Term of Use

                                                                                                        

 

Please read this Agreement carefully. This is a legal agreement. By using the Service (as defined below) or signing up for an account, you are accepting this Agreement. For your convenience this Agreement is written in plain English. However, you agree that the terms should be interpreted broadly to protect the intention of the Agreement.

 

The Service is an assessment service that allows you to assess people, create job profiles, receive assessment reports and compare people to job profiles. The Service is offered through the URL https://kpa.kw.com (“Website”) and may include associated professional services such as training, integration, and job analysis. Company will collectively refer to all of these services as the "Service". Certain components of the Service are owned and operated by Keller Williams Realty, Inc. (“Company”) and other components of the Service are owned and operated by Company’s service provider (“Service Provider”). You (“you”) are either a customer purchasing the Service (“Customer”) or a Customer’s employee, contractor, agent, licensor, representative or other end user who is authorized by the Customer to use the Service (“User”).

 

AGREEMENT

 

1. Construction

 

This Terms of Use agreement (“Agreement”) defines the terms and conditions under which you are allowed to use the Service and governs your use of the Service. If you are a Customer, this Agreement also includes the terms of any order forms completed and submitted by you (“Order Form”).  In the event of any conflict between or among the provisions contained in this Agreement and the Order Form, the applicable provision in the Order Form shall control.

 

2. Acceptance

 

You agree to the terms of this Agreement and have officially signed this Agreement (“Accept”) when you execute an Order Form that references this Agreement, click a box on the Website indicating acceptance, or use the Service. If you Accept this Agreement on behalf of a Customer that is a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to this Agreement, in which case the term “you” shall also refer to such entity and its Affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not Accept this Agreement and you may not use the Service. You acknowledge and agree that all candidates you invite to take assessments through the Service (“Candidates”) will be required to accept and agree to be bound by Service Provider’s Candidate Terms of Use (as modified by Service Provider from time to time) prior to taking such assessment(s). A copy of the current Candidate Terms of Use is available upon request.  

 

3. Term

 

This Agreement will commence on the date that you Accept this Agreement. If you are a Customer, this Agreement will continue until the expiration or termination of the Subscription Term. If you are a User, this Agreement will continue until either the Customer revokes your authorization to use the Service or the Customer's Agreement terminates. The “Subscription Term” is the period of time during which the Customer is authorized to use the Service, as described on the applicable Order Form(s). Unless otherwise stated in the Order Form, the initial Subscription Term will be three (3) months.  Unless otherwise stated in the Order Form, the Subscription Term will automatically renew for additional periods equal to the expiring Subscription Term unless Company or the Customer provide(s) the other with written notice of non-renewal at least ten (10) days prior to the end of the then-current Subscription Term. 

 

4. Changes

 

Company may change any of the terms of this Agreement by posting revised Terms of Use on the Website or by sending an email to the last email address you provided to Company. Unless the Customer terminates the Service within ten (10) days after such notice, the revised Agreement will be effective immediately and apply to any continued or new use of the Service. Service Provider and Company may change the Service or any feature of the Service at any time.

 

ACCOUNT

 

5. Account and Password

 

After you Accept this Agreement, Service Provider will assign you an account that provides access to the Service (“Account”). You’re responsible for keeping your Account name and password confidential.  You’re also responsible for any Account that you have access to, regardless of whether or not you authorized the use. You’ll immediately notify Company of any unauthorized use of your Accounts. Neither Company nor Service Provider will be responsible for any losses due to stolen or hacked passwords.

 

6. Closing your Account

 

Company or Service Provider may suspend the Service to you at any time if you breach your obligations under this Agreement. Company may choose to terminate this Agreement as a result of any such breach.  Company may also choose not to renew this Agreement upon expiration of a Subscription Term.  Once terminated, Service Provider may permanently delete your account and all the data associated with it. If you don’t log in to your account for 12 or more months, Service Provider may treat your account as "inactive" and permanently delete the account and all the data associated with it. Upon termination or expiration of this Agreement, all rights granted to you shall immediately terminate and all Fees owed by Customer through the effective date of such termination or expiration shall become immediately due and payable.

 

PAYMENT

 

7. Fees

 

a.     Customer’s fees for the Service (the “Fees”), if any, are set forth on the applicable Order Form(s).

 

b.     If the Fees paid by Customer are based upon the number of Customer’s employees, and it is discovered that Customer had more employees at the time Customer Accepts this Agreement than initially represented by Customer, Customer will be obligated to pay Fees commensurate with its actual number of employees both in arrears and on an ongoing basis.

 

c.     If the Fees paid by Customer are on an unlimited basis, and Customer’s use of the Service over a six (6) month period exceeds three (3) times the average usage of similarly sized Customers over such a period, Customer agrees that the Fees may be adjusted for Customer’s future use of the Service provided that Customer will have the right to terminate this Agreement if it does not agree to such Fee adjustment.

 

d.     If the Fees paid by Customer are based upon the number of Customer’s employees, Fees may change at the beginning of each Subscription Term depending on the number of employees Customer has at such time.  Customer agrees to provide Company evidence reasonably requested by Company from time to time concerning the number of employees employed by Customer, including, without limitation, a certification by Customer regarding such number.

8. Refunds

If Company terminates this Agreement without cause, Company will give Customer a prorated refund for any prepaid Fees for the unused remainder of your Subscription Term. You won’t be entitled to a refund from Company under any other circumstances. For purposes of this Agreement, “cause” shall mean failure to make any payment when due, your breach of any other term or condition of this Agreement, or a violation of applicable law.

RIGHTS

 

9. Proprietary Rights Owned by Us

 

You acknowledge that the Service and Website, and all content and/or intellectual property rights contained within the Service or on the Website, including without limitation any proprietary rights protected or protectable by patent, trademark, copyright, service mark or trade secret law (collectively “IP”) are the exclusive proprietary property of Service Provider and Company and your right to use the Service and Website under this Agreement does not pass to you any title to or proprietary rights in Service Provider or Company IP, all of which are expressly reserved to and vested in Service Provider and Company, as applicable. This Agreement does not grant you any rights in connection with any Service Provider or Company IP other than as specifically stated herein. You will respect Company’s and Service Provider’s propriety rights in Service Provider and Company IP.  You will not publish, provide access to or otherwise make available the Service in part or whole to anyone other than Customer and its Users.

 

You acknowledge that Service Provider and Company will have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, or other information provided by you relating to the Services.

 

10. Proprietary Rights Owned by You

You represent and warrant that you either own or have permission to use all of the information and materials you add to your Account (“Content”). You retain ownership of the Content. Company and/or Service Provider may use or disclose your Content only as described in this Agreement and the Privacy Policy.

11. Privacy Policy

Company and/or Service Provider may use and disclose your Content according to the Terms of Use Provider’s Privacy Policy, located at http://www.kw.com/kw/privacypolicy.html (the “Privacy Policy”) which may be modified by Service Provider from time to time. The Privacy Policy will be treated as part of this Agreement.

 

12. Right to Use and Review Your Content

 

Service Provider may use, view, copy, and internally distribute your Content to create assessments, job profiles, algorithms and programs to provide and/or improve the Service for you. Service Provider studies this data internally to make the Service better and to create better experiences for all customers and for all people who complete assessments.

 

13. White Labeling

 

Company may provide you with the right to configure the Service to allow for white labeling.  You acknowledge that you do not acquire any right, title or interest in or to the Service or any portion thereof as a result of any such configurations or white labeling, all of which shall remain Service Provider’s or Company’s exclusive property. You represent and warrant that you either own or have permission to use all of the material you use to configure the Service, including, without limitation, all trademarks, trade names and associated logos. You retain ownership of such materials. Company and/or Service Provider may use or disclose your materials only as described in this Agreement or the Privacy Policy.

 

GENERAL RULES

 

14. Compliance with Laws

 

You represent and warrant that you will use the Service only in accordance and compliance with all applicable laws and government regulations, including, without limitation, the Americans With Disabilities Act of 1990, as amended (the “ADA”).

 

15. Usage Restrictions.

 

Unless you first obtain Company’s express written permission:

 

1. You will not make the Service available to anyone or use the Service for the benefit of anyone other than you and Customer.
2. You will not sell, resell, license, sublicense, distribute, rent or lease the Service to anyone. 
3. You will not permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit.
4. You will not copy the Service or any part, feature, function or user interface.
5. You will not use or access the Service in order to build a competitive product or service.
6. You will not reverse engineer the Service (to the extent such restriction is permitted by law).
7. You will not disclose your use of the Service in any advertising or promotional materials.

 

16. Reporting Abuse

 

You will use commercially reasonable efforts to prevent unauthorized access to or use of the Service. You will notify Company promptly of any such unauthorized access or use. If you think anyone is violating any of the terms of this Agreement, please notify Company immediately.

 

17. API Throttling

 

Service Provider may throttle your connection through Service Provider’s API at Service Provider’s discretion.

 

LIABILITY

 

18. No Warranties

 

To the maximum extent permitted by law, Company and Service Provider provide the material on the Website and the Service on an “as is” basis. That means neither Company nor Service Provider provide warranties of any kind, either express or implied, including but not limited to warranties of: merchantability, fitness for a particular purpose, quality, or accuracy.

 

19. Limitation of Liability

 

To the maximum extent permitted by law, you assume full responsibility for any loss that results from your use of the Website and the Service. Neither Company nor Service Provider will be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or Company or Service Provider have been advised of the possibility of those damages. Company’s and Service Provider’s total cumulative liability with respect to this Agreement will not exceed the Fees paid by you to Company during the three (3) month period immediately before the event giving rise to the claim. 

 

You acknowledge and agree that the Service is intended only as a tool, and nothing contained in the Service is intended to replace your or your users’ independent judgment. Neither Company nor Service Provider are liable for any damages arising out of reliance on the information contained in or derived from the Service or any hiring or termination decision made by you directly or indirectly as a result of the Service. You agree not to bring, file, or participate in any claim, suit, or complaint against Company or Service Provider as a result of any hiring or termination decision made by you or by any other person.

 

20. Indemnity

 

You agree to indemnify, defend, and hold Company and Service Provider harmless from any damages, liabilities, or losses (including attorneys’ fees) that result from any claims you make that aren’t allowed under this Agreement due to a "Limitation of Liability" or other provision. You also agree to indemnify, defend, and hold Company and Service Provider harmless from any damages, liabilities, or losses (including attorneys’ fees) that result from your gross negligence or willful misconduct, or third-party claims that you or someone you provided access to the Service did something that, if true, would violate any of the terms of this Agreement, including, without limitation, a breach of any representation or warranty made by you within this Agreement.

 

21. Subpoena Fees

 

If Company or Service Provider have to provide information in response to a subpoena related to your Account, then Company and/or Service Provider, as applicable, may charge you for their respective costs. These fees may include attorneys’ fees and employee time spent retrieving the records, preparing documents, and participating in a deposition.

 

CONFIDENTIALITY

22.  Without limiting the foregoing, Service Provider’s Confidential Information includes the Services and Company’s Confidential Information includes the Services and all Order Forms (including pricing). However, Confidential Information does not include any information that:

 

a.     Is or becomes generally known to the public without breach of any obligation owed to the disclosing party

b.     Was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party

c.     Is received from a third party without breach of any obligation owed to the disclosing party

d.     Was independently developed by the receiving party.

 

23.  Obligations

 

The parties agree to:

 

1. Protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information of like kind, but no less than a reasonable standard of care
2. Not use any Confidential Information of the other party for any purpose outside the scope of this Agreement
3. Except as otherwise authorized by the disclosing party in writing, disclose Confidential Information of the disclosing party only to those of its employees, contractors, and agents who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving party containing protections no less stringent than those herein.

 

Each party is responsible for any actions of its employees and agents in violation of this Section. Each party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.

 

FINE PRINT

 

24. Waiver

 

If you or Company excuse or overlook a breach of any of the terms of this Agreement, that does not mean that such party excuses any other breach or waives its right to remedy any other breach by the other party.

 

25. Assignments

 

You may not assign any of your rights under this Agreement to anyone else without Company’s express written consent. Company may assign its rights to any other individual or entity at its discretion.

 

26. Governing Law

 

This Agreement will be applied and construed according to the laws of the State of Texas without regard to conflicts of laws provisions. If it turns out that a section of this Agreement isn’t enforceable, then that section will be removed or edited as little as necessary, and the rest of the terms of this Agreement will still be valid. Any dispute related to this Agreement or the Service itself will be decided by the state and federal courts in Travis County, Texas, and each party will be subject to the jurisdiction of those courts.

 

27. Headings

 

The headings in this Agreement are for convenience only and will not be used to alter or limit the interpretation of any provision of this Agreement.

 

28. Notices

 

Any notice to you will be effective when Company sends it to the last email or physical address you provide to Company. Any notice to Company will be effective when delivered by certified mail, return receipt requested, or by reputable overnight courier, to Keller Williams Realty, Attention: HR department, or to the email address or other physical address provided by Company as its official notice address from time to time.

 

29. Force Majeure

 

Neither Company nor Service Provider will be liable to you or any third party for any delays or failure in performance of any part of the Service or Website, from any cause beyond Company or Service Provider’s control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.

 

30. Survival

 

Even if this Agreement is terminated or expires, the following sections will continue to apply: Proprietary Rights Owned by Us, Proprietary Rights Owned by You, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Confidentiality (indefinitely or until the applicable statute of limitations), Governing Law, Notices, Survival, Waiver of Jury Trial, and Entire Agreement.

 

31. Waiver of Jury Trial

 

Each party waives the right to a trial by jury in any dispute in connection with or relating to this Agreement, any related agreement, or any matters described or contemplated herein or therein, and agrees to take any and all action necessary or appropriate to effect such waiver.

 

32. Entire Agreement

 

This Agreement, Order Form(s), and the Privacy Policy together with all schedules, exhibits and amendments make up the entire agreement between you and Company related to the subject matter hereof and supersede all prior discussion, correspondence and agreements.

 

33. Beneficiaries

 

Service Provider is an intended third-party beneficiary to this Agreement. There are no other third-party beneficiaries.