These Social Media Advertisting Terms and Conditions (the “Agreement”) is by and between Keller Williams Realty, Inc., a Texas corporation with offices located at 1221 South Mopac Expressway, Suite 400, Austin, TX 78746 (“KWRI”) and you (“Licensor”). In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Grant of Rights. Licensor hereby grants to KWRI during the Term the nonexclusive, freely transferable and sublicensable right and license to use an unlimited number of times, each of the photographs provided via the form submitted by Licensor to Company from which these terms are linked (the “Images”), in any and all formats and media, whether now or hereafter known or devised, by any and all technologies and means of delivery, whether now or hereafter known or devised, for purposes of making, providing, advertising, promoting, marketing, selling, and otherwise commercializing KWRI’s real estate products or services. For purposes of clarity and without limiting the foregoing, Licensor acknowledges and agrees that the rights and license granted to KWRI under this Agreement include KWRI’s rights: (a) to modify, edit, combine with other materials (including, but not limited to, in combination or conjunction with Licensor’s name or any other name, or no name), translate, include in collective works, and create derivative works of the Images in whole or in part (collectively, “Adapt,” “Adapted,” and “Adaptation” have correlative meanings); and (b) to reproduce, perform (publicly or otherwise), display (publicly or otherwise) and transmit the Images, in whole or in part, as provided by Licensor or as Adapted for such purposes and uses as are permitted under this Section 1.1.
2. Licensor Obligations. Licensor shall: (a) promptly deliver to KWRI all Images in mutually agreed format(s); and (b) prior to delivery of the Images, obtain from all persons who are, or whose trademark or other property is, identified, depicted, or otherwise referred to in any such Images, such written and signed licenses, permissions, waivers, and consents (collectively, “Permissions” and each, individually, a “Permission”), including those relating to publicity and privacy, as are or reasonably may be expected to be necessary for KWRI to exercise its rights in the Images, including all intellectual property rights therein, without incurring any payment or other obligation to, or otherwise violating any right of, any such person.
3. Ownership. Licensor will own and retain all right, title, and interest in and to the Images, subject to the license granted in Section 1. KWRI will own and retain all right, title, and interest in and to all Adaptations of the Images made by, or by any third party for the benefit of, KWRI, subject to Licensor’s rights in the underlying Images.
4. Use of Licensor’s Name, Likeness, and Information. Licensor grants to KWRI the worldwide right to use Licensor’s name, image, likeness, and biographical and professional information (including information Licensor provides to KWRI and any other information about Licensor that is publicly available) in any and all media and by any and all technologies and means of delivery now or hereafter known or devised in connection with the Images and any Adaptations, including to advertise and promote the same or any good or service that features or includes the Images, in whole or in part, as provided by Licensor unmodified or as Adapted, without further consent from, or any payment or other compensation to, Licensor.
5. Representations and Warranties. Each party represents and warrants that it has the full right, power, and authority to enter into, perform, and grant the rights and licenses it grants and is required to grant under this Agreement.
By providing the Images to KWRI, Licensor hereby represents and warrants that: (a) the Images are Licensor’s sole and original creation; (b) Licensor is the sole and exclusive legal and beneficial owner of the entire right, title, and interest in and to the Images, including all copyrights and other intellectual property rights therein; (c) Licensor has obtained, in legally binding and irrevocable written instruments, all Permissions as are or reasonably may be expected to be necessary for KWRI to fully and lawfully exercise KWRI’s rights and licenses under this Agreement, including all required Permissions of the representatives of any deceased individuals who are, or whose property is, identified, depicted or otherwise referred to in such Images; (d) there is no settled, pending, or threatened litigation, opposition, or other claim or proceeding challenging Licensor’s ownership of copyrights in or use of the Images or the validity, enforceability, or registration of such copyrights or any other intellectual property rights in or to the Images; (e) Licensor has not brought or threatened any claim against any third-party alleging infringement of any of the Images, nor, to the best of Licensor’s knowledge after exercising reasonable diligence, is any third party infringing or threatening to infringe any copyrights or other rights in the Images; (f) any caption, text, or other information Licensor submits for or concerning the Images is true, accurate, complete, and not misleading; and (g) the Images do not, and use thereof as permitted hereunder will not, violate any law or regulation or infringe or otherwise violate any right of any third party, including, but not limited to, any copyright, trademark, patent, trade secret or other intellectual property right, any right against defamation, or any right of publicity or privacy.
6. Indemnification. Licensor shall indemnify, defend, and hold harmless KWRI and KWRI’s respective officers, directors, employees, agents, affiliates, successors, and permitted assigns from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding relating to any actual or alleged breach by Licensor of its representations, warranties, covenants, or other obligations hereunder.
7. Term and Termination. This Agreement is effective from the date Licensor accepts the terms and conditions of this Agreement until terminated on written notice by either party in accordance with the terms of this Agreement (the “Term”). KWRI may terminate this Agreement at any time without cause, and without incurring any additional obligation, liability, or penalty, upon providing written notice to Licensor. Either party may terminate this Agreement on written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within 2 days after receiving written notice thereof.
Upon the expiration or termination of this Agreement: (a) all rights licensed under this Agreement will revert to Licensor and KWRI shall, within 3 days after such expiration or termination (“Wind-Down Period”), cause to be inactivated and erased all digital copies of the Images in its control and possession and return or, at Licensor’s written request, destroy, any print or other tangible copies of the images; provided, however, that: (i) KWRI may retain one archived copy of each of the Images solely for purposes of responding to claims or inquiries relating to the Images, and (ii) during the Wind-Down Period, KWRI may continue to commercially exploit the Images in accordance with the terms and conditions of its license hereunder; and (b) all sublicenses that have been granted by KWRI shall automatically and immediately terminate, subject to the sublicensee’s rights during the Wind-Down Period; provided, however, that any sublicensee may elect to continue its sublicense as a direct license from Licensor by providing written notice to Licensor of its election and of its agreement to assume all obligations contained in its sublicense agreement as direct obligations of the sublicensee to Licensor.
8. Miscellaneous. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. This Agreement is personal to Licensor. Licensor may not assign or otherwise transfer any of its rights, or delegate, subcontract, or otherwise transfer any of its obligations or performance, under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 10.2 is void. KWRI may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. 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 nor invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement and all matters arising out of or relating to this Agreement, including tort, statutory, and contract claims, are governed by, and construed in accordance with, the laws of Texas, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of Texas. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted exclusively 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 in any such legal suit, action, or proceeding. This Agreement, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, regarding such subject matter.