MARKETING SERVICES AGREEMENT
(REAL ESTATE PROFESSIONAL)
This Marketing Services Agreement ("Agreement") is between Countrywide Home Loans, Inc., having an
address at 4500 Park Granada, Calabasas, California 91302 ("Countrywide"), and
#$14#$ #$19#$ ("Company"), having an address #$72#$ #$73#$ #$11#$ #$69#$ #$88#$ and shall be
effective as set forth in Section 5.1 hereof (“Effective Date”).
Countrywide is one of the nation’s largest residential mortgage lenders and services. Countrywide offers
consumers a variety of mortgage loan products, including, but not limited to, fixed and variable rate loans.
Company is a real estate brokerage firm with offices in #$70#$. Company wishes to market to its retail
customers ("Customers") the availability of Countrywide as a preferred mortgage provider.
NOW, THEREFORE, the parties enter into this Agreement as follows:
1. COMPANY MARKETING RESPONSIBILITIES
1.1 Promotional Activities
Company will use commercially reasonable efforts, in compliance with all applicable laws and regulations,
to promote the availability of Countrywide loan products by performing or providing, at a minimum, four
of the seven services in the first category and two of the four services in the second category on an ongoing
basis (collectively, "Marketing Responsibilities"). The first category of Marketing Responsibilities is as
? Displaying prominent Countrywide signage inside or outside homes for sale (e.g. "Loans
Available From Countrywide" yard signs in front of selected listed homes);
? Displaying advertising on the Company web site (such as banners, text, and graphics with
hypertext links from the web site for click-through access to countrywide.com or
? Conducting mailing campaigns featuring Countrywide loan products to Customers who express
interest in purchasing a home (e.g., sign Open House sign-in sheets);
? Conducting e-mail campaigns promoting Countrywide to clients in Company’s prospect database
or on Company’s prospect marketing lists;
? Conducting co-branded newspaper, radio and/or billboard campaigns including the Countrywide
logo, tag line and telephone number;
? Arranging for Countrywide sales professionals to participate in special events (such as seminars
for Customers or Open House events); and
? Allowing Countrywide to post flyers directed to consumers in the sales offices or branches
The second category of Marketing Responsibilities is as follows:
? Arranging for Countrywide sales representatives to present products and offering at sales meetings;
? Providing training regarding the advantages of Countrywide’s products and services to Company
? Allowing Countrywide to insert flyers and other marketing material in agents’ mail boxes and
distribute marketing material to agents in the sales offices;
? Allowing Countrywide to place marketing material stands in lobbies or other mutually agreed
upon locations at Company’s sites, for the exclusive purpose of displaying signage, flyers,
brochures and other Countrywide marketing materials. Company shall keep the display stands
stocked with Countrywide marketing materials at all times. Company shall maintain the display
stands in a clean, safe, and working condition, and shall promptly notify Countrywide in the event
a display stand needs repair. Countrywide maintains all ownership rights and interest in the
display stands; and
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? Promoting Countrywide products to employees through an intranet, company newsletter or other
forms of internal communications.
1.2 Real Estate Professional Marketing Options Checklist
Upon Company’s execution of this Agreement, and from time to time as Countrywide may request during
the term of this Agreement, Company shall provide a completed Real Estate Professional Marketing
Options Checklist to Countrywide in the format attached as Exhibit A (“Marketing Options Checklist”).
In addition, Company shall introduce each Customer who (a) inquires about a home loan, (b) would likely
qualify for financing at Countrywide, and (c) has provided their consent to such introduction to a
designated Countrywide representative, if present and available, or, in the alternative, shall promptly
transfer contact information such as the Customer’s name, address, phone number and e-mail address (if
available) to a designated Countrywide representative by telephone, fax or e-mail. Upon execution of this
Agreement and at least one month before the start of each calendar quarter, Company shall provide a
completed business partner profile to Countrywide in the format attached as Exhibit B.
1.3 Desk Use
Upon Countrywide’s request, and after all required licenses have been obtained, Company may provide a
desk for the use of a Countrywide representative at no cost. If so, Company shall permit the Countrywide
representative to occupy the desk during Company’s business hours for the purposes of consulting with
Customers about Countrywide products and services and taking applications at the request of Customers.
1.4 Compliance with Laws Applicable to Electronic Mail Solicitations
In connection with its performance of the Marketing Responsibilities, Company represents and warrants
that it shall comply with the content, labeling, opt-out, e-mail address collection methods, and other
requirements set forth in the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003” (the “CAN-SPAM Act of 2003”) and any other applicable federal, state and local law regarding
commercial e-mail solicitations.
2. COUNTRYWIDE’S LOAN ORIGINATION RESPONSIBILITIES
Countrywide will make available to Customers its standard loan products and programs. Some loan
products or programs may not be available in all areas. All Customers will be offered Countrywide’s then
current interest rate and discount point structure. Countrywide may adjust its prices, from time to time, in
its sole business judgment
Countrywide will take applications at Company’s office or use a local retail branch to accept Customer
applications. Information will be disseminated to Customers and applications will be taken by Countrywide
in compliance with Countrywide’s standard business practices. Countrywide warrants and represents to
Company that it will evaluate loan applications, notify loan applicants, and originate mortgage loans for
qualified Customers in compliance with all applicable state and federal laws and regulations. Countrywide
will perform all the tasks necessary to evaluate and close the loan, including consulting the Customers
regarding various loan products, taking and processing the application, underwriting, closing, and funding
the loan. Loans will be closed in the name of Countrywide. In addition, Countrywide expects to service
most or all of the loans but reserves the right to transfer any mortgage servicing rights in its sole discretion.
3. MARKETING SERVICE FEES TO COMPANY
3.1 Initial Marketing Fee
In consideration for Company’s performance of the Marketing Responsibilities set forth in Section 1,
Countrywide shall initially pay Company a monthly fee of $#$49#$ for six (6) months following the
Effective Date. The Marketing Fee is based upon the parties’ expectation that (a) the fee reflects the
reasonable value of the services to be provided and (b) the fee is within Countrywide’s marketing budget
for similar marketing services. The first Marketing Fee shall be paid within thirty (30) days of the Effective
Date. Each subsequent Marketing Fee will be paid within the first fifteen (15) business days of the month
for the services to be provided during that month. Company agrees to provide Countrywide with all
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necessary information to establish Company as a vendor on Countrywide’s accounts payable system, including a W-9 (or similar), tax identification number and other documents as necessary.
3.2 Subsequent Marketing Fees
Six (6) months after the Effective Date and on a semi-annual basis thereafter, Countrywide will assess the value of the Marketing Responsibilities using the parameters described in Section 3.3. If Countrywide determines that the Marketing Fee must be adjusted, it will notify Company of the adjustment no later than ten (10) business days after the beginning of the quarter. The adjustment shall be effective as of the beginning of the quarter. If the parties are unable to mutually agree on the adjustment to the Marketing Fee, either party may immediately terminate this Agreement. The parties acknowledge and agree that under current laws and regulations, including the Real Estate Settlement Procedures Act, the consideration to Company is limited to payment for the services provided and must not be payment of a fee, kickback or other thing of value for the mere referral of settlement services. Countrywide represents that the payment to Company will not result in higher rates, points, or closing costs for Customers.
3.3 Monitoring the Marketing Responsibilities
By assigning a source code unique to Company, Countrywide will attempt to monitor the number of
applications received, the conversion rate from applications to fundings and the average balance of funded loans to assist in evaluating Company’s performance of its Marketing Responsibilities. Other factors that Countrywide may consider in its assessment include: (a) the marketing costs incurred under this Agreement; (b) the standard marketing costs otherwise incurred by Countrywide for the type of services provided by Company; and (c) the fair market value for the type of services provided by Company. Upon request from Countrywide, Company shall provide proof of performance of the Marketing Responsibilities. If Company is unable to provide adequate proof of performance within a reasonable time period after Countrywide’s request, Countrywide shall suspend payment of subsequent Marketing Fees and may take further action as provided under this Agreement, up to and including termination of this Agreement under Section 5.3. In no event shall suspension of payment of Marketing Fees to Company under this Section 3.3 constitute a breach of this Agreement by Countrywide.
4. MULTIPLE PROGRAM CONFLICTS
Countrywide represents to Company that Countrywide has relationships with a variety of other service providers where it offers special discounts and benefits (e.g. airline miles). Such other programs and benefits will not be available to Customers where a Marketing Fee is paid to Company for performing marketing services related to such Customer.
5. TERM & TERMINATION
5.1 Effective Date
The Agreement shall be effective on #$15#$
5.2 Initial & Renewal Terms
The term of this Agreement shall be one year. The Agreement shall renew automatically for additional one year periods, unless terminated as provided below.
Either party may terminate this Agreement if (i) the anticipated results from the marketing efforts performed in good faith do not materialize, (ii) the parties are unable to agree, exercising their reasonable business judgment, upon the amount of the Marketing Fee, (iii) Countrywide is unable for any reason, using reasonable business practices, to validate the performance of or monitor or assess the value of the Marketing Responsibilities; (iv) either party is acquired by, merged into or consolidated with, another entity, (v) either party materially breaches any provision, representation or warranty under this Agreement and fails to cure within ten (10) days of receiving written notice of such breach, (vi) either party determines, in its reasonable business and legal judgment, that the relationship hereunder or the payments by Countrywide to Company are in violation of applicable laws or regulations, (vii) either party files for
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protection under the United States Bankruptcy Code or suffers a material adverse financial event or
condition, or (viii) either party is instructed by its regulator(s) to cease and desist from the relationship.
Written notice of such termination shall be given not less than seven (7) calendar days before the
termination date, except for termination under subsections (v), (vi), (vii) and (viii) in which case
termination shall be effective upon notification to the other party. This Agreement may also be terminated
by either party at any time by giving the other party written notice thirty (30) days prior to the termination
date. Upon termination of the Agreement, Company shall coordinate with Countrywide to arrange for pick
up of the display stands, if applicable.
6. TRADEMARKS & SERVICE MARKS
6.1 Grant of License During the term of this Agreement, if requested, the parties grant to the other a non-exclusive, non-sub-
licensable, non-transferable, royalty-free, worldwide license to use the trade names, service marks, brands
and trademarks identified by a party to the other solely in connection with advertising, marketing and
promotional activities related to this Agreement (collectively the “Marks”).
6.2 Copy & Use Restrictions for Marks
A party is not permitted to use any of the Marks of the other party in any fashion without the prior written
approval of the party whose Mark is to be used. Use of the Marks is not extended to any third parties
without the prior written approval of the party whose Mark is proposed to be used and the party who wishes
to use the Mark hereby agrees not to permit such use without the prior written approval of the owner of the
Mark. The parties agree that Marks are proprietary to a party and nothing in this Agreement constitutes the
grant of a general license for their use. Neither party acquires any right, title or interest in the other party’s
Marks or the goodwill associated with the Marks. Upon termination of this Agreement, all rights of one
party to use the other party’s Marks will automatically expire and each party must immediately discontinue
use of the other party’s Marks, including any extant marketing materials.
6.3 Protection of Marks In accepting this Agreement, the parties agree not to attack the other party’s Marks, nor assist anyone in
attacking them. The parties further agree not to make any application to register Marks of the other party,
nor to use any confusingly similar trademark, service mark, trade name or derivation during the term of this
Agreement and thereafter.
Each party agrees to indemnify, defend and hold harmless the other party, and its subsidiaries, affiliates,
directors, officers, employees and agents, from and against any and all liability, claims, losses, damages,
injuries or expenses (including reasonable attorneys’ fees and court costs), arising out of a breach of any of
its representations or warranties or obligations herein or any of its negligent acts or omissions or willful
misconduct in its performance under this Agreement. The party seeking indemnification shall promptly
notify the indemnifying party of the existence of such claim and shall give the indemnifying party
reasonable opportunity to defend and/or settle the claim at its own expense and with counsel of its own
selection. The party seeking indemnification shall cooperate with the indemnifying party and shall at all
times have the right to fully participate in, but not control, such defense with its own counsel and at its own
8 GENERAL PROVISIONS
8.1 Privacy of Customer Information
Each party shall comply with all federal, state and local laws, rules, regulations and ordinances governing
or relating to privacy rights in connection with its performance under this Agreement including, without
limitation, the Gramm-Leach-Bliley Act (“GLB”) and its implementing regulations. Each party shall
implement such physical and other security measures as shall be necessary to (a) ensure the security and
confidentiality of the “nonpublic personal information” of the “customers” and “consumers” (as those
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terms are defined in GLB) of either party which it holds, (b) protect against any threats or hazards to the security and integrity of such nonpublic personal information, and (c) protect against any unauthorized access to or use of such nonpublic personal information. Each party represents and warrants that it has implemented appropriate measures to meet the objectives of Section 501(b) of the GLB and of the applicable standards adopted pursuant thereto, as now or hereafter in effect. Upon request, each party will provide evidence reasonably satisfactory to allow the other party to confirm that the providing party has satisfied its obligations as required under this Section. Without limitation, this may include review of audits, summaries of test results, and other equivalent evaluations of the providing party.
8.2 Warranties of Organization and Authority.
Each party to this Agreement warrants and represents that: (i) it is duly incorporated or organized, validly existing, and in good standing under the laws of its state of incorporation or organization and/or under the laws of the United States and has the requisite power and authority to carry on its business and operations as now being conducted; (ii) it has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement; and that (iii) the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all necessary corporate officers, board members, or other governing body or persons of each party.
8.3 Exclusive Arrangement
Company agrees to promote Countrywide and no other lender (nor any mortgage broker or other originator or provider of mortgage loans) as Company’s preferred mortgage lender for all Customers of Company. Except for the preceding sentence, the parties acknowledge that each is free to pursue other marketing relationships with third parties. The parties expressly acknowledge and agree that the Customer is entitled to make the determination as to who the lender will be. While Company will promote Countrywide as the lender of choice, Company shall not refuse to deal with a Customer nor may Company raise its charges, commissions or fees of any kind as a result of a Customer electing to use a lender other than Countrywide.
8.4 Press Releases
Neither party shall issue a press release or make any public announcement related to this Agreement without the prior written approval of the other party.
8.5 Agreement to Arbitrate Claims
Upon written request by either party that is submitted according to the applicable rules for arbitration, any claim, demand or cause of action, which arises out of or is related to this Agreement (collectively “Claims”), shall be resolved by binding arbitration in the County of Los Angeles, California in accordance with (i) the Federal Arbitration Act; (ii) the Code of Procedure (“Code”) of the National Arbitration Forum
and (iii) this Agreement, which shall control any inconsistency between it and the Code. The decision of an arbitrator on any Claims submitted to arbitration shall follow applicable substantive law and be in writing setting forth the findings of fact and law and the reasons supporting the decision. Such decision shall be final and binding upon the parties. Judgment upon any arbitration award may be entered in any court having jurisdiction. The arbitrator has exclusive authority to resolve any dispute relating to the applicability or enforceability of this Agreement, including the provisions of this section. After a demand for arbitration is made, each party may conduct a limited number of depositions (including the production of documents) by mutual agreement or as permitted by the arbitrator.
8.6 Limitation of Liability
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY WILL BE
LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR
ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION LOST PROFITS OR LOSS OF BUSINESS OPPORTUNITY) WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT. EXCEPT FOR A PARTY’S INDEMNIFICATION
OBLIGATIONS UNDER THIS AGREEMENT AND EXCLUDING PAYMENT OBLIGATIONS,
NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY AMOUNTS
AGGREGATING IN EXCESS OF AMOUNTS PAID HEREUNDER IN THE TWELVE (12) MONTH
PERIOD BEFORE THE CAUSE OF ACTION AROSE.
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Any notice required hereunder may be given by personal delivery, by facsimile with confirmation of receipt, by overnight courier with confirmation of receipt, or by mail. Notice will be effective upon receipt unless sent by mail in which it will be effective three (3) business days after mailing. Notice shall be sent to:
#$11#$ #$69#$ #$88#$
Countrywide Home Loans, Inc.
Attn: Steven Stone,Vice President
27001 Agoura Road, Suite 200,CHAR-200
Calabasas Hills, CA 91301
Phone: (818) 871-6305
Fax: (818) 880-6355
Copy to :
Countrywide Financial Corporation
Chris Weinstock, Executive Vice President
5220 Las Virgenes Road, MS AC-11
Calabasas, CA 91302
Phone : (818) 871-5231
Fax : (818) 871-4602
Neither party may assign, transfer or otherwise convey its obligations under this Agreement to any other party without the prior written consent of the other party.
8.9 Independent Contractors
The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employee employer relationship is intended or created by this Agreement.
8.10 No Third Party Beneficiaries
Nothing in this Agreement is intended to confer any right, remedy, obligation or liability upon any person or entity other than the parties hereto and their respective successors and permitted assigns.
8.11 Further Acts
The parties agree that each shall, at its own expense (unless otherwise herein provided), at any time and from time to time after the date hereof, upon the other's request, do, execute, acknowledge and deliver all such further acts, assignments, transfers, conveyances and assurances as may be required or reasonably advisable for the transactions provided for or contemplated by this Agreement.
8.12 Governing Law
This Agreement shall be deemed to have been made in and shall be construed under the laws of the State of California and the United States, without regard to conflicts of law provisions.
8.13 Attorneys’ Fees
If any claim, legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement or because of a dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that claim, action or proceeding, in addition to any other relief to which such party may be entitled.
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If any term, clause or provision of this Agreement shall be deemed invalid or unenforceable for any reason,
the remainder of this Agreement shall remain valid and enforceable in accordance with its terms.
8.15 Entire Agreement & Amendments
This Agreement constitutes the entire agreement between the parties relating to this subject matter, and all
prior negotiations and understandings, whether oral or written are superceded. No modification or
amendment of this Agreement shall be effective unless in writing and signed by the parties.
The section and paragraph headings used in this Agreement are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement.
8.17 Compliance with Applicable Law
Each party acknowledges and agrees that the other party has not provided any legal advice with respect to
licenses that are required to be held by Company to conduct its business or to receive payments hereunder.
Each party represents to and covenants that it has and will maintain at all times all necessary licenses to
comply with applicable law.
8.18 Reciprocal Confidentiality
All Confidential Information shared by the disclosing party (the “Disclosing Party”) with the receiving
party or any of the receiving party’s agents and employees (the “Recipient”) shall be treated by the
Recipient, as confidential and shall be maintained by the Recipient in confidence and shall not be disclosed
in any form without Disclosing Party’s prior written consent. In the event that the Recipient becomes
legally compelled to disclose the Confidential Information, the Recipient shall provide the Disclosing Party
with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate
remedy. The Recipient shall cooperate with the Disclosing Party in its efforts to obtain such remedies, but
the Recipient shall not be required to undertake litigation or legal proceedings in its name. In the event that
the Recipient is legally obligated to disclose any Confidential Information, the Recipient shall furnish only
the portion of the Confidential Information which is legally required and will exercise its reasonable best
efforts to assure that confidential treatment will be accorded the Confidential Information. “Confidential
Information” shall mean any oral or written information or material that is proprietary to a party or
designated as Confidential Information by a party and not generally known. Each of the parties
understands that money damages would not be a sufficient remedy for any breach or threatened breach of
this Section by the Recipient and that the Disclosing Party shall be entitled to, among any other remedies,
specific performance and injunctive relief without proof of actual damages.
8.19 No Waiver
No failure on the part of any party to exercise or delay in exercising any right, power or remedy will
preclude the exercise of any other right, power or remedy. No express assent or waiver by any party to any
breach of any term of this Agreement shall constitute an assent to or waiver of any succeeding breach in the
same or any other term.
8.20 Counterparts This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the same Agreement.
Sections 6.3, 7, 8.1, 8.4, 8.5, 8.6, 8.7 and 8.18 shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties have fully executed this Agreement as provided below.
#$14#$ COUNTRYWIDE HOME LOANS, INC.
By: #$58#$ By: Steven Stone
Title: #$76#$ Title: Manager, MSA Department
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Real Estate Professional Marketing Options Checklist Marketing responsibilities for the period beginning #$15#$ through #$75#$ Company Information:
Full Legal/Corporate #$14#$ #$19#$ ContactName: #$58#$ Name: Title: #$76#$ Address: #$72#$, #$73#$ Phone#: #$54#$ City, State and Zip code: #$11#$ #$69#$ #$88#$ Fax#: #$34#$ Website: #$78#$ E-mail: #$25#$ Company will use commercially reasonable efforts, in compliance with all applicable laws and regulations,
to promote the availability of Countrywide loan products by performing or providing, at a minimum, four
of the seven services in the first category and two of the four services in the second category on an ongoing
basis (collectively, “Marketing Responsibilities“).
NOTE: It is your responsibility to contact your Countrywide representative for specific Countrywide
requirements and assistance.
Important: Countrywide will require proof that the marketing services indicated above are being
performed on a regular and consistent basis.
[Signatures on next page]
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Real Estate Professional Marketing Options Checklist
By signing below, Company’s signatory certifies that Company has performed the
Marketing Responsibilities indicated on the previous Marketing Options Checklist,
if any, and will perform those Marketing Responsibilities noted on this Marketing
Options Checklist during the new period.
#$14#$ COUNTRYWIDE HOME LOANS, INC.
By: #$58#$ By: Steven Stone Title: #$76#$ Title: Manager, MSA Department
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