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Boiling Down the Boilerplate

Note: The following is intended to help non-lawyers understand some of the most common provisions found in contracts. These provisions should not be inserted or modified for use in contracts without the advice of an attorney.

Who’s who?

Introduction: This Agreement is made and entered into on this __ day of ______ by and between the NATIONAL ASSOCIATION OF REALTORS® ("NAR"), an Illinois not-for-profit corporation, with its principal offices located at 430 North Michigan Avenue, Chicago, Illinois 60611 and _______, with offices located at _______ ("Vendor"). The parties agree as follows:

Translation:
Who the parties are.
Are they incorporated?
Where you can reach them.
Agreement is effective on this date.

It’s ours!

Works Made for Hire: All right, title and interest in and to all creative concepts and all
materials, including, but not limited to, any copyrightable works developed by Vendor
for NAR hereunder shall be owned exclusively by NAR. All copyrightable works shall be
deemed "works made for hire" within the meaning of the United States Copyright Act, or
to the extent any such works may not be "works made for hire", Vendor hereby
assigns exclusively and in perpetuity all right, title and interest in and to such works,
including copyrights, and hereby agrees to execute any documents reasonably deemed
necessary by NAR to perfect such assignment and/or register said copyrights. Vendor
may not produce or provide copies of the materials for any person or entity other than
NAR without the express written permission of NAR.

Translation:
The intellectual property rights in the deliverable will belong to NAR.
If necessary, Vendor will execute any documents that are necessary to ensure that the deliverable belongs to NAR.
Vendor may not give the deliverable or any copies of the deliverable to anyone else without our permission.

It’s yours?

Original Works: Vendor warrants that all materials included in the Course shall be the Vendor's original work product, work for which Vendor has secured the perpetual and irrevocable right to use in the manner specified in this Agreement, or work which is in the public domain, and which does not violate any copyright, patent or other intellectual property right, including trade secrets.

Translation:
Vendor will not violate the intellectual property rights of any third-party.

No plagiarism, please!

Vendor warrants that all of its ideas are original or that it has obtained the appropriate legal releases to use another's ideas or materials. Vendor shall also use its best efforts to ensure that all final designs do not, and future releases of the designs will not, infringe upon or violate any patent, trademark, copyright, trade secret or other proprietary right of any third party. In the event of a claim of the type contemplated above by any party against NAR, NAR immediately shall notify Vendor and Vendor then shall defend such claim on behalf of NAR, at Vendor's own expense, including all attorney's fees and costs. Vendor also shall indemnify, save and hold harmless NAR, its officers, directors, agents and employees from and against all liabilities, costs and expenses (including attorney's fees) arising from any and all such claims whether or not the claim is successful.

Translation:
Same as above.
Also, Vendor will defend NAR/indemnify NAR against intellectual property claims.

Neither rain, nor sleet. . .

Force Majeure. In the event the program is canceled or if either party cannot perform its obligations pursuant to this Agreement due to reasons beyond the parties’ control, such as strike, war or governmental action, neither party shall incur any further obligation pursuant to this Agreement and all moneys deposited by NAR shall be promptly returned.

Translation:
Neither party should be penalized if they are unable to perform because of Acts of God.

Cousins by the dozens and other relationships.

Independent Contractor: This Agreement does not constitute a joint venture, partnership, agency relationship, or form of business organization of any kind, and the rights and obligations of the parties shall only be those of independent contractors.

Translation:
Neither party is responsible to third-parties for the other’s promises, actions or liabilities.

OR
In accordance with his status as an independent contractor, Vendor agrees that he will neither hold himself out as nor claim to be an officer, employee or agent of NAR and that he will not make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of NAR including, but not limited to, worker's compensation coverage, unemployment insurance benefits, or employment-related benefits. Neither federal, nor state, nor local taxes of any kind shall be withheld or paid by NAR on behalf of Vendor and Vendor shall not be treated as an employee with respect to the services performed hereunder for federal, state or local tax purposes. Vendor understands that he is responsible for the payment of all applicable taxes relating to his independent contractor status.

Translation:
Same as above.
Also, Vendor is not our employee and we are not responsible for Vendor’s employment-related taxes and benefits.

Special help for special people.

ADA. Vendor acknowledges that its site for the Vendor is a place of public accommodation covered by Title III of the Americans with Disabilities Act (“The Act”) and in this connection, warrants that its goods, services, facilities, privileges, advantages and accommodations are in full compliance, to the extent applicable, with the Act and any regulations or guidelines pursuant thereto or as hereafter supplemented or amended. Such compliance shall be inclusive of, but not limited to, accessible and barrier-free meeting space.

Vendor agrees to be responsible for the engagement of specialized service providers, such as sign language interpreters, and auxiliary aids which may be required by attendees/students, provided NAR notifies Vendor that specific attendees/students require specific accommodations.

Vendor agrees to indemnify and hold harmless NAR, its officers, directors, employees, members and guests from and against any and all claims, damages, losses and expenses, including attorney’s fees and litigation expenses, arising out of or resulting from a breach of the foregoing warranty or alleged noncompliance with Title III of the Act by Vendor or its employees, representatives, agents, or contractors.

Translation:
Vendor warrants that its facilities and services comply with the Americans With Disabilities Act.
Vendor’s site is wheelchair accessible and aids for other disabled individuals, such as hearing devices, sign language interpreters and assistance for the visually impaired, will be provided upon sufficient notice.
Vendor indemnifies NAR against claims alleging noncompliance with the ADA.

We didn’t do it, Ma.

Indemnification: Vendor hereby indemnifies NAR, its officers, directors, employees and agents from any and all claims, damages, losses and expenses, including attorney's fees and litigation expenses, arising out of or in connection with the services provided for herein, except such claims which are based solely on the negligence or intentional acts or omissions of NAR, its agents or employees.

Translation:
Vendor will take legal responsibility for third-party claims related to the services it provides under this Agreement, unless those claims are due solely to NAR’s misconduct.

Barbarians at the Gate.

Assignment: Neither party may assign its rights or obligations under this Agreement without the express written consent of the other party.

Translation:
Neither party can unilaterally force the other party to accept the services of a third-party.

Fax or fiction?


Notice: All notices provided for herein shall be sent by: (i) Certified Mail to the address(es) indicated above, return receipt requested; (ii) electronic mail, return receipt requested; or (iii) facsimile, provided that transmission is verified, and in all instances shall be deemed given when mailed or transmitted.

Translation:
The parties can send required notices to the other party by means of certified mail, e-mail or fax, provided that receipt is verified.

All good or all bad?

Severability: The invalidity or unenforceability of one or more provisions of this Agreement shall not affect the validity or enforceability of any other of the provisions hereof, and this Agreement shall continue in all respects as if such invalid or unenforceable provisions were omitted.


Translation:
If a court decides that any part of this Agreement is invalid or unenforceable, the rest of the Agreement is still valid and enforceable.

Don’t waive good-bye.

Waiver: No failure or delay on the part of either party in exercising any right hereunder, irrespective of the length of time for which such failure and delay shall continue, shall operate as a waiver of or impair any such right.

Translation:
Just because we don’t terminate the contract or sue when Vendor breaches the contract once doesn’t mean we can’t terminate the contract or sue when the Vendor breaches the contract a second or third time.

Where’s the courthouse?

Governing law: This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois.

Translation:
Illinois contract law will be used in any dispute related to this Agreement.

Is that all there is?

Integration and Modification: This Agreement (including Attachments and Appendices) constitutes the entire Agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior agreements, understandings, promises and representations made by either party concerning the subject matter hereof. This Agreement may not be amended or modified in any matter except by an instrument in writing signed by both of the parties hereto.

Translation:
IMPORTANT! Don’t expect any oral or written discussions you had with the Vendor before this contract was signed to be enforceable, unless it is expressly spelled out in the four corners of this Agreement.
Amendments and modifications must be in writing and signed by both parties.

Just one more thing. . .

Addendum: This Addendum is entered into on this day of , 1999 to amend the terms of the agreement between Vendor and the NATIONAL ASSOCIATION OF REALTORS® (“NAR”) dated ___________ (the "Agreement") and is attached to and hereby made a part of that Agreement.

In the event any provision of this Addendum and the Agreement are inconsistent or conflicting, the terms and conditions of this Addendum shall control. All terms and conditions used in this Addendum, to the extent they are not otherwise defined in this Addendum shall have the same meaning as in the Agreement. Except as amended by this Addendum, all of the terms, conditions and covenants of the Agreement are valid, shall remain in full force and effect, and are hereby ratified and confirmed.

Translation:
When amendment is effective.
What contract it amends.
What controls if Addendum and original Agreement are inconsistent or conflict.