This Market Center Agreement for Support Representative Services (Agreement) is entered into between Keller Williams Realty, Inc. (KWRI) and a KWRI Market Center (MC) as of the date on which the MC accepts the terms and conditions of this Agreement through the Keller Williams online marketplace (KW Marketplace) as evidenced by completion of an order (Order) and is effective as of the date of such Order (Effective Date). KWRI and MC may be referred to individually as a Party and collectively as the Parties.
Support Representative Services are provided by KWRI using either a KWRI employee or an independent
contractor who has Keller Williams Market Center knowledge (Support Representative) and who will perform services for a MC that would normally be provided by the MC’s Market Center Administrator (MCA). The specific services to be provided pursuant to this Agreement will be determined by the MC and chosen from the menu of offered services on the KW Marketplace and will begin on a date mutually agreed by the Parties following the Effective Date (Services). Support Representative will only provide the Services chosen by the MC. If additional Services are needed by the MC during the term of this Agreement, they may be purchased on the KW Marketplace.
Fees for Services are stated in the menu of offered Services on the KW Marketplace. Fees must be paid in full at the time of Order. The MC is responsible for travel costs associated with Support Representative’s on-site Services such as airfare, accommodations, meals, mileage reimbursement (Expenses). If applicable, KWRI will provide MC with a monthly billing statement for Support Representative’s Expenses. MC must remit payment to KWRI within thirty (30) days of the date of the invoice.
This Agreement begins on the Effective Date and continues for the period of time specified by the Services chosen by the MC from the menu of offered Services on the KW Marketplace. Either Party may cancel this Agreement on ten (10) business days’ notice to the other Party in writing.
If MC violates any of these Market Center Requirements during the term of this Agreement, Support Representative will immediately cease providing Services to MC and MC will promptly remit payment for any and all outstanding Expenses. MC will not be eligible for a refund of fees.
The Services are contingent upon MC’s cooperation with Support Representative, including disclosing to Support Representative all information necessary for Support Representative to perform the Services. While Support Representative has general knowledge of KWRI’s systems and models, Support Representative has no knowledge specific to MC. Support Representative will perform the Services based solely on the information provided by MC and MC is responsible for the accuracy and completeness of such information.
During the course of providing the Services, Support Representative may be given access to MC’s MCA computer or other MC technology systems. The Services are contingent upon MC meeting the minimum technology requirements detailed in the Market Center Knowledge Base. MC IS RESPONSIBLE FOR BACKING UP ITS OWN DATA AND IS REQUIRED TO BACK UP ITS DESIGNATED MCA COMPUTER TO AT LEAST THREE (3) DIFFERENT BACKUP SOURCES. IT IS ASSUMED THAT MC HAS BACKED UP IMPORTANT OR PROPRIETARY DATA PRIOR TO THE START OF SERVICES. KWRI IS NOT RESPONSIBLE FOR THE LOSS OF ANY DATA THAT MAY OCCUR DURING THE PERFORMANCE OF THE SERVICES.
As used in this 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 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.
Except to the extent expressly permitted under this 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 same 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 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 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.
EXCEPT WITH RESPECT TO CLAIMS ARISING FROM KWRI’S SEPARATE INTENTIONAL NEGLIGENCE OR WILLFUL ACTS, MC WILL INDEMNIFY, DEFEND, AND HOLD KWRI AND ITS RESPECTIVE OFFICERS, OWNERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, CONTRACTORS, AND REPRESENTATIVES HARMLESS FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, AND EXPENSES (INCLUDING COURT COSTS, SETTLEMENT COSTS, AND REASONABLE ATTORNEYS’ FEES) FROM THIRD-PARTY CLAIMS RELATED TO MC’S ACTUAL OR ALLEGED ACTS, FAILURE TO ACT, ERROR, OR OMISSION IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR ANY GOVERNING LAW OR REGULATION. IN THE EVENT A CLAIM AGAINST AN INDEMNIFIED PARTY IS ASSERTED, THE INDEMNIFIED PARTY WILL GIVE PROMPT NOTICE TO THE INDEMNIFYING PARTY (PROVIDED THAT ANY FAILURE TO PROVIDE SUCH NOTICE WILL NOT AFFECT THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT EXCEPT TO THE EXTENT SUCH FAILURE MATERIALLY PREJUDICES THE POTENTIAL DEFENSES OF THE INDEMNIFYING PARTY). THE INDEMNIFYING PARTY WILL HAVE THE RIGHT TO DEFEND, SETTLE OR COMPROMISE ANY CLAIM, DEMAND, ACTION OR PROCEEDING WITH COUNSEL OF ITS OWN CHOOSING THAT IS REASONABLY ACCEPTABLE TO THE INDEMNIFIED PARTY (UNLESS THE INDEMNIFIED PARTY AGREES TO ASSUME THE COST OF THE DEFENSE AND ANY SETTLEMENT), AT ITS SOLE COST AND EXPENSE; PROVIDED, HOWEVER, THAT NO SETTLEMENT OR COMPROMISE MAY BE ENTERED INTO BY THE INDEMNIFYING PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNIFIED PARTY. THE INDEMNIFIED PARTY MAY SELECT COUNSEL TO PARTICIPATE IN ANY SUCH DEFENSE AT ITS SOLE COST AND EXPENSE. THIS SECTION WILL SURVIVE TERMINATION OR EXPIRATION OF THE AGREEMENT.
Neither Party will be liable or responsible to the other Party, nor 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 the following events (each a Force Majeure Event): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority (assuming that the impacted Party took the actions required by the Agreement and/or by law to properly apply for and pursue all necessary permits); (g) national or regional emergency; (h) epidemic, pandemic or viral or communicable disease outbreak; and (i) other similar, unforeseeable events beyond the reasonable control of the Party impacted by the Force Majeure Event (the Impacted Party). The Impacted Party must give reasonable notice to the other Party. The Impacted Party will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of ten (10) calendar days following written notice of the Force Majeure Event, the other Party may terminate this Agreement.
This Agreement will be governed by and interpreted and enforced in accordance with the laws of the State of Texas, without giving effect to its choice of law principles.
In the event of any controversy or claim arising out of or relating to this Agreement, or a breach thereof, the Parties agree to use the following procedure. The Parties must first attempt to settle the dispute by mediation, administered by the American Arbitration Association under its Mediation Procedures. The place of mediation and arbitration shall be Travis County, Texas. This Agreement shall in all respects be governed by the laws of the State of Texas. The Parties hereby irrevocably agree to personal jurisdiction and venue in any federal or state court in Travis County, Texas. The prevailing Party will be entitled to recover the reasonable attorneys’ fees, costs and expenses (including, without limitation, expert witness fees and costs of appeal). The Parties affirmatively waive their rights to a jury trial before a court.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, KWRI WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOST PROFITS, REVENUES, FUTURE DAMAGES, OR DATA, FINANCIAL LOSSES, LOSS OF BUSINESS OR GOODWILL, OR CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THE DAMAGES WERE FORESEEABLE.
(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) OROTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO KWRI PURSUANT TO THE APPLICABLE ORDER.
(c) The limitation of liability set forth in Section 12(b) above will not apply to (i) liability resulting from KWRI’s gross negligence or willful misconduct and (ii) death or bodily injury resulting solely from KWRI’s negligent acts or omissions.
MC’s rights and obligations under this Agreement may not be assigned or transferred to any other person, firm, or corporation without the prior written consent of KWRI.
It is understood by the Parties that Support Representative is an independent contractor with respect to KWRI and not an employee of KWRI. With regards to this Agreement and this Agreement only, it is understood by the Parties that KWRI is a service provider to MC. The Parties are not and will not be deemed to be by virtue of this Agreement, joint venturers, partners, employees, or agents of each other.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) will be delivered via e-mail and require confirmation of transmission (ex. delivery receipt to confirm delivery of the email message to the recipient’s mailbox but not that the recipient has seen or read the email message) to MC at the email address set forth on the Order Form, and to KWRI at mcservices@kw.com. Except as otherwise provided in this Agreement, a Notice is effective only if the Party giving the Notice has complied with the
requirements of this Section.
This Agreement together with all Order Forms contains the entire agreement between the Parties with respect to its subject matter. No other variations, modifications, or changes herein or hereof will be binding upon any Party unless set forth in a document duly executed by or on behalf of such Party. This Agreement will not be interpreted as modifying, amending, or altering any franchise related agreements between the Parties.
This Agreement may be modified or amended only if the amendment is made in writing and is signed by both Parties.
Wherever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law; if any provision of this Agreement will be prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.
No Failure to act with respect to a breach will waive any right of a Party to act with respect to such breach, any subsequent or similar breaches, or any of its rights under this Agreement.