This is an agreement between Above Modern Inc. (“Above Modern” or “Company”) and the undersigned person (“Agent”). If the undersigned person is an acting as an authorized agent for another person, whether such person is a natural person or a company, the undersigned hereby agrees that they are an authorized agent of the Agent with the authority to bind their principal to the terms of this Agreement.
Definitions “Above Modern Services” refers to all services provided by the Company under the Above Modern brand, including the hosting of the Agent Websites, provision of and access to any information, data, analytics, and Above Modern Software.
“Above Modern Software” refers to any software available through the Above Modern Website and any software utilized on the Above Modern Website including any updates or upgrades to the software and any related documentation the Company makes available to a User or the public in connection with Above Modern.
“Above Modern Website” refers to the any pages hosted by the Company under the host website of http://www.AboveModern.com. Above Modern Website includes any and all Agent Websites.
“Agent Information” refers to information provided by the Agent through the onboarding and process and may include the name of the Agent, Agent company information, identification of the Agent’s authorized representative(s), and the Agent’s contact information or payment information. The type of information required by Above Modern for the provision of the Above Modern Services may be changed at any time at the sole discretion of the Company.
“Agent Websites” refers to the webpages on the Above Modern Website that displays information referring to a single or multiple Property listings controlled by Agent.
“Media” includes any videos, images, audiovisual works, audio, and Samples.
“Property Listings” or “Listings” refers to those Properties displayed and marketed by Agent through Agent’s Webpage on the Above Modern Website.
“Sample” refers to a document or media displaying a portion of a Property listing for use with marketing a Property listing on the Above Modern website.
“User” refers to any person who accesses the Above Modern Website.
“User Information” or “User Data” includes Agent Information, Lead contact information.
Representations of the Parties
WHEREAS, Above Modern is in the business of providing hosting and Agent Website building services;
WHEREAS, Agent has requested Above Modern’s Services in providing a means of developing customized webpages for publicly marketing Listings through the Above Modern Website via Agent Websites, and the hosting and maintenance of the Agent’s Websites.
WHEREAS, Above Modern shall provide the Above Modern Services to enable Agent to develop Agent Websites for Marketing Property Listings.
WHEREAS, Agent has a contractual right to list and market all Properties marketed or displayed on Agent Websites.
WHEREAS, Agent wishes to engage Above Modern for the provision of the Services, related resources, and deliverables in order to streamline the marketing of Agent’s Property Listings.
WHEREAS, Above Modern wishes to provide such Services to the Agent.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the parties hereby agree as follows.
Term of this Agreement
This Agreement shall be binding upon the parties for the term as agreed upon by the parties at the execution of this Agreement. If no term is agreed upon by the parties, this Agreement will remain effective for the later of (1) 12 months from the execution date; or (2) the date the Agent ends hosting Agent’s Websites on the Above Modern Website.
This Agreement, or its subsequent revisions, will renew automatically for a period of 12 months on the last day of the term (whichever is applicable) unless Agent terminates this Agreement before the expiration of the term.
Payment may be made to Above Modern by check, automatic clearinghouse, credit or debit card, or by whatever means are made available on the Above Modern Website. By making this payment, Agent warrants that it has sufficient funds to pay for the Above Modern Services. If a transaction is denied because of insufficient funds, at no fault of Above Modern, Above Modern may charge Agent amounts not exceeding the costs incurred by Above Modern in carrying out the transaction.
Agent may be responsible for paying any fees or costs associated with payment. All sales are final and no subject to refunds, except at the sole discretion of Above Modern.
Above Modern provides two core services, hosting services and Agent Website building services, each with its own associated fee structure.
There are two fees charged to Agents, a hosting fee (the “Hosting Fee”) and a fee that determines the number of Agent Websites available to Agent for publication (the “Page Fee”).
The Hosting Fee
Above Modern provides the service of hosting Agent’s Websites on the Above Modern Website. Above Modern will charge Agent the Hosting Fee on a monthly recurring basis. The Hosting Fee is due and payable at the beginning of every month. Failure to pay the Hosting Fee for one consecutive month will result in the discontinuation of the hosting services of the Agent’s Websites by Above Modern.
The Agent Websites and related back-end application code will be hosted on the Above Modern server. Customer shall pay a Hosting Fee of:
Hosting Fees after the initial commitment will be pro-rated for the first month based on a 30-day month for portals that launch and are hosted for a portion of a month period. Recurring Hosting Fees shall only be payable via a credit card as provided by the Client. The Hosting Fee shall begin the day the Portal is launched on the server for public display (the “Portal Launch Date”) and shall be pro-rated based on the number of days hosting is provided for any partial month. Above Modern reserves the right to change any Hosting Fees pricing, at Above Modern’s sole discretion.
Timely payment of the Hosting Fee enables the Agent to continuously access the Agent Dashboard for the creation of Agent Websites. Furthermore, already-published Agent Websites will continue to be published for public-viewing upon the continuous timely payment of the Hosting Fee.
If the Agent wishes to publish more Agent Websites than is available under the Agent’s current Hosting Fee level, then Agent will be automatically promoted to increase the Hosting Fee level upon Agent’s attempt to publish the Agent Website. For example, if Agent has paid for the Hosting Fee associated with the hosting of 1-3 published Agent Websites, Agent will be automatically prompted to upgrade Agent’s Hosting Fee level whenever Agent attempts to publish a fourth Agent Website. Agent has full discretion and choice with whether to upgrade the Hosting Fee level.
The Hosting Fee level maximum numbers (3 and 9) only apply to Agent Websites which are actively published for public viewing. For example, If Agent has purchased the Hosting Fee level associated with 4-9 Agent Websites, and Agent currently has 7 Agent Websites published, Agent has 2 more Agent Websites available for publication without the need to raise Agent’s Hosting Fee level. If Agent then removes 2 Agent Websites from publication for public viewing, Agent then has 5 published Agent Websites, and is able to publish up to 4 more Agent Websites without needing to upgrade Agent’s Hosting Fee level.
The Agent may design up to the maximum number of Agent Websites associated with the purchased Hosting Fee level on the Agent Dashboard with or without publication. For example, If Agent has purchased the Hosting Fee level associated with 4-9 Agent Websites, and Agent currently has 3 Agent Websites published, Agent may design up to 6 unpublished Agent Websites through the Agent Dashboard. The Agent Dashboard will allow Agent to Design only up to the maximum number of Agent Websites associated with the Agent’s Hosting Fee level.
Agent may downgrade Agent’s Hosting Fee level at any time through the Agent Dashboard. The Company willdowngrade Agent automatically upon the next payment renewal cycle if the number of hosted Agent Websites, whether published or not, decreases under the minimum threshold for the previous Hosting Fee level.
The Website Bundle Fee
Above Modern provides the service of providing website templates for Agent to market Property Listings to the public. Access to design Agent Websites based off of the templates is sold in bundles. There are four different Website packages with four corresponding Website Bundle Fees. The Agent can purchase the ability to modify Agent Websites templates. The Website Bundle Fees are as follows:
Each Website Bundle Fee level (“Bundle Level”) grants Agent access to utilize the Above Modern Software to create, develop, manage, and publish Agent Websites. Each Bundle Level grants variable access to the Agent. If the Agent Purchases access to develop a single Agent Website, the Agent will have to pay the corresponding Website Bundle Fee of $300.00. This Bundle level permits Agent to develop a single Agent Website. If the Agent purchases a Bundle Levelfor more than one Agent Website, Agent will have access to develop the corresponding number of Agent Websites. The Bundle Level will permit the Agent to develop up to the corresponding number of Agent Websites without the Agent being required to purchase any more Agent Websites until the maximum number under the purchased Bundle Level is reached.
Any “unused” Agent Websites will be credited to the Agent’s account for the duration of the Term until the Agent develops the maximum number of Agent Websites under the purchased Bundle Level (“Credits”). For example, if Agent purchases the Bundle Level for 10 Agent Websites, and Agent has developed and launched 3 Agent Websites, Agent would have a Credit of 7 Agent Websites. The number of Agent Websites actually published for public viewing will determine how many Credits the Agent has left in their Bundle, regardless of how many Agent Websites are being actively hosted at the time.
If the Agent wishes to purchase another Bundle concurrent with active Credits, the number of Credits will increase by the Bundle Level subsequently purchased. For example, if the Agent has 7 Credits, and subsequently purchases a Bundle for 5 Agent Websites, the Agent will then have 12 Credits.
The Hosting Fee and the Website Bundle Fee are independent of each other and the pricing or calculation of one will not affect the calculation of the other.
By purchasing the Above Modern Services, Agent will have access to a back-end webpage that enables Agent to manage all of Agent’s Websites (the “Agent Dashboard”). In the Agent Dashboard, Agent can manage the Listings and the content displayed on each Website, including the information and Media used to promote the associated Listing. Agent will also be granted access to contact information of any person who submits an interest form as provided on each Agent Website. The Agent Dashboard will provide Agent with a means of adjusting global settings over all Agent’s Websites, the ability to publish/unpublish any Agent Website, as well as a means of adjusting Agent’s personal or company information.
Term of Hosting & Pricing
Above Modern reserves the right to change any pricing, at Above Modern’s sole discretion, for any the Hosting Fee or the Website Bundle Fee. Once the Agent has paid the Website Bundle Fee, the Agent will not be required to pay any additional amounts (except an upgrade of the Hosting Fee level) with respect to that Bundle for so long as the Agent has Credits. Pricing for the Bundle Levels and/or the Hosting Fee may change at any time at the sole discretion of Above Modern. The Agent agrees to pay any modified Fees for any subsequent purchases of a Bundle or Hosting Service.
Above Modern reserves the right to adjust the actual pricing to accommodate any one or group of Agents and Above Modern is under no duty to match the pricing for Agent that it may offer other persons.
Above Modern may adjust the Hosting Fees at any time at its sole discretion. If Above Modern modifies the Hosting Fees, Agent agrees to pay the modified Hosting Fee on the for every subsequent pay cycle. Above Modern will notify Agent of any alterations to the Hosting Fees via the Agent’s Dashboard on the Above Modern Website.
Above Modern is under no duty, and Agent waives any right, to notification of any Hosting or Website Bundle Fee adjustment. Agent will waive any claim Agent may have against Above Modern from damages arising from Fee Adjustments by Above Modern.
Above Modern Services
The following is a description of the Above Modern Services provided by Above Modern for its Agents. Above Modern will provide Agent with access to the Above Modern Software for the purpose of assisting Agent in marketing Agent’s Property Listings.
For all Hosting and Bundle Fee levels, Above Modern will provide Agent with the ability to develop Agent Webpages hosted on the Above Modern Website for the purpose of Agent marketing Agent’s business (generally) and Agent’s Property Listings to the public.
Agent Webpages shall be limited to a single Property Listing. Agent will have control over the content displayed on Agent’s Webpage through access via the Agent Dashboard. Agent will have the option of choosing between Agent Webpage templates as provided by the Company. Each of these templates have been developed by the Company. Agent will be granted access to modify the templates insofar as the templates will accept any information or Media provided by the Agent.
Once the information and Media have been applied to a template, Agent will have the option to publish the Agent Website for public viewing. Agent is granted the ability to adjust or modify any of the information or Media as published or displayed on Agent’s Websites. Agent’s Credits will be reduced by the number of published Agent Websites.
Agent agrees that Agent may only modify the templates insofar as the information and Media displayed on the Agent Website. Agent may not modify the source code or back-end software contained within a template.
One of the Above Modern Services is the furnishing of contact information for potential buyers of Agent’s Listings (“Leads”). Above Modern collects Leads information through a ‘contact’ page/form on every Agent Website. Agent Webpages will have a fillable form allowing Leads to state their interest in the Listing by the submission of their contact information. Upon submission by a Lead the Lead’s contact information (as submitted) will be forwarded to Agent.
All Lead contact information is supplied by and input by third parties and not by Above Modern. ABOVE MODERN DOES NOT WARRANT THE COMPLETENESS, TIMELINESS, OR ACCURACY OF ANY THIRD PARTY SUBMITTED INFORMATION, INCLUDING BUT NOT LIMITED TO CONTACT INFORMATION, THE NAME OF THE PERSON, THE AUTHORITY OF THE PERSON SUBMITTING, OR THANY OTHER INFORMATION. THROUGH THIS AGREEMENT, AGENT AGREES TO DISCLAIM ANY WARRANTY AS TO THE COMPLETENESS, TIMLINESS, OR ACCURACY OF ANY INFORMATION REGARDING ANY OTHER PERSON. FURTHERMORE, AGENT AGREES TO HOLD HARMLESS ABOVE MODERN FROM ANY DAMAGES, LOSSES RELATED TO ANY THIRD-PARTY SUBMITTED INFORMATION.
It is Agent’s responsibility to verify the completeness, timeliness, and accuracy of any information displayed on the Agent’s Webpages, including Agent information and any information regarding a Listing. Agent hereby represents that any information provided via the Above Modern Website by Agent is truthful and complete to the best of Agent’s knowledge.
Agent is in control of any publicly-facing information displayed on any Agent Webpage. Above Modern will make available to Agent a means of changing any information or Media contained on an Agent Website at any time.
The format of the Above Modern Website, the templates, and the Agent’s Webpage is at the sole discretion of the Company and may be changed or modified by Above Modern at any time, with or without notice to Agent. This includes modifications to any template that is published and active. For example, the Company my reduce the maximum file size of Media available through the template. This may cause one or more parts of an Agent Website to stop working. It is the responsibility of the Agent to ensure that all elements of the Agent Website are compliant with the template being utilized.
Agent will be able to display Media on Agent’s Webpage(s). Above Modern will provide Agent with the formatting requirements for any Media. Any Media provided to Above Modern is presumed to be for public display and Above Modern claims no ownership to the intellectual property of the Agent or to any Media or information displayed on the Above Modern Website. Above Modern makes no claim as to the ownership, accuracy, completeness, or timeliness of any information or Media provided by Agent for public display on an Agent Website. Agent is prohibited from providing Above Modern or displaying any lewd, discriminatory, pornographic, or otherwise distasteful Media on Agent Websites. Above Modern reserves the right to remove any Media or information from the Above Modern Website at its sole discretion with or without notice to Agent.
Agent grants Above Modern license and permission to publicly display, reproduce, disseminate, distribute, publish, or otherwise use any intellectual property owned by or licensed to Agent and provided to Above Modern as part of Agent’s use of the Above Modern Services, including Agent’s use of the Above Modern Website. This license and permission shall extend for a period of Five (5) years after the term has expired. Agent warrants that any intellectual property licensed by Agent to Above Modern for public display is authorized by the owner of such intellectual property and Agent agrees to indemnify Above Modern against any infringement claims brought by Agent or any third party resulting from the license granted through this subsection.
Above Modern Not a Sales Platform
Above Modern is a platform designed solely for the purpose of marketing and displaying Property Listings. The purpose of Above Modern is to connect Agent with potential purchasers of Agent’s Property Listings through the Above Modern Website. Above Modern is not a sales platform, in that no sales between Agents and buyers will be conducted through the Above Modern Website or Above Modern Software.
The responsibility to affect sales of Agent’s Listings lies solely with the Agent. Above Modern does not have a role in the sales process other than providing a platform Agent to market their products to potential buyers of Agent’s Property Listings. Agent agrees to hold Above Modern harmless and to waive any and all claims against Above Modern which may arise from a sales transaction between Agent and a buyer or potential buyer.
Agent has the sole discretion as whether to include pricing for Agent’s Product(s) on the Above Modern Website. Furthermore, Agent has complete control of any pricing information included on the Product Page.
Copyrights, Trademarks, Patents
Use of the Above Modern Website or Above Modern Services does not give Agent the right to frame, use, or reproduce any of Above Modern copyrighted material, trademarks, service marks, or other proprietary rights or material, or to use any of Above Modern’s patents, except as expressly permitted in writing by Above Modern.
License; Above Modern Software
The following license applies to Agent’s access and use of Above Modern Services. Subject to Agent’s compliance with the Agreement and Agent’s payment of any applicable Fees, Above Modern or its content providers grant Agent a limited, non-exclusive, non-transferable, non-sublicensable license to access and use Above Modern Software and Above Modern Services. Agent may not use data mining, robots, or similar data gathering and extraction tools in connection with Above Modern, nor may Agent download or copy Above Modern information, including any collection of product listings, descriptions, reviews, or prices without our consent or for the benefit of another Agent. The following terms apply to Agent’s use of Above Modern Software.
Agent may use Above Modern Software solely for purposes of enabling Agent to use Above Modern Services, as permitted by the Agreement. Agent may not incorporate any portion of the Above Modern Software into other programs or compile any portion of it in combination with other programs, or otherwise reproduce, duplicate, copy (except to exercise rights granted in this section), modify, exploit, create derivative works of, distribute, sell, resell, assign any rights to, or license the Above Modern Software in whole or in part (including any features of Above Modern Services). All software used in Above Modern Services is the property of Above Modern or its software suppliers and is protected by U.S. and international copyright Laws. Agent may not make any derivative use of Above Modern Services without the express written consent of Above Modern.
Use of Third Party Services
No Reverse Engineering.
Agent may not reverse engineer, decompile or disassemble, tamper with, or bypass any security associated with the Above Modern Software, whether in whole or in part.
Above Modern may modify or adjust Above Modern Software, the format of the Above Modern Website, or the Above Modern Services at any time with or without notification to Agent.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
ALL ABOVE MODERN SERVICES (INCLUDING THE ABOVE MODERN SOFTWARE), INFORMATION, CONTENT, MATERIALS, AND OTHER PRODUCTS OR SERVICES MADE AVAILABLE TO AGENTS THROUGH THE ABOVE MODERN WEBSITE AND OTHERWISE ARE PROVIDED BY THE COMPANY ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SUCCESS OF AGENT’S BUSINESS OR SALES/PURCHASES OF AGENT’S PRODUCTS, OR THE FULFILLMENT OF EXPECTATIONS OF AGENT OR USERS, OR ABOVE MODERN IN GENERAL. ABOVE MODERN SPECIFICALLY DISCLAIMS ANY WARRANTY OF COMPLETENESS, ACCURACY, OR TIMELINESS OF THE INFORMATION, CONTENT, MATERIALS, OR OTHER ABOVE MODERN SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO USERS THROUGH THE ABOVE MODERN WEBSITE, THROUGH THE COMPANY OR BY THE COMPANY, UNLESS OTHERWISE SPECIFIED IN WRITING.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR USE, AS WELL AS ANY WARRANTIES OF AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF CONTENT, AS WELL AS WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OR TRADE. THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY THAT THE COMPANY’S PROPERTY, INCLUDING ALL PRODUCTS AND SERVICES ASSOCIATED WITH ABOVE MODERN, DOES NOT INFRINGE UPON ANY THIRD-PARTY’S INTELLECTUAL PROPERTY RIGHTS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE ABOVE MODERN SERVICES AND/OR ANY INFORMATION PROVIDED THROUGH THE ABOVE MODERN SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
UNLESS OTHERWISE SPECIFIED IN WRITING. THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE COMPANY’S PRODUCTS OR ABOVE MODERN SERVICES, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO AGENT OR TO ANY THIRD-PARTY THROUGH AGENT INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR OTHERWISE RELATED TO AGENT’S OR ANY THIRD PARTY’S, USE OF OR INABILITY TO USE THE ABOVE MODERN WEBSITE OF ABOVE MODERN SERVICES INCLUDING THE COMPANY WEBSITE, EVEN IF THE COMPANY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
AGENT ACKNOWLEDGES THAT CONTRACTING WITH ABOVE MODERN IS AT AGENT’S SOLE RISK. AGENT ASSUMES ALL RESPONSIBILITY FOR THE ACCURACY, TIMELINESS, COMPLETENESS, APPROPRIATENESS, AND LEGALITY OF ANY INFORMATION OR MEDIA AGENT SUPPLIES TO THE COMPANY. IN ADDITION TO OTHER LIMITATIONS AND EXCLUSIONS IN THIS AGREEMENT, IN NO EVENT WILL ABOVE MODERN DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO A USER OR TO A THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OR LOSSES OF ANY KIND, ARISING OUT OF OR RELATED TO THE COMPANY’S PROVISION OF ABOVE MODERN SERVICES OR PRODUCTS.
THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY IN AGENT’S STATE OF RESIDENCE, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
If Above Modern has a reasonable basis to believe that Agent has breached any provision of this Agreement, the Company may unilaterally and at its sole discretion, terminate this Agreement and/or revoke Agent’s access to the Above Modern Services, any licenses granted to Agent, in whole or in part. If such termination or revocation should occur, Agent agrees to hold the Company harmless for any damages or losses actually sustained or anticipated by Agent resulting from the termination.
If the Company terminates this Agreement, the Company will not refund Agent any amounts paid to Above Modern.
Agent recognizes and agrees that the Company would be irreparably injured by any violation or breach by Agent of any of the covenants and agreements in this Agreement and that the Company would have no adequate remedy at law in the event of any such breach or violation. Therefore, Agent acknowledges and agrees that the Company may, in addition to the other remedies that may be available to it at law, obtain injunctive relief without necessity of a bond prohibiting Agent (together with all those persons associated with him) from the breach of such covenant and agreement.
Agent acknowledges and agrees that (a) if the Company is made a party or is threatened to be made a party to any action, suit or proceeding of any kind or any threatened action, suit or proceeding of any kind, by reason of any act taken or committed by Agent, or omission of any act by the Agent, including but not limited to any act that constitutes a breach of any provision of this Agreement; or (b) if any claim, demand, request, investigation, dispute, controversy, threat, discovery request, or request for testimony or information is made or is threatened to be made that arises out of or relates to the Agent’s acts, and the Agent is found to be at fault, then the Agent shall promptly fully indemnify and hold the Company completely harmless against any and all costs, expenses, liabilities and losses incurred or suffered by the Company in connection therewith or in connection with seeking to enforce its rights under this Agreement, and the obligation to indemnify and hold the Company harmless under this Agreement shall continue even after any term ceases. If Agent is found to be in breach of this Agreement, Agent agrees to pay any and all attorney’s fees, court costs, arbitration costs, mediation costs, or other costs incurred by the Company in enforcing this Agreement.
The parties agree that any and all claims, controversies, breaches or disputes arising from or related to this Agreement, including those pertaining to the formation, construction, performance, applicability, interpretation, or enforceability of this Agreement, or any claim or assertion that all or part of this Agreement is void or voidable, shall be settled by binding arbitration according to the procedures of California Mediators & Arbitrators. The Federal Arbitration Act shall govern the interpretation, enforcement and proceedings pursuant to the arbitration clause in this agreement. The arbitrator may consider the testimony and evidence presented by the parties through any or all of the following types of hearings: documentary hearing, teleconference hearing, or through a standard scheduled hearing physically-attended by the parties and legal counsel if any. Any standard arbitration hearing that requires the parties’ physical presence shall be held in Denver, Colorado. The parties also agree that any award tendered by the arbitrator may be entered as a judgment in the United States court in and for the district within which such award was made and enforceable as an order of said court and the Parties hereby submit to the venue and jurisdiction of that court for purposes of enforcement of any arbitration award.
All notices, requests, demands and other communications given under or by reason of this Agreement shall be in writing and shall be deemed given (i) upon delivery when delivered in person, (ii) as of 2:00 p.m. on the day after being delivered to a nationally recognized overnight courier; (iii) upon transmission thereof and receipt of the appropriate answerback when delivered by facsimile transmission or by email; or (v) 72 hours after being placed in a depository of the United States mails when delivered by certified mail (return receipt requested), postage prepaid, addressed as follows (or to such other address as a party may specify by notice pursuant to this provision):
(a) If to the Company:OR
(b) If to Agent: (to address provided to Company)
Emails From Above Modern
By agreeing to this Agreement, User agrees to receive emails from Above Modern at the email address provided by user upon execution. These emails may include updates to Above Modern products or services, User Pages, Agent Products or Webpages, promotional content promoting Above Modern Services or Agents’ products or services, or other notifications related to the Above Modern Services. User may opt-out of receiving emails from Above Modern by contacting firstname.lastname@example.org via email with a subject line containing the words “Opt Out” or something similar indicating the User’s desire to cease receiving emails from Above Modern. Upon reception of the “Opt Out” email, Above Modern will remove User’s email within 10 business days.
Entire Agreement and Amendments
This Agreement contains the entire agreement relating to the matters contained herein and supersedes all prior agreements and understandings, oral or written, between Agent and the Company with respect to the subject matter hereof. This Agreement may be amended or modified by the Company, at the sole discretion of the Company. If the Company modifies this Agreement in any material way, Agent will be promptly notified.
Effect of Agreement
This Agreement shall be binding upon Agent and the Agent's heirs, executors, administrators, legal representatives and assigns and upon the Company and its respective successors and assigns.
If any provision of this Agreement is rendered or declared illegal, invalid or unenforceable by reason of any existing or subsequently enacted legislation or by the final judgment of any court of competent jurisdiction, Agent and the Company shall promptly meet and negotiate substitute provisions for those rendered or declared illegal or unenforceable to preserve the original intent of this Agreement to the extent legally possible, but all other provisions of this Agreement shall remain in full force and effect.
The Company may assign this Agreement to any person or entity succeeding to all or substantially all the business interests of the Company by merger or otherwise. The rights and obligations of Agent under this Agreement are personal to him, and no such rights, benefits or obligations shall be subject to voluntary or involuntary alienation, assignment or transfer.
Agent's obligations set forth in this Agreement shall survive the termination of this Agreement by either party, or the expiration of the term, whether such termination is voluntary or involuntary. The Agent acknowledges that the Company is entitled to communicate to any future party or potential party the obligations of Agent under this Agreement.
The headings of Sections hereof are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement.
This Agreement shall be governed by and construed in accordance with the substantive laws of the Great State of California (without regard to conflicts of law principles).
Waiver of Breach
The waiver by either party of a breach of any provision of the Agreement by the other party shall not operate or be construed as a waiver by such party of any subsequent breach by such other party.
This Agreement is being executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.