Quick Overview of MarketMaker CRE Terms (MMcre) and Conditions:
- Data: you are not listing properties or any data. Non-identifying criteria of your property inventory is loaded into your own anonymous Hold Box, This is your public information criteria uploaded to and anonymized in, a secure area where no one else can see it, to interact with industry criteria to provide you with valuable intel. No copies are kept by MMcre, and you can add, edit, or delete your criteria at will.
- The term is for one year and will automatically renew unless your company elects to terminate 30 days before expiration.
- In this agreement MMcre agrees to provide an annual subscription to our commercial real estate software to your company with the understanding your company will utilize its features and benefits exclusively and will not sub-lease or allow any other entity to utilize the program. It is agreed that MMcre owns 100% of the intellectual property and patents known as MMcre and that all of Subscribers property information and A&D plans belong to subscriber. In addition, all of Subscriber’s property information/A&D plans will be kept anonymous until Subscribers written authorization to be released to another Subscriber via an “engagement”.
- MMcre guarantees that our software program works and will do all the functions specified in the marketing materials.
- MMcre also guarantees that training will be provided upfront, and will help subscriber download/enter all of its properties into the system utilizing the industry standard format.
- Subscriber agrees that they intend to enter their annual acquisition and disposition plans, confidentially in MMcre and will attempt to help the industry by entering the information by quarter where appropriate.
- The MMcre Engagement Subscription Fee schedule is attached as Exhibit A.
BY REGISTERING FOR OR CREATING AN ACCOUNT AT www,MARKETMAKERCRE.com , CHECKING THE BOX AGREEING TO THIS MARKETMAKER CRE SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”), EXECUTING AN ORDER INCORPORATING THESE TERMS BY REFERENCE, YOU—ON BEHALF OF YOUR COMPANY, BUSINESS, CORPORATION, INSTITUTION OR OTHER ENTITY (THE “CUSTOMER”)—ACCEPT AND AGREE TO THESE TERMS. THESE TERMS CONSTITUTE A LEGAL AGREEMENT BETWEEN CUSTOMER AND MARKETMAKER CRE INC., A DELAWARE CORPORATION, WITH A BUSINESS ADDRESS LOCATED AT 127 PALAFOX PL, SUITE 200A, PENSACOLA, FL 32502,(“MARKETMAKER CRE”). BY ACCEPTING THESE TERMS ON BEHALF OF CUSTOMER, YOU AND CUSTOMER EACH REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CUSTOMER TO THESE TERMS. IF CUSTOMER DOES NOT AGREE WITH ANY PROVISION OF THESE TERMS, YOU MUST NOT AND MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER FOR ANY PURPOSE. THE “EFFECTIVE DATE” OF THESE TERMS IS THE EARLIER OF THE DATE THAT CUSTOMER AGREES TO THESE TERMS OR THAT YOU ACCESS THE SERVICES
- Definitions. Capitalized terms shall have the meaning defined herein.
Account refers to an account created by or for Customer for its User’s access the Services.
Customer Data means the data Customer collects, processes, provides, shares or stores using the Services including (a) the Listing Information and (b) information about Customer. Customer Data does not include User Information.
Order means an ordering document that is entered into between Customer and MarketMaker CRE or an online order submitted by Customer via an online purchasing portal that specifies the Services to be provided hereunder.
Platform means the MarketMakerCRE.com User interface whose accounting office is located at 127 Palafox Place, Suite 200A, Pensacola, FL 32502, , through which Users can access certain MarketMaker CRE Services.
Services means the MarketMaker CRE products and services that are ordered by Customer pursuant to an Order, including, as applicable, access to or use of the Platform, access to Listing Information and training services.
Use means, to access and use the Services in accordance with the terms of this Agreement and the applicable Order.
User means individuals (including employees and independent contractors working on behalf of Customer) authorized by Customer to Use the Services solely for Customer’s internal use.
User Information means any information regarding Users relating to an identified or identifiable natural person.
- Grant of License. Subject to the terms of this Agreement, MarketMaker CRE grants to Customer 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. Customer 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.
- Restrictions. Customer 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 Customer 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 Customer is in violation of any of the foregoing restrictions, MarketMaker CRE will notify Customer, and Customer will promptly take remedial action to resolve such violation. If Customer 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. Customer acknowledges and agrees that MarketMaker CRE may access Customer’s account and use a license manager, keys or other method to either locally or remotely view, manage, and access Customer’s Use of the Services. MarketMaker CRE shall have no liability to Customer in the event MarketMaker CRE takes such action.
- Customer Account, Password and Security. Customer will protect its passwords and license files and take full responsibility for its own use, and third-party use, of Customer’s accounts. Customer is solely responsible for any and all activities that occur under Customer’s accounts. Customer will notify MarketMaker CRE immediately upon learning of any unauthorized use of Customer’s accounts or any other breach of security.
- Payment Terms. All fees are as set forth in the applicable Order and shall be paid by Customer in advance of the applicable Term. If Customer has specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Customer 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 Customer. If Customer 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 Customer’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, Customer shall pay interest on any overdue balance at the rate of 1 ½% per month or the maximum permitted by law, whichever is less.
- Customer represents and warrants that it shall provide MarketMaker CRE with accurate, complete, up-to-date Property Inventory, Acquisition and Disposition Plan and Search Information criteria. Failure to provide accurate, and complete property criteria may result in Customer’s loss of use privileges. If any of property or Strategic Plan information that Customer enters into MarketMakerCRE.com changes, customer agrees to keep information up to date with reasonable urgency but in any event at each quarterly updated.
- Customer Data.
- Customer 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 responsibility of the person or entity from which it originated. This means that Customer, and not MarketMaker CRE, is entirely responsible for Customer Data, and other users of the Services, and not MarketMaker CRE, are similarly responsible for all such items that they upload, post, email, transmit or otherwise make available through the Services.
- Customer retains ownership of any intellectual property rights that Customer holds in any Customer Data; however, Customer, while they elect to have their information entered on the MarketMaker CRE platform, Customer grants to MarketMaker CRE (and those we work with) a perpetual, irrevocable, worldwide license to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, and distribute such Customer Data to operate, promote, and improve our Services, and to develop new products and services. This license survives any termination or expiration of any Subscription Term for all Orders or other termination or expiration of these Terms.
- Customer represents, warrants, and covenants that MarketMaker CRE may rely upon and process all property Information. In addition, Customer represents and warrants that the property Information is either (a) owned or licensed by Customer or that (b) Customer has all rights necessary to provide the license to Customer Data in Section 7(b) of these Terms. To Customer’s knowledge, Customer Data does not infringe on the intellectual property rights of any third party. Customer 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.
- 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 Customer, (ii) identify Customer’s Users or (iii) identify Customer’s organization or its customers or vendors as the source of such data. Customer acknowledges and agrees that MarketMaker CRE may collect or generate Anonymized Data in connection with providing Customer with access to or use of the Services, and Customer 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.
- Services. If Customer orders training services pursuant to an Order, the following terms shall apply. Customer 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. Customer 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 Customer’s rights in Customer 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 Customer 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 Customer an irrevocable, perpetual, 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. Subject to Customer’s rights in the Customer Confidential Information, MarketMaker CRE and/or its successors and assigns shall be considered, forever and for all purposes throughout the universe, 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.
- 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 customers, 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 to a 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.
- Intellectual Property
- 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, Customer shall acquire no other rights, express or implied, in or to the Services, and all rights not expressly provided to Customer hereunder are reserved by MarketMaker CRE and its licensors. All copies of the Service provided or made available hereunder are licensed, not sold.
- Except for Customer Data, Customer 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.
- Marketing Support Customer provided testimonials ort 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.
- Suggestions. if Customer elects to provide or make available to MarketMaker CRE any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Suggestions”), Customer 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 otherwise grant rights in Customer’s Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to Customer.
- Term and Termination. This Agreement and the licenses granted hereunder commence on the Effective Date and shall continue until terminated. This Agreement may be terminated by either party upon written notice only (a) if the other party has materially breached this 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 no outstanding Orders, upon thirty (30) days written notice to the other party as of the date specified in such notice of termination.
- Effect of Termination. All licenses will terminate immediately upon termination of this Agreement. Upon expiration or termination of a Term, the license to the applicable Service granted in Section 2 of this Agreement shall terminate immediately, and Customer shall immediately cease use of all such Services and Documentation, including its access to any Services. During the thirty (30) days following termination and subject to the payment of all fees owed under this Agreement, upon request by Customer, MarketMaker CRE will make Customer’s Data available to Customer. In no event will termination relieve Customer of the obligation to pay any fees due to MarketMaker CRE under this Agreement.
- Warranty Disclaimer. THE PRODUCTS ARE PROVIDED "AS IS." MARKETMAKER CRE DOES NOT WARRANT THAT THE PRODUCTS PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED, THAT THEY WILL BE FREE FROM DEFECTS, OR THAT THE PRODUCTS ARE DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. MARKETMAKER CRE DOES 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.
- LIMITATION OF REMEDIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL 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 WITHOUT LIMITATION LOSS OF PROFITS OR GOODWILL) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
- LIMITATION OF LIABILITY. MARKETMAKER CRE’S TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES CAUSED BY MARKETMAKER CRE IN AN AMOUNT NOT TO EXCEED ONE THOUSAND ($1,000) DOLLARS. The provisions of this Section 12 allocate risks under this Agreement between Customer and MarketMaker CRE. MarketMaker CRE’s fees for the LICENSE reflect this allocation of risks and limitation of liability. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
- STATUTE OF LIMITATIONS; JURY WAIVER. NEITHER PARTY SHALL BRING ANY CLAIM BASED ON THE PRODUCTS PROVIDED HEREUNDER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. BOTH PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- Indemnity. Customer shall indemnify, defend, and hold harmless MarketMaker CRE and the officers, directors, agents, and employees of MarketMaker CRE (“MarketMaker CRE Indemnified Parties”) against any Claims arising from (a) the gross negligence, bad faith, fraudulent acts or omissions, or intentional or willful misconduct of Customer, (b) any use or disclosure by Customer of any MarketMaker CRE Service in violation of this Agreement, (c) the exercise of any rights granted to MarketMaker CRE by Customer in or to the Customer Data in accordance with this Agreement. Further, Customer shall indemnify the MarketMaker CRE Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. MarketMaker CRE will notify Customer promptly in writing of any claim covered by the foregoing indemnifications. The parties agree to cooperate fully during such proceedings. Customer will have the right to defend any such claim with attorneys that are reasonably acceptable to MarketMaker CRE, and will have control over the litigation, negotiation, and settlement of, any claim. MarketMaker CRE may be represented by separate counsel at its own expense. Customer will not make any settlement that materially affects the rights of MarketMaker CRE without MarketMaker CRE’s consent.
- Compliance with Laws. Customer agrees that Customer’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.
- Export Laws. Customer agrees that Customer’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”). Customer represents and warrants that Customer 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”). Customer further certifies that Customer 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. Customer acknowledges that the Services, or any feature or part thereof, may not be available for use in all jurisdictions and that Customer is responsible for complying with applicable Export Laws wherever Customer 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 a consent with respect to any similar instance or circumstance. This Agreement does not confer any third-party beneficiary rights and does not 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. Customer 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. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission will have the same legal effect as delivery of an original signed copy of this Agreement.