1. Definitions.
1.1 “Customer Data” means all data and information submitted or otherwise transmitted to the Service by Customer, its agents or service providers, including SmartProperty, which may be engaged by Customer to generate and submit data to the Service on behalf of Customer.
1.2 “Order Form” means one or more ordering documents that the parties mutually execute from time to time and which specify the details of the Services and any Professional Services. The term “Order Form” means an Order Form incorporating the terms of this Agreement.
1.3 “Professional Services” means the implementation, training, consultation, or other professional services described in an Order Form. Professional Services include, for example, any asset data generation and delivery services provided by SmartProperty that are described in an Order Form.
1.4 “Service(s)” means the online interactive software solution provided by SmartProperty that is identified in an Order Form.
1.5 “Service Term” means the subscription period(s) specified in an Order Form.
2. Service.
2.1 Orders and Access. These Terms and Conditions (this “Agreement“) are incorporated into each Order Form. Subject to Customer’s payment of applicable fees and compliance with the terms of each Order Form, during the applicable Service Term SmartProperty will make the Service and any purchased Professional Services available to Customer solely for Customer’s internal business purposes relating to the processing of Customer’s and its customer’s business data. SmartProperty will not materially decrease the functionality of the Service during the Service Term.
2.2 Security/Data: Responsibility. During the Service Term, SmartProperty will maintain reasonable administrative, physical, and technical safeguards designed for the protection and confidentiality of Customer Data at least as rigorous as the safeguards SmartProperty employs to protect its own data. If SmartProperty detects or becomes aware of any breaches of security or unauthorized access affecting Customer Data, SmartProperty will promptly report such security breach or unauthorized access to Customer. SmartProperty does not provide data backup services. SmartProperty is not responsible for any damages resulting from loss of data.
2.3 Professional Services. SmartProperty may perform Professional Services as described in an Order Form or related statement of work. SmartProperty will provide such resources and utilize such SmartProperty employees, consultants and subcontractors as SmartProperty deems necessary to perform such services. Unless otherwise stated in an Order Form, any software or other materials developed by SmartProperty during the provision of Professional Services will be owned by SmartProperty. SmartProperty hereby grants to Customer a non-exclusive right to access, copy, modify, and use such developed materials solely for purposes of accessing and using the Service during the Service Term.
3. Customer Obligations.
3.1 Restrictions. Customer will not attempt to interfere with or disrupt the Service or attempt to gain access to any systems or networks that connect to the Service except as required to access and use the Service for its internal business purposes as permitted by SmartProperty. By way of example, Customer will not perform benchmark testing on the Service or otherwise evaluate or analyze the Service for purposes of developing or providing another product or service. Customer will not permit access to the Service by any third party. Customer will not: (a) copy, modify or distribute any portion of the Service; (b) rent, lease, or provide access to the Service on a time share or service bureau basis; (c) reverse engineer the Service (except to the extent such restriction is not allowed under law); or (d) transfer any of Customer’s rights hereunder. Customer will not permit any third party to do any of the foregoing.
3.2 Acceptable Use Policies. Customer will use the Service in a matter consistent with all applicable laws, regulations and the rights of others. Customer will use the Services only in compliance with SmartProperty’s policies then in effect. Customer will keep confidential and not disclose to any third party any user identifications, account numbers, or account profiles. Customer is solely responsible for all activities that occur in Customer’s or its users’ account(s) and for the security of any Customer and user passwords.
3.3 Marketing. Customer will comply with reasonable requests of SmartProperty to support public relations efforts pertaining to the Service, which efforts may include: (a) a press release highlighting Customer’s purchase or use of the Service; (b) participation in targeted press and analyst interviews highlighting benefits of implementing the Service; and (c) participation in customer case studies developed by SmartProperty and used on the SmartProperty websites and other collateral, provided however that SmartProperty will not engage in any of the activities described in this Section without Customer’s prior written approval, which will be timely given and not unreasonably withheld.
3.4 Enforcement. SmartProperty may suspend or terminate any user’s access to the Service upon notice to Customer in the event that SmartProperty reasonably determines that such user has violated the terms and conditions of this Agreement or that such access is having a materially detrimental impact on SmartProperty, Customer, any other SmartProperty customer, or the public.
3.5 Personal Data. Customer acknowledges that Customer is responsible for obtaining all necessary consents and permissions for submission of Customer Data and processing instructions to SmartProperty. With respect to personal data Customer submits to the Service, Customer is considered the “data controller” and SmartProperty is considered the “data processor.” Customer will not permit sensitive information (including government issued identification numbers, financial account information, payment card information and personal health information) to be delivered to the Service except with SmartProperty’s prior written approval.
4. Fees; Payment.
4.1 Fees. Customer will pay all fees and charges to Customer’s account pursuant to the applicable Order Form as invoiced by SmartProperty. SmartProperty may change the amount of fees or institute new fees at any time upon notice to Customer provided by email, through the service, or otherwise. Such changes or new fees will become effective upon beginning of the next Renewal Period or other billing cycle, and if there is no established period under and Order Form, then 30 days after delivery of such notice to Customer. Unless otherwise stated in an Order Form, amounts are due and payable within 30 days following the date of invoice. Except as otherwise stated in an Order Form, (a) fees will be invoiced in US Dollars annually in advance of service, (b) fees are based on the Service subscription(s) purchased as indicated in an Order Form and not actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable unless otherwise provided herein, and (d) the number of subscriptions purchased will not be decreased during the relevant Service Term. If Customer believes that SmartProperty has invoiced Customer incorrectly, Customer will contact SmartProperty Customer Support no later than 60 days after the closing date on the first billing statement in which the claimed error or problem appeared, in order to be eligible for credit or other adjustment. Customer will provide SmartProperty with complete and accurate billing and contact information, and update such information as needed by contacting SmartProperty Customer Support.
4.2 Taxes. All fees are exclusive of all applicable taxes, levies, or duties, and Customer will be responsible for payment of such, excluding taxes based solely on SmartProperty’s income.
4.3 Effect of Nonpayment. This Agreement and Customer’s access to the Service may be suspended or terminated if Customer’s account falls into arrears. Unpaid amounts may be subject to interest at the lesser of 1.5% per month or the maximum permitted by law plus all collection costs. Suspension will not relieve Customer’s obligation to pay amounts due for the full Service Term. Upon termination of this Agreement for failure to pay fees, Customer will pay the balance due on Customer’s account.
5. Ownership and Data.
As between SmartProperty and Customer, the Service, and all intellectual property rights therein or relating thereto, are and will remain the exclusive property of SmartProperty or its licensors. SmartProperty reserves all rights not expressly granted in this Agreement. Customer hereby grants to SmartProperty a non exclusive license to use, reproduce, distribute copies of and make available the Customer Data as necessary to provide the Service. Customer owns all right, title, and interest in and to the Customer Data. Customer grants to SmartProperty a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to incorporate and use, commercialize and distribute with the Services any suggestions, recommendations or other feedback specifically relating to the Services as Customer in its discretion may elect to provide and to create derivate works of the same. Notwithstanding anything to the contrary in this Agreement or elsewhere, SmartProperty may monitor Customer’s use of the Services, use and analyze Customer Data for purposes of developing and improving SmartProperty products and services, and compile statistical and performance information related to Customer Data and the provision and operation of the Services. SmartProperty may make such statistical and performance information publicly available in an anonymized and aggregated manner. SmartProperty retains all intellectual property rights in the results of such analysis, and statistical and performance information.
6. Confidentiality.
6.1 Definition. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within 30 days after any such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity, Customer Data is considered to be Confidential Information of Customer.
6.2 Exclusions. The obligations and restrictions set forth below will not apply to any information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
6.3 Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees, consultants, service providers and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such party is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to or better than the efforts that the receiving party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care.
6.4 Permitted Disclosures. The provisions of this Section will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.
7. Warranties; Disclaimers.
7.1 By Each Party. Each party represents and warrants that it has the power and authority to enter into this Agreement and that its respective provision and use of the Service is and will be in compliance with laws applicable to such party.
7.2 By SmartProperty. SmartProperty warrants and represents that the applicable Service, when used in accordance with the Service documentation provided by SmartProperty (the “Documentation“) and this Agreement, will substantially conform to the specifications for such Services expressly set forth in the Documentation during the Service Term. Customer’s sole and exclusive remedy and SmartProperty’s entire liability for any breach of this Section shall be as follows: SmartProperty will have 60 days after written notice to deliver a correction that resolves the nonconformity of the Service with this Section or shall refund to Customer any prepaid fees paid under this Agreement in a prorated amount based on the remaining days in the Service Term, and all remaining obligations under this Agreement will terminate. SmartProperty warrants and represents that Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards.7.3 By Customer. Customer represents and warrants that Customer has the right to deliver or have delivered the Customer Data to SmartProperty and otherwise process the Customer Data through the Service in connection with this Agreement, that Customer’s instructions for use of Customer Data in the Service do not and will not violate the terms or conditions of this Agreement, any other agreement, or applicable law, and that Customer Data does not and will not infringe or misappropriate any third party’s copyright, trademark, trade secret, or other rights.
7.3 By Customer. Customer represents and warrants that Customer has the right to deliver or have delivered the Customer Data to SmartProperty and otherwise process the Customer Data through the Service in connection with this Agreement, that Customer’s instructions for use of Customer Data in the Service do not and will not violate the terms or conditions of this Agreement, any other agreement, or applicable law, and that Customer Data does not and will not infringe or misappropriate any third party’s copyright, trademark, trade secret, or other rights.
7.4 WARRANTY DISCLAIMERS. CUSTOMER ACKNOWLEDGES THAT THE RESULTS OF THE SERVICE, INCLUDING DATA AND ANALYSIS, (“SERVICE DATA“) MAY BE PROVIDED BY THIRD PARTIES AND MAY CONTAIN ERRORS AND ARE NOT SUITABLE FOR ALL PURPOSES. CUSTOMER, AND NOT SMARTPROPERTY, IS RESPONSIBLE FOR DETERMINING WHETHER SERVICE DATA IS SUFFICIENTLY ACCURATE FOR THE PURPOSE USED BY CUSTOMER AND SMARTPROPERTY AND ITS SUPPLIERS MAKE NO WARRANTY AS TO THE ACCURACY OR CONTENT OF SERVICE DATA. CUSTOMER ACKNOWLEDGES THAT THE SERVICE MAY CONTAIN ERRORS, BUGS, AND OTHER DEFECTS. EXCEPT AS EXPRESSLY WARRANTED ABOVE, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY SMARTPROPERTY AND ITS SUPPLIERS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS.” THE FOREGOING WARRANTIES DO NOT APPLY TO ANY SERVICES OR PROFESSIONAL SERVICES PROVIDED ON A FREE OR EVALUATION BASIS, WHICH ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. SMARTPROPERTY AND ITS SUPPLIERS DISCLAIM ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION OR OTHER DAMAGE RESULTING FROM PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS AND FOR ANY OTHER CAUSES OUTSIDE OF ITS CONTROL
8. Indemnity.
8.1 Indemnity by SmartProperty. SmartProperty will defend any suit or action brought against Customer to the extent that it is based upon a third-party claim that the Service or result of the Professional Services, as provided by SmartProperty to Customer pursuant to this Agreement, infringes any patent, copyright, trade secret, or other intellectual property right of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim, including any award in final judgment against or paid in settlement by Customer. If SmartProperty becomes aware of a claim alleging infringement or misappropriation, or SmartProperty reasonably believes such a claim will occur, SmartProperty may, at its sole option: (a) obtain for Customer the right to continue use of the Service or other deliverable; (b) replace or modify the Service so that it is no longer infringing; or, (iii) if neither (a) nor (b) is reasonably available to SmartProperty, terminate the Service, in which case SmartProperty’s sole liability (in addition to the indemnification obligations set out in this Section) is to refund to Customer a prorated amount of any prepaid fees for the Service applicable to the remaining period (from the date SmartProperty is notified of the infringement claim by Customer) in the then-current Service Term.
8.2 Indemnity by Customer. Customer will defend any suit or action brought against SmartProperty to the extent that it is based upon breach by Customer of Sections 3.2 (Restrictions) or 3.2 (Acceptable Use) or on a claim that the Customer Data, as provided by Customer to SmartProperty, infringes any patent, copyright, trade secret, or other intellectual property right or other right of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim, including any award in final judgment against or paid in settlement by SmartProperty.
8.3 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim; and (c) providing to the indemnifying party all available information and assistance resulting from the claim, at the indemnifying party’s request and expense. The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement). Neither party may settle any claim that includes a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought without that party’s prior written consent. THE PROVISIONS OF THIS SECTION FORTH EACH PARTY’S SOLE AND EXCLUSIVE OBLIGATIONS AND REMEDIES WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
9. Term and Termination.
9.1 Term and Termination. Each Order Form will commence on its execution by the parties and unless terminated earlier in accordance with its terms will remain in force and effect for the Service Term set forth therein (“Initial Service Term“). Unless otherwise stated in the applicable Order Form, the Service Term will automatically renew for consecutive periods of the same duration as the Initial Service Term (each, a “Renewal Term“) unless either party provides at least 30 days written notice of non-renewal to the other party. Unless otherwise stated in the applicable Order Form, the fees applicable to any Renewal Term will be (a) as notified by SmartProperty to Customer (by email, through the Service, or otherwise) no less than 45 days prior to the conclusion of the then-current term or (b) if no such fee notice is provided by SmartProperty, then fees charged by SmartProperty in its then-current price list. An Order Form will terminate in the event of breach of a material term of this Agreement by a party 30 days after written notice of such breach by the other party, unless the breaching party cures such breach within such period. Either party may terminate an Order Form immediately upon written notice in the event the other party (i) becomes insolvent or files or has filed against it a petition in bankruptcy (which is not dismissed within 30 calendar days after it is filed); (ii) makes an assignment for the benefit of creditors; or (iii) dissolves or ceases to do business in the ordinary course.
9.2 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of an Order Form, Customer’s right to access and use the Service will immediately terminate, Customer will immediately cease all use of the Service, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.
9.3 Survival. The rights and obligations of SmartProperty and Customer contained in Sections 1 (Definitions), 4 (Fees), 5 (Ownership and Data), 6 (Confidentiality), but only with respect to previously-disclosed Confidential Information, 7.4 (Disclaimer), 9.2 (Rights and Obligations Upon Expiration or Termination), 10 (Limitation of Liability), and 11 (General) will survive any expiration or termination of this Agreement.
10. LIMITATION OF LIABILITY.
IN NO EVENT WILL (A) SMARTPROPERTY OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SMARTPROPERTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE AND (B) SMARTPROPERTY’S AND ITS SUPPLIER’S AGGREGATE LIABILITY TO CUSTOMER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE SERVICES AND PROFESSIONAL SERVICES EXCEED THE AMOUNTS PAID BY CUSTOMER TO SMARTPROPERTY IN THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
11. GENERAL.
This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement may be brought on a non-exclusive basis in courts located in San Diego County (if state court) or the Northern District of California (if federal court). SmartProperty and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding. Each party hereby waives any right to a jury trial. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. All notices, including notices of address change, required to be sent hereunder will be in writing and will be sent to the addresses in the applicable Order Form. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event“). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. Customer may not assign or transfer this Agreement, in whole or in part, without SmartProperty’s prior written consent. SmartProperty may freely assign or transfer this Agreement and any Order Form by operation of law or otherwise. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties. This Agreement, including the Order Forms and the Exhibits, constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. In the event of an inconsistency between mutually executed Order Form and this Agreement, the terms of the Order Form will prevail to the extent of such inconsistency.