PLEASE REVIEW THESE TERMS CAREFULLY. BY SUBMITTING AN APPLICATION FORM, JOINING THE MOVOTO SELECT NETWORK OR OTHERWISE USING THE MOVOTO SERVICES, YOU ACCEPT THESE TERMS. ONCE ACCEPTED BY YOU, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND MOVOTO. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT: (i) SUBMIT AN APPLICATION, (ii) JOIN THE MOVOTO SELECT NETWORK, (iii) TEXT OR EMAIL WITH THE MOVOTO PLATFORM, OR (iv) USE THE MOVOTO SERVICES OR AGENT TOOLS.

1. Applicability; Overview.

• In General. These terms and conditions of service (these “Terms”) and any accompanying application submitted by you to Movoto (the “Application”) govern the provision of services by Movoto to you (the Terms together with the Application are referred to herein as the “Agreement”). Specifically, these Terms govern: (a) your participation in the Movoto Select Network (the “Movoto Select Network Membership”); (b) your use of the Agent Tools (defined below) including our phone-based, text-based and email services, any other desktop or mobile websites, including subdomains, or platforms through which Movoto makes its services available (the “Websites”), and any application program interfaces provided by Movoto (the “API”) and all associated services; and (c) receiving Referrals from Movoto and your obligation to pay Referral Fees to Movoto when Referrals close on a real estate transaction where you receive a commission (collectively, the “Movoto Services”). The Websites, the Agent Tools, the API and the Movoto Services are together herein referred to as the “Movoto Platform”. In these Terms, “we”, “us”, “our”, or “Movoto” refers to OJO Home LLC dba Movoto, a licensed real estate brokerage in Texas and all 49 other states and the District of Columbia with a business address of 1007 S. Congress, Building 9, Suite 400, Austin, Texas 78704, and the terms “you”, “your” and “user” will refer to the real estate broker (“Broker”) participating in the Movoto Select Network Membership and/or, as applicable, all agents (each, an “Affiliated Agent”) affiliated with such Broker during the Term and/or during any Referral Tail Period.

• Movoto Policies. You will use the OJO Platform subject to Movoto policies, guidelines, procedures, rules and regulations, including, but not limited to, all terms and conditions set forth in the Agent Handbook, standard codes of conduct, privacy policies, acceptable use policies, data security, and similar policies applicable to you that Movoto may implement and modify from time to time (collectively, “Policies”). The Policies are incorporated herein by reference. Movoto reserves the right to terminate this Agreement if you are in violation of any Policy.

• These Terms are a Binding Agreement. By joining the Movoto Select Network, or by otherwise using the Movoto Platform, you agree to be bound by these Terms, as updated from time to time. We may modify these Terms by posting revised Terms on our Website(s) including, without limitation, any mobile site from time to time without providing notification. All changes to the Terms are effective immediately as of the date such updated Terms are posted on the Movoto Platform. You are responsible for regularly reviewing these Terms and any applicable changes, as they are binding on you. Continued use of any aspect of the Platform after any changes take effect will constitute your acceptance of such changes. Unless stated otherwise, any new features or enhancements to the current Movoto Platform shall be subject to these Terms in addition to any Terms that may be applicable to particular parts of the Movoto Platform.

• These Terms Replace Any Prior Written Agreement. By continuing your membership in the Movoto Select Network and/or continuing to use the Movoto Platform, you agree that these Terms shall replace and supercede any prior or contemporaneous understandings, agreements, negotiations and communications, both written and oral, and any written agreement entered into by you and Movoto (e.g., any other master broker referral agreement) prior to the Effective Date of these Terms is hereby amended and restated in its entirety and is replaced by these Terms.

• Use on Behalf of Organizations. If you are using the Movoto Platform on behalf of an organization, then you are agreeing to these Terms for that organization and promising to Movoto that you have the authority to bind that organization to these Terms (and, in which case, the terms “you” and “your” or “user” will also refer to that organization).

• Your Consent to Receive Emails, Calls and Text Messages. By joining the Movoto Select Network and/or using the Movoto Platform, you agree and expressly consent to receive communications, including, but not limited to, email messages, phone calls, push notifications, and text messages from us and our affiliates and partners. By joining the Movoto Select Network and/or using the Movoto Platform, you expressly authorize Movoto, its affiliated companies and its partners and each such entity’s employees, contractors and software (collectively, “Service Provider(s)”) to communicate with you by email, phone and text at the email address and/or wireless phone number provided or any other email address or number that you may provide in the future. You understand that message and data rates may apply to text messages based upon the terms of your wireless service provider contract. You also agree that methods of contact may include use of auto-generated email or text messages or an automated telephone dialing system, even if you’ve registered that number on a Do-Not-Call registry. In the regular course of our service to you, we may monitor and record telephone conversations made or received by our employees or partners. You agree that we will have this right with respect to all telephone conversations between you and our employees or partners, whether initiated by you or any of our employees or partners. If you do not consent to receive these emails, texts or calls, do not join the Movoto Select Network or use the Movoto Platform or provide your information to us.

• Links to Third-Party Sources. The Platform may contain links to third-party websites or resources. Such third-party sources may be subject to different terms and conditions and privacy practices. Movoto is not responsible or in any way liable for the availability or accuracy of such third-party services, or the content, products or services available from such third-party services.

2. Movoto Select Network Program Membership.

(a)        Subject to these Terms, Movoto agrees to make available and Broker and Affiliated Agent agrees to participate in Movoto’s national network of real estate brokers and agents (the “Movoto Select Network” or “The Select Network”).

(b)        Broker agrees to these Terms on behalf of itself and all of its Affiliated Agents and understands and accepts that Broker is jointly and severally responsible with its agents for any Referral Fees payable to Movoto.

(c)        Broker shall participate in the Movoto Select Network on a non-exclusive basis for the purpose of assisting consumers, whether individuals or entities or relatives or affiliates or co-buyers with such consumer, referred by Movoto to Broker and/or one of its agents (each, a “Referral”) with real estate transactions (“Real Estate Services”), which such Real Estate Services may include (i) placing a Referral’s home on the multiple listing service and/or other listing databases in which Broker participates and assisting Referrals in selling property; and (ii) helping Referrals find a suitable property to purchase or lease.

(d)        By Broker participating in the Movoto Select Network, Movoto may connect Broker with one or more Referral(s) to see if Real Estate Services can be provided to such Referral. Broker will use best efforts, in good faith, to provide such Real Estate Services to each Referral, regardless of each Referral’s particular circumstance. Notwithstanding anything herein to the contrary and for the avoidance of doubt, there is no minimum amount of Referrals that Movoto is obligated to make to you.

(e)        As between Movoto and you, Movoto will own all right, title, and interest (including, without limitation, all copyrights, trade secrets, patents, trademarks, and any other intellectual property or proprietary rights) in and to any Referrals. As the owner of the Referrals, Movoto retains the right to use the Referrals and Referral data as it deems fit, in its discretion, for Movoto’s own business purposes.

(f)         By participating in the Movoto Select Network and accepting Referrals, Broker agrees: (i) to maintain the confidentiality of the Referral’s information whether provided by Movoto or the Referral to the extent required by any law or regulation, including as required by Movoto’s privacy policy, including the California Consumer Privacy Act, as applicable; (ii) that Movoto’s responsibility is solely to provide Broker with contact and background information about the Referral and to monitor Broker’s delivery of Real Estate Services to those Referrals and that Movoto does not have any obligation to provide real estate brokerage services to any Referrals; and (iii) to not interfere with business relationships of Referrals and any settlement service providers Movoto has introduced to such Referral.

(g)        As more particularly set forth in the Movoto Select Network guidelines and methods established by Movoto, including without limitation the Movoto Select Network Agent Handbook then in effect (the “Agent Handbook”), as amended from time to time, Broker shall provide Movoto detailed reports of activities regarding the Real Estate Services and keep Movoto informed about the current status of all Referrals. Upon closing a real estate transaction with a Referral, Broker agrees to provide Movoto with the closing statement, commission distribution authorization form, or other applicable document acceptable to Movoto detailing the transaction no later than ten (10) days following the closing date.

(h) Notwithstanding anything herein to the contrary, if Movoto determines, in its sole and absolute discretion, that Broker or an Affiliated Agent is not providing a Referral with a sufficiently appropriate level of service, upon notice to Broker or such Affiliated Agent, Movoto may freely, and without any liability to Broker or Affiliated Agent, (i) refer such Referral to another real estate broker or agent, and/or (ii) terminate Broker’s participation in the Movoto Select Network.

3. Referral Acceptance by Broker. When Movoto informs Broker and/or one of Broker’s Affiliated Agents that a Referral is available, Broker directly or indirectly through one of its Affiliated Agents will be given the opportunity to accept or decline the Referral. “Referral Acceptance” is when Broker or an Affiliated Agent accepts a Referral via the Agent Tools or other electronic, written or verbal acknowledgement to Movoto. Broker acknowledges that its Affiliated Agents have authority to accept a Referral on Broker’s behalf and that such Affiliated Agent may deliver the Referral Acceptance on Broker’s behalf and such Referral Acceptance shall be binding on Broker and its Affiliated Agents. By accepting a Referral as described above, Broker acknowledges and agrees that receipt of the Referral and any data provided by Movoto regarding the Referral is governed by the terms of this Agreement.

Within seven (7) days following Broker’s or Affiliated Agent’s receipt of a Referral (the “Review Period”), Broker or Affiliated Agent will notify Movoto of any Preexisting Relationship that Broker or Affiliated Agent has with such Referral. For purposes of this Agreement, “Preexisting Relationship” means active two-way communication between the Referral, on the one hand, and Broker or Affiliated Agent, on the other hand, within the sixty (60) days prior to the date the Referral was sent to the Broker or Affiliated Agent. If notice of a valid Preexisting Relationship is provided to Movoto within the Review Period, Broker shall not have an obligation to pay Movoto a Referral Fee (as defined below) under this Agreement with respect to such Referral.

4. Agent Tools. Subject to and conditioned on Broker’s and Affiliated Agents’ compliance with the terms and conditions of this Agreement, Movoto hereby grants Broker and its Affiliated Agents a limited, non-exclusive, non-transferable, revocable license to access and use certain technology for the Movoto Select Network and Referral management (the “Agent Tools”) during the Term, solely for Referral management in accordance with the terms of this Agreement. Such use is limited to Broker’s and Affiliated Agents’ internal use. This license shall immediately terminate upon any expiration or earlier termination of this Agreement. Broker acknowledges that (a) the Agent Tools and related information are protected by intellectual property laws; and (b) except as expressly granted in this Agreement, neither Broker nor any of its Affiliated Agents are acquiring any rights in any Movoto intellectual property. Neither Broker nor any of its Affiliated Agents shall (a) sell, transfer, or disclose the Agent Tools to other persons or entities; or (b) provide log-in information or a sublicense to any other person or entity for use of the Agent Tools. Links to any third-party services in the Agent Tools are not endorsements by Movoto. While Movoto attempts to continuously maintain and make updates to its Agent Tools, Movoto cannot guarantee continuous and uninterrupted availability and accessibility to the Agent Tools. Movoto may, from time to time, restrict the availability of the Agent Tools or certain areas or features thereof to secure the integrity of the services offered or to carry out maintenance of the services to ensure proper and improved functionality to the Agent Tools. Movoto may improve, enhance or modify the Agent Tools and introduce new services from time to time. ACCESS TO THE AGENT TOOLS AND PLATFORM AND THE MOVOTO SERVICES THEMSELVES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, MOVOTO MAKES NO WARRANTY OF ANY KIND THAT THE MOVOTO SERVICES OR MOVOTO PLATFORM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET BROKER’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN BROKER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

5. Referral Fees. Broker understands and agrees that Movoto has expended significant time and resources to source, obtain and nurture the Referrals. If a Referral either (i) enters into a contract for the purchase or sale of a home during the Referral Tail Period or (ii) closes on the sale or purchase of a home during the Referral Tail Period, (both (i) and (ii) referred to as the “Fee-Eligible Referrals”) and Broker (or one of its Affiliated Agents) at any time receives one or more real estate commissions (buy-side, sell-side, or both) from any and all real estate transactions involving or resulting from such Referral , then Broker will pay Movoto a “Referral Fee” of up to 35.00% (the “Referral Fee Percentage”) of the Gross Commissions as compensation for introducing the Broker (and/or one of its Affiliated Agents) to the Referral because without such introduction, whether directly or indirectly, the real estate transaction may not have occurred. For purposes of this Agreement, “involving or resulting from” a Referral includes real estate transactions in which the Referral is a party, as well as real estate transactions in which a relative or other affiliate of the Referral is a party. The “Referral Tail Period” means the thirty (30) months following the most recent date the Referral is deemed accepted (the “Referral Tail Period Trigger Date”) by the Broker or one of its Affiliated Agents (as evidenced by the Referral Acceptance). For the avoidance of doubt: (a) a single closed real estate transaction can include both the buy-side and sell-side, and in such cases the Referral Fee shall be due and payable from each side of a closed real estate transaction with Fee-Eligible Referrals. “Gross Commission” is the amount that a broker is eligible to receive as stated in the closing document including any bonuses paid to an agent for client-side real estate brokerage services and real estate agency services of any and all real estate transactions (including subsequent lease commissions on a property sold) involving an Movoto-sourced Referral for the Referral Tail Period. Gross Commission (a) is not reduced by any discounts or commission reduction Broker may extend to a Referral; and (b) excludes any commissions for other real estate settlement services. The Referral Fee shall be calculated as the greater of (i) the Referral Fee Percentage of the actual Gross Commission received; and (ii) the Referral Fee Percentage of 2.0% of the total sales price of such real estate transaction. This Section 5 shall survive any expiration or termination of this Agreement. If (a) a Referral is released back to Movoto, or (b) an Affiliated Agent indicates to Movoto that they are no longer working with a Referral, or (c) there has been no active two-way communication between the Referral, on the one hand, and Broker or Affiliated Agent, on the other hand, for a period of one hundred twenty (120) consecutive calendar days, then OJO may (subject to confirming there is no buy-side or listing agreement existing between the Referral and Broker) freely, and without any liability to Broker, refer such Referral to another real estate broker or agent.

6. Payment Terms.

(a)        Referral Fees shall be remitted promptly following the consummation of transaction with such Referral, but in no event later than ten (10) days following such transaction. A copy of the closing statement, commission distribution authorization form, or other applicable statement detailing the transaction shall be included for Referral Fee verification purposes. Payment shall be made in accordance with the payment instructions as set forth in the Movoto Handbook.  

(b)        Under no circumstances shall payment to Movoto be delayed, subject to other liens, or be discounted for any reason. Referral Fees owed to Movoto are not impacted, reduced or waived due to any other referral fee, commission or other payment that the Broker or one of its Affiliated Agents may owe to another third party based on an Movoto Referral’s real estate transaction.

(c)        If Broker fails to make any payment of Referral Fees when due, without limiting Movoto’s other rights and remedies: (i) Movoto may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Broker shall reimburse Movoto for all costs incurred by Movoto in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; (iii) if such failure continues for forty-five (45) days or more, upon written notice to Broker (email to suffice), Movoto may suspend Broker’s and any and all Affiliated Agent’s access to any portion or all of the Movoto Services until such amounts are paid in full; and (iv) if such failure continues for seventy-five (75) days or more, upon written notice to Broker (email to suffice), Movoto may refer such matter to a collection agency or our attorney.

7. Transfer of Referrals. Broker shall not transfer a Referral to another broker and/or unaffiliated agent. If Broker is unable or unwilling to continue with the Referral, Broker shall advise Movoto in writing and Movoto shall have the right to transfer the Referral to another broker and/or agent. If, at any time, Broker receives any Gross Commission in connection with a Fee-Eligible Referral, Movoto is entitled to, and Broker agrees to pay, the applicable Referral Fee on such Gross Commission received by Broker. The obligation for Broker to pay Referral Fees under these Terms is not waived, forgiven, or nullified upon the termination of an agent’s employment or contractor relationship with Broker. For the avoidance of doubt, and by way of illustration only: (a) if the Affiliated Agent that initially received a Referral is no longer affiliated with Broker at the time Broker receives any Gross Commission in connection with such Referral, Broker is obligated to pay the Referral Fee on the amount of Gross Commission actually received by Broker; or (b) if the Affiliated Agent that initially received a Referral is no longer affiliated with Broker and Broker does not receive any Gross Commission in connection with such Referral, Broker is not obligated to pay a Referral Fee.  

8. Term and Termination.

(a)        This Agreement shall commence on the Effective Date and shall continue until it is terminated by either Broker or Movoto in accordance with this Section 8 (the “Term”).

(b)        Broker may terminate this Agreement by giving written notice to Movoto at least thirty (30) days prior to the desired termination date. Movoto may terminate this Agreement, in whole or in part, immediately with or without cause upon notice to Broker. In addition, Movoto may, at any time, immediately and without notice, terminate this Agreement, in whole or in part, and/or stop providing access to the Agent Tools for any or no reason at all, including if (i) you have materially breached your obligations under this Agreement, our Policies or Standards, (ii) you have violated applicable laws, regulations or third party rights, or (iii) Movoto believes in good faith that such action is reasonably necessary to protect the personal safety or property of Movoto, its users, or third parties (for example in the case of fraudulent behavior).

(c)        If the Agreement is terminated, Broker will pay Movoto the Referral Fees upon close and funding of any Referral that Movoto provided to Broker or one of Broker’s Affiliated Agents through the conclusion of any applicable Referral Tail Period.

(d)        Broker affirms that the payment obligations set forth in Section 6 shall survive any termination of this Agreement.

9. Representations and Warranties of Broker and Movoto. Broker and Movoto hereby represent and warrant to each other as follows:

(a)        Movoto is a licensed broker in the state of Texas and Broker and each of its Affiliated Agents are licensed real estate brokers/agents in each state where they perform Real Estate Services. Each Party shall maintain such licenses in good standing throughout the duration of this Agreement and any Referral Tail Period. Each Party shall immediately notify the other Party if it receives a regulatory complaint against such Party or one of Broker’s Affiliated Agents or if Broker or one of Broker’s Affiliated Agents is not in good standing with any licensing authority, as applicable.

(b)        Any Party disclosing data to another Party pursuant to this Agreement warrants that such disclosure is made in compliance with all applicable laws.

10. Additional Representations of Broker. Broker and each of its Affiliated Agents hereby represent and warrant to Movoto as follows:

(a)        Broker is an equal opportunity employer that does not and will not discriminate in employment and personnel practices (including hiring, transferring and promotion practices) on the basis of race, sex, age, disability, religion, national origin, color, sexual orientation, or any other basis or characteristic prohibited by law. There are and have been no unfair labor practice complaints against Broker in connection with its business which materially affect the business of Broker.

(b)        Broker will comply with all applicable laws and regulations in performing this Agreement, including without limitation the limits and restrictions on payments for referrals for other real estate settlement services under applicable Law. Broker and each of its Affiliated Agents shall comply with all fair housing laws, rules, and regulations including without limitation the Fair Housing Act, Title VIII Civil Rights Act of 1968, 42 USC 3600, et seq.

(c)        All information provided to Movoto is accurate and in the event Broker’s or Affiliated Agent’s contact information, status of licensure, or brokerage relationship changes, Broker and/or Affiliated Agent (as applicable) will notify Movoto immediately.

(d)        Broker understands and agrees that Movoto does not have any responsibility to provide any services to Broker or any of its Affiliated Agents beyond the introduction to the Referral.

(e)        Broker understands and agrees, on behalf of itself and its Affiliated Agents, that any direct Referral may carry inherent risk, and by participating in such services, you choose to assume those risks voluntarily. You freely and willfully assume those risks by choosing to participate in those services. You assume full responsibility for the choices you make before, during and after your participation with a Referral.

11. Communication and Notices. All notices must be in writing and will be deemed given only when sent by first class mail (return receipt requested), hand-delivered or sent by documented overnight delivery service to the Party to whom the notice is directed, at its address indicated on the signature page for Broker and Agent and to the following for Movoto:

OJO Home LLC dba Movoto

1007 S Congress

Building 9, Suite 400

Austin, Texas 78704

Attn: Legal Department

With a copy to: legal@ojo.com

Any Party may change its address for notices by sending a change of address notice using this notice procedure.

12. Confidential Information.

(a)        Each Party will maintain the confidentiality of any information that is received from the other Party and is confidential. Neither Party shall use any other Party’s Confidential Information except as permitted by this Agreement. Each Party shall (i) use the other Party’s Confidential Information only for the purpose of performing its obligations under this Agreement, (ii) hold the other Party’s Confidential Information in confidence, and (iii) not disclose such Confidential Information to any persons other than those employees and/or agents who have a business-related need to have access to such Confidential Information in furtherance of the limited purposes of this Agreement and who have been apprised of, and agree in writing to maintain, the confidential nature of such information in accordance with the terms of this Agreement. Each Party shall be responsible for the breach of this Agreement by any of its employees and/or agents. “Confidential Information” means, without limitation, (i) the information constituting the Referral, including nonpublic personal information of any consumer, (ii) nonpublic information that (A) a Party designates as being confidential, (B) under the circumstances surrounding disclosure should be treated as confidential, or (C) by reason of its nature would be treated as confidential by a reasonable person; (iii) information that is subject to privacy or confidentiality restrictions to under any law or regulation, including Title V, Subtitle A of the Gramm-Leach-Bliley Act or any of its amendments; and (iv) information that is subject to privacy or confidentiality restrictions under the a Party’s privacy policy. “Confidential Information” includes, without limitation, information in tangible or intangible form relating to and/or including a Party’s business policies, trade secrets or practices, financial data, customer data, and information received from third parties that a Party is obligated to treat as confidential. Movoto’s Confidential Information shall also include the existence of this Agreement and its content.

(b)        Broker shall comply with all privacy and data protection laws, rules, and regulations applicable to the information disclosed by Movoto pursuant to this Agreement or in connection with any Real Estate Services.

13. Indemnification. Broker shall defend, indemnify and hold Movoto, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each, an “Movoto lndemnitee”) harmless from and against all claims, damages, losses, suits, actions, demands, proceedings, expenses, and liabilities of any kind, (including reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or filed (collectively, “Claims”) against any Movoto lndemnitee, to the extent that such Claims arise out of or relate to Broker’s (and its Affiliated Agents’) duties or responsibilities as contemplated under this Agreement involving (i) bodily injury or death to any person, (ii) loss, disappearance, or damage to property, (iii) any breach or alleged breach of any warranty or representation made by Broker under this Agreement, (v) compliance with applicable law and/or (vi) any act or omission to act of Broker or its Affiliated Agents, except to the comparative extent that such Claims result from the gross negligence or willful acts of Movoto.

14. LIMITATION OF LIABILITY. EXCLUDING INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 ABOVE, MATTERS INVOLVING CLAIMS OF GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, VIOLATIONS OF APPLICABLE LAW OR DAMAGES ARISING FROM BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILI TY.

15. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Austin and County of Travis, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. However, if suit is brought by a third party against a Party regarding which the terms of the Indemnification provisions herein would apply, that sued Party may implead or counterclaim against the other Party in that action, even if not in Travis County, Texas, in order to enforce the terms of such indemnification. In any action brought under this Agreement, each party shall bear its own costs and expenses, including attorneys’ fees.

16. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY ORDER FORM, EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (II) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) IT MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND (IV) IT HAS DECIDED TO ENTER INTO THIS AGREEMENT IN CONSIDERATION OF, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

17. General Provisions.

(a)        Cooperative Brokerage Referral Agreement. This Agreement is a cooperative brokerage referral agreement between Movoto and Broker pursuant to 12 U.S.C. § 2607(c)(3) and 12 CFR § 1024.14(g)(1)(v).

(b)        Assignment. This Agreement, including all amendments and exhibits, shall inure to the benefit of and be binding upon the successors and permitted assigns of the Parties. Broker may not assign its rights or obligations hereunder without the prior written permission of Movoto, and any attempted assignment shall be void. Movoto may assign its rights or delegate its obligations, in whole or in part, without the consent of Broker to one or more of its affiliates or an entity that acquires all or substantially all of the business or assets of Movoto to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, operation of law, or otherwise.

(c)        Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior understandings and agreements, written or oral, with respect to the subject matter hereof.

(d)        Survival. The Parties shall continue to be bound by those provisions of this Agreement which by their nature survive expiration or termination, including but not limited to: Section 1 through 7, and 11-17.

(e)        Media. Broker may not, without the prior written consent of Movoto, issue any media release, public announcement, or make any public disclosures relating to this Agreement, including, without limitation, promotional or marketing material, but not including any announcement intended solely for internal distribution by a Party, or any disclosure required by applicable law. Notwithstanding the forgoing, Movoto has the right to use, without additional consideration, Broker’s and any of its Affiliated Agents’ testimonials, images, logos, likeness, or voice to market Movoto’s services, brand, products, or affiliates. Broker and/or Agent further consent that Broker’s and each of its Affiliated Agent’s name and identity may be revealed therein or by descriptive text or commentary.

(f)         Waiver. Any waiver by a Party of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision. Any failure to enforce strict performance of any provision of this Agreement shall not be construed as a waiver or relinquishment of the right to enforce strict performance on any future occasion.

(g)        Independent Parties. The Parties acknowledge that their relationship is that of independent contractors. Nothing contained in this Agreement shall be deemed to create a joint venture or partnership relationship. Broker acknowledges that Broker and its Affiliated Agents are not Movoto employees. Broker is required to pay and it is Broker’s responsibility to pay all applicable taxes including federal and state income tax on any fees that are paid to Broker by a Referral. Broker will also be responsible for all expenses and payments related to activities detailed within this Agreement including compensating Broker’s Affiliated Agents. The Parties enter into this Agreement as independent contractors to each other and nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, or franchise or joint venture relationship among or between the Parties or among or between one Party and the other Party’s Representatives.

Last Updated: April 5, 2024