Revised March 23, 2021
By purchasing any Service(s) and/or Hardware from PayLease, LLC (DBA Zego), a Delaware limited liability company (“Company”), Client agrees to the following terms and conditions (the “Terms”), including in any appendices attached hereto.
Note: Company may change these Terms from time to time at its sole discretion. In the event that Company makes any material changes to these Terms, Company will notify Client by posting the revised terms on the Company website and/or the Solutions Suite. Any changes to these Terms will be effective upon either (i) the date of posting of notice of the changes on the Company website and/or the Solutions Suite; and/or (ii) the date specified by Company in the notification. These changes will be effective immediately for new users of a Service. Notwithstanding the above, Company may require Client to provide consent to the updated Terms before Client’s further use of the Services is permitted. Otherwise, Client’s continued use of any Company Services, the Solutions Suite, and/or Hardware constitutes acceptance of the changes to the Terms. It is Client’s obligation to check the Company website and/or the Solutions Suite to view the current Terms.
GENERAL TERMS AND CONDITIONS
1. Company Support and Service Modifications.
a. Delivery to Client. Subject to the terms and conditions of the Agreement, during the Term Company will: (a) make the Solutions Suite (including the Manager Portal) available to Client for its own internal business purposes, (b) make the applicable Services (which may not include the Manager Portal) available to the number of units at the Property indicated on each Order Document, (c) use commercially reasonable efforts to make the Solutions Suite available 24/7, except for: (i) planned downtime, maintenance windows, and/or emergency maintenance of the Solutions Suite, (ii) required repairs, and (iii) any unavailability caused by a Force Majeure event, (d) use commercially reasonable efforts to make its personnel available during Company’s normal business hours (7:00 AM PST – 5:00 PM PST) for standard troubleshooting or general questions, and (e) use commercially reasonable efforts to provide Client and Users training in the operation and functionality of the Company Solution Suite and/or the Services upon Client’s request.
b. Modifications & New Features. Company reserves the right, in its sole discretion, to make modifications to the features and functions of the Company Solution Suite and/or the Services; provided that such modifications do not materially degrade the functionality of the Company Solution Suite and/or the Services. Client agrees that Client’s purchase and/or use of the Services hereunder are not contingent on Company developing and/or commercializing any new and/or modified features for the Solutions Suite and/or the Services.
a. Client passwords and login credentials (“Credentials”) will be either provided to Client by Company or generated in connection with Client’s use of the Company Services. Client must protect and safeguard all Credentials and use best efforts to prevent unauthorized access to, or use of, the Credentials or the Solutions Suite. Client is responsible, and assumes all risk and liability, for all activities that occur in connection with the Credentials and the Solutions Suite and/or the Services, including but not limited, inadvertent or wrongful disclosure or use by a third party. Client will immediately notify Company of any known or suspected unauthorized use of its Credentials, the Solutions Suite, and/or the Services. Client shall change its password(s) on a periodic basis and at any time in which an individual who had access to a password is no longer employed or authorized by Client to use the Solutions Suite and/or the Services. Company may require Client to change its password(s) at any time.
b. Company has established, and will maintain during the Term of the Agreement, commercially reasonable administrative, physical, and technical safeguards for the protection of Client’s and its Resident’s information, content, and materials provided to Company for use with and display through the Solutions Suite commensurate with industry standards for similar services, and maintain reasonable measures for preventing unauthorized access or disclosure of such information. Client acknowledges that the Solutions Suite and/or Services may be hosted and processed in data centers and on networks owned and maintained by a third-party service provider (i) to provide the Service; (ii) prevent, address, and/or remediate Service or technical problems; (iii) as required by Law; or (iv) as may be instructed or approved by Client.
3. Order Documents. During the Term, Company and Client may enter into one (1) or more Order Documents regarding the Services and/or the purchase of applicable Hardware.
4. Intellectual Property, Ownership, and License.
a. Company’s Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company and Company’s licensors and third-party providers reserve all of Company’s/their right, title, and interest in and ownership of, any and all IP Rights and proprietary rights with respect to the Solutions Suite and the Services, including all automation scripts, automation tools, API, connectors, work product (if any), enhancements, improvements, modifications, compilations, derivative works, suggestions, ideas, inventions, discoveries, processes, computer processes, specifications, operating instructions, notes, training materials, documentation, and all other materials provided and/or made available to Client hereunder. No rights are granted to Client other than as expressly set forth herein.
c. Resident Data; Nonexclusive License. As between the parties, Client owns all rights, title, and interest in and to the Resident Data, including all IP Rights therein. Client represents and warrants that it has the right to provide the Resident Data which it or its Users provide to Company, including but not limited to the right to provide the Resident Data for Company’s use consistent with the license granted herein. During the Term, Client grants to Company a royalty-free, worldwide, nonexclusive, sublicensable, irrevocable, transferable license to host, collect, use, copy, transmit, store, process, monitor, disclose, and display Resident Data to (i) provide the Solutions Suite and/or the Services to Client and Residents, including but not limited to communicating with Residents (including via email, telephone, and/or SMS) for the purposes of facilitating and/or performing the Services, as well as marketing and/or encouraging or promoting Residents’ use of the Solutions Suite, Services, and/or other third party services; (ii) prevent, address, and/or remediate Company Solution Suite and/or Service technical problems; (iii) comply with Law; (iv) comply with Client instructions or approved uses; and/or (v) otherwise exercise and perform Company‘s rights and obligations hereunder. Company shall not be liable for any communications with a Resident and/or a Payer made at the Client’s direction or made pursuant to this license, including but not limited to any liability resulting from a claim related to legally mandated content requirements and more generally any claim related to the Telephone Consumer Protection Act or the CAN- SPAM Act. Additionally, Client hereby grants to Company a royalty-free, perpetual, irrevocable, worldwide, nonexclusive, sublicensable, transferable license to host, collect, use, copy, transmit, store, process, monitor, disclose, and display the Resident Data on an anonymized and aggregated basis for Company’s internal business purposes, including but not limited to developing, creating, modifying, and/or improving the Solutions Suite and/or the Services and its other service offerings. Company reserves the right to access, use, copy, transmit, store, process, preserve, and disclose any Resident Data Company reasonably believes is necessary to (A) comply with Law and/or any governmental request, (B) enforce this Agreement, including investigation of potential violations hereof, (C) detect, prevent, or otherwise address security or technical issues, (D) respond to User or Resident support requests, or (E) protect Company’s rights or safety and that of Company’s users.
d. Data Loss, Deletion. Company regularly and in real time backs up content and data collected via the Solution Suite and the Service(s). Company shall not have any liability for any loss of data, failure to back up or restore any data, or for the suspension of access to or unavailability of any such data. Upon expiration or termination of this Agreement for any reason, Company reserves the right to delete all data, including all Resident Data, that is stored on Company’s servers or systems.
e. Service’s Software; Claims. Any open source software that may accompany or is incorporated into the Company Solution Suite and/or Service is provided to Client under the terms of the open source license agreement or copyright notice accompanying such open source software. The Agreement does not apply to open source software and Company hereby disclaims all warranties with respect to any open source software and disclaims any liability to Client or any third party based on any claims arising out of use of such open source software. Nothing in the Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any applicable open source software end user license agreement.
f. Nonexclusive License to Client’s Marks. Client hereby grants to Company a nonexclusive, non-sublicensable, irrevocable, non- transferable (except as set forth in Section 16(f)), worldwide, royalty-free right and license to use Client’s name and logo (“Client Mark”) during and after this Agreement, in accordance with Client’s guidelines as provided to Company in writing for the limited purpose of listing the Client Mark on Company customer lists, in Company’s marketing material and/or presentations, on Company’s website, or as otherwise described in the Order Document(s). As between the parties, Client retains all right, title, and interest in and to the Client Mark and all goodwill arising in or from Client Mark shall inure solely to Client’s benefit.
5. Prohibitions. Client may only access the Solutions Suite through interfaces and protocols provided or authorized by Company. The Solutions Suite, including the Manager Portal, may only be accessed by Users, and Users are prohibited from sharing their Credentials with any other individual(s). During the Term and thereafter, except as my be expressly authorized by the Agreement, Client will not, and will not permit any User or third party to, (a) make the Solutions Suite and/or the Services available to anyone other than Client and its authorized Users; (b) sell, resell, license, sublicense, distribute, lease, rent, lend, transfer, assign, or otherwise dispose of the Solutions Suite; (c) disassemble, decompile, or reverse engineer the Solutions Suite; (d) use the Solutions Suite to store or transmit material that is infringing, libelous, unlawful, pornographic, racist, sexist, discriminatory, abusive, harmful, offensive, defamatory, vulgar, obscene, tortuous, or invasive, or in violation, of a third-party’s privacy or other rights (as determined in Company’s sole discretion); (e) use the Solutions Suite to store or transmit Harmful Code; (f) interfere with or disrupt the availability, integrity, or performance of the Solutions Suite and/or the Services; (g) attempt to gain unauthorized access to the Company systems, networks, and/or the Solutions Suite or its related systems or networks; (h) permit direct or indirect access to or use of the Solutions Suite and/or the Services in a way that circumvents restrictions set forth in this Agreement; (i) copy the Solutions Suite or any part, feature, function, or user interface thereof; (j) modify, disclose, correct, adapt, translate, or otherwise prepare or create derivative works or improvements of the Solutions Suite; (k) frame or mirror any part of the Solutions Suite, other than framing on Client’s own intranets or otherwise for Client’s own internal business purposes or as may be permitted in the Documentation, remove, alter, or obscure any proprietary notices in or on the Solutions Suite (except if permitted by Company in connection with a white- label offering); (l) access and/or use the Solutions Suite, the Services, or any Company Confidential Information provided pursuant to this Agreement to build a competitive product or service or for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes; or (m) harvest or collect information from the Solutions Suite (including information about other users of the Solutions Suite).
6. Denial of Access. Company may suspend, terminate, or otherwise deny Client’s and/or any Users’ access to or use of all or any part of the Solutions Suite or the Services and/or terminate this Agreement, without incurring any obligation or liability, if: (a) any undisputed payment due by Client is not received by Company within thirty (30) days of its due date; (b) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; or (c) Company believes in good faith that: (i) Client or any User has accessed or used the Solutions Suite and/or Services beyond the scope of the rights granted herein, in violation of this Agreement, for a purpose not authorized under this Agreement, and/or in any manner that does not comply with any instruction or requirement of the Documentation or with Law; (ii) Client or a User has breached the provisions of Sections 5 (Prohibitions), 7 (Obligations of Client), or 11 (Confidential Information) and Client has not satisfied Company’s concerns to its reasonable satisfaction within two (2) business days; (iii) Client or a User is, has been, or in Company’s reasonable judgment is likely to be, involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Solutions Suite and/or Service; and/or (iv) if required, Resident does not execute any applicable Resident Consent (or withdraws previously provided Resident Consent), which includes but is not limited to Company’s use of the Resident Data and/or Service Data. This Section does not limit any of Company’s other rights or remedies, whether at law, in equity or under this Agreement. Any suspension or denial of access shall not excuse Client from the obligation to make the payment(s) contemplated under this Agreement. If Company suspends use of the Solutions Suite and/or Services, Company may restore Client’s (or the applicable User’s) access to and use of the Solutions Suite and/or Services after the event giving rise to the suspension has been resolved to Company’s satisfaction.
7. Obligations of Client. Client will (i) provide Company with accurate, complete, and updated information in connection with the Agreement, (ii) be responsible for its Users’ use of the Solutions Suite, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Solutions Suite, including the Manager Portal, (iv) be responsible for and immediately notify Company in the event of any unauthorized use of or access to the Solutions Suite and/or any of the Services and provide reasonable assistance to Company in investigating and preventing the recurrence of such unauthorized use or access, (v) use the Solutions Suite only in accordance with the Agreement, the Documentation, and Law, (vi) immediately notify Company in the event that the Solutions Suite is being used in violation of the Agreement, including but not limited to use for illegal and/or harmful activities; and (vii) pay all amounts owed to Company in the timeframes set forth in the Agreement. If Client has not paid an invoice pursuant to such timeframe(s), Company may refer collection of the unpaid amount to an attorney or collections agency. If Client’s unpaid invoices are referred to an attorney or collections agency, Client shall pay all reasonable attorney’s fees or collections agency fees.
8. Government Taxes. Company’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, which may be assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with Client’s purchases and use hereunder. If Company is required by Law to pay or collect Taxes for which Client is responsible under this Section, Company will invoice Client and Client will pay that amount unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Each party is solely responsible for taxes assessable against such party based on its income, property, and employees.
a. Client Warranties. Client represents and warrants that: (i) Client is duly organized and in good standing under the state of its organization; (ii) Client is fully authorized to enter into the Agreement as the owner, agent, or management company of the Property which Client represents; (iii) this Agreement, when executed and delivered, will constitute a legal, valid, and binding agreement fully enforceable in accordance with its terms; (iv) as applicable, Client and/or the Properties have acquired any registration, approval, license, or permit required by the relevant federal, state, or local government or regulatory agencies necessary prior to the provision of the Services; (v) as applicable, Client received any required federal, state, or local government or regulatory approvals necessary for Company to provide the Services in accordance with Law; (vi) Client has all necessary rights and consents, in and relating to the Resident Data, so that Company’s receipt, use, storage, disclosure, and processing of the Resident Data in accordance with this Agreement does not and will not infringe upon or otherwise violate any IP Rights or any privacy or other rights of any third party or violate Law; (vii) neither Client or any of its officers, directors, members, employees, agents, representatives, and/or Affiliates, is now, or will be at any time during the Term of the Agreement, any form of entity (collectively or individually as context requires, a “Person”) with whom a United States citizen, entity organized under the laws of the United States or its territories or entity having its principal place of business within the United States or any of its territories (collectively, a “U.S. Person”), is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under Law, regulation, or executive orders and lists published by the Office of Foreign Asset Control (“OFAC”) (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise and (viii) as applicable, each lease agreement to which a Resident is a party, and the Laws of each jurisdiction in which a Property is situated, (A) permit Client to pass on utility charges and other charges for such Resident to Company as may be contemplated by the Agreement, and (B) otherwise permit Company to perform any Services contemplated by this Agreement.
b. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THIS AGREEMENT, THE SERVICES, HARDWARE, AND SOLUTIONS SUITE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, TRADE USAGE, OR TRADE PRACTICE. COMPANY DOES NOT WARRANT THAT ACCESS TO, OR OPERATION OF, THE COMPANY SERVICES OR THE COMPANY DATA WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS WILL BE CORRECTED.
10. Effect of Termination and/or Expiration.
a. Upon termination or expiration of this Agreement: (i) all outstanding fees shall be immediately due and payable to Company, if the Agreement is terminated by Client due to Company’s uncured material breach, Company will refund Client any prepaid fees (pro- rated form the time of such material breach), (ii) Client shall immediately cease and shall cause its Users to immediately cease using the Solutions Suite and/or Services, and (iii) Client’s and its Users’ access to the Solutions Suite and the Services will be automatically terminated, all Credentials and individual accounts will be removed, and all information that has been uploaded, submitted, or entered into the Solutions Suite by Client (or its Users) may be destroyed. Except in the event of an uncured material breach by Company, in no event will the termination or expiration of the Agreement relieve Client of its obligation to pay fees to Company for the period prior to the effective date of termination or expiration.
b. In Company’s sole discretion and for an additional fee, Company may allow Client to access the Solutions Suite for a period of ninety (90) days to allow Client to access Client owned data for the following purpose(s): (i) transfer the data to Client’s systems and (ii) review transactions that have processed through the Solutions Suite. Company may terminate such access at any time in its sole discretion. Any and all applicable terms, restrictions, and obligations contained in the Agreement will continue to apply to Client for however long Client has post-termination access to the Solutions Suite.
c. Each party agrees that the Confidential Information of the other party and all copies thereof will be destroyed or returned to the other party upon the expiration and/or termination of this Agreement, and neither the Receiving Party nor its representatives will make or retain the Confidential Information or any copies, extracts, or other reproductions, in whole or in part, of the Disclosing Party’s Confidential Information, except as permitted in this Agreement. Notwithstanding the foregoing, the Receiving Party and its representatives may retain one copy of the Disclosing Party’s Confidential Information to the extent retention of such information is required by the Receiving Party’s record retention policy and/or Law and/or such information is “backed-up” on the Receiving Party’s electronic information management and communication systems or servers and cannot be expunged without considerable effort. Any such retained Confidential Information shall continue to be subject to the terms of this Agreement.
11. Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is designated as confidential or that reasonably would be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to information concerning the Disclosing Party’s (i) trade secrets; (ii) pending patents; (iii) techniques, methodologies, sketches, drawings, design details and specifications, inventions, know-how, processes, report formats or templates, apparatus, and/or equipment; (iv) existing products and services and any other products and services currently under development or consideration by the Disclosing Party; (v) strategic, financial, sales, marketing, development or research projects, policies, operations, strategies, opportunities, or plans; (vi) financial information; and/or (vii) customers (including, without limitation, customer lists or information pertaining to the Disclosing Party’s contractual relationships with its customers). For the avoidance of doubt, Client’s Confidential Information includes Resident Data and Company’s Confidential Information includes the Solutions Suite, the Service(s), and the Service Data. Confidential Information of each party includes, but is not limited to, the terms and conditions of the Agreement and all Order Documents. However, Confidential Information does not include any information that the Receiving Party can demonstrate (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, (d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information, or (e) is required to be disclosed to enforce rights under this Agreement. The Receiving Party agrees that it shall treat all of the Disclosing Party’s Confidential Information with the same degree of care as is accords its own Confidential Information, but in no event with less than reasonable care, and shall not use or disclose such Confidential Information other than as set forth in the Agreement. Except as otherwise permitted by this Agreement and/or Law, the Receiving Party shall not disclose the Disclosing Party’s Confidential Information to anyone other than to the Receiving Party’s employees, agents, representatives, or consultants who need to know such Confidential Information and who are subject to confidentiality obligations at least as stringent as those provided herein. Additionally, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent compelled by Law or court or government order to do so, provided the Receiving Party gives the Disclosing Party reasonable prior notice of the compelled disclosure (to the extent permitted by Law) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party will seek confidential treatment of such information from the entity to which the disclosure is made; and disclose only that information which is required to be disclosed. Notwithstanding anything to the contrary, each party shall be entitled to (a) announce publicly and in business presentations that Client and Company have entered into a business arrangement; and (b) disclose the terms of this Agreement to its financial, legal, and other advisors and consultants, and to prospective lenders or purchasers of the Property or the Service, in each case on a need-to- know basis and provided that such recipients are obligated in writing to maintain the confidentiality of the terms of the Agreement.
Client acknowledges that the Solutions Suite and the Services provided by Company under this Agreement incorporate trade secrets of Company and its licensors, and as such is protected by civil and criminal Law. Client shall notify Company immediately of the unauthorized possession, use, or knowledge of any item supplied under this Agreement by any person or organization not authorized by this Agreement to have such possession, use, or knowledge.
12. Compliance with Laws and Due Diligence.
a. Each party is compliant, and shall at all times during the Term remain compliant, with all Laws, rules and regulations, as well as applicable industry rules including but not limited to those of the Automated Clearing House (“ACH”), the Payment Card Industry Data Security Standard (“PCI-DDS”), and other card association rules (solely as applicable).
b. Client authorizes Company, any reporting agency employed by Company, and any agents thereof, to investigate the reference, statements, and data provided by Client for Company to perform the Services, including performing an Office of Foreign Asset Control check on the Client and its authorized signer. Client certifies that neither client, nor any owner, officer, or authorized signer of Client has ever been terminated as a Visa, MasterCard, Discover, or American Express merchant.
a. Obligations of Company. Company will indemnify, defend, and hold harmless Client and its Representatives (the “Client Indemnitees”) from and against any and all suits, claims, actions or demands (each, a “Claim”) brought by a third party and Company shall pay any and all liabilities, losses, costs, damages, or expenses (including, without limitation, reasonable attorneys’ fees) that the Client Indemnitees suffer or incur in connection with such Claims to the extent arising from or related to: (i) any violations of Law and/or the gross negligence or willful misconduct of Company; or (ii) an allegation that the use of the Solutions Suite and/or the Service in the form provided and manner approved by Company and otherwise in accordance with this Agreement infringes, misappropriates or otherwise violates such third party’s United States copyright or patent rights. Notwithstanding the foregoing, Company shall have no obligation to indemnify, defend or hold harmless Client (a) if such third-party claim is due to Client’s or any User’s gross negligence, willful misconduct, or breach of this Agreement, or (b) to the extent the relevant third-party claim is based on: (i) the combination, operation or use of the Solutions Suite and/or the Service with software, hardware, equipment or products not provided by Company hereunder; (ii) a modification of the Solutions Suite and/or the Service or other items or materials provided by Company that is not performed by Company; (iii) compliance by Company with Client’s designs, specifications, and/or instructions; (iv) use of the Solutions Suite and/or the Service outside the scope of the rights granted thereto in this Agreement or otherwise in violation of this Agreement; or (v) the Resident Data or any materials, IP Rights, software, technology, or equipment supplied by Client.
b. Obligations of Client. Client will indemnify, defend, and hold harmless Company and its Representatives (the “Company Indemnitees”) from and against any and all Claims brought by a third party and Client shall pay any and all liabilities, losses, costs, damages, or expenses (including, without limitation, reasonable attorneys’ fees) that the Company Indemnitees suffer or incur in connection with such Claims to the extent arising from or related to: (i) Client’s or any User’s breach of this Agreement (including Client’s failure to obtain Resident Consent, if required); (ii) Client’s use of the Solutions Suite and/or the Services in violation of this Agreement; (iii) a third-party investigation or a request for information, (formal or informal), from any governmental agency, court, or any private party in any action related to Client; (iv) Company’s collection, storage, or use of the Resident Data in accordance with this Agreement; or (v) any violations of Law, Client’s designs, specifications, and/or instructions, and/or the gross negligence or willful misconduct of Client and/or any of its Users or Representatives. Notwithstanding the foregoing, Client shall have no obligation to indemnify, defend or hold harmless Company if such third-party claim is due to Company’s gross negligence, willful misconduct, or material breach of this Agreement.
c. Procedure for Indemnification. A party seeking indemnification hereunder (the “Indemnified Party”) shall provide the other party (the “Indemnifying Party”) with: (i) prompt notice of any Claim subject to indemnification; provided, however, that the Indemnifying Party shall not be relieved of any indemnification obligation hereunder except to the extent it is materially prejudiced as a result of the Indemnified Party’s failure to provide prompt notice; and (ii) reasonable assistance to defend or settle such claim at the Indemnifying Party’s expense. The Indemnifying Party shall have sole control of the defense and all related settlement negotiations of such claim provided that the Indemnifying Party shall not agree to any settlement or compromise that (A) results in any admission on the part of the Indemnified Party, (B) imposes any obligation or liability on the Indemnified Party (other than monetary liabilities for which the Indemnified Party is indemnified by the Indemnifying Party under this Section), or (C) has a judicially binding effect on the Indemnified Party, in each case without the Indemnified Party’s prior consent. In the event (X) the Indemnifying Party has failed to adequately assume and actively conduct the defense of such claims or to engage counsel with respect thereto, or (Y) if the Indemnified Party delivers a written opinion of legal counsel that an ethical conflict of interest exists between the interests of the Indemnifying Party and the Indemnified Party that requires representation by separate counsel, then the Indemnified Party shall be entitled to defend the claim with counsel of its own choosing at the expense of, for the account of, and at the risk of the Indemnifying Party. Additionally, the Indemnified Party shall have the right to participate in the defense and settlement negotiations of such claim through its own counsel at its own expense.
d. Infringement or Misappropriation Claims. If Company receives information about an infringement or misappropriation claim related to the Solutions Suite and/or the Service, Company may in Company’s sole discretion: (i) modify the Solutions Suite and/or the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Client’s continued use of the Solutions Suite and/or the Service in accordance with this Agreement, or (iii) terminate provision of the Solutions Suite and/or the affected Service upon notice and refund Client any prepaid fees covering the remainder of the Term.
e. Sole and Exclusive Remedy. This Section 13 states Company’s sole liability to, and Client’s exclusive remedy against, Company for any type of claim described in this Section 13.
14. Limitation of Liability.
a. NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 13, IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS OR LICENSORS) BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR THE COST OF SUBSTITUTE GOODS OR SERVICES OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, DAMAGES BASED ON LOSS OF PROFITS, DATA, FILES, OR BUSINESS INTERRUPTION OR OPPORTUNITY), WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. AGGREGATE LIABILITY. EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 13, TO THE MAXIMUM EXTENT ALLOWED UNDER LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY (INCLUDING FOR DIRECT DAMAGES) FOR ALL MATTERS ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT, EXCEED FEES RECEIVED BY COMPANY PURSUANT TO COMPANY PROVIDING THE SOLUTIONS SUITE AND/OR THE SERVICES (INCLUDING THOSE FEES PAID BY A PAYER) DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE APPLICABLE CLAIM.
15. Injunctive Relief. Any breach or threatened breach of Client’s obligations set forth in this Agreement may result in a substantial likelihood of irreparable harm and injury to Company for which monetary damages alone would not be an adequate remedy, and which damages are difficult to accurately measure. Accordingly, Client agrees that, in addition to any other remedies available, Company shall have the right to obtain, without the necessity of posting any bond, immediate injunctive relief as well as other equitable relief allowed by the federal and state courts. The foregoing remedy of injunctive relief is agreed to without prejudice to Company’s right to exercise any other rights and remedies it may have. Any remedy of Company set forth in this Agreement is in addition to any other remedy afforded to Company, by law or otherwise.
a. Beneficiaries of Agreement. Company’s licensors shall have the benefit of Company’s rights and protections hereunder with respect to the applicable IP Rights licensed to Company. Other than as set forth in the immediately preceding sentence and except as otherwise expressly set forth herein, this Agreement is for the sole benefit of the parties hereto and their respective permitted successors and assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. The Agreement is binding upon and inures to the benefit of and is binding upon the parties, their respective successors in interest by way of merger, acquisition, or otherwise, and their permitted assigns, except to the extent terminated with respect to a Lost Property. This does not address, directly or indirectly, whether a party may assign its rights or delegate its performance under this Agreement. The assignment language in Section 16(f) below addresses these matters.
b. Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party shall hold itself out as having any authority to enter into any contract or create any obligation or liability on behalf of the other party.
c. Governing Law. This Agreement will be governed by the laws of the State of California (except for conflict of law rules). Unless otherwise required by prevailing property laws, any dispute relating to this Agreement will be settled exclusively by arbitration in San Diego, California, in accordance with the rules of the American Arbitration Association then prevailing. The provisions of California Code of Civil Procedure §1283.05 as well as any amendments or revisions thereto are incorporated into this Agreement. In any action at law or in equity to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to recover expenses, including reasonable attorneys’ fees and costs, in addition to any other relief to which that party may be entitled.
d. Notices. Notices will be made electronically to Client at the most recent email address consistently used for Client-Company communications or by US Postal mail to the address provided in the most recent Order Document. Notices will be made electronically to Company at firstname.lastname@example.org, or via U.S. Postal mail to PayLease, LLC (DBA Zego), 9330 Scranton Road, Suite 450, San Diego, CA 92121, Attn: Legal Department.
e. Force Majeure. Except for the payment of monies when due, for the period and to the extent that a party is unable to perform, in whole or in part, its obligations under this Agreement, where such inability arises by reason of any court order, law, regulation, or agency rule or other governmental action or inaction, war, terrorism, cyber-attack, riot, strike, lockout, labor dispute, explosion, fire, storm, wind, flood, earthquake, pandemic, or other natural catastrophe or act of God (a “Force Majeure Event”), such party will be temporarily excused from its obligations that are so prevented until the abatement of the Force Majeure Event; provided that such party uses its best efforts to promptly overcome or mitigate the delay or inability to perform.
f. Assignment. Neither party may assign or transfer any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior consent (which shall not be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Documents), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this Section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
g. Severability. If any provision of this Agreement is found unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. All provisions which by their nature are intended to survive termination or expiration of the Agreement (including the definitions of capitalized terms identified herein, confidentiality obligations, limitations on remedies, payment terms, IP Rights and indemnities) will survive.
h. No Waiver; Hierarchy. The failure or delay of either party to require full performance of any provision hereof will in no manner affect the right of such party at a later time to enforce the same provision or any other provision. Any terms appearing in any of Client’s Order Documents (including any preprinted terms, but excluding all Order Documents signed by both parties) that differ from, are inconsistent with, or are in addition to the Agreement will be void unless accepted by Company in writing. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the Company Services Agreement, (ii) these Terms, an Order Document; and (iii) the Documentation.
i. Entire Agreement; Counterparts. The Agreement constitutes the entire agreement between Client and Company regarding Client’s use of the Solutions Suite and the Services detailed in the Company Services Agreement and supersedes all prior and contemporaneous agreements, representations, written or oral, concerning the subject matter of the Company Services Agreement. Except as otherwise set forth in the Agreement, the Agreement may only be amended or modified by mutual, written agreement of the authorized representatives of the parties. This Agreement may be executed in counterparts and may be validly executed and delivered by electronic transmission.
17. Definitions. The capitalized terms set forth in the Agreement shall have the meanings ascribed to such terms in accordance with how they are defined herein and hereafter. Definitions immediately below constitute a portion of the capitalized terms contained within the Agreement and the remainder are located as close as practicable to their introduction.
a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common Control with the subject entity.
b) “Agreement” means, collectively, the Company Services Agreement, these Terms, and all accompanying Order Documents.
c) “Control”, for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
d) “Documentation” means, individually and collectively, as the case may be and context requires, (a) Company’s online user guides, documentation, and help and training materials that describe the Service, as updated from time to time, accessible via Company support, and (b) in the case of Hardware, individually and collectively, as the case may be and context requires, the instruction manuals and instructions, warnings, and other information for such Hardware, including those displayed or affixed on the Hardware itself.
e) “Engage” and/or “Mobile Doorman” means the resident engagement application for mobile devices that provides for communication and service facilitation between property managers and residents.
f) “Hardware” means the hardware and other equipment and materials set forth on a purchase order (“PO”) that are required to have functionality of the Smart Service.
g) “Harmful Code” means code, files, scripts, agents, software routines, or programs designed or intended to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions, including, for example, viruses, worms, time bombs, and Trojan horses.
h) “Hub” is the hardware hub device that is located in a Resident’s Property unit which connects the Resident’s Hardware to the Smart Service.
i) “IP Rights” means (i) patents, patent applications, and statutory invention registrations, (ii) trademarks, service marks, trade dress, logos, trade names, domain names, and other source identifiers, together with all goodwill associated therewith, (iii) copyrights, trade secrets, including confidential and proprietary information and know-how, and (iv) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired, arising under Law, including, in each case, all applications, issuances, and registrations with respect thereto.
j) “Law” means all applicable federal, state, and local laws, codes, rules, regulations, and orders of any governmental authority.
k) “Manager Portal” is the administrative portal within the Solutions Suite that permits Clients to view its Residents’ use of and the performance of the Service.
l) “Order Document” means individually or collectively any addendum(s) (including property addition addendums), amendment(s), or POs entered into by Company and Client that are executed by both parties and are expressly incorporated into the Agreement.
m) “Pay” means the Service that provides (i) the facilitation of payments from Client’s Payer(s) who initiate payment transactions through the Company services via ACH or credit/debit card (including VISA, MasterCard, Discover, American Express), or other agreed payment options; (ii) the PayDirect Services which facilitate Client payments; (iii) the creation of a Merchant ID account for Client to enable Company to facilitate payments; and (iv) the crediting/debiting of Client’s bank account(s) provided by Client to Company in the name of the Client, and any IP Rights related to the foregoing.
n) “Property” or “Properties” means real properties either owned by or under the management of Client, including where Client is acting as owner’s agent, that are under contract for Services pursuant to the Agreement.
o) “Representatives” means, with respect to either party, such party, such party’s Affiliates, and its and their respective directors, officers, employees and agents.
p) “Resident” means the lessee of record and/or current occupant of real property owned or under the management of Client and receiving a Service pursuant to the Agreement.
q) “Resident Data” means the personally identifiable information and/or other information or data regarding Residents provided by Client or its Users to Company in connection with the Services and/or the Solutions Suite.
r) “Resident Provided Data” means the personally identifiable information or other information or data regarding Residents which (i) is submitted by Residents directly to Company via the Solutions Suite in connection with the Services and/or the Solutions Suite; (ii) is confirmed by Resident directly and/or via the Solutions Suite; and/or (iii) is independently acquired by Company from an unrelated third party source.
s) “Service” or “Services” means, individually and collectively, as the case may be and as the context requires: (i) Pay; (ii) Utility Resident Billing; (iii) UEM; (iv) Engage/Mobile Doorman; and/or (v) Smart.
t) “Service Data” means all data, content and statistics collected, processed, transmitted, maintained, possessed or generated by the Service, including geographic, demographic, economic, rental rates, occupancy rates, utility usage, utility consumption, etc; and with regard to payment processing information all information related to how a Payer is set-up through the Solutions Suite; and also including the results of any data analysis relating to any of the foregoing, including all Resident Provided Data. “Service Data” does not include Resident Data.
u) “Smart” means the “smart apartment” software solution that allows Residents to control certain smart home devices through Engage.
v) “Utility Expense Management (UEM)” means Company’s utilities expanse management services by which Company receives and processes utility bills and any IP Rights related to the foregoing.
w) “Utility Resident Billing” means our monthly rendering of Resident bills and charges and any IP Rights related to the foregoing.
x) “User” means an employee, consultant, third-party service provider, or agent of Client who is authorized by Client to access to and use the Solutions Suite (including the Manager Portal) and to whom Client (or Company at Client’s request) has supplied Credentials.
PAY SERVICES TERMS AND CONDITIONS.
The following terms and conditions are applicable to all Clients that utilize the Pay Services.
a. Agency/Obligations. Client appoints and authorizes Company as Client’s limited agent to act on Client’s behalf for the purpose of receiving, holding, facilitating, and settling payments to Client made by Payers. Company will settle to Client payments that are received by Zego less any fees or other obligations owed to Company. Client agrees that a payment received by Company, on behalf of Client, satisfies the Payer’s obligations to make the applicable payment to Client, regardless of whether Company actually settles such payment to Client, and accordingly, such payment obligation if considered satisfied and extinguished upon receipt. Subject to Law and card association rules, in the event that Company does not make any such payment to Client as described in this Agreement, Client will have recourse against Company and not Payer, as such payment is deemed made by Payer to Client upon receipt by Company. Company may engage one (1) or more payment processors to provide some or all of the Pay Services (a “Processor”), and may require Client to enter into terms and conditions with a Processor to facilitate the provision of the Pay Services to Client. If there is any conflict between the provisions of this Agreement and the terms and conditions of a Processor, the provisions of this Agreement will prevail.
b. American Express Card Acceptance. If you elect to utilize American Express Card services, the following terms and conditions apply. 1) Client agrees to comply with all Laws, rules and regulations, including the American Express Merchant Operating Guide requirements, which are incorporated into this Agreement by reference as if they were fully set forth in the Agreement. The American Express Merchant Operating Guide may be viewed at: www.americanexpress.com/merchantopguide. 2) Client is prohibited from processing transactions or receiving payments on behalf of, or (unless required by law) redirecting payments to any other party. 3(a) Client confers on American Express the beneficiary rights, but not obligations, to the Sponsored Merchant’s Agreement and subsequent addenda (collectively the “Amex Agreement”) between Client and Company, and, as such, American Express has the express right to enforce the terms of the Amex Agreement against the Client; and 3(b) Client warrants that it does not hold third party beneficiary rights to any agreements between Company and American Express and at no time will attempt to enforce any such agreements against American Express. 4) CLIENT ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL AMERICAN EXPRESS, ITS AFFILIATES, AGENTS, SUCCESSORS, OR ASSIGNS BE LIABLE TO SPONSORED MERCHANT FOR ANY DAMAGES, LOSSES, OR COSTS INCURRED, INCLUDING INCIDENTAL, INDIRECT, SPECULATIVE, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (WHETHER BASED ON CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, FRAUD, OR OTHERWISE, OR STATUTES, REGULATIONS, OR ANY OTHER THEORY), ARISING OUT OF OR IN CONNECTION WITH THE AMEX AGREEMENT.
c. Compliance with Law. Client acknowledges that it will not generate a transaction that violates Law or agrees and acknowledges that it will comply with the current applicable Law, including but not limited to the NACHA Operating Rules which govern the ACH Network. The “ACH Network” means the funds transfer system (“Network”) governed by the NACHA Operating Rules, which provides for the inter-financial institution clearing of electronic entries for participating financial institutions. Failure to comply with Law, including but not limited to the NACHA Operating Rules & Guidelines shall result in suspension or termination of the Pay Service. Additionally, Client shall provide any/all information requested by Company to allow Company to perform the required due diligence, underwriting, and/or know your customer (“KYC”) obligations (such information may include personal information). Company is required to follow Know Your Customer and Anti-Money Laundering regulations and must perform a review of Client, its principal and its authorized representative. Client authorizes Company, any reporting agency employed by Company, and any agents thereof, to investigate the references, statements and data provided by Client for Company to perform the Services. Company has no obligation to provide the Pay Service(s) unless and until such time as Company has conducted and Client has successfully completed (in Company’s sole discretion) Company’s due diligence, underwriting, and/or KYC review. Client certifies that neither Client nor any owner, officer, or authorized signer of Client has ever been terminated as a Visa, MasterCard, Discover or American Express merchant.
d. PayDirect Services. Company and/or its processor(s) may conduct regular quality assurance reviews as part of its regulatory obligations to ensure legal, compliance, and security standards are met, including requests for further details related to any of Client’s PayDirect transactions. Client agrees to respond to all requests within three (3) business days. Client’s failure to provide the requested transaction details, may result in the suspension of Client’s use of the PayDirect Service until a full response is provided.
ENGAGE AND MOBILE DOORMAN SERVICES TERMS AND CONDITIONS.
The following terms and conditions are applicable to all Clients that utilize the Engage and/or Mobile Doorman Services.
a. Client Content. Client understands and agrees that Company shall have no liability for any/all representation, statements, leases (including but not limited to lease agreements, lease agreement addenda, resident checklists, and any form that Residents execute), waivers, and/or other content (“Client Content”) provided to its Residents pursuant to the Engage and/or Mobile Doorman Services. Client is required to ensure that All Client Content is accurate, up-to-date, and complies with Law. Additionally, Client understands and agrees that Company will not, and has no obligation to, review the Client Content provided to a Resident pursuant to the Engage and/or Mobile Doorman Services and Company does not guarantee the enforceability or legality of any such Client Content. Client warrants that such Client Content has been reviewed and approved by their legal representation. Client shall indemnify Company for any Claim(s) related to the Client Content.
b. Mobile Doorman White Label Applications. In the event that the Resident user interface of the Mobile Doorman Services is customized pursuant to Client’s direction, including customization to brand the application with Client’s property name and/or logos (the “White Label App”), Client hereby grants to Company a nonexclusive, nontransferable worldwide license to use, copy, store, publicly display, transmit, reproduce and distribute Client’s logos, trademarks and/or service marks (collectively, “Client Trademarks”) as necessary for Company to provide the White Label App. Company shall not be responsible for compliance with the Americans with Disabilities Act (or similar legislation or legal requirements) with respect to the White Label App.
UTILITY RESIDENT BILLING SERVICES TERMS AND CONDITIONS.
The following terms and conditions are applicable to all Clients that utilize the Utility Resident Billing Services.
a. Utility Resident Billing Service – Scope.
i. Resident Billing Processor. Company will perform the Utility Resident Billing Services for each Property located in a state or locality whose laws or regulations do not prohibit Utility Resident Billing Services. Company will not collect any monies from Residents. Only Client will collect amounts owed by Residents. Company will provide Client with a monthly breakdown of the corresponding amounts billed for each utility, service, or fee to each Resident of the Properties.
ii. Implementation. Company will coordinate with Client to create an implementation schedule to begin receiving data and generating statements for Residents. Key information will be gathered and billing rules will be developed for review and approval before implementation will commence. Company will work with Client’s Property and IT personnel to establish and test a reliable data exchange process. Implementation will be completed following a mutually agreed upon schedule.
iii. Convergent Resident Statement Creation. Company will create a Resident statement for each unit in a Property for which Client has notified Company that there is a Resident. Per Client’s instructions, the statement may include, among other items, monthly rent, Resident balance forward, any concessions, late fees, Resident statement fees, special facilities charges, utilities expenses (e.g., water, sewer, gas, or other fees), and other agreed-upon ancillary items and service charges (e.g., pet fees, pest fees, trash, cable expenses, telephone expenses, parking fees, and other items). With the exception of the utilities expenses, Company does not review the other charges and/or fees and or information provided by Client for accuracy or compliance with Law.
iv. Rate Calculation. Company agrees to allocate utility usage per Client’s instructions and in compliance with Law. Company will prepare appropriate charges for each Resident based on utility usage information, the Resident move-in/move-out information, and the master meter invoices.
v. Submeter Reading and Calculation. Company will conduct submeter readings as needed for billing purposes from manual and/or remotely-read automatic metering systems. Client must provide for maintenance and repair of all sub-meter systems, per Company’s recommendations and/or the recommendations of the applicable equipment manufacturer or supplier. If a unit is occupied and the activated submeter shows no movement, the Resident will receive an estimated bill for utility usage based upon Company’s examination of comparable month’s utility usage (where allowed and as permitted by Law). Company reserves the right to suspend providing the Utility Resident Billing Service in the event that estimated readings, and the related subsequent billing statements, would be out of compliance. Company shall not be liable for any damages due to such suspension.
vi. Convergent Resident Statement Delivery. Company will provide Residents with a choice of receiving their Resident statement either via U.S. Mail or electronically via email (where allowed by Law). The Resident is responsible for establishing and maintaining their personal email address. Company assumes no responsibility for undelivered emails due to Resident failure to maintain a current email with Company, interruptions in services caused by internet service providers, web application providers, or others factors beyond Company’s control.
vii. Ledger Update. Company will update the property ledger with all Resident charges and fees that Company has calculated (such as Ration Utility Billing (“RUBS”) charges) so that Resident statements and property ledgers will maintain the same balances. Company will use automated data exchanges where possible.
viii. Licenses or Permits. If Law in the jurisdiction in which the Property is located requires Client to obtain any registration, approval, license, or permit required for the provision of the Services, Client hereby agrees to obtain such registration, approval, license, or permit.
b. Documentation. Client acknowledges that it is required to provide all of the information and documentation required by Company during the Service implementation process. Client understands that it may be required to affirm in writing that is has provided all such information and documentation during the implementation process. Company will not be liable to Client, any third party, and/or governmental agency for any fees, charges, fines, or other amounts resulting from Client’s failure to provide, and continue to update, the information and documentation required by Company to provide the Services.
c. Billing Errors. If there is a billing error on any Resident statement, and the parties agree that the error was caused by Company, Company has the right to deliver a corrected Resident statement and will do so within five (5) business days of the discovery of the error with no additional remedy to Client. Client will remain responsible for the fees payable to Company for such statement, but Company will deliver the corrected statement at no additional charge.
d. Property Access to Read Meters: At properties where submeters are manually read, Client grants Company and its affiliates permission to enter upon and access Properties as necessary during normal business hours to perform meter-read activities. Company shall employ commercially reasonable efforts to coordinate and schedule with each Property’s on-site management to minimize disruptions to Residents. A Property manager or designated agent must accompany Company personnel or personnel of its Affiliates into any occupied unit and remain there until the Company personnel exits the unit. Company may charge Client additional fees if units cannot be entered when scheduled.
e. No Legal Advice Provided. Client understands and agrees that any advice, suggestion(s), and/or best practices provided by Company to Client regarding any Law, utility billing calculation, or implementation shall not be considered legal advice and Client is fully responsible for consulting its own legal representation. Client warrants that these matters have been reviewed and approved by their legal representation. To the maximum extent allowed by law, Client agrees to waive any and all liability of Company as to these matters.
UEM SERVICES TERMS AND CONDITIONS.
The following terms and conditions are applicable to all Clients that utilize UEM Services.
a. Implementation. Company will coordinate with Client to create an implementation schedule to begin receiving and processing Client’s utility bills. Key information will be gathered and a user profile will be developed for Client’s review and approval before implementation and bill processing can begin. Implementation will be completed following an agreed upon schedule. Client must send all applicable utility providers a written notice authorizing Company to begin processing and paying the utility bills on Client’s behalf.
b. Invoice Processing. Following implementation, Company will receive and process invoices for utility payables. Utility bills may be received from the utility vendor in paper or electronic form. Utility invoices that Company receives will be entered and validated to ensure accuracy. During this process, key payment and utility data elements will be captured for management analysis purposes. Company will endeavor to process all invoices within five (5) business days of receipt. In instances where a vendor bills multiple modes of service from one utility account number, two or more unique utility account number records will be established, each with the base utility account number and a “payment-assigned” suffix.
i. If the parties jointly determine that a late fee was assessed due to a Company failure to process invoices as set forth herein, Company will reimburse Client for the late fee within thirty (30) days of the joint determination. Company will process all late fees as presented. After payment, Company will research any late fee of fifty dollars ($50.00) or greater if there is a reasonable time period between the pay date and next invoice due date. Company will then contact the utility vendor to seek a credit on eligible late fee amounts on the next billing. Company will provide a monthly status report of all assessed late fees that Client requests. Late fee research will only occur for those invoices that Company processes.
ii. Company agrees to receive and process invoices from third party utility vendors on Client’s behalf. For an additional charge, at Client’s request, Company will process payable invoices from non-utility vendors such as cable, telephone, and trash.
iii. Client agrees to notify its vendors of all necessary changes to Client’s account with such vendors and to execute any and all forms and authorizations as may be required to authorize Company to receive invoices directly from all relevant vendors. Company will provide reasonable assistance in this process upon Client’s request, but Client is ultimately responsible for effectuating any needed changes. Company will not be responsible for processing invoices from a specific vendor until Client’s necessary account changes are completed and Company has received the first invoice from the vendor.
iv. Company will make Client’s data and related account information (such as scanned images of invoices) available for Clients online access for up to six (6) months following the processing date of the invoice. Company reserves the right to modify the time frame for maintaining this electronic information in its sole discretion.
c. Payable Processing.
i. Company will analyze invoices received from vendors for the Properties. Company will work with Client to establish tolerances that help identify possible usage and financial exceptions and apply reasonableness tests, based on industry knowledge, to find and confirm billing errors. In cases where Company identifies that an error exists, Company will work with the vendor to resolve all identified errors and work to obtain a refund or credit for Client.
ii. Invoices will be automatically posted as a payable to Client’s designated general expense account for each vendor with a postdate matching the calendar date the invoice is processed, unless Client agrees otherwise in writing.
iii. Company will post payables using a standard naming convention which reflects the invoice number set by the vendor. If the invoice number is not available, then the following format may be used: Account # + mm/dd/yyyy (invoice date). Any additional annotations for payables will be entered in a standard format, for example: Utility Type + Meter Account # + Service Dates.
iv. Company will analyze and create a payable batch which will be available for Client’s review within five (5) business days after our receipt of an invoice. Company will not be responsible for any vendor late fees incurred due to delayed invoice mail delivery, Client’s failure to remit timely payment to a vendor, or any other reason beyond Company’s control.
v. Client agrees to conduct a timely review of all electronic data batch transmissions and identify any errors. Client further agrees to notify Company of any errors as soon as possible, but in all events no later than sixty (60) days after the processing date.
vi. Company will furnish standard payables control reporting and customized electronic general ledger interfaces to Client. During the Service implementation process, Company will work with Client to define all reporting frequencies and cut-offs.
d. Vacant Unit Management. When apartments are vacated, the utility service is often placed in Client’s name. Company will endeavor to update the mailing address associated with any landlord agreements that the site has in place so that these vacant invoices are mailed directly to Company’s processing facility. However, in the event that utility bills for vacant apartments are sent to the site, these must be forwarded directly to Company. Vacant unit bills are processed for payment, but are not audited due to their intermittent nature and a lack of comparable history.
f. Vacant Cost Recovery. Upon a new Resident occupying an apartment, at Client’s request, Company will help ensure that the utility costs are properly allocated to the new Resident and not paid by Client. To help ensure that the new Resident assumes responsibility for the utility costs in the apartment in a timely manner, Company will match the move-in date of the new Residents to those apartments billed in Client’s name. If Company find periods of time where a Resident was actually in occupancy, but the utility bill was left in Client’s name, Company will calculate a per diem rate for such period and help facilitate Resident billing. The minimum per diem rate is set at $5.00, which will be billed to the Resident and paid to Client; additionally, Company will bill Client the fee indicated on the Agreement. If Client provides Company with incorrect Resident data that results in erroneous vacant recovery identification, Client will be charged any associated or resulting fees. Additionally, if permitted by Law, this liquidated damage fee can be stated in the lease. Company will include the fee in the statement at the direction of the Client but Client is responsible for ensuring the charge is legal and reasonable.
g. Documentation. Client acknowledges that it is required to provide all of the information and documentation required by Client during the Service implementation process. Client understands that it may be required to affirm in writing that is has provided all such information and documentation during the implementation process. Company will not be liable to Client, any third party, and/or governmental agency for any fees, charges, fines, or other amounts resulting from Client’s failure to provide, and continue to update, the information and documentation required by Company to provide the Services.
h. No Legal Advice Provided. Client understands and agrees that any advice, suggestion(s), and/or best practices provided by Company to Client regarding any Law, utility billing calculation, or implementation shall not be considered legal advice and Client is fully responsible for consulting its own legal representation. Client warrants that these matters have been reviewed and approved by their legal representation. To the maximum extent allowed by law, Client agrees to waive any and all liability of Company as to these matters.
SMART SERVICES TERMS AND CONDITIONS.
The following terms and conditions are applicable to all Clients that utilize Smart Services.
a. Delivery to Residents. For Clients that enroll in Smart, such Services will be made available to Residents occupying Properties in accordance with this Agreement. Clients shall obtain from each Resident, prior to or contemporaneously with the Resident establishing residence at the Property, written consent executed by the Resident in substantially the same form as Appendix A (“Resident Consent”). Client will promptly notify Company in writing if any Resident subsequently withdraws such Resident Consent and Company may suspend Services for such Resident until such time as the Resident reinstates or re-executes the Resident Consent.
b. Use of the Service.
i. Right of Access. During the Term, at no charge to Company, Client hereby grants to Company and its Representatives, a nonexclusive right of access on, over, under, and through the Property and all its improvements, together with all rights of access, ingress, and egress to permit Company to exercise its rights and fulfill its obligations under this Agreement.
ii. Licenses or Permits. If Law in the jurisdiction in which the Property is located requires Client to obtain any registration, approval, license, or permit for the installation of any element of Smart, Client hereby agrees to obtain such registration, approval, license, or permit.
i. No Guarantee of Availability. Client acknowledges that Company has made no representation about the continued availability of any Hardware. In the event Company ceases to offer any Hardware previously offered, Client may choose from any remaining similar or reasonable substitute Hardware, which Client acknowledges may be of a different model or mechanical and electrical design.
ii. Client Reporting. Regarding any Hardware delivered by Company to Client, Client is solely responsible for failure to report shortages or damages promptly.
iii. Authorized Returns. Company will authorize the return of Hardware only if Client receives Hardware not included on the PO and Client notifies Company within thirty (30) days of delivery.
iv. Installation. Company (either itself or by a third party) or Client may install the Hardware. In the event that Client installs the Hardware, Client (or its designated third party installer), shall install the Hardware indicated on the PO (the “Client-Installed Hardware”) at the Property in a workmanlike manner and in compliance with Laws and any specifications provided by Company to Client. In the event that Company installs the Hardware, Company may charge installation fees as set forth in the Agreement and/or a PO. Company shall not be liable for any damages resulting from such installation.
v. Warranty. Client shall be solely responsible for ensuring that its installation of the Hardware will not invalidate any existing home or product warranty. Company shall not be liable for the loss of any warranty coverage, regardless of whether Company or Client (or its designated third party installer) installs the Hardware. COMPANY PROVIDES NO WARRANTIES WITH RESPECT TO ANY HARDWARE. ANY HARDWARE WARRANTY IS PROVIDED BY THE MANUFACTURER AND IS HEREBY ASSIGNED TO CLIENT, IF APPLICABLE.
vi. Powering the Hardware. Certain Hardware may require the use of batteries to function. Such Hardware will not function if the batteries are low or dead. Client is solely responsible for maintaining and replacing the batteries in such Hardware. Certain Hardware may require the use of electricity. Such Hardware will not function if not connected to a power source. Client is solely responsible for the maintenance and cost of such electricity. Use of a Smart thermostat may alter the amount of utilities (gas and/or electric) consumed by a Property. Company makes no representations regarding any such change to utility consumption and does not guarantee any energy savings.
vii. Internet Connectivity. Use of Smart is dependent on internet connectivity for both the Hardware and an internet device. Smart is more reliable when the Hub is connected to the internet through an Ethernet connection. Use of cellular connectivity may delay or prevent Smart’s functionality. Company cannot control cellular connectivity and is not responsible for the impact internet speeds may have on the functionality of Smart.
viii. Data, Connectivity, and Functionality of the Hub. Client understands and agrees that the Hub utilizes data entered by Client into its property management software. Client agrees to keep such information up-to-date and accurate. Additionally, Client understands and agrees that Hub firmware updates and functionality may fail in the event that a Hub is unplugged, not connected to cellular or Ethernet connection, or is otherwise offline. Client’s failure to provide up-to-date and accurate data and/or to maintain Hub connectivity may result in failures in the Hub functionality and Company shall not be liable for any damages resulting from such failure.
d. Not an Alarm or Security System. CLIENT ACKNOWLEDGES THAT NEITHER THE SERVICE NOR ANY PART THEREOF IS A HOME SECURITY SYSTEM AND THAT COMPANY WILL NOT MONITOR SIGNALS FROM THE SERVICE AT ANY TIME. COMPANY WILL NOT DISPATCH EMERGENCY AUTHORITIES OR PROVIDE NOTIFICATION IN CASES OF EMERGENCY. COMPANY DOES NOT WARRANT THAT THE SERVICE OR ANY COMPONENT THEREOF WILL PREVENT OR PROTECT AGAINST ANY LOSS, DAMAGE, OR INJURY TO ANY PERSON OR ANY PROPERTY UNDER ANY CIRCUMSTANCES. CLIENT ACKNOWLEDGES THAT NEITHER COMPANY NOR ANY OF ITS REPRESENTATIVES, SUPPLIERS, SERVICE PROVIDERS, OR SUBCONTRACTORS IS AN INSURER OF OR AGAINST, OR LIABLE FOR ANY POTENTIAL OR ACTUAL LOSS OR DAMAGE TO PERSON OR PROPERTY THAT MAY OCCUR IN OR AT THE PROPERTY.
This Addendum (“Addendum”) is entered into on the date set forth below between the parties set forth below (“Owner” and “Resident”). If more than one Resident executes this Addendum, the term “Resident” shall be interpreted to mean all such Residents collectively. It is intended to be a part of the [INSERT EXACT NAME OF LEASE AGREEMENT] between the parties for leasing a residential rental unit at [INSERT NAME OF BUILDING/ADDRESS] (“Property”).
Owner anticipates providing and/or is providing, via a third-party provider, currently PayLease, LLC (DBA Zego) (“Provider”), technology and devices to enable Resident to have a “smart apartment,” including without limitation the following internet connected devices: locks, light switches or bulbs, thermostats, and other hardware made available by Provider through a hosted software web-based platform and a mobile application (the “App”) that connects thereto (the “Provider Technology”). Because of changes in technology and opportunities, the Provider Technology and the associated devices may be fluid and continuing. Owner may change providers at any time for any reason and will provide notice thereof to Resident.
1. Installation of Devices. By executing this Addendum, Resident (for itself, its guests, service personnel, occupants, and other similar individuals of Resident) expressly acknowledges and agrees that the certain hardware devices may be installed at the Property, and consents and agrees to the installation, use, and maintenance of the Provider’s Technology at the Property.
2. Consent to Servicing and Upgrades. Resident consents to upgrades and servicing of the Provider Technology and access to the Provider Technology, including the App, by Owner, Provider, or the contractors or agents of either Owner or Provider to upgrade or service it.
4. Resident Shall Hold Owner and Provider Harmless. Neither Owner nor Provider shall be responsible for any damages or costs incurred by Resident resulting from the Provider Technology or App or the use thereof. Resident shall hold Owner and Provider harmless for any damages related in any way to the Provider Technology or the App.
5. Limited Liability of Owner and Provider. Neither Owner nor Provider shall be liable for any failures of the Provider Technology or any part of the App. Neither Owner nor Provider shall be liable for any damages (actual, consequential, or otherwise) related to the use, inability to use, failure, suspension, or any other related issues regarding the Provider Technology, including App. Resident acknowledges and agrees that neither Owner nor Provider represents or warrants that the Provider Technology and/or App works or will work as anticipated. Owner’s sole responsibility shall be to work as a conduit for resolution of any problems with the Provider Technology or the App.
6. Damage to Equipment; Reimbursement. Resident is responsible to notify owner within sixty (60) days of occupying the Property of any default of damaged smart apartment equipment. Resident will be responsible for reimbursing the Owner for replacement costs of any damage incurred to equipment beyond that of normal wear-and-tear during the occupancy of the Property.