Last Updated: February 9, 2023
Please read these Terms of Service carefully.
This agreement (the “Agreement”) is between you and Keller Williams Realty, Inc. (“we,” “our,” or “us”) and governs your use of Twilio, Inc. (“Twilio”) products offered through the KW Marketplace (the “Services”). These terms are in addition to the terms of service between us and you governing your use of the KW Command mobile application (also known as “Command”) or the KW Marketplace (collectively, the “Command TOS”), as well as any specific terms of service that you may enter into with Twilio directly. If there is any conflict between these terms and the Command TOS, these terms shall prevail.
By using the Services, you are bound by the terms of this Agreement and any changes to it. References to “you” and “your” in this Agreement mean the individual using the Services, any designees or virtual assistants of the individual, and any business organization you represent, are employed by, or are a member of for which you are using the Services in support of.
1.Changes. We may change this Agreement by notifying you by any reasonable means, including posting a revised Agreement through the Services. The “Last Updated” legend shows when this Agreement was last changed.
2. Regulatory Compliance. You agree to comply with all applicable federal, state and local laws, regulations, and/or rules, including but not limited to, the Telephone Consumer Protection Act,47 U.S.C. § 227 (the “TCPA”), its implementing regulation, 47 C.F.R. § 64.1200, any applicable Do Not Call (DNC) lists, and all similar state laws and regulations related to any communication initiated by or on behalf of you, including but not limited to any communication initiated by any person or entity engaged by you. You represent, warrant, and covenant that you will not: (a) call or text any numbers on any applicable Do Not Call (DNC) list without obtaining prior consent from the intended recipient; (b) use any automatic telephone dialing system (ATDS) without obtaining prior express written consent from the intended recipient; and (c) call or text anyone who requests to be placed on your internal Do Not Call (DNC) list or revokes consent to be called or texted. You also represent, warrant, and covenant that you have access to the National Do Not Call Registry through your own account or through another account (such as one of our market centers) and that you will synchronize any call or text lists you maintain and use for telemarketing with an updated version of the Registry at least every 31 days.
YOU UNDERSTAND THAT IF YOU VIOLATE THE TCPA OR THE DNC RULES OR ANY OTHER FEDERAL OR STATE TELEMARKETING LAWS YOU FACE POTENTIALLY CATASTROPHIC LEGAL DAMAGES FOR WHICH YOU, AND NOT US OR THE AFFILIATED ENTITIES, ARE SOLELY RESPONSIBLE AND LIABLE. We recommend that you consult your legal advisor to determine if your telemarketing practices comply with the TCPA and DNC rules and applicable state laws.
3. Your Conduct. In addition to the other requirements in this Agreement, you must not:
You agree to be solely responsible for becoming aware of understanding and complying with the most recent versions of all applicable laws, regulations and our policies that relate to your use of the Services. You acknowledge that you are solely responsible for identifying, interpreting, understanding and complying with all applicable federal and state laws and regulations regarding your use of the Services, including selecting and engaging any legal counsel you may deem necessary to ensure compliance therewith.
NOTE: If you copy and paste an individual’s phone number from Command and insert such information into your mobile device for the purpose of communicating with that individual, you must comply with all applicable federal and state laws and regulations (including the TCPA) and any of our applicable policies and guidelines (including the KWRI Policies and Guidelines Manual) that apply to the dissemination of unsolicited email and faxes and to the use of telephone calls, text messages, artificial or prerecorded messages, ringless voicemails, automatic telephone dialing systems, automatic dialing and announcing devices and any other communication to market services or to solicit listings or prospective buyers or to engage in any telemarketing or telephone solicitation or other commercial communication.
You agree that you do not have authority to call, text, email, or otherwise communicate with anyone on our behalf and that you will not represent, or make statements suggesting, that you have such authority. We do not control and are not responsible for your actions related to any calls, texts, emails, or other communications you make. You are solely responsible for your actions.
4. Our Proprietary Rights. We and our suppliers own the Services, which are protected by proprietary rights and laws. Our trade names, trademarks and service marks include Keller Williams, KW and any associated logos. All trade names, trademarks, service marks, logos, copyrightable works and other content, information, and materials on or made available through the Services that are not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting any right to use any trade names, trademarks, service marks, logos, copyrightable works or other content, information, and materials without the express prior written consent of the owner.
5. Disclaimer of Warranties. THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND AND WE DO NOT PROVIDE ANY WARRANTY THAT THE SERVICES WILL BE FREE FROM ERRORS OR INTERRUPTION. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ANY WARRANTIES THAT YOU RECEIVE FROM TWILIO ARE SOLELY BETWEEN YOU AND TWILIO, NOT US OR THE AFFILIATED ENTITIES.
6. Limitation of Liability. NEITHER WE NOR OUR AFFILIATES AND ANY RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”) WILL BE LIABLE FOR: (A) ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COST OF COVER, OR PUNITIVE DAMAGES; OR (B) AGGREGATE LIABILITY OF ALL AFFILIATED ENTITIES, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEEDING THE GREATER OF (I) THE TOTAL AMOUNT PAID BY YOU TO US IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CAUSE OF ACTION FOR DAMAGES, OR (II) FIFTY DOLLARS ($50.00). UNLESS OTHERWISE PROVIDED IN YOUR AGREEMENT WITH TWILIO, YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES (INCLUDING ANY THIRD PARTY MATERIALS WITHIN THE SERVICES) IS TO STOP USING THE SERVICES. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH US AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
7. Indemnity. You will defend, indemnify and hold harmless us and the Affiliated Entities, and their respective successors and assigns, from and against all claims, demands, settlements, payments of money, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees and expenses) arising out of or relating to: (a) your use of, or your activities in connection with, the Services, INCLUDING VIOLATION OF THE TCPA OR DNC RULES; and (b) any violation or alleged violation of this Agreement by you. Without limiting the foregoing, you expressly acknowledge and agree that as an independent contractor, you are solely legally and financially responsible for any alleged violation of the TCPA, its implementing regulation, 47 C.F.R. § 64.1200, and all similar state laws and regulations.
8. Termination. This Agreement is effective until terminated. We may terminate or suspend your use of the Services at any time and without prior notice, for any or no reason, including if we believe that you have violated or acted inconsistently with the TCPA, any applicable DNC list, or this Agreement. Upon any such termination or suspension, your right to use the Services will immediately cease, and we may, without liability to you or any third party, immediately deactivate or delete your username, password and account, and all associated materials, without any obligation to provide any further access to such materials. Subject to the limitations and other provisions of this Agreement: (a) Section 2 (Regulatory Compliance), Section 3 (Your Conduct), Section 4 (Our Proprietary Rights), Section 5 (Disclaimer of Warranties), Section 6 (Limitation of Liability), Section 7 (Indemnity), Section 9 (Governing Law; Dispute Resolution), and Section 12 (Miscellaneous) will survive the expiration or termination of this Agreement; and (b) 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 Agreement for the period of time necessary to give proper effect to the intent of the provision.
9. Governing Law; Dispute Resolution. This Agreement and your activities under it, are governed solely by and shall be construed solely in accordance with the laws of the United States and the State of Texas, U.S.A., without regard to its principles of conflicts of law regardless of your location. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND US OR THE AFFILIATED ENTITIES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY (“Dispute”), WILL BE RESOLVED IN ACCORDANCE WITH SECTION 16 IN THE COMMAND TOS. PURSUANT TO ANY DISPUTE, YOU FURTHER AGREE: (a) CLASS ACTIONS ARE NOT PERMITTED; AND (b) YOU ARE GIVING UP ANY LEGAL RIGHT YOU MAY HAVE TO PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION.
10. Information or Complaints. If you have a question or concern regarding the Services, please send an e-mail to email@example.com. You may also call Twilio at (855) 576-7443. Please note that e-mail communications are not necessarily secure. Accordingly, you should not include personal or payment information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
11. Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (DMCA) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available through the Services infringe your copyright, you (or your agent) may send us a written notice by mail, e-mail or fax, requesting that we remove such material or disable access to it. If you believe in good faith that someone has wrongly submitted to us a notice of copyright infringement involving content that you made available through the Services, you may send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See https://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to our Designated Agent as follows:
Keller Williams Realty, Inc.
1221 S. Mopac Expressway, Suite 400
Austin, Texas 78746
Telephone: (512) 327-3070
We suggest that you consult your legal advisor before sending a DMCA notice or counter-notice. It is our policy to terminate, in appropriate circumstances, a user’s right to use the Services if we decide they are repeat infringers.
12. Miscellaneous. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer, or sublicense any of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any other breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated or expressly referenced herein, and any addenda hereto, is the entire agreement between you and us regarding its subject matter, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Services or by e-mail (including in each case via links) to the most recent e-mail address that you have provided to us, or by regular mail to the most recent mailing address that you have provided to us. Without limitation, a printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. We will not be responsible for any failure to fulfill any obligation due to any cause beyond our reasonable control.