Keller Williams Realty International, Inc. (KWRI) has developed a cloud-based ecosystem that includes an on-line marketplace (the KW Marketplace) that allows KWRI Licensees, brokers, agents, or other KWRI approved parties, including their clients (each an End User) to obtain various services, including professional and software applications, from participating third party Business Partners. This KWRI Cloud Innovator Program agreement (KCIP Agreement) establishes the terms and conditions between KWRI and Business Partner (each a Party) under which KWRI can advertise, promote, sell, or distribute Business Partner’s Services to End Users.
“Business Partner” means the individual or entity agreeing to the terms of this KCIP Agreement and providing goods or services described in this KCIP Agreement to End Users.
“Business Partner End User Agreement” means separate terms and conditions between Business Partner and End Users governing End Users’ use of the Services.
“End User Data” means any data relating to or provided by End Users to either Party including any Personal Information or other information entered in the Keller Cloud.
“Effective Date” means the date upon which Business Partner agrees to this KCIP Agreement as evidenced by the earliest of either, signature below, affirmative electronic assent, or submission of a Marketplace Access Form.
“Keller Cloud” means KWRI’s internet-based computing ecosystem where servers, computing systems, and applications enable the promotion or delivery of Services to End Users and which may also be referred to as “Command”, “KW Command”, or “Keller Command.”
“Laws” means those applicable laws, rules, regulations, court orders, or binding regulatory guidance.
“Licensee” means a third party that has entered into a KWRI Market Center License Agreement or similar agreement.
“Marketplace Access Form” means the enabling document incorporated into and part of this KCIP Agreement specifying the financial arrangements between the Parties, enabling Business Partner’s right to use KWRI’s intellectual property and right to interoperate with Keller Cloud. It also specifies the Services to be offered, applicable monetary terms, and sets forth any other unique terms.
“Market Center License Agreement” means that license agreement between KWRI and an entity governing the establishment of a “Market Center” operating under the Keller Williams name and related trademarks (e.g. a franchisee).
“Personal Information” means any information (including data) that relates to an identified or identifiable individual or device, including, but not limited to, name, address, telephone number, email address, username and password, photograph, government-issued identifier, or any other data used or intended to be used to identify, contact or precisely locate an individual.
“Processing” means any operation or set of operations which is performed on Personal Information, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
“Services” means Business Partner’s applications, services, or goods that are provided to End Users through the KW Marketplace. The Services will be provided by Business Partner to End Users and Business Partner will remain solely responsible to the End User for the Services.
Upon the full execution of a Marketplace Access form:
KWRI has no obligation to provide Business Partner with any specific number of buyers, subscribers, revenue, profit, or users of the Services or distribute any specific quantity of Services.
KWRI may discontinue the resale of the Services or revoke Business Partner’s or an End User’s access to the KW Marketplace or Keller Cloud at any time and for any reason with or without cause, and other than payment to Business Partner of fees accrued, KWRI bears no other responsibility or liability for any such suspension, termination or revocation.
The specific fees and payment terms are specified in Marketplace Access Agreement.
Business Partner appoints KWRI as its limited payments agent for the sole purpose of receiving, holding and settling payments to Business Partner for purchases made through the KW Marketplace. KWRI will settle payments that are received by KWRI to Business Partner, less any amounts owed to KWRI and applicable taxes. Payments received by KWRI, on behalf of Business Partner, satisfies End User’s obligations to make payment to Business Partner. If KWRI does not settle any such payments to Business Partner, Business Partner will have recourse only against KWRI and not the End User, as payment is deemed made by End User to Business Partner upon receipt by KWRI. KWRI will maintain such records necessary to demonstrate payments by End Users and make such available to Business Partner as reasonably required.
Business Partner will not charge more for the Services provided through the KW Marketplace than it charges its other customers for similar Services and will not provide the Services on less favorable terms (e.g. integration, support, access, maintenance, etc.).
Each Party will implement current anti-malware software and technology to mitigate against the possibility of accessing, storing, distributing, or transmitting any malware through KWRI computing systems (e.g. KW Marketplace and Keller Cloud).
For the Services provided through the KW Marketplace, Business Partner must enter into a Business Partner End User Agreement with End Users that:
For the avoidance of doubt, KWRI will have no responsibility or liability for End User’s compliance with the Business Partner End User Agreement. Further, unless otherwise agreed on a case by case basis, KWRI will have no liability or responsibility for any actions or losses related to Business Partner’s Services and transactions between Business Partner and End Users (including returns, refunds, and chargebacks), or disputes arising between or among Business Partner and End Users.
Business Partner will, at its own cost and expense, cooperate with and promptly provide reasonable technical assistance and support to KWRI to make the Services available in the KW Marketplace and Keller Cloud.
Business Partner will provide monthly reports to KWRI within five days after the end of each calendar month that includes the number of End Users, usage rates, number of support tickets logged and resolution times, new product versions launched, performance in accordance with any applicable service levels, and such other metrics as reasonably requested by KWRI from time-to-time or as specified in a Marketplace Access Form. Such reports will be organized by category of information, be portable, and provided in a format reasonably requested by KWRI.
If an End User notifies Business Partner that it no longer intends to be associated with KWRI or a KWRI affiliate, then Business Partner will notify KWRI and the Parties will discuss the feasibility of extending the Services for such End User through the end of the then-current term of the corresponding End User Agreement or whether termination of the End User’s account in the KW Marketplace is required in which event the End User would be released from the remainder of the then-current term.
KWRI will, subject to Section 3, make commercially reasonable efforts to market and promote Business Partner’s Services on the KW Marketplace.
KWRI will at its own cost and expense provide reasonable cooperation and assistance to Business Partner to assist in making the Services available in the KW Marketplace, provide support to End Users, and facilitate End Users use of the Services.
Should Business Partner want to obtain advertising services from KWRI, the parties will enter into a separate Advertising Services Order Form.
The term of this KCIP Agreement commences on the Effective Date and will continue until December 31 of the current calendar year (the “Initial Term”) or the Term specified in a Marketplace Access Form, unless earlier terminated by either Party as provided in this KCIP Agreement. The KCIP Agreement will then automatically renew for successive one (1) year periods unless either Party provides written notice of such Party’s intent not to renew the KCIP Agreement at least ninety (90) days prior to the end of the then-current term (such renewal periods, if any, together with the Initial Term, the “Term”). If applicable, Term of this KCIP Agreement will extend until the termination of any active Marketplace Access Forms.
This KCIP Agreement and any Marketplace Access Form may be terminated by either Party (a) upon thirty (30) days written notice to the other if the other Party fails to perform or observe any material term or condition in this KCIP Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching Party. KWRI may terminate this KCIP Agreement and any Order Forms for any reason, by providing Business Partner with thirty (30) days advance written notice.
Upon termination, or KWRI’s written request, Business Partner will promptly:
End User Data.
If an End User’s account in the KW Marketplace or Keller Cloud is terminated, then Business Partner will, with respect to such End Users, not build or enable any technical means for such End Users to synchronize such End User Data with any product or service, including any such products or services provided by Business Partner.
Business Partner will use industry-standard technical, physical, and organizational measures to protect End User Data in its custody or control against unauthorized access, acquisition, use, disclosure, or other unauthorized Processing. In the event of any unauthorized access, acquisition, use, disclosure, or other unauthorized Processing of End User Data (a Security Incident), Business Partner will notify KWRI within twenty four (24) hours of Business Partner’s awareness of such Security Incident and will be solely responsible for taking all necessary steps to remediate the Security Incident, including the provision of any legally-required notices.
To the extent authorized by End Users as between Business Partner and KWRI concerning information received for the Services, Business Partner will own such End User Data in Business Partner’s computing systems and KWRI will own such End User Data in Keller Cloud.
In no event will Business Partner restrict or otherwise limit: (i) KWRI’s rights to collect, use, store, and otherwise Process any End User Data, or (ii) the disclosure and sharing of End User Data between accounts as authorized by the End User.
If Business Partner has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information of KWRI or other End Users, Business Partner will at all times remain in compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at Business Partner’s sole cost and expense. KWRI may perform an annual audit of Business Partner to ensure Business Partner’s PCI DSS compliance. If KWRI reasonably suspects the Business Partner’s lack of PCI DSS compliance, KWRI may perform additional audits upon written request.
No Implied Licenses.
Neither Party grants any rights or licenses to the other Party, express or implied, under any intellectual property rights of such Party, except as expressly granted herein. Nothing in this KCIP Agreement will be deemed to grant an ownership interest to one Party in any of the intellectual property rights of the other Party.
Business Partner Trademarks.
Business Partner grants KWRI the right to use, reproduce, display, publicly perform and publish Business Partner’s name, trademarks, logos, icons, product descriptions, application titles, trade dress, images, screenshots, video trailers, and other metadata it provides to KWRI (Business Partner Trademarks) for use in the Keller Cloud or KW Marketplace and performing any obligations under this KCIP Agreement. KWRI will use Business Partner Trademarks consistent with good trademark practice and comply with Business Partner’s reasonable requests to cease use of Business Partner Trademarks.
Upon the full execution of a Marketplace Access Form, and only during the Term, KWRI grants Business Partner a non-exclusive, non-transferable, non-sublicensable right and license to use the name, trademarks, service marks, logos, and other marks it provides to Business Partner (KW Marks) in (a) its advertising, marketing, and promotional materials in all formats and media, including on its website, mobile apps, and social marketing pages, on third-party websites and mobile apps, to identify and promote its status as a Keller Cloud Innovator Partner (or similar designation) in accordance with KWRI’s then current style guide found at https://www.kwconnect.com/page/marketing/logos-branding or as made available to Business Partner and (b) on materials or products that Business Partner is obligated or otherwise permitted to create and distribute under this KCIP Agreement. Business Partner is not permitted to use the KW Marks or any variation thereof in its domain names or social media account names, or as metatags for any Business Partner webpages or advertisements. Business Partner will (i) comply with all requests from KWRI relating to Business Partner’s use of the KW Marks, and (ii) obtain the prior written approval of KWRI prior to issuing any press release or other public announcement relating to the relationship between the Parties. KWRI reserves all rights with respect to use of the KW Marks.
When using the KW Marks, Business Partner must include the disclaimer:
“Neither Keller Williams Realty, Inc. nor its affiliated companies warrant any product or service delivered under this program. All products and services are provided by [Business Partner Name]. [Business Partner Name] is a business entity independent from Keller Williams Realty, Inc. and has no agency, partnership, or joint-venture with Keller Williams Realty, Inc.”
KW Marks may not be used or displayed in such a manner as to suggest that, except for its designation as a Keller Cloud Innovator Partner (or similar designation), Business Partner is in any way related to, sponsored by, or affiliated with KWRI. Business Partner agrees not to use the KW Marks in any manner that may disparage or injure KWRI’s, its Licensees’, or other End Users’ reputation for high quality, or otherwise diminish or dilute KWRI’s goodwill in the KW Marks or infringe KWRI’s intellectual property. Business Partner will not use KW Marks in a manner that derogates from KWRI’s rights in the KW Marks and will take no action that may interfere or diminish KWRI’s rights in the KW Marks. All uses of the KW Marks, and all goodwill associated therewith, will inure solely to the benefit of KWRI, and KWRI will retain all right, title, and interest in and to the KW Marks. Business Partner is prohibited from using KW Marks except in accordance with this KCIP Agreement.
If Business Partner provides any ideas, proposals, suggestions or other materials to KWRI (Feedback), then such Feedback will not be deemed confidential, and is gratuitous, unsolicited and without restriction, nor places KWRI under any fiduciary or other obligation. Business Partner hereby grants to KWRI a non-exclusive, royalty free, perpetual, irrevocable, non-terminable, transferable, worldwide right and license (including the right to grant and authorize sublicenses through multiple levels) to use and exploit such Feedback for any and all purposes and in any and all media, and Business Partner waives all moral and similar rights in connection therewith.
Each Party represents and warrants that it: (a) has the right to enter into this KCIP Agreement, (b) is a corporation or entity duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation, (c) has the power and authority to execute and deliver this KCIP Agreement and to perform its obligations hereunder; (d) uses only intellectual property that does not and will not infringe or violate third party rights; and (e) the execution, delivery and performance by each Party does not (i) violate any Law applicable to such Party or its actions, or (ii) conflict with any agreement to which such Party is bound.
Business Partner represents and warrants that it (a) has the required skill, expertise, and qualifications to perform the Services, (b) will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, (c) will devote sufficient resources to ensure that the Services are performed in a timely and reliable manner, (d) will provide End Users with maintenance and support of a level and quality that is at least as high as what Business Partner provides to its other customers of similar products and services irrespective of expiration or earlier termination of this KCIP Agreement, and (e) will make all new versions of the Services (e.g. software applications) available to End Users that Business Partner generally makes available to its other customers without additional charge.
KELLER CLOUD AND THE KW MARKETPLACE ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND AND KWRI DOES NOT PROVIDE ANY WARRANTY THAT THE KELLER CLOUD OR KW MARKETPLACE WILL BE FREE FROM ERRORS OR INTERRUPTION.
As used in this KCIP Agreement, “Confidential Information” means all data, information, and materials disclosed by one Party (the Disclosing Party) to the other Party (the Receiving Party) pursuant to the terms of this KCIP Agreement, in any form or media, that is (a) marked as confidential or (b) provided under circumstances that indicate confidentiality or would cause a reasonable person to otherwise identify the data, information, or materials as confidential. End User Data provided by KWRI to the Business Partner, as well as the terms and conditions of this KCIP Agreement, will be considered KWRI Confidential Information for purposes of this Agreement. For the purposes of determining liability amounts under Section 13, Personal Information shall not be considered Confidential Information.
Non-use and Non-disclosure.
Except to the extent expressly permitted under this KCIP Agreement, the Receiving Party will keep in confidence and will not use or disclose to any third person any Confidential Information of the Disclosing Party. Each Party will ensure its employees, agents and contractors are aware of and comply with the confidentiality provisions of this Section. The Receiving Party will use at least the degree of care in protecting the Confidential Information of the Disclosing Party as it does for its own information of a similar nature, but in any event no less than a reasonable standard of care.
Confidential Information will not include information that (a) is or becomes a part of the public domain without any breach of confidentiality obligations owed to the Disclosing Party; (b) was in the Receiving Party’s possession prior to the disclosure without any limitations on disclosure or use; (c) is independently developed by the Receiving Party without any reference to or use of the Disclosing Party’s Confidential Information; or (d) is disclosed hereafter to the Receiving Party by a third person who did not acquire the information subject to an obligation of confidentiality to the Disclosing Party.
The Receiving Party may disclose Confidential Information (i) in response to a valid order by a court or other governmental body, or as otherwise required by Law; provided, however, that Recipient will, to the extent permitted by applicable Law, provide prompt written notice to the Disclosing Party of any such order or requirement prior to such disclosure to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure; (ii) to its financial, accounting and legal representatives with a need to know for the purpose of providing professional services to the Receiving Party; (iii) as and to the extent required by applicable Law or regulation, or by the listing of similar rules of the stock exchange on which the securities of the Receiving Party may be listed (provided that, prior to such disclosure, the Receiving Party, to the extent permitted by Law, will provide written notice of such requirement to the Disclosing Party to allow the Disclosing Party to seek to redact or otherwise limit the scope of such disclosure). The Receiving Party also may disclose the provisions of this KCIP Agreement to actual or prospective investors and acquirers in connection with their evaluation of their investment in or acquisition of the Receiving Party so long as such investors and acquirers are bound by confidentiality obligations at least as protective as those in this KCIP Agreement.
As between the Parties, all Confidential Information will remain the sole property of the Disclosing Party and the Disclosing Party will retain ownership of all rights, title, interest in and to the Confidential Information and all intellectual property rights therein. Promptly following the expiration or termination of this KCIP Agreement, the Receiving Party will promptly destroy or deliver to the Disclosing Party, at the Disclosing Party’s option, all Confidential Information furnished to Recipient by the Disclosing Party pursuant to this KCIP Agreement (exclusive of electronic back-up copies and an archival copy for legal purposes) and provide written certification of compliance with such obligation.
NEITHER PARTY WILL BE LIABLE FOR AN AMOUNT EXCEEDING THE AMOUNTS RECEIVED BY KWRI IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CAUSE OF ACTION FOR DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COST OF COVER, OR PUNITIVE DAMAGES. THE LIMITATIONS IN THIS SECTION APPLY REGARDLESS OF WHETHER EITHER PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THE EXTENT OF SUCH PARTY’S FAULT. THE FOREGOING DISCLAIMERS WILL NOT APPLY IF PROHIBITED BY LAW OR TO THE EXTENT THAT: (I) LIABILITY OF A PARTY ARISES UNDER THE INDEMNIFICATION PROVISIONS, OR (II) DAMAGES ARISE OUT OF: (X) A PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, (Y) A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS, OR (Z) A PARTY’S BREACH WITH RESPECT TO PERSONAL INFORMATION OR A SECURITY INCIDENT.
Each Party will defend, indemnify, and hold harmless the other Party, its affiliates, and their respective officers, directors, employees, agents, independent contractors (including service providers) and licensors from and against any and all third-party allegations, claims, demands, suits, proceedings or actions (Actions), losses, liabilities, damages, expenses, costs and fees (including payment of attorneys’ fees, court costs and costs of other professionals) (collectively Losses) arising out of or relating to: (a) allegations that advertising or promotional materials are false or deceptive; (b) intellectual property infringement; or in the case of Business Partner (x), the Services, a Security Incident or any transaction between Business Partner and an End User.
Each Party must promptly notify the other of any Action for which it seeks indemnification; provided that the failure to provide such notice will not relieve a Party of its indemnification obligations except to the extent of any material prejudice directly resulting from such failure. The indemnifying party will bear full responsibility for the defense (including any settlements) of any such Action; provided, however, that (i) the indemnifying party will keep the other Party informed and not settle any Action in a manner that does not unconditionally release the other Party without prior written consent, not to be unreasonably withheld or delayed. The Parties will reasonably cooperate with each other in connection with defending any Action.
Relationship of Parties. The Parties are independent contractors and this KCIP Agreement does not establish any partnership, joint venture, employment, franchise, or agency between the Parties. Except as provided in this KCIP Agreement, neither Party has the power to bind the other Party or incur obligations on the other Party’s behalf.
No Exclusivity. No obligations of exclusivity are created for either Party as a result of this KCIP Agreement.
Notices. All notices, consents, or waivers under this KCIP Agreement must be in writing, and delivered to the other Party at the address set forth in the Market Access Form by personal delivery, certified mail (postage pre-paid), or a nationally recognized overnight courier. Unless otherwise provided by applicable Law, notices are effective: (i) when delivered personally, (ii) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iii) two (2) business days after deposit with a private industry express courier, with written confirmation of receipt. Business Partner is responsible for ensuring that its contact information remains accurate and current and any notices to KWRI state “Attention: Legal Department.”
Governing Law and Venue. This KCIP Agreement will be solely and exclusively governed, construed and enforced in accordance with the Laws of Delaware without regard to conflict of laws principles. Any suit, action or proceeding arising from or relating to this KCIP Agreement must be brought, solely and exclusively, in the state or federal courts sitting in Delaware, and each Party irrevocably consents to the jurisdiction and venue of any such court for any such suit, action or proceeding.
Waiver. Either Party’s failure to enforce any provision of this KCIP Agreement will not affect the full right to require such performance any time thereafter; nor will a Party’s waiver of a breach of any provision of this KCIP Agreement be deemed a waiver of the provision itself.
Assignment. Neither this KCIP Agreement, nor any rights or obligations of a Party, may be assigned by a Party, in whole or in part, without the prior written consent of the other Party (not to be unreasonably withheld or delayed), except that a Party may assign this KCIP Agreement to an affiliate, or to one or more acquirers or successors-in-interest to all or substantially all of its business or assets whether by merger, reorganization, asset sale or otherwise. Any purported assignment in contravention of the foregoing will be void and of no effect.
Severability. This KCIP Agreement is severable, and if one or more of the provisions (or portion thereof) contained in this KCIP Agreement are determined invalid, illegal or unenforceable, such invalidity, illegality, or unenforceability will not affect any of the remaining provisions (or portions thereof), and this KCIP Agreement will be construed as if such invalid, illegal, or unenforceable provision (or portion thereof) was never included in this KCIP Agreement.
Survival. The representations and warranties of the Parties contained herein will survive the expiration or earlier termination of this KCIP Agreement and any provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or termination of this KCIP Agreement for the period of time necessary to give proper effect to the intent of the provision.
Force Majeure. Neither Party will be liable for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including, acts or omissions of government or military authority, acts of God, electric or other power outages, shortages of materials, transportation delays, earthquakes, fires, floods, labor disturbances, riots, or wars.
Entire Agreement; Amendments. This KCIP Agreement together with all Market Access Forms, schedules or exhibits (which are hereby incorporated by reference) completely and exclusively state the agreement of the Parties regarding its subject matter and supersedes all prior or contemporaneous understandings, agreements, representations, or other communications between the Parties, oral or written, regarding such subject matter, including any Approved Vendor Agreements or other agreements (e.g. Business Partner purchase order terms and conditions). This KCIP Agreement may be executed in counterparts all of which when taken together will constitute one single agreement between the Parties. This KCIP Agreement may be amended only in a written document signed by authorized representatives of both Parties. The order of precedence shall be: Market Access Form over this KCIP Agreement, and this KCIP Agreement over Exhibits.