TERMS OF SERVICE AGREEMENT
Agent hereby agrees to be bound by the following terms of service:
1. EMPOWER COMPANY AS AN INDEPENDENT CONTRACTOR
Agent hereby stipulates and agrees that AKAS, Inc., DBA “Empower” (“Company), in rendering the services provided herein, is acting as an independent contractor and is not an employee or an agent of the Agent in any way. Company shall be free to perform the services required hereunder at such times, in such places and in such manner, as it shall deem appropriate, consistent with this Agreement.
2. SERVICES, PRICING, AND COMMUNICATION
Company will provide services in association with Contract to Close and Listing Services that are involved in a Real Estate transaction. All services rendered by the Company will be shown below, incorporated herein by reference.
Agent hereby gives Company express permission to communicate directly with all clients, parties, and vendors associated with the transactional business in which Company is engaged. This will serve the purpose of coordination, updates, service orders, and all other necessary communication. Details:
- SMS Consent: By providing your phone number to us, you expressly consent to receive SMS messages from us, our affiliates, and our third-party service providers. You also understand that your carrier’s standard message and data rates may apply and that you are solely responsible for any fees or charges that may be incurred as a result of receiving SMS messages.
- Opt-Out: You may opt-out of receiving SMS messages from us at any time by replying with the word “STOP” or by contacting us directly. However, please note that opting out of SMS messages may limit your ability to access certain features or services on our website.
- Message Content: SMS messages may include promotional offers, notifications, alerts, and other types of messages related to our products and services. We may also use SMS messages to communicate with you about your account or to respond to your inquiries.
- Privacy: We respect your privacy and will not share your phone number or any other personal information with third parties without your consent. However, we may use your phone number to send you SMS messages or to verify your identity when you contact us.
- Disclaimer: We make no guarantee that SMS messages will be delivered or that they will be free from errors or interruptions. We are not responsible for any delays, errors, or interruptions in SMS message delivery, or for any damages that may result from such delays, errors, or interruptions.
3. COLLECTION OF FEES
Company will collect all fees through third-party secure services, and collect fees as follows:
- Listing and Offer Prep Services will be charged at the time the service is submitted by the agent. This will be charged to Agent’s credit card on file with Company.
- Contract to Close services will be collected on the date of closing for the property.
- The Agent must keep a valid credit card on file with Company.
- If Agent Billing Preference is CDA/DA and, if for any reason, the fee due to Company is not included on the CDA/DA and/or not paid by Title to Company, then Company will charge the Agent’s credit card on file with Company
- If for any reason the Agent’s credit card cannot be processed, there will be a $30.00 charge to Agent after 72 hours.
- Agents, Teams, and Brokerages on a Monthly Recurring Plan will adhere to the billing agreement set out in your initial agreement.
- If for any reason the Agent chooses to leave Company or Agent’s Transaction Coordinator leaves Company and the Agent chooses to have Company stop work on active files, all files will be billed to the Agent’s credit card on file immediately at the appropriate rate for work completed. Agent is fully responsible for transaction fees and payment must be complete within 72 business hours or additional fees may apply.
- Agent agrees not to pay the Company’s Transaction Coordinators or other staff directly; all payments from Agent must go through Company.
4. TERM AND TERMINATION
The term of this Agreement shall commence on the Effective Date and continue for an initial term of twelve (12) calendar months unless earlier terminated. This will lock in pricing and services for the duration of the Agreement. Any changes in pricing or services will be provided by Company to Agent 30 days prior to the changes. Either Party may terminate this Agreement, at any time, by providing a (30) days written notice to the other Party, unless another termination date is mutually agreed upon by both parties in writing.
A. Non-Solicitation. Agent agrees and covenants that during the Term of this Agreement (and including any extensions thereof), which expressly includes a period of three (3) years from the date of the termination of Agent’s relationship with Company, Agent shall not, unless approved by Company in writing, either (i) directly, as a partner, provider, agent, independent contractor, or employee, or (ii) indirectly, through a corporation, partnership, affiliate, subsidiary or otherwise:
(1) solicit, induce, or attempt to induce, in connection with any business competitive with that of Company, any existing customers of Company to leave Company or to otherwise disassociate with Company; or
(2) solicit, induce, or attempt to induce any employee, contractor, consultant, or other persons associated with Company to leave the employment of, or terminate their employment relationship with, or to otherwise discontinue their association with Company; or
(3) solicit, induce, or attempt to recruit Company’s Transaction Coordinators or other staff to work directly for any business competitive with that of Company or any existing customers of Company.
B. Injunctive Relief. The Parties acknowledge and agree that (i) the covenants and restrictions contained in Sections 5, 6, and 7 of this Agreement are necessary, fundamental, and required for the protection of legitimate business interests and goodwill of Company and that a breach of these covenants will result in irreparable harm and continuing damage to Company; (ii) such covenants and restrictions relate to matters that are of a special, unique, and extraordinary character; and (iii) a breach of any such covenants or restrictions will result in irreparable harm and damages to Company that cannot be adequately compensated by a monetary award. Accordingly, the Parties expressly agree that in the event of an actual or threatened breach by Agent of the covenants contained in Section 6 (“Trade Secrets and Confidential Information”), Section 7 (“Confidential Customer Information and Company Confidential Information”), and this Section 5, Company shall be entitled to a temporary restraining order or an injunction (or both) to specifically enforce the provisions of Section 6 (“Trade Secrets and Confidential Information”), Section 7 (“Confidential Customer Information and Company Confidential Information”), and this Section 5. Further, nothing herein shall be construed as prohibiting compensation to the Company for such breach or threatened breach, including (but not necessarily limited to) recovery of damages from Agent and for reasonable attorney’s fees.
C. Liquidated Damages. Agent agrees that in the event Agent breaches such covenants or the breach of such covenants is reasonably imminent, Company shall be entitled to specific performance and/or injunctive or other equitable relief in order to prevent the continuation of such harm, as well as money damages related to the breach. Agent waives any requirement for the securing or posting of any bond in connection with the obtaining of any such equitable relief, but Company agrees to provide reasonable notice to Agent of any hearing seeking injunctive relief against Agent, including hearings on any applications for temporary restraining orders. The Parties stipulate and agree that a violation of the provisions of this Section 5 by Employee will result in actual damages, and if Company is unable for any reason to obtain a restraining order from a court of competent jurisdiction within thirty (30) days after application enjoining the breach by Employee, said actual damages are difficult to accurately estimate. However, the Parties further agree that a reasonable forecast of such damages that are fixed and liquidated for four years after the termination of Employee’s work with Company is equal to Liquidated Damages in the amount of Employee ‘s total compensation for the most recent 12-month period as reported to the Internal Revenue Service. If Company chooses to receive Liquidated Damages for an actual breach of Section 5, said liquidated sum shall become payable by Employee to Company at the end of thirty (30) days following the date of the first violation of this Section 5. Upon Employee’s payment of the Liquidated Damages referenced herein, Employee shall be released from the covenant contained in this Section 5. However, the inclusion of this liquidated damage provision does not preclude Company from choosing to enjoin Employee from violating the covenants or restrictions contained in this Section 5 as the Company’s remedy for breach or threatened breach of the covenants or restrictions contained in this Section 5.
D. The Parties have attempted to limit the provisions of this Section 5 only to the extent necessary to protect each Party’s interests. However, the Parties hereby agree that, in the event that any provision, section or subsection of this Section 5 is adjudged by any court of competent jurisdiction to be void or unenforceable, in whole or part, such court shall modify and enforce any such provision, section or subsection only to the extent that it believes to be reasonable under the circumstances to still accomplish its intent.
E. The non-solicitation provisions contained in this Section 5 shall not apply only if the Parties agree in writing not to enforce the provisions of Section 5.
6. TRADE SECRETS AND CONFIDENTIAL INFORMATION
A. Agent acknowledges that Company, in connection with its business, has developed and will continue to develop trade secrets, intellectual property, inventions, processes, methods, products, patents and patent applications, materials subject to trademark and copyright, and other proprietary rights, specifications, drawings, sketches, models, samples, tools, computer programs, source code, technical information, and other related property and information, designs, contracts, procedures, protocols, processes, records, and files respecting Company customer or services provided to any Company customer, Company customers lists, fee schedules, compensation data, vendor price lists, third-party payor payment rates, Company contracting information, documentation relating to the provision of Company’s services, and other copyrighted, patented, trademarked, or other legally protected and/or privileged information, however characterized, that is confidential and proprietary to Company or their customers (collectively “Confidential Information”). At the outset and during the term of Agent’s business relationship with Company, Agent will gain access to the above Confidential Information regarding the Company’s trade secrets, its customers, and its business activities. Agent agrees not to use any such Confidential Information except in furtherance of Agent’s obligations under this Agreement, unless expressly agreed by Company in writing. Agent further agrees to be personally bound by all existing confidentiality agreements to which Company is party, including, but not limited to, those entered into with its customer, and that this Agreement extends to and expressly incorporates such confidentiality agreements herein by reference and that the terms of any such confidentiality agreement shall control in the event of a direct conflict with this Agreement. Agent expressly stipulates and agrees that any list of actual or potential customers, including, but not limited to the individual or company contact information of any actual or potential customer, acquired by, through, or during Agent’s affiliation with Company constitutes Confidential Information and a “trade secret” of Company, as defined by Texas Civil Practice and Remedies Code, Section 134A.002(6) and shall entitle Company, without limitation, to all remedies provided in the Texas Uniform Trade Secrets Act (the “Act”) to protect its proprietary information in Agent’s possession, including, but not limited to, injunctive relief, damages, including exemplary damages, and attorney’s fees under inter alia Sections 134A.003-134A.005 for the Act. Moreover, Agent expressly stipulates and agrees that any violation of Section 6 of this Agreement shall constitute “willful and malicious misappropriation” of trade secrets and shall entitle Company to exemplary damages under the Texas Uniform Trade Secrets Act.
B. During the Term of this Agreement and forever after this Agreement terminates, Agent agrees and covenants not to disclose, communicate or misuse, to the detriment or injury of Company and any affiliate thereof, any Confidential Information to any person or entity not associated with the Company and any affiliate thereof other than his or her attorneys or accountants who shall also agree not to disclose such information without the written consent of Company, and any affiliate thereof, as the case may be, unless required to disclose it by law. Immediately after the earlier of the termination of this Agreement or such time as Agent shall cease to be contracted with or associated with Company, Agent shall return any and all Confidential Information to the possession of Company.
7. CONFIDENTIAL CUSTOMER INFORMATION AND COMPANY CONFIDENTIAL INFORMATION
Agent acknowledges that Company’s customers with whom Agent will have contact during the Term of this Agreement are Company’s customers. All Confidential Information belonging to Company’s customers or that is subject to confidentiality agreements between Company and its customers are Confidential Information, including customer files and other documents or copies thereof, and other confidential information of any kind pertaining to Company’s customers, Company’s business, sales, financial condition, contracts, costs, prices, products, or activities to which Agent may have access; and all Confidential Information of Company and its customers belong to and will remain the property of the Company. Agent further agrees to keep confidential and not to use or to disclose to others, except as expressly required in writing by the Company or by an order of a court of competent jurisdiction, any and all items described in this Section 7.
8. SUBPOENA EXCEPTION TO NON-DISCLOSURE
Agent may disclose the Confidential Information to the extent required by a subpoena validly issued under federal, state, or local laws, provided however that Company shall be given prior written notice of such required disclosure and that Company shall have an opportunity to contest such required disclosure, including by seeking a protective order or other appropriate remedy to prevent or limit such disclosure.
9. INJUNCTIVE RELIEF
The Parties acknowledge that the unauthorized disclosure of the Confidential Information will cause Company irreparable harm and significant injury, which may be difficult to measure with certainty or to compensate through monetary damages. Therefore, in the event that Agent makes an unauthorized disclosure of the Confidential Information, Company shall be entitled to obtain a temporary restraining order, a temporary injunction and/or a permanent injunction, without the necessity of a bond, against such unauthorized disclosure from any court with binding authority. The right of Company to obtain such relief shall not limit Company’s right to obtain other remedies.
10. GOVERNING LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the State of Texas and applicable federal law, regardless of the place of its execution or performance and any conflicts of law analysis. Venue for enforcement of this Agreement shall be Travis County.
11. LIMITATION OF COMPANY LIABILITY FOR COMPANY
Agent expressly stipulates and agrees that Company assumes no liability for Agent’s fiduciary duty or contractual obligations owed to Agent’s clients under Texas law; Company, therefore, shall not be liable to Agent, Agent’s clients, servants, employees, contractors, or any other persons for damage caused by any act or omission of Agent, Agent’s agents, servants, employees, or contractors in relation to any real estate transaction. Agent hereby agrees to protect, defend, indemnify and hold Company, Company’s employees, officers, directors, successors, and assigns harmless from and against all losses, costs, liabilities, claims, damages, and expenses of every kind and character, as incurred, resulting from or relating to or arising out of Agent’s fiduciary duty or contractual obligations owed to Agent’s clients under law and for any damage caused by any act or omission of Agent, Agent’s agents, servants, employees, or contractors in relation to any real estate transaction or Agent’s representation of any client, however, characterized. The Parties stipulate and agree that Agent is exclusively responsible for all aspects of Agent’s representation of its clients.
If any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement is initiated, the prevailing party shall be entitled to recover reasonable and necessary attorney’s fees, costs, in addition to any other relief to which the prevailing party may be entitled.
13. BINDING AGREEMENT
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