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ASSOCIATE
AGREEMENT |
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RECITALS
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WHEREAS, HLR through the expenditure of time, skill, effort and money has developed a distinctive system of setting up a business to facilitate real estate transactions nationwide and the services related thereto.
WHEREAS, Agent is desirous of the business of soliciting and initiating real estate transactions for their prospective customers.
WHEREAS, HLR has offered to Agent compensation as set forth under the terms and conditions contained in this Agreement and Agent is desirous of being affiliated with HLR on such terms and conditions as hereinafter set forth.
WHEREAS, Agent and HLR acknowledge and agree the association and affiliation between Agent and HLR is on a exclusive basis in that, representation of the real estate brokers by Agent during the term of this Agreement, other than business relationship with those real estate brokers while employed by HLR and working on behalf of HLR, constitutes violation of this Agreement and shall be considered a repudiation and termination of the Agreement by Agent.
NOW THEREFORE, in consideration of the above recitals, the mutual promises and agreements contained herein are mutually agreed as follows: |
SECTION ONE |
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RELATIONSHIP AND DUTIES |
A. Scope and Duties: Agent shall and hereby does associate him/herself with HLR for the purpose of securing qualified buyers and/or sellers in real estate transactions who will apply to HLR to facilitate the real estate transaction(s) to closing. Agent shall use the means and manner by which those duties shall be performed, as approved and prescribed by HLR’s guidelines and procedures. Agent agrees to comply with all rules, regulations, guidelines, instructions, and procedures, either now in existence or issued from time to time.
B. Professional Standards: Agent will perform his/her duties under this Agreement in accordance with the laws of the state of his/her residence, the United States and any other applicable federal and state and/or municipal laws ‘rules and regulations. In particular, Agent covenants that he or she shall comply with the Federal Equal Credit Opportunity Act, the Real Estate Settlement Procedures Act, Private Policy Act and all federal and state regulatory rules and regulations.
C. Representation of Agent: Agent agrees that he/she is not authorized to bind HLR in any agreements including, but not limited to agreements for advertising, marketing, promotions, etc. unless specifically authorized in writing by HLR in writing prior to the execution of such agreements. Agent agrees that all promotional material used referencing HLR must be approved by HLR prior to its distribution and unless otherwise agreed upon in writing by HLR, the cost of the promotional material will be the sole responsibility of the Agent.
D. Fiduciary Responsibilities: Agent hereby acknowledges and agrees that Agent is responsible for obtaining all licenses and/or permits required by law to perform the duties set forth in this Agreement.
E. Advertising and Marketing: Agent shall have the authority to represent HLR by business cards, advertisements, or other media documents approved by HLR. Agent shall not engage in any advertising or any media marketing materials that are not approved by HLR.
F. Other Business Activities: Agent may engage in other business activities to the extent such other activities do not interfere or conflict with Agent’s affiliation with HLR. Notwithstanding the term of this agreement, Agent shall not be associated with, or representative of, or enter into any agreement of any kind with any real estate companies except on behalf of HLR.
G. Sale Contracts: HLR shall have the sole discretion of determining which parties or companies it is consider brokering the business to or do business with.
H. Expenses: Agent shall be responsible for all of his/her own expenses, including but not limited to travel, entertainment, education, dues, subscriptions, license, etc., incurred as a result of his or her performance pursuant to this Agreement.
I. Licenses: Agent shall, if required by state law, obtain the appropriate real estate license(s) or permits in each jurisdiction in which Agent solicits, offers or obtains proposed real estate transactions. Agent will bear the cost of all initial and renewal fees for licensing and registrations. Agent shall comply with the terms, conditions, and restrictions on use contained in any and all licenses or other contractual agreements between third party owners of nay computer software and HLR, pursuant to which HLR has obtained the right to use such computer software. Agent further agrees to comply with the terms of any license or other contractual agreement into which Agent is required to enter with any third party computer software company.
J. Records: Agent shall follow HLR’s guidelines and policies to maintain accurate and current records of all transactions entered into pursuant to this Agreement. Such books and records shall conform to the requirements of federal and state laws, the rules and regulations of appropriate regulatory agencies and the policies and procedures of HLR. Agent shall maintain an accurate and current file of all commission statements and other records and correspondence received from HLR. Agent agrees to notify HLR in writing within thirty (30) days after HLR making available such statements, records and correspondence, or any of them is inconsistent with Agent’s records or, in the opinion of Agent, not accurate.
K. Background Information: Originator agrees that HLR shall have the right to run credit, employment and other financial and background investigations on Agent at the time HLR deems useful, whether such investigation is conducted by HLR or by an outside service or third party. Agent consents to such investigations and consents to the disclosure of any person or entity to HLR of any financial, background and employment information conducted by HLR or by an outside service or third party.
L. Photograph: The Agent irrevocably consents to and forever authorizes the use by HLR or anyone authorized by HLR, its legal representatives or assigns, the absolute and unqualified right to use all photographs in which the Agent has appeared for HLR and reproductions thereof, in which the Agent has been included in whole or part, made through any media without, in which the Agent has been included in whole or part, made through any media without inspection or approval of the finished product or use to which it make adaptation of said material of every and any kind and character. Agent may transpose, add to, and subtract from such photographs and reproductions to such extent as Agent, in its sole discretion, may desire, and in any form and upon any and all adaptations thereof to renew such copyrights. The Agent releases and discharges HLR, its assigns, agents, or licensees from any and all claims and demands that the Agent may have, which arise out of or in connection with the use of such photographs or reproductions, including but not limited to, any and all claims of libel, slander, and invasion of privacy. |
SECTION TWO |
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GENERAL COVENANT |
| In the course of Agent’s past and future relationship with HLR, and because of the nature of Agent’s responsibilities, Agent has previously acquired, and may in the future acquire additional, valuable trade secrets, proprietary data and other confidential information (collectively, “Confidential Information”) with respect to HLR’s customers, competitors and business. Such trade secrets, proprietary data and other confidential information include but are not limited to the following: HLR’s existing and contemplated services, products, business and financial methods and practices, plans, pricing, selling techniques, computer hardware and software systems, and special methods and processes involves in providing services, lists of HLR present and prospective customers, methods of obtaining customers, credit and personal financial data of the HLR’s present and prospective customers, particular business requirements of HLR’s present and prospective customers. In addition, Agent on behalf of HLR, has developed, and may in the future further enhance or develop, personal acquaintances and relationships with HLR’s present and prospective customers, which acquaintances relationships may constitute HLR’s only contact with such persons or entities. As a consequence thereof, the parties agree that Agent occupies or will occupy a position of trust and confidence with respect to HLR’s affairs and its products and services. In view of the foregoing and in consideration of the remuneration to be paid to Agent and for his relationship, Agent acknowledges and agrees that it is reasonable and necessary for the protection of the goodwill and business of HLR that Agent make the covenants contained in Section Three herein regarding the conduct of Agent during and subsequent to relationship with HLR, and that HLR will suffer irreparable injury if Agent engages in conduct prohibited thereby. Agent represents that observance of the aforementioned covenants will not cause Agent any undue hardship nor will it unreasonably interfere with Agent’s ability to earn a livelihood. The covenants contained herein shall each be construed as a separate agreement independent of any other provision of this Agreement, and the existence of any claim or cause of action of Agent against HLR, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by HLR of any of those covenants. |
SECTION THREE |
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CONFIDENTIALITY; COVENANT NOT TO COMPETE |
A. Acknowledgments by Agent. In consideration of the willingness of HLR to associate itself with the Agent in further consideration of all compensation to be paid to Agent by HLR under the terms and conditions of this Agreement, Agent agrees as follows:
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(1) HLR would not have entered into this Agreement if Agent had not agreed to the terms and provisions of this Section; (2) the covenants not to compete set forth in this Section are fair and reasonable, and will not impose any undue hardship on Agent, because Agent has other considerable skills, experience and education which afford Agent the opportunity to derive income from other endeavors; (3) the information provided by HLR to Agent is confidential to HLR, and constitutes a valuable, special and unique asset of HLR, with respect to which HLR is entitled to the protections afforded by this Section and to the remedies for enforcement of this Section provided by law or in equity (including, without limitation, those remedies the availability of which may be within the discretion of the court or arbitrator that presides over any action for enforcement of this Section). |
B. Confidential Information.
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(a) Except in the normal and proper course of performing Agent’s duties and exercising Agent’s rights, Agent and Agent’s owners, officers, directors and Affiliates, shall not use for their own account or in any other business, any Confidential Information which Agent may obtain from HLR, its agents, representatives, employees or Affiliates, or otherwise by virtue of Agent’s association with HLR. (b) Agent shall hold in strict confidence, and shall not disclose to any Person (other than Agent and its employees and agents), any Confidential Information. Confidential Information may only be divulged with the direct written consent of the President of the HLR or if required by a court of law or administrative tribunal, and then only with sufficient prior notice to HLR to enable HLR to seek a protective order. (c) The foregoing obligations materially affect the successful conduct of the business of HLR and its goodwill. Any breach of the terms of this Section shall constitute a material breach of this Agreement, and, without limitation on other remedies available to HLR, shall constitute immediate grounds for (1) termination of this Agreement and (2) retention by HLR of all sums owed to Agent by HLR. (d) Upon expiration or termination of this Agreement for any reason, Agent shall remain bound by the provisions of this Section. |
C. Return of Confidential Information. Promptly after the termination of the relationship with HLR for any reason and whether or not pursuant to an relationship agreement, Agent will deliver to HLR all originals and copies of all Confidential Information, including but not limited to memorandums, borrowers lists, samples, records, documents, computer programs, computer hard drives and backup drives and other materials requested by HLR which he has obtained from HLR while serving in any such capacity
D. Reasonable Assurances. Agent further agrees to do all things reasonably necessary, including implementation of those procedures which may be contained in the Confidential Operations Manuals, to prevent any of the employees, representatives, agents and Affiliates of Agent from disclosing any Confidential Information to any Person, including requiring each employee, representative, agent and Affiliate of Agent to sign a non-disclosure agreement in a form approved by HLR before being authorized by Agent to have access to such information.
E. Covenant Not to Compete. Agent agrees that (i) during the Term of this Agreement and within a geographic area including the entire United States of America and (ii) for Two (2) years following the expiration or termination of this Agreement and within a geographic area including each Territory granted to Agent and Five (5) miles from radius from HLR’s offices the Agent was working:
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(1) Agent shall not, either directly or indirectly, for himself, or through, on behalf of, or in conjunction with any other Person or cause any other Person to do any of the following: (a) divert or attempt to divert any business or client’s of HLR to any competitor, by direct or indirect inducement or otherwise; (b) employ or seek to employ any Person who is at that time employed by or affiliated with HLR or by any other Agent of HLR, or otherwise directly or indirectly induce or seek to induce such Person to leave his or her employment with HLR; or (c) own, maintain, engage in, be employed by, advise, assist, invest in, franchise, make loans to or have any interest in any business (including any business operated by Agent prior to entry into this Agreement) specializing, in whole or in part, in providing services and products the same as or similar to any of those offered, sold or provided through HLR or the business of the HLR. (2) Agent shall not engage in any business or be involved in any operation of the same nature as, or of a similar nature to HLR, including the offering of products and/or services which may be reasonably construed as essentially undifferentiated from those products and or services offered, or actively planned to be offered, by HLR. (3) Agent shall not accept employment, consult for or participate, directly or indirectly, in the ownership or management of any enterprise engaged in a business similar to or the business of HLR. (4) Neither Agent, nor any Person with whom Agent is at the time affiliates, shall directly or indirectly, hire or offer to hire or entice away or in any manner persuade or attempt to persuade any officer, employee, agent, representative, supplier or customer of HLR of its Affiliates, or otherwise to discontinue his or her relationship with HLR. (5) Agent agrees to do all things reasonably necessary to prevent any employees, representatives and agents of Agent from competing with HLR or taking any other action in contravention of this Section including requiring each employee, representative and agent to sign a covenant not to compete in a form approved by HLR before becoming employed by Agent. |
F. Remedies. The parties hereto hereby agree that if Agent violates or threatens to violate any of the provisions of this Section it would be difficult to determine the entire cost, damage or injury which HLR would sustain. Accordingly, Agent acknowledges that if he violates or threatens to violate any of the provisions of this Section HLR may have no adequate remedy at law. In that event, HLR shall have the right, in addition to any other rights that may be available, to obtain in any court of competent jurisdiction injunctive relief to restrain any violation or threatened violation by Agent of any provision of this Section or to compel specific performance by Agent of one or more of his obligations under this Section. The seeking or obtaining by HLR of such injunctive relief shall not foreclose or in any way limit their right to obtain a money judgment against Agent for any damage that may result from any breach by the Agent of any provision of this Agreement.
G. Reformation of Covenants. Agent acknowledges that the covenants contained in Section are reasonable in geographical and temporal scope and in all other respects. If any court determines that any of such covenants, or any part thereof, are unenforceable, then (1) the remainder of such covenants shall not be affected by such determination and (2) those of such covenants that are determined to be unenforceable because of the duration or scope thereof shall be reformed by the court to reduce their duration or scope only to the least extent required to render the same enforceable against the Agent.
H. Non-Solicitation of Customers. Notwithstanding any other Section or provision of this Agreement, during Agent’s relationship with HLR, and for a period of two (2) years following termination of Agent’s relationship with HLR for any reason whatsoever and within the reasonable geographical territory of five (5) miles radius from HLR’s office the Agent was assigned and except in the good faith furtherance of the interests of HLR, Agent will not, without the express written consent of HLR, contact prospective customers or existing HLR members that the agent has come to know because the relationship with HLR, including any person, firm, association or corporation. Agent will not directly or indirectly make any such contact, either for his benefit or for the benefit of any person, firm, association or corporation to make any such contact.
I. Non-Interference. Notwithstanding any other Section or provision of this Agreement, during Agent’s relationship with HLR, and for a period of two (2) years following termination of Agent’s relationship with HLR for any reason whatsoever, Agent shall not induce or encourage, directly or indirectly, (i) any Agent of HLR to leave his or her relationship, or to seek relationship with anyone other than HLR, unless it has been determined by HLR that such Agent’s performance or other characteristics or circumstances are such that Agent’s leaving HLR is in the best interests of HLR, or (ii) any Borrower of HLR to modify or terminate any relationship, whether or not evidenced by a written contract, with HLR unless it has been determined by the HLR that such modification or termination is in the best interests of HLR. |
SECTION FOUR |
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COMPENSATION |
a) For services rendered hereunder, Agent shall hereinafter be considered an "Independent Contractor" and all compensation will be paid on a commission only basis and will be reported to the IRS on Federal Form 1099. HLR will report earnings to the Agent and the IRS, but HLR will not deduct FICA, FUCA or any State, Federal or local taxes. It is the sole responsibility of the Agent to report and file total earnings and tax liabilities to the IRS. HLR shall, in its sole discretion, have the right to change, modify, alter, or decrease any commissions payable pursuant to the Agreement provided that any changes, modifications, alterations, or decreases shall be effective when amended.
(b) Any money and value owed by Agent to HLR, any debt, and any money and value which has been advanced or credited by or behalf of HLR to, or for benefit of, Agent, represents a loan and may be offset and deducted by HLR from any commissions or other money or value then or thereafter owed by HLR to Agent pursuant to this Agreement or owed by HLR to Agent. HLR is hereby authorized by Agent to deduct from commissions due the amount of any commissions paid to Agent in connection with any payment or amount that HLR refunds to Agent’s customer.
(c) Except as set forth above, Agent shall receive no other compensation of any kind whatsoever under this Agreement. Agent will not receive any fringe benefits under this Agreement whatsoever, including but not limited insurance benefits, disability income, paid vacation, expense reimbursement or retirement benefits unless otherwise specifically provided for in this Agreement. |
SECTION FIVE |
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INDEMNIFICATION |
| Agent shall indemnify HLR and hold it harmless from and against any and all claims, losses, liabilities, damages, taxes, penalties, fines, forfeitures, reasonable legal fees and expenses, judgments, and other costs and expenses that HLR may sustain from any claim, demand, defense or assertion based on or grounded upon, or resulting from a breach of any representation, warranty, or covenant by Agent under this Agreement. |
SECTION SIX |
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ARBITRATION |
A. Mediation.
THE PARTIES AGREE TO SUBMIT ANY CLAIM, CONTROVERSY OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ANY EXHIBIT AND ATTACHMENTS), THE AGREEMENTS CONTEMPLATED HEREBY OR THE RELATIONSHIP CREATED BY THIS AGREEMENT TO NON-BINDING MEDIATION PRIOR TO BRINGING SUCH CLAIM, CONTROVERSY OR DISPUTE IN A COURT OR BEFORE ANY OTHER TRIBUNAL. THE MEDIATION SHALL BE CONDUCTED THROUGH A MEDIATOR AGREED TO BY ALL THE PARTIES, RULES AT HLR'S CORPORATE HEADQUARTERS IN HOUSTON, TEXAS. THE COSTS AND EXPENSES OF MEDIATION, INCLUDING COMPENSATION AND EXPENSES OF THE MEDIATOR (AND EXCEPT FOR THE ATTORNEYS FEES INCURRED BY EITHER PARTY), SHALL BE BORNE BY THE PARTIES EQUALLY. IF THE PARTIES ARE UNABLE TO RESOLVE THE CLAIM, CONTROVERSY OR DISPUTE WITHIN NINETY (90) DAYS AFTER THE MEDIATOR HAS BEEN CHOSEN, THEN THE MATTER SHALL BE SUBMITTED TO ARBITRATION IN ACCORDANCE WITH THE SECTIONS BELOW TO RESOLVE SUCH CLAIM, CONTROVERSY OR DISPUTE UNLESS SUCH TIME PERIOD IS EXTENDED BY WRITTEN AGREEMENT OF THE PARTIES. NOTWITHSTANDING THE FOREGOING, HLR MAY BRING AN ACTION (1) FOR MONIES OWED, (2) FOR INJUNCTIVE OR OTHER EXTRAORDINARY RELIEF, OR (3) INVOLVING THE POSSESSION OR DISPOSITION OF, OR OTHER RELIEF RELATING TO, REAL PROPERTY IN A COURT HAVING JURISDICTION, WITHOUT FIRST SUBMITTING SUCH ACTION TO MEDIATION OR ARBITRATION.
B. Arbitration
(1) EXCEPT AS PROVIDED IN THIS AGREEMENT, HLR AND AGENT AGREE THAT ANY CLAIM, CONTROVERSY OR DISPUTE ARISING OUT OF OR RELATING TO THE BUSINESS, AGENT’S ESTABLISHMENT OR OPERATION OF THE BUSINESS UNDER THIS AGREEMENT (AND ANY AMENDMENTS THERETO) INCLUDING, BUT NOT LIMITED TO, ANY CLAIM BY AGENT, OR PERSONS CLAIMING ON BEHALF OF AGENT, CONCERNING THE ENTRY INTO, THE PERFORMANCE UNDER OR THE TERMINATION OF THE AGREEMENT, OR ANY OTHER AGREEMENT BETWEEN HLR, OR ITS AFFILIATES, AND AGENT, ANY CLAIM AGAINST A PAST OR PRESENT OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF HLR, INCLUDING THOSE OCCURRING SUBSEQUENT TO THE TERMINATION OF THIS AGREEMENT, THAT CANNOT BE AMICABLY SETTLED AMONG THE PARTIES OR THROUGH MEDIATION SHALL, EXCEPT AS SPECIFICALLY SET FORTH HEREIN BE REFERRED TO ARBITRATION. THE ARBITRATION SHALL BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH THE RULES OF RULES FOR ARBITRATION, AS AMENDED, EXCEPT THAT THE ARBITRATOR SHALL APPLY THE FEDERAL RULES OF EVIDENCE DURING THE CONDUCT OF THE HEARING SESSIONS WITH RESPECT TO THE ADMISSIBILITY OF EVIDENCE. IF SUCH RULES ARE IN ANY WAY CONTRARY TO OR IN CONFLICT WITH THIS AGREEMENT, THE TERMS OF THE AGREEMENT SHALL CONTROL. ONLY CLAIMS, CONTROVERSIES OR DISPUTES INVOLVING AGENT MAY BE BROUGHT HEREUNDER. NO CLAIM FOR OR ON BEHALF OF ANY OTHER AGENT OR SUPPLIER, OR CLASS, REPRESENTATIVE OR ASSOCIATION THEREOF, MAY BE BROUGHT BY AGENT HEREUNDER.
(2) THE PARTIES SHALL AGREE ON AN ARBITRATOR WITHIN FIFTEEN (15) DAYS OF THE FILING OF ARBITRATION. THE PARTIES SHALL PETITION THE AMERICAN ARBITRATION ASSOCIATION FOR A LIST OF TEN (10) ARBITRATORS WHO ARE PRACTICING ATTORNEYS OR RETIRED JUDGES LICENSED TO PRACTICE LAW IN THE STATE OF TEXAS AND WHO ARE INDEPENDENT OF THE PARTIES AND THE MATTER(S) IN DISPUTE. ALL OF THE ARBITRATORS SHALL BE EXPERIENCED IN THE ARBITRATION OF DISPUTES BETWEEN AGENT COMPANIES AND AGENTS AND COMMERCIAL LITIGATION. EACH PARTY SHALL STRIKE ONE (1) ARBITRATOR FROM THE LIST OF TEN (10) ARBITRATORS, IN AN ALTERNATING MANNER, UNTIL THERE IS ONLY ONE (1) ARBITRATOR REMAINING FROM THE ORIGINAL LIST OF TEN (10). THE RESPONDENT TO THE DISPUTE SHALL HAVE THE OPPORTUNITY TO DESIGNATE THE FIRST STRIKE, AND THE COMPLAINANT SHALL HAVE THE OPPORTUNITY TO MAKE THE NEXT STRIKE THEREAFTER, AND SO ON AND SO FORTH. THE ARBITRATION SHALL TAKE PLACE AT HLR’S CORPORATE OFFICES OR THEIR COUNSEL’S OFFICE. THE AWARD OF THE ARBITRATOR SHALL BE FINAL AND JUDGMENT UPON THE AWARD RENDERED IN ARBITRATION MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE COSTS AND EXPENSES OF ARBITRATION MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATOR SHALL BE REQUIRED TO SUBMIT WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW WITHIN THIRTY (30) BUSINESS DAYS FOLLOWING THE FINAL HEARING SESSION OF THE ARBITRATION. THE COSTS AND EXPENSES OF ARBITRATION, INCLUDING COMPENSATION AND EXPENSES OF THE ARBITRATORS, SHALL BE BORNE BY THE PARTIES AS THE ARBITRATORS DETERMINE.
(3) NOTWITHSTANDING THE ABOVE, THE FOLLOWING SHALL NOT BE SUBJECT TO ARBITRATION: (i) DISPUTES AND CONTROVERSIES ARISING FROM THE SHERMAN ACT, THE CLAYTON ACT OR ANY OTHER FEDERAL OR STATE ANTITRUST LAW; (ii) DISPUTES AND CONTROVERSIES BASED UPON OR ARISING UNDER THE LANHAM ACT, AS NOW OR HEREAFTER AMENDED, RELATING TO THE OWNERSHIP OR VALIDITY OF THE MARKS; (iii) DISPUTES AND CONTROVERSIES RELATING TO ACTIONS TO OBTAIN POSSESSION OF THE PREMISES OF BUSINESS UNDER LEASE OR SUBLEASE.
(4) IF HLR SHALL DESIRE TO SEEK SPECIFIC PERFORMANCE OR OTHER EXTRAORDINARY RELIEF INCLUDING, BUT NOT LIMITED TO, INJUNCTIVE RELIEF UNDER THIS AGREEMENT, AND ANY AMENDMENTS THERETO, OR TO COLLECT MONIES DUE, THEN ANY SUCH ACTION SHALL NOT BE SUBJECT TO ARBITRATION AND HLR SHALL HAVE THE RIGHT TO BRING SUCH ACTION AS DESCRIBED ABOVE.
(5) IN PROCEEDING WITH ARBITRATION AND IN MAKING DETERMINATIONS HEREUNDER, THE ARBITRATOR SHALL NOT EXTEND, MODIFY OR SUSPEND ANY TERMS OF THIS AGREEMENT OR THE REASONABLE STANDARDS OF BUSINESS PERFORMANCE AND OPERATION ESTABLISHED BY HLR IN GOOD FAITH. NOTICE OF OR REQUEST TO OR DEMAND FOR ARBITRATION SHALL NOT STAY, POSTPONE OR RESCIND THE EFFECTIVENESS OF ANY TERMINATION OF THIS AGREEMENT. THE ARBITRATORS SHALL APPLY TEXAS LAW AND THE TERMS OF THIS AGREEMENT IN REACHING THEIR DECISION.
No Resolution. WITH RESPECT TO ANY CLAIMS, CONTROVERSIES OR DISPUTES THAT ARE NOT FINALLY RESOLVED THROUGH MEDIATION OR ARBITRATION, OR AS OTHERWISE PROVIDED ABOVE, AGENT AND THE CONTROLLING PRINCIPALS HEREBY IRREVOCABLY SUBMIT THEMSELVES TO THE JURISDICTION OF THE STATE COURTS OF HARRIS COUNTY, TEXAS AND THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION. AGENT HEREBY WAIVES ALL QUESTIONS OF PERSONAL JURISDICTION FOR THE PURPOSE OF CARRYING OUT THIS PROVISION. AGENT HEREBY AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON ANY OF THEM IN ANY PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE RELATIONSHIP CREATED BY THIS AGREEMENT BY ANY MEANS ALLOWED BY TEXAS OR FEDERAL LAW. AGENT FURTHER AGREES THAT VENUE FOR ANY PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL BE HARRIS COUNTY, TEXAS; PROVIDED, HOWEVER, WITH RESPECT TO ANY ACTION (1) FOR MONIES OWED, (2) FOR INJUNCTIVE OR OTHER EXTRAORDINARY RELIEF OR (3) INVOLVING POSSESSION OR DISPOSITION OF, OR OTHER RELIEF RELATING TO, REAL PROPERTY, HLR MAY BRING SUCH ACTION IN ANY STATE OR FEDERAL DISTRICT COURT THAT HAS JURISDICTION. WITH RESPECT TO ALL CLAIMS, CONTROVERSIES, DISPUTES OR ACTIONS, RELATED TO THIS AGREEMENT OR THE RELATIONSHIP CREATED THEREBY, THIS AGREEMENT AND ANY SUCH RELATED CLAIMS, CONTROVERSIES, DISPUTES OR ACTIONS SHALL BE GOVERNED, ENFORCED AND INTERPRETED UNDER TEXAS LAW (EXCEPT FOR TEXAS CHOICE OF LAW RULES).
C. Adequacy of Choice of Law and Forum.
AGENT AND HLR ACKNOWLEDGE THAT THE PARTIES' AGREEMENT REGARDING APPLICABLE STATE LAW AND FORUM SET FORTH IN THIS AGREEMENT PROVIDE EACH OF THE PARTIES WITH THE MUTUAL BENEFIT OF UNIFORM INTERPRETATION OF THIS AGREEMENT AND ANY DISPUTE ARISING OUT OF THIS AGREEMENT OR THE PARTIES’ RELATIONSHIP CREATED BY THIS AGREEMENT. AGENT AND HLR FURTHER ACKNOWLEDGE THE RECEIPT AND SUFFICIENCY OF MUTUAL CONSIDERATION FOR SUCH BENEFIT AND THAT EACH PARTY’S AGREEMENT REGARDING APPLICABLE STATE LAW AND CHOICE OF FORUM HAVE BEEN NEGOTIATED FOR IN GOOD FAITH AND ARE PART OF THE BENEFIT OF THE BARGAIN REFLECTED BY THIS AGREEMENT.
D. Acknowledgment of Forum.
AGENT AND HLR ACKNOWLEDGE THAT THE EXECUTION OF THIS AGREEMENT AND ACCEPTANCE OF THE TERMS BY THE PARTIES OCCURRED IN HOUSTON, TEXAS, AND FURTHER ACKNOWLEDGE THAT THE PERFORMANCE OF CERTAIN OBLIGATIONS OF AGENT ARISING UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE PAYMENT OF MONIES DUE HEREUNDER AND THE SATISFACTION OF CERTAIN TRAINING REQUIREMENTS OF HLR, SHALL OCCUR IN HOUSTON, TEXAS.
E. Development of Dispute Resolution Program.
WITHOUT LIMITING ANY OF THE FOREGOING, HLR RESERVES THE RIGHT, AT ANY TIME, TO CREATE A DISPUTE RESOLUTION PROGRAM AND RELATED SPECIFICATIONS, STANDARDS, PROCEDURES AND RULES FOR THE IMPLEMENTATION THEREOF TO BE ADMINISTERED BY HLR OR ITS DESIGNATES FOR THE BENEFIT OF ALL AGENTS CONDUCTING BUSINESS UNDER THE SYSTEM. THE STANDARDS, SPECIFICATIONS, PROCEDURES AND RULES FOR SUCH DISPUTE RESOLUTION PROGRAM SHALL BE MADE PART OF THE MANUALS AND IF MADE PART OF THE MANUALS, ON EITHER A VOLUNTARY OR MANDATORY BASIS, AGENT SHALL COMPLY WITH ALL SUCH STANDARDS, SPECIFICATIONS, PROCEDURES AND RULES IN SEEKING RESOLUTION OF ANY CLAIMS, CONTROVERSIES OR DISPUTES WITH OR INVOLVING HLR OR OTHER AGENTS, IF APPLICABLE UNDER THE PROGRAM. IF SUCH DISPUTE RESOLUTION PROGRAM IS MADE MANDATORY, THEN AGENT AND HLR AGREE TO SUBMIT ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ANY EXHIBITS AND ATTACHMENTS HERETO), THE AGREEMENTS CONTEMPLATED HEREBY OR THE RELATIONSHIP CREATED BY THIS AGREEMENT FOR RESOLUTION IN ACCORDANCE WITH SUCH DISPUTE RESOLUTION PROGRAM PRIOR TO SEEKING RESOLUTION OF SUCH CLAIMS, CONTROVERSIES OR DISPUTES IN THE MANNER DESCRIBED IN THIS SECTION ABOVE (PROVIDED THAT THE PROVISIONS OF SECTION 6 CONCERNING HLR’S RIGHT TO SEEK RELIEF IN A COURT FOR CERTAIN ACTIONS INCLUDING FOR INJUNCTIVE OR OTHER EXTRAORDINARY RELIEF SHALL NOT BE SUPERSEDED OR AFFECTED BY THIS SECTION OR IF SUCH CLAIM, CONTROVERSY OR DISPUTE RELATES TO ANOTHER AGENT, AGENT AGREES TO PARTICIPATE IN THE PROGRAM AND SUBMIT ANY SUCH CLAIMS, CONTROVERSIES OR DISPUTES IN ACCORDANCE WITH THE PROGRAM'S STANDARDS, SPECIFICATIONS, PROCEDURES AND RULES, PRIOR TO SEEKING RESOLUTION OF SUCH CLAIM BY ANY OTHER JUDICIAL OR LEGALLY AVAILABLE MEANS.
F. Wavier of Exemplary Damages.
AGENT HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO OR CLAIM OR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS) AGAINST HLR, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, AGENTS, REPRESENTATIVES, INDEPENDENT CONTRACTORS, SERVANTS AND EMPLOYEES, IN THEIR CORPORATE AND INDIVIDUAL CAPACITIES, ARISING OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) AND AGREES THAT IN THE EVENT OF A DISPUTE, AGENT SHALL BE LIMITED TO THE RECOVERY OF ANY ACTUAL DAMAGES SUSTAINED BY IT. IF ANY OTHER TERM OF THIS AGREEMENT IS FOUND OR DETERMINED TO BE UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, THE FOREGOING PROVISIONS OF WAIVER BY AGREEMENT OF PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS) SHALL CONTINUE IN FULL FORCE AND EFFECT. |
SECTION SEVEN |
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GOVERNING LAW |
(a) It is agreed that this Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of Texas.
(b) Since the parties acknowledge that significant aspects of performance of this Agreement will occur in the State of Texas even though the business activities of the Agent may occur anywhere authorized, provisions of this Agreement will be governed and construed under the laws of Texas. If conflict or choice of law rules would choose a law of another jurisdiction, each party waives such rules and agrees the substantive law of Texas shall nonetheless govern. The parties agree that, without waiver of their rights and obligations, unless expressly provided to the contrary in this Agreement, the state and federal courts of Texas shall have exclusive jurisdiction of any litigation between the parties and the Agent expressly submits to the jurisdiction and venue of the federal and state courts sitting in Harris County, Texas with respect to any such litigation. |
SECTION EIGHT |
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ENTIRE AGREEMENT |
| This Agreement shall constitute the entire Agreement between the parties and any prior understanding of representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. |
SECTION NINE |
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MODIFICATION OF AGREEMENT |
| Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if evidenced in writing signed by each party or an authorized representative of each party. |
SECTION TEN |
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ASSIGNMENT OF RIGHTS |
| This Agreement may be assigned by HLR in the event of a bona fide sale or transfer of ownership or control of the business to another person or entity; provided however, that the assignee shall assume all obligations of HLR herein, in which case HLR shall be released of any further liability to Agent hereunder. The personal rights and abilities of Agent are a material inducement to HLR to enter into this Agreement, and Agent may not assign this Agreement or to assign any rights (including the right to receive commissions). |
SECTION ELEVEN |
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NO WAIVER |
| The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement shall not be construed as thereafter waiving any such terms and conditions, but the same shall continue remain in full force as if no such forbearance or waiver occurred. No delay, waiver, omission or forbearance on the part of HLR to exercise any right, option, duty or power arising out of any breach or default by Agent under this Agreement shall constitute a waiver by HLR to enforce any such right, option, duty or power against Agent, or as to a subsequent breach or default by Agent. Acceptance by HLR of any payments due to it hereunder subsequent to the time at which such payments are due shall not be deemed to be a waiver by HLR of any preceding breach by Agent of any terms, provisions, covenants or conditions of this Agreement. |
SECTION TWELVE |
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EFFECT OF PARTIAL INVALIDITY |
| The invalidity of any portion of this Agreement does not and will not be deemed to affect the validity of any provision, in the event that any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect. |
SECTION THIRTEEN |
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TERM AND TERMINATION |
(a) The parties agree that this Agreement is "AT WILL" and may be terminated by either party for convenience with notice to the other party. Additionally, this Agreement may be terminated by operation of law or upon the death or disability of Agent.
(b) This Agreement shall continue in effect until termination.
(c) Upon the termination of this Agreement, all unpaid commissions earned by Agent prior to the effective date of termination of this Agreement shall be paid by HLR to Agent within a reasonable period of time. No further compensation, other than the commissions earned as of the effective date of Agent's termination, shall be payable to Agent under this Agreement after termination. However, HLR shall have the right to offset against any commissions due Agent the amount of any indebtedness owed by Agent to HLR. Upon Termination of this Agreement, any debt and any debt that may thereafter exist, shall without notice immediately become due and payable and shall bear interest at the highest rate permitted under applicable law until paid. |
SECTION FOURTEEN |
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NOTICES |
All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person, by facsimile (with receipt confirmed), or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties as follows:
if to HLR:
Homeland Realty Corporation
Attn: Hao Nguyen
3673 Westcenter Drive
Houston, Texas 77042
(O) 713-952-9074
(Fax) 713-952-3234 |
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