Piñata Pro Service Agreement
1. Services and support
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to make available the Services to Customer and its Renters. The Services shall not be deemed to include any Add-on Services, including, without limitation, credit reporting, unless Customer shall have executed and delivered an Order Form setting forth, and Customer shall have paid for, such Add on Services. As part of the registration process, Customer and each Renter will identify an administrative user name and password for his, her or its respective account. Company reserves the right to refuse registration of, or cancel, registrations in its sole discretion. “Renter” means an individual person who (i) is identified on a rent roll or directory report provided by Customer and (ii) has a user name and password that has been accepted, and not canceled, by Company.
1.2 Subject to the terms hereof, Company will provide Customer and its Renters with support in accordance with Company’s standard practice.
2. Restrictions and responsibilities
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; use any Services or Software to develop and products or services that compete with those of Company; use any Services of Software in an unlawful manner or for unlawful purposes; or remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.5 If Customer provides information regarding the Platform to Renters or any other persons, Customer shall not provide any information inconsistent with information provided by Company. Customer acknowledges that Company encourages, but does not require, Customer to send an onboarding email regarding the Platform to tenants in properties owned and/or managed by Customer.
2.6 Customer shall not permit any persons other than (i) employees of Customer, (ii) consultants of Customer approved by Company or (iii) Renters to access or otherwise use the Services or the Software. Renters shall be subject to all obligations applicable to Customer in Sections 2.1 through 2.6 and 3, and Customer shall be responsible for, and indemnify Company form, Renters’ compliance with all such obligations. Customer represents and warrants that it has and will maintain all consents required under applicable law to enable Company and its contractual counterparties to receive, process and otherwise use Customer Data, and all other information provided by Customer, for the performance of the Services and otherwise in accordance with their respective privacy policies, and Customer represents and warrants that it has all rights to provide Customer Data and other Renter information in connection
with this Agreement and all rights necessary for Customer and Renters lawfully to access and use the Services and Software. No rights or licenses are granted to Customer or Renters except as expressly set forth herein.
2.7 Customer shall provide a rent roll and tenant directory list to Company (i) as promptly as possible following the Effective Date and (ii) within five (5) days following the last day of each month, and Customer acknowledges that Company may process such rent roll and tenant directory list in connection with the provision of Services, including, without limitation, for Renter onboarding.
3. Confidentiality; Proprietary rights
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes, without limitation, non-public information regarding features, functionality and performance of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except by Company in performance of the Services) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 As between Customer and Company, but subject to any rights of providers of services to Company in connection with the Services, Customer shall own all right, title and interest in and raw Renter and other tenant information data provided by Customer to Company to enable the provision of the Services (“Customer Data”). Company shall own and retain all right, title and interest in and to, and Customer has no rights to (other than the right to use the Services in accordance with this Agreement), (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, (c) all Renter usage data and all other data generated by, or in connection with the provision, use or performance of, the Services, and all data derived from such usage data and other data, and (d) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de identified form in connection with its business.
4. Payment of fees
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If the number of Renters increases during any calendar month, Customer agrees to pay Renter-based Fees, for each calendar month thereafter, with respect to the greatest number of Renters during such month. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the date of sending the invoice. Invoices may be paid by ACH, credit card or another method acceptable to Company. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. Terms and termination
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and (other than in the case of nonpayment) does not cure such breach, if cureable, within ten (10) days following the giving of notice to such other party.
5.3 Customer will pay in full for the Services up to and including the last day of the Term (or, if earlier, the effective date of termination of this Agreement pursuant to Section 5.2). Piñata Cash Incentives Fees are nonrefundable, and Customer shall be entitled to a refund of prepaid fees (other than Piñata Cash Incentives Fees) with respect to periods following termination of this Agreement only if Customer shall have terminated this Agreement pursuant to Section 5.2, but in no other instance.
5.4 Sections 2, 3, 4, 6 (third and fourth sentences only), 8, and 9 of this Agreement shall survive the expiration or termination of this Agreement.
6. Warranty and disclaimer
Company shall provide the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Services, as provided by Company, of any United States patent or any copyright; provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer or a Renter continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s or a Renter’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. Company’s obligations under this Section 7 are the sole remedies of Customer with respect to the matters set forth herein.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND THE PROVIDERS OF PRODUCTS AND SERVICES TO COMPANY (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), AND ITS AND THEIR DIRECTORS, OFFICERS, STOCKHOLDERS, REPRESENTATIVES, CONTRACTORS, ADVISORS, EMPLOYEES AND AFFILIATES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. There are no third-party beneficiaries to this Agreement, other than Company’s suppliers, which are third-party beneficiaries of Company’s rights and Customer’s obligations under this Agreement. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. All disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the Federal and state courts located in the Borough of Manhattan, New York, New York, and competent courts of appeals therefrom.