Nobul’s services and application enable users who are seeking real property representation and related services (each a “Client”) to connect through the application with users who are real estate professionals (each an “Agent”) for the purpose of providing real estate agency or listing services, and vice versa. The Agent wishes to subscribe for Nobul’s services and the parties wish to enter into this Agreement to govern their relationship and set forth their respective rights and obligations.
Nobul and the Agent agree as follows:
- Referrals. Subject to the terms and conditions set forth herein, during the Term of this Agreement, Nobul will provide a platform that connects Clients and Agents for the purposes of, themselves, contracting for professional services related to the purchase and sale of residential real estate (each such connection, a “Referral”).
- Term. The term of this Agreement (the “Term”) will continue in effect until one (1) year from the date of this Agreement, and shall automatically renew for successive one (1) year terms unless either party notifies the other party in writing of its decision not to extend the Term at least thirty (30) days prior to the expiration of the term then in effect; provided, for greater certainty, that any payment obligations under this Agreement existing at the time of such termination shall continue to be payable at the times that would otherwise have applied in absence of such termination.
- Termination for Breach. Notwithstanding Section 2, and without prejudice to any other rights or remedies that it may have, Nobul will be entitled to terminate this Agreement by notice to the Agent if:
- The Agent is in breach of any material provision of this Agreement on the Agent’s part to be observed or performed and either such material breach is incapable of remedy or the materials breach has continued for ten (10) days after notice specifying the material breach and requiring the same to be remedied has been given; or
- The Agent engaged in (ii) gross negligence or willful misconduct in the performance of his/her duties hereunder; or (iii) any material violation of any applicable statutes, rules, regulations, or code of ethics, including regulatory bodies regulating the licensure of real estate agents in the Agent’s jurisdiction of operation.
- Effect of Termination. Following any termination or expiration of this Agreement, there shall be no liability of any party to any other party, except that the obligations relating to the payment of Referral Fees contained in Section 5 and the obligations contained in the confidentiality and non-solicitation provisions set forth in Sections 10 and 11 shall survive the termination of this Agreement.
- Fees. In consideration of Nobul’s Referrals pursuant to this Agreement, the Agent shall pay to Nobul, a referral fee (a “Referral Fee”) based on a percentage of revenue equal to 0.5% of the purchase price of the property purchased or sold. The Agent shall pay the Referral Fee to Nobul within ten (10) days following the closing date of the purchase or sale of the property.
- Records and Review. The Agent shall maintain adequate records of all fees and commissions received from the Client and shall make such records available to Nobul at its request. Such records shall include copies of the applicable real estate association’s Listing Agreement, Agreement of Purchase and Sale, a statement of commission earnings and the Trade Record Sheet, as applicable.
- Taxes. The Referral Fees provided for by this Agreement are expressed exclusive of any sales taxes.
- Representations and Warranties of Nobul. Nobul hereby represents, warrants and covenants to the Agent as follows:
- Organizational Status. Nobul is a company incorporated and validly existing under the laws of Ontario.
- Corporate Power and Authorization. Nobul has the corporate power and authority to execute, deliver, perform and take all actions contemplated by, this Agreement, and all such action has been duly and validly authorized by all necessary corporate proceedings on its part.
- Execution and Binding Effect. This Agreement constitutes the legal, valid and binding obligation of Nobul, enforceable against Nobul in accordance with its terms.
- Absence of Conflicts. Neither the execution and delivery of this Agreement by Nobul, nor consummation by Nobul of the transactions herein contemplated, nor performance of or compliance with the terms and conditions hereof by Nobul does or will violate or conflict with any law or any contract to which Nobul is a party or by which it is bound.
- Representations and Warranties of the Agent. The Agent hereby represents and warrants to Nobul as follows:
- Licensing Status. The Agent is a real estate agent licensed and in good standing with the governing and regulatory bodies regulating the licensure of real estate agents in the Agent’s jurisdiction of operation, together with any and all other applicable national, provincial/state, and local laws and regulations with respect to the purchase and sale of residential real estate in the Agent’s jurisdiction.
- Execution and Binding Effect. This Agreement constitutes the legal, valid and binding obligation of the Agent, enforceable against the Agent in accordance with its terms.
- Absence of Conflicts. Neither the execution and delivery of this Agreement by the Agent, nor consummation by the Agent of the transactions herein contemplated, nor performance of or compliance with the terms and conditions hereof by the Agent does or will violate or conflict with any law or any contract to which the Agent is a party or by which it is bound.
- Non-Solicitation. The Agent acknowledges and agrees that Nobul has a proprietary right to maintain its relationships with the Clients, which Nobul is entitled to protect.
The Agent further agrees that during the term of this Agreement and for a period of 24 months after termination, for any reason whatsoever, the Agent shall not, in any manner, either directly or indirectly, solicit or otherwise induce a Client’s business. For greater certainty, the Agent agrees that it shall not take any action or make any statement that may impair or interfere with the relationship between Nobul and a Client, including that it shall not, for any reason whatsoever, in any manner, either directly or indirectly, on behalf of itself or any third party offering substantially similar products or services as those offered by Nobul, solicit or endeavour to entice away any of Nobul’s Client.
- Notices. Whenever notice is required pursuant to any provision of this Agreement, such notice will be in writing and submitted by electronic transmission, and will be sent to the parties at the email addresses listed below or such other address as the parties may specify in writing to one-another:
- If to Nobul:
c/o Nobul Corporation
Attention: Legal Counsel
- If to the Agent, at the address and email address provided by the Agent.
All notices or other communications given or made in accordance with this Section will be deemed to have been given or made on the date such communication is sent to the receiving party.
- Non-Waiver. Waiver by any party of any breach of this Agreement or the failure to exercise any right hereunder will not be deemed to be a waiver of any other breach or right, nor will the failure of any party to take action by reason of any such breach or to exercise any such action deprive such party of the right to take action at any time while such breach or condition giving rise to such right continues in effect.
- Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions hereof, and each provision is hereby declared to be separate, severable and distinct. To the extent that any such provision is found to be invalid, illegal or unenforceable, the parties hereto shall act in good faith to substitute for such provision, to the extent possible, a new provision with content and purpose as close as possible to the provision so determined to be invalid, illegal or unenforceable.
- Currency. All payments contemplated herein shall be paid in Canadian funds if the property purchased or sold is located in Canada and in US funds if the property purchased or sold is located in the United States.
- Headings. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All references in this Agreement to Sections will, unless otherwise provided, refer to Sections hereof attached hereto, all of which are incorporated herein by this reference.
- Entire Agreement; Amendments. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of any kind and every nature between them. This Agreement may be amended, changed, modified, discharged or abandoned only by an agreement in writing, signed by the parties hereto.
- Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
- Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be validly executed and delivered by facsimile or electronic transmission.
- Governing Law. This Agreement will be governed in all respects by the laws of the Province of Ontario and the federal laws of Canada applicable therein.
- No Joint Venture Intended or Implied. Nobul will provide the Referrals hereunder solely as an independent contractor, and no joint venture, partnership, employment, agency or any other relationship is intended, accomplished or embodied in this Agreement.
- Survival. The provisions of Section 4 will survive the expiration or termination of this Agreement.