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LEGAL / DOCUMENTATION

MASTER SERVICE AGREEMENT

PLEASE READ THE FOLLOWING MASTER SERVICES AGREEMENT (THE “AGREEMENT”). THE AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES AS DEFINED BELOW. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT INCLUDING ANY EXHIBITS ATTACHED TO, AND INCORPORATED INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT (YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MUST NOT ACCESS OR USE THE SERVICES).

IN THE AGREEMENT, “YOU” ARE SOMETIMES REFERRED TO AS “CUSTOMER”. GGMS, LLC IS REFERRED TO AS “GGMS.” IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY, BUSINESS, OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE LEGAL ENTITY AND ITS AFFILIATES TO THE TERMS OF THE AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO ALL SUCH LEGAL ENTITIES AND THEIR AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MUST NOT ACCESS OR USE THE SERVICES.

YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR. YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THE AVAILABILITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

THIS AGREEMENT WAS LAST UPDATED ON 10/5/21. IT IS EFFECTIVE BETWEEN YOU AND GGMS AS OF THE DATE THAT YOU SIGN THIS AGREEMENT (THE “EFFECTIVE DATE”); PROVIDED THAT, IF GGMS WAS PROVIDING YOU SERVICES PRIOR TO THE EFFECTIVE DATE, THIS AGREEMENT SHALL BE DEEMED EFFECTIVE AS OF THE DATE THE SERVICES COMMENCED.

 

1. DEFINITIONS

1.1 “Assets”

means: (a) GGMS’s proprietary filters, action plans, legends, decision trees, templates, flow charts, and similar that GGMS uses to provide the Services; (b) any tools created by or on behalf of GGMS, including without limitation GGMS’s Google search ad creator tool, tools to customize searches by market, GGMS’s e-alert tool, and creative optimization tools; and (c) GGMS’s icon classification system.

1.2 “Content”

means content, data, and information that is owned by GGMS or any of its licensors that is provided or made available by GGMS through use of the Services or as part of or in connection with GGMS’s provision of Services. Content does not include Customer Data.

1.3 “Custom Content”

means anything set forth on the applicable Order expressly as custom or third party work created by GGMS or a third for the Customer, which may include advertisements, social media posts, or other media, but excluding any Customer Data that may be provided by Customer for use in such Content.

1.4 “Custom Owned Content”

means that portion of the Custom Content that is original work of GGMS, which for clarity, excludes any third party work, stock photos, etc.

1.5 “Customer Data”

means the electronic data and information input into the Services by or on behalf of Customer, including without limitation images, photos, videos, home tours, customer data, and listing details. Customer Data does not include Usage Data or Aggregated Data.

1.6 “Documentation”

means any user materials, instructions, and specifications made available by GGMS to Customer for the Services

1.7 “Order”

means the ordering document on Hubspot that sets forth the services ordered by Customer. Each Order is incorporated by reference into this Agreement.

1.8 “Personal Data”

means information provided by Customer, or otherwise input into the Services by or on behalf of Customer, in each case, that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household.

1.9 “Services”

means, collectively, coaching and media services set forth ordered on an Order and described herein, and the other services made available by GGMS under this Agreement. The current services are described on the Service Terms attached and incorporated hereto.

1.10 “Users”

means Customer’s employees, independent contractors, and other individuals who are authorized by Customer to use the Services on behalf of Customer.

1.11 “Usage Data”

means any content, data, or information that is collected or produced by the Services in connection with use of the Services that does not identify Customer or its Users, and may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Services.

2. SERVICES

2.1 Provision of Services

Subject to the terms and conditions of this Agreement, GGMS shall provide the Services to Customer and its Users.

2.2 Cooperation

Customer shall supply to GGMS the Customer Data and Personal Data along with access and personnel resources that GGMS reasonably requests in order for GGMS to provide the Services.

2.3 Third Party Offerings

GGMS may make access to or use of third-party software services, applications, or functionality that link to, interoperate with, or are incorporated into the Services available to Customer, which may include without limitation offerings from Sierra Interactive and Hubspot (collectively, “Third-Party Offerings”). “Third-Party Offerings” also include advertising platforms such as Facebook, Google, Instagram, and Bing. Customer acknowledges that GGMS does not own or control such Third-Party Offerings, they are made available as a convenience only, and are not part of the Services or subject to any of the warranties, service commitments, or other obligations with respect to Services under this Agreement and that such Third-Party Offerings are subject to their own terms and conditions. Any acquisition by Customer of Third-Party Offerings, and any exchange of data between Customer and any Third Party Offering is solely between Customer and the applicable Third-Party Offering provider. Access to and use of any Third-Party Offerings is at Customer’s own risk and is solely determined by the relevant third-party provider and is subject to such additional terms and conditions applicable to such Third-Party Offering. Customer is responsible for complying with all applicable terms and conditions of the provider of the applicable Third-Party Offering. GGMS may disable or restrict access to any Third-Party Offerings on the Services at any time without notice. GGMS is not liable for Third-Party Offerings or any Customer Data provided to a third party via a Third-Party Offering. For clarity, and notwithstanding anything to the contrary, Customer is responsible for all communications (including without limitation emails and texts sent as part of the inbox management services) sent through its Third-Party Offerings accounts, even if such communications are sent by GGMS. Customer represents and warrants that: (a) it has all rights necessary to authorize GGMS to access and use Third-Party Offerings on Customer’s behalf; (b) it shall be responsible for all fees and charges assessed by the provider of the Third-Party Offering; (c) any Personal Data or Customer Data used in connection with a Third-Party Offering has been and will be collected, used, and shared in accordance with all applicable laws and regulations; (d) all communications made via a Third-Party Offering shall be done in accordance with all applicable laws, regulations, and standards; (e) it shall be responsible for ensuring all email communications are in compliance with applicable law, and Customer shall notify GGMS of any required email disclosures.

 

3. GRANT OF RIGHTS

3.1 Access Rights; Customer’s Use of the Services

Subject to the terms and conditions of this Agreement, and to the extent set forth on the applicable Order, GGMS hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-sublicensable right to access and use the Services, Assets and Content for which Customer has paid the applicable fees, for Customer’s own internal business purposes in accordance with the Documentation and the terms and conditions of this Agreement. GGMS and its licensors reserve all rights in and to the Services, Assets, and Content and the Services not expressly granted to Customer under this Agreement.

3.2 Restrictions on Use

Customer shall not (a) reproduce, display, download, modify, create derivative works of or distribute the Services, Assets, or Content, or attempt to reverse engineer, decompile, disassemble or access the source code for the Services, Assets, Content, or Services or any component thereof; (b) use the Assets, Content, or Services, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Customer; (c) permit any party, other than the then-currently authorized Users to independently access the Assets Content, or Services; (d) use the Services, Assets, or Content in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; (e) use the Services, or Third-Party Offerings to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (f) use the Assets, Content, or Services for any competitive purpose. Customer shall not, and shall not permit any User to, use the Assets, Content, Services, or Documentation except as expressly permitted under this Agreement. Customer is responsible for Users’ compliance with this Agreement.

 

4. FEES AND PAYMENT TERMS

4.1 Price

Customer shall pay GGMS the fees set forth in the applicable Order (“Fees”) in accordance with the terms of this Agreement. Fees are exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any Fees or any amounts owed to GGMS under this Agreement (excluding any taxes arising from GGMS’s income or any employment taxes). Fees for any Services requested by Customer that are not set forth on an Order will be charged as mutually agreed to by the parties in writing. Except as set forth on an Order, GGMS may increase its fees upon sixty (60) days written notice to Customer.

4.2 Payment

Except as set forth in the applicable Order, Customer shall pay to GGMS all Fees within 30 days after Customer’s receipt of the applicable invoice for such Services. If Customer disagrees with any Fees set forth in an invoice, it shall notify GGMS of the dispute within 30 days after receipt of such invoice. All payments received by GGMS are non-refundable and non-cancellable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars. All payment obligations are non-cancellable except as set forth in the Order. Any late payments shall accrue interest in the amount of 1.5% per month until paid (or a lower rate if required by applicable law), and Customer shall be responsible for GGMS’s costs of collection, including reasonable attorneys fees.


5. TERM AND TERMINATION

5.1 Term

This Agreement commences on the Effective Date and, unless terminated earlier in accordance with this Agreement, continues until all Orders have terminated (“Term”).

5.2 Order Term

The initial term of an Order shall begin on the date set forth in the Order and continue for one year (“Initial Term”). Each Order will automatically renew for additional one-year periods (each, a “Renewal Term”), unless a party gives the other party written notice of its intent to not renew at least 30 days prior to the end of the Initial Term or the then-current Renewal Term.

5.3 Termination

A party may terminate this Agreement or an Order upon notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach. GGMS may terminate this Agreement for any or no reason upon 30 days written notice to Customer.

5.4 Effects of Termination

Upon termination of this Agreement and all Orders: (a) all amounts owed to GGMS under this Agreement before such termination will be due and payable in accordance with Section 4; (b) all rights granted by GGMS in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access and use of the Assets, Content, and Services and return or erase, all copies of the Documentation in Customer’s possession or control; and (d) GGMS shall promptly return or erase all Customer Data, except that GGMS may retain Customer Data in GGMS’s archived backup files. Sections 1, 3.2, 4, 5.4, 6, 7.2, 7.3, and 8-11 survive expiration or termination of this Agreement.

 

6. PROPRIETARY RIGHTS

6.1 Customer Data

As between the parties, Customer owns all right, title, and interest in Customer Data and Personal Data, including all intellectual property rights therein.

6.2 Customer License Grant

Customer hereby grants to GGMS, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 11.3), non-sublicensable license to modify, display, perform, distribute, copy, and otherwise use the Customer Data and Personal Data solely for the limited purpose of performing the Services for Customer under this Agreement.

6.3 Custom Content

To the extent that GGMS provides Customer with any Custom Content (as set forth on an applicable Order), Customer shall have the rights to such Custom Content as set forth in the applicable Order and/or third party license. To the extent that GGMS provides Customer with any Custom Owned Content (as set forth on an applicable Order), GGMS hereby assigns its rights to such Custom Owned Content to Customer

6.4 The Services

All proprietary technology utilized by GGMS to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of GGMS, including without limitation the Assets, Content, and Services, and including without limitation all improvements, enhancements, or derivatives thereto. GGMS or its third party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Content, Assets, and the Services, including without limitation the Documentation, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by GGMS in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by GGMS.

6.5 Aggregated Data

Notwithstanding anything in this Agreement to the contrary, GGMS may analyze Customer Data and Personal Data to create a de-identified and aggregated data set that does not identify Customer or its Users (collectively, “Aggregated Data”). GGMS retains ownership of all right, title, and interest in and to Aggregated Data. GGMS may use and share Aggregated Data for any lawful purpose, including to improve, market, and provide the Services.

6.6 Usage Data

GGMS retains ownership of all right, title, and interest in and to the Usage Data. GGMS may use and share Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve GGMS’s services, systems, and algorithms.

 

7. WARRANTY; DISCLAIMERS

7.1 GGMS Warranties

GGMS warrants that the Services will be performed in a workmanlike manner. GGMS does not warrant that the Services will be completely error-free or uninterrupted. If Customer notifies GGMS of a reproducible error in the Services that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, GGMS shall, at its own expense and as its sole obligation and Customer’s exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if GGMS is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to GGMS and, GGMS shall refund the amounts paid by Customer for access to the Services for the period during which the Services was not usable by Customer. The warranties set forth in this Section 7.1 do not apply to any Third Party Offerings or cover any Error caused by: (i) Customer or its Users; (ii) use of the Services in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software; or (iv) circumstances beyond GGMS’s reasonable control.

7.2 Customer Warranties

Customer represents and warrants that: (a) it has the right to use and share the Customer Data and Personal Information as contemplated by this Agreement; (b) it has the right to provide the Customer Data and Personal Data to GGMS and to authorize GGMS to use and share it as permitted herein; (c) it has obtained all consents and clearances required for GGMS to use and share the Customer Data and Personal Data as set forth herein; (d) the Customer Data is original work of Customer; (e) the Customer Data and Personal Data, and use and sharing by GGMS thereof, does not infringe, misappropriate, or violate the rights of any third party; (f) Customer shall use the Content, Custom Content, Services in accordance with all applicable laws and regulations, including without limitation any fair housing and non-discrimination laws and regulations; (g) Personal Data has been collected, used, and shared in accordance with all applicable laws and regulations, including without limitation applicable privacy laws, and including specifically the CAN-SPAM Act and TCPA; (h) to the extent Customer instructs GGMS to use any Personal Data to send a text or SMS message, Customer has obtained express and verifiable opt-in consent for the receipt of such messages from the subject of such Personal Data; (i) to the extent Customer instructs GGMS to use any Personal Data to send a message to an individual, Customer shall ensure that all messages are in compliance with all applicable laws and regulations; (j) Customer shall promptly comply with any opt-out or unsubscribe requests, and provide GGMS with any updated Personal Data.

7.3 Disclaimer

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, GGMS MAKES NO WARRANTIES OF ANY KIND AND GGMS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

 

8. INDEMNIFICATION

8.1 Claims Against Customer

GGMS shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Custom Owned Content infringes any U.S. intellectual property rights of such third party (each, a “Customer Claim”), and GGMS shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying GGMS in writing of such Customer Claim; (b) giving GGMS sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at GGMS’s request and expense, assisting in such defense. In the event that the use of the Custom Owned Content is enjoined, GGMS shall, at its option and at its own expense either (a) procure for Customer the right to continue using the Custom Owned Content, (b) replace the Custom Owned Content with a non-infringing but functionally equivalent product, (c) modify the Custom Owned Content so it becomes non-infringing or (d) terminate this Agreement and refund the amounts Customer paid for access to the Custom Owned Content that relate to the period during which Customer was not able to use the Custom Owned Content. Notwithstanding the foregoing, GGMS will have no obligation under this Section 8.1 with respect to any infringement claim based upon: (1) any use of the Custom Content not in accordance with this Agreement; (2) any use of the Custom Content in combination with products, equipment, software, or data that GGMS did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software or data; (3) any modification of the Custom Content by any person other than GGMS or its authorized agents or subcontractors; or (4) any Third-Party Offering. This Section 8.1 states GGMS’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.

8.2 Claims Against GGMS

Customer shall indemnify, defend, and hold GGMS harmless from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses), claims, suits, or actions arising out of or related to: (a) Customer's or GGMS’s use of any Customer Data or Personal Data; or (b) Customer’s breach of its warranties hereunder (“GGMS Claim”). The foregoing obligations are conditioned on GGMS: (a) promptly notifying Customer in writing of such GGMS Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 or otherwise with respect to any GGMS Claim to the extent based upon GGMS’s use of the Customer Data in violation of this Agreement.

 

9. LIMITATIONS OF LIABILITY

IN NO EVENT WILL GGMS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ITS INDEMNIFICATION OBLIGATION HEREUNDER, GGMS’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO GGMS UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM.


10. CONFIDENTIALITY

10.1 Definitions

“Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. GGMS’s Confidential Information includes its Documentation.

10.2 Protection

Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and representatives who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 10. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Recipient shall be responsible for the acts and omissions of its representatives.

10.3 Exceptions

Recipient shall have no confidentiality obligations under Section 10.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient without restriction prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; or (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.

 

11. GENERAL

11.1 Independent Contractor

The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.

11.2 Subcontractors

GGMS may utilize subcontractors and subprocessors (collectively, “Subcontractors”) in the performance of its obligations, provided that GGMS will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by GGMS, would constitute a breach of, or otherwise give rise to liability to GGMS under, this Agreement when they are performing for or on behalf of GGMS.

11.3 Assignment

Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that a party may assign this Agreement without consent from the other party to (a) an affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect.

11.4 Force Majeure

Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control, including the weather, civil disturbances, acts of civil or military authorities, acts of war or terrorism, or acts of God.

11.5 Notices

To be effective, notices under this Agreement must be delivered in writing by courier, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address for each party first set forth on the signature page and will be effective upon receipt, except that e-mail may be used for routine communications and to obtain operational approvals and consents but may not be used for any other notices.

11.6 Governing Law; Venue

The laws of the State of Florida govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction.. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Tampa, Florida in any litigation arising out of this Agreement or the Services.

11.7 Remedies

Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Each party acknowledges that any actual or threatened breach of Sections 3.2 or 10 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.

11.8 Compliance with Laws

Each party shall comply with all laws, rules, and regulations, applicable to that party in connection with this Agreement.

11.9 Waivers

To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.10 Severability

If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).

11.11 Counterparts

This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.

11.12 Entire Agreement

This Agreement, including any Service Terms, Order and any exhibits or attachments thereto, constitute the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of the Agreement shall govern unless the Order specifically overrides this Agreement. No amendment to this Agreement will be effective unless in writing and signed by the party to be charged.

SERVICE TERMS

These Service Terms describes the Services to be performed and provided by GGMS pursuant to the Master Services Agreement between GGMS and Customer. All capitalized terms used but not defined herein have the meanings given to them in the Agreement.

1. Services

GGMS shall provide Customer with the following Services to the extent paid for under an Order:

(a) Packages

Customer shall select its package on the Order Form. The packages shall contain the following services, as and how provided by GGMS. The package features are subject to change by GGMS. Customer may move to a higher tier at any time upon reasonable notice to GGMS and payment of the applicable fees, but may not move to a lower tier during the then-current term of its Order.

Essential Package

  • Training Website Access
  • Facebook Private Mastermind Access
  • Landing Pages
  • Landing Page Scripts
  • Behavioral Messaging
  • Automations
  • Action Plans
  • Smart Filters
  • Tags
  • Contact Templates
  • Facebook Video Campaign
  • Facebook Video Campaign Scripts

Tier 1 Package

  • “Essentials” Package, plus
  • Google Search (Homes for sale in...)
  • Google Search (Agent near me...)
  • Google Search (How much is my home worth...)
  • Campaign Review Calls

Tier 2 Package

  • Tier 1 Package, plus
  • Google Display Remarketing
  • Facebook Display Remarketing
  • Local Listings (Local SEO)

Tier 3 Package

  • Tier 2 Package, plus
  • Google Local Service Ads
  • Google Brand Ads
  • YouTube Ads
  • Google Mobile Call Ads

Inbox Management Add-On

  • Respond to inbound lead conversations using agreed-upon follow-up protocols
  • Suggest properties to engaged leads
  • Alert the real estate agent if additional assistance is needed

2. Fees; Service Details

2.1 Set Up Fees.

Customer shall pay GGMS a one-time set up fee as set forth on an Order. Set up fees shall be due upon execution of an Order.

2.2 Monthly Fees.

Customer shall pay the monthly fees to GGMS as set forth on an Order. Fees are due monthly in advance, and are automatically charged to your card on file by GGMS’s payment processor. Customer warrants that: (a) it has the right to provide GGMS with any payment card information provided to GGMS; (b) it will provide GGMS (or, as applicable, its payment processor) with up to date and accurate payment card information. Customer acknowledges that its card will continue to be automatically charged on a monthly basis until such time Customer cancels its account as set forth in the Agreement. To the extent Customer occurs any overages or purchases any additional products and services, Customer shall be responsible for such amounts. Additional fees and overages are billed monthly in arrears. To the extent that GGMS incurs any fees or expenses through its use of the Third-Party Offerings, Customer shall be responsible for such fees and expenses. In order to use some of the services, Customer must have an account in good standing with Hubspot. Any content of GGMS or its partners available or viewable through Hubspot hereunder shall be “Content”, and Customer shall only have the right to use such Content for its own internal business purposes during the term of the applicable Order.

2.3 Ad Spend

Customer shall pay all costs and expenses related to any advertisement directly to the applicable advertiser, platform, and/or publisher (collectively, the “Publisher”). GGMS shall not be responsible for paying any Publisher directly, and shall not be responsible for any costs incurred by Customer related to such Publisher. Customer warrants that: (a) it has the right to provide Publisher with any payment card information provided to Publisher; (b) it will provide Publisher (or, as applicable, its payment processor) with up to date and accurate payment card information; and (c) it will review and comply with Publisher’s terms. Customer acknowledges that its card will be charged by Publisher as outlined in Publisher’s terms. To the extent Customer occurs any overages or purchases any additional products and services from a Publisher, Customer shall be responsible for such amounts. Customer shall indemnify, defend, and hold GGMS harmless from and against any claims, losses, damages, fines, fees, costs, expenses, or other amounts arising out of or related to Customer’s engagement and use of a Publisher.

2.4 Sierra Interactive/Third-Party Offerings

Customer must permit GGMS to have administrative access to certain of its Third-Party Offerings, including without limitation its Sierra Interactive (“Sierra”) account in order for GGMS to provide the Services. GGMS may engage with Customer’s database, and maintain and monitor Assets within such Third-Party Offerings, and provide other services as agreed by the parties. Customer acknowledges that GGMS may incur fees through its use of the Third-Party Offerings (including without limitation through Google and Facebook advertising buys), and Customer shall be responsible for all fees associated with the use of the Third-Party Offerings. Customer shall maintain its Third-Party Offerings accounts in good standing at all times, and Customer shall immediately notify GGMS in writing of any material changes to its Third-Party Offerings accounts, including without limitation any notices of delinquency or breach. Upon any termination or expiration of this Agreement or the applicable Order, Customer shall immediately cease use of any GGMS Services and Content (including without limitation any Assets) accessible through Customer’s Third-Party Offerings accounts. If Customer fails to do so, Customer shall pay GGMS for continued use of the Services at GGMS’s then-current rates. If Customer’s account with a Third-Party Offering is terminated or suspended, GGMS shall not have any obligation to provide Services to Customer.

2.5 Custom Content

Unless set forth on an Order, no Custom Content is to be provided by GGMS to Customer. Any other Content provided by GGMS to Customer shall be owned by GGMS.

2.6 Inbox Management

GGMS will only provide inbox management services if paid for under an Order. As part of the inbox management services, GGMS will send messages on Customer’s behalf as agreed by the parties. Customer is solely responsible for the content of the messages, and Customer shall ensure that all responses comply with applicable laws.