NOTE: This Agreement contains a mandatory arbitration provision that, as described in Section 23 below, requires use of arbitration on an individual basis to resolve disputes rather than by jury trial or other court proceedings, class actions, or class arbitrations.
2. Services. KWRI, or its subcontractor, will provide the services to You as described in the Order Confirmation (the Services) in accordance with these Terms. The Services may include using third-party services (e.g. the Facebook application) (Third Party Services). You are hereby directing us to access, route and transmit to you or your potential clients, information (e.g. Campaigns) through the Third-Party Services.
If required, you may be required to obtain at your cost and expense access and use of Third-Party Services. We do not endorse, nor make any representations or warranties about Third-Party Services. Using Third-Party Services is at Your risk and You may need to enter into and be subject to terms, conditions, and policies applicable to the Third-Party Services (e.g. terms of service or privacy policies).
3. Performance Dates. KWRI will use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates will be estimates only.
4. Your Obligations. You will:
“Client Data” means any information related to former, current, or prospective clients of KWRI or its Regions, Market Centers, Brokers, or Associates, or information related to you that is provided to KWRI.
5. Acts or Omissions. If KWRI’s performance is prevented or delayed by any act or omission of You or Your agents, subcontractors, consultants, or employees, then KWRI will not be in breach of its obligations under this Agreement nor liable for any costs, charges, or losses incurred by You arising from such prevention or delay.
6. Regulatory Compliance. You, not us, are responsible for ensuring that all materials provided to KWRI (e.g. Client Data, content, or campaigns) and the requested Services comply with all Federal, State, and local regulations including those of your Multiple Listing Service. You must also ensure that your activities comply with your Market Center, Region, and Our policies.
7. Change in Services.
KWRI may change the Services without Your consent provided such changes do not materially affect the nature, scope, fees, or performance dates set forth in the Order Confirmation.
8. Fees and Expenses; Payment Terms; Interest on Late Payments.
9. Taxes. You are 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 applicable to You.
10. Intellectual Property. 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 associated goodwill, 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. If you provide to us any ideas, proposals, suggestions, or other materials (Feedback), such Feedback is gratuitous, unsolicited, and without restriction, and does not place us under any fiduciary or other obligation.
11. Confidential Information.
12. Representation and Warranty.
13. Indemnity. You will defend, indemnify and hold harmless us and our affiliated entities, and their respective successors and assigns, from and against all claims, 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 activities in connection with, the Services (including all Client Data); and (b) Your violation or alleged violation of this Agreement.
14. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12 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.
15. Limitation of Liability.
16. Termination. In addition to any remedies that may be provided under this Agreement, KWRI may terminate this Agreement upon written notice to You, if You:
17. Insurance. During the term of this Agreement, You must, at Your own expense, maintain insurance covering your obligations as contemplated by this Agreement. Upon KWRI’s request, You must provide KWRI with a certificate of insurance from Your insurer evidencing your required insurance coverage.
18. Waiver. No waiver by KWRI of any of the provisions of this Agreement is effective unless agreed in writing and signed by KWRI. No failure to exercise, or delay in exercising, any rights or remedies arising from this Agreement is a waiver of such right or remedy. No single or partial exercise of any right or remedy, precludes any other exercise thereof or the exercise of any other right or remedy.
19. Force Majeure. KWRI will not be liable or responsible to You, nor defaulted on or breached this Agreement, for any failure or delay in performing its obligations when such failure or delay is caused by acts or circumstances beyond the Our reasonable control 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 terminate this Agreement.
20. Assignment. You may not assign any of its rights or delegate any of its obligations under this Agreement without KWRI’s prior written consent.
21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement creates any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for nor bind the other party.
22. No Third-Party Beneficiaries. 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.
23. Governing Law. 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.
Except for disputes that qualify for small claims court, any controversy or claim arising out of or related to this Agreement will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. You agree that we and you are each waiving the right to trial by a jury, and you are agreeing to give up any legal right you may have to participate in a class arbitration or class action. If you do not want to be bound by this arbitration provision, you may opt out without prejudice or penalty. In order to opt out of this arbitration provision, you must notify us in writing that you do not want to resolve disputes with us by arbitration, and such notice should be delivered by e-mail to email@example.com or by mail to 1221 S. Mopac Expressway, Suite 110, Austin, Texas 78746, Attn: Legal Department, within thirty (30) days of the earlier of: (a) the date you first use or access the Services; and (b) the date you click or tap any button or box marked “accept,” “agree” or “ok” (or a similar term) in connection with this Agreement (including registering your account).
Arbitrations conducted pursuant to this Agreement will be administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules and Mediation Procedures (Commercial Rules). In the event the Commercial Rules conflict with any provision of this Agreement, the terms of this Agreement will control. A party will initiate an arbitration under this Agreement by providing notice and a demand for arbitration to the other party according to the Commercial Rules. The parties will work together to agree on the appointment of an arbitrator within twenty (20) days of the initiation of the arbitration. If the parties cannot agree on an arbitrator, one will be appointed according to the Commercial Rules.
For arbitrations outside of California, the arbitrator shall have the authority to award attorney’s fees and costs to the prevailing party if such an award is allowed under applicable law. For arbitrations within California, the arbitrator shall not have the authority to award attorney’s fees and costs to a claimant who does not prevail against.
If there is a failure of the preceding arbitration provisions, then a legal suit, action, or proceeding arising out of or relating to this Agreement must be brought 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.
24. Notices. Notices, requests, consents, claims, demands, waivers, and other communications (each, a Notice) must be in writing and addressed to the receiving Party at the address stated in the Order Confirmation or to such other address that may be designated by the receiving Party in writing. Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), email, or certified or registered mail (in each case, confirmation or return receipt requested, postage prepaid).
25. Severability. 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.
26. Survival. The obligations in this Agreement, which by their nature should apply beyond the termination or expiration of the Agreement, will remain in force after such termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Insurance, Submission to Jurisdiction, Indemnification, and Survival.
27. Amendment and Modification. This Agreement may only be amended or modified in a writing signed by an authorized representative of each party.