MarketMaker CRE Subscription Agreement

 1.       Definitions. Capitalized terms shall have themeaning defined herein.

Account refers to an account created byor for Member for its User’s access to the Services.

Member Data means the data Member collects,processes, provides, shares, or stores using the Services, including (a) theListing Information and (b) information about Member.  Member Data does not include UserInformation.

Order means an ordering document thatis entered into between Member and MarketMaker CRE or an online order submittedby Member via an online purchasing portal that specifies the Services to beprovided hereunder.

Platform means the MarketMakerCRE.com Userinterface, whose accounting office is located at 410 Bayfront Parkway,Pensacola, FL 32502, through which Users can access certain MarketMaker CREServices.

Services means the MarketMaker CRE productsand services that are ordered by Member pursuant to an Order, including, asapplicable, access to or use of the Platform, access to Listing Information andtraining services.

Use means toaccess and use the Services in accordance with the terms ofthis Agreement and the applicable Order.

User means individuals(including employees and independent contractors working on behalf of Member)authorized by Member to Usethe Services solely for Member’sinternal use.

User Information means any information regarding Usersrelating to an identified or identifiable natural person.

2.    Grant of License. Subject to the terms of this Agreement, MarketMaker CRE grants to Member a personal, non-exclusive, non-transferable, non-sublicensable, limited, internal license to Use the Services and documentation made available by MarketMaker CRE (“Documentation”)for a time-limited period set forth in an Order (“Term”), but only in accordance with (i) the Documentation and (ii) this Agreement. At the end of the Term, the Services may cease to function. Member has no rights to any support, training, updates, upgrades, or extensions or enhancements to the Services developed by MarketMaker CRE, unless otherwise set forth in the applicable Order.  

3.    Restrictions. Member shall not, on its own or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any of the Services or the documentation to a third party; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Services, in whole or in part, nor will Member use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Services or encourage others to do so; (c) allow access to or permit use of the Services by any users other than Users, or any use which violates the technical restrictions of the Services or the terms of this Agreement; (d) use the Services to develop, test, host or run and operate applications on behalf of third-parties, without MarketMaker CRE’s written consent;(e) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; (f) use the Services to provide third-party training; or (g) modify or create derivative works based upon the Services. If MarketMaker CRE receives information that Member is in violation of any of the foregoing restrictions, MarketMaker CRE will notify Member, and Member will promptly take remedial action to resolve such violation. If Member does not take required action in accordance with the above, MarketMaker CRE reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including suspension or termination of this Agreement or an applicable Order. Member acknowledges and agrees that MarketMaker CRE may access Member’s account and use a license manager, keys or other method to either locally or remotely view, manage, and access Member’s Use of the Services. MarketMaker CRE shall have no liability to Member in the event MarketMaker CRE takes such action.

4.    Member Account, Password and Security. Member will protect its passwords and license files and take full responsibility for its own use, and third-party use, of Member’s accounts. The Member is solely responsible for any and all activities that occur under the Member’s accounts. The Member will notify MarketMaker CRE immediately upon learning of any unauthorized use of the Member’s accounts or any other breach of security.

5.    Payment Terms. All fees are as outlined in the applicable Order and shall be paid by Member in advance of the applicable Term. If Member has specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Member grants MarketMaker CRE the right to charge the credit card or debit the bank account provided to MarketMaker CRE for all fees incurred under this Agreement.  All payments are non-refundable. Any outstanding balance  becomes immediately due and payable upon termination of this Agreement, and any collection expenses (including attorneys’ fees) incurred by MarketMaker CRE (or other related entities) will be included in the amount owed by Member. If Member is required to pay any withholding tax, charge or levy in respect of any payments due to MarketMaker CRE hereunder, Payments will be made without right of set-off or chargeback. If payment of any fee is overdue, MarketMaker CRE may suspend the Member’s Use of the Services and any support until such delinquency is corrected. Non-payment or late payment of undisputed fees is a material breach of this Agreement. To the extent permitted by applicable law, Member shall pay interest on any overdue balance at the rate of 1 ½% per month or the maximum permitted by law, whichever is less.

6.    Member represents and warrants that it shall provide MarketMaker CRE with accurate, complete, up-to-date asset performance criteria for any asset about which the Member uploads Member data into MarketMaker CRE, Acquisition and Disposition Plan, and Search Information criteria. Failure to provide accurate and complete property criteria may result in Member loss of use privileges. If any of the property or Strategic Plan information that the Member enters into MarketMakerCRE.com changes, the Member agrees to keep the information up to date with reasonable urgency but in any event at each quarterly update.

7.    Member Data.  

a.  Member acknowledges and agrees that all information, data,data records, databases, text, software, photographs, images, graphics, videos,messages, scripts, tags, and other materials accessible through the Services,whether publicly posted or privately transmitted, are the sole responsibilityof the person or entity from which it originated. This means that Member, andnot MarketMaker CRE, is entirely responsible for Member Data, and other usersof the Services, and not MarketMaker CRE, are similarly responsible for allsuch items that they upload, post, email, transmit or otherwise make availablethrough the Services.

b.  Member retains ownership of any intellectual property rights that Member holds in any Member Data; however, Member, while they elect to have their information entered on the MarketMaker CRE platform, Member grants to MarketMaker CRE (and those we work with) a perpetual irrevocable, worldwide license to use, host, store, reproduce, modify without creating substantive changes to underlying Member data, create derivative works, communicate, publish, publicly perform, publicly display, and distribute such Member Data to operate, promote, and improve our Services, and to develop new products and services.

c.  Member represents, warrants, and covenants that MarketMaker CRE may rely upon to process all property information. In addition, Member represents and warrants that the property Information is either (a) owned or licensed by Member or that (b) Member has all rights necessary to provide the license to Member Data in Section 7(b) of these Terms.  To Member’s knowledge, Member Data does not infringe on the intellectual property rights of any third party. Member agrees that in the event that any of the Listing Information is inaccurate, MarketMaker CRE will not be liable for any performance or alleged non-performance of Services.

d.  As used herein, "Anonymized Data" means User Information that has been anonymized in a manner that does not reveal any personal information and cannot reasonably be used to (i) identify the Member, (ii)identify the Member’s Users, or (iii) identify Member’s organization or its Members or vendors as the source of such data. Member acknowledges and agrees that MarketMaker CRE may collect or generate Anonymized Data in connection with providing Member with access to or use of the Services, and Member hereby grants MarketMaker CRE and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Anonymized Data (in any form and any medium, whether now known or later developed) for any lawful purpose.

8.    Services. Training is included with the membership and is strongly encouraged. Members are expected to be accurate and proficient when using MarketMaker CRE, so training is an important part of the membership process.  Training is up to six 30-minutesessions, then up to one per quarter as new technology rolls out. Member will cooperate reasonably and in good faith with MarketMaker CRE in the execution of Services by, without limitation: (i) allocating sufficient resources and timely performing any tasks reasonably necessary to enable MarketMaker CRE to perform its obligations under each Order; (ii) timely delivering any materials and other obligations specifically required under each Order; (iii) timely responding to MarketMaker CRE’s reasonable inquiries related to the Services;(iv) actively participating in relevant scheduled meetings; (v) providing information, data and feedback that is complete, accurate and timely in all material respects. Member acknowledges that in the course of performing any Services, MarketMaker CRE may create materials, software or other works of authorship (collectively “Work Product”). Subject to Member’s rights in Member Confidential Information, MarketMaker CRE shall own all right title and interest in such Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Member pursuant to or in connection with the performance of training services (a “Deliverable”),except for any products made available under a separate license, MarketMaker CRE grants to Member an irrevocable, nonexclusive, worldwide, royalty-free right and license to use, execute, reproduce, display, perform, distribute (internally and externally), transfer, exploit and make derivative works of any such Deliverables. This license expires at the termination of Member’s subscription. Subject to Member’s rights in the Member Confidential Information, MarketMaker CRE and/or its successors and assigns shall be considered, forever and for all purposes worldwide, the author of the Work Product and the sole copyright owner thereof, and the owner of any rights therein, whether or not copyrightable, all proceeds derived therefrom.

9.    Confidentiality. Confidential Information” means any and all non-public confidential and/or proprietary information, regardless of whether it is in tangible form, disclosed by either party that the disclosing party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party; provided, however, that a disclosing party’s business plans, strategies, technology, research and development, current and prospective Members, billing records, and products or services shall be deemed Confidential Information of the disclosing party even if not so marked or identified. MarketMaker CRE’s Confidential Information includes, without limitation, the MarketMaker CRE Services and the terms of this Agreement.  Except as permitted by this Agreement, neither party will (a) make any use of the other party’s Confidential Information; (b) acquire any right in the other party’s Confidential Information; (c) disclose any of the other party’s Confidential Information toa third party; or (d) refuse to promptly return or destroy the other party’s Confidential Information upon request. Notwithstanding the foregoing, this Section 7 will not apply to any information that the receiving party can demonstrate: (a) is or becomes a part of the public domain through no fault of its own; or (b) was in the possession of the receiving party at the time of its disclosure by the disclosing party as evidenced by files existing at the time of disclosure. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement. Further, either party may disclose the other party’s Confidential Information to the extent required by law or by order of a court or governmental agency after providing notice to the other party and providing such party with the opportunity to seek a protective order. In the event of actual or threatened breach of the provisions of this Section 7, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

10.  Intellectual Property

(a)   MarketMaker CRE and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Service, including any improvements, modifications, and enhancements to it. Except for the rights expressly granted in this Agreement, Member shall acquire no other rights, express or implied, in or to the Services, and all rights not expressly provided to Member hereunder are reserved by MarketMaker CRE and its licensors. All copies of the Service provided or made available hereunder are licensed, not sold.

(b)   Except for Member Data, Member does not have and will not acquire any right, title and interest in and to the Services or any intellectual property rights which subsist therein (whether those rights happen to be registered or not, and wherever in the world those rights may exist).  Nothing created under these terms is a joint work. For the sake of clarification this provision shall include any customization of the Services.

(c)   Marketing Support Member provided testimonials or endorsements are the property of MarketMaker CRE and Market Maker CRE is given permission to make public use of material consistent with MarketMaker CRE’s customary business practices.

(d)   Suggestions. if Member elects to provide or make available to MarketMaker CRE any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Suggestions”), Member hereby grants to MarketMaker CRE and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license, to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or other wise grant rights in Member’s Suggestions in any form and any medium(whether now known or later developed), without credit or compensation to Member.

11.  Information Security.  MarketMaker CRE has implemented and will maintain reasonable administrative, physical, and technical security measures consistent with applicable law and current prevailing security practices and that are intended to protect against the loss, misuse, unauthorized access, alteration or disclosure of User Information.  Such additional measures will include compliance with MarketMaker CRE’s Security Statement.

12.  Term andTermination. This Agreement and the licenses granted hereundercommence on the Effective Date and shall continue until terminated.  This Agreement may be terminated by eitherparty upon written notice only (a) if the other party has materially breachedthis Agreement (or any Order) and failed to cure such breach within thirty (30)days written notice from the non-breaching party; and (b) if there are nooutstanding Orders, upon thirty (30) days written notice to the other party asof the date specified in such notice of termination.  

13.  Effect ofTermination. All licenses will terminate immediately upon terminationof this Agreement. Upon expiration or termination of a Term, the license to theapplicable Service granted in Section 2 of this Agreement shall terminateimmediately, and Member shall immediately cease use of all such Services andDocumentation, including its access to any Services. During the thirty (30)days following termination and subject to the payment of all fees owed underthis Agreement, upon request by Member, MarketMaker CRE will make Member’s Dataavailable to Member. In no event will termination relieve Member of theobligation to pay any fees due to MarketMaker CRE under this Agreement.

14.  WarrantyDisclaimer.  THE PRODUCTS ARE PROVIDED "AS IS." MARKETMAKER CRE DOESNOT WARRANT THAT THE PRODUCTS PROVIDED TO MEMBER UNDER THIS AGREEMENT WILLOPERATE UNINTERRUPTED, THAT THEY WILL BE FREE FROM DEFECTS, OR THAT THEPRODUCTS ARE DESIGNED TO MEET MEMBER’S BUSINESS REQUIREMENTS. MARKETMAKER CREDOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE,FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

15.  LIMITATION OFREMEDIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENTSHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, LOST DATA,FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INCIDENTAL,INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUTLIMITATION LOSS OF PROFITS OR GOODWILL) ARISING FROM THIS AGREEMENT, WHETHERUNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF APARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

16.  LIMITATION OFLIABILITY. MARKETMAKER CRE’S TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISINGHEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES CAUSED BY MARKETMAKER CRE IN ANAMOUNT NOT TO EXCEED ONE THOUSAND ($1,000) DOLLARS. The provisions of thisSection 12 allocate risks under this Agreement between Member and MarketMakerCRE. MarketMaker CRE’s fees for the LICENSE reflect this allocation of risksand limitation of liability.  THISSECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

17.  STATUTE OFLIMITATIONS; JURY WAIVER. NEITHER PARTY SHALL BRING ANY CLAIM BASED ONTHE PRODUCTS PROVIDED HEREUNDER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OFACTION ACCRUES. BOTH PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TOTRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THISAGREEMENT.

18.  Indemnity.  Member shall indemnify, defend, and holdharmless MarketMaker CRE and the officers, directors, agents, and employees of MarketMakerCRE (“MarketMaker CRE Indemnified Parties”) against any Claims arising from (a)the gross negligence, bad faith, fraudulent acts or omissions, or intentionalor willful misconduct of Member, (b) any use or disclosure by Member of any MarketMakerCRE Service in violation of this Agreement, (c) the exercise of any rightsgranted to MarketMaker CRE by Member in or to the Member Data in accordancewith this Agreement. Further, Member shall indemnify the MarketMaker CREIndemnified Parties against any damages actually awarded or paid in connectiontherewith, including any reasonable attorneys’ fees.  MarketMaker CRE will notify Member promptlyin writing of any claim covered by the foregoing indemnifications. The partiesagree to cooperate fully during such proceedings. Member will have the right todefend any such claim with attorneys that are reasonably acceptable to MarketMakerCRE, and MarketMaker CRE will have control over the litigation, negotiation,and settlement of any claim. MarketMaker CRE may be represented by separatecounsel at its own expense. Member will not make any settlement that materiallyaffects the rights of MarketMaker CRE without MarketMaker CRE’s consent.

19.  Compliance with Laws. Member agrees that Member’s Use of the Services will comply with all applicable laws, including without limitation all applicable anti-corruption laws, anti-money laundering laws, antitrust laws, economic sanctions laws, export control laws, data protection and data privacy laws, and modern slavery and human trafficking laws. MarketMaker CRE shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.

20.  Export Laws. Member agrees that Member’s use of the Services (including related documentation) will comply with applicable export control and trade sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Laws”). Member represents and warrants that Member is not (i) located or resident in a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria) (collectively, the “Sanctioned Countries”); or (ii) identified on any U.S. government restricted party lists (including without limitation the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Denied Party List, Entity List and Unverified List, administered by BIS) (collectively, the “Restricted Party Lists”). Member further certifies that Member will not, directly or indirectly, export, re-export, transfer or otherwise use the Services(nor any direct product thereof) in violation of the Export Laws, or with any purpose prohibited by the same Export Laws, in any Sanctioned Country, to any person or entity on a Restricted Party List, or for any nuclear, chemical, missile or biological weapons related end uses. Member acknowledges that the Services, or any feature or part thereof, may not be available for use in all jurisdictions and that Member is responsible for complying with applicable Export Laws wherever Member uses the Services. MarketMaker CRE shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.

General. This Agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous communications, representations, or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. If any provision of this Agreement is found to be void, invalid or unenforceable: (a) the same will be conformed to the extent necessary to comply with applicable law or stricken if not so conformable, so as not to affect the validity of this Agreement; and (b) the remaining provisions will remain in effect. No amendment of this Agreement or any exhibit is binding unless in writing and executed by each of the parties. Any waiver or consent is valid only if in a signed writing and only in the specific instance in which it is given, and such waiver or consent is not to be construed as a waiver of any subsequent breach of any other provision or as consent with respect to any similar instance or circumstance. This Agreement does not confer any third-party beneficiary rights or create a joint venture, partnership, or employment relationship between the parties. Except as expressly provided herein, neither party has the right, power or authority to create any obligation or duty, express or implied, on behalf of the other. This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in the State of Delaware and waives any jurisdictional, venue, or inconvenient forum objections to such courts. This Agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and assigns. Member may not directly or indirectly, including by assignment, operation of law or change of control, transfer or assign this Agreement without MarketMaker CRE’s prior written consent. MarketMaker CRE may freely transfer or assign this Agreement. This Agreement may be executed in counterparts, each of which will be an original, and all of which together will be one and the same agreement. An electronically executed copy of this Agreement delivered by facsimile, e-mail, available for download within Member’s account or other means of electronic transmission will have the same legal effect as delivery of an original signed copy of this Agreement. The Company reserves the right to modify this Agreement on a case-by-case basis.