kwkly is the most exciting tech tool that I have seen for the industry because of the speed
and simplicity and the value it brings BOTH the agents and the consumer
John Thompson…Intero Real Estate
KWKLY SERVICE AGREEMENT
THIS PRODUCT AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL OR LEGAL ENTITY ("CLIENT") SUBSCRIBING FOR USE OF THE KWKLY PRODUCT AND KWKLY, INC. ("KWKLY"). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE AGREEING TO THESE TERMS. BY AGREEING TO THESE TERMS OR USING THE MARKET LEADER PRODUCT, WHICHEVER OCCURS EARLIER, CLIENT IS AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT
Client hereby agrees to license the Kwkly product and Kwkly warrants that it will provide the services specified in this Agreement with reasonable diligence in a professional and workmanlike manner, consistent with generally accepted standards in the information systems industry. Subject to the foregoing, Kwkly may add to, change or terminate any component of the System at any time; provided however, that no such change shall materially increase Client's obligations or materially decrease Client's entitlements under this Agreement.
During the Term, Kwkly grants Client a non-exclusive, non-transferable, non-sublicensable license to use, and, in the case of Kwkly Products that permit additional Users (as set forth in Section 18), to allow such Users to use, the System, on the terms set forth in this Agreement
The "Initial Term" shall mean (i) the number of full calendar months in the term as specified in the subscription agreement beginning on the date on which Kwkly notifies Client that the System is ready for Client's production use ("Production Date"), plus (ii) an additional prorated portion of a calendar month if the Production Date occurs prior to the first day of a calendar month ("Prorated Month"). Upon expiration of the Initial Term, this Agreement will automatically renew on a month-to-month basis (such Initial Term and renewal period, the "Term") until terminated by Client in accordance with Section 9.3 or by Kwkly by delivery of written notice to Client at least thirty days prior to the date of such termination. Except as specified in Section 9.1 below, Client may not terminate this Agreement prior to the expiration of the Initial Term. Kwkly may increase the fees payable by Client under this Agreement, upon not less than 30-days' written notice.
Client shall pay Kwkly monthly System Fees specified in the Web subscription Form, in accordance with the timing specified in the Web subscription form. All payments by Client to Kwkly under this Agreement shall be non-refundable, and made via automatic payment from either Client's bank account or credit card. Client shall undertake any additional actions reasonably requested by Kwkly to implement the foregoing automated fee payment process. Any amounts past due from Client under this Agreement shall accrue interest at a rate which is the lesser of two percent (2%) per month or, if less, the maximum rate allowable by law.
Kwkly and Client (and its Users) shall each retain in confidence all information received from the other party pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information"), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under the terms and during the term of this Agreement. Each party shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its immediate legal and financial consultants as required in the ordinary course of that party's business. Notwithstanding the foregoing, the restrictions set forth above will not apply to (i) information previously known to the receiving party without reference to the disclosing party's Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the receiving party, (iii) information that is independently developed by either of the parties, or (iv) information required to be disclosed pursuant to applicable law. The foregoing shall also not prevent Kwkly from using Client's name and brokerage affiliation and/or any non-proprietary components of Client's Kwkly Site in its marketing and training materials.
Client represents and warrants that currently and throughout the Term (i) Client and any Users are real estate agents or brokers in good standing and are fully authorized to publish, and authorize Kwkly to publish without the necessity of obtaining any further permissions from or payments to any third party, all of the materials provided for publication on Client's Kwkly Site, including without limitation, Kwklys listings, text, logos, photos and other graphics, (ii) Client and any Users are in compliance with all applicable laws and regulations with respect to its activities related to this Agreement, and (iii) Client and any Users will honor any "opt out" requests received from any sales prospects who are identified through the activities contemplated in this Agreement. Client shall indemnify, defend and hold harKwklyess Kwkly and its officers, employees, agents and affiliates from and against all losses, expenses, liabilities, damages and costs including, without limitation, reasonable attorneys' fees (collectively "Costs"), to the extent that such Costs are attributable to any breach by Client or any User, employee, independent contractor, or affiliate thereof, of any representations, warranties or other obligations set forth in this Agreement.
8.1 Termination for Breach. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by giving the breaching party written notice specifying the nature of the breach in reasonable detail and the non-breaching party's intention to terminate (a "Termination Notice"). If the breach has not been cured within the period ending thirty (30) days following delivery of the Termination Notice, then this Agreement shall automatically terminate. Notwithstanding the foregoing, if Client is in breach of any material provisions of this Agreement, including the license restrictions of Section 3, the payment terms of Section 5 or the confidentiality restrictions of Section 7, then Kwkly may immediately suspend or terminate Client's use of the System and Advertising Services. Any such suspension shall not relieve Client of any of its obligations under this Agreement or entitle Client to any refund of payments previously made
8.2 Termination by Kwkly. Kwkly may terminate this Agreement at any time, without cause, upon thirty (30) days prior written notice to Client.
8.3 Client Termination Procedure. If termination is permitted by this Agreement, Client may terminate by giving notice on or before the 25th day of the then current month (in the manner set forth below or as modified in written notice from Kwkly), and signing and returning the cancellation confirmation provided by Kwkly on or before the 25th day of the then current month, in which case termination will become effective on the last day of the next calendar month. To terminate the Kwkly Products, Client must provide termination notice by email to email@example.com.
8.4 Effect of Termination. Upon termination of this Agreement, Client shall discontinue its use of the System and Advertising Services. Notwithstanding the foregoing, termination of this Agreement by Kwkly shall not limit Client's obligation to pay all of the applicable fees, nor restrict Kwkly from pursuing any other remedies available to it, including injunctive relief. Sections 3, 5, 7, 8, 9, 11, 12, 14, 15, and 17 shall survive termination of this Agreement, along with any other provisions that are intended by their terms to survive.
Kwkly AND ITS AFFILIATES AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT WITH RESPECT TO SYSTEM FEES ONLY (AND NOT AMOUNTS PAID WITH RESPECT TO ADVERTISING FEES OR ANY OTHER FEES) DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE TO SUCH LIABILITY WAS FIRST ASSERTED. EXCEPT WITH RESPECT TO (i) ANY WILLFUL OR DELIBERATE INFRINGEMENT OR MISAPPROPRIATION BY CLIENT OF ANY OF Kwkly'S OR ITS SUPPLIERS' INTELLECTUAL PROPERTY RIGHTS, AND (ii) CLIENT'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. CLIENT HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT AS BETWEEN THEM.
CLIENT ACKNOWLEDGES THAT (i) Kwkly CANNOT GUARANTEE THE NUMBER OR QUALITY OF LEADS, PROSPECTS OR RESULTS GENERATED THROUGH THE SYSTEM OR THE ADVERTISING SERVICES, OR THAT THE SYSTEM WILL BE CONTINUOUSLY AVAILABLE FOR USE WITHOUT TEMPORARY INTERRUPTION, AND (ii) EXCEPT WITH RESPECT TO THE WARRANTY SET FORTH IN SECTION 1, THE SYSTEM AND THE ADVERTISING SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY REPRESENTION, WARRANTY OR CONDITION OF ANY KIND, AND Kwkly HEREBY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE SYSTEM AND THE ADVERTISING SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY (a) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (b) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, (c) WARRANTY OF TITLE; OR (d) STATUTORY REMEDY.
Client may not assign any of its rights or obligations under this Agreement without Kwkly's prior written consent. Subject to the foregoing, the provisions of this Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and assigns. Kwkly shall be free to perform all or any part of this Agreement through one or more subcontractors.
This Agreement shall be governed by and interpreted in accordance with the laws of The State of Washington. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the parties agree to submit to the exclusive jurisdiction of and venue in the Superior Court of Whatcom County, Washington, or the Federal District Court for the Western District of Washington and appellate courts therefrom. Each party hereby waives all defenses of lack of personal jurisdiction and forum nonconveniens in connection with any action brought in the foregoing courts. If Kwkly prevails in any action or proceeding (including for collection) under this Agreement, then Kwkly shall be entitled to recover from Client, in addition to all other relief, its reasonable attorneys' and other experts' fees and expenses incurred with respect to such action or proceeding.
If one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of this Agreement shall be unaffected. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. This Agreement may not be amended or waived, except pursuant to a written document executed by the parties. Any terms or conditions appearing on the face or reverse side of any purchase order, acknowledgment, or confirmation that are different from or in addition to those set forth in this Agreement shall not be binding on the parties, even if signed and returned.
Client has reviewed, understood and accepted the terms and conditions set forth in this Agreement and has either consulted with legal counsel prior to executing this Agreement or has knowingly forgone its right to consult with legal counsel prior to such execution. The provisions of this Agreement shall not be construed against either party by virtue of their authorship. It is the express wish of the parties that this agreement and all related documents be drawn up in English. C'est la volonte expresse des parties que la presente convention ainsi que les documents qui s'y rattachent soient rediges en anglais.