(a) These terms and conditions for services (these Terms) are the only terms that govern the provision of professional services by Keller Williams Realty, Inc., or its subcontractors, (collectively KWRI) to you (You or Your).
(b) The accompanying order confirmation (the Order Confirmation) which may be presented to You in electronic or other form, and these Terms (collectively, this Agreement) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, the Order Confirmation will govern.
(c) These Terms prevail over any of Your general terms and conditions regardless of whether or when You provided such terms. Provision of services to You does not constitute acceptance of any of Your terms and conditions and does not serve to modify or amend these Terms.
KWRI or its subcontractor will provide the services to You as described in the Order Confirmation (the Services) in accordance with these Terms.
KWRI will use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates will be estimates only.
(a) reasonably cooperate in matters relating to the Services and provide access to Your computing systems, passwords, logins as needed, and such office accommodation or other facilities as reasonably requested, to provide the Services;
(b) respond promptly to any request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary to perform Services;
(c) provide such materials or information to carry out the Services in a timely manner and ensure that such materials or information are materially complete and accurate;
(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services.
If KWRI’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of You or Your agents, subcontractors, consultants, or employees, KWRI will not be deemed in breach of its obligations under this Agreement or liable for any costs, charges, or losses sustained or incurred by You, to the extent arising directly or indirectly from such prevention or delay.
KWRI may, from time to time change the Services without the consent of You provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Order Confirmation.
(a) In consideration of the provision of the Services by KWRI and the rights granted to You under this Agreement, You will pay the fees set forth in the Order Confirmation.
(b) You agree to reimburse KWRI for all reasonable travel and out-of-pocket expenses incurred by KWRI in connection with the performance of the Services.
(c) You will pay all invoiced amounts due to KWRI within 30 days from the date of KWRI’s invoice. You will make all payments hereunder in US dollars by Credit Card.
(d) In the event payments are not received by KWRI after becoming due, KWRI may:
You will be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by You hereunder.
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, Intellectual Property Rights) in and to all documents, work product and other materials that are delivered to You under this Agreement or prepared by or on behalf of KWRI in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the Deliverables) except for any Confidential Information of You or Your materials will be owned exclusively by KWRI. KWRI hereby grants You a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable You to make reasonable use of the Deliverables and the Services.
(a) All non-public, confidential or proprietary information of either party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to, pricing, and marketing (collectively, Confidential Information), disclosed by one party to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and will not be disclosed or copied by either party without the prior written consent of the other party. Confidential Information does not include information that is:
(b) Each party agrees to use the Confidential Information only to make use of the Services and Deliverables.
(c) A party will be entitled to injunctive relief for any violation of this Section.
(a) KWRI represents and warrants to You that it will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
(b) KWRI will not be liable for a breach of the warranty set forth in Section 11(a) unless You give written notice of the defective Services, reasonably described, to KWRI within 5 days of the time when You discover or ought to have discovered that the Services were defective.
(c) Subject to Section 11(b), KWRI will, in its sole discretion, either:
(d) THE REMEDIES SET FORTH IN SECTION 11(c) WILL BE THE YOUR SOLE AND EXCLUSIVE REMEDY AND KWRI’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11.
EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11 ABOVE, KWRI MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(a) IN NO EVENT WILL KWRI BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT KWRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT WILL KWRI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO KWRI PURSUANT TO THE APPLICABLE ORDER CONFIRMATION.
(c) The limitation of liability set forth in Section 13(b) above will not apply to (i) liability resulting from KWRI’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from KWRI’s negligent acts or omissions.
In addition to any remedies that may be provided under this Agreement, KWRI may terminate this Agreement immediately upon written notice to You, if You:
(a) fail to pay any amount when due under this Agreement and such failure continues for 10 days after Your receipt of written notice of nonpayment; have not performed or complied with any of the terms of this Agreement, in whole or in part.
During the term of this Agreement, You may be required, at Your own expense, to maintain and carry insurance in full force and effect covering your obligations contemplated by this Agreement. Upon KWRI’s request, You will provide KWRI with a certificate of insurance from Your insurer evidencing the insurance coverage specified in these Terms.
No waiver by KWRI of any of the provisions of this Agreement is effective unless explicitly agreed in writing and signed by KWRI. No failure to exercise, or delay in exercising, any rights or remedies arising from this Agreement is waiver of such right or remedy. No single or partial exercise of any right or remedy, precludes any other or further exercise thereof or the exercise of any other right or remedy.
KWRI will not be liable or responsible to You, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of KWRI including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event continues for a continuous period exceeding 15 days, You may give notice in writing to KWRI terminating this Agreement.
You will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of KWRI.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will 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 will have authority to contract for or bind the other party in any manner whatsoever.
This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy under or by reason of these Terms.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Austin and County of Travis, and each party irrevocably submits to the exclusive jurisdiction of such courts.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a Notice) will be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre- paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Insurance, Submission to Jurisdiction, and Survival.
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.