcontract
without such consent is void. If Consultant is a corporation, any merger, sale of substantially all assets, or transfer
of control shall constitute an attempted assignment requiring the consent of TP.
13.2 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be construed as constituting
Consultant as a partner, employee or agent of TP, nor shall either TP or Consultant have the authority or power to
bind the other in any respect, it being expressly agreed and understood that Consultant is acting hereunder as an
independent contractor. Except as provided expressly herein, each party shall bear full and sole responsibility for all
of its own costs, expenses, liabilities, and the like.
13.3 GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the
State of California, USA. If any term hereof is held to be invalid or unenforceable to any extent in any context, the
remainder hereof, and the application of such term to other extent or in other contexts, shall not be affected but shall
continue in full force.
13.4 GENERAL. Headings are included for convenience of reference only and shall not limit or affect the
parties' agreement or constitute terms hereof. In construing this Agreement, no weight or relevance shall be given
to the fact that it or any particular provision of it may have been drafted by one or the other of the parties, each of
the parties having had adequate opportunity to negotiate all the provisions hereof.
13.5 ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties and
supersedes all other agreements relating to their subject matter. No modification, waiver, or amendment hereof shall
be binding unless stated in writing and signed by the authorized representative of each party, and no waiver of a
right hereunder in any instance shall constitute a waiver of the same or any other right in any other instance.
13.6 NOTICES. Notices and payments under this Agreement shall be sufficiently given if delivered in
person, sent by certified or registered mail, postage prepaid and return receipt requested, or sent by reputable courier
service to the respective addresses stated on the signature page of this Agreement (or to such other address as a party
may by notice specify), and shall be effective upon the earlier of actual delivery or the third (3rd) day after mailing.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have caused this Agreement to be
executed as of the latest date written below.
Consultant
By:
Title:
Date:
Top Producer Systems Company
By:
Title:
Revised July, 2009
Date:
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