This License Agreement (this Agreement) is entered into by and between Wholesale 123, LLC, a Limited Liability Company, organized and operating under the laws of the State of Florida, with a principal business address at 8165 Narrow Leaf Point Sanford, Fl. 32771 and You.

We are the exclusive holder of certain rights in materials and trademarks for the marketing and purchasing of real estate (the “Service”). Subject to the terms and conditions of this Agreement, we grant you the license and rights to use the Service so as to promote your real property business in a Territory herein defined.

 

1. DEFINITIONS

In addition to the terms defined throughout this Agreement, the terms "we", "us" and "our" refer to Wholesale 123, LLC. The term “parties” and “both parties” refer to you and Wholesale 123 LLC combined.

 

2. REPRESENTATIONS

You expressly represent that you are not prevented by any law from entering into this Agreement. If you are entering into this Agreement on behalf of another person or organization, you represent that you are authorized to accept the terms and conditions of this Agreement on behalf of that person or organization.

 

3. FEES

 

In exchange for Services and License hereinafter defined, you shall pay us the fees and costs as under (the “Fees”):

 

 

 

 

 

Such fees shall be paid by check or money order at such times as such fees are due at our primary place of business as listed in this Agreement. Payment shall be received by us on the date as defined as due. In the event payment is not received or is late, we will have the absolute right to terminate service immediately. In the event payment is eventually received, you will pay us the greater of $50 or 10% as a late charge and reconnection fee.

 

We may at our sole discretion, in the event of service termination or revocation of license for non-payment, to terminate this Agreement in accordance with Section 14 of this Agreement.

 

4. TERM    

Term of this Agreement shall commence on the date you accept this Agreement by checking the box at the end of this Agreement and shall terminate one year from the said date (“Termination Date”). At or before such Termination Date, You may request extension of this Agreement upon the same terms and conditions for the same period of time. We, however, have the option, in our sole discretion of denying such requests. We shall also have the right to raise Fees. You have the right to cancel this Agreement with 30 days written notice to us.

 

 

5. ADDITIONAL OBLIGATIONS

 

a) You expressly agree to appropriately use Service and License in the Territory as defined. Appropriateness shall be at our sole discretion. Failure to use such Service appropriately as set out in this Agreement or in our subsequent notification(s) may result in termination of this Agreement in accordance with Section 14. You fully agree to refrain from:

1.         posting, transmitting, displaying, distributing, or promoting any materials, notices, images, or posts that pose threats, are deemed defamatory, contain material misrepresentations of fact, are abusive, libelous, racist, sexist, may be deemed as child exploitation for posts or materials pertaining to individuals under the age of 18, may be construed as sexually explicit in nature, pornographic, obscene, vulgar, or otherwise profane, or any transmission that may give rise to civil liability including those posts that violates or infringes upon the intellectual property rights of others;

2.         encouraging or promoting criminal behavior or any type of behavior or conduct that would result in a criminal offense or otherwise violate local, state, federal laws;

3.         developing or creating restricted pages that are protected by a password not universally known;

4.         using the Service as a gateway to another server;

5.         linking to site that contain information as stated in Section 5a) 1to 4 above;

6.         inhibiting any other individual from accessing our Services;

 

b) You agree to conduct business in a legal, ethical, and responsible manner.  Multiple complaints from, but not limited to: the Better Business Bureau, the Attorney general’s office, sellers of houses, and/or buyers of houses will constitute a material breach of this Agreement.

 

c) In the event that you do not pay all costs as outlined in Section 3 within thirty five (35) days of the commencement of this agreement, the individual that is signing this Agreement on behalf of any corporation, LLC, or partnership, duly organized, hereby personally guarantees the terms of this Agreement including all fees and costs due under Section 3.

 

6. LICENSE

 

We hereby grant to you a non-exclusive, non-transferable, revocable license (the “License”). In acceptance of the use of such License, you agree to receive phone calls and other communication from homes and businesses in your Territory, hereinafter defined, generated from our Services and website under this Agreement.  You expressly acknowledge that the rights granted herein to you are licensing rights and are not intended or to be construed as the granting of any franchise rights.  As a part of this Agreement, we you full use of our slogan “________________________________” Lucky Buys Yucky House™ and marketing material. We will deem such use proper and such use will not defame, mutilate, blur or otherwise compromise the integrity of any intellectual property rights. You expressly acknowledge that we own all intellectual property rights in our slogan and marketing materials. The License does not grant ownership in any intellectual property owned by us. All ownership shall remain vested in us. You will not register any trademark or trade name in any manner whatsoever in connection with the Service hereunder.  No other rights to the Intellectual Property, other than those expressly granted herein, shall arise by operation of law or implication.  Nothing contained herein shall be construed as granting you any ownership rights in the Intellectual Property or to create a partnership or joint venture between you and us. 

 

We will continue to have the right to use any intellectual property rights granted by the License for our own use and purposes so long as such use does not interfere with your rights under this Agreement. In the event we desire to release franchise rights in the Territory, you will have the right to first refusal for a period of thirty (30) days to acquire such rights. Such rights shall only be offered and accepted under those same terms that would be offered to any third party.

 

7. TERRITORY 

 

Our territories are defined by Nielsen Media Rankings. There are a couple hundred territories in the USA. You must choose your Territory from the Nielsen Media Rankings and inform us by email before accepting this Agreement. 

 

The License granted shall cover the Territory you have informed us by email before accepting this Agreement. Such License in said Territory shall be exclusive for the first sixty (60) days from the date on which you accept this Agreement. After the first sixty (60) days, the License shall become non-exclusive. You have the option of making the License exclusive after the first sixty (60) days upon payment of an additional monthly fee of $200. If you do not opt for exclusive license after the first sixty (60) days, you agree to not over saturate the Territory so that it is not feasible to conduct business effectively in Territory. Such over saturation shall be at our sole discretion and opinion. 

 

8. SERVICE

 

We will provide use of current and future commercials and other marketing materials which contain the slogan LUCKY BUYS YUCKY HOUSES combined with the phone number 1-800-22-LUCKY to you in you Territory as defined in Section 7 . You shall only be allowed to use the phone number 1-800-22-LUCKY on television commercials supplied by us. You expressly acknowledge and understand that the phone number 1-800-22-LUCKY is a shared phone number and if you use it on anything other than television commercials provided by us it could result in loss of leads.

 

We will provide you one (1) website plus hosting and a domain name.

 

We may at our sole discretion and in the interest of both parties establish or amend rules and regulations relating to the Services and License. We will establish or amend such rules with thirty (30) days notice to you.

 

You will use the services for business purposes only. You will not misuse or abuse License or Service and such misuse may be a basis for termination of this Agreement. We reserve the rights to charge you appropriately for such misuse. You will also give us adequate notice of such misuse prior to any termination of this Agreement. Misuse shall be defined at our sole discretion.

 

9. ADVERTISING

 

Unless otherwise noted herein, you will be responsible for all advertising and promotion.

 

All advertising, promotional material, marketing material, press releases, announcements, circulars, or other solicitations (“Advertising Materials”) pertaining to Service and/or License must conform to the our rules and regulations on Advertising (“ROA”). We may amend such ROA from time to time with notice to you as we see fit. Presently, we have adopted the Better Business Code of Advertising that can be found at http://www.bbb.org/membership/codeofad.asp. You are not required to become a member of The Better Business Bureau.

 

If we disapprove any Advertising Materials, you will not distribute such Advertising Materials. In the event such materials have already been distributed, you will cease and desist distributing further materials. Such Advertising Materials created or distributed by other sources other than those sources as provided and purchased through us shall NOT contain the phone number 800-22-LUCKY. Such use is strictly prohibited. On such material, you will only be entitled to use our trademarks and logos in such form as approved by us. We may, at our sole discretion, allow use of pre-produced marketing materials. Such use shall not represent any vested interest in such materials on your part.

 

We may develop and produce advertising materials related to the Service. Such advertising materials may be provided to you at no charge. You will not be obligated to use such materials but may have the option to do so with our written permission. Media outlet advertising, such as advertising in newspapers, magazines and other publications as well as broadcasts on radio and television may be made available for purchase at prices as set forth in Section 2. All such payments for use of such advertising materials provided by us are due on the 15^th of each month prior to service.

 

If you use in excess of 300 minutes per month in phone usage fees during any one month period when you spends less than $4000 in advertising expenses through an advertising agency of our choice while connected through 1-800-22-LUCKY, we will bill you in the amount of 18.9 cents per minute, which is the actual cost. We will not make a profit on such charges. If you spend in excess of $4000 in advertising expenses during any one month period through advertising agency of our choice, then you will be entitled to 600 free minutes of usage per one month period. Each additional $4000 spent in advertising per month though the advertising agency of our choice shall result in an additional 300 minutes per 30 day period of phone usage minutes while connected through 1-800-22-LUCKY.

 

10. SATISFACTION

 

So long as you incur advertising expenses equal to or greater than $3000 with advertising agency of our choice, we will guarantee that you receive at least one communication by phone, email, or other communication by a party interested in engaging in business with you for every $100 spent by you (such communications are also referred to as “Leads”). If you receive no such communication within 30 (thirty) days of service, you will be entitled to a full refund of the set up fee and license fees paid within such 30 day period. We do not guarantee the quality or success of such leads.

 

Guarantee expires on day 30 of the service and is not a guarantee for the life of this Agreement or for the life of any contractual relationship between both parties. If you are not satisfied within the terms of this section, you must notify us within 35 days of the date on which you accepted this Agreement. If you don’t notify us within 35 days, this Agreement shall be subject to term written in Section 4 of this Agreement

 

11. INDEMNIFICATION

You hereby agrees to indemnify, defend and hold harmless us from and against any and all claims, demands, losses, actions, lawsuits and other proceedings, judgments and awards, and costs and expenses (including reasonable legal fees), arising directly or indirectly, in whole or in part, out of any matter related to any action taken by us within the scope of the Service or authority hereunder, excluding only such of the foregoing as arise from our fraudulent, negligent, reckless or willful act or omission.

 

12. INTELLECTUAL PROPERTY RIGHTS MISUSE

 

If you cause any intellectual property rights allowed to be used under the License granted herein to be misused, altered, blurred, or otherwise distorted, we may find you in breach of this Agreement. In accordance with Section 14 of this Agreement, we will have the right to terminate this Agreement immediately with no refund to you. You, upon such notice, shall immediately cease and desist any use of License as it would be thereby revoked.

 

13. MERGER, SALE, TRANSFERABILITY

 

Without our express written consent, this License and such Service is deemed to be non-transferable. In the event that you wish to assign such rights and responsibilities due to merger, sale, or other transfer, you must seek such permission from us 30 days prior to such merger, sale, or transfer takes place.

 

If we do not approve of such transfer, you may treat such transfer as a violation of this Agreement and shall terminate this Agreement in accordance with Section 14 of this Agreement.

 

14. TERMINATION

 

You expressly agree that we may terminate your License and access to the Service for reasons including, but not be limited to, breaches or violations of this Agreement or any of our Privacy Policies. You may terminate this Agreement, by sending to us such request in writing within thirty (30) days to terminate the License for reasons including discontinuance or material modification to the Services, unexpected technical issues or problems, extended periods of inactivity and requests by law enforcement or other government agencies. Termination of your License includes termination of access to the Service, deletion of your information such as your e-mail ID and Password and deletion of data in as permitted or required by law.

 

In the event of Termination, you must immediately remove all our information from your materials and computers, cease accessing and utilizing Service, cease advertising Service, cease using License for any reason. Such continued used shall be deemed infringement upon our intellectual property rights.

 

In the event of Termination, all Confidential Information, as hereinafter defined, shall promptly be destroyed or returned to its rightful owner.

 

In the event Termination, we will cease routing calls to you.

 

In the event of Termination, any other rights or claims a party may have against the other shall not be prejudiced.

15. DISCLAIMER OF WARRANTIES.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICE AND LICENSE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR VIRUS FREE. USE OF THE SERVICE WILL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM US, OUR EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.

16. LIMITATION ON LIABILITY 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE THE SERVICE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US RELATED TO THE SERVICE SHALL BE CANCELLATION OF THE SERVICE.

17. CONFIDENTIAL INFORMATION 

 

It is understood and agreed to that the parties would like to exchange certain information that may be considered confidential.  To ensure the protection of such information and in consideration of the agreement to exchange said information, the parties agree as follows:

 

a.         CONFIDENTIAL INFORMATION

The confidential information to be disclosed under this Agreement (“Confidential Information”) can be described as and includes:

 

Technical and business information relating to proprietary ideas, patentable ideas and/or trade secrets, existing and/or contemplated products and services, research and development, production, costs, profit and margin information, finances and financial projections, customers, clients, marketing, and current or future business plans and models, regardless of whether such information is designated as “Confidential Information” at the time of its disclosure.

 

In addition to the above, Confidential Information shall also include, and the parties shall have a duty to protect, other confidential and/or sensitive information which is (a) disclosed as such in writing and marked as confidential (or with other similar designation) at the time of disclosure; and/or (b) disclosed by in any other manner and identified as confidential at the time of disclosure and is also summarized and designated as confidential in a written memorandum delivered within thirty (30) days of the disclosure.

 

b.         USE OF CONFIDENTIAL INFORMATION

The parties shall use the Confidential Information only for the purpose of evaluating potential business and/or investment relationships.

 

 

c.         NON DISCLOSURE

The parties shall limit disclosure of Confidential Information within its own organization to its directors, officers, partners, members and/or employees having a need to know and shall not disclose Confidential Information to any third party (whether an individual, corporation, or other entity) without prior written consent.  The parties shall satisfy its obligations under this paragraph if it takes affirmative measures to ensure compliance with these confidentiality obligations by its employees, agents, consultants and others who are permitted access to or use of the Confidential Information.

 

d.         OBLIGATION          

This Agreement imposes no obligation upon the parties with respect to any Confidential Information (i) that was possessed before receipt; (ii) is or becomes a matter of public knowledge through no fault of receiving party; (iii) is rightfully received from a third party not owing a duty of confidentiality; (iv) is disclosed without a duty of confidentiality to a third party by, or with the authorization of the disclosing party; or (v) is independently developed.

 

e.         CONSTRUCTION

This Agreement shall not be construed as creating, conveying, transferring, granting or conferring upon either party any rights, license or authority in or to the information exchanged, except the limited right to use Confidential Information specified in Section 17b.  Furthermore and specifically, no license or conveyance of any intellectual property rights is granted or implied by this Agreement.

 

             

f.          RETURN OF INFORMATION

Upon our request of you must return all Confidential Information in whatever form. All information which by virtue of its nature cannot be returned, or which can be deleted, must be destroyed or deleted and so certified by you.

 

18. NON COMPETE

 

For a period of two (2) years after the termination of this Agreement, you expressly agree that you will not directly or indirectly engage in competition in any way with us by being associated as an owner or controller with any business that may compete with our business within a fifty (50) mile radius in any area that we may be engaged in business or any area for which we have submitted proposals for business. The term "competition" as used in the foregoing shall include, but not be limited to, attempts to divert clients, suppliers or accounts from us and attempts to induce our employees to terminate their employment. You expressly agree that we are entitled to enforce the provisions of this Section by any legal means. Such means shall include that right to enjoin you by legal process from violating the provisions hereof.

 

 

19. FORCE MAJEURE 

 

Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

 

20. ARBITRATION

 

If at any time any controversy should arise between the parties regarding anything pertaining to this Agreement which the parties hereto do not promptly adjust and determine, then our written orders shall be followed and said controversy may be decided by binding arbitration at our sole discretion.  If we select binding Arbitration, it shall be pursuant to the rules of the Judicial Arbitration and Mediation Service (JAMS). The award of the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any in any court having jurisdiction thereof. The venue of arbitration will be in Florida.  You expressly consent to the arbitrator who is appointed in said proceeding by us.

 

21. GOVERNMENT REGULATIONS 

 

You warrant and represent that you are, and have been, in material compliance with all laws applicable to it or the operation, use, occupancy or ownership of your assets