Last Update: Feb 23, 2017
Effective Date: January 19, 2016
This GoldenKey User Agreement (the "Agreement") is a contract between you (the "User") and GoldenKey, Inc., a Delaware corporation, ("GoldenKey", “our”, “us” or “we”). You must read, agree with and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.goldenkey.com (the "Site") and related software and services. GoldenKey may amend this Agreement at any time by posting a revised version on the Site. Each revised version will state its effective date, which will be on or after the date posted by GoldenKey. If the revised version materially reduces your rights or increases your responsibilities, we may post it in advance of the effective date in order to give you notice. Your continued use of the GoldenKey Platform after the effective date of a revised version of this Agreement constitutes your acceptance of its terms. This Agreement includes and hereby incorporates by reference the agreements and polices referred to herein or linked from the URL [www.goldenkey.com/info/terms], as such agreements and policies may be modified by GoldenKey from time to time in its sole discretion. In the event of a conflict between such policies and agreements and this Agreement, this Agreement controls. Capitalized terms are defined throughout the Agreement and in Section 12.
YOU UNDERSTAND THAT BY CHECKING THE BOX AND CLICKING THE "SUBMIT" BUTTON, OR BY USING THE GoldenKey PLATFORM, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE GoldenKey PLATFORM. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT ENTITY.
1. THE GoldenKey PLATFORM.
1.1 Purpose of the GoldenKey Platform.
The GoldenKey Platform allows Customers and Agents to identify each other and enables them to buy and sell real estate Services online. Customers post service requests and invite Agents. Agents post profiles and accept service requests. If a Customer and Agent agree on terms, a Service Contract is formed directly between such Customer and Agent subject to the provisions set forth in Section 3 (Service Contract Terms Between Customer and Agent). GoldenKey pays Agents in connection with their delivery of services through the GoldenKey platform. GoldenKey collects payment from Customer in connection with their receipt of services through the GoldenKey platform.
The GoldenKey Platform is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. User agrees that User is not (a) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.
2. GoldenKey GENERAL USER POLICIES
2.1 GoldenKey Fees.
Agents may use our software free of charge. Agents may opt in to preferred agent status by paying a monthly fee. Preferred agents receive advanced notification of service request notifications. Customers pay a software subscription fee in addition to the service fee when ordering a service. The software subscription fee allows access to our online marketplace. Displayed prices represent the total of the subscription fee and service price. Plan subscription fees are included in the total cost of a plan. Plan subscriptions allow activation of plans. Additional fees may be charged for disbursements. If Agent elects disbursement through a third party, the third party may assess additional fees. If Agent elects disbursement in foreign currency, GoldenKey adds a conversion fee of 1.5% to the spot rate quoted by its foreign exchange vendor.
2.2 General User Obligations.
You will not access (or attempt to access) the Site by any means other than the interface provided, and you will not use information from the Site for any purpose other than the purpose for which it was made available. You will not engage in any activity that interferes with or disrupts the functioning of the Site. You will not upload or attach an invalid or malicious or unknown file. You will not insert any external links that may be malicious or unknown to you, or used for offering any goods or services other than Services. You agree not to "scrape" or disaggregate data from the Site (whether by manual or automated means), for any commercial, marketing, or data compiling or enhancing purpose, or to copy, re-post or re-use data from the Site for any other service. You agree not to use or provide software (except for general purpose web browsers and email Customer, or software expressly licensed by us) or services that interact or interoperate with the Site, e.g. for downloading, uploading, posting, flagging, emailing, search, or mobile use.
2.3 Identity and Account Security.
GoldenKey reserves the right to validate User information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm the User's identity. You authorize GoldenKey, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. Failure to provide information about you and your business when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the secrecy and security of the User's GoldenKey account password. User agrees not to disclose this password to anyone (or, in the case of an Agency (as defined below in Section 3), not to disclose this password to anyone who is not a subcontractor of such Agency), and shall be solely responsible under all circumstances for any use of or action taken through the use of such password on the GoldenKey Platform. You must notify GoldenKey Support immediately if you suspect that your password has been lost or stolen. By using your GoldenKey User account, you acknowledge and agree the GoldenKey's account security procedures are commercially reasonable.
2.4 Disbursements to Agents
GoldenKey will disperse funds to Agents' brokers monthly no more than two months after funds become payable (or within six months, for amounts less than $100). Funds become payable to Agents when the service is completed and following the expiration of the dispute period and the security period associated with each work week. Agents may ask GoldenKey to expedite payments. GoldenKey reserves the right to refuse any such request and may assess a processing fee in connection with such a request.
Customer shall make all payments relating to, or in any way connected with, a Service Contract through the GoldenKey Platform. Any action that encourages or solicits complete or partial payment outside of the GoldenKey Platform is a violation of this Agreement. Should a Customer or Agent (including an Agency) be found in violation of this section of this Agreement, GoldenKey will terminate the accounts of those users.
If Customer fails to pay amounts due under this Agreement, whether by cancelling Customer credit card, initiating an improper chargeback, or any other means, Customer's GoldenKey account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. In its discretion, GoldenKey may setoff amounts due against other amounts received from or held for Customer, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
2.7 Hold on funds.
In cases of fraud, abuse or violation of this Agreement, the GoldenKey Payment Guarantee shall be revoked and all monies due to the Agent may be held and/or reclaimed, not just those from the Contract(s) under investigation.
2.8 Dispute Resolution Policy.
For Hourly-Rate Contracts only, Customers may dispute hours during the dispute period--the 48 hours after the agent confirms the service was completed. It is the Customer's responsibility to file any disputes on a timely basis. Once the dispute period has passed, the charges are accepted by the Customer and can no longer be disputed and can only be refunded by the Agent. Disputes can only address the hours billed, not the quality of the work performed or deliverables. GoldenKey will promptly investigate to determine, in its sole discretion, whether an adjustment is appropriate. GoldenKey's determination shall be final.
2.9 Enforcement of Agreement and Policies.
GoldenKey has the right, but not the obligation, to suspend or cancel your access to the GoldenKey Platform if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting GoldenKey's other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the GoldenKey Platform to you if (a) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users or for GoldenKey. Once suspended or terminated, you MAY NOT continue to use the GoldenKey Platform under a different account or reregister under a new account. If you attempt to use the GoldenKey Platform under a different account, we reserve the right to reclaim available funds in that account and/ or use an available payment method to pay for any amounts outstanding. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your User account is canceled, you may no longer have access to any parts of the GoldenKey Platform, including data, messages, files and other material you keep on GoldenKey.
2.10 Commission Rebates
GoldenKey cannot compel agent activity past granting access to the site. Agents that choose to use the GoldenKey platform to advertise their ability to make an offer for a Buyer, will rebate the commission received up to 3% of the sales price under the following circumstances: (1) The Buyer paid all fees required by GoldenKey, (2) The Agent actually received a commission in relation to the Buyer's contract, (3) The Buyer is in compliance with this agreement and all GoldenKey policies, (4) The Buyer's lender approves, (5) The rebate appears on the Closing Disclosure (and applicable forms), (6) The rebate is in compliance with all state statutes. The rebate shall never exceed the amount of commission received by the Agent. The Agent is not required to rebate any portion of the commission that exceeds 3% of the sales price. The Agent is not required to make any payments to a Buyer other than a commission rebate that meets the aforementioned requirements. If the co/op commission offered by the listing brokerage to the Agent is less than 3%, then Buyer may (1) choose to reduce the refund amount to equal the commission amount or (2) increase the Agent’s commission to 3% and require the seller to pay the increase.
GoldenKey is not a licensed real estate brokerage and does not receive or rebate commissions. In no circumstance is GoldenKey required to make a payment or give a rebate to a Customer.
3. SERVICE CONTRACT TERMS BETWEEN CUSTOMER AND AGENT.
Unless otherwise agreed to in a writing signed by both Customer and Agent, the terms and conditions of the Service Contract are as set forth in Sections 3.1 through 3.12 below ("Standard Terms"). Customer and Agent may not agree to any other terms and conditions that affect the rights or responsibilities of GoldenKey.
Agent shall perform Services in a professional and workmanlike manner and shall timely deliver any agreed-upon Work Product.
Work performed on Hourly-Rate Contracts under an Agent's profile must be performed by the Agent represented. Agent and Agency agree and acknowledge that Agency's employees or contract personnel are not employees of GoldenKey or Customer. Agency is solely responsible for all wages, costs, unemployment insurance, compensation insurance, and expenses of Agency's employees or contract personnel and has the sole and exclusive right to supervise and control them. Agency acknowledges and agrees that neither it, nor any of its employees or agents, shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits of any kind from GoldenKey or Customer.
3.3 Customer Payments and Billing.
Customer shall pay the agreed-upon amount for time spent (under Hourly-Rate Contracts) or the approved project (under Fixed-Price Contracts) to GoldenKey, and Customer will have no obligation of payment to Agent. Agent agrees that it will be paid solely by GoldenKey and Agent will not have any recourse against Customer if Agent is not paid by GoldenKey. Customer is billed either immediately upon approval of a service by a Customer or 48 hours after completion by an Agent. Agent is paid following approval of Customer. If Customer fails to approve, Agent may mark complete and initiate a 48 hour dispute period. If Customer fails to dispute during the dispute period, the funds become payable to Agent.
3.4 Termination of a Service Contract.
Customer may request termination of a Contract at any time but may not recover any payments already made. Termination is subject to approval by Agent's broker. The Agent may terminate a Contract at any time in which case GoldenKey will refund the Customer's payment.
3.5 Customer Deliverables.
3.6 Work Product.
Proprietary Rights in Work Product shall be owned by Agent until payment has been made by Customer, at which time Agent will be deemed to have assigned all Proprietary Rights in the Work Product to Customer.
3.7 Pre-existing Intellectual Property in Work Product.
Agent shall ensure that no Work Product created or delivered by Agent includes any pre-existing intellectual property, whether such pre-existing intellectual property is owned by Agent or a third party. Agent acknowledges that, without limiting any other remedies, Agent shall not be entitled to payment for, and shall refund to Customer any payments previously made by Customer to Agent for, any Services performed on a Service Contract if the Work Product contains any Pre-existing IP.
3.8 Worker classification.
Customer assumes all liability for proper classification of Agents as independent contractors or employees based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Customer and Agent. Agent does not have authority to enter into written or oral - whether implied or express - contracts on behalf of Customer. Agent acknowledges that GoldenKey does not, in any way, supervise, direct, or control Agent's work or Services performed in any manner. GoldenKey does not set Agent's work hours and location of work,. GoldenKey will not provide Agent with training or any equipment, labor or materials needed for a particular Contract. GoldenKey will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Customer and Agent will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Agent's performance of Services. Customer may not require an exclusive relationship between Customer and Agent. Agents are free at all times to provide Services to persons or businesses other than Customer, including any competitor of Customer. Customer and Agent agree to indemnify, hold harmless and defend GoldenKey from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Agent was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Agent was misclassified (including, but not limited to, taxes, penalties, interest and attorney's fees), any claim that GoldenKey was an employer or joint employer of Agent, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.
Service Contracts shall be governed by Sections 6 (Confidential Information), 11 (General), and 12 (Definitions) of this Agreement, as applicable either directly or by way of analogy.
3.10 Entire Agreement.
The terms and conditions set forth in this Section 3 and any additional or different terms expressly agreed by Customer and Agent shall constitute the entire agreement and understanding of Customer and Agent with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
3.11 List a Home Service
Listing your home may require professional measurements and is subject to state requirements.
4. ACKNOWLEDGMENTS BY USER OF GoldenKey's ROLE.
4.1 Service Contracts.
User expressly acknowledges, agrees and understands that: (i) the GoldenKey Platform is merely a venue where Users may act as Customers or Agents; (ii) GoldenKey is not a party to any Service Contracts between Customers and Agents; (iii) User recognizes, acknowledges and agrees that User is not an employee of GoldenKey and that GoldenKey does not, in any way, supervise, direct, or control User's work or Services; (iv) GoldenKey shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) GoldenKey has no control over Agents or over the Services promised or rendered by Agents; and, (vi) GoldenKey makes no representations as to the reliability, capability, or qualifications of any Agent or the quality, security or legality of any Services, and GoldenKey disclaims any and all liability relating thereto.
4.2 Proprietary Rights.
GoldenKey and its licensors reserve all Proprietary Rights in and to the GoldenKey Platform. User may not use the GoldenKey Platform except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement. GoldenKey reserves the right to withdraw, expand and otherwise change the GoldenKey Platform at any time in GoldenKey's sole discretion. User shall not be entitled to create any "links" to the GoldenKey Platform, or "frame" or "mirror" any content contained on, or accessible through, the GoldenKey Platform, on any other server or internet-based device.
4.3 GoldenKey's Compensation.
All GoldenKey Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.
4.4 GoldenKey as a Limited Agent
From time to time, a User may ask GoldenKey to provide a physical or manually signed copy of this Agreement, a Service Contract, or an ancillary document (for example, to enable a User to withdraw payments from User's foreign bank account). User hereby appoints GoldenKey as its agent for the limited purpose of executing documents that confirm User's activities on the GoldenKey Platform. GoldenKey will act on User's behalf and in a clerical capacity, without in any way restricting GoldenKey's rights or expanding GoldenKey's obligations under this Agreement or any Service Contract. Each User appoints GoldenKey as its agent to execute an Act of Acceptance or equivalent instrument on the User's behalf documenting payments made or to be made to Agents or to GoldenKey, if another User so requests.
5. INVOICES AND PAYMENT METHODS.
5.1 Formal Invoices and Taxes.
GoldenKey shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Agent Fees. Instead, Agent shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Agent Fees and for issuing any invoices so required. Agent shall also be solely responsible for: (a) determining whether Agent or GoldenKey is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Agent Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or GoldenKey, as appropriate; and (b) determining whether GoldenKey is required by applicable law to withhold any amount of the Agent Fees, notifying GoldenKey of any such requirement and indemnifying GoldenKey (either by permitting GoldenKey to offset the relevant amount against a future payment of Agent Fees or by refunding to GoldenKey the relevant amount, at GoldenKey's sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. GoldenKey shall have the right, but not the obligation, to audit and monitor Agent's compliance with applicable tax laws as required by this Section 5.1. Further, in the event of an audit of GoldenKey, Agent agrees to promptly cooperate with GoldenKey and provide copies of Agent's tax returns, and other documents as may be reasonably requested for purposes of such audit.
5.2 Payment Methods.
Customer hereby authorizes GoldenKey to run credit card authorizations on all credit cards provided by Customer, to store credit card details as Customer's method of payment for Services, and to charge Customer's credit card (or any other form of payment authorized by GoldenKey or mutually agreed to between Customer and GoldenKey).
5.3 Payment Guarantee.
GoldenKey guarantees payment to Agents working on Hourly-Rate Contracts where the Customer has a verified payment method, the time represented is captured online, the work performed and captured pertains directly to the Service Contract billed (the "Payment Guarantee") and the Customer confirms the service is complete. Determination of whether these criteria have been met is at the sole discretion of GoldenKey. The Payment Guarantee will not apply to Agents or Contracts in violation of this Agreement, where Agent does not meet clear specifications of the Service Contract, where the Agent is aware of or complicit in another User's violation of this Agreement, or where there is any other involvement in fraudulent activities or abuse of this Payment Guarantee.
6. CONFIDENTIAL INFORMATION.
To the extent a Customer or Agent provides Confidential Information to the other, the recipient shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not: (i) disclose Confidential Information to anyone except, in the case of GoldenKey, to any Customer or Agent engaged in a Contract; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Service Contract (including, without limitation, the storage or transmission of Confidential Information on or through GoldenKey Platform for use by Agent).
If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at the Customer's or Agent's written request (which may be made at any time at Customer's or Agent's sole discretion), Customer or Agent (as the case may be) shall promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Customer or Agent, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this Section 6.2 within ten (10) days after the receipt of disclosing party's written request to certify.
Without limiting Section 6.1 (Confidentiality), Customer, Agent and GoldenKey shall not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a Contract.
7. WARRANTY DISCLAIMER.
GoldenKey MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, GoldenKey PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GoldenKey DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 10.2 (TERMINATION) STATES USER'S SOLE AND EXCLUSIVE REMEDY AGAINST GoldenKey WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL GoldenKey BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF GoldenKey TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (A) U.S. $2,500; AND (B) ANY GoldenKey FEES RETAINED BY GoldenKey WITH RESPECT TO CONTRACTS ON WHICH USER WAS INVOLVED AS BUYER OR AGENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
9.1 Proprietary Rights.
Each User shall indemnify, defend and hold harmless GoldenKey and its subsidiaries, affiliates, officers, agents, employees, representatives and agents (each an "Indemnified Party" for purposes of this Section 9) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Services or action or omission by such User infringes Proprietary Rights or other rights of any third party.
9.2 Indemnification by Customer.
Each Customer shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Customer's use of Services, including without limitation claims by or on behalf of any Agent for Worker's Compensation or unemployment benefits, or (ii) any Service Contract entered into between such Customer and a Agent.
9.3 Indemnification by Agent.
Each Agent shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Agent's provision of Services, or (ii) any Service Contract entered into between such Agent and a Customer.
10. TERM AND TERMINATION.
The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Section 10.2 below.
Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending User's account), provided, that any such termination for convenience shall not affect the validity of any Service Contracts that have been executed prior to termination and this Agreement shall continue to apply with respect to such Service Contracts.
10.3 Consequences of Termination.
Termination shall not relieve Customer of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be charged to Customer's credit card or other form of payment pursuant to Section 5.2 (Payment Methods). Subject to Section 2.9 (Dispute Resolution Policy), GoldenKey shall pay Agent, in accordance with the provisions of Section 5 (Invoices and Payment Methods), for all services accepted prior to the effective date of the termination.
Sections 4 through 12 of this Agreement shall survive any termination thereof.
11.1 Entire Agreement.
This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
11.2 Side Agreements.
Section 11.1 notwithstanding, Customers and Agents may enter into any supplemental or other written agreement that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand GoldenKey's obligations or restrict GoldenKey's rights under this Agreement.
User shall not violate any laws or third party rights on or related to the GoldenKey Platform. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and third parties' Proprietary Rights.
11.4 Notices: Consent to Electronic Notice.
You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the GoldenKey Platform. Notices hereunder shall be invalid unless made in writing and given (a) by GoldenKey via email (in each case to the email address that you provide), (b) a posting on the GoldenKey Site or (c) by you via email to email@example.com or to such other addresses as GoldenKey may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
No modification or amendment to this Agreement shall be binding upon GoldenKey unless in a written instrument signed by a duly authorized representative of GoldenKey. For the purposes of this Section 11.5, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles.
11.6 No Waiver.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
User may not assign this Agreement, or any of its rights or obligations hereunder, without GoldenKey's prior written consent in the form of a written instrument signed by a duly authorized representative of GoldenKey (and, for the purposes of this Section 11.7, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). GoldenKey may freely assign this Agreement without consent of User. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
11.9 Choice of Law.
This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement, including by not limited to a Service Contract, ("Claims") shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
11.10 Prevailing Language.
The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
"Agency" means a legally recognized entity with the ability to hire and/or contract.
"Claim" means any controversy, dispute or claim arising out of or relating to this Agreement, including but not limited to a Service Contract.
"Customer" means any User utilizing the GoldenKey Platform to request Services to be performed by an Agent. From time to time, GoldenKey may act as a Customer, and the terms and conditions of this Agreement applicable to Customers will apply to GoldenKey when acting in this way.
"Seller" means any Customer attempting to sell a property.
"Buyer" means any Customer attempting to buy a property.
"Deliverables" means instructions, requests, intellectual property and any other information or materials that an Agent receives from a Customer for a particular Service Contract.
"Confidential Information" means Customer or Agent Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract, regardless of whether in tangible, electronic, verbal, graphic, visual or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Agent or Customer; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party's obligations of confidentiality; or (d) was independently developed by User without use of Confidential Information.
"Effective Date" means the date of acceptance of this Agreement.
"Fixed-Price" means a fixed fee agreed between a Customer and a Agent, prior to the commencement of a Contract, for the completion of all Services requested by Customer for such Contract.
"Fixed-Price Contract" means a Service Contract for which Buyer is charged a Fixed-Price.
"Agent" means any company or individual User utilizing the GoldenKey Platform to offer Services to Customers.
"Agent Deliverables" means instructions, requests, intellectual property and any other information or materials that a Customer receives from an Agent for a particular Service Contract.
"Agent Fees" means: (a) for an Hourly-Rate Contract, an amount equal to the number of hours requested by the Customer and provided by the Agent, multiplied by the Hourly Rate; (b) for a Fixed-Price Contract, the Fixed-Price.
"Hourly Rate" for a Service Contract means, in respect of an Agent, the hourly rate specified for that Agent in the GoldenKey Platform.
"Hourly-Rate Contract" means a Service Contract for which Customer is charged based on the Hourly Rate.
"Indemnified Party" means GoldenKey and its subsidiaries, affiliates, officers, agents, employees, representatives and agents.
"Moral Rights" means any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights".
"GoldenKey Platform" means the online platform operated by GoldenKey, including related software and services, that allows Customer and Agents to identify each other and enable them to buy and sell Services online.
"Payment Guarantee" means the guaranteed payment to Agents working on Hourly-Rate Contracts where the Customer has a verified payment method, the time represented is captured by the required method and the work performed and captured pertains directly to the Service Contract billed.
"Payment Period" shall mean the one-week period beginning on Monday at 12:00 AM UTC.
"Pre-Existing IP" means pre-existing intellectual property, whether such pre-existing intellectual property is owned by Agent or a third party.
"Proprietary Rights" means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
"Service Contract" means a particular project or set of ongoing tasks for which a Customer has requested Services to be performed by an Agent and the Agent has agreed on the GoldenKey Platform.
"Services" means showing property, negotiating, attending, consulting, or any other human services.
"The Site" means our website located at https://www.goldenkey.com.
"Work Product" means any tangible or intangible results or deliverables that Agent agrees to create for, or actually delivers to, Customer as a result of performing the Services on a particular Service Contract, including, but not limited to comparative market analysis and sales contracts.