INVESTMENT DOMINATOR SUBSCRIPTION AGREEMENT
This INVESTMENT DOMINATOR SUBSCRIPTION AGREEMENT (this “Agreement”) is made by and between ORBIT PUBLISHING, LLC, an Arizona limited liability company (“Orbit”, “we”, “our”, “us”), and the party agreeing to these terms and conditions by clicking or checking the “Accept” icon pertaining to this Agreement on the Site (as defined below) (“Customer”, “you”, “your”). This Agreement is effective as of the date Customer clicks or checks such “Accept” icon (the “Effective Date”). Orbit and Customer are sometimes referred to as the “Parties” and each individually as a “Party”.
A. We operate (i) an Internet website located at www.InvestmentDominator.com (the “Site”), and (ii) a subscription service on the Site which provides users with access to and use of a deal management and customer retention management (CRM) software platform (collectively, the “Service”).
B. You desire to subscribe to and use the Service.
Therefore, the Parties agree as follows with the intent to be legally bound.
1. Subscription to Service. You hereby subscribe to, and purchase, the Service described in this Agreement and in Exhibit A attached hereto. In connection with your subscription, you agree to perform your obligations described in this Agreement and in Exhibit A. You agree to access and use, and we agree to provide, the Site and the Service under the terms and subject to the conditions in this Agreement. We are entitled to adjust the functionality, features and capabilities of the Site, the Service and the underlying technical infrastructure in our sole and absolute discretion.
2. License Grant; Use of Service.
(a) License. We grant you a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited right to access and use the Site and the Service during the Term (as defined below) solely for the purposes of (i) managing land and home purchases and sales for your own personal account, and (ii) engaging and managing your investors/partners participating in the transactions described in Section 2(a)(i).
(b) User Responsibilities and Obligations.
(i) You are solely responsible for (A) all activities occurring under your account; (B) maintaining the confidentiality of your account and password; (C) the content of all electronic data submitted to the Service; and (D) setting and modifying your profile and preferences for the Service.
(ii) You shall (A) prevent unauthorized access to, or use of, the Site and the Service, and will notify us promptly of any unauthorized use you become aware of; and (B) comply with all applicable local, state, federal and foreign laws, treaties and regulations in using the Site and the Service (“Laws”).
(iii) You shall use the Site and the Service solely for the purposes described in Section 2(a). You shall not (A) make the Site or the Service (including, without limitation, any content) available to any third party; (B) not share your account password and login credentials with any third party; (C) use, or attempt to use, any content obtained through the Site or the Service for any commercial purpose, or share such content with any third party; (D) send spam or similar unsolicited messages; (E) send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful material; (F) send or store viruses or other harmful or malicious code, files, scripts, agents or programs; (G) interfere with or disrupt the integrity or performance of the Site or the Service or our sites, servers, or networks; or (H) attempt to gain unauthorized access to our systems, networks, infrastructure, the Site or the Service.
(c) Ownership of the Site and Service.
(i) All content (including, without limitation, all text, graphics, videos, and software), technology, documentation, technical materials, and software comprising, underlying and related to the Site and the Service are our sole and exclusive property. Subject to the limited rights expressly granted in this Agreement, we reserve all right, title and interest in and to the Site and the Service (including, without limitation, the content, technology, documentation, technical materials, and software comprising, underlying and related thereto), including all related intellectual property rights. No rights are granted to you other than as expressly described in this Agreement.
(ii) The term “Intellectual Property” means any and all discoveries, improvements, ideas, concepts, creative works, processes, methods, formulas, techniques, know-how, designs, works of authorship, trade secrets, patents, trademarks, copyrights, and any other intellectual property that relates to, or is used to develop or improve, the Site, the Service or our business. Any Intellectual Property made, conceived, developed, or reduced to practice, or caused to be made, conceived, developed, or reduced to practice, by you, alone or in conjunction with others, will be deemed to have been made or developed by you solely for our benefit, will be held in trust for our exclusive use and benefit, and will be our sole and exclusive property. You will not, either during the Term of this Agreement or at any time thereafter, use or disclose to any party our Intellectual Property. You agree to assign, and do hereby assign, to us all right, title, and interest in and to any Intellectual Property, including, without limitation, any “moral” rights which you may have in the Intellectual Property under any copyright law or other similar law. You also agree, during the Term of this Agreement and at any time thereafter, at our request and expense but without further consideration, to review, execute, acknowledge, and deliver any and all papers necessary to secure legal protection for our Intellectual Property in any country in the world.
(iii) You shall not (A) license, sublicense, modify, copy, rent, loan, lease, sell, resell, assign, distribute, reverse engineer, grant a security interest in, transfer any right to, commercially exploit, create derivative works based on, or infringe or violate our intellectual property or other rights in, the Site or the Service; (B) frame or mirror any content forming part of the Site or the Service; or (C) remove or alter any trademarks, or other proprietary notices, legends, symbols or labels appearing on any content accessed through the Site and the Service; or (D) access the Site or the Service in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics of the Site or the Service.
(iv) You warrant that you own or have sufficient legal right to the intellectual property rights in your content and that your content (including, without limitation, any use of your content by us as described in this Agreement), does not violate applicable law or the rights of any third party. Solely for the purposes of (A) displaying your content on the Site and other related Internet sites; (B) processing your content in connection with providing the Service to you; (C) distributing your content, either electronically or through other media, to you; and/or (D) storing or hosting your content in a remote database or on the Site for access by you, you grant us a worldwide, royalty-free, non-exclusive, sublicensable right during the Term to use, reproduce, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish your content and subsequent versions thereof; and to make and/or have made, and to practice any method embodying your content. This license will apply to the distribution and the storage of your content in any form, medium, or technology now known or later developed.
(v) Provided that we do not identify you, you hereby grant us the right to use the data generated, in aggregated form where applicable, from your use of the Site and the Service to maintain and improve the Site and Service, to manage the performance of the Site and Service, and for any other legal purpose.
4. Fees. We will provide you with access to and use of the Site and Service for the fees described in Exhibit A. You will pay such fees as described in Exhibit A. We reserve the right to adjust the fees at any time at our sole discretion. All fees paid to us are non-refundable.
5. Term and Termination.
(a) Term. The term of your subscription will start on the Effective Date and will continue for the period set forth in Exhibit A (the “Initial Term”). Upon expiration of the Initial Term, this Agreement and your subscription hereunder will automatically renew for additional, successive periods each equal in length to the Initial Term (each a “Renewal Term”) (e.g., if the Initial Term is one (1) year, then each Renewal Term will be one (1) year), unless either Party provides notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or the Renewal Term then in effect.
(b) Termination. This Agreement may be terminated pursuant to any of the following provisions:
(i) Default. If a Party fails to perform or comply in any material respect with any of its obligations under this Agreement (except pursuant to a force majeure event set forth in Section 10(e)), and such failure is not remedied within thirty (30) days after receipt of written notice of such failure from the other Party, then the other Party may terminate this Agreement effective upon expiration of such thirty (30) day cure period.
(ii) Default of Certain User Obligations. If you breach any of your obligations under Sections 2(b), 2(c), or 10(a), we may terminate this Agreement effective immediately upon written notice to you.
(c) Effect of Termination. When this Agreement expires or is terminated, you will immediately stop using the Site and the Service.
6. Representations and Warranties. You represent and warrant to, and covenant with, us as follows:
(a) You have the requisite power and authority to execute, deliver, and perform your obligations under this Agreement.
(b) Your execution, delivery, and performance of this Agreement, and the consummation of the transactions described in this Agreement, have been authorized by all necessary actions on your part. This Agreement is valid and binding on you, enforceable against you in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by you do not and will not (i) conflict with, or constitute a default (now or in the future) of any agreement, instrument or other understanding to which you are bound, or (ii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which you are subject.
(d) No consent, approval, order or authorization of, or registration, declaration or filing with, any government authority, body, or any other party is required by you to execute, deliver, and perform under this Agreement.
7. Disclaimers. THE SITE AND THE SERVICE ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. WE MAKE NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SECURITY, ACCURACY, COMPLETENESS, TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE SITE, THE SERVICE, OR ANY OF THE CONTENT, SERVICES, PRODUCTS, SOFTWARE OR OTHER MATERIALS AVAILABLE THROUGH THE SITE. WE DO NOT REPRESENT, WARRANT OR GUARANTY THAT (a) THE SITE OR THE SERVICE WILL BE AVAILABLE, 100% SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SYSTEM OR DATA; (b) THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (c) ANY DATA STORED USING THE SITE AND/OR THE SERVICE WILL BE ACCURATE, RELIABLE, OR SECURE; (d) ERRORS OR DEFECTS IN THE SITE OR THE SERVICE WILL BE CORRECTED; OR (e) THE SITE AND THE SERVICE OR THE SYSTEMS USED BY US TO MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
8. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES IN CONNECTION WITH OR ARISING OUT OF (i) THE SERVICE, (ii) THE SITE, (iii) ANY CONTENT OR OTHER MATERIALS USED THEREWITH, (iv) ANY CONTENT ACCESSED OR ENCOUNTERED ON THE SITE THAT IS SUPPLIED BY THIRD PARTIES, OR (v) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, OUR PERFORMANCE OR FAILURE OF PERFORMANCE HEREUNDER, OR OUR BREACH HEREOF), REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED AND EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR LOSS OF DATA OR OTHER INTANGIBLE LOSSES). IF ANY JURISDICTION DOES NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW, AND IN NO EVENT SHALL SUCH LIABILITY EXCEED $100.
(b) YOU EXPRESSLY AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR OUR PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY US HEREOF, WILL BE TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 5(b)(i) ABOVE. YOU ACCEPT THE RESTRICTIONS ON YOUR RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF YOUR BARGAIN WITH US, AND YOU UNDERSTAND AND ACKNOWLEDGE THAT, WITHOUT SUCH RESTRICTIONS, THE FEES WOULD BE HIGHER.
9. Indemnification. You shall defend, indemnify and hold harmless us and our affiliates, officers, directors, members, managers, equity holders, employees, insurers, legal counsel, representatives, and agents (each an “Indemnitee”) from and against any and all claims (including, without limitation, any investigation, action or other proceeding, whether instituted by a third party against an Indemnitee or by an Indemnitee for the purpose of enforcing its rights hereunder), damages, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) that constitute, or arise out of or in connection with (a) any breach by you of your representations, warranties, agreements and covenants set forth in this Agreement; or (b) your use of the Site and the Service.
(a) Confidentiality. During the Term of this Agreement and at all times thereafter, you will (i) keep confidential and not divulge, furnish or make accessible to any third party any Confidential Information, and (ii) use the Confidential Information solely for purpose of utilizing the Site and the Service during the Term pursuant to the terms and conditions set forth in this Agreement and not for the benefit of any third party. As used herein, “Confidential Information” means all information concerning or related to our business, operations, financial condition or prospects (whether prepared by us, our affiliates, advisors or otherwise, and regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form), and shall specifically include (without limitation): (i) all of our Intellectual Property, software, inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how (including, without limitation, the Site, the Service, and all class content); and (ii) all analyses, compilations, forecasts, data studies, notes, translations, memoranda, or other documents or materials, prepared by or for you containing, based on, generated or derived from, in whole or in part, any Confidential Information.
(b) Electronic Signatures Effective. This Agreement is an electronic contract that sets out the legally binding terms of your purchase of a subscription for the Service. You indicate your acceptance of this Agreement by clicking or checking the “Accept” icon in connection with your purchase of a subscription for the Service from us. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. By clicking or checking the “Accept” icon, you agree to the terms and conditions contained or referenced in this Agreement. When you click or check the “Accept” icon, you also consent to have this Agreement provided to you in electronic form. Please print a copy of this Agreement for your records.
(c) Entire Agreement; Amendment. This Agreement (including, without limitation, all Exhibits hereto) constitutes the entire agreement of the Parties with respect to the transactions contemplated hereby and supersedes all prior and contemporaneous written and oral agreements, representations and communications between the Parties relating to such transactions. This Agreement may be amended, supplemented, or otherwise modified only by a writing signed by both of the Parties, and any such amendment shall be effective only to the extent specifically set forth in such writing.
(d) Equitable Relief. You acknowledge and agree that we would be irreparably damaged in the event that any of the provisions of Sections 2(b), 2(c), 5(c), and 10(a) are not performed by you in accordance with their specific terms or are otherwise breached, and that money damages would not be a sufficient remedy for such breach. Accordingly, you agree that we will be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without any requirement to post bond or other security or to prove actual damage or harm. Such remedies shall not be deemed to be the exclusive remedies for any such breach but shall be in addition to all other remedies available at law or in equity.
(e) Force Majeure. Except as otherwise expressly provided herein, we shall not be liable to you for any delay in or failure of our performance under this Agreement (including, without limitation, our failure to make available the Service or any component thereof) resulting from any act of God, fire, flood, explosion or other natural disaster, actions or impositions by Federal, state or local authorities, strike, labor dispute, vandalism, riot, commotion, act of public enemies, blockage or embargo or any other cause beyond our reasonable control (“Force Majeure”). Upon the occurrence of any such event that results in, or will result in, a delay or failure to perform, we shall be relieved from fulfilling our obligations under this Agreement during the period of such Force Majeure event.
(f) Governing Law; Consent to Jurisdiction. This Agreement is governed by, and shall be construed and enforced in accordance with, the laws of the State of Arizona, without giving effect to any conflict of laws rules, and each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Phoenix, Arizona for the purposes of any action or proceeding arising out of or relating to this Agreement. Each Party hereby consents to such jurisdiction and agrees that venue shall lie in the state or federal courts in Phoenix, Arizona with respect to any claim or cause of action arising under or relating to this Agreement. Each Party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted under this Agreement. If any legal action or any arbitration or other proceeding is brought in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The phrase “prevailing Party” means the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default, judgment, or otherwise.
(g) Non-Disparagement. During the Term of this Agreement, you agree that you will not make any statements (or cause or encourage others to make any statements), written or verbal, that defame or disparage us or our products or services (including, without limitation, the Site and the Service).
(h) Notices. Any notice, demand or request required or permitted under this Agreement shall be in writing and deemed delivered (i) when delivered personally (including by recognized national courier), (ii) five (5) business days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid; or (iii) one (1) business day after sent via email. Notices to (A) us shall be addressed to Orbit Publishing, LLC, 21001 N. Tatum Boulevard, Suite 1630-497, Phoenix, Arizona 85050, Attn: Jack Bosch, Email: email@example.com, and (B) you shall be addressed to the mailing address, and email address on file with us.
(i) Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
(j) Successors and Assigns. You may not assign your rights or delegate or cause to be assumed your obligations hereunder without our prior written consent. Any attempted assignment, delegation or assumption not in accordance with this Section 10(j) shall be null and void and of no force or effect whatsoever. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties.
(l) Survival. The provisions of Sections 2(b)-(c), 3, 4, 5(c), 6-10 hereof will survive any termination or expiration of this Agreement.
(m) Waivers. The due performance or observance by the Parties of their respective obligations under this Agreement shall not be waived, and the rights and remedies of the Parties shall not be affected, by any course of dealing or performance or by any delay or failure of any Party in exercising any such right or remedy. The due performance or observance by a Party of any of its obligations under this Agreement may be waived only by a writing signed by the Party against whom enforcement of such waiver is sought.
(Exhibits to This Agreement Follow)
The Service provides the following functionality:
- 1 User
- 1 website
- No file attachments
- No buyers list
- No integrations with other software
- Task manager
- Accelerated onboarding process
- World-class online support
- 10 Users
- 3 websites
- Unlimited file attachments
- Buyers list
- Integrate with other software
- Task manager
- Accelerated onboarding process
- World-class online support
Orbit is entitled to adjust the functionality, features and capabilities of the Site, the Service and the underlying technical infrastructure in its sole and absolute discretion.
All Fees will be charged to the credit card on file with Orbit.
Standard Rates and Fees May Include:
Set-up fee – one-time fee of $500 payable in advance.
Basic: $97 per month (commencing on the Effective Date), with such fees due, in advance, on the Effective Date and, thereafter, on the first day of each calendar month. For a limited time, the first month’s fees are waived.
Pro: $197 per month (commencing on the Effective Date), with such fees due, in advance, on the Effective Date and, thereafter, on the first day of each calendar month. For a limited time, the first month’s fees are waived.
Pro: $1,997 per year (commencing on the Effective Date), with such fees due, in advance, on the Effective Date, and, thereafter, on each anniversary of the Effective Date.
NOTE: Discounts, promotional offers, and packages that include the Investment Dominator may alter our standard rates and fees and will be defined on their respective order.