Terms & Conditions USA

Terms & Conditions USA

1. Services

1.1         In consideration of your payment of the Fees, we will provide the Services in accordance with these Terms and Conditions (together with the Order to which these Terms and Conditions are attached, and any Statement of Work, the Agreement), whether ourselves or through our Personnel. The Services are as follows: (a) provision of the SaaS Solution; (b) the Hosting and Backup Services; (c) the Implementation Services; and (d) the Support Services (collectively, the Services).

1.2         We may perform Additional Services (which are in addition to the above Services), as may be agreed in writing between the Parties in accordance with the terms of this Agreement.

1.3         We will provide the Implementation Services during the Implementation Period. We will provide the Support Services on and from the start of the Implementation Period and will continue providing the Support Services throughout the Term. We will provide you with access to the SaaS Solution and Hosting and Backup Services on completion of the Implementation Services, or as specified in the Order.

2. SaaS License

2.1         In consideration of your payment of the Fees, we will supply you with the SaaS Solution in accordance with the Order and/or Statement of Work.

2.2         During the Term, and subject to your compliance with this Agreement, we grant you and your Authorized Users a non-exclusive, non-transferable, non-sublicensable and revocable license to access and use the SaaS Solution solely for your business purposes and as contemplated by this Agreement (SaaS License).

3. Authorized Users

3.1         Your Authorized Users include the Administrators, Designated Employee, lot owners, tenants, property managers and third party contractors.

3.2         You will ensure each Authorized User complies with the terms of this Agreement.

3.3         Each Authorized User must agree to our End User License Agreement, Privacy Policy and DMCA Policy in order to access the SaaS Solution.

3.4         You may request in writing that additional Authorized Users be granted a license to access the SaaS Solution (or to upgrade a particular Authorized User to a different access tier), in accordance with clause 18.

4. Account

4.1         You will require an Account in order to access and use the SaaS Solution.

4.2         Each Authorized User will require a login (which is linked to your Account), in order to access and use the SaaS Solution.

4.3         You must ensure that any information provided to us for any Account or login is accurate and complete, and you warrant that you are authorized to provide this information to us.

4.4         You and your Authorized Users must keep your Account and login details secure and confidential. You agree to immediately notify us if you become aware of, or have reason to suspect, any suspicious or unauthorized access to your Account or use of any login details linked to your Account.

4.5         We may suspend access to your Account where we reasonably believe there has been any unauthorized use of or access to the SaaS Solution. Where we do so, we will notify you within a reasonable time of the suspension occurring, and the Parties will work together to resolve the matter.

5. SaaS License – Additional Conditions of Use

5.1             You must not (and you must ensure that each Authorized User does not): (a) access or use the SaaS Solution except as permitted by the SaaS License, or other than through the interface that is provided by us; (b) access or use the SaaS Solution in any way that is improper or breaches any Laws, infringes any person’s rights (including Intellectual Property Rights and privacy rights), or gives rise to any civil or criminal liability; (c) interfere with or interrupt the supply of the SaaS Solution or our System, or any other person’s access to or use of the SaaS Solution; (d) introduce any Harmful Code into the SaaS Solution or our System; (e) directly or indirectly use, copy, decompile or reverse engineer the SaaS Solution; (f) allow others to access or use your Account (or in the case of Authorized Users, their login details), including any password or authentication details; (g) use the SaaS Solution to carry out security breaches or disruptions of a network; (h) attempt to access any data or log into any server or account that you are not expressly authorized to access; (i) circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; (j) access or use the SaaS Solution to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted; (k) transfer, license, sub-license (other than as expressly permitted to end users), assign or distribute the SaaS Solution or any Services; (l) sell, rent, lease, transfer, assign or exploit the SaaS Solution or Services other than as provided in this Agreement; or (m) use the Platform or SaaS Solution as a data repository for Your Data or Your Materials.

5.2         You shall ensure that your Authorized Users’ data and Your Data and Your Materials are saved, protected and maintained on your own storage system, which shall not be a part of the Platform or SaaS Solution.

6. Availability

6.1         From time to time, we may perform such reasonable scheduled and emergency maintenance and updates in relation to the SaaS Solution in order to continue to supply the SaaS Solution to you and our other customers (Scheduled or Emergency Maintenance). You agree that access to, or the functionality of all or part of the SaaS Solution, may need to be suspended for a time in order for us to perform Scheduled or Emergency Maintenance, and to the maximum extent permitted by law, we will not be liable to you for any interruptions or downtime to the SaaS Solution as a result of any Scheduled or Emergency Maintenance.

6.2         We will endeavor to provide you with reasonable notice, where possible, of any interruptions to access and availability of the SaaS Solution.

7.           Third Party Inputs

• You acknowledge and agree that the Services may interact with, or be reliant on, certain Third Party Inputs, including your operating system, web browser, the Google Play Store and/or Apple App Store, and the Payment Portal.
• You acknowledge and agree that, unless we have expressly agreed to provide the services described in this clause 7.2 in the Order: (a) you are responsible for obtaining and managing all licenses for the relevant Third Party Inputs; (b) you are responsible for paying all fees related to the Third Party Inputs; and (c) you agree to comply with terms and conditions applicable to the relevant Third Party Inputs at all times.
• We do not make any warranty or representation in respect of any Third Party Inputs.
• Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with any Third Party Inputs, subject to clause 7.5.
• Should any unavailability, error or change to a Third Party Input have a substantial and adverse impact on your use and enjoyment of the Services: (a) you agree to notify us in writing within 10 days of the change coming into effect; and (b) following receipt of such notice by us, the Parties will use all reasonable endeavors to work together to resolve the matter.
• This clause 7 will survive the termination or expiry of this Agreement.

8. Implementation Services

8.1         In consideration of your payment of the Implementation Service Fee as provided on the Order(s) or Statement of Work (Implementation Service Fee), we will supply you with the Implementation Services (Implementation Services).

8.2         Prior to us supplying the Implementation Services, you agree to: (a) make a backup of any relevant data in your Systems which is to be the subject of, or to be used in the performance of, the Services; (b) make a written note or make a backup of any configuration settings or information stored in your Systems; (c) make a plan to restore your Systems in the event that they are corrupted or lost; (d) notify any relevant parties of any planned outages or downtime necessary for the performance of the Implementation Services; (e) provide us with all information that is within your knowledge in relation to the System which would be reasonably necessary for us to know in order to perform the Implementation Services; and (f) where the equipment in your System is a computer, download and install any available: (1) security and protection updates for the operating system you use; and (2) updates to virus checking and other computer protection software you use.

8.3         You acknowledge and agree that not undertaking your obligations under clause 8.2 may impact on the results or the performance of the Services, and we will not be liable to you for any Liability to the extent caused or contributed to by your failure to comply with clause 8.2.

8.4         You may elect to add on the Implementation Services by executing a new order or Statement of Work with us at any time.

9. Support Services

9.1         In consideration of your payment of the Fees, we will supply you with the Support Services in accordance with Schedule A.

9.2         In order for you to receive the Support Services, the Designated Employee must place a request in writing or through our online portal.

9.3         Unless otherwise agreed, support under this Agreement is not to be used to support any other products or services and does not include training, installation of software or hardware, software development or the modification, deletion or recovery of data or any on-site services.

9.4         You agree to the reasonable usage of the Support Services. Where we consider your usage of the Support Services to be unreasonable, or unreasonably above average (compared with our other customers): (a) we agree to notify you in writing of our concerns; and (b) following your receipt of such notice, the Parties will use all reasonable endeavors to work together to resolve the matter.

9.5         If:  (a) we have provided you with the notice in accordance with clause 9.4(a); and (b) the Parties are unable to resolve the matter pursuant to clause 9.4(b), we may (at our discretion): (a) adjust our response time accordingly; and/or (b) vary the Fees to reflect your increased use of our limited resources, effective on and from us giving you written notice of the new Fees; or (c) terminate this Agreement by giving 30 days’ notice in writing to you, in which case clause 25.2 will apply.

10.         Hosting and Backup Services

10.1      We will provide hosting and backup of all information and data that is generated by your users through the SaaS Solution (Hosting and Backup Services).

10.2      We will use reasonable endeavors to maintain Your Data collected in connection with the use of the SaaS Solution for a maximum of 12 months from the creation of Your Data, after which Your Data may be deleted, discarded or destroyed.

10.3      At your request, we may, on payment of the applicable fee: (a) maintain Your Data for a subsequent period of time exceeding the period above; or (b) make Your Data available to you after the termination of this Agreement.

10.4      We will store up to 1 terabyte of Your Data per calendar month.  If more than 1 terabyte of Your Data is downloaded through the SaaS Solutions in a calendar month, you will be charged an additional $250 (plus applicable taxes) per month.

10.5      Additional hosting or back up of anything not specifically listed in this Agreement is out of scope and must be requested as an Additional Service, in accordance with clause 13.

10.6      We reserve the right to perform maintenance and upgrades at any time and from time to time.

10.7      We will use commercially reasonable endeavors to: (a) provide you with reasonable notice of maintenance and upgrades relevant to the Hosting and Backup Services by sending you an email about any scheduled maintenance or upgrades that will result in a prolonged outage; or (b) notify you as soon as practicable after becoming aware of the need for unscheduled maintenance relevant to the Hosting and Backup Services that will result in a prolonged outage.

10.8      In the event of a failure in the Hosting and Backup Services, we will use commercially reasonable endeavors to restore Your Data that is affected. However, you acknowledge that there may be situations in which Your Data cannot be recovered or Your Data retained may be out of date. To the maximum extent permitted by law, you agree that this clause 9.8 sets out our entire obligation with respect to disaster recovery and loss of Your Data in connection with the Hosting and Backup Services.

11. Additional Services

11.1      You may request Additional Services, including support and assistance on a consultancy basis, development services, or bespoke customization to the scope or functionality of the SaaS Solution, by providing written notice to us.

11.2      We may, at our discretion, provide you with written notice in the form of a statement of work, setting out (among other things) the Additional Services requested and any further fee required for us to undertake the Additional Services (Statement of Work).

11.3      Any Statement of Work for Additional Services must be on our standard form and signed by both Parties before we will proceed to providing the Additional Services to you. The Additional Services will be provided to you in consideration for payment of the additional fee, which will be stated on the Statement of Work and will form part of the Fees.

11.4      Each Statement of Work will be subject to, and will be governed by, this Agreement and any other conditions agreed to by the Parties in writing. To the extent of any ambiguity or discrepancy between a Statement of Work and this Agreement, the terms of this Agreement will prevail.

12. Security

12.1      Subject to the terms of this Agreement, we will establish and maintain appropriate, reasonable technical and organizational security measures in accordance with good industry practice to keep Your Data secure.

13. Security Incidents

13.1      If either Party becomes aware of or reasonably suspects that a security incident has occurred arising from our provision of the Services, such that Your Data has or may have been compromised (for example, unauthorized access) (each a Security Incident), that Party must promptly notify the other Party and we agree to, within a reasonable time: (a) attempt to determine whether a Security Incident has occurred, and where one has, the cause and impact of it on Your Data; and  (b) where a Security Incident is deemed to have occurred, remediate the Security Incident to the extent that this is operationally, commercially and technically feasible.

13.2      You agree that we may suspend the Services where a Security Incident has or may have occurred and this is considered necessary or prudent (as determined by us, at our reasonable discretion) to address or deal with the Security Incident.

13.3      If the incident triggering the Security Incident was caused or contributed to by you (or any Authorized User), you will be liable for those costs reasonably and necessarily incurred by us arising from the Security Incident.

14.         Notifiable Data Breaches

14.1      If as a result of our investigations in accordance with clause 13.1 of this Agreement, we believe a Security Incident has occurred that we consider to be notifiable under our Privacy Policy, we will follow the procedure provided in our Privacy Policy.

14.2      Where we do not have the contact details of affected individuals, we will provide you with a statement to provide to affected individuals.

15. Variations

15.1      You may request a variation or change to the Services, including the timing for the provision of the Services, or a change to the number of Lots Under Management (Variation), by providing written notice (including by email and our online portal) to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless we accept the Variation Request in writing. The Parties agree to comply with this Agreement as varied by any Variation Request accepted in writing.

15.2      If we consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with this clause 16.

15.3      Any Variation will apply within a reasonable time after our acceptance of your Variation Request, and if applicable, any increase to the Fees will be charged on a pro-rata basis if such increase occurs during the then-current Fee period.

16. Your Obligations and Representations

16.1      You agree:  (a) to comply with this Agreement and all applicable Laws; (b) to provide all assistance, information, documentation, access, facilities and other things reasonably necessary to enable us to comply with our obligations under this Agreement or at Law; (c) to provide us and our Personnel with reasonable, convenient and safe access to your premises and Systems to the extent reasonably necessary in order for us to supply the Services, and at the times agreed between the Parties; (d) to ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked; (e) to make any changes to your Systems, such as System upgrades, that may be required to support the delivery and operation of any Services;  (f) to ensure that any Systems used in connection with the Services have all necessary approvals and comply with all Laws; (g) that you have reviewed and understand the terms of this Agreement (including our End User License Agreement, Privacy Policy and DMCA Policy), and that you (and Authorized Users) will use the Services in accordance with them; (h) to notify us of any breach or suspected breach of this Agreement by you (or an Authorized User), within 48 hours of becoming aware of any such breach or suspected breach; (i) that you are responsible for all Authorized Users and other users within your organization or within your control using the Services, including your Personnel; (j) that you obtained the prior consent of all Authorized Users and other users within your organization or within your control to disclose their information to us and for us to contact them; and (j) that we are not responsible for any liability or claims arising out of your ability and decision to override an Authorized User’s email, text messaging, push notification, SMS text or other notice preference to send a message to such Authorized User through our Platform or using our SaaS Solution or Services.

16.2      You acknowledge and agree that: (a) the technical processing and transmission of the Services, including Your Data, may be transferred unencrypted and involves transmissions over various networks; and changes to conform and adapt to technical requirements of connecting networks or devices; (b) the Services are provided to you and your Authorized Users, solely for your and your Authorized Users’ benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent; (c) any information, advice, material, work and services (including the Services) provided by us under this Agreement does not constitute legal, financial, merger, due diligence or risk management advice; (d) you will be responsible for the use of any part of the Services by your Authorized Users and any other person you provide with access to the Services, and you must ensure that no person uses any part of the Services: (1) to break any Law or infringe any person’s rights (including Intellectual Property Rights);  (2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;  (3) in any way that damages, interferes with or interrupts the supply of the Services; (4) use the Services for any purpose or in any manner not specifically authorized by this Agreement or the End User License Agreement; (5) make copies, distribute, republish, download, display, post or transmit any portion of the Services; (6) create or recreate the source code for, or re-engineer, reverse engineer, decompile, or disassemble any Services, Our Materials or New Materials; (7) modify or create derivative works from or based upon any part of the Services, Our Materials or New Materials; (8) remove, erase, or tamper with any copyright, logo, or other proprietary or Trademark notice printed or stamped on, affixed to, or encoded or recorded in the Services or Our Materials; and (e) you will not alter or modify the Services in any way that is not contemplated by the purposes of the Services.

17. Payment

17.1      You agree to pay us the Fees, and any other amount payable to us under this Agreement, in accordance with the Payment Terms. You hereby agree to us automatically debiting your account or accepting a bank transfer from your bank account for all Fees as provided in the Order or any Statement of Work. This Agreement expressly allows us the right to automatically debit your account or accept a bank transfer from your bank account for all Fees, without notice to you and without further consent from you. You shall not revoke our rights to automatically debit or accept a bank transfer from your account or change the account information and you do not have the right to revoke our rights to automatically debit or accept a bank transfer from your account unless this Agreement is terminated pursuant to the terms of this Agreement.

17.2      You are agree to promptly update your direct debit and bank account information in the case of any change.

17.3      If any payment has not been made in accordance with the payment terms set forth on the Order(s) or any applicable Statement of Work, we may (at our absolute discretion): (a) after a period of 7 Business Days, cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including legal fees, debt collector fees and mercantile agent fees); and/or (b) charge interest at a rate equal to the Applicable Federal Rate, from time to time, plus 6% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the payment terms.

17.4      You agree that we may vary the Fees by providing written notice to you of such variation. Where we provide this notice, the new Fees will take effect on and from the end of the Initial Term or the then Renewal Period. If you do not agree to any Fee variation: (a) you agree to notify us in writing within 10 days of the Fee variation coming into effect; and (b) following receipt of such notice by us, the Parties will use all reasonable endeavors to work together to resolve the matter.

17.5      If:  (a) you have provided us with the notice in accordance with clause 17.3(a); and (b) the Parties are unable to resolve the matter pursuant to clause 17.3(b), you may elect to terminate the Agreement prior to the end of the Initial Term or the then Renewal Period in accordance with the notice period in the Order, and in which case, clause 25.2 will apply.

17.6      To the maximum extent permitted by law, there will be no refunds or credits for any unused Services (or part thereof).

17.7      You agree that we may set-off or deduct from any monies payable to you under this Agreement, any amounts which are payable by you to us (whether under this Agreement or otherwise).

17.8       You are responsible for reconciling all transactions made using the Payment Portal. We will provide you with log-in details to the website of the Payment Portal provider for reconciliation purposes. You agree to pay us the Payment Portal Fee set out in the Order and you acknowledge and agree that you must pay the Payment Portal Fee prior to using the Payment Portal.

Lots Under Management

17.9      You acknowledge and agree that use of the SaaS Solution and Services are on a subscription basis according to the number of Lots Under Management. You further represent, warrant and agree that: (a) the number of Lots Under Management stated in the Order(s) and/or Statement of Work is true and accurate representation of your total Lots Under Management as at the date of this Agreement; and (b) the number of Lots Under Management reported us on each LUM Review Date is a true and accurate representation of your total Lots Under Management as at that date.

17.10    You must provide an update to us setting out your Lots Under Management on: (a) the date of this Agreement; (b) a recurring basis every three months from the Commencement Date; and (c) otherwise on 10 days’ notice from us, (each being a LUM Review Date).  You must pay for any increase in the number of Lots Under Management at the time each such additional lot is added.

17.11    You grant us or our authorized agent the right to conduct an audit of your Lots Under Management and/or your use of the SaaS Solution.  If an audit reveals any underpayment of fees due to us for the audited period, you shall pay the shortfall in fees, interest on all such amounts and the reasonable costs of such audit to us.

17.12    You acknowledge and agree that an audit in accordance with clause 17.10 may be conducted by us in person or through the use of technology and that you will grant us with access to records, premises, and personnel reasonably required to conduct the audit.

17.12   You acknowledge and agree to pay the Fees set forth on the            Order(s) or any Statement of Work in a timely manner and in accordance with the terms of this Agreement and the Order(s) or Statement of Work.

18. Warranties

18.1      We agree: (a) that we are properly constituted and have the right and authority to enter into this Agreement; (b) that we will use reasonable efforts to ensure all of our obligations under this Agreement will be carried out by suitably competent and trained Personnel and in an efficient and professional manner; (c) that we have legal authority to grant you the SaaS License; and (d) that the Services will operate and be provided in accordance with this Agreement.

18.2      You represent, warrant and agree that: (a) you will provide us with any information that we require in order to provide the Services to you; (b) there are no legal restrictions preventing you from entering into this Agreement and you have the right and authority to enter into this Agreement; (c) if applicable, only a duly authorized representative of your entity shall execute any Order(s) or Statement of Work and enter into this Agreement; (d) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete; (e) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement; (f) you are not and have not been the subject of an Insolvency Event; (g) if applicable, you hold a duly organized entity under the laws of the State of your formation, which has been advised to us; (h) if applicable, you are registered for applicable tax purposes; and (i) if any change is made by you, your Personnel or any Authorized User to the SaaS Solution or Services without the express written consent of us, all warranties made by us under this Agreement shall be null and void.

19. Intellectual Property

Our Intellectual Property Rights

19.1      As between the Parties, you acknowledge and agree that we own all Intellectual Property Rights in: (a) Our Materials; (b) New Materials or Improvements; and (c) any Feedback, and as between the Parties, these Intellectual Property Rights will at all times vest, or remain vested, in us, and nothing in this Agreement constitutes an assignment or transfer of such Intellectual Property Rights. To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights, including but not limited to assigning and transferring to us all rights, title and interest to us.

19.2      In the use of any Intellectual Property Rights in connection with this Agreement, you agree that you must not (and you must ensure that your Personnel and your Authorized Users do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.

19.3      You also agree that: (a) we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback; (b) you must not whether directly or indirectly, without our prior written consent: (1) copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any part of the Services or otherwise attempt to discover any part of the source code of the SaaS Solution; (2) use any unauthorized, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorized access to the SaaS Solution; (3) unless authorized under this Agreement, use the Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method; (4) rent or sublicense the use of the Services to any third parties, without our prior written consent or as otherwise permitted under this Agreement; (5) take any action that may compromise or jeopardize our Intellectual Property Rights in the Services or otherwise; (6) remove or deface any confidentiality, copyright or other proprietary notice placed on the Services; or (7) use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing. (c) any result or creation derived from use of the SaaS Solution, SaaS License, or Services is our property. You agree that no proprietary materials created in connection with this Agreement are “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that, by operation of law, you own any intellectual property rights in such proprietary materials, you hereby irrevocably assign and transfer to us all rights, title and interest in such proprietary materials.

Your Intellectual Property Rights

19.4      As between the Parties, you will continue to own all Intellectual Property Rights in Your Materials.

19.5      You grant us a non-exclusive, irrevocable, worldwide, non-sublicensable, non-transferable, royalty free, and paid-up right and license, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under this Agreement, and as otherwise contemplated by this Agreement.

19.6      If you or any of your Personnel have any moral rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those moral rights.

Your Data

19.7      As between the Parties: (a) Your Data is and will remain your property; and (b) you retain any and all rights, title and interest in and to Your Data, including all copies, modifications, extensions and derivative works.

19.8      You grant us a limited license to copy, transmit, store, backup and/or otherwise access or use Your Data during the Term (and for a reasonable period after the Term), to: (a) supply the Services to you and your Authorized Users (including to enable you and your Personnel to access and use the Services), and otherwise perform our obligations under this Agreement; (b) diagnose problems with the Services; (c) enhance and otherwise modify the Services; (d) perform Analytics; (e) develop other services, provided we de-identify Your Data; and (f) as reasonably required to perform our obligations under this Agreement.

19.9      You acknowledge and agreed that the Platform, SaaS Solution and Services are tools that are intended to help your business run more efficiently by automating certain data analysis and communication tasks and assisting with providing avenues to purchase goods and services. The Platform, SaaS Solution and Services are not compliance analysis decision-making tools and should not be used without qualified and appropriate review of Authorized Users.

19.10    You acknowledge and agree that we may de-identify Your Data for our general business purposes, including to enhance the Platform, SaaS Solution and our Services, and we have and retain exclusive and valid ownership of such de-identified data and all statistical information regarding Authorized Users’ use of the Platform, SaaS Solution and Services, and other statistical information that reasonably cannot be used to identify you, any Authorized User, or any other Personnel.

19.11    You acknowledge and agree that: (a) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorized Users or your Personnel; and (b) we assume no responsibility or Liability for Your Data. You are solely responsible for Your Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to backup Your Data.

19.12    You represent, warrant, acknowledge and agree that: (a) you have obtained all necessary rights, releases and permissions to provide or have Your Data provided to us and to grant the rights granted to us in this Agreement; (b) Your Data (and its transfer to and/or use, collection, storage or disclosure by us as contemplated by this Agreement) does not and will not violate any Laws (including those relating to export control and electronic communications) or the rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and (c) the operation of the Services is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Services.

Indemnification

19.13    Except to the extent caused by our gross negligence or intentional misconduct relating to the SaaS solution or Services, you shall indemnify defend and hold harmless, at your sole expense, us from any third party claim, demand, or suit (Claim), arising out of (i) your, your Personnel or your Authorized User’s use of the SaaS Solution, SaaS License and Services; (ii) Your Materials; (iii) Your Data; and/or (iv) your (including your Personnel and your Authorized Users) breach of this Agreement; and shall indemnify and hold us harmless from and against any and all damages, fines, penalties, costs, expenses and/or fees (including reasonable attorney’s fees) awarded or assessed against us in association with such Claim, or reached through a negotiated settlement of a Claim.

19.14    This clause 19 will survive termination or expiry of this Agreement.

20. Analytics

20.1      You acknowledge and agree that we may monitor, analyze and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymized format (Analytics). You agree that we may make such Analytics publicly available, provided that it: (a) does not contain any identifying information; and (b) is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.

20.2      We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

20.3      We may use and disclose to our service providers anonymous data about your access and use of the SaaS Solution for the purpose of helping us improve the SaaS Solution. Any such disclosure will not include details of your, or any Authorized User’s, identity or personal information.

21. Confidential Information

21.1      Each Receiving Party agrees: (a) not to disclose the Confidential Information of the Disclosing Party to any third party; (b) to use all reasonable endeavors to protect the Confidential Information of the Disclosing Party from any unauthorized disclosure; and (c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

21.2      The obligations in clause 21.1 do not apply to Confidential Information that: (a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement; (b) is authorized to be disclosed by the Disclosing Party; (c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or (d) must be disclosed by Law or by a regulatory authority, including under subpoena.

21.3      Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 21.  A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 21.

21.4      Each party agrees to restrict access to the other party’s Confidential Information only to those employees or subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Clause 21 and in Clause 19.

21.5      This clause 22 shall govern if any conflict arises between a term or provision of this Agreement, any nondisclosure agreement or confidentiality agreement executed between the Parties prior to or contemporaneous with this Agreement.

21.6      This clause 22 will survive the termination of this Agreement.

22. Privacy

22.1      You must, and must ensure that your Personnel and your Authorized Users and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement (Privacy Laws).

22.2      Without limiting this clause 22, you must ensure that: (a) you have collected, used, stored and otherwise dealt with Your Data in accordance with all Privacy Laws; and (b) we are capable of collecting, using, storing and otherwise dealing with Your Data, in the manner contemplated by this Agreement, without infringing any third party rights or violating any Privacy Laws.

22.3      Without limiting this clause 22, you agree to only disclose Your Data, to the extent it contains Personal Information if: (a) you are authorized by Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by this Agreement; (b) you have informed the individual to whom the Personal Information relates, that it might be necessary to disclose the Personal Information to third parties; and (c) where any Personal Information is Sensitive Information, you have obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates.

22.4      We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under this Agreement, and in accordance with any applicable Laws and our Privacy Policy.

23. Exclusions to liability

23.1      To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with: (a) any interruptions or downtime to the SaaS Solution as a result of any Scheduled or Emergency Maintenance; (b) your Computing Environment; (c) your, your Authorized Users, or your Personnel’s acts or omissions;  (d) any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement;  (e) any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;  (f) any Third Party Inputs; and/or (g) any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Your Data).

23.2      This clause 23 will survive the termination or expiry of this Agreement.

24. Limitations on liability

24.1      Despite anything to the contrary, to the maximum extent permitted by law: (a) neither Party will be liable for Consequential Loss; (b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by the other Party to mitigate its loss; and (c) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

24.2      This clause 24 will survive the termination or expiry of this Agreement.

25. Termination

25.1      This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if: (a) the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or (b) the Defaulting Party is unable to pay its debts as they fall due.

25.2      We may terminate this Agreement at any time by providing you with 90 days’ prior written notice.

25.3      Upon expiry or termination of this Agreement: (a) we will immediately cease providing the Services; (b) we will be entitled to immediately anonymize or permanently delete all Your Data on the effective date of termination or expiry; (c) you agree that any payments made by you to us are not refundable to you; (d) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement; and (e) upon request by us, you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or Intellectual Property owned by us that is in your possession or control, subject to clause 20.

25.4      We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.

25.5      Where this Agreement is terminated by you pursuant to clause 25.1, you agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including legal fees, debt collector fees and mercantile agent fees).

25.6      Where this Agreement is terminated by us pursuant to clause 25.1 you agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including legal fees, debt collector fees and mercantile agent fees.

25.7      Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.  However, in the event that you terminate this Agreement, for any reason other than Section 25.1, or any Order in which these Terms and Conditions are referenced or attached, you agree that in addition to any other remedies that we may seek at law or in equity, you will pay to us as liquidated damages an amount equal to: (i) the average per month payment amount, including professional fees, license fees, costs and expenses, that accrued for your use of the Services over the three (3) months immediately preceding the date of your attempted termination, times (ii) that number of full and partial months remaining in the then-current Term.  You hereby agree that such amount is a reasonable approximation of the damages suffered by ResVu as a result of your termination in breach of this Agreement.  You agree to pay such amount within ten (10) days of the date of our invoice to you for such amount.

25.8      Termination will not limit us from pursuing other remedies available to us outside of this Agreement, including, but not limited to seeking injunctive relief.

25.9      This clause 25 will survive the termination or expiry of this Agreement.

26. General

26.1      Access: The Services may be accessed in the United States and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of the United States. If you access the Services from outside the United States, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.

26.2      Advertising and linked websites: The SaaS Solution may contain links to websites of third parties. You acknowledge and agree that we do not endorse, and we are not responsible for the content contained on, any such linked websites or any hyperlink contained in a linked website. Your access to or use of any linked website is at your own risk.

26.3      Amendment: This Agreement may only be amended by written instrument executed by the Parties.

26.4      Assignment: Subject to clause 26.5, you must not assign or deal with the whole or any part of your rights or obligations under this Agreement without our prior written consent of (such consent is not to be unreasonably withheld). We may freely assign this Agreement to any affiliate or third party at any time.

26.5      Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.

26.6      Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.

26.7      Disputes: You agree to notify us should you have concerns relating to our performance of the Services. A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with an authorized representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to arbitration administered by the American Arbitration Associate (AAA), with such arbitration to be conducted in Washtenaw County, Michigan, in English and in accordance with the AAA Rules then in effect. The costs of the arbitration will be shared equally between the Parties and the determination of the arbitrator will be final and binding. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

26.8      Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. To the maximum extent permitted by law, you release us from any Liability you may have as a result of any unauthorized copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

26.9      Electronic Communication. When users begin use of the Services, they are initially automatically opted in to electronic communications, including email, in-product notifications, push notifications, text messages, and SMS text services in connection with the Services. You understand and agree that you and your users may opt out of receiving emails, push notification or you may unsubscribe from email subscriptions associated with the Services. You further acknowledge and agree that you and your users cannot opt out of receiving communications, correspondence and notice through SMS text. Electronic communications may trigger charges from user’s wireless carrier. You and your user’s should consult with your wireless carrier for applicable text messaging fees and data plan rates. You understand, acknowledge and agree that under no circumstance will we be responsible for wireless carrier fees or expenses related to the Services, messaging or data charges for you or your users.

26.10    Entire agreement: This Agreement contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and this Agreement supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter. If a conflict arises between any term or provision of these Terms and Conditions, the Order(s), or any Statement of Work, these Terms and Conditions shall first govern, followed by the Order(s) and then Statement of Work.

26.11    Force Majeure: A Party will not be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.

26.12    Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.

26.13    Governing law: This Agreement is governed by the laws of the State of Michigan. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Washtenaw County, Michigan and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

26.14    Illegal Requests: We reserve the right to refuse any request for or in relation to any Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with this Agreement.

26.15    Insurance: You must maintain a general liability insurance policy, in the amount of no less than $3 million for any one claim.

26.16    Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

26.17    Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.

26.18    Publicity: You agree that we may advertise or publicize the nature of our provision of the Services to you, including on our website or in our promotional material and including the use of your name.

26.19    Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

26.20    Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

• Taxes: Where a value-added tax (VAT) in your own country is applicable, the Fees will be exclusive of such value-added tax. You are responsible for all other taxes, levies or duties imposed by taxing authorities in your own country, and you shall be responsible for the payment of them. We have no responsibility to them on your behalf.
• No Waiver. No failure or delay in our enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy by us. No waiver shall be effective unless it is in writing and signed such Parties authorized representative, and any such waiver shall only be applicable to the specific instance referenced in such writing.

27. Definitions

In this Agreement, unless the context otherwise requires, capitalized terms have the meanings given to them in the Order, and:

Account means an account accessible to you and/or your Authorized Users to use the Services, including, the SaaS Solution.

Additional Services means any Services not set out in the Services description in the Order which we agree to provide to you.

Administrator means those individuals nominated by you to use the SaaS Solution to create, modify and manage Content.

Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.

Applicable Federal Rate means the minimum interest rate that the Internal Revenue Service allows for private loans.

Authorized User, if applicable, means a user permitted to access and use the Services under your Account, including Administrators, Designated Employees, lot owners, tenants, residents, property managers and third party contractors.

Business Day means a day on which banks are open for general banking business in the United States, excluding Saturdays, Sundays and public holidays.

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.

Confidential Information includes information which: (a) is disclosed to the Receiving Party in connection with this Agreement at any time; (b) is prepared or produced under or in connection with this Agreement at any time; (c) relates to the Disclosing Party’s business, assets or affairs; or (d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Fees under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.

Content means the information sought to be delivered to Authorized Users by you using the SaaS Solution.

Designated Employee means your employee who is designated as the point of contact between us and you in connection with the Support Services.

Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

End User License Agreement means our end user license agreement available on the Platform or our website, as may be amended from time to time.

Expenses means any disbursements, including travel and accommodation costs and third party costs, reasonably and directly incurred by us and approved in advance by you for the purpose of the provision of the Services.

Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel and your Authorized Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services.

Fees means the prices set forth in the Order(s) or any Statements of Work, as adjusted in accordance with this Agreement, and including any fees charged in accordance with clause 11.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionizing radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Harmful Code means any computer program or virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alternation, denial of service, unauthorized access to or disclosure, destruction or corruption of information or data.

Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.

Insolvency Event means any of the following events or any analogous event: (a) a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business; (b) a Party ceases, or threatens to cease, carrying on business; (c) a Party is unable to pay the Party’s debts as the debts fall due; (d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business; (e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or (f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business.

Intellectual Property means any copyright, registered or unregistered designs, patents or trade mark rights, domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights, including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licenses, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the provision of the Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Lots Under Management means a lot which is an apartment, office, factory, warehouse or other habitable space on the plan of subdivision for the Premises, but excludes without limitation, car parks and storage cages unless otherwise agreed by the Parties in writing.

New Materials means all Intellectual Property developed, adapted, modified or created by either Party or their respective Personnel in the provision of the Services, but excludes Our Materials, Your Materials and the Developed IP.

Order means that certain order(s) by and between ResVu and you providing for your purchase and right to use the SaaS Solution and Services.

Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws.

Payment Portal means the payment portal which facilitates the ordering of goods and/or services by relevant Authorized Users.

Payment Portal Fee means the fee stated in the ‘Optional Services’ item in the Order.

Personal Information has the meaning given in our Privacy Policy.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Platform means the ResVu platform, available at resvu.io, or any successor site, domain or sub-domain owned or licensed by us.

Premises means the buildings which are owned and/or managed by you or a related body corporate and being provided with access to the SaaS Solution under the terms of this Agreement.

Privacy Laws has the meaning given in clause 22.1.

Privacy Policy means any privacy policy available on the Platform or our website, as may be amended from time to time.

Receiving Party means the party receiving Confidential Information from the Disclosing Party.

Sensitive Information has the meaning given in the Privacy Policy.

Services means the services that we agree to perform under this Agreement, as further particularized in the Order or Statement of Work.

Support Services means the support services as further described in Attachment 2 of this Agreement.

System means all hardware, software, networks, telecommunications and other IT systems used by a Party from time to time, including a network.

Term has the meaning given in the Order.

Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.

U.S. Copyright Act mean The Copyright Act of 1976.

VAT means value-added taxes levied on goods or services at each stage of production, distribution or sale.

Your Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel and your Authorized Users into the Services or stored by or generated by your use of the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with this Agreement. Your Data does not include the Analytics, or any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.

Your Materials means all Content, branding, work, models, processes, technologies, materials, information, documentation and services (including Intellectual Property), owned or licensed by you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement and unrelated to the SaaS Solution and Services.

28.         Interpretation

In this Agreement, unless the context otherwise requires: (a) a reference to this Agreement or any other document includes the document, the Order(s), Statement of Work, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time; (b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time; (c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa; (d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it; (e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time; (f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally; (g) words like including and for example are not words of limitation; (h) a reference to time is to Eastern Standard Time in the United States; and (i) a reference to $ or dollars refers to the currency of the United States from time to time.

SCHEDULE A – SUPPORT SERVICES

Service Level Agreement

• Support Services

ResVu provides the following support services:

• Help Desk

ResVu will assign each support request reported by the Designated Employee as follows: