TECHNOLOGY SERVICES AND REFERRAL AGREEMENT
(PARTICIPATING REAL ESTATE BROKER)
PLEASE CAREFULLY READ THIS TECHNOLOGY SERVICES AND REFERRAL AGREEMENT AND THE RELATED AGREEMENTS (COLLECTIVELY
“REFERRAL AGREEMENT”) BEFORE MANUALLY OR ELECTRONICALLY SIGNING, BEFORE CLICKING THE “I AGREE” BUTTON AND/OR
BEFORE DOWNLOADING AND/OR USING HOMETRAQ’S ON-DEMAND SERVICE APPLICATION AND REFERRAL NETWORK (COLLECTIVELY
“ON-DEMAND SERVICE APPLICATION”). BY USING HOMETRAQ’S ON-DEMAND SERVICE APPLICATION, BROKER ACKNOWLEDGES
THAT BROKER HAS READ THE REFERRAL AGREEMENT AND UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS
SET FORTH IN THE REFERRAL AGREEMENT.
THIS REFERRAL AGREEMENT is made and entered by and between Essential Real Estate, LLC, a Missouri
limited liability company, doing business as HomeTraq, whose principal address is: 222 S. Central Avenue, Suite
1000, Clayton, Missouri 63105 (“HomeTraq”), and the Broker identified more fully below and such Real Estate Agents
affiliated with Broker (collectively “Broker”) as, from time to time, may subscribe to On-Demand Service
Application by execution of the Agent Enrollment Agreement incorporating the terms and conditions of this
Referral Agreement.
WHEREAS, HomeTraq developed a certain On-Demand Service Application to expand consumer choice
regarding the scope, availability and price of real estate services and real estate related services; to offer
alternate service and compensation models for the provision of real estate services on a single, limited or
unbundled basis; to educate consumers regarding the sales process; to eliminate high-pressured sales tactics that
lock consumers into exclusive agency relationships with real estate brokers; to lower (or eliminate an increase)
in transaction-related costs by enabling consumers to select the desired level of service and to purchase only
those valued added real estate services and real estate related services necessary to facilitate and close the
consumer’s real estate transaction; and to improve consumer satisfaction regarding the quality, timeliness, price
and contributing value of the real estate services provided by real estate brokers and salespersons (“Consumer
Advocacy and Empowerment”);
WHEREAS, in furtherance of Consumer Advocacy and Empowerment, HomeTraq provides scheduling,
coordination, process-based management, information and document delivery and other administrative services to
consumers and provides marketing, technology, agent support and other administrative services to licensed real
estate brokers and salespersons (“Administrative Services”);
WHEREAS, in furtherance of Consumer Advocacy and Empowerment, HomeTraq has developed online
marketplace for peer-to-peer transactions which permits consumers using its On-Demand Service Application to
purchase, order, request or otherwise procure real estate services and real estate services on a single,
limited or unbundled basis from independent real estate professionals on a fee for service basis and permits
real estate professionals to seek, receive and fulfill requests and orders for real estate services and real
estate related services on a single, limited or unbundled basis from consumers on a fee for service basis;
WHEREAS, Broker for its benefit and for the benefit of its Enrolled Real Estate Agent desires to
enter into this Referral Agreement and the Related Agreements with HomeTraq for purpose of accessing and using
the On-Demand Service Application developed by HomeTraq.
NOW, THEREFORE, in consideration of HomeTraq’s granting access and permission to use HomeTraq’s
On-Demand Service Application to the Broker, HomeTraq and Broker acknowledge and agree as follows:
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OWNERSHIP OF ON-DEMAND SERVICE APPLICATION. HomeTraq is the owner of certain websites,
mobile applications and platforms, computer programming, codes and scripts, intellectual property and other
confidential and proprietary information and technology used to enable Service Providers (including real
estate brokers, salespersons and unlicensed assistants) (“Service Providers”) and Other Service Providers
(including, but not limited to, title agencies, lenders, bank and other financial institutions, appraisers,
home inspectors, surveyors, termite and environmental specialists, interior decorators, stagers, photographers,
home repair contractors, insurance agents, home warranty companies, attorneys and other real estate
professionals) (“Other Service Providers”) to seek, receive and fulfill on-demand requests and orders from
consumers seeking Real Estate Services and Real Estate Related Services, as said terms are defined herein,
in connection with the purchase, sale, rental and/or management of real estate. HomeTraq is the owner and
manager of a certain Referral Network consisting of: (a) Service Providers providing Real Estate Services
(being further defined as all services requiring a real estate license as provided in the applicable state
licensing law for real estate brokers and salespersons) (“Real Estate Services”) and (b) Other Service
Providers providing services other than Real Estate Services (“Real Estate Related Services”), to consumers
in connection with the purchase, sale, rental and/or management of real estate.
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GRANT OF LICENSE FOR ON-DEMAND SERVICE APPLICATION. HomeTraq does hereby grant to the Broker
a limited, revocable, non-exclusive, non-transferable license for the right to install, access and use the
On-Demand Service Application on computers and mobile devices owned and controlled by the Broker (“Computers
and Mobile Devices”) strictly in accordance with the terms and conditions of the Referral Agreement for the
exclusive purpose of seeking, receiving, and fulfilling requests for real estate services.
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TERM OF REFERRAL AGREEMENT. The term of this Referral Agreement shall commence on the date of
execution of the Referral Agreement and shall thereafter continue unless and until terminated in accordance
with Paragraph 11 of this Referral Agreement (“Term”).
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MINIMUM QUALIFICATIONS. Broker represents and warrants to HomeTraq that the Broker possesses
all licenses, permits, consents and approvals required to be obtained from any licensing or other regulatory
agency exercising authority over Broker in order for the Broker to lawfully conduct business and to perform
its obligations under this Referral Agreement. In addition to the foregoing, as a condition for the initial
and continued authorization to access and use the On-Demand Service Application, Broker represents and
warrants that the following representation are accurate, true and complete: (a) Licensure - Broker is duly
licensed by the applicable state licensing or other regulatory agency to perform the Real Estate Services
contemplated by this Referral Agreement; (b) Insurance - Broker maintains an insurance policy covering errors
and omissions relating to the performance of the Real Estate Services contemplated by this Referral Agreement;
(c) Access to Multiple Listing Service - Broker is authorized to access and use the local multiple listing
service; (d) Consumer Complaints – Broker has not been subject to any disciplinary action (including expulsion,
suspension, probation, or public or private reprimand) by any licensing or other regulatory agency, local
association of REALTORS® or local multiple listing service; (e) Broker possesses the necessary education,
training and experience and has sufficient knowledge of the local real estate market conditions to perform
the Real Estate Services requested by the Referred Consumer in a prompt and professional manner. By continuing
to access and use the On-Demand Service Application, Broker acknowledges and agrees that there has been no
material change in the accuracy, truthfulness and completeness of the foregoing representations.
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PERFORMANCE STANDARDS. Broker covenants and agrees as follows:
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LEGAL AND OTHER COMPLIANCE. Broker shall perform the Real Estate Services requested
by the Referred Consumer in strict compliance with: (1) the Code of Ethics of the National Association
of REALTORS®, (2) all rules, codes of conduct or other requirements relating to access and use of the
local multiple listing service, and (3) all federal, state and local laws, rules and regulation
applicable to the provision of Real Estate Services under this Referral Agreement.
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REPORTING REQUIREMENTS. Broker shall maintain such policies, procedures and
practices and/or such systems to accurately track and report to HomeTraq the status of the Consumer
Referrals made by HomeTraq to Broker. Prior to any closing of any transaction involving a Referred
Consumer, Broker shall deliver to HomeTraq such reports and other information as may be reasonably
requested by HomeTraq.
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AGENT RATINGS. Broker acknowledges and agrees that, after the performance of the Real
Estate Services requested by the Referred Consumer, the Referred Consumer will be prompted by the
On-Demand Service Application to rate the performance of the Broker (“Performance Rating”).
HomeTraq reserves the right in its sole and absolute discretion to terminate Broker’s access to and
use of the On-Demand Service Application where the Broker’s Performance Rating violates the minimum
service standards set forth in the Service Provider Guidelines.
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REFERRAL PROCESS.
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REQUESTS FOR REAL ESTATE SERVICES. Upon receipt of requests for Real Estate Services
through the On-Demand Service Application, HomeTraq may, from time to time, assign and refer said
consumers requesting Real Estate Services through the On-Demand Service Application (“Referred
Consumer”) to the Broker. Broker acknowledges and agrees that the Broker is not the exclusive
provider of Real Estate Services offered to Referred Consumer’s requesting Real Estate Services
through the On-Demand Service Application.
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SERVICE COORDINATION. In connection with Consumer Referrals, HomeTraq shall act as
the primary contact for the Referred Consumer and shall provide certain Administrative Services in
connection with the Consumer Referral. In furtherance of the performance of its obligations under
the Referral Agreement, HomeTraq shall designate an unlicensed assistant to conduct such permitted
activities as may be authorized by the applicable licensing law, rules and regulation (“Administrative
Assistant”). Broker shall authorize and appoint the Administrative Assistant as its authorized
agent to access and use the local multiple listing service on behalf of the Broker and shall execute
such authorizations and provide such further cooperation and assistance as may be necessary to secure
to the Administrative Assistant the ability to access and use the local multiple listing service on
behalf of the Broker. HomeTraq shall assume all duties and obligations to supervise the
Administrative Assistant. Said appointment shall be co-extensive with and shall be non-revocable
during the Term of this Referral Agreement.
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LIMITATIONS ON CONSUMER SOLICITATION. Broker shall address and/or answer questions
and other inquiries made by the Referred Consumer relating to the Real Estate Service(s) performed
by Broker. However, Broker shall allow the Referred Consumer to initiate and control communications
after the requested Real Estate Service is performed and shall not contact or communicate with the
Referred Consumer, solicit the purchase of any additional Real Estate Services from the Referred
Consumer, or market or otherwise provide information regarding the availability of other properties
listed or offered for sale, unless the Referred Consumer initiates the contact, the Referred
Consumer affirmatively seeks to purchase additional Real Estate Services from the Broker, and the
Referred Consumer has agreed to enter into an exclusive agency or other exclusive representation
agreement with the Broker.
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FINANCIAL TERMS.
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PREPAID SERVICE FEES AND ADVANCE DEPOSITS. HomeTraq shall collect from the Referred
Consumer such prepaid service fees and advance deposits (“SERVICE FEES”) for Real Estate Services
requested by the Referred Consumer in such amounts as may be set forth in the Schedule of Real Estate
Services and/or Fee Schedule in effect at the time of Real Estate Services are ordered. HomeTraq
shall retain a fee for the technology and administrative services provided by HomeTraq (“Administrative
Service Fee”) and shall then disburse the balance of the Service Fee in accordance with the
Schedule of Real Estate Services and/or Fee Schedule then in effect.
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REFERRAL FEE. (1) Covered Transactions. Broker shall pay to HomeTraq the Referral
Fee, as defined below, on any real estate transaction involving the Referred Customer agreed to,
occurring or closed with the Protected Period (“Covered Transactions”) in which the Broker earns or
is paid a real estate commission, broker administration fee or referral fee. The Covered
Transaction(s) may be a single real estate transaction (e.g. sale of home) or may include multiple
real estate transactions (e.g. sale of existing home and purchase of new home). The Referral Fee
is owing and due regardless of whether or not the real estate transaction(s) relate to the specific
property or properties associated with the Real Estate Services purchased by the Referred Consumer
and performed by the Broker. (2) Real Estate Commission Calculations. As used herein, the term
“Gross Commission” shall mean the total compensation paid to the Broker (including real estate
commissions, broker administration fees or referral fees) earned, regardless of representation of
more than one party to the transaction, by Broker in connection with a Covered Transaction. The
Gross Commission shall be calculated without any deduction for franchise fees, broker administration
fees, referral fees, agent splits, or other company or agent directed deductions or any Services
Fees refunded or credited to the Referred Consumer under the terms of the Referral Agreement. Broker
shall not alter the agreed upon real estate commission to be paid on a Covered Transaction without
the express written consent and approval of HomeTraq. Notwithstanding the foregoing, nothing
contained herein shall be interpreted or otherwise construed as prohibiting the use of dual or
variable rate commissions. (3) Referral Fee Calculation. In the event that the referral of a
Referred Consumer to the Broker results in the closing of a Covered Transaction (whether or not
related to any property specific referral) within two (2) years after the initial referral by
HomeTraq of the Referred Consumer to the Broker (“Protected Period”), Broker shall to pay to HomeTraq
a referral fee based on the Gross Commission at the rate set forth in the Schedule of Real Estate
Services and/or Fee Schedule in effect as of the date of the initial Consumer Referral (“Referral Fee”).
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SERVICE FEE(S) CREDIT OR REFUND. Broker shall refund, credit or otherwise pay to the
Referred Consumer selected (“SERVICE FEES“) paid by the Referred Consumer for Real Estate Services
ordered through the On-Demand Service Application and/or HomeTraq from that portion of the Gross
Commission earned, paid to or otherwise retained by the Broker, after the payment of the Referral
Fee to HomeTraq, in accordance with the terms and conditions of the Referral Agreement.
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CORRECTION OF ERRORS AND DUTY TO COOPERATE. In the event that there is any error in
the calculation and/or payment of any Referral Fee or the credit or refund of any selected Service
Fees, the Broker shall fully cooperate with HomeTraq and take all reasonable steps to correct the
error. HomeTraq reserves the right to correct any error by deducting the amount necessary to
correct the error from any amount owed by HomeTraq to Broker under this Referral Agreement.
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INDEMNIFICATION. Broker shall indemnify, defend and hold harmless HomeTraq and its Affiliates
and their respective officers, directors, managers, employees, representatives and agents from any and all
claims, demands, actions, suits, losses, liabilities, expenses (including reasonable attorney’s fees), damages,
penalties or fines arising out of, relating to or in connection with: (a) the use of the HomeTraq’s On-Demand
Service Application; (b) the performance of any Real Estate Services on behalf of any Referred Consumer
under this Referral Agreement; (c) the breach or violation of any term or condition of the Referral Agreement;
(d) any inaccuracy in or breach of any representation, warranty or covenant set forth in the Referral
Agreement; (e) the violation or other non-compliance with any law, rule or regulation relating in any way to
the Referral Agreement or the performance of Real Estate Services under the Referral Agreement; (f) any
investigation by any licensing or other regulatory agency directly or indirectly related to the provision of
Real Estate Services or use of HomeTraq’s On-Demand Service Application; and (g) a claim by a third party,
including the Referred Consumer, directly or indirectly related to the provision of Real Estate Services or
use of HomeTraq’s On-Demand Service Application.
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RESTRICTIONS ON USE OF CONFIDENTIAL AND PROPRIETARY INFORMATION AND TECHNOLOGY.
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PROTECTED INTERESTS. In the performance of this Referral Agreement, the Broker may,
directly or indirectly, have access to, be exposed to or receive HomeTraq’s Confidential and
Proprietary Information and Technology, including, without limitation, HomeTraq Marks and Names, the
On-Demand Service Application, and the following confidential and proprietary information: HomeTraq’s
business model, business plan, policies and procedures; HomeTraq’s lenders, investors and other
sources of capital; Home Traq’s financial and other projections, including sales and use forecasts,
projections and targets and computations of the market share, sales volume, or other statistical
sales, revenue or other calculations; HomeTraq’s expansion plans, including geographic service areas
and additional products and services; mobile applications, websites and other marketing tools provided
or created by Home Traq; the identity and personally identifiable information of HomeTraq’s
Affiliates, as defined herein; the identity and personally identifiable information of HomeTraq’s
customers and prospective customers; the account terms and pricing upon which HomeTraq obtains Real
Estate Services and Real Estate Related Services from any Affiliate; account terms and pricing upon
which HomeTraq obtains services and products from any third party contractor, service provider or
product supplier; the account terms and pricing of Real Estate Services and Real Estate Related
Services between HomeTraq and Referred Consumers; the proposed account terms and pricing of Real
Estate Services and Real Estate Related Services between HomeTraq and prospective customers;
techniques, methods, process, procedures and strategies by which HomeTraq develops, markets,
distributes, and/or sells any of its products and services, including the On-Demand Service
Application (collectively “Confidential and Proprietary Information and Technology”).
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NON-DISCLOSURE. Broker shall not, directly or indirectly, disclose, divulge or make
use of HomeTraq’s Confidential and Proprietary Information and Technology for any purpose, except
as expressly permitted by the Referral Agreement. Broker shall maintain the confidentiality of any
personally identifiable information and other confidential information of the Referred Consumer
provided by HomeTraq or the Referred Consumer and shall fully comply with the requirements of the
HomeTraq’s Privacy Policy. In addition, Broker shall further fully comply with all laws, rules and
regulations relating to consumer protection, privacy and unsolicited communications. Upon termination
of this Referral Agreement, Broker shall immediately return all of HomeTraq’s Confidential and
Proprietary Information and Technology in their possession or under their control and shall
irretrievably delete and shall not access or attempt to access any of HomeTraq’s Confidential and
Proprietary Information and Technology stored electronically.
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NON-SOLICITATION. (1) Referred Consumers. Except as expressly permitted by the
Referral Agreement, Broker, during the Term of this Referral Agreement and for a period of two (2)
years after the termination of this Referral Agreement, shall not, directly or indirectly, on their
own behalf or on behalf of any third-party contact, communicate with, solicit or attempt to solicit
any Referred Consumer for the purchase of additional Real Estate Services or Real Estate Related
Services, for the marketing of properties offered for sale, or for any other business purposes.
(2) Affiliates. Except as expressly permitted by the Referral Agreement and the Related Agreements,
Broker, during the Term of this Referral Agreement and for a period of two (2) years after the
termination of this Referral Agreement, shall not, directly or indirectly, on their own behalf or on
behalf of any third-party contact, communicate with, solicit or attempt to solicit any Affiliate of
HomeTraq (including, without limitation, current or former owners, corporate officers, directors,
shareholders, managers, members and partners of HomeTraq; current or former executives, managers,
sales and marketing representatives, employees, agents and representatives employed by HomeTraq;
current or former independent contractors employed or retained by HomeTraq; current or former software
developers, website designers, mobile application developers, graphic artists, publicists and other
consultants employed or retained by HomeTraq in the development, operation, maintenance, management
or marketing of the Mobile On-Demand Service Application or the Referral Network; current or former
investors, investment advisors and lenders of HomeTraq; and current, former or prospective Service
Providers and Other Service Providers) (“Affiliates”) for the purposes of inducing or attempting to
induce such Affiliates to terminate any employment, contractual or other business relationship with
HomeTraq, to breach any contract, agreement or other understanding with HomeTraq, to cease doing
business with HomeTraq, to access and use a competing mobile application similar or substantially
similar to the On-Demand Service Application, to join, enroll or participate in a competing network
similar or substantially similar to the Referral Network, or to assist or participate in replicating,
copying or imitating HomeTraq’s On-Demand Service Application.
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PROHIBITION ON SERVICE REFERRALS. The Broker, during the Term of this Referral
Agreement and for a period of two (2) years after the termination of this Referral Agreement, shall
not, directly or indirectly, refer the Referred Consumer to any Service Provider, Other Service
Provider or other person or business providing Real Estate Services or Real Estate Related Services,
without the express written consent and approval of HomeTraq.
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UNAUTHORIZED USE. Broker shall not, direct or indirectly, perform any of the
following acts: license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide
or make available to any other party HomeTraq’s Confidential and Proprietary Information and
Technology, including the On-Demand Service Application, in any way; modify or make derivative works
based upon HomeTraq’s On-Demand Service Application; improper or unauthorized use of HomeTraq’s
Confidential and Proprietary Information and Technology, including the On-Demand Service Application;
reverse engineer, decompile, modify, or disassemble HomeTraq’s On-Demand Service Application; or send
spam or otherwise duplicative or unsolicited messages using HomeTraq’s Confidential and Proprietary
Information and Technology, including the On-Demand Service Application. In addition, Broker shall
not, on their own behalf or on behalf of any third party, shall not design or develop a competitive
or substantially similar product or service; copy or extract any features, functionality, or content
thereof; launch or cause to be launched on or in connection with HomeTraq’s On-Demand Service
Application an automated program or script, which may make multiple server requests per second or
unduly burden or hinder the operation and/or performance of HomeTraq’s On-Demand Service Application;
or attempt to gain unauthorized access to HomeTraq’s On-Demand Service Application. Other than as
specifically permitted by the Referral Agreement, Broker shall not be permitted or authorized to use
or reference in any manner the company names, logos, product and service names, trademarks, service
marks, trade dress, copyrighted material of HomeTraq and its Affiliates (“HomeTraq Marks and Names”).
In addition, Broker shall not use any mark, name or title, for any goods or services that is
deceptively similar to the HomeTraq Marks and Name or causes or is likely to cause confusion among
real estate professionals and consumers.
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NON-DISPARAGEMENT. The Broker, during the Term of this Referral Agreement and for a
period of two (2) years after the termination of this Referral Agreement, shall not, directly or
indirectly, take any action or make any statements which are intended or would reasonably be expected
to materially harm HomeTraq or its Affiliates or their business reputation and goodwill or which
would reasonably be expected to lead to unwanted or unfavorable publicity to HomeTraq or its
Affiliates.
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NON-COMPETITION. The Broker, during the Term and Renewal Term(s), if any, of this
Referral Agreement and for a period of two (2) years after the termination of this Referral Agreement,
shall not, directly or indirectly, on their own behalf or on behalf of any third party, compete or
attempt to compete with HomeTraq by developing, marketing, distributing, using or selling a mobile
application similar or substantially similar to the Mobile On-Demand Service Application or by
developing or marketing an online marketplace for the referral of consumers to service providers
providing Real Estate Service or Real Estate Related Services similar or substantially similar to
the Referral Network, within the following geographical areas: (1) any Missouri county where HomeTraq
presently offers or intends to offer its services (including, without limitation, the counties of
St. Louis, City of St. Louis, St. Charles, Jefferson, Boone, Cole, Cass, Clay and Jackson); (2) any
county within or outside Missouri located within 100 miles of any Missouri county where HomeTraq
presently offers or intends to offer its services; (3) any state adjoining the state of Missouri where
HomeTraq presently plans to expand its services within the next three (3) years (including, without
limitation, Indiana, Illinois, Tennessee, Kentucky, Oklahoma, Iowa, Arkansas, Kansas and Nebraska);
(4) any state where HomeTraq has conducted market research, has beta tested the Mobile On-Demand
Service Application or has otherwise determined that the local real estate market has sufficient
service provider capacity and consumer demand to support the introduction and use of the On-Demand
Service Application; and (5) any county within a metropolitan statistical area delineated by the
U.S. Office of Management and Budget having a population in excess of 2,000,000 as determined by the
2010 or subsequent decennial census conducted by the U.S. Census Bureau.
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DISCLAIMERS AND LIMITATIONS ON LIABILITY.
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DISCLAIMER OF REPRESENTATIONS. HOMETRAQ PROVIDES CONSUMER REFERRALS ON AN “AS IS”
AND “AS AVAILABLE” BASIS. HOMETRAQ DISCLAIMS ALL REPRESENTATIONS OF ANY KIND, INCLUDING, WITHOUT
LIMITATION, (1) THAT YOUR USE OF HOMETRAQ’S ON-DEMAND SERVICE APPLICATION WILL BE UNINTERRUPTED,
ERROR-FREE OR VIRUS FREE, (2) THAT YOUR USE OF HOMETRAQ’S ON-DEMAND SERVICE APPLICATION WILL RESULT
IN ANY SPECIFIC NUMBER OF REQUESTS FOR REAL ESTATE SERVICES OR (3) THAT THE REFERRED CONSUMERS WHO
MAY REQUEST REAL ESTATE SERVICES USING HOMETRAQ’S ON-DEMAND SERVICE APPLICATION ARE RELIABLE, HONEST,
OR QUALIFIED, HAVE A LEGITIMATE OR BONA FIDE INTEREST IN CLOSING ANY REAL ESTATE TRANSACTION, OR HAVE
THE FINANCIAL RESOURCES TO CLOSE ANY REAL ESTATE TRANSACTION.
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ASSUMPTION OF KNOWN RISKS. HOMETRAQ DOES NOT EVALUATE, SCREEN OR INVESTIGATE ANY
REFERRED CONSUMER REQUESTING REAL ESTATE SERVICES REGARDING THEIR CREDIT SCORE OR CRIMINAL HISTORY
AND THAT HOMETRAQ HAS NO SPECIFIC KNOWLEDGE OR INFORMATION RELATING TO THE CONDITION OF ANY PROPERTY
TO BE SHOWN OR TO BE LISTED FOR SALE. BROKER ACKNOWLEDGES THAT THE PERFORMANCE OF REAL ESTATE
SERVICES PRESENTS CERTAIN SAFETY ISSUES. CONCERNS AND RISKS ARISING FROM ENTERING VACANT HOMES OR
HOMES IN POOR CONDITION, MEETING NEW PERSONS WITH UNKNOWN BACKGROUNDS, SHOWING A PROPERTY ALONE,
INVITING THE GENERAL PUBLIC TO OPEN HOUSES AND TRANSPORTING STRANGERS IN YOUR PERSONAL AUTOMOBILE,
AND THAT THE SAFETY ISSUES, CONCERNS AND RISKS ASSOCIATED WITH THE PERFORMANCE OF REAL ESTATE
SERVICES MAY RESULT IN PERSONAL INJURY, PROPERTY DAMAGE AND OTHER LOSSES AND DAMAGES ARISING FROM
INTENTIONAL AND NEGLIGENT CONDUCT OF THIRD PARTIES (INCLUDING PROPERTY OWNERS, REFERRED CONSUMER
AND PROSPECTIVE PURCHASERS), INCLUDING THEFT, ASSAULT AND OTHER CRIMINAL OFFENSES. BROKER VOLUNTARILY
ASSUMES ALL KNOWN OR REASONABLY ANTICIPATED RISKS ASSOCIATED WITH AND RESULTING FROM THE PROVISION
OF REAL ESTATE SERVICES TO REFERRED CONSUMERS UNDER THIS REFERRAL AGREEMENT. BROKER SHALL TAKE
REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH REFERRED CONSUMERS, THIRD PARTIES AND THE
GENERAL PUBLIC AND SHALL EXERCISE REASONABLE CARE WHEN ENTERING VACANT HOMES OR HOMES IN POOR
CONDITION. HOMETRAQ AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY PERSONAL INJURIES,
PROPERTY DAMAGE OR OTHER LOSSES OR DAMAGES ASSOCIATED WITH THE PERFORMANCE OF REAL ESTATE SERVICES
UNDER THIS REFERRAL AGREEMENT.
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DISCLAIMER OF WARRANTIES. EXCEPT TO THE EXTENT PROHIBITED OR LIMITED BY ANY
APPLICABLE LAWS, RULES OR REGULATIONS, HOMETRAQ DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, NOT EXPRESSLY SET FORTH IN THIS REFERRAL AGREEMENT, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT RELATING TO
HOMETRAQ’S ON-DEMAND SERVICE APPLICATION. HOMETRAQ FURTHER DISCLAIMS ALL WARRANTIES RELATING TO THE
ACCURACY, SUFFICIENCY, VERACITY, VALUE, APPROPRIATENESS, CORRECTNESS, COMPLETENESS, LEGALITY, SECURITY,
AVAILABILITY, OPERABILITY, TIMELINESS, RELIABILITY OR USEFULNESS OF INFORMATION, DATA, SERVICES OR
PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF HOMETRAQ’S ON-DEMAND SERVICE APPLICATION,
BY BROKER. HOMETRAQ AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OF
PERFORMANCE, FAILURE TO STORE, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR
TRANSMISSION, ERROR IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, TELECOMMUNICATIONS LINE FAILURE,
THEFT, DESTRUCTION, UNAUTHORIZED ACCESS, ALTERATION OR USE OF RECORDS, BREACH OF CONTRACT, TORTIOUS
BEHAVIOR, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING OR RELATING TO THE USE OF HOMETRAQ’S
CONFIDENTIAL AND PROPRIETARY INFORMATION AND TECHNOLOGY, INCLUDING THE ON-DEMAND SERVICE APPLICATION,
BY BROKER.
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GENERAL RELEASE FROM LIABILITY. EXCEPT TO THE EXTENT PROHIBITED OR LIMITED BY ANY
APPLICABLE LAWS, RULES OR REGULATIONS, BROKER RELEASES HOMETRAQ AND ITS AFFILIATES FROM ANY AND ALL
CLAIMS, DEMANDS, ACTIONS, SUITS, DEMANDS, LOSSES, LIABILITIES, EXPENSES (INCLUDING REASONABLE
ATTORNEY’S FEES), DAMAGES, PENALTIES OR FINES ARISING OUT OF, RELATING TO OR IN CONNECTION WITH:
(1) THE USE OF THE HOMETRAQ’S ON-DEMAND SERVICE APPLICATION; (2) THE PERFORMANCE OF ANY REAL ESTATE
SERVICES UNDER THIS REFERRAL AGREEMENT; (3) THE BREACH OR VIOLATION OF ANY TERM OR CONDITION OF THE
REFERRAL AGREEMENT; (4) ANY INACCURACY IN OR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT SET
FORTH IN THE REFERRAL AGREEMENT; (5) THE VIOLATION OR OTHER NON-COMPLIANCE WITH ANY LAW, RULE OR
REGULATION RELATING IN ANY WAY TO THE REFERRAL AGREEMENT OR THE PERFORMANCE OF REAL ESTATE SERVICES
UNDER THE REFERRAL AGREEMENT; (6) ANY INVESTIGATION BY ANY LICENSING OR OTHER REGULATORY AGENCY
DIRECTLY OR INDIRECTLY RELATED TO THE PROVISION OF REAL ESTATE SERVICES OR USE OF HOMETRAQ’S ON-DEMAND
SERVICE APPLICATION OR (7) CLAIMS BY A THIRD PARTY, INCLUDING THE REFERRED CONSUMER, DIRECTLY OR
INDIRECTLY RELATED TO THE PROVISION OF REAL ESTATE SERVICES UNDER THIS REFERRAL AGREEMENT OR USE OF
HOMETRAQ’S ON-DEMAND SERVICE APPLICATION.
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LIMITATIONS ON DAMAGES. HOMETRAQ AND ITS AFFILIATES SHALL NOT BE LIABLE UNDER OR
RELATED TO THIS REFERRAL AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER LEGAL THEORY, EVEN IF HOMETRAQ AND ITS AFFILIATES KNOW, ARE AWARE OF OR HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES: (1) INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OF ANY
TYPE OR KIND, (2) PUNITIVE DAMAGES, (3) PERSONAL INJURIES, (4) PROPERTY DAMAGE OR (5) DAMAGES RELATING
TO LOSS OF DATA, INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC
ADVANTAGE, RELATED TO, IN CONNECTION WITH OR OTHERWISE RESULTING FROM THE USE OF HOMETRAQ’S ON-DEMAND
SERVICE APPLICATION OR THE PERFORMANCE OF REAL ESTATE SERVICES UNDER THIS REFERRAL AGREEMENT,
REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE OR CONCURRENT) OF HOMETRAQ OR ITS
AFFILIATES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF HOMETRAQ AND ITS AFFILIATES ARISING
UNDER THE REFERRAL AGREEMENT EXCEED THE SUM OF FIVE HUNDRED DOLLARS ($500.00).
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FORCE MAJEURE LIMITATIONS. HOMETRAQ AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY
DELAY OR FAILURE IN PERFORMANCE OF THE TERMS AND CONDITIONS OF THE REFERRAL AGREEMENT RESULTING
DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE OR OTHER FORCES BEYOND ITS REASONABLE CONTROL, INCLUDING,
WITHOUT LIMITATION, WAR, CIVIL UNREST, TERRORISM, HACKING, CYBERATTACKS, DENIAL OF SERVICE ATTACKS,
INTERNET OR NETWORK DISRUPTIONS, ELECTRICAL DISRUPTIONS, INTERVENING ACTS OF THIRD PARTIES, CRIMINAL
ACTS OF THIRD PARTIES OR ACTS OF GOD.
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TERMINATION. (A) For Convenience. HomeTraq and Broker shall have the right to terminate this
Referral Agreement “without cause” at any time for any reason by providing the other party with thirty (30)
days written notice prior to the effective date of the termination of the Referral Agreement. (B) For Cause.
HomeTraq shall have the right to terminate this Referral Agreement and the Related Agreements “for cause”
immediately and without notice in the event that: (1) Broker materially breaches, violates or otherwise
fails to perform or otherwise satisfy any terms, conditions or obligations set forth in this Referral
Agreement; (2) the representations, warranties and covenants of Broker are inaccurate, incomplete, false or
misleading; (3) insolvency, bankruptcy or receivership relating to Broker; or (4) Broker fails to meet or
otherwise comply with HomeTraq’s standards as set forth in the Referral Agreement. (C) Audit Rights.
During the Term of this Referral Agreement and for a period of three (3) years after the termination of the
Referral Agreement, HomeTraq shall have the right to audit and inspect the files, books and records of the
Broker and the right to audit, inspect or test the computers, hardware, software, electronic data and system
logs of the Broker to permit HomeTraq to determine Broker’s compliance with Referral Agreement. Broker does
hereby irrevocably authorize all third-parties (including title agents) to release any records in their
possession or under their control relating to transactions closed by the Broker within the above-described
period. (D) Survival. Notwithstanding the termination of the Referral Agreement, Broker shall remain
liable for the payment of any Referral Fee due under the terms of the Referral Agreement and the Broker
shall be bound by Paragraphs 2C, 7, 8, 9, 10, 11, and 12 of this Referral Agreement, which terms and
conditions shall survive and be enforceable after the termination of this Referral Agreement.
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REMEDIES.
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CHOICE OF LAW AND VENUE. This Referral Agreement shall be governed by the laws of the
State of Missouri without giving effect to any conflict of law principles. Any dispute, claim or
cause of action arising or relating to the interpretation or enforcement of the Referral Agreement
or the use of the On-Demand Service Application shall only be exclusively filed in and determined by
the Circuit Court of St. Louis County, Missouri, or the United States District Court for the Eastern
District of Missouri. HomeTraq and Broker waive any objections and defenses based on subject matter
jurisdiction, personal jurisdiction, improper venue or forum non-conveniens.
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PRIVATE CONTRACTUAL STATUTE OF LIMITATIONS. Any dispute claim or cause of action
arising or relating to the interpretation or enforcement of the Referral Agreement or the use of the
On-Demand Service Application, shall be filed and instituted within one (1) year after such dispute,
claim or cause of action arose or such dispute, claim or cause of action will forever be barred.
Notwithstanding the foregoing, no claim or cause of action arising or relating to the terms,
conditions and provisions set forth in Paragraphs 7-9 of this Referral Agreement shall be subject
to this Private Contractual Statute of Limitations.
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WAIVER OF LITIGATION RIGHTS. HomeTraq and Broker voluntarily waive any right to a
jury trial or any right to institute or participate in any class action against HomeTraq or its
Affiliates relating to any dispute, claim or cause of action arising or relating to the interpretation
or enforcement of the Referral Agreement or the use of HomeTraq’s On-Demand Service Application.
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LIQUIDATED DAMAGES. Broker acknowledges and agrees that: (1) the imposition of
liquidated damages is intended to compensate HomeTraq for its damages, losses and injury and is not
intended as a penalty; (2) the amount of the liquidated damages set forth below are a reasonable
forecast and estimate of just compensation for the harm that is likely to be caused by any breach
of the Referral Agreement; and (3) actual damages arising from the breach of the Referral Agreement are
incapable or very difficult to calculate with reasonable certainty. If the Broker engages in any
unauthorized conduct in violation of the terms and conditions of the Referral Agreement, HomeTraq may,
in its sole and absolute discretion, impose and assess liquidated damages against the Broker, with or
without terminating the Referral Agreement, as follows: (1) $100.00 for the first violation and
$500.00 for the second violation and each violation thereafter, provided that such violation(s) are not
based on conduct intended for personal gain or commercial exploitation; (2) $25,000.00 for each
violation of Paragraphs 9(B), 9(C) and 9(D) of the Referral Agreement where the conduct is intended for
personal gain or commercial exploitation; (3) $50,000.00 for each violation of Paragraphs 9(E), 9(F)
and 9(G) of the Referral Agreement where the conduct is intended for personal gain or commercial
exploitation or where the conduct is intentional, reckless or grossly negligent; and (4) $10,000.00 per
day for each violation of Paragraphs 9(B) through 9(G) of the Referral Agreement that, after notice or
demand, is not retracted, corrected or otherwise abated (collectively “Liquidated Damages”).
Notwithstanding the foregoing, HomeTraq may, in its sole and absolute discretion, elect to collect
actual damages to the extent that such actual damages can be reasonably calculated. In addition,
HomeTraq reserves the right to seek specific performance of any term or condition of the Referral
Agreement or injunctive relief against the breach of any such term or condition or in aid of the
exercise of any power granted hereunder, or any combination thereof.
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IRREPARABLE HARM AND RIGHT TO INJUNCTIVE RELIEF. Broker acknowledges that any
violation of the Referral Agreement, if such violation is not immediately retracted, corrected or
otherwise abated, will cause immediate and irreparable harm to HomeTraq. In the event any court
determines or finds that Broker has violated, attempted to violate, threatened to violate or otherwise
intends to violate the provisions of the Referral Agreement, Broker consents to the immediate entry
of such injunctive or other equitable relief, as the court may determine to be necessary to retract,
correct or otherwise abate the violation, which relief shall be in addition to all other rights and
remedies set forth in this Referral Agreement or otherwise afforded by law.
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ATTORNEY’S FEES. In the event that HomeTraq files any lawsuit to enforce any term or
condition of this Referral Agreement or to collect any Referral Fee, Liquidated Damages or other
amount due under this Referral Agreement, HomeTraq as the prevailing party shall be entitled to
recover its reasonable attorney’s fees, expert witness and other litigation expenses and court costs
incurred in said lawsuit.
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ENTIRE AGREEMENT – CONSTRUCTION AND ENFORCEABILITY.
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INCORPORATED TERMS. The General Terms of Use, Privacy Policy, Technology Policy and
Disclaimer of Warranties, Copyright and Trademark Policy, License Disclosure and E-Sign Disclosure
and Consent relating to the On-Demand Service Application, as now existing and as hereafter amended,
and the Schedule of Real Estate Services, Schedule of Fees, Service Provider Guidelines, Addendum
for State Specific Requirements and Supplement Terms, as now existing or as hereafter amended,
(collectively “Incorporated Notices and Agreements” or “Related Agreements”) shall be incorporated
by reference herein as if fully set forth herein.
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MODIFIED TERMS. HomeTraq reserves the right to change, alter or amend the terms,
conditions and provisions of the Referral Agreement and Incorporated Notices and Agreements.
In the event that HomeTraq modifies the terms and conditions or provisions of the Referral Agreement
or the Incorporated Notices and Agreements, such modifications shall be effective and binding upon
Broker upon posting of notice of the change to the On-Demand Service Application, upon dissemination
of notice of the change to the Broker or upon the modification or notice of the change being
electronically signed or acknowledged by Broker.
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SUPPLEMENTAL TERMS. HomeTraq reserves the right to adopt additional terms that may
apply to access and use of HomeTraq’s On-Demand Service Application, by the Broker (“Supplemental
Terms”). In the event that HomeTraq adopts any Supplemental Terms, such Supplemental Terms shall
be effective and binding upon Broker upon posting of notice of the adoption of the Supplemental
Terms to the On-Demand Service Application, upon dissemination of the Supplemental Terms to the
Broker or upon the Supplemental Terms being electronically signed or acknowledged by Broker.
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CONSTRUCTION. If an ambiguity or question of intent or interpretation arises, this
Referral Agreement shall be construed as if drafted jointly by the parties and no presumption or
burden of proof shall arise favoring or disfavoring any party because of the authorship of any
provision of this Referral Agreement. Any reference to any law shall be deemed also to refer to such
laws as amended and all rules and regulations promulgated thereunder, unless the context requires
otherwise. Any reference to any contract or agreement (including schedules, exhibits and other
attachments thereto), including this Referral Agreement, shall be deemed also to refer to such
notices, contracts or agreements as amended, restated or otherwise modified, unless the context
requires otherwise. The words “include,” “includes,” and “including” shall be deemed to be followed
by “without limitation.” Pronouns in masculine, feminine, and neuter genders shall be construed to
include any other gender, and words in the singular form shall be construed to include the plural
and vice versa, unless the context requires otherwise. The words “this Referral Agreement,” “herein,”
“hereof,” “hereby,” “hereunder,” and words of similar import refer to this Referral Agreement as a
whole and not to any particular subdivision unless expressly so limited. Where this Referral Agreement
states that a party “will” or “shall” perform in some manner or otherwise act or omit to act, it
means that such party is legally obligated to do so in accordance with this Referral Agreement. The
captions, titles, and headings included in this Agreement are for convenience only and do not affect
this Agreement’s construction or interpretation. Any reference to a Related Agreement in this
Referral Agreement shall refer to a Related Agreement, as amended, unless the context otherwise
requires.
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WAIVER. Any provision of this Referral Agreement may be waived by HomeTraq only by
a writing signed by HomeTraq. HomeTraq shall not be precluded from enforcing any right or remedy
under this Referral Agreement because of any failure or delay in exercising said right or remedy.
The waiver by HomeTraq shall be limited to a single matter or occurrence and then only for the
limited purpose stated. Any enumeration of HomeTraq’s rights and remedies under this Referral
Agreement is not intended to be exclusive and is specifically intended to be cumulative to the
extent permitted by law and to include any rights and remedies, in law or equity, authorized by law.
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INTEGRATION. The Referral Agreement and the Related Agreements, as now existing and
hereinafter amended, constitute the entire agreement and understanding between the HomeTraq and
Broker and supersede any and all prior agreements and understandings, oral or written, relating to
access and use of HomeTraq’s On-Demand Service Application and the provision of Real Estate Services
to the Referred Consumer hereunder.
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SEPERABILITY. The terms, conditions and provisions of this Referral Agreement shall
be severable. If any of the terms or conditions of this Referral Agreement are held or otherwise
found to be invalid by any court of competent jurisdiction, HomeTraq and Broker agree that the court
shall endeavor to give effect to the parties’ intentions as reflected in the original terms,
conditions and provisions (including recitals) and shall adjust and modify such invalid terms or
conditions to the extent necessary to cure that invalidity. The court modified terms or conditions
shall thereafter be enforceable as if originally made in the Referral Agreement. Notwithstanding
the invalidity of any term or condition of the Referral Agreement, the other and remaining terms and
conditions of the Referral Agreement shall remain in full force and effect and shall be fully
enforceable.
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ELECTRONIC DOCUMENTS, SIGNATURES AND OTHER COUNTERPARTS. This Referral Agreement
may be executed in separate counterparts, each of which shall be deemed an original and all of which,
when taken together, shall constitute the one and same agreement. Electronic versions and/or
electronically signed versions of the Referral Agreement shall be binding upon the HomeTraq and
Broker and shall be admissible in judicial and other proceedings to the same extent and subject to
the same conditions as other business documents generated in printed form. Broker consents to the
use of electronic documents and signatures in accordance with the Electronic Signatures in Global
and National Commerce Act and the applicable state’s Uniform Electronic Transactions Act.
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AUTHORITY. Broker represents to HomeTraq that: (1) it has the corporate or other
power and authority to execute, deliver and perform this Referral Agreement; (2) the execution,
delivery and performance of this Referral Agreement has been duly authorized by all necessary
corporate or other actions; (3) it has duly executed and delivered this Referral Agreement to
HomeTraq; and (4) the Referral Agreement is the legal, valid and binding obligation of Broker and
is enforceable against Broker in accordance with its terms and conditions.
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ASSIGNMENT AND BINDING EFFECT. This Referral Agreement may only be assigned with the
written consent and approval of HomeTraq. Except as specifically provided herein, this Referral
Agreement is intended only and solely for the benefit of Broker and for the benefit of HomeTraq
and does not, and is intended not to, create or confer any rights or remedies in favor of any other
party (including the Referred Consumer). This Referral Agreement shall be binding on HomeTraq, Broker
and their respective successors and permitted assigns.
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INDEPENDENT CONTRACTOR RELATIONSHIP. Nothing contained herein shall be construed to create
an employment relationship, a joint venture, fiduciary relationship, partnership or agency relationship,
general or limited, between HomeTraq and the Broker. HomeTraq shall have no right, duty or obligation to
supervise the Broker and shall have no right, duty or obligation to direct, control or supervise the
methods, means, processes and procedures used by Broker to perform the Real Estate Services contemplated
by this Referral Agreement. HomeTraq shall not be required to provide the Enrolled Real Estate Agents
with minimum wages, overtime compensation, worker’s compensation, health insurance or any other compensation
or benefits required by law. The relationship between HomeTraq and Broker is an independent contractor
relationship only. Broker, its employees, representatives and agents shall not represent or hold themselves
out to be an employee, representative or agent of HomeTraq and that Broker shall have no power or authority
to act on behalf or to bind HomeTraq.