ERS Enterprises, P.C.
This Coaching Agreement ("Agreement") is entered into and made effective as of date of registration, (the "Effective Date"), by and between ERS Enterprises, P.C., a Nebraska professional corporation (“ERS”), and registered member of ERS product offerings (“The Client”).
R E C I T A L S:
WHEREAS, ERS is in the business of providing coaching, systems, strategies, and accountability to individuals interested in expanding their knowledge in and around residential real estate to The Client, along with certain other back office services;
WHEREAS, ERS desires to provide The Client registered for the "Team Leader" product, on a non-exclusive basis, a weekly livestream feed of their flagship team, Omaha’s Elite Real Estate Group’s, Monday agent training, Wednesday dialogue training, Thursday team leader coaching call, designated Special Events, access to the private ERS Google Drive, and access to the ERS Livestream Facebook community. All live feeds will be recorded and made available to view at a later date. ERS desires to provide The Client registered for the "Agent" product, on a non-exclusive basis, Monday agent training and Wednesday dialogue training. The Client desires to accept such engagement, in accordance with the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Payment Terms. The Client agrees to pay ERS $997.00 per month with a one-time $997.00 account setup fee for selecting the "Team Membership" monthly subscription. The Client agrees to pay ERS $97.00 per month with a one-time $97.00 account setup fee for selecting the "Agent Membership" monthly subscription. These prices may change subject to ERS providing The Client a voucher that my increase or decrease the monthly subscription price, and/or the one-time account setup fee. The Client understands that this authorization will remain in effect until cancelled in writing, and agrees to notify Elite Real Estate Systems in writing of any changes in the account information or termination of this authorization at least 30 days prior to the next billing date. If the payment dates fall on a weekend or holiday, The Client understands that the payments may be executed on the next business day. The Client acknowledges that the origination of ACH transactions to their account must comply with the provisions of U.S. law. The Client certifies that he/she is an authorized user of the credit card used for registration and will not dispute any scheduled transactions with their bank or credit card company; so long as the transactions correspond to the terms indicated in this Agreement.
2. Term; Termination. This Agreement will commence on the Effective Date of initial registration and will remain in effect on a month-to-month basis unless and until either party provides the other party with written notice, 30 days prior to termination, of its intention to terminate the Agreement, for any reason or no reason, Sections 3-9 and this Section 2 shall survive the termination of this Agreement, to the extent applicable. The Client will not be subject to a 30-day notice of cancellation if his/her's subscription is under a special promotional period or has had an active subscription for a minimum of one (1) year from the date of registration. A 30-day written notice of termination is required for any Client not under a special promotional period and has had an active subscription for less than one (1) year based on the initial registration date. The Client understands that s/he will incur one final payment on his/her regular billing date that occurs within the 30-day notice of cancellation. The Client will have access to all features and benefits of his/her selected level of membership for 29 calendar days after his/her last payment date.
3. Intellectual Property. ERS shall retain ownership of all intellectual property rights, including, without limitation, all patents, inventions, Marks, copyrights, designs, plans, strategies, concepts, ideas, trade secrets and know-how (“Intellectual Property”), embodied in or related to ERS. Nothing in this Agreement shall be construed to grant or transfer to The Client any right, title, or interest in or to any Intellectual Property owned by ERS. The Client shall not share, modify, alter, adapt, copy, decompile, disassemble, or reverse engineer ERS’s (“Intellectual Property”).
4. Confidentiality. During the term of this Agreement, ERS may provide The Client with certain confidential and proprietary information (“Confidential Information”). Confidential Information includes, without limitation, the terms of this Agreement, the Intellectual Property, ERS’s business plans, financial and accounting information, technical data, computer programs, customer lists, marketing strategies, operating manuals and know-how, and any other information of ERS that is marked “confidential” or “proprietary,” any information that is orally disclosed and identified as confidential at the time of disclosure, as well as any information or material which, by its nature and under the circumstances surrounding its disclosure, is generally considered confidential, regardless of whether it is properly marked or identified as such. Confidential Information does not include information that (i) is publicly known at the time of its disclosure or becomes publicly known through no fault of The Client; (ii) is lawfully received by The Client from a third party not under an obligation of confidentiality to ERS; or (iii) is independently developed by The Client without use of or reference to ERS’s Confidential Information. The Client shall not use the ERS’s Confidential Information except to the extent necessary to perform its obligations under this Agreement and shall restrict its disclosure of The Client’s Confidential Information to those of its officers, employees, and agents who have a need-to-know in order for The Client to perform its obligations hereunder. The Client shall remain liable for any breach of this Section 4 by its officers, employees, and agents. In the event The Client is required to disclose any Confidential Information by a governmental agency, court order or other legal process, The Client may do so, provided that The Client shall (x) first notify ERS of such requirement; (y) cooperate with ERS in its efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information; and (z) disclose only that portion of the Confidential Information that is legally required.
5. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY THE OTHER PARTY, A REFERRED CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY OF THE LIMITED REMEDIES OF THIS AGREEMENT FAILS TO FULFILL ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ERS’ AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY The Client DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
6. Indemnification. The Client agrees to indemnify and hold harmless ERS and its directors, officers, agents and employees (the “Indemnified Parties”) from and against any and all claims, demands, liabilities, damages, losses and expenses (including reasonable attorneys’ fees) arising out of or related to The Client’s (i) negligence or willful misconduct; (ii) breach of any term of this Agreement; or (iii) violation of any law, rule or regulation.
7. Relationship Between the Parties. The relationship between the parties is that of independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
8. Notices. All notices required or permitted to be given hereunder shall be in writing and shall be (i) personally delivered to the party, (ii) sent by certified mail, postage prepaid, or (iii) sent by prepaid overnight nationally recognized courier, properly addressed to a party at the address set forth below its signature hereto or at such other address as shall be designated by such party in a written notice to the other party. All such notices and communications shall be effective (i) if personally delivered, when delivered, (ii) if sent by certified mail, three days after having been deposited in the mail, postage prepaid, or (iii) if sent by overnight courier, one business day after having been given to such courier.
9. Miscellaneous. The parties hereto shall take such actions, or execute and deliver such further documents, as are reasonably necessary, appropriate or desirable to give effect to the terms of this Agreement. The terms, covenants, and conditions of this Agreement may not be altered, changed or modified except by in writing signed by the parties hereto. Neither party shall assign this Agreement, in whole or in part, without the prior written consent of the other party, except that either party may assign this Agreement in the event of a change in control of such party, by merger or otherwise, or a sale of all or substantially all of such party’s assets. This Agreement and the Schedules attached hereto, each of which is incorporated herein by this reference, constitutes the entire agreement of the parties hereto respecting the subject matter hereof and shall supersede and replace all prior and contemporaneous agreements and understandings between the parties hereto concerning the subject matter hereof. This Agreement is made and entered into for the sole benefit of the parties hereto, their successors and permitted assigns, and no other person shall be a direct or indirect beneficiary of, or have any direct or indirect cause of action or claim under or in connection with this Agreement. The provisions of this Agreement shall be deemed to be independent and several in that the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any other provision hereof, and this Agreement shall be construed as if such unenforceable provision had not been contained herein. The waiver of any breach of this Agreement by any party hereto shall not constitute a continuing waiver, or a waiver of any other breach, of the same or any other provision of this Agreement. This Agreement shall be controlled by, and is to be construed under, the laws of the State of Nebraska. Any suit arising from or in any way related to this Agreement or the subject matter hereof shall be filed in the state or federal courts located in Douglas County, Nebraska.
10. Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, all of which together shall constitute one and the same instrument.