APARTMENTIQ GENERAL TERMS AND CONDITIONS
These ApartmentIQ General Terms and Conditions (the “Terms”) are entered into between MoveIn, Inc. d/b/a Rentable (“Rentable”) and the entity that has executed an Order Form (as defined below) that references and incorporates these Terms by reference or who has registered an account for access to a limited trial to the ApartmentIQ Platform (as defined below) (“Customer”) and governs Customer’s access to and use of the Services (as defined below), subject to the Authorized User Acknowledgement included in the following paragraph, which is binding on Authorized Users who access the ApartmentIQ Platform. These Terms and the Order Form, constitute the complete understanding between Customer and Rentable on the subject matter (“Agreement”) and is effective on the earlier of: (a) the date that the Order Form is fully executed by the parties, or (b) Customer’s initial access to and use of the Services, whether or not on a Trial basis (“Effective Date”). By entering into an Order Form and/or otherwise accessing or using the Services, the signatory to the Order Form (or the initial administrative user for the Platform, if no Order Form is signed) represents and warrants that she or he has the right and authority to enter into this Agreement on behalf of the Customer, and that this Agreement will be binding on and enforceable against Customer. If the signatory does not have such authority, or Customer does not otherwise agree to these Terms or the Agreement, Customer is not authorized to access or use the Services.
AUTHORIZED USERS ACKNOWLEDGMENT: Where a Customer has entered into an Order Form for access to the ApartmentIQ Platform or registered an account for access to a limited trial to the ApartmentIQ Platform (“Trial”), and you are using the ApartmentIQ Platform on behalf of the Customer or by virtue of Customer’s acceptance of these Terms, then you represent and warrant that you have the legal right and authority from the Customer to access and use the ApartmentIQ Platform as an Authorized User in accordance with the Terms hereof. You acknowledge and agree that you have read the Terms herein and agree to comply with the rights and restrictions set forth herein, as they relate to Authorized Users, including Section 3.2 below.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the ApartmentIQ Platform.
1.2 “Authorized User” means each of Customer’s or its Properties’ employees, agents, and independent contractors who are authorized to access the ApartmentIQ Platform pursuant to Customer’s rights under this Agreement.
1.3 “Customer Data” means any content and information provided or submitted by, or on behalf of, Customer or its or their Authorized Users for use with the Services, including, without limitation data sourced by or on behalf of Rentable from any Customer Platform (“Customer Platform Data”).
1.4 “Customer Platforms” means Customer’s analytics, CRM, warehouse, marketing, websites (including all websites for the Properties) and other data sources from which the ApartmentIQ Platform may create insights, scoring and workflows.
1.5 “Documentation” means the technical materials provided by Rentable to Customer in hard copy or electronic form describing the use and operation of the ApartmentIQ Platform.
1.6 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.7 “Order Form” means any written order form or other ordering document signed by Rentable and Customer referencing these Terms, and containing the pricing, subscription term, and other specific terms and conditions applicable to Customer’s access to and use of the Services.
1.8 “Properties” means the property or properties listed on the Order Form, or as otherwise agreed by the Parties in writing, which have access to the ApartmentIQ Platform pursuant to Customer’s rights under this Agreement.
1.9 “ApartmentIQ Platform” means Rentable’s dynamic reporting software-as-a-service platform marketed as “ApartmentIQ”, as further described in an Order Form, that allows Authorized Users to access certain features and functions through a web interface and is designed to collect, analyze, and deliver competitive data, analytics, and insights to Properties daily.
1.10 “Reports” means reports, results, insights, and other materials or information made available to Customer as part of the Services.
1.11 “Services” means any services provided by Rentable to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the ApartmentIQ Platform and creation and delivery of Reports.
1.12 “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Rentable as required for use of the ApartmentIQ Platform. The current requirements are described in the Documentation.
2. PROVISION OF SERVICES.
2.1 Access. Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), Rentable will provide Authorized Users with access to the ApartmentIQ Platform. On or as soon as reasonably practicable after the Effective Date, Rentable will provide to Customer the necessary passwords, security protocols, and policies and network links or connections and other Access Protocols to allow Customer, each Property, and its and their Authorized Users to access the ApartmentIQ Platform in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the ApartmentIQ Platform, and notify Rentable promptly of any such unauthorized use known to Customer. Customer may permit any Authorized Users to access and use the features and functions of the ApartmentIQ Platform as contemplated by this Agreement. Notwithstanding the Authorized User Acknowledgment above, Customer shall be responsible for the acts or omissions of each of its Authorized Users in connection with their access to the ApartmentIQ Platform hereunder. Any breach of this Agreement by an Authorized User will constitute a breach by Customer of this Agreement.
2.2 Customer Cooperation. Customer acknowledges that Customer’s timely provision of, and Rentable’s access to, assistance, cooperation, complete and accurate information and data, Customer’s personnel, premises and suitably configured computer, network, and equipment, along with successful integration with Customer Platforms (as applicable) and Customer’s performance of any of its obligations under this Agreement or specified in an Order Form (collectively, “Cooperation”) are essential to performance of any Services, and that Rentable will not be liable for any deficiency in performing Services if such deficiency results from Customer’s failure to provide full Cooperation.
2.3 Trial Terms. THE TERMS IN THIS SECTION ONLY APPLY TO CUSTOMERS ACCESSING THE APARTMENTIQ PLATFORM ON A TRIAL BASIS. From time to time, in its sole discretion, Rentable may offer access to the ApartmentIQ Platform for a limited period of time (as designated at the time such Trial is purchased via the Order Form or on Rentable’s ApartmentIQ website) (“Trial Period”). Customer acknowledges that the features and functionality of the ApartmentIQ Platform for any such Trial are limited and the ApartmentIQ Platform made available during such Trial may not contain all features and functionality made available to commercial users of the ApartmentIQ Platform. Customer’s Trial will continue solely for the Trial Period and is subject to these Terms, other than Sections 6.1 and 9, which will not apply during any Trial Period. Customer’s Trial may be subject to additional restrictions, which will be set forth on the applicable Order Form or presented to Customer as part of registration for the Trial on the ApartmentIQ website. Following the end of the Trial Period, Customer acknowledges and agrees that Customer’s right to access and/or use the ApartmentIQ Platform is terminated and any further use of the ApartmentIQ Platform will require Customer to enter into a separate Order Form and will be subject to payment of the applicable Fees described herein. Further, Customer acknowledges and agrees that Rentable may suspend and/or terminate Customer’s access to the ApartmentIQ Platform during any Trial Period for any or no reason.
3. INTELLECTUAL PROPERTY.
3.1 License Grant. Subject to the terms and conditions of this Agreement (and any restrictions set forth on an Order Form, including with respect to number of Properties), Rentable grants to Customer a non-exclusive, non-transferable (except as permitted under Section 12.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form and this Agreement, (a) to access and use the features and functionality of the ApartmentIQ Platform in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the ApartmentIQ Platform.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the ApartmentIQ Platform, Reports or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the ApartmentIQ Platform, Reports or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the ApartmentIQ Platform or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the ApartmentIQ Platform, except as permitted by law; (e) interfere in any manner with the operation of the ApartmentIQ Platform or the hardware and network used to operate the ApartmentIQ Platform; (f) modify, copy or make derivative works based on any part of the ApartmentIQ Platform or Documentation; (g) access or use the ApartmentIQ Platform or the Reports to build a similar or competitive product or service; (h) attempt to access the ApartmentIQ Platform through any unapproved interface; or (i) otherwise use the ApartmentIQ Platform, Reports, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Rentable or its licensors on the Reports or any copies thereof.
3.3 Ownership. The ApartmentIQ Platform, Reports and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Rentable and its suppliers. All rights in and to the ApartmentIQ Platform and Documentation not expressly granted to Customer in this Agreement are reserved by Rentable and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the ApartmentIQ Platform, Documentation, or any part thereof.
3.4 License to Reports. Subject to the terms and conditions of this Agreement, Rentable grants Customer a perpetual, royalty-free, fully paid, nonexclusive, non-transferable (except as permitted under Section 12.5 (No Assignment)), non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes and not for any other purpose, including any competitive purpose.
3.5 Feedback. Customer hereby grants to Rentable a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Rentable will not identify Customer as the source of any such feedback.
4. FEES AND EXPENSES; PAYMENTS.
4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Rentable under this Agreement, Customer will pay to Rentable the Fees. Except as otherwise provided in the Order Form, all Fees are due and payable within fifteen (15) days of the date of the invoice. All Fees are non-refundable. Rentable reserves the right to modify the Fees payable hereunder upon written notice to Customer at least thirty (30) days prior to the end of the then-current term. Rentable will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided Rentable has furnished such documentation for authorized expenses as Customer may reasonably request. Rentable reserves the right (in addition to any other rights or remedies Rentable may have) to discontinue the ApartmentIQ Platform and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than fifteen (15) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
4.2 Automatic Billing. To the extent Customer elects to have all Fees automatically billed to Customer’s preferred payment method, as set forth on the Order Form, Customer acknowledges and agrees that Rentable may automatically charge Customer the applicable Fees for the continued access to and use of the ApartmentIQ Platform monthly, in advance, and Customer hereby agrees to pay such Fees which may be billed via the payment method associated with Customer’s account, as set forth on the Order Form.
4.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Rentable’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the ApartmentIQ Platform to Customer. Customer will make all payments of Fees to Rentable free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Rentable will be Customer’s sole responsibility, and Customer will provide Rentable with official receipts issued by the appropriate taxing authority, or such other evidence as Rentable may reasonably request, to establish that such taxes have been paid.
4.4 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5. CUSTOMER DATA, PLATFORM AND RESPONSIBILITIES.
5.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Data. Customer represents and warrants that it has or will obtain all third party licenses, consents and permissions needed for Rentable to collect, access, use, and otherwise process the Customer Data to provide the Services. Without limiting the foregoing, Customer will be solely responsible for providing all notices to, and obtaining from, third parties, all necessary rights and consents for Rentable to use the Customer Data for the purposes set forth in this Agreement. Customer grants Rentable a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Customer Data as necessary for purposes of providing and improving the Services, (b) to access the Customer Platforms, including the Customer’s websites (including websites for the Properties), in order to obtain Customer Data for providing and improving the Services and (c) derive aggregated, de-identified and/or anonymized data from Customer Data (“Derived Data”). Rentable will be the sole owner of all such Derived Data and will have the right to use such Derived Data for any lawful business purpose. The Customer Data, Customer Platforms, and all worldwide Intellectual Property Rights in them, are the exclusive property of Customer or its licensors. All rights in and to the Customer Data not expressly granted to Rentable in this Agreement are reserved by Customer.
5.2 Customer Platforms. Customer shall provide Rentable all necessary access credentials, information and assistance required to perform integration with the Customer Platforms, including, as applicable, by making available such resources of its Customer Platform providers, including any applicable application programming interfaces (“Customer Platform API”), as reasonably necessary to complete such integration. Customer authorizes and hereby grants to Rentable a non-exclusive, non-transferable (except as permitted under Section 12.5 (No Assignment)) license during the Term (as defined below), to access the Customer Platforms, Customer Platform APIs and the Customer Platform Data and to use each of the foregoing solely to provide the Services. Customer represents and warrants that it has the right and unrestricted ability to grant the foregoing license. Customer acknowledges and agrees that Rentable’s ongoing provision of the Services is dependent on the availability of the Customer Platforms, Customer Platform API connection(s), and Customer Platform Data, and Rentable shall have no liability in connection with their unavailability.
5.3 Customer Warranty. Customer represents and warrants that any Customer Data and/or Customer Platforms will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Rentable’s system or data; and (e) otherwise violate the rights of a third party or any applicable law, rule or regulation. Customer further represents and warrants that it will not use the Services, or any outputs or insights generated from use thereof, in violation of any law, rule or regulation. Rentable is not obligated to back up any Customer Data; the Customer is solely responsible for creating backup copies of any Customer Data at Customer’s sole cost and expense. Customer agrees that any use of the ApartmentIQ Platform contrary to or in violation of the representations and warranties of Customer in this Section 5.3 (Customer Warranty) constitutes unauthorized and improper use of the ApartmentIQ Platform. Customer agrees to provide Rentable with such information, access and cooperation as Rentable may reasonably require from time to time for Rentable to deliver and provide the Services.
5.4 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Data and will be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order to access the ApartmentIQ Platform. Customer will have the ability to export its own Customer Data and the Reports out of the ApartmentIQ Platform and is encouraged to make its own back-ups of the Customer Data. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
6. WARRANTIES AND DISCLAIMERS.
6.1 Limited Warranty. Rentable represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Rentable in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, Rentable will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Rentable’s option, refund the fees paid by Customer for the Services which gave rise to the breach.
6.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 (LIMITED WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6 (WARRANTIES AND DISCLAIMERS), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, REPORTS, AND DOCUMENTATION ARE PROVIDED “AS IS,” AND RENTABLE MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. RENTABLE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE APARTMENTIQ PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT (I) THE INFORMATION PROVIDED WITHIN THE APARTMENTIQ PLATFORM ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND RENTABLE DOES NOT WARRANT THAT THE RESULTS OR INSIGHTS PROVIDED WITHIN THE APARTMENTIQ PLATFORM OR THROUGH ANY REPORTS ARE ACCURATE; (II) CUSTOMER IS SOLELY RESPONSIBLE FOR, AND RENTABLE DISCLAIMS ANY AND ALL LIABILITY FOR, ALL DECISIONS REGARDING THE CONDUCT OF CUSTOMER’S BUSINESS, WHETHER OR NOT SUCH DECISIONS ARE MADE IN RELIANCE ON REPORTS OR OTHER INFORMATION PROVIDED WITHIN THE APARTMENTIQ PLATFORM; AND (III) CUSTOMER IS SOLELY RESPONSIBLE FOR, AND RENTABLE DISCLAIMS ANY AND ALL LIABILITY FOR, THE SUCCESS OF CUSTOMER’S BUSINESS.
6.3 Third-Party Data. Customer acknowledges and understands that access to and use of the Platform and/or Services depends in part on access to data provided by third-party sources (“Third Party Data”) to create the results and insights derived from the Third Party Data and included in Reports. Rentable is not responsible for the accuracy, currency, or completeness of the Third Party Data and makes no representations or warranties regarding the Third Party Data. The parties acknowledge and agree that the accuracy of the Reports are dependent on the accuracy and completeness of the Third Party Data. In addition, Rentable cannot guarantee the Third Party Data will always be available. Please note that if a source of Third Party Data becomes unavailable or Rentable’s access to such source is terminated by the third-party service provider, then the Third Party Data will no longer be available to be analyzed and the Reports will be affected accordingly.
7. LIMITATION OF LIABILITY
7.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO RENTABLE DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL RENTABLE’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY CAUSED BY SUCH CONDUCT.
7.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8. CONFIDENTIALITY.
8.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Rentable.
8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Rentable). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
8.3 Exceptions. The confidentiality obligations set forth in Section 8.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
9. INDEMNIFICATION.
9.1 By Rentable. Rentable will defend at its expense any suit brought against Customer, and will pay any settlement Rentable makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the ApartmentIQ Platform infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the ApartmentIQ Platform becomes, or in Rentable’s opinion is likely to become, the subject of a claim of infringement, Rentable may, at Rentable’s option: (a) procure for Customer the right to continue using the ApartmentIQ Platform; (b) replace the ApartmentIQ Platform with non-infringing software or services which do not materially impair the functionality of the ApartmentIQ Platform; (c) modify the ApartmentIQ Platform so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the ApartmentIQ Platform and Documentation. Notwithstanding the foregoing, Rentable will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the ApartmentIQ Platform not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the ApartmentIQ Platform in combination with other products, equipment, software or data not supplied by Rentable; or (iii) any modification of the ApartmentIQ Platform by any person other than Rentable or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Rentable, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
9.2 By Customer. Customer will defend at its expense any suit brought against Rentable, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, (b) Customer’s breach or alleged breach of Sections 3.2 (Restrictions) 5.3 (Customer Warranty) or 12.6 (Compliance with Law); (c) the acts or omissions of Customer, Authorized Users, or Customer’s employees, officers or agents; or (d) any Customer Platform, Customer Platform Data, or use of Customer Platform API. This section states the sole and exclusive remedy of Rentable and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
9.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10. TERM AND TERMINATION.
10.1 Term. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current term.
10.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
10.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 8 (Confidentiality); and (c) any amounts owed to Rentable under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 4 (Fees and Expenses; Payments), 6.2 (Disclaimer), 7 (Limitation of Liability), 8 (Confidentiality), 9 (Indemnification), 10.2 (Termination for Breach), 10.3 (Effect of Termination), 11 (Marketing), and 12 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
11. MARKETING. Notwithstanding anything else in this Agreement, Customer hereby grants to Rentable the express right to use Customer’s company name and logo on ApartmentIQ’s website and in marketing and publicity materials and other communications to identify Customer as an ApartmentIQ customer and display Customer’s generalized sales increases as a result of using the Services. Customer further agrees to Rentable’s publication of a press release and/or case study regarding its use of the Services provided hereunder; provided that Rentable shall not publish any such press release or case study without Customer’s approval, which approval shall not be unreasonably withheld or delayed.
12. MISCELLANEOUS.
12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Dane County, Wisconsin for any lawsuit filed there against Customer by Rentable arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Rentable, or any products utilizing such data, in violation of the United States export laws or regulations.
12.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that (a) this Agreement will automatically be assigned to any successor or subsequent owner of a Property, and the original Property Owner will provide Rentable with at least thirty (30) days’ prior written notice of such assignment, and (b) either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors (including successors of any Property) and permitted assigns.
12.6 Compliance with Law. Customer will always comply with all foreign and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Reports and Documentation.
12.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, pandemic, epidemic, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.8 Independent Contractors. Customer’s relationship to Rentable is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Rentable.
12.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Rentable, by emailing info@rentable.co and if to Customer by emailing the Customer email address listed on the applicable Order Form, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
12.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
12.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Rentable.