Piñata website terms
1. The Piñata Platform
1.1 Property managers
The Piñata Platform may allow landlords and rental property managers (“Property Managers”) to manage and lease rental properties. Property Managers may create customizable rewards of Piñata Cash for Tenants through the Piñata Platform (detailed below).
The Piñata Platform gives property renters and potential renters (“Tenants”) the ability to pay rent for rental properties and communicate with Property Managers. Tenants may be able to earn rewards, receive retailer discounts and other perks through the Piñata Platform (detailed below).
1.3 Relationship of the parties
The Piñata Platform is offered by Piñata as an intermediary service to facilitate communication and transactions between Property Managers and Tenants. In providing services through the Piñata Platform, we do not act as a real estate broker, property manager, maintenance or repair service provider, payment processor, legal advisor, money transmitter, payment manager, or credit reporting agency.
Piñata does not guarantee any results from using the Piñata Platform. Piñata does not independently verify any Tenant or Property Manager, and does not perform credit or background checks, and does not make any representations or warranties as to the quality of any Tenant or Property Manager. We do not control the contents of and are not responsible for the content or accuracy of information in any credit report, background check report, or credit score reports obtained through the Piñata Platform, whether correct or incorrect.
Piñata does not act as an attorney or provide any legal advice to Tenants or Property Managers.
By accepting these terms, You agree that Piñata is acting as an independent contractor with respect to the Piñata Platform. Neither Tenants nor Property Managers shall be considered an employee or agent of Piñata or have any authority under this Agreement to bind or otherwise obligate Piñata on any matter whatsoever.
Nothing contained in this Agreement shall be construed to imply a partnership, agency, or any other fiduciary relationship between Piñata, the Piñata Platform, any Tenant, and any Property Manager. Piñata will not be bound by the terms of any lease or other agreement entered into between a Tenant and Property Manager and will not be liable for any breach of such agreement by either a Tenant or Property Manager.
In facilitating the generation and delivery of communications, including emails, notices, and text messages, between Property Managers and Tenants, in connection with the provision of property management services, including rent collection and maintenance services, Piñata is merely acting as a third-party service provider and in forwarding any communications to Tenants on behalf of Property Managers, and is not acting as a debt collector or agent on behalf of any Property Manager.
In providing the functions through the Piñata Platform, we make no rental decision regarding any application for housing, and we are not the party determining the nature or amount of any outstanding lease obligation, including rental amounts, fees, deposits, etc.
1.4 Integration with third-party services
To provide certain functionality through the Piñata Platform, we may provide integration with third-party service providers for providing services on our platform. By using the Piñata Platform, You acknowledge that we will share your user information in order to create required accounts with our partner services.
2. Accounts and Registration
To use the Piñata Platform, You must be a registered user. You agree to only use the Piñata Platform in connection with residential rental property transactions and certain third-party services that may be provided through the Piñata Platform.
Only actual tenants and prospective tenants may set up or use a Tenant account. Actual tenants and prospective tenants may set up or use only one Tenant account per person. Only rental property managers, landlords, and owners of rental property for listing may set up or use a Property Manager account. Third parties, including brokers, may not submit rental applications on behalf of prospective tenants and may not configure, authorize, or initiate rent payments, submit credit or background check report orders, or conduct other transactions on behalf of tenants or prospective tenants, even if the tenant or prospective tenant has given their permission.
In addition, You shall provide us with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these terms. You may not (i) select or use as a name of another person with the intent to impersonate that person; (ii) use as a username, a name subject to any rights of a person other than you without appropriate authorization; (iii) use as a username, a name that is otherwise offensive, vulgar or obscene; (iv) register for or otherwise obtain, control or operate more than one account; (v) refer more than one email account owned, controlled or operated by You to the Piñata Platform; (vi) register for an account with false information, in a fraudulent manner or using information created solely for registration with us or other online services or (vii) evade any of the requirements set forth in the Platform Terms. We reserve the right to refuse registration of an account, or suspend or delete an account, in our sole discretion. You are solely responsible for the activity that occurs on Your account, and you must keep your account password secure. You must notify us immediately of any breach of security or unauthorized use of Your account.
We may terminate and remove Your account at any time, without notice, in the event that You breach any of these terms.
To use certain features of the Piñata Platform, including identity verification, credit report, background check, and payment services, You will be required to verify your identity with our third-party vendors.
You must provide your full legal name, a valid email address that has not been created solely or primarily for access to the Piñata Platform, and any other information requested in order to complete the signup process. You are also responsible for keeping your email address and other contact information up to date, so we can send You important notices.
If you are a Property Manager processing rental and other payment transactions through the Piñata Platform, You must provide your legal name and/or legal business entity name, your personal or your business contact information, and your social security or taxpayer identification number(s) if requested. We will collect and maintain that information, as well as your account information and the amount of payments and number of payment transactions You or your business processes through the Service, so that your payments can be reported to the Internal Revenue Service when we are required by law to do so.
3. Use of the Piñata Platform
By using the Piñata Platform, You agree to:
- Use the Piñata Platform in compliance with all applicable laws, and all legal notice and disclosure requirements as provided in agreements of third-party service providers providing services through the Piñata Platform (detailed below), such as payment processors, insurance carriers, marketplace partners, and credit reporting agencies, including, without limitation, the Fair Credit Reporting Act and the Fair Housing Act.
- Comply with the terms and conditions of all of Piñata’s third-party service providers.
- Use the Piñata Platform only on your own behalf, and not transmit or resell any information or services available through the Piñata Platform to third parties.
- Provide us, upon our request, with the details of all transactions processed by You through the Piñata Platform.
- Use the Piñata Platform only in connection with properties located within the United States
- Use only payment methods issued in the United States.
- Charge a Tenant rent and fees related to property rental only as legally authorized under a written agreement between You and a Tenant.
- Not add any tax or other surcharge to rent amounts specified in the Piñata Platform.
- Not use the Piñata Platform to transfer money in violation of any money laundering laws, including the Bank Secrecy Act, or any regulations of the US Treasury’s Office of Foreign Assets Control or the Federal Trade Commission.
- Comply with any transaction limits as may be set by Piñata for the platform from time to time.
- Not require a Tenant to provide any banking or other sensitive financial information directly to You.
- Not submit a request for payment through the Piñata Platform for any fee incurred by a Tenant at a time prior to use of the Piñata Platform, or otherwise to settle outstanding debts, or as otherwise prohibited by local laws.
- Not submit any false or fraudulent information through the Piñata Platform or otherwise to us, or otherwise use the Piñata Platform or any of our other products or services for false or fraudulent purposes.
- Not rely on any feature of the Piñata Platform in lieu of legal advice from a licensed attorney.
- Not use the Piñata Platform to discriminate against anyone based on race, color, national origin, religion, sex, disability, or the presence of children, or decline or treat a Tenant differently based on any other class protected by the laws of your state and municipality (e.g., sexual orientation, gender identity, military status or marital status).
- Not to share an application created through the Piñata Platform (including any related credit reports or background checks) with any third party, or otherwise provide any portion of an application outside of the Piñata Platform.
- Not attempt to circumvent, or encourage anyone else to circumvent, the Platform Terms.
- Allowing Piñata to keep and track data on your use within the application.
- Use only one account and only one name for Piñata Platform.
- Not use the Piñata Platform by means of multiple accounts, multiple email addresses or multiple sets of information provided to the Piñata Platform, or email addresses or other information created solely to access the Piñata Platform or other online sites.
If you have any question about the fair housing laws and housing discrimination in general, please contact your local fair housing agency or the U.S. Department of Housing and Urban Development. A list of all fair housing groups is available at the Housing Rights Center’s website at hud.gov.
4. Piñata Cash
“Piñata Cash” is an online, redeemable credit system that may be used or redeemed to obtain certain products, benefits, and features we may offer through the Piñata Platform. An amount of Piñata Cash may be associated with a user’s account and (a) may be awarded to users for free, or in exchange for referring the Piñata Platform to others, in connection with certain promotional offerings; (b) may be awarded by Property Managers to Tenants in connection with making rent payments and meeting other criteria; and (c) may be awarded in connection with making certain types of Product purchases through the Piñata Marketplace.
We may, in our sole discretion, review how You earn Piñata Cash and engage in other activities in the Piñata Platform, including, without limitation, to confirm the validity of Piñata Cash awards. We reserve the right to limit and otherwise adjust the amount of Piñata Cash that You can be awarded, accumulated, or redeemed over any given period of time. We, in our sole discretion, determine how Piñata Cash may be awarded or redeemed through the Piñata Platform and we may reject awards and redemptions of Piñata Cash and any other reward fulfillment.
We reserve the right to terminate your access to Piñata Cash in your account if we determine, after investigation, that You have acquired the Piñata Cash in connection with any fraudulent or illegal activity.
We reserve the right to modify or terminate the Piñata Cash system (including, without limitation, any rules regarding use or access thereto) at any point in time.
5. Piñata Marketplace
READ THESE TERMS CAREFULLY BEFORE YOU START TO USE OR MAKE ANY PURCHASES THROUGH THE PIÑATA MARKETPLACE.
The Piñata Platform provides access to an online third-party product marketplace (the “Piñata Marketplace”). The Platform Terms govern your use of and any purchases that You make through the Piñata Marketplace service available through the Piñata Platform.
We are not responsible for examining or evaluating, and we do not warrant, any Product offerings of any Retailers. Piñata does not assume any responsibility or liability for the actions, product, and content of all these Retailers and any other third parties. You should carefully review their privacy statements, selling policies, and other conditions of use.
5.1 Marketing communications
By establishing an account with Piñata or by making a purchase through the Piñata Marketplace, You grant us permission to contact You at your email address and phone number and send You marketing content related to the Piñata Marketplace, our affiliates, and our business partners. You can opt-out of receiving our marketing content following the opt-out procedures set forth in such marketing content.
5.2 Marketplace use
Piñata may exclude any buyer, including You, from making purchases in the Piñata Marketplace at any time and for any reason. Resellers may not purchase Products in the Piñata Marketplace and we reserve the right, in our sole discretion, to cancel such purchase.
5.3 Piñata Cash rewards
You may receive offers from us or from Retailers to receive rewards of Piñata Cash on the successful purchase of certain Products in the Piñata Marketplace. Piñata Cash You earn through the Piñata Marketplace will be associated with your user account.
5.4 Product information
Any information about and descriptions of Products for purchase from Retailers through the Piñata Marketplace (“Product Information”) may be based on information provided to us by Retailers. We do not warrant the accuracy, completeness, or usefulness of this information. There may be information accessible through the Piñata Marketplace that contains typographical errors, inaccuracies, omissions, and other types of errors, including, without limitation, errors that relate to descriptions of Products, pricing, promotions, offers, minimum order amounts, delivery times, and Product availability. Any reliance You place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by You or any other user of the Piñata Platform, or by anyone who may be informed of any of its contents.
5.5 Purchase processing
When You submit an order for Product through the Piñata Marketplace, You are entering into a binding agreement to purchase the Product directly from the Retailer through our third-party payment processors (see details below).
Delivery of any Products You purchase through the Piñata Marketplace, if applicable, is made by the Retailer seller and not Piñata. You agree that we have no obligation to deliver any Product You purchase through the Piñata Marketplace. You agree that we may provide to the Retailer your street address, email address, name, and phone number for supplying to You the Product You purchase from the Retailer through the Piñata Marketplace.
ANY CLAIMS RELATED TO THE DELIVERY OF A PRODUCT, INCLUDING CLAIMS THAT THE PRODUCT WAS NOT DELIVERED, CLAIMS OF DAMAGE TO PROPERTY, OR CLAIMS RELATED TO PRODUCT QUALITY OR SUITABILITY ISSUES MUST BE HANDLED SOLELY BETWEEN YOU AND THE APPLICABLE RETAILER. YOU ARE RESPONSIBLE FOR MAKING ANY CLAIMS DIRECTLY WITH THE RETAILER AND AGREE THAT YOU WILL NOT SEEK TO HOLD PIÑATA RESPONSIBLE FOR ANY OF THE FOREGOING CLAIMS.
5.7 Changing or cancelling marketplace orders
Piñata is not responsible for the fulfillment, modification, cancelling, or return of any orders placed with a Retailer through the Piñata Marketplace. Once You have placed an order for a product in the Piñata Marketplace, the Retailer will handle all aspects of the order fulfillment, including changes to orders (if available), and processing of returned orders. Piñata will not change or cancel any order made by You, including any change to delivery address or billing information. You will need to contact the Retailer for any changes or cancellations that You wish to make to your order or to process any returns. The Retailer’s contact information may be found in the email sent to You confirming your order.
Piñata, in conjunction with a third-party processor, offers a feature to facilitate payment of rental amounts and other sums due in accordance with written agreements for rental property between Tenants and Property Managers and between buyers and Retailers in the Piñata Marketplace.
You agree to pay all charges incurred by You or on your behalf through the Piñata Platform, at the prices in effect when such charges are incurred. If Piñata changes the fees for all or part of the Piñata Platform, including by adding fees or charges, Piñata will provide You advance notice of those changes. If You do not accept the changes, we may stop providing the applicable part of the Piñata Platform to You. Piñata’s third-party payment processors will charge the payment method You specify at the time of purchase.
Tenants may initiate one-time and recurring payments through the Piñata Platform. You authorize Piñata and its third-party processors to charge all payments as described in these Platform Terms, for the Piñata Platform, to your chosen payment method. If You pay with a credit card, Piñata’s third-party payment processors may seek pre-authorization of your credit card account before your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. Property Managers and Tenants using the rental payments feature may be required to set up an account with a third-party payment processor, in accordance with their terms of service, in order to receive payments through the Piñata Platform.
If any payment You initiate using the Piñata Platform does not successfully complete, the intended recipient reserves the right to seek payment from You via or outside the Piñata Platform. Any authorization You provide to make repeating automatic payments using the Piñata Platform will remain in effect until cancelled.
When submitting a payment, including for scheduled payments, You may be asked to supply certain relevant information, such as your debit or credit card number and its expiration date, checking account information, and/or billing address. By submitting such information, You: (i) represent and warrant that You have the right to use any payment method that You submit through the Piñata Platform; and (ii) grant to Piñata the right to provide such information to third parties for purposes of facilitating the transactions. Verification of information may be required prior to the acknowledgment or completion of any payment transaction.
By making or receiving payments through the Piñata Platform, You grant Piñata and our third-party payment processors the right, power, and authority to act on your behalf to access and transmit your personal and financial information from the relevant institution, and to charge your account in the amounts specified in the Piñata Platform. You agree to your personal and financial information being transferred, stored, and processed by our third-party payment processors.
Piñata does not hold any money You transfer through the Piñata Platform and Piñata is not responsible for unsuccessful transmission, sourcing, or use of any funds by the recipient.
You agree that all payments made through the Piñata Platform are final, and You will not challenge or dispute the charge with your bank. If You initiate a dispute with Your bank, You agree that You will be held responsible for any outstanding balance owed to us (or other payee), plus any dispute case fees charged by the payee’s bank. Any outstanding balance left unpaid after 30 days may be submitted to a collections agency, and You agree that a collections fee of up to 50% of the outstanding balance or $100 (whichever is higher) will be added to the amount that You owe.
If a payor or payor’s bank or card issuer initiates a reversal, chargeback, or payment dispute of a payment made through the Piñata Platform to You, You authorize Piñata and our third-party payment processors to reverse or otherwise debit the funds from your account. In the event we are unable to reverse or otherwise debit funds from your account, You agree promptly to deposit such funds upon our request.
We may also initiate a reversal, or take other actions we determine to be appropriate, if, in our reasonable opinion, fraud or abuse of the Piñata Platform has occurred. Additionally, we may choose to implement a chargeback or reversal fee in the case of unsuccessful payment, in which case we will provide You prior notice of the amount to be charged.
We do not provide any refunds and do not guarantee any result using the Piñata Platform, including, but not limited to, receiving an application, an application being accepted, or a Property Manager electing to accept payments through the Piñata Platform.
Without limitation of our other rights, we may introduce, modify any content, materials, features, pricing or other elements of the Piñata Platform (expressly including, without limitation, the Piñata Marketplace and rewards) at any time in our sole discretion, without notice. We may also terminate the Piñata Platform (expressly including, without limitation, the Piñata Marketplace and rewards) at any time in our sole discretion, without notice. You shall not retain any rights that may have arisen prior to modification or termination, except to the extent expressly required by applicable law.
Piñata shall have the right to modify these Terms of Service at any time, which modification shall be effective immediately following Piñata’s posting of such change on its website. Piñata recommends that you check the Piñata website and these Terms of Service regularly for any such changes. Your use of the Piñata Platform following such posting shall be deemed to constitute your acceptance of such modification. Except for changes by Piñata as described here, no other amendment or modification of these Terms of Service will be effective unless in writing and signed by both you and Piñata.
PIÑATA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, TO ANY ACTUAL OR PROSPECTIVE RENTER OF ANY RENTAL PROPERTY AS TO THE EXISTENCE, OWNERSHIP OR CONDITION OF THE RENTAL PROPERTY; AS TO THE ADVERTISED AVAILABILITIES, RENT, LEASE TERMS, SECURITY DEPOSIT, OR APPLICATION FEES, IF ANY; OR AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ABOUT A RENTAL PROPERTY APPEARING ON THE PIÑATA PLATFORM. PIÑATA DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. PIÑATA RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CORRECT ANY ERROR OR OMISSION ON THE PLATFORM OR IN ITS CONTENT. ALL RENTAL PROPERTIES ARE SUBJECT TO PRIOR LEASE. ANY AND ALL CONCERNS, DIFFERENCES OR DISCREPANCIES REGARDING A RENTAL PROPERTY MUST BE ADDRESSED WITH THE LANDLORD AND/OR PROPERTY MANAGEMENT COMPANY PRIOR TO LEASING OF THE PROPERTY. PIÑATA DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES TO YOU REGARDING THE SERVICES FOR LISTING AND LEASING OF RENTAL PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT YOU WILL LEASE YOUR RENTAL PROPERTY, OBTAIN AN ACCEPTABLE RENT FOR YOUR RENTAL PROPERTY, ONLY RECEIVE LEGITIMATE INQUIRIES OR SOLICITATIONS FROM QUALIFIED RENTERS, OR RECEIVE ANY INQUIRIES REGARDING YOUR PROPERTY FOR RENT. FOR PURPOSES OF THIS WARRANTY DISCLAIMER, “THIRD-PARTY LICENSOR” DOES NOT INCLUDE YOU. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to You.1
Data furnisher terms & conditions
1. SAAS services and support
1.1 If and for so long as Provider provides Credit Reporting, as set forth on an Order Form, and Customer provides Customer Data, Personal Information or other information (collectively, “Credit Information”) in connection with Credit Reporting, Customer shall comply with all data furnisher terms and conditions as provided by Provider from time to time.
1.2 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Data Contributor the Services.
2. Restrictions and responsibilities
2.1 Data Contributor 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 (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time-sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Further, Data Contributor 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. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Data Contributor represents, covenants, and warrants that Data Contributor will use the Services only in compliance with all applicable laws and regulations. Data Contributor hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Data Contributor’s use of Services. Although Company has no obligation to monitor Data Contributor’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Data Contributor 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”). Data Contributor shall also be responsible for maintaining the security of the Equipment, Data Contributor account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Data Contributor account or the Equipment with or without Data Contributor’s knowledge or consent.
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 non-public information regarding features, functionality and performance of the Service. Proprietary Information of Data Contributor includes non-public data provided by Data Contributor to Company to enable the provision of the Services (“Data Contributor Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) 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 Company shall own all right, title and interest in and to the raw data captured via the service platform. Company shall own all right, title and interest in and to all insights and inventions derived from the raw data by Company. Data Contributor shall have the right to access and view raw data either by written request, or via the reporting dashboard provided. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) 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 Data Contributor 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 in aggregate or other de-identified form in connection with its business; provided, that any use by Company of Data Contributor Data must comply with (x) Data Contributor’s privacy policies, that it provides to Company, which are in effect with its own customers and other persons from who it collects personally identifiable data and (y) all federal and state privacy laws (including related administrative rules and regulations) which may be applicable to such Data Contributor Data. No rights or licenses are granted except as expressly set forth herein.
4. Payment of fees
4.1 Data Contributor will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). 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 Data Contributor (which may be sent by email). If Data Contributor believes that Company has billed Data Contributor incorrectly, Data Contributor must contact Company no later than 60 days after being given 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 being given the invoice (in which mailing may occur via email). 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 Service. Data Contributor shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
4.3 Data Contributor and Company will renegotiate contract pricing terms prior to any contract renewal taking effect. Data Contributor and Company will endeavor to start pricing discussions within 60 days of the Service Term End Date.
5. Term 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 thirty (30) days prior to the end of the then-current term.
5.2 If Data Contributor elects to cancel this agreement within 14 business days from the contract’s Effective Date, then Data Contributor shall be entitled to a full refund less any processing costs incurred by Pinata during the cancelation period. Data Contributor’s notice of intention to cancel must be received by Pinata via email within the above mentioned 14 business day window.
5.3 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or on ten (10) days’ notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Data Contributor will pay in full for the Services up to and including the earlier of the date of termination of the Agreement or the last day of the contracted Service Term. Upon any termination, Company will make all raw Data Contributor Data available to Data Contributor for electronic retrieval for a period of ninety (90) days and all such raw Data Contributor Data in its possession shall be destroyed by Company at that time. The Company however, is not mandated to provide any insights and inventions derived from the Data Contributor’s raw data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. Warranty and disclaimers
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation 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 or by e-mail 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 and implementation services are provided “as is” and company disclaims all warranties, express or implied, including, but not limited to, applied warranties of merchantability and fitness for a particular purpose and non-infringement.
7. Limitation of liability
Notwithstanding anything to the contrary, except for bodily injury of a person, Company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees 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 as a result of a customarily defined Force Majeure event; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Data Contributor 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; provided, that subprovision (d) above shall not limit the Company’s liability for (x) intellectual property infringement or (y) malfeasance, or willful or grossly negligent conduct or omissions.
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 Data Contributor 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 neither Company nor Data Contributor has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and reasonable attorneys’ fees. 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 Delaware without regard to its conflict of laws provisions.
9. Credit bureau addendums
Please refer to the addendum that Pinata will send to you titled: “Equifax: Data Contributor Agreement”. This agreement must be signed by Data Contributor as the “Data Contributor” before Pinata (the data “Aggregator”) can report Data Contributor’s tenant information to Equifax.
Properties Subject to Rent Reporting
Number of Units
EXHIBIT B: Data Submission and Dispute Resolution Requirements
Pinata reports data to credit bureaus in Metro 2® Format.
If API integration between Data Contributor’s system and Pinata’s system will not be undertaken, then Pinata will provide Data Contributor with a template that outlines the data fields that must be reported for each tenant on a monthly basis. Data Contributor may export or enter tenant payment data into Excel and provide these files to Pinata on a monthly basis via a secure Dropbox folder, or may enter data directly into the Pinata Property Manager Portal.
Pinata reserves the right to request a signed copy of Data Contributor’s lease agreement with each tenant for whom rental data will be furnished and reported. Lease agreements will only be requested so that Pinata can validate the accuracy and completeness of the data being reported to it by Data Contributor.
Data Contributor agrees to submit tenant payment data to Pinata by the middle of each month for the duration of this contract. For avoidance of doubt, payment data needs to be submitted to Pinata by the following dates: January 15th, February 15th, March 15th, April 15th, May 15th, June 15th, July 15th, August 15th, September 15th, October 15th, November 15th and December 15th.
Pinata will confirm receipt of submitted data via email and follow up via phone if errors or anomalies are detected during the Company’s quality control review.
Tenant Dispute Resolution
If a tenant disputes the accuracy or completeness of rental data reported to any credit bureau via Pinata, Data Contributor must promptly instruct the tenant to file a complaint using the contact details below:
Postal: Pinata Inc., 28 Clinton St, Newark, NJ 07102
Phone: 909) 314 – 1712
Data Contributor and Pinata will jointly investigate and resolve the dispute in a manner that is lawful and complies with the Fair Credit Reporting Act. As part of this process, Pinata will make use of a web-based system called e-Oscar. More information about e- Oscar can be found online at: http://www.e-oscar.org/about-e-oscar.aspx
Company will provide Technical Support to Data Contributor via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern Standard Time, with the exclusion of Federal Holidays (“Support Hours”).
Landlord may initiate a helpdesk ticket during Support Hours by emailing firstname.lastname@example.org.
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within two (2) business days or 72 hours, whichever is shorter.
Please refer to the attachment titled Equifax Exhibit A: Data Contributor Agreement
mobile terms & conditions
1. Mobile terms
When you provide us with your mobile phone number, you agree that our organization may send you text messages (including SMS and MMS) to that phone number. Our organization may send you up to 2 messages per month. You will receive a confirmation text message, and you may need to reply as instructed to complete registration. Message and data rates apply. Reply STOP to cancel, HELP for help. Texts may be sent through an automatic telephone dialing system. Consent is not required to purchase our goods or services. You agree to notify us of any changes to your mobile number and update your account us to reflect this change. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
2. text message sign-up
All you have to do is text “rent” to +18559170373. (Up to 2 messages a month, message and data rates may apply, and you can always text HELP for help & STOP to cancel.) When you opt-in to the service, we will send you an SMS message to confirm your signup.
If at any time you forget what keywords are supported, just text HELP to +18559170373. After you send the SMS message HELP to us, we will respond with instructions on how to use our service as well as how to unsubscribe.
You can cancel the SMS service at any time. Just text STOP to +18559170373. After you send the SMS message STOP to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.
Our organization will never charge you for the text messages you receive however standard message and data rates may apply for any messages sent to you from us and to us from you. You will receive up to 2 messages per month. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For all questions about the services provided through the number +18559170373, you can send an email to email@example.com.
5. Supported wireless carriers
We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).
Bell (including NorthernTel, Solo Mobile, and Telebec), Fido, MTS, Rogers, SaskTel, Telus (including Koodo Mobile and Public Mobile), Videotron, Virgin Mobile, and Wind.
***This service and the carriers are not liable for delayed or undelivered messages***
Piñata Terms & conditions
This Services Agreement (this “Agreement”) is entered into by and between Piñata Rent, Inc., a Delaware corporation (“Provider”), and the Customer identified on the initial Order Form (as defined below) (“Customer”), effective as of the Effective Date set forth on such initial Order Form (the “Effective Date”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Customer describes to subscribe for, and Provider desires to provide to Customer, those proprietary products and services of Provider (collectively, the “Services”) set forth on one or more Order Forms and made available by Provider on and after the date of this Agreement, 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:
(a) “Aggregated Statistics” means data and information related to Customer’s and Authorized Users’ use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.(b) “Authorized User” means
(b) Customer’s renters, employees and consultants (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) “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.
(d) “Documentation” means any user manuals, handbooks, and guides relating to the Services, as provided by Provider to Customer, including electronically
(e) “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 Provider (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 Provider) (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 Provider 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 Provider of any goods or services for which Provider had paid or incurred an actual, bona fide cost of acquisition, the apportioned amount of such cost.
(f) “Order Form” means each Services Order Form entered into by Provider and Customer.
(g) “Platform” means the rent rewards platform provided by Provider from time to time.
(h) “Provider IP” means the Platform, the Services, the Documentation, any patent, copyright or trademark of Provider, and any and all other intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.(i) “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 Provider.
(j) “Revenue Share Amount” means, with respect to any time period, the aggregate Earned Fees for such period, multiplied by 25%.
(k) “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.
(l) “Third-Party Products” means any third-party products provided with or incorporated into the Services.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other/the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13(g)) 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). Such use, 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 may be used, will not exceed the number, if any, set forth on the applicable Order Form.
(b) Reservation of Rights. Provider 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 Provider IP.
(c) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider 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; or (E) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(b)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider 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. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including 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.
(d) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider 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.
(e) Protection of Data. Provider will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of electronic data and information submitted by or for Customer and Authorized Users to the Services or collected and processed by or for Customer using the Services, excluding Third-Party Products. Those safeguards will include measures for preventing access, use, modification or disclosure of such data and information by Provider’s personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law or (c) as Customer expressly permits in writing.
3. Customer Responsibilities
(a) General. Customer is responsible and liable for all uses of the 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 shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. Provider may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. Further, the Services may contain features designed to interoperate with Third-Party Products. To use such features, Customer may be required to obtain access to Third-Party Products from their providers, and may be required to grant Provider access to Customer’s account(s) on the Third-Party Products. If the provider of a Third Party Material ceases to make the Third-Party Product available for interoperation with the corresponding Service features on reasonable terms, Provider may cease providing those Service features without entitling Customer to any refund, credit, or other compensation.
(c) Additional Customer Responsibilities. Customer will (a) use the Services only in accordance with the Documentation and applicable laws and government regulations, (b) comply with terms of service of Third-Party Products with which Customer uses Services, (c) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, and (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Provider promptly of any actual or suspected unauthorized access or use.
(d) Certain Usage Restrictions. Customer will not (a) make any Services available to, or use any Services for the benefit of, anyone other than Customer or to Authorized Users as set forth on an Order Form, (b) make any Services available to, or use any Service for the benefit of, any competitor of Provider, (c) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (d) use a Service 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 a Service to store or transmit Malicious Code (as defined below), (f) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (g) attempt to gain unauthorized access to any Service or its related systems or networks, (h) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (i) copy a Service or any part, feature, function or user interface thereof, (j) copy any Service except as permitted herein or in an Order Form or the Documentation, (k) frame or mirror any part of any Service , 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 Service in order to build a competitive product or service, (m) reverse engineer any Service, (n) create any derivative work based on any Service or (o) copy any features, functions or graphics of any Service. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, without limitation, viruses, worms, time bombs and Trojan horses.
4. Service Levels; Support
Provider will use commercially reasonable efforts to make the online Services available 24 hours per day, except for: (i) planned downtime (of which Provider shall give at least 8 hours electronic notice), and (ii) any unavailability caused by circumstances beyond Provider’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 Provider’s employees), Internet service provider failure or delay, Third-Party Products, or denial of service attack. Provider will provide its standard support for the Services to Customer at no additional charge.
5. Fees and Payment
(a) 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 (“Units”), (b) subscriptions for additional Units may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions for additional Units will terminate on the same date as the underlying subscriptions, and unless expressly agreed by Provider. 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 for additional quantifies of the applicable Services promptly upon Provider’s request, and/or pay any invoice for excess usage in accordance with this Agreement.
(b) Fees. Customer shall pay Provider the fees (“Fees”) as set forth on an Order Form without offset or deduction. 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 Provider’s other rights and remedies: (i) Provider 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 Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
(c) 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 Provider’s income.
(d) Auditing Rights and Required Records. Each of Provider 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 Provider 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 execution and delivery of confidentiality agreements. Further, no personnel of a competitor of a Party may participate in an audit of such Party.
6. Revenue Sharing
(a) General. No later than 30 days following the last day of each calendar quarter, Provider shall provide a copy of the Revenue Share Report for such quarter and pay Customer, in the manner agreed in writing (including by email) by Provider 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 Provider 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 Provider 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, Provider 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.
7. Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its 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, at the time of disclosure is: (a) in the public domain; (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. 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.
8. Intellectual Property Ownership; Feedback
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products, or have all rights necessary to use such Third-Party Products.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, but subject to the rights of providers of Third-Party Products 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 Provider (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 Provider to provide the Services to Customer, (y) for internal use by Provider for any lawful purpose and/or (z) for loan underwriting purposes and other financial reporting purposes, in each case, as requested by an Authorized User and (ii) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Customer acknowledges that if Provider may not lawfully provide to Customer data or other information that Provider 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.
(c) Feedback. If Customer or any of its employees, contractors or agents, or any Authorized Users, sends or transmits any communications or materials to Provider by mail, email, telephone, any electronic method or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider 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 Provider 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 Provider is not required to use any Feedback.
9. Provider Warranties; Disclaimer
(a) Warranties. Provider warrants that (a) Provider will provide the Services in a professional manner and in accordance with this Agreement, and (b) Provider 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).
(b) Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM, THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER 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. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, THE PROVIDER 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.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PROVIDER 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 PROVIDER, 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 PROVIDER IP OR ANY OTHER MATTER RELATING TO THIS AGREEMENT. PROVIDER MAKES NO WARRANTIES REGARDING THIRD-PARTY PRODUCTS.
(a) Provider Indemnification.
- Provider 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 Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’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 Provider determines that neither alternative is reasonably available, Provider 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 Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data 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) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider 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.
(c) Sole Remedy. This Section 10 sets forth the sole remedies of the Parties for matters described in this Section 10.
11. Limitations of Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING 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 REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER 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 CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 OR PROVIDER’S PAYMENT OBLIGATIONS UNDER SECTION 6.
12. Term and Termination
(a) 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 Provider 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.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
- Provider 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 Provider’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.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement or any Order Form, Customer shall immediately discontinue use of the Provider IP (or, in the case of expiration or termination of an Order Form, the Provider IP provided pursuant to such Order Form) and, without limiting Customer’s obligations under 7, Customer shall delete, destroy, or return all copies of such Provider IP and certify in writing to the Provider that such Provider IP has 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.
(d) Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 12(b)(ii) or 12(b)(iii), Provider 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 Provider 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 Provider for the period prior to the effective date of termination.
(e) Survival. This Section 12(e) and 1, 5, 6, 8, 9, 10, 11 and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, Schedules and Order Forms, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes 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 related Exhibits, Schedules and Order Forms, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits, Schedules and Order Forms; (ii) second, the Exhibits and Schedules, in each case, as of the Effective Date and any Order Forms; and (iii) third, any other documents expressly incorporated herein by reference.
(b) 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.
(c) 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 but not limited to 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 imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. 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.
(e) 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.
(f) 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.
(g) 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 Provider, 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.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 7 or, in the case of Customer, Section 2(c), 3(c) or 3(d), would 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 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.
(j) Agreement. BY CLICKING “I ACCEPT” ON 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.