Master Marketing Agreement Standard Terms

These Master Marketing Agreement Standard Terms (these “Standard Terms”) are applicable to and incorporated into the Master Agreement which references these Standard Terms. All capitalized terms not defined herein shall have the meaning set forth in the Master Agreement. The parties agree as follows:

1. TERM: The Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of the Agreement, will remain in force and effect until the Expiration Date (the “Term”).
2. TERMINATION:
   
   1. Notwithstanding anything to the contrary in the Agreement, either party may terminate the Agreement: (i) immediately upon notice to the other party if the other party: (A) becomes insolvent, acknowledges its insolvency in any manner, ceases to do business or files a petition in bankruptcy; (B) engages in any unlawful business practice related to that party’s performance under the Agreement; or (C) breaches any of its obligations under the Agreement in any material respect, which breach is not remedied within thirty (30) days following written notice to the breaching party (any of the foregoing, a “Termination for Cause”), or (ii) by providing the other party with prior written notice of its intent to terminate. Upon receipt of a notice of termination by either party under the preceding clause 2(a)(ii), the Agreement shall terminate upon the date provided in such notice, provided that if any Asset is then in the Auction Period or Tail Period, such termination date shall be extended until the later to occur of (A) the expiration of the Tail Period for all such Assets, and (B) the closing or termination of all purchase and sale agreements between Seller and any Auction bidder or Out of Auction Sale buyer for all such Assets.
   2. Any liability incurred, or compensation or payment earned, during the Term of the Agreement (including, without limitation, compensation or payment for sale transactions entered into before, but that close after, the expiration or termination of the Agreement) shall survive the expiration or termination of the Agreement. Upon any expiration or termination of the Agreement, each party shall immediately cease representing to the public any affiliation between them in connection with the subject matter of the Agreement. This Section 2(b) of these Standard Terms, Sections 10 – 25 of these Standard Terms, and Section 3 of the Master Agreement shall each survive the expiration or termination of the Agreement.
3. REMOVAL OF ASSET: Notwithstanding anything to the contrary in the Agreement, either party may remove an Asset from the Agreement without penalty or fee in the event of (a) commencement of a condemnation or eminent domain proceeding or deed in lieu of condemnation directly affecting the Asset, (b) the occurrence of damage to the Asset by fire or other casualty of a material nature, or (c) any material adverse change in the condition of the Asset after the Asset becomes subject to the Agreement which renders the Asset unsalable or substantially affects the marketability of the Asset (each a “MAC Removal”). ADC may also remove an Asset from the Agreement at any time if it discovers that the Due Diligence Documents provided by Seller for such Asset are inaccurate in any material respect.
4. SCHEDULED AUCTION DATE: The Auction(s) shall be scheduled to be held on dates and in the format mutually acceptable to both Seller and ADC (each being a “Scheduled Auction Date”); provided, however, that ADC and Seller shall reasonably cooperate with each other if a change in any Scheduled Auction Date is necessary.
5. PURCHASE AND SALE AGREEMENT: Seller shall either use (a) the applicable standard form purchase and sale agreement provided by ADC (“ADC’s Form PSA”), if available, or (b) any other purchase and sale agreement provided by Seller that is reasonably acceptable to ADC and clearly provides for the following (whether in the body of the agreement or by attaching ADC’s standard form Auction Addendum): (i) payment of the Buyer’s Premium, and (ii) the total purchase price for the Asset will be the sum of the Winning Bid Amount plus the Buyer’s Premium (each of (a) or (b) referred to herein as “Purchase Agreement”). Seller shall cooperate with Listing Broker, and/or ADC, as applicable, in promptly providing any necessary documentation and/or disclosures required for the conduct of each Auction, including the form of Purchase Agreement to be used for the applicable Asset within ten (10) calendar days after such Asset is submitted and becomes subject to the Agreement. Any form transaction documents provided by ADC are fully subject to Seller’s approval and are provided solely to facilitate the sale process. ADC makes no representation or warranty relating to the legal sufficiency or tax consequences of any such forms , and shall have no liability or responsibility regarding any aspects (including, without limitation, legal or tax) of the transaction documents used in the conveyance of any Asset.
6. ESCROW INSTRUCTIONS: ADC shall be entitled to submit the Agreement to the escrow/closing agent who shall treat the same as an irrevocable instruction to pay, at closing, the compensation due ADC as set forth herein from Seller’s funds and proceeds in escrow.
7. WINNING BID AMOUNT: As used in the Agreement, for each Asset, the term “Winning Bid Amount” shall mean the highest Auction bid amount (or, if applicable, the amount of any post-Auction offer ADC procures during the Auction Period) that is (a) equal to or greater than the Reserve Price or (b) less than the Reserve Price and accepted in writing by Seller, in Seller’s sole discretion. As used herein, for each Asset, the term “Buyer” shall mean the person or entity that submitted the Winning Bid Amount. For each Asset with a Winning Bid Amount, ADC shall be authorized to notify the applicable Buyer that it is the winning bidder and deliver to Buyer for execution the Purchase Agreement in the form previously approved by Seller , and if after Buyer has executed such Purchase Agreement Seller (x) fails to countersign such Purchase Agreement, or (y) terminates a fully executed Purchase Agreement (other than due to Buyer’s default, a MAC Removal or failure of a closing condition not resulting from Seller’s default) prior to the close of escrow for an Asset (in either case, a “Seller Rejection”), then Seller shall (i) indemnify, defend and hold harmless ADC against any claims brought by a Buyer arising from such Seller Rejection, and (ii) pay ADC an amount equal to the Buyer’s Premium that would have been payable to ADC had such transaction closed, which shall be deemed earned and immediately payable to ADC upon such Seller Rejection.
8. COSTS AND EXPENSES: Unless otherwise agreed to by the parties, ADC shall be responsible for paying advertising, marketing, and promotion costs it determines necessary to perform the services required by the Agreement.
9. BIDDING RESTRICTIONS: Neither Seller nor any of its affiliates, nor any of their respective directors, members, managers, officers, partners, employees, representatives or agents shall enter any bid during any Auction. Seller hereby authorizes ADC to enter bids on behalf of the Seller up to the Reserve Price, unless otherwise prohibited by law.
10. INDEMNITIES: Each party (as applicable, the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party, each person or entity deemed to control or to be controlled by such other party, and their respective affiliates, partners, members, shareholders, managers, directors, officers, employees, agents and representatives, against and from any and all losses, liabilities, and damages (including without limitation reasonable attorneys’ fees) arising in connection with any action, claim, controversy, proceeding, or investigation relating to this engagement, to the extent imposed or incurred by reason of the gross negligence or willful misconduct of the Indemnifying Party. The indemnification provisions hereunder shall survive termination and completion of performance as contemplated under the Agreement.
11. NOTICES: Any notice or other communication required or desired to be given to any party under the Agreement shall be in writing and shall be either: (a) delivered personally by hand; (b) sent by certified United States mail, return receipt requested; (c) sent by a nationally recognized overnight courier service; or (d) sent by electronic mail or facsimile provided a copy of any such notice is also sent by one of the other foregoing means. All notices to ADC shall be delivered to One Mauchly, Irvine, CA 92618, Fax: (949) 452-8168, Email: legal-notice@auction.com (Attention: Chief Legal Officer), and if to Seller delivered to the physical and electronic mail addresses set forth for the Seller contact specified in the Master Agreement, or to such other addresses as either party may specify to the other in writing. All notices shall be deemed given upon receipt or upon the date such receipt is refused by the party receiving such notice.
12. CONFIDENTIALITY: Each party hereto, for itself and all persons retained or employed by it in performing services hereunder or otherwise, shall hold in confidence and not use or disclose to others any confidential or proprietary information of any other party which may become known to such party under the Agreement, except where such disclosing party specifically authorizes disclosure or such disclosure of Seller confidential information reasonably results from the performance of ADC’s duties hereunder; provided, however, that for purposes of the Agreement information shall not be deemed to be confidential if: (a) it is otherwise within the public domain, (b) a party has obtained such information from a source other than a party hereto or its employees or agents that is not known by such other party to have had a duty of confidentiality to any person or entity, or (c) such information is otherwise reasonably necessary for a party to disclose to defend itself from any threatened or potential claim. Notwithstanding the foregoing, either party may disclose any confidential information described herein in response to legal process, and the producing party will endeavor to provide the other notice of such legal process (if legally permitted to do so).
13. ANNOUNCEMENTS: Either party may issue press releases or announcements regarding the Agreement or the marketing or sale of any Asset, provided that no such press release or announcement (a) discloses confidential information of the other party or (b) places in a false light, disparages, or in any manner reflects negatively upon such other party.
14. AUTHORITY; CONSTRUCTION: Seller represents and warrants that (a) Seller is duly authorized to enter into the Agreement and perform its obligations hereunder, and (b) that it is entitled to the proceeds generated by the sale of any Asset. ADC represents and warrants that it is duly authorized to enter into the Agreement and perform its obligations hereunder. Each natural person signing the Agreement on behalf of an entity represents and warrants that he/she has the requisite authority to so bind the entity.
15. INDEPENDENT CONTRACTORS: The Agreement is intended to create an independent contractor relationship between ADC and Seller, and nothing herein shall be construed as creating an employer/employee, agency, or partnership relationship between the parties.
16. AMENDMENTS: No alterations, additions, or other changes to the Agreement shall be made or binding unless made in writing and signed by all parties to the Agreement.
17. ASSIGNMENT; SUCCESSORS: Neither party shall assign its rights or obligations under the Agreement, in whole or in part, without the prior written consent of the other party (and any such attempted assignment or delegation shall be void); provided, however, any party may assign the Agreement to an affiliate or to an entity which succeeds to all or substantially all of the business of the assignor, but no such assignment shall relieve the assignor of its obligations hereunder. Except as described in the preceding sentence, the Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the respective successors and assigns of the parties to the Agreement.
18. LIMITED LIABILITY: In no event shall any partner, member, shareholder, manager, director, officer, agent, employee, representative or affiliate of any party have any personal liability in connection with the Agreement. Notwithstanding anything to the contrary contained in the Agreement and/or any related document or instrument executed in connection therewith, under no circumstances shall any party hereto be liable to the other for, and each party hereto hereby waives any and all rights to claim against the other for, any special, indirect, incidental, consequential, punitive or exemplary damages in connection with the Agreement or any services performed hereunder, including, but not limited to, lost profits, even if such party has knowledge of the possibility of such damages.
19. WAIVER OF RIGHT FOR JURY TRIAL: TO THE EXTENT PERMITTED BY LAW, EACH PARTY HERETO, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER CHOICE, KNOWINGLY AND VOLUNTARILY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE AGREEMENT, ADC’S ENGAGEMENT HEREUNDER, ANY TRANSACTION, ANY SERVICES PERFORMED HEREUNDER OR ANY CONDUCT IN CONNECTION HEREWITH.
20. GOVERNING LAW: The Agreement shall be governed, construed, and enforced by the law of the State of California, without regard to the conflicts of law principles of such state. To the extent permitted by law, any legal action or proceeding arising under the Agreement shall be brought exclusively in the federal or state courts located in the Venue and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
21. FURTHER ASSURANCES: The parties hereby agree to execute such other documents and to take such other actions as may reasonably be necessary to further the purposes of the Agreement.
22. SEVERABILITY: In the event that any portion of the Agreement shall be judicially determined to be invalid or unenforceable to any extent, the same shall to that extent be deemed severable from the Agreement and the invalidity or unenforceable thereof shall not affect the validity and enforceability of the remaining portion of the Agreement. The remainder of the Agreement shall remain in full force and effect and shall be construed to fulfill the intention of the parties hereto.
23. ATTORNEYS’ FEES: In the event it shall be necessary for any party to institute legal action to enforce any of the terms, conditions or provisions contained herein, or for the breach hereof, the prevailing party as determined by the court in such action shall be entitled to receive actual reasonable attorneys’ fees and costs. The prevailing party shall be the party entitled to recover its costs of suit, regardless of whether such suit proceeds to final judgment.
24. NO GENERAL WAIVER: The failure of any party at any time to require performance of any provision or to resort to any remedy provided under the Agreement shall in no way affect the right of that party to require performance or to resort to a remedy at any time thereafter, nor shall the waiver by any party of a breach be deemed to be a waiver of any subsequent breach. A waiver shall not be effective unless it is in writing and signed by the party against whom the waiver is being enforced.
25. COUNTERPARTS; ELECTRONIC SIGNATURES: The Agreement may be executed in multiple counterparts by the parties hereto. All counterparts so executed shall constitute one agreement binding upon all parties, notwithstanding that all parties are not signatories to the original or the same counterpart. Each counterpart shall be deemed an original Agreement all of which shall constitute one agreement to be valid as of the date of the Agreement. Facsimile documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of the Agreement and all matters related thereto, with such facsimile, scanned and electronic signatures having the same legal effect as original signatures.

Published on October 30, 2014