- “Confidential Information” has the meaning set forth in Section 5.b.
- “Disrepute” has the meaning set forth in Section 3.b.i.1.
- “Effective Date” means the date that Sponsor selects a sponsorship level and pays the corresponding fee.
- “Force Majeure Events” has the meaning set forth in Section 6.
- “Parties” means collectively SUCCESS and Sponsor.
- “Party” means either SUCCESS or Sponsor.
- “Program” means the Real Estate Trendsetter Awards and the benefits received by Sponsor pursuant to the sponsorship level selected by Sponsor.
- “Real Estate Trendsetter Awards” means the nomination, evaluation, and selection of nominees as a recipient of a Real Estate Trendsetter Award.
- “Sponsor” means an individual or entity that selects and pays for either an Exclusive Platinum Sponsor package or a Gold Sponsor package.
- “SUCCESS” means SUCCESS Enterprises LLC.
- “SUCCESS Platform” means collectively, SUCCESS® Magazine, success.com, and successacademy.com.
- “Term” has the meaning set forth in Section 3.a.
Acceptance as Program Sponsor.
Sponsor shall be accepted as a participant in the Program upon, (a) Sponsor selecting a sponsorship level, and (b) receipt of Sponsor’s payment to SUCCESS. The benefits to be received by Sponsor, and the fees to be paid by Sponsor, shall be those applicable to Sponsor’s selection of a sponsorship level.
The term of these Terms and Conditions commence as of Effective Date and, unless terminated earlier pursuant to any express provisions of these Terms and Conditions, will continue in effect until ten (10) days after announcement of the recipients of the Real Estate Trendsetter Awards (the “Term”).
SUCCESS may terminate Sponsor’s sponsorship immediately upon written notice to Sponsor if, in SUCCESS’s sole discretion, such association may cause SUCCESS harm to its reputation, as a result of:
- Sponsor or its Representatives or agents (A) disparaging SUCCESS (or its Representatives or agents) or the Program in any way which could reasonably cause scandal, contempt, ridicule or disrepute (collectively, “Disrepute”), (b) violating any law or committing any immoral act or engaging in any other act or omission which brings (or could bring) Sponsor (and therefore, by association, SUCCESS or the Program) into Disrepute; or (c) making any statement (including without limitation via social media) which could reasonably put the Sponsor (and therefore, by association, SUCCESS or the Program) in Disrepute; or
- Sponsor or any of its officers, directors, or employees engaging in, or becoming the subject of a regulatory or law enforcement inquiry or action alleging, conduct that is unlawful, unethical, or otherwise harmful to the reputation of the Sponsor (and by association, to SUCCESS or the Program).
Either party may terminate Sponsor’s sponsorship, immediately upon written notice to the other party if:
- the other party materially breaches these Terms and Conditions, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice thereof; or
- the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Sponsor Trademark and Content License.
SUCCESS acknowledges Sponsor’s exclusive right, title and interest in its copyrights, trade names, trademarks, trade dress, and other indicia of existence and intellectual property owned by Sponsor and any and all goodwill therein, (collectively the “Sponsor Trademarks”). Subject to the terms and conditions of these Terms and Conditions, Sponsor hereby grants to SUCCESS (and to SUCCESS’s affiliates) a worldwide, non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty-free right and license to use Sponsor Trademarks, as well as reproduce, distribute, perform, display and create derivative works from any materials, slides, or other items created by Sponsor in any media now known or hereinafter developed, solely for the purpose of providing the Sponsor with those benefits applicable to Sponsor’s membership level. All use of the Sponsor Trademarks shall be subject to the Sponsor’s trademark use guidelines only if such guidelines are provided to SUCCESS.
SUCCESS Trademark and Content License.
As between Sponsor and SUCCESS, Sponsor acknowledges SUCCESS’s exclusive right, title and interest in its copyrights, trade names, trademarks, trade dress, and other indicia of existence and intellectual property owned by SUCCESS (whether directly or through any of SUCCESS’s affiliates), and any and all goodwill therein (collectively the “SUCCESS Trademarks”). Subject to these Terms and Conditions, SUCCESS hereby grants to Sponsor a limited, worldwide, non-exclusive, non-transferrable, non-assignable, non-sublicensable right and license to use and display the SUCCESS Trademarks, as well as any content provided by SUCCESS to Sponsor for use in receiving Sponsor’s benefits (“SUCCESS Content”), for the sole purpose of Sponsor receiving those benefits which it has selected and paid for. All use of the SUCCESS Trademarks shall be subject to the SUCCESS Trademark Use Guidelines to be provided to Sponsor after selects a sponsorship level and pays the corresponding fee. All rights and licenses of any kind in SUCCESS Trademarks and SUCCESS Content that are not expressly granted in these Terms and Conditions are exclusively reserved to SUCCESS. All use of any SUCCESS Trademarks shall inure solely to the benefit of SUCCESS and shall not create any right title or interest therein in Sponsor’s favor. Sponsor shall take such action as SUCCESS, in SUCCESS’s reasonable discretion, deems necessary to enforce SUCCESS’s rights in the SUCCESS Trademarks and SUCCESS Content, including without limitation executing and delivering such instruments and documents and providing such information as SUCCESS might request.
SUCCESS shall have a right of approval over Sponsor’s use of the SUCCESS Trademarks, including but not limited to its use in any advertising, promotional, marketing, or related materials (collectively the “Marketing Materials”). Unless otherwise agreed in writing, SUCCESS shall have seven (7) business days from the date and time of receipt to review in order to approve, reject, or limit, and submit written approval or rejection, of Sponsor’s intended use of the SUCCESS Trademarks or Marketing Materials, as the case may be, which approval shall not be unreasonably withheld or delayed. If SUCCESS fails to submit written approval or rejection of the same within seven (7) business days, such intended use of the SUCCESS Trademarks or Marketing Materials shall be deemed rejected.
Sponsor shall keep all Confidential Information (defined below) of SUCCESS’ parent companies, its and their subsidiaries and affiliates, and each of their officers, directors, members, managers, employees, independent contractors, agents, affiliates, successors, and permitted assigns (collectively, the “SUCCESS Parties”) in strict confidence and agrees not to disclose any Confidential Information to any other person, firm, association, partnership, corporation or other entity for any reason except as such disclosure may be required in connection with the Sponsor’s obligations under these Terms and Conditions and is authorized by SUCCESS, in writing. Further, Sponsor acknowledges and agrees that SUCCESS does not grant Sponsor any intellectual property rights or licenses under this agreement, including any copyrights, patents, rights, licenses and ownership of any content in SUCCESS Magazine or on SUCCESS.com.
The term “Confidential Information” shall mean all information of SUCCESS Parties disclosed to Sponsor directly or indirectly; orally, electronically or in writing; whether or not marked, designated, or otherwise identified as “confidential”; whether before, on, or after the Effective Date, including, but not limited to, the following: information relating to the clients and potential clients of SUCCESS Parties (including identities, contacts, and contracts), financial information, business and marketing plans and strategies, non-public information any of SUCCESS Parties use to maintain and develop their respective businesses, any intellectual property of a SUCCESS Party (including trade secrets, to which Sponsor is not being given a license), growth plans and strategies, data, business operations, and pricing. Confidential Information does not include information that is or becomes generally available to the public through an authorized or lawful disclosure.
Sponsor shall promptly return all documents and other materials received from a SUCCESS Party upon the expiration or earlier termination of Sponsor’s sponsorship.
Neither SUCCESS nor Sponsor will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions, when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s control, including, without limitation, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of these Terms and Conditions; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) pandemic and (j) shortage of adequate power. The impacted Party shall give written notice within five (5) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. SUCCESS will have the right to terminate Sponsor’s sponsorship without further obligation to Sponsor if Sponsor’s failure or delay remains uncured for a period of thirty (30) days following its written notice under this Section.
SUCCESS shall indemnify, defend, and hold harmless Sponsor and its officers, directors, employees, agents, successors, and assigns (each, a “Sponsor Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees (collectively, “Losses”), resulting from any claim, suit, action, or proceeding (each, an “Action”) arising out of or related to a third party claim that any SUCCESS Mark violates or infringes any intellectual property right of any third party.
Sponsor shall indemnify, defend, and hold harmless SUCCESS and SUCCESS’ subsidiaries, and each of their respective officers, directors, employees, agents, successors, and assigns (each, an “SUCCESS Indemnitee”) from and against all any and all Losses resulting from any Action arising out of or related to: (i) the Sponsor Materials, including as used, presented, displayed, and distributed without alteration and otherwise in strict compliance with these Terms and Conditions; (ii) a claim that any Sponsor Material or Sponsor Mark violates or infringes any copyright, privacy, publicity, trademark, service mark, patent, or any other right of any third party and/or is unlawful or libelous or otherwise offensive or inappropriate or (iii) Sponsor's breach of any representation, warranty, covenant, or obligation of Sponsor under these Terms and Conditions.
Any failure in the exercise by either Party of its right to terminate these Terms and Conditions or to enforce any provision of these Terms and Conditions for default or violation by the other Party shall not prejudice such Party’s rights of termination or enforcement for any further, subsequent, or other default or violation or be deemed a waiver or forfeiture of those rights.
These Terms and Conditions sets out all terms agreed between the Parties concerning the Program and supersedes all other agreements between the Parties relating to its subject matter. In Sponsor’s becoming a Sponsor neither Party has relied on, and neither Party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently) concerning the Program, except those expressly set out in these Terms and Conditions.
These Terms and Conditions may be amended by SUCCESS at any time on thirty (30) days’ notice.
The section headings in these Terms and Conditions are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of these Terms and Conditions.
No Formation of Partnership.
Notwithstanding use of the term “partner” to describe Sponsor, the Parties enter agree these Terms and Conditions as independent parties acting in their own best interests, and nothing within these Terms and Conditions shall be construed to create a partnership, joint venture, agency, or other employment relationship between the Parties. Neither Party may represent that it has the authority to assume or create an obligation on behalf of the other. Neither Party will represent that it is a partner of the other Party.
Nothing under these Terms and Conditions shall preclude SUCCESS from allowing Sponsor’s competitors to participate in the Program during the Term.
In the event an ambiguity or question of intent or interpretation arises, these Terms and Conditions will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of these Terms and Conditions. The Agreement has been prepared and is to be interpreted and applied in the English (American) language. In these Terms and Conditions, the singular includes the plural and the plural the singular; words importing any gender include the other genders; references to statutes are to be construed as including all statutory provisions consolidating, amending, or replacing the statute referred to; the word “or” shall be deemed to include “and/or,” the words “including,” “includes,” and “include” shall be deemed to be followed by the words “without limitation”; references to articles, sections (or subdivisions of sections) or exhibits are to those of these Terms and Conditions unless otherwise indicated
Waiver of Jury Trial.
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SUCCESS ENTERPRISES IS A SUBSIDIARY OF EXP WORLD HOLDINGS, INC. (“EXPI”). EXP REALTY, LLC (“EXP REALTY”) IS ALSO A SUBSIDIARY OF EXPI. EXP REALTY NOR ANY OF ITS AFFILIATES WERE INVOLVED IN THE DEVELOPMENT OR WILL BE INVOLVED IN MANAGING THE PROGRAM. NEITHER EXP REALTY NOR ANY OF ITS AFFILIATES WILL RECEIVE ANY DIFFERENT TREATMENT IN THE PROGRAM AS EITHER A SPONSOR OR NOMINEE. SPONSOR ACKNOWLEDGES AND ACCEPTS THE ABOVE DISCLOSURE AND HAS DECIDED, NONETHELESS, TO BE A SPONSOR OF THE PROGRAM.
If any provision of these Terms and Conditions is held invalid and unenforceable, such holding shall not invalidate or render unenforceable any other provision hereof.
These Terms and Conditions are made under and will be construed in accordance with the laws of the state of Texas (without giving effect to that state’s choice of law rules), and to the extent controlling, to the federal laws of the United States of America. The forum for any dispute or litigation arising out of these Terms and Conditions shall be in the state and federal courts situated in Dallas County, Texas. The Parties hereby consent to the personal jurisdiction in Texas for the purpose of legal proceedings. Notwithstanding the previous sentence, a Party may commence any litigation or proceeding in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.
Neither SUCCESS nor Sponsor will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions, when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s control, including, without limitation, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of Sponsor’s sponsorship; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) pandemic and (j) shortage of adequate power. The impacted Party shall give written notice within five (5) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. SUCCESS will have the right to terminate Sponsor’s sponsorship without further obligation to Sponsor if Sponsor’s failure or delay remains uncured for a period of thirty (30) days following its written notice under this Section.
Attorneys’ Fees; Costs; and Expenses.
Except as otherwise provided in Section 7 pertaining to indemnification, Sponsor and SUCCESS shall each bear its own costs and expenses (including legal and accounting fees and expenses) incurred in connection with these Terms and Conditions. The foregoing notwithstanding, in the event that litigation or other legal process is necessary to enforce or interpret the terms of these Terms and Conditions, then the prevailing Party in such action shall be entitled to recovery and reimbursement from the non-prevailing Party of the fees, costs and expenses (including, reasonable attorneys’ fees and costs) incurred in connection with such action.
All rights and remedies provided in these Terms and Conditions are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise.
Sponsor shall not assign, transfer, delegate, or subcontract any of its rights or obligations in or under the Program, without the prior written consent of SUCCESS, which consent may be granted, conditioned, or denied at the sole discretion of SUCCESS. No assignment or delegation shall relieve Sponsor of any of its obligations hereunder. Any purported assignment or delegation in violation of this Section 8.o shall be null and void.
Time of Essence.
Time is of the essence with respect to the performance of all terms, covenants, conditions, and provisions of these Terms and Conditions.
The provisions of Sections 4, 5, 6, 7, and 8 shall survive the expiration of the Program.