Terms and Conditions for Property Managers
Last updated: December 1, 2022
These Terms and Conditions form part of, and are incorporated into, the Services Agreement by and between Piñata Rent, Inc., a Delaware corporation (“Company”), and the Customer signatory thereto (“Customer”), effective as of the Effective Date set forth on such initial Order Form (the “Effective Date”). Company and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Customer desires to subscribe for, and Company desires to provide to Customer, those proprietary products and services of Company (collectively, the “Services”) set forth on one or more Order Forms and made available by Company on and after the Effective Date, for use on the terms set forth in this Agreement; and
NOW, THEREFORE, 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:
- “Aggregated Statistics” means (a) data and information related to Customer’s and Authorized Users’ use of the Services and/or Partner Services that is used by Company in an aggregate and anonymized manner, including, without limitation, to compile statistical and performance information related to the provision and operation of the Services and/or Partner Services, and (b) all output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works that are based on, derived from or otherwise use any Customer Data.
- “Authorized User” means Customer’s renters, employees and consultants (i) who are authorized by Customer to access and use the Services and Partner Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services and Partner Services has been purchased hereunder.
- “Company IP” means the Platform, the Services, the Documentation, any patent, copyright or trademark of Company, and any and all other intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Company IP includes, without limitation, Aggregated Statistics and any information, data, or other content derived from Company’s monitoring of Customer’s access to or use of the Services and/or Partner Services, but does not include Customer Data.
- “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services and/or Partner Services.
- “Documentation” means any user manuals, handbooks, and guides relating to the Services, as provided by Company to Customer, including, without limitation, electronically.
- “Earned Fees” shall mean, collectively, all affiliate fees, commissions, revenue share, royalties, earnings, credits or other compensation of any kind, in each case, actually received in cash by Company (without duplication) from sponsors, partners, brands, affiliates, providers or any other third party (collectively, the “Sponsors”) as a result of any purchase by any Registered User in the marketplace provided through or operated on the Platform or in the rewards program operated thereon, whether one-time or recurring in nature, in each case, solely during the period during which such Registered User is registered for Piñata Pro (as determined by Company) (such period, the “Piñata Pro Registration Period”); provided, however, that the following shall be deducted from the calculation of Earned Fees, without duplication: (x) with respect to commercially reasonable amounts paid within any specified period by Company and not attributable to individual Registered Users, prorated portions of such amounts (based on the numbers of Registered Users and the numbers of all Platform users at the end of such period) (A) for acquisitions to support product offerings in connection with the Platform, and (B) to any technology provider or technology partner in connection with support for the rewards and/or the marketplace provided through the Platform, and (y) to the extent not covered by clause (x), in the event that any given Earned Fee relates to or is generated from the sale by Company of any goods or services for which Company had paid or incurred an actual, bona fide cost of acquisition, the apportioned amount of such cost.
- “Order Form” means each Services Order Form entered into by Company and Customer.
- “Partner Service Fees” means Fees identified as “Partner Service Fees” on each Order Form.
- “Partner Services” means the services identified on each Order Form as “Partner Services”.
- “Platform” means the rent rewards platform provided by Company from time to time.
- “Registered User” means an Authorized User that registers to access the Platform through or as a result of one or more means provided by Customer, as determined by Company.
- “Revenue Share Amount” means, with respect to any time period, the aggregate Earned Fees for such period, multiplied by the Revenue Share percentage set forth on the applicable Order Form.
- “Revenue Share Report” shall mean, with respect to any calendar quarter, a written report that sets forth all Earned Fees for such quarter, as well as a calculation of the Revenue Share Amount relating to each Earned Fee and the aggregate Revenue Share Amount for such quarter.
- “Third-Party Products and Services” means any third-party products and services (i) provided with or incorporated into the Services or (ii) otherwise provided to Customer under this Agreement.
- Access and Use
- Provision of Access.
- Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 14(g)) and non-sublicensable right to access and use the Services and the Documentation during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein; provided that the Documentation may be used only in connection with proper use of the Services).
- Subject to and conditioned on Customer’s payment of Partner Service Fees and compliance with all other terms and conditions of this Agreement, Company shall use commercially reasonable efforts to make available to Customer, on a non-exclusive, non-transferable (except with the consent of third-party providers of the Partner Services) and non-sublicensable basis, the Partner Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. The Partner Services are not Services but constitute Third-Party Products and Services. Customer acknowledges that its and Authorized Users’ access to Partner Services may be subject to payment of additional amounts, and agreement to additional obligations, as required by the third-party providers of such Partner Services.
- Use of Services, Documentation and Partner Services, if by Customer’s employees or consultants, is limited to Customer’s internal use. The total number of Authorized Users, and the number of Units for which the Services and Partner Services may be used, will not exceed the number, if any, set forth on the applicable Order Form. In addition to all other obligations under this Agreement, Customer shall, and shall cause all users of the Services, Partner Services and Documentation to comply with all limitations and other restrictions contained in the applicable terms located at https://www.pinata.ai/terms-of-service/, and any successor site.
- Reservation of Rights. Company reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Company IP or Partner Services.
- Security of Customer’s Account. Customer is responsible for the security of Customer’s and each Authorized User’s account and Customer’s and each Authorized User’s use of the Services and the Platform. (i) each of Customer and each Authorized User is responsible for establishing and maintaining the confidentiality of its account, its account access credentials (for example, username and password), and the information submitted via its account or otherwise in connection with its use of the Services or the Platform. Customer agrees that Customer and each Authorized User will use reasonable and prudent efforts to prevent unauthorized access to or use of its account or the Services or the Platform. (ii) Each Authorized User must have unique access credentials. Authorized Users may not share access credentials. Customer will perform entitlement reviews of access controls for all Authorized Users and provide Company with reports of such entitlement reviews upon its request. (iii) Customer will notify Company immediately of any unauthorized access to or use of Customer’s or any Authorized User’s account or the Services or the Platform (“Security Incident”). Customer will pay all costs, expenses, and damages arising from or relating to a Security Incident to the extent caused by an act or omission of Customer or an Authorized User, including without limitation costs of remediation, notifications, credit monitoring services, penalties, and other damages incurred by Customer, Company, or any third party.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services and/or Partner Services if: (i) Company reasonably determines that (A) there is a threat or attack on any of the Company IP; (B) Customer’s or any Authorized User’s use of the Company IP disrupts or poses a security risk to the Company IP or to any other customer or vendor of Company; (C) Customer, or any Authorized User, is using the Company IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Company’s provision of the Services or Partner Services to Customer or any Authorized User is prohibited by applicable law; or (F) in the case of the Partner Services, the Partner Services are used in an unlawful or improper manner, or otherwise in violation of any third-party terms applicable to such Partner Services; (ii) any vendor of Company has suspended or terminated Company’s access to or use of any third-party services or products required to enable Customer to access the Services or Partner Services; or (iii) in accordance with Section 5(b)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the Services and/or Partner Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including, without limitation, any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
- Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Company may monitor Customer’s use of the Services and Partner Services and collect, compile and create Aggregated Statistics. As between Company and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. Customer acknowledges that Company may compile Aggregated Statistics based on Customer Data input into the Services and/or Partner Services. Customer agrees that Company may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
- Customer Responsibilities
- General. Customer is responsible and liable for all uses of the Services, Partner Services and Documentation resulting from access provided by Customer or otherwise obtained by Authorized Users, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and Partner Services, and shall cause Authorized Users to comply with such provisions.
- Third-Party Products and Services. Company may from time to time make Third-Party Products and Services available to Customer. Third-Party Products and Services are subject to their own terms and conditions, in addition to obligations in this Agreement.. If Customer does not agree to abide by the applicable terms for any such Third-Party Products and Services, then Customer should not install or use such Third-Party Products and Services. Further, the Services may contain features designed to interoperate with Third-Party Products and Services. To use such features, Customer may be required to obtain access to Third-Party Products and Services from their providers, and may be required to grant Company access to Customer’s account(s) on the Third-Party Products and Services. If the provider of Third Party Products and Services ceases to make the Third-Party Products and Services available for interoperation with the corresponding Service features on reasonable terms, Company may cease providing those Service features without entitling Customer to any refund, credit, or other compensation. Customer acknowledges that Company is not liable for any failure of any third party to provide any Third-Party Products and Services.
- Additional Customer Responsibilities. Customer will (a) use the Services and Partner Services only in accordance with the Documentation and applicable laws and government regulations, and (b) comply with terms of service of Third-Party Products and Services with which Customer uses Services.
- Certain Usage Restrictions. Customer will not (a) make any Services or Partner Services available to, or use any Services or Partner Services for the benefit of, anyone other than Customer or to Authorized Users as set forth on an Order Form, (b) make any Services or Partner Services available to, or use any Services or Partner Services for the benefit of, any competitor of Company, (c) sell, resell, license, sublicense, distribute, rent or lease any Services or Partner Services, or include any Services or Partner Service in a service bureau or outsourcing offering, (d) use any Services or Partner Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or applicable law, (e) use any Services or Partner Services to store or transmit Malicious Code (as defined below), (f) interfere with or disrupt the integrity or performance of any Services or Partner Services or third-party data contained therein, (g) attempt to gain unauthorized access to any Services or Partner Services or its related systems or networks, (h) permit direct or indirect access to or use of any Services or Partner Services in a way that circumvents a contractual usage limit, (i) copy a Service or Partner Service or any part, feature, function or user interface thereof, (j) copy any Services or Partner Services except as permitted herein or in an Order Form or the Documentation, (k) frame or mirror any part of any Services or Partner Services, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation, (l) access any Services or Partner Services in order to build a competitive product or service, (m) reverse engineer any Service or Partner Service, (n) create any derivative work based on any Services or Partner Services or (o) copy any features, functions or graphics of any Services or Partner Services. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, without limitation, viruses, worms, time bombs and Trojan horses.
- Credit Reporting. If and for so long as Company provides Credit Reporting, as set forth on an Order Form, and Customer provides or receives Customer Data or other data or other information (collectively, “Credit Information”) in connection with Credit Reporting, Customer shall comply with applicable law in connection with the provision of Credit Information to Company or the receipt or use of Credit Information by Customer. Customer will comply with all Credit Reporting and data furnisher terms and conditions specified by Company (which Customer acknowledges may be amended by Company from time to time in Company’s discretion notwithstanding anything to the contrary in such terms and conditions).
- Service Levels; Support
Company will use commercially reasonable efforts to make the online Services available 24 hours per day, except for: (i) planned downtime (of which Company shall give at least 8 hours electronic notice), and (ii) any unavailability caused by circumstances beyond Company’s reasonable control, including, without limitation, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Company’s employees), Internet service provider failure or delay, Third-Party Products and Services, or denial of service attack. Company will provide its standard support for the Services to Customer at no additional charge. Company shall use commercially reasonable efforts to provide first-line customer service to Authorized Users with respect to the Partner Services if Customer is then accessing Partner Services pursuant to, and in accordance with, this Agreement, subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement.
- Fees and Payment
- Subscriptions Generally. Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions for up to a specified number of residential rental units (sometimes referred to as “Units”), and requests for access to Partner Services are for up to a specified number of Units; (b) subscriptions, and requests for access, for additional Units may be added during a subscription term at the same pricing as the underlying pricing, prorated for the portion of that subscription term remaining at the time the subscriptions and access are added, (c) if at any time during any month or other billing period any renter accesses any Services or Partner Services with respect to any Unit for which subscriptions for such Services or Partner Services, as applicable, shall not have been purchased, then subscriptions for such Services and/or Partner Services shall be deemed to be added with respect to such Unit during such month or other billing period, (d) if any subscriptions for additional Units are added during any month or other billing period, subscriptions shall be payable with respect to such additional Units with respect to the entire such month or other billing period and all months and other billing periods thereafter, through and including the month or other billing period in which such additional Units are dully removed from enrollments for Services using methods specified by the Company (which methods may include the Company’s property manager website tool and, if and when available, an API specified by the Company) and (e) any added subscriptions and access for additional Units will terminate on the same date as the underlying subscriptions and access, and unless expressly agreed by Company. If Customer exceeds a contractual usage limit, Customer agrees to reduce Customer’s usage upon request so that it confirms to that limit, and if Customer does not abide by a contractual usage limit, then Customer will execute an Order Form with respect to Services and Partner Services for additional Units promptly upon Company’s request, and/or pay any invoice for excess usage in accordance with this Agreement.
- Fees. Customer shall pay Company the fees (“Fees”) as set forth on an Order Form without offset or deduction. Unless otherwise set forth on an Order Form, (i) all Fees shall be payable in advance, (ii) Fees consisting of startup fees, implementation fees and per-Unit monthly fees for the first month (or other billing period set forth on an Order Form) of Services and Partner Services set forth on an Order Form (regardless of the date(s) of performance of such Services and/or Partner Services, as applicable), in each case, shall be due and payable upon execution and delivery of such Order Form and (iii) except as set forth in clause (ii), all payments hereunder shall be made within 10 days following the date of invoice, Customer shall make all payments hereunder in US dollars on or before the due date set forth on the applicable Order Form (or if no date is set forth on an Order Form, within 10 days following the date of invoice). If Customer fails to make any payment when due, without limiting Company’s other rights and remedies: (i) Company may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments or interest, including, without limitation, attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Company may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services and Partner Services until such amounts are paid in full.
- Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is 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 or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income.
- Auditing Rights and Required Records. Each of Company and Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of one year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Each of Company and Customer may, at its own expense, on reasonable prior notice, periodically inspect and audit the other’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that either Party (the “Underpaying Party”) has underpaid the other Party with respect to any amounts due and payable during the Term, the Underpaying Party shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(b). The Underpaying Party shall pay for the costs of the audit if the audit determines that the Underpaying Party’s underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of one year after the termination or expiration of this Agreement. All information of a Party obtained during any audit shall be Confidential Information of such Party. All persons performing an audit shall seek to avoid disruption of the audited Party’s operations and shall comply with the audited Party’s confidentiality and security policies, which may include, without limitation, execution and delivery of confidentiality agreements. Further, no personnel of a competitor of a Party may participate in an audit of such Party.
- Revenue Sharing
- Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its and third parties’ business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that is: (a) in the public domain at the time of disclosure or becomes publicly known through no breach of this Agreement or any other obligation of confidentiality; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder, or as otherwise permitted by this Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- Intellectual Property Ownership; Feedback
- Company IP. Customer acknowledges that, as between Customer and Company, Company owns all right, title, and interest, including, without limitation, all intellectual property rights, in and to the Company IP and, with respect to Third-Party Products and Services, the applicable third-party providers own all right, title, and interest, including, without limitation, all intellectual property rights, in and to the Third-Party Products and Services.
- Customer Data. Company acknowledges that, as between Company and Customer, but subject to the rights of providers of Third-Party Products and Services and other third parties, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Company (i) a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data (x) as may be necessary for Company to provide the Services, and access to the Partner Services, to Customer, (y) for internal use by Company for any lawful purpose and/or (z) for loan underwriting purposes and other financial reporting purposes as requested by an Authorized User; (ii) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use, display and otherwise disclose Customer Data and Credit Information for the performance of Credit Reporting, including, without limitation, (x) to respond to renter inquiries, (y) for disclosure (either directly or through contractors) to credit bureaus and (z) as required by applicable law; and (iii) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use, display and otherwise disclose Customer Data to collect, compile and create the Aggregated Statistics and otherwise in connection with the Aggregated Statistics. Customer acknowledges that if Company may not lawfully provide to Customer data or other information that Company provides to renters (such data and other information, “Excluded Data”), then notwithstanding this Section 8(b), Customer shall have no rights in such Excluded Data.
- Feedback. If Customer or any of its employees, contractors or agents, or any Authorized Users, sends or transmits any communications or materials to Company by mail, email, telephone, any electronic method or otherwise, suggesting or recommending changes to the Company IP and/or Partner Services, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Company on Customer’s behalf, and on behalf of its employees, contractors and/or agents, and all Authorized Users, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
- Company Warranties; Disclaimer
- Warranties. Company warrants that (a) Company will provide the Services in a professional manner and in accordance with this Agreement, and (b) Company will use commercially reasonable efforts to prevent the Services from introducing Malicious Code into Customer’s systems; provided that it is not a breach of this clause (b) if Customer or an Authorized User uploads a file containing Malicious Code into the Services and later downloads the file containing Malicious Code, or if Customer Data introduces or otherwise contains any Malicious Code. For any breach of an above warranty, Customer’s exclusive remedies are those described in Sections 12(b)(ii), 12(b)(iii) and 12(d).
- Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE COMPANY IP IS PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY IP OR ANY PROCEEDS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF BUGS, PROGRAM LIMITATIONS OR HARMFUL CODE, OR ERROR FREE.
- Company Indemnification.
- Company shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s United States intellectual property rights, provided that Customer promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Customer agrees to permit Company, at Company’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make them or it non-infringing, or (B) obtain the right for Customer to continue use. If Company determines that neither alternative is reasonably available, Company may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
- This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; (B) modifications to the Services not made by Company; (C) Customer Data; (D) Credit Information; or (E) Third-Party Products and Services.
- Customer Indemnification. Customer shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any Losses resulting from any Third-Party Claim that the Customer Data and Credit Information, or any use of the Customer Data and/or Credit Information in accordance with this Agreement, infringes or misappropriates such third party’s United States intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) gross negligence or willful misconduct; (ii) breach of this Agreement (including, without limitation, any documents referred to in this Agreement); (iii) use of the Services and Partner Services in a manner not authorized by this Agreement; (iv) use of the Services and Partner Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; or (v) modifications to the Services and/or the Partner Services not made by Company, provided that Customer may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Sole Remedy. This Section 10 sets forth the sole remedies of the Parties for matters described in this Section 10.
- Limitations of Liability
IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENTS, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE IMMEDIATELY-PRECEDING SENTENCE SHALL NOT BE DEEMED TO LIMIT COMPANY’S PAYMENT OBLIGATIONS UNDER SECTION 6.
- Term and Termination
- Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period set forth on the applicable Order Form (the “Initial Term”). This Agreement and each Order Form will automatically renew for additional successive one-year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 60 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). Fees with respect to any Renewal Term will not be greater than 10% in excess of Fees during the immediately prior term unless Company has given Customer written notice of a pricing increase at least 90 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
- Termination. In addition to any other express termination right set forth in this Agreement:
- Company may terminate this Agreement or any Order Form, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Company’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c), 3(c), 3(d) or 7;
- either Party may terminate this Agreement or any Order Form, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
- either Party may terminate this Agreement, effective on written notice to the other Party, if there are no Order Forms then outstanding; or
- either Party may terminate this Agreement or any Order Form, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement or any Order Form, Customer shall immediately discontinue use of the Company IP and Partner Services (or, in the case of expiration or termination of an Order Form, the Company IP provided, and the Partner Services accessed, pursuant to such Order Form) and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of such Company IP and (unless otherwise expressly permitted by third-party providers of Partner Services) such Partner Services and certify in writing to the Company that such Company IP and Partner Services have been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
- Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 12(b)(ii) or 12(b)(iii), Company will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Company in accordance with Section 12, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to Company for the period prior to the effective date of termination.
- Survival. This Section 12(e) and Sections 1, 5, 6, 7, 8, 9, 10, 11, 13 and 14 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
- Dispute Resolution
- Entire Agreement. These Terms and Conditions, and the related Order Form(s), constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersede all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Order Form(s), and any other documents referred to in this Agreement, the following order of precedence governs: (i) first, this Agreement, excluding its Order Form(s); (ii) second, the Order Form(s); and (iii) third, any other documents referred to in this Agreement.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth in the Order Form most recently entered into by the Parties (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
- Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including, without limitation, acts of God, flood, fire, earthquake, pandemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including, without limitation, imposing an embargo, or, in the case of Third Party Products and Services, any action by a third party.
- Amendment and Modification; Waiver. This Agreement (excluding the Order Form) may be amended at any time by Company upon notice to Customer. No waiver by Company of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by Company. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any 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. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the Borough of Manhattan, New York City, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including, without limitation, obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services, Partner Services or any Customer Data outside the US.
- Equitable Relief; Third Party Beneficiaries. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of a breach by Customer, Section 2(c), 3(c) or 3(d), could cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including, without limitation, a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. Customer acknowledges that each provider of a Partner Service is an express third-party beneficiary with respect to all obligations of Customer with respect to Partner Services under this Agreement.
- Agreement. BY CLICKING “I ACCEPT” ON, OR OTHERWISE EXECUTING, ANY ORDER FORM, CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS READ, UNDERSTANDS, ACKNOWLEDGES AND AGREES TO ALL OF THE TERMS SET FORTH IN THIS AGREEMENT.
(a) General. No later than 30 days following the last day of each calendar quarter, Company shall provide a copy of the Revenue Share Report for such quarter and pay Customer, in the manner agreed in writing (including, without limitation, by email) by Company and Customer, an amount equal to the aggregate Revenue Share Amount set forth in the Revenue Share Report.
(b) Continuation. Following the termination of this Agreement for any reason, Customer shall be entitled to continue to receive (x) any unpaid portion of the Revenue Share Amount relating to the Earned Fees actually received by Company through the date of termination and (y) quarterly Revenue Share Reports for so long as any Revenue Share Amount is owed to Customer.
(c) Earned Fee Adjustment. In the event that any Sponsor disallows or disputes, or if Company otherwise refunds, any portion (the “Disallowed Amount”) of the Earned Fee related to any Revenue Share Amount previously paid to Customer under this Section 6, Company shall be entitled to reduce future payments to Customer by an amount calculated by multiplying the Disallowed Amount by the applicable percentage set forth in the definition of the Revenue Share Amount.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE COMPANY IP IN GENERAL IS NOT ERROR-FREE AND AGREES THAT THE EXISTENCE OF NON-MATERIAL ERRORS SHALL NOT CONSTITUTE A BREACH OF THIS AGREEMENT.
NO ORAL OR WRITTEN ADVICE GIVEN BY COMPANY, its employees, distributors, dealers, representatives or agents or any third parties shall increase the scope of the representations, warranties or conditions in connection with the COMPANY IP or any other matter relating to this agreement. provider makes no REPRESENTATIONS OR warranties WHATSOEVER regarding Third-Party Products and Services, AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY WHATSOEVER WITH RESPECT TO THIRD-PARTY PRODUCTS AND SERVICES.
CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
Class Action Waiver. Customer may bring claims only on its own behalf. Neither Customer nor Company will participate in a class action or class-wide arbitration for any claims covered by this Agreement. CUSTOMER IS GIVING UP ITS RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM CUSTOMER MAY HAVE AGAINST COMPANY, INCLUDING, WITHOUT LIMITATION, ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. Customer also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Company is a party to the proceeding.
30-Day Opt-Out Period. If Customer does not wish to be bound by the class-action waiver provisions in this Dispute Resolution Section, Customer must notify Company in writing within thirty (30) days of the date that Customer first accepts this Agreement (unless a longer period is required by applicable law), and then Customer must litigate any disputes against Company in accordance with the “Governing Law; Submission to Jurisdiction” Section below. Customer’s written notification must be provided as per the provisions of Section 14(b). If Customer does not notify Company in accordance with this paragraph, Customer agrees to be bound by the terms of this Dispute Resolution Section, including, without limitation, the class-action waiver provisions, and further including such provisions in any revisions Company make to this Agreement after the date of Customer’s first acceptance. Such notification must include: (i) Customer’s name; (ii) Customer’s email address and mailing address; and (iii) a statement that Customer does not wish to waive Customer’s ability to participate in a class action. If Company makes any changes to this Dispute Resolution Section (other than a change to the address at which Company will receive notices or rejections of future changes to this Dispute Resolution Section), Customer may reject any such change by sending Company written notice, within thirty (30) days of the change, in accordance with Section 14(b). It is not necessary to send Company a rejection of a future change to this Dispute Resolution Section if Customer had properly opted out within the first thirty (30) days after Customer first accepted the provisions in this Dispute Resolution Section. A notification sent pursuant to this paragraph solely affects this Agreement; if Customer previously entered into other dispute resolution agreements with Company or enter into other such agreements in the future, Customer’s notification that Customer is opting out of the provisions in this Dispute Resolution Section shall not affect the other agreements between Customer and Company.