Property Marketing Agreement Standard Terms

These Property Marketing Agreement Standard Terms (these “Standard Terms”) are applicable to and incorporated into the Property Marketing Agreement (the “Agreement”) which references these Standard Terms. All capitalized terms not defined herein shall have the meaning set forth in the Agreement. In the event of a conflict between the terms of the Agreement and these Standard Terms, the terms of the Agreement shall control. 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 or these Standard Terms, will remain in force and effect for each Property until the expiration of the applicable Marketing Period for such Property (the “Term”). If Seller and ADC mutually agree to include the Property in an Auction after the Marketing Period set forth in the Agreement, the Marketing Period shall automatically extend through the end of such Auction.
2. TERMINATION:
   
   1. Notwithstanding anything to the contrary in the Agreement or these Standard Terms, either party may terminate the Agreement: (i) immediately upon notice to the other party if such 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, in which case the Agreement shall terminate upon the date provided in such notice, provided that if any Property is then in the Marketing Period, such termination date shall be extended until the expiration of the Marketing Period for each such Property.
   2. Any liability incurred, or compensation or payment earned, during the Term of the Agreement or the Tail Period, as applicable (including, without limitation, compensation or payment for sale transactions entered into before, but that close after, the expiration or termination of the Agreement or the Tail Period, as applicable) 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) and Sections 10 – 26 of these Standard Terms shall each survive the expiration or termination of the Agreement.
3. REMOVAL OF PROPERTY: Notwithstanding anything to the contrary in the Agreement or these Standard Terms, either party may remove a Property 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 Property, (b) the occurrence of damage to the Property by fire or other casualty of a material nature, or (c) any material adverse change in the condition of the Property which renders the Property unsalable or substantially affects the marketability of the Property (each a “Material Adverse Change Removal”). ADC may also remove a Property from the Agreement (i) within fourteen (14) days after ADC’s receipt of the Purchase Agreement for the Property (if ADC’s form Purchase Agreement is not used), (ii) within fourteen (14) days after ADC’s receipt of the Due Diligence Materials (including any updates thereto) for the Property, or (iii) at any time if ADC discovers that the Due Diligence Materials for such Property 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; provided, however, that ADC and Seller shall reasonably cooperate with each other if a change in any Auction date is necessary.
5. PURCHASE AND SALE DOCUMENTATION: 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 within ten (10) calendar days after such Property 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 of the transaction documents used in the conveyance of any Property.
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 therein from Seller’s funds and proceeds in escrow.
7. OFFER PRICE: As used in the Agreement, the term “Offer Price” shall mean, as applicable, (a) the amount of any offer for the Property Seller accepts during the Marketing Period (exclusive of any Buyer’s Premium), or (b) the amount of any Tail Period Sale offer for the Property Seller accepts during the Tail Period.
8. SELLER REJECTION: If during the Marketing Period Seller receives an offer for the Property via ADC or the Website that is equal to or greater than the Reserve Price (a “Target Offer”), ADC is hereby authorized to notify such offeror that Seller has accepted such Target Offer and deliver to such offeror for execution the Purchase Agreement in the form previously approved by Seller. If (a) after such Target Offer offeror signs such Purchase Agreement Seller fails to timely countersign such Purchase Agreement (other than due to a Material Adverse Change Removal), or (b) Seller terminates a fully-executed Purchase Agreement entered into during the Marketing Period for a Property prior to the close of escrow (other than due to a Material Adverse Change Removal, the buyer’s default, or failure of a closing condition not resulting from Seller’s default) (in either case, a “Seller Rejection”), then in addition to any compensation owed ADC under the Agreement for such Seller Rejection, Seller shall indemnify, defend and hold harmless ADC against any claims brought by a buyer resulting from such Seller Rejection. The Reserve Price may be reduced at any time by Seller in Seller’s sole discretion; in the event Seller notifies ADC that Seller agrees to accept a below-Reserve Price offer for a Property (in Seller’s sole discretion), Seller shall be deemed to have lowered the Reserve Price to such offer amount.
9. 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.
10. 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 on behalf of Seller. Seller hereby authorizes ADC to enter bids on behalf of Seller up to the Reserve Price, unless otherwise prohibited by law.
11. INDEMNITIES: Each party hereto (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.
    
    Seller shall defend, indemnify, and hold harmless ADC, each person or entity deemed to control or be controlled by ADC, and their respective 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, proceeding, or investigation (a) in relation to Listing Broker’s acts or omissions as Seller’s listing broker in connection with the listing and sale of the Property, and (b) Claims brought by Listing Broker in connection with the listing and sale of the Property, including, without limitation, any claims of interference with or breach of any existing agreement between Seller and Listing Broker.
    
    The indemnification provisions hereunder shall survive termination and completion of performance as contemplated under the Agreement.
12. 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 delivered to the physical and electronic mail addresses set forth in the Agreement, or to such other addresses as either party may specify to the other in writing, by either: (a) personal delivery; (b) certified United States mail, return receipt requested; (c) a nationally recognized overnight courier service; or (d) electronic mail provided a copy of any such notice is also sent by one of the other foregoing means. All notices shall be deemed given upon receipt or upon the date such receipt is refused by the party receiving such notice.
13. CONFIDENTIALITY: Each party hereto (as applicable, the “Receiving Party”), for itself and all persons retained or employed by it, shall hold in confidence and not use or disclose to others any confidential or proprietary information of the other party (as applicable, the “Disclosing Party”) which may become known to the Receiving Party under the Agreement, except to the extent the 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 this paragraph, information shall not be deemed to be confidential if: (a) it is otherwise within the public domain, or (b) the Receiving Party has obtained such information from a source (other than the Disclosing Party or its employees or agents) which, to the Receiving Party’s knowledge, does not have a duty of confidentiality to any person or entity. Notwithstanding the foregoing, the Receiving Party may disclose any confidential information described herein to the extent it is reasonably necessary to defend itself from any threatened or potential claim, or in response to legal process (and the Receiving Party will endeavor to provide the Disclosing Party notice of such threatened or potential claim or legal process if legally permitted to do so).
14. ANNOUNCEMENTS: Either party may issue press releases or announcements regarding the Agreement or the marketing or sale of any Property, 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.
15. AUTHORITY: Each party represents and warrants that it is duly authorized to enter into the Agreement and perform its obligations thereunder. 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.
16. INDEPENDENT CONTRACTORS: The Agreement is intended to create an independent contractor relationship between ADC and Seller, and nothing in the Agreement shall be construed as creating an employer/employee, agency, or partnership relationship between the parties.
17. COMPLETE AGREEMENT; AMENDMENTS: The Agreement is the complete and exclusive agreement between the parties with respect to the subject matter contemplated thereby, superseding and replacing any and all prior or contemporaneous communications both oral and written, regarding that subject matter. No modifications to the Agreement shall be made or binding unless made in writing and signed by all parties to the Agreement.
18. 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.
19. 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, these Standard Terms, 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 thereunder, including, but not limited to, lost profits, even if such party has knowledge of the possibility of such damages. The maximum aggregate liability of ADC and the maximum aggregate amount which may be awarded to and collected by Seller (including, without limitation, for breach of any representation, warranty or covenant by ADC) in connection with the Agreement shall, under no circumstances whatsoever, exceed 300% of the compensation paid or payable to ADC under the Agreement.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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 in the Agreement, or for the breach thereof, 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.
25. 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.
26. 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, all of which shall constitute one agreement to be valid as of the Effective Date. Signatures scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of the Agreement and all matters related thereto, and shall have the same legal effect as original signatures.

Published on April 27, 2015