Terms and Conditions for Professional Services

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.

1. Applicability.

  1. These “Terms and Conditions” are the only terms that govern the provision of professional services by Keller Williams Cambodia
  2. The accompanying order confirmation (the Order Confirmation) may be presented to You in the electronic “Buy Here” button or another similar form, and these Terms and Conditions (collectively, the Agreement) comprise the entire agreement between the parties and supersede all other understandings, agreements, negotiations, representations and warranties, and communications, written or oral. If there is any conflict between these Terms and Conditions and the Order Confirmation, the Order Confirmation will govern.
  3. These Terms and Conditions prevail over any terms and conditions, purchase orders, or similar documents regardless of whether or when You provided such to KW Cambodia and providing these services to You does not constitute acceptance of any of Your terms and conditions and does not modify or amend these Terms and Conditions.

2. Services.

KW Cambodia 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 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

 KW Cambodia 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:

  1. reasonably cooperate with Us in matters relating to the Services and provide US access to Your computing systems, passwords, and logins as needed;
  2. respond promptly to any request to provide direction, information, approvals, authorizations, or decisions reasonably necessary to perform Services;
  3. provide materials or information to carry out the Services in a timely manner and ensure that such materials or information are materially complete and accurate;
  4. obtain and maintain all necessary licenses and consents and comply with all applicable laws relating to the Services;
  5. comply with all laws applicable to you including Client Data;
  6. provide to Us all necessary rights and permissions (e.g. rights to use Client Data) to allow Us to provide the Services.

“Client Data” means any information related to former, current, or prospective clients of KW Cambodia or its Regions, Market Centers, Agents, or Associates, or information related to you that is provided to KW Cambodia.

5. Acts or Omissions

If KW Cambodia’s performance is prevented or delayed by any act or omission of You or Your agents, subcontractors, consultants, or employees, then KW Cambodia 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 KW Cambodia (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

KW Cambodia 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.

  1. For the Services and rights granted to You under this Agreement, You will pay KW Cambodia the fees set forth in the Order Confirmation.
  2. You will reimburse KWCambodia for its reasonable travel and out-of-pocket expenses needed to perform the Services. 
  3. You will pay all amounts in U.S. Dollars or by credit Card to KW Cambodia within 30 days from the date of KW Cambodia’s invoice.
    • If payment is not received by KW Cambodia after becoming due, KW Cambodia may:

charge interest on any such unpaid amounts at a rate of 1% per month or, if


    • lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid;
    • suspend the Services until payment has been made in full. 

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 KW Cambodia 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 KW Cambodia. KW Cambodia 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.

  1. All non-public, confidential or proprietary information of either party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to, pricing, and marketing (collectively, Confidential Information), disclosed by one party to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and may not be disclosed by either party without the prior written consent of the other party. Confidential Information does not include information that is:
    • in the public domain;
    • rightfully known to You at the time of disclosure; or
    • rightfully obtained by You on a non-confidential basis from a third party.
  1. Each party may only use the Confidential Information to make use of the Services and deliverables.
  1. A party will be entitled to injunctive relief for any violation of this Section 11.

12. Representation and Warranty.

  1. We represent and warrant to You that We will perform the Services in a professional and workmanlike manner according to generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement;
  2. We will not be liable for a breach of the warranty set forth in Section 12(a) unless You give written notice of the defective Services, reasonably described, to KW Cambodia within 5 days of the time when You discover or ought to have discovered that the Services were defective;
  1. Subject to Section 12(b), KW Cambodia will, in its sole discretion, either:
    • repair or re-perform such Services (or the defective part) or
    • credit or refund the price of such Services at the pro rata contract rate
  1. THE REMEDIES SET FORTH IN SECTION 12(c) WILL BE YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 12.

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, KW CAMBODIA 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.

  1. IN NO EVENT WILL KW Cambodia BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT KW CAMBODIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  2. IN NO EVENT WILL KW Cambodia’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO KW Cambodia PURSUANT TO THE APPLICABLE ORDER CONFIRMATION DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
  1. The limitation of liability set forth in Section 15(b) above will not apply to (i) liability resulting from KW Cambodia’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from KW Cambodia’s negligent acts or omissions.

16. Termination

In addition to any remedies that may be provided under this Agreement, KW Cambodia may terminate this Agreement upon written notice to You, if You:

    1. fail to pay any amount when due under this Agreement and such failure continues for 10 days after Your receipt of written notice of nonpayment;
    1. have not performed or complied with any of the terms of this Agreement, in whole or in part and such failure continues for 10 days after Your receipt of written notice; or
    1. at KW Cambodia’s discretion upon 10 days notice

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 KW Cambodia’s request, You must provide KW Cambodia with a certificate of insurance from Your insurer evidencing your required insurance coverage.

18. Waiver

No waiver by KW Cambodia of any of the provisions of this Agreement is effective unless agreed in writing and signed by KW Cambodia. 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

KW Cambodia 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 KW Cambodia’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 forms of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has the 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 legal@kw.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 and signed by an authorized representative of each party.

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