DEFINITIONS and USAGE
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For purposes of this Agreement, the following terms shall have the meanings set forth below:
MEMBER Data: Information regarding MEMBER Property Management Services, including their nature,prices, and terms, whether in the form of text, photographs, or any other data format now known or hereafter discovered, that MEMBER has entered or caused to be entered into the COMPANY System.
MEMBER Services: Descriptions of which MEMBER has entered or caused to be entered into the COMPANY System of services provided.
MEMBERS: Employees and agents of MEMBER authorized by MEMBER to interact with the COMPANY system on MEMBER's behalf.
Confidential Information: Information or material proprietary to a party or designated "confidential" by the party and not generally known to the public that the other party may obtain knowledge of or access to as a result of this Agreement. Confidential Information includes, but is not limited to, the following types of information (whether in oral, visual, audio, written or other form): (a) IP addresses, access codes and passwords; (b) any information that either party obtains from any third party that the receiving party treats as proprietary or designates as Confidential Information, whether or not owned or developed by the receiving party; (c) any information designated as confidential or private by any applicable state, federal, local or other law, regulation or directive; and (d) any claims or evidence presented by any party under arbitration pursuant to paragraph 32. Confidential Information does not include information that is or becomes publicly available by other than unauthorized disclosure by the receiving party; independently developed by the receiving party; received from a third party who has obtained and disclosed it without breaching any confidentiality agreement; or already possessed by the receiving party at the time of its disclosure.
Non-MEMBER Data: All information in the COMPANY System that is not MEMBER Data, including data relating to other companies that supply property management and relating to their products and services.
Owners: Property owners seeking Property Management Services by means of the COMPANY System.
Permitted Uses: Use of the COMPANY System to market MEMBER Property Management Services to Owners.
COMPANY Marks: COMPANY's trade and service marks, including Property Management Search.
COMPANY Policies: COMPANY's policies regarding the operation of the COMPANY System, published on the COMPANY System, as they are amended from time to time.
COMPANY System: COMPANY's proprietary sales automation software system, which includes collecting, compiling, and disseminating information about Property Management Services. Property Management Services: Products and services relating to the leasing, maintenance, and other management functions performed on behalf of owners of real estate to be rented for residential and commercial purposes.
Standard Service Info: The standard industry information necessary for considering the purchase of Property Management Services, including pricing schedules, service descriptions, and licensure information, where applicable. COMPANY shall define the minimum Standard Service Info in the COMPANY Policies.
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As used in this Agreement (a) "including" means "including, without limitation"; (b) nouns and verbs of the singular and plural numbers, and nouns and pronouns of masculine, feminine, and neuter genders shall be interchangeable. The terms of the preceding sentence apply except where the context would make such an interpretation impractical.
INTELLECTUAL PROPERTY / GRANTS OF LICENSE
As between the parties (a) COMPANY owns all intellectual property, including copyrights, patents, and trade secrets, in the software and systems comprising the COMPANY System; and (b) MEMBER owns all intellectual property in the MEMBER Data.
During the term of this Agreement, COMPANY grants to MEMBER a non-exclusive, world-wide license to make copies of and display the COMPANY System only to the extent necessary to effect the purposes of this Agreement.
During the term of this Agreement, MEMBER grants to COMPANY a non-exclusive, world-wide license to make copies of, display, perform, and make derivative works of the MEMBER Data only to the extent necessary to effect the purposes of this Agreement.
All licensees hereunder shall terminate upon the termination of this Agreement. This Agreement is a non-exclusive license, and not a sale, assignment, or exclusive license. Each party retains all rights not expressly granted herein.
Neither party shall use the trade or service marks of the other party, including the COMPANY Marks,in any communication, verbal, written, or electronic, except to make factual statements about the relationship between the parties under this Agreement. During the term of this Agreement, neither party shall publicly disparage the marks of, or cast into doubt the quality of the products or services of, the other party.
ACKNOWLEGEMENTS
MEMBER acknowledges that COMPANY may revise the COMPANY Policies in COMPANY's sole and complete discretion, except as set forth in paragraph 18.
MEMBER acknowledges that COMPANY has no responsibility to exercise editorial control over the MEMBER Data. COMPANY nevertheless retains the right to delete from the COMPANY System any portion of the MEMBER Data that is, in COMPANY's reasonable judgment, offensive or unlawful.
MEMBER acknowledges that COMPANY provides no guarantee of sales or traffic to MEMBER's web site as a consequence of this Agreement. Consumer queries for Property Management Services will produce responses from the COMPANY System containing Non-MEMBER Data relating to the Property Management Services of other companies.
MEMBER acknowledges that it is solely responsible for the conduct of MEMBER Members it authorizes to access the COMPANY System or the MEMBER Data.
MEMBER acknowledges that Owners who purchase Property Management Services will be permitted to rate MEMBER and its Property Management Services on the COMPANY System, subject to the COMPANY Policies. MEMBER agrees that no comment of any Owner shall be the basis for any claim against COMPANY or the Owner accept as provided in this Agreement.
COMPANY'S OBLIGATIONS
COMPANY shall maintain the COMPANY System in good operating order. The COMPANY System shall be available via TCP/IP on the world-wide computer network known as the Internet.
COMPANY shall issue to MEMBER unique user IDs and passwords necessary for MEMBER to manage the MEMBER Data and access to it by MEMBER Members.
COMPANY shall use commercially reasonable efforts to deliver MEMBER Data and updates of it to Owners. Where Owners search for Property Management Services, and those searches result in matches against the services of other companies, COMPANY shall rotate the appearance of matching companies, rather than displaying them alphabetically or in any fixed order, to ensure that MEMBER and other companies receive equal exposure to consumers in the aggregate.
COMPANY will not display MEMBER's web site address on ads where MEMBER Property Management Services match the search criteria entered by Owners.
COMPANY shall maintain and update the COMPANY Policies, promptly informing MEMBER of all material changes to them at least 30 days in advance of the effective date of the changes. COMPANY may amend the COMPANY Policies in it sole discretion, except that it may not amend them so as to diminish the level of service MEMBER receives.
COMPANY warrants that the COMPANY System (a) does not infringe the rights, including intellectual property rights, of any third party; and (b) does not violate any applicable law.
MEMBER'S OBLIGATIONS
MEMBER shall enter the MEMBER Data into the COMPANY System. For each of MEMBER's services or products, MEMBER shall enter at a minimum the Standard Service Info.
MEMBER agrees to use the COMPANY System solely for the Permitted Purposes under this Agreement; any other use is strictly prohibited. Under no circumstances is MEMBER permitted to disclose the COMPANY System, its designs, or COMPANY's Confidential Information to any competitor of COMPANY, or to use any of the foregoing for purposes of developing any software or system that will compete with the COMPANY System.
Under no circumstances is MEMBER permitted to use the COMPANY System for the purpose of gathering competitive intelligence regarding other property management companies or their pricing. Without limiting the generality of the preceding sentence, MEMBER shall not use the COMPANY System to gather or communicate information to allow it to coordinate or fix the prices for Property Management Services.
MEMBER shall maintain the security of all user IDs and passwords. COMPANY shall bear no responsibility for disclosures of MEMBER's Confidential Information due to MEMBER's failure to comply with this paragraph.
MEMBER shall provide all equipment and services necessary for it to obtain access to the Internet (and thus to the COMPANY System). COMPANY shall bear no responsibility for the performance of third parties MEMBER has engaged to provide such products and services.
MEMBER warrants that it holds all licenses and certifications required by law to offer the MEMBER’s Property Management Services. If MEMBER breaches the terms of this paragraph, COMPANY shall be entitled to terminate this Agreement immediately, retaining all other remedies available to it, and without any obligation to make a pro rata refund of fees to MEMBER.
MEMBER warrants that the MEMBER Data (a) does not infringe the rights, including intellectual property rights, of any third party; (b) does not violate any applicable law; and (c) provides an accurate representation of the MEMBER Property Management Services in all material respects. MEMBER shall not make any warranties or representations to any third party on behalf of COMPANY; without limiting the generality of the foregoing, MEMBER shall not represent that COMPANY warrants the MEMBER Property Management Services.
MEMBER shall pay the initial and periodic fees set forth in Exhibit A according to the payment terms disclosed in Exhibit A. Except as expressly provided in this Agreement, in the event this Agreement terminates before the expiration of its then-current term for any reason other than breach by COMPANY, MEMBER shall not be entitled to any refund of fees already paid to COMPANY, and MEMBER shall be liable to COMPANY for any fees due but not paid at the time of termination. In the event any amount due COMPANY remains unpaid for 30 days or more, COMPANY may suspend its obligations under this Agreement and MEMBER's access to the COMPANY System, without terminating this Agreement, until such time as MEMBER's account is current.
CONFIDENTIAL INFORMATION
Each party shall protect the Confidential Information of the other party with the same degree of care it takes to protect its own sensitive business information of like kind, but in no event less than reasonable care. A party may disclose Confidential Information of the other party if such disclosure is required by law or court order; provided, however, that the disclosing party makes commercially reasonable efforts to notify the other in writing in advance of disclosure.
Within five days after termination of this Agreement, each party shall (a) return to the other party all Confidential Information of the other party; (b) erase or destroy Confidential Information of the other party stored on magnetic media or other computer storage, including system backups; and (c) at the other party's request, certify in writing that all materials have been returned or destroyed.
TERM AND TERMINATION
The term of this Agreement begins on the Effective Date and shall continue for successive one year terms or until terminated in accordance with the terms of this paragraph. This Agreement shall terminate upon the occurrence of any one or more of the following events: (a) 30 days after any party's notice to the other that the other has breached this Agreement, provided the breach remains uncured; (b) upon COMPANY's notice to MEMBER that COMPANY is terminating this Agreement without cause, provided COMPANY makes a pro rata refund of MEMBER's fees hereunder for the period between the termination and end of the term for which MEMBER has paid; (c) upon either party's voluntary or involuntary petition in bankruptcy, entry into receivership, or assignment of assets for the benefit of creditors; and (d) as provided in paragraph 25.
GENERAL PROVISIONS
Applicable law. This Agreement shall be governed by and interpreted according to the laws of the State of Connecticut, without regard to its conflicts and choice of law provisions. The parties hereby exclude from application to this Agreement the United Nations Convention on Contracts for the Sale of Goods and the Uniform Computer Information Transactions Act (UCITA).
Arbitration; Attorney's fees. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules, including its Optional Rules for Emergency Measures of Protection (collectively, the "Arbitration Rules"), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any arbitration under this Agreement shall be held at a location selected by the AAA within 30 miles of COMPANY's principal place of business. The parties irrevocably agree, consent, and submit themselves to personal jurisdiction in the courts of the State of Connecticut or the federal court of the United States situated therein, as applicable, which shall have sole and exclusive jurisdiction over any action under this Agreement not subject to arbitration. If any party prevails in an action or proceeding to enforce or interpret this Agreement or any provision hereof, it shall be entitled to its reasonable attorney's fees and costs in the action or proceeding. MEMBER agrees to submit any dispute with an Owner regarding the content of any Owner review on the COMPANY System to arbitration subject to this paragraph. The arbitrator(s) may order, as a remedy in any such dispute, that COMPANY remove or modify the Owner review.
Indemnification. Subject to paragraph 34, in the event a party breaches any provision of this Agreement, that party (the Indemnifying Party) shall indemnify the other party, its subsidiaries and affiliated companies, and all their respective employees, directors, agents, and authorized successors and assigns (the Indemnified Parties), against any and all losses, damages, and costs (including reasonable attorneys' fees) arising from each claim of any third party resulting from the breach. The Indemnified Parties shall (a) promptly notify the Indemnifying Party of any claim and give the Indemnifying Party the opportunity to defend or negotiate a settlement of any such claim at the Indemnifying Party's expense, and (b) cooperate fully with the Indemnifying Party, at the Indemnifying Party's expense, in defending or settling any claim.
Limitation of liability/exclusion of warranties. IN THE EVENT OF ANY INTERRUPTION IN THE COMPANY SYSTEM, MEMBER'S SOLE AND EXCLUSIVE REMEDIES SHALL BE TO OBTAIN A PRO RATA REFUND OF FEES FOR THE PERIOD OF THE INTERRUPTION AND TO TERMINATE THIS AGREEMENT PURSUANT TO PARAGRAPH 30. In no event shall COMPANY be liable to MEMBER for any OTHER DAMAGES, INCLUDING DIRECT indirect, incidental, consequential, special, or punitive damages (even if COMPANY has been advised of the possibility of such damages), or lost profits arising from this agreement or any breach of it. In no event shall COMPANY be liable to MEMBER for any amount in excess of the Fees MEMBER HAS paid COMPANY in the year immediately preceding the first event giving rise to any claim for damages. MEMBER acknowledges that COMPANY PROVIDES THE COMPANY SYSTEM without representations or warranties of any kind, either express or implied, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. MEMBER IS SOLELY RESPONSIBLE FOR THE CONTENT OF THE MEMBER DATA, AND COMPANY shall not be liable to MEMBER for any claim arising from inaccuracies in the MEMBER DATA, any failure to update the MEMBER Data promptly, or the MEMBER Data's inadequacy for any particular use, whether personal or commercial.
Limitations Essential to Bargain. MEMBER stipulates that it has consulted its legal counsel before entering this Agreement. COMPANY has set its prices and service levels based upon the limitations of liability, exclusions of warranty, indemnification, and dispute resolution provisions of this Agreement; as such, the same constitute essential terms of the bargain between the parties.
Relationship of the Parties. The relationship of COMPANY to MEMBER is that of independent contractors. Neither party shall be deemed to be the agent, partner, joint venturer, franchisor or franchisee, or employee of the other party or have any authority to make any agreements or representations on the behalf of the other party. Each party shall be solely responsible for the payment of compensation, insurance, and taxes of its own employees.
Notice. All notices to be given under this Agreement shall be by personal service, U.S. Mail (return receipt requested), facsimile transmission (if transmission confirmation is retained), or electronic mail (if sender receives a return receipt) to the parties at their respective addresses set forth herein or suchother address of which either party may advise the other in writing during the term of this Agreement; and shall be effective the earlier of the date of receipt or three days after mailing or other transmission.
No Waiver. No waiver or modification of this Agreement or any of its terms is valid or enforceable unless reduced to writing and signed by both parties.
No Assignment. MEMBER may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of COMPANY. Any purported assignment or delegation in contravention of this paragraph is null and void, and shall immediately cause this Agreement to terminate.
Entire Agreement. Subject to COMPANY Policies, this Agreement contains the full and complete understanding of the parties regarding the subject matter of this Agreement and supersedes all prior representations and understandings, whether oral or written, relating to the same.
Survival of Obligations. The "Definitions," "Confidential Information," and "General" provisions of this Agreement shall survive its termination or expiration in perpetuity.
Severability. Each provision of this Agreement is severable from the whole, and if one provision is declared invalid, the other provisions shall remain in full force and effect. Subject to paragraph 35, in the event that any provision of this Agreement is held invalid or unenforceable by a court having jurisdiction over the parties, the invalid or unenforceable provision shall be replaced, if possible, with a valid provision which most closely approximates the intent and economic effect of the invalid provision.