MARKETING SERVICES AGREEMENT
WHEREAS, ARES Publishing is a corporation in Nevada in the business of marketing, developing, sorting and organizing real estate leads and listings and other valuable, related services such that their customers can more efficiently and effectively purchase real property for investment purposes or otherwise within the United States of America.
WHEREAS, Student/Client is an entity desiring to purchase real property in the United States of America for investment and other purposes.
NOW, THEREFORE, In consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ARES Publishing and Student/Client (“Parties”) agree as follows:
1. Term – The initial term of this Agreement shall commence on the Effective Date and shall continue in full force and effect for a period of one (1) month after the Effective Date (“Initial Term”). This Agreement shall automatically thereafter renew for additional thirty (30) day terms, unless written notice of termination is sent by the canceling Party to the other Party in accordance with Section 11 at least fifteen (15) days prior to expiration of the Initial Term or any subsequent term.
2. ARES Publishing Obligations – ARES Publishing does hereby agree to provide marketing, developing, sorting and organizational services to Student/Client on a continuous basis throughout the term of this Agreement. ARES Publishing will provide these services in such a way as to cause the Student/Client to be able to more efficiently and effectively invest in certain real property markets within the United States.
3. Student/Client Obligations – Student/Client agrees to pay ARES Publishing a monthly fee as compensation for all marketing, development, sorting and organizational services and any other related services performed by ARES Publishing for Student/Client. This fee shall be a flat rate payable monthly and shall be due on the 30-day anniversary of the clients first subscription date.
4. Confidential and Propriety Information – Student/Client acknowledges and agrees that the services provided by ARES Publishing to Student/Client shall include the use of proprietary information and technologies, and highly developed skills and methods, which have been honed over years by the experience and diligence of ARES Publishing employees and/or subcontractors. Such methods, skills and technologies shall remain in the exclusive control and possession of ARES Publishing. Should these technologies, proprietary information, methods or skills become known to Student/Client at any time, Student/Client shall do all in his power to keep such information private and confidential. Student/Client agrees that this information will remain the sole and exclusive property of ARES Publishing at all times and shall never be duplicated, reverse engineered or copied in any way by Student/Client, his agents and assigns, partners or affiliates or any other person with any relation to Student/Client. Additionally, Student/Client agrees that he will not use proprietary information of ARES Publishing in any way, including direct or indirect competition with ARES Publishing or real estate practices, investment or otherwise, outside the scope of this Agreement.
5. No Conflict – Each Party represents and warrants to the other Party that it is under no current obligation or restriction, and will not knowingly assume any such obligation or restriction that would interfere, conflict with, or present a conflict of interest, concerning the performance to be rendered under, or the rights granted in this Agreement.
6. Default and Termination – If either Party materially breaches any term or condition of this Agreement and fails to cure such breach within ten (10) days after receiving written notice of the breach, the non-breaching Party may terminate this Agreement on written notice to the breaching Party at any time following the end of such ten (10) day cure period. Either Party may terminate this Agreement immediately by giving written notice to the other Party, if the other Party (a) becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they come due); (b) makes an assignment for the benefit of creditors; (c) commences, or has commenced against it, a proceeding under any bankruptcy, insolvency or debtor´s relief law; (d) has a receiver appointed over it or its property; or (e) has ceased its ongoing business operations. In addition to the aforementioned, Student/Client shall become in default of this Agreement immediately upon the failure to timely pay any and all fees due hereunder as outlined above in paragraph 3. Notice of default shall be provided in writing to Student/Client by ARES Publishing and any and all obligations of ARES Publishing shall immediately cease.
7. Effect of Termination or Expiration – Upon termination or expiration of this Agreement, (a) ARES Publishing shall cease all marketing, developing, sorting and organizing of leads and real property information on behalf of Student/Client, (b) Student/Client shall return to ARES Publishing all copies of any confidential information and other documents, content or materials provided to Student/Client by ARES Publishing under this Agreement which are then in Student/Client´s possession, and (c) ARES Publishing shall return to Student/Client all copies of any Student/Client confidential information and other documents, content or materials provided to ARES Publishing by Student/Client under this Agreement, if any, which are then in ARES Publishing´s possession. Following such termination or expiration, each Party´s rights and obligations with respect to fees payable under this Agreement and such other provisions that by their nature are intended to survive termination shall continue in effect.
8. Damages – Each party understands and agrees that it shall have no right to recover from the other party hereto, under or in connection with this Agreement under any theory whatsoever, for punitive, exemplary, special, pain-and-suffering, mental distress, incidental, indirect and/or consequential damages, even if such party is aware of the possibility of such damages. The foregoing statement shall not hinder, in any fashion, the rights of the parties to actual damages and such remedies in both law and equity as a court may deem equitable and just should a breach of this Agreement occur.
9. Warranties and Nature of Transaction – ARES Publishing hereby makes no warranties, guaranties or promises of profits, earnings or increases in income due to the investment in or acquisition of real property under this Agreement. Student/Client understands that such capital investments in and acquisition of real properties are in no way guaranteed to be profitable and that such capital investments and acquisitions are done and made at Student/Client´s own peril and are for investment purposes only. Additionally, ARES Publishing makes no warranties regarding the quality or quantity of individual real estate. ARES Publishing is not in the business of recommending investment properties based on the quality of construction, quality of the real estate location or market or any other similar criteria. ARES Publishing makes no warranties as to the fitness of the investment Student/Client may make. ARES Publishing is simply providing information to the Student/Client about possible investment opportunities and makes no opinion as to the propriety of the potential investments themselves.
10. Assignment – Neither Party may assign this Agreement or any rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. However, no consent shall be required for either Party to assign this Agreement, along with such party´s rights and obligations hereunder, in connection with such Party´s merger into another entity or the sale of all or substantially all of such Party´s assets. Any attempted assignment in violation of this Paragraph 8 shall be void.
11. Notices – Any notices and other communications to a Party required or permitted under this Agreement shall be effective if in writing and delivered personally or sent by e-mail, fax, Federal Express, another generally recognized overnight carrier or First Class U.S. Mail, addressed to such Party at its address or fax number set forth on the signature page to this Agreement, or another address or fax number specified in a notice given to the other Party under this paragraph. Such notices or other communications shall be deemed effective when actually delivered or received at such address or fax number.
12. Relationship of the Parties – ARES Publishing and Student/Client intend to remain independent parties and nothing contained in this Agreement shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture, and neither Party shall hold itself out as an agent, legal representative, partner, subsidiary, joint venture, servant or employee of the other. Neither Party nor any officer or employee thereof shall, in any event, have any right collectively or individually to bind the other Party, to make any representations or warranties, to accept service of process, to receive notice, or to perform any act or thing on behalf of the other Party, except as authorized in writing by such other Party in its sole discretion.
13. Force Majeure – Neither Party shall be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises from circumstances beyond the control and without the fault or negligence of such Party. Such causes may include, without limitation, acts of God, acts of local, state or national governments or public agencies, acts of public enemies, acts of civil or military authority, labor disputes, material or component shortages, embargoes, rationing, quarantines, blockades, sabotage, widespread or extended utility or communication failures or delays, earthquakes, fire, flood, epidemics, riots or strikes. The time for performance of any act delayed by any such event may be postponed for a period equal to the period of such delay. However, this paragraph shall not excuse or delay for more than fourteen (14) days Student/Client´s obligation to make any monetary payment to ARES Publishing when due under this Agreement.
14. Time – TIME IS OF THE ESSENCE of this Agreement with respect to each and every provision of this Agreement in which time is a factor.
15. Cumulative Remedies – Unless expressly set forth herein to the contrary, all remedies set forth in this Agreement are cumulative and are in addition to any and all remedies provided to either Party at law or in equity.
16. Waiver and Modification – No waiver by either Party of the breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same provision or the waiver of any other provision, nor shall either Party´s continued dealing with the other Party following a breach of any provisions hereof be deemed to be a waiver of that or any other breach. No change in, modification of, or addition, amendment or supplement to this Agreement shall be valid unless set forth in writing and signed by each of the Parties.
17. Successors – This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
18. Applicable Law – This Agreement and the rights and obligations of the Parties hereunder shall be governed by, and construed and interpreted in accordance with, the laws of the State of Nevada, without regard to the conflict of laws provisions thereof.
19. Entire Agreement – This Agreement sets forth the entire agreement between the Parties, and supersedes all prior agreements or understandings between the Parties pertaining to the subject matter hereof.
20. Severability – If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and shall be binding on the Parties and enforceable in accordance with their terms, as though the invalid or unenforceable provision (or portion thereof) was not contained in this Agreement.
21. Counterparts – This Agreement may be executed in one or more counterparts, each of which shall be deemed an original agreement, but all of which together shall constitute one and the same instrument.
22. Drafting – Any rule of law or legal decision that would require interpretation against the drafter of this Agreement is not applicable and is waived.
23. Full Knowledge – By their signatures, the Parties acknowledge that they have carefully read and fully understand the terms and conditions of this Agreement, that each Party has had the benefit of counsel, and that each Party has freely agreed to be bound by the terms and conditions of this Agreement.
24. Headings – The descriptive headings of the various sections or parts of this Agreement are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
25. Attorneys´ Fees – If there is arbitration or other legal proceeding to enforce or interpret any of the provisions of this Agreement, or relating to the transactions contemplated by this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys´ fees and costs incurred in that arbitration or proceeding.
26. Further Actions – Each Party agrees to execute and deliver any further documents and to do any additional acts reasonably required to carry out the terms of this Agreement.
WHEREFORE, The Parties have executed this Agreement as of the day and year set forth in the first paragraph above.
ARES Publishing, Inc.
715 Arcadia Circle
Huntsville, AL 35801