By entering the Kahuina Broker Portal (“Broker Portal”), you (“Licensee”) enter into this agreement (“Agreement”)with Kakaako Block C LLC, a Hawaii limited liability company (“Licensor”), the developer and seller of the Kahuina condominium project (“Project”), and agree to the following terms and conditions
- Defined Terms. Capitalized terms not otherwise defined herein shall have the following meanings:
- Marketing Materials means any work protectible under the Copyright Act of 1976 that Licensor makes available for use by Licensee in the Broker Portal, including, without limitation, Project floor plans, site plans, artistic renderings, photographs, videos, and virtual tours.
- Trademarks means any trademark, trade name, logo, slogan, and the like that Licensor makes available for use by Licensee in the Broker Portal.
- Duly Licensed. Licensee represents that Licensee is a duly licensed real estate agent in the State of Hawaii.
- Grant of License. Licensor grants to Licensee, and Licensee accepts, a non-exclusive, non-transferable license to use the Marketing Materials and Trademarks (collectively, “Protected Materials“), subject to the terms and conditions set forth in this Agreement.
- Use of Protected Materials. With the prior written consent of Licensor, which consent shall be given in Licensor’s sole discretion, Licensee may link, copy, reproduce, post, display, and/or republish the Protected Materials on Licensee’s website or in Licensee’s other media, offering information pertaining to the Project, provided that:
- Licensee is clearly identified as the source of the website or other media in text that is larger and more prominent than any reference to Licensor and/or the Project;
- It is made clear that the Protected Materials pertain to the Project and/or Licensor;
- Licensor is clearly identified as the owner of the Protected Materials;
- The Protected Materials are not modified, obscured, or otherwise altered in any manner, including, without limitation, any alteration of the resolution, coloring, and other properties of the Protected Materials;
- Licensee ensures, at least on a monthly basis, that the Protected Materials used by Licensee are the most current versions thereof available in the Broker Portal and all superseded Protected Materials are removed from Licensee’s website or other media;
- The Protected Materials are not used in any manner that creates false or misleading representations or impressions regarding Licensor or the Project;
- The Protected Materials are not used in any manner that disparages or otherwise negatively represents the Project or Licensor;
- The Trademarks are not used in any manner that is deceptive, inaccurate, or likely to cause confusion with respect to, or otherwise imply, an affiliation, association, or other relationship between Licensor and Licensee;
- Licensee uses any notices, disclaimers, and markings pertaining to the Protected Materials as required by Licensor;
- Each page of Licensee’s website or other media containing Protected Materials includes an active link or other appropriate reference to the official Project website;
- Licensee immediately complies with any request by Licensor to modify Licensee’s website or other media to comply with the terms of this Agreement; and
- All Protected Materials are immediately removed from Licensee’s website or other media upon request by Licensor.
- Restrictions on Use. In using the Protected Materials pursuant to this Agreement, Licensee shall not represent or imply that: a) Licensor sponsors or is affiliated with Licensee, including, without limitation, that Licensee is an agent or representative of Licensor; or b) Licensee has any exclusive or special access to, or privileges with, Licensor that enables Licensee to offer any advantage to persons or entities interested in the Project that is not otherwise available through any other real estate agent or to the general public.
- Prohibited Activities.
- Licensee’s website or other media shall not: i) contain any disparaging or negative references to the Project and/or Licensor, including, without limitation, Licensor’s affiliates, directors, officers, employees, properties, products, or services; ii) contain any obscene and/or offensive material, including, without limitation, language and images; or iii) copy, imitate, or otherwise resemble the official Project website.
- Licensee shall not, directly or indirectly, bid on or purchase, or otherwise acquire, key terms or words that are the same or similar to the Trademarks for the purpose of causing banner advertisements, sponsored links, or other web-based advertising.
- Licensee shall not use the Trademarks in any part of a banner advertisement or sponsored link.
- Licensee shall not engage in any activity that reduces a web user’s ability to easily and quickly locate the official Project website through major search engines.
- Licensee shall not use or register any domain name containing any Trademark, including, without limitation, variations of the Trademarks such as, by way of example and not limitation, elements of the Trademarks or combinations of numbers, words, and/or letters with a Trademark that would be confusingly similar to the Trademarks. If Licensee acquires a domain name in violation of this section, upon Licensor’s request, Licensee shall immediately transfer the domain name to Licensor free of charge and cease use of the same.
- Use of Non-Protected Materials. Without the prior written consent of Licensor, Licensee shall not use any of Licensor’s work protectible under the Copyright Act of 1976, which Licensor has not made available for use by Licensee through the Broker Portal, including, without limitation, any such Project advertising, marketing materials, web pages, brochures, floor plans, site plans, artistic renderings, photographs, videos, virtual tours, and other informational materials protectible under the Copyright Act of 1976.
- Compliance. Licensor has the right to access Licensee’s website or other media at any time and from time to time to determine compliance by Licensee with this Agreement. Any failure by Licensee to comply with a request by Licensor to modify Licensee’s website or other media in accordance with this Agreement shall constitute a material breach of this Agreement and subject Licensor to substantial injury. Licensee and Licensor agree that it is impossible to determine the actual damages that would be suffered by Licensor if Licensee were to breach this Agreement by failing to comply with such a request by Licensor. Therefore, without precluding Licensor from pursuing any other equitable or legal remedies available to it, in the event that Licensee fails to commence, within 48 hours of a request by Licensor, the required modification(s) to Licensee’s website or other media in order to cure a breach of this Agreement, Licensee shall pay to Licensor as liquidated damages, and not as a penalty, the amount of $10,000.00 per day until the modification(s) set forth in the request is completed, which sum the parties have agreed is a fair and reasonable estimate of the damages that would be caused by such breach.
- Ownership of Protected Materials. Licensee acknowledges and agrees that Licensor is the sole owner of all rights, title, and interest in and to the Protected Materials, including, without limitation, any goodwill associated therewith, including goodwill created by Licensee’s use of the Protected Materials. Licensee shall not acquire any right, title, or interest in the Protected Materials through Licensee’s use of the same, and nothing in this Agreement shall be construed as a conveyance, assignment, or other transfer to Licensee of any right, title, or interest in the Protected Materials. Further, Licensee shall not take any action that could affect Licensor’s ownership of the Protected Materials, including, without limitation, claiming or applying for any copyright or trademark registration or other intellectual property protection in connection with any of the Protected Materials or any other material provided to Licensee by Licensor or otherwise owned by Licensor or challenging the validity of Licensor’s rights in or to the Protected Materials.
- Disclaimer. Licensee understands and acknowledges that the figures and other information provided in or through the Broker Portal and/or official Project website are approximate and may change. Licensee further understands and acknowledges that all renderings, maps, site plans, photographs, views, floor plans, graphic images, drawings, and other information depicted on or in the official Project website and/or the Broker Portal are illustrative only, may not be accurately depicted, and are subject to change at any time, and Licensor makes no guarantee, representation, or warranty whatsoever that the Project and units depicted will ultimately appear as shown. All finish materials, fixtures, appliances, options, and upgrades shown may also be illustrative only and/or are also subject to change or substitution by Licensor at any time without prior notice. Marketing materials are not intended to represent the precise layout, décor, coloring, furnishing, or fixtures in a unit or the amenities that will be included in the Project.
- Indemnity. Licensee shall indemnify, defend, and hold harmless Licensor from any and all claims, demands, actions, liabilities, damages, costs, and expenses, including reasonable attorneys’ fees, arising out of or related to any breach of this Agreement by Licensee.
- Limitation on Liability. Licensor shall not be liable for Licensee’s use of the Protected Materials or any other content that Licensee downloads or otherwise obtains from the official Project website or the Broker Portal. Licensor, and its affiliates, officers, directors, employees, and agents, shall not be liable for any claims, demands, actions, liabilities, damages, costs, and expenses, including reasonable attorneys’ fees, arising out of or related to any breach of this Agreement. Notwithstanding anything in this Agreement to the contrary, however, nothing shall limit Licensor’s claims or remedies against Licensee for any breach of this Agreement or other infringement of Licensor’s rights in or to the Protected Materials or other intellectual property owned by Licensor.
- Termination. Licensor may terminate this Agreement at any time and for any reason in its sole and absolute discretion by giving notice to Licensee; provided, however, that this Agreement shall automatically terminate upon the sale by Licensor of all residential and live-work units in the Project. Upon termination of this Agreement, all rights granted to Licensee shall immediately terminate.
- Applicable Law. All matters with respect to this Agreement, including all matters related to the formation, construction, and performance of this Agreement, shall be governed by the laws of the State of Hawaii and, to the extent applicable, federal laws governing intellectual property. If a dispute proceeds to court, such action shall be brought exclusively in the federal or state courts located in Honolulu, Hawaii.
- Entire Agreement; Amendment. This Agreement constitutes the entire agreement between Licensor and Licensee and supersedes and cancels all prior negotiations, representations, understandings, and agreements, both written and oral, of the parties with respect to the subject matter hereof. This Agreement may only be modified by a writing signed by the parties hereto.