Terms and Conditions
- Definitions.
“Applicable Laws” means all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority in any territory that has jurisdiction over the parties, whether those laws, etc., are in effect as of the Effective Date or later come into effect during the term of this Agreement.
“Authorized User” means each employee or agent of Customer (i) authorized by Customer to access and/or use the Platform for Customer’s internal business purposes in accordance with this Agreement; and (ii) to whom a password-protected account for use of the Platform has been created by or on behalf of Customer.
“Cover Page” means the signed cover page of this Agreement.
“Data” means all information and data input by Authorized Users into the Platform, and all derivatives and transformations thereof.
“Documentation” means the technical documentation generally made available by LeaseUp to its customers with regards to the Platform.
“Fees” means the fees identified on the Cover Page and any other fees and expenses payable by Customer as set forth in this Agreement.
“Platform” means the LeaseUp Platform, including all related software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) and the content therein (other than Data), as made available to Customer under this Agreement and as may be updated and modified by LeaseUp from time to time, which may include Third Party Content, and the Documentation.
“Property” means real property listed in the Platform by a User as available for commercial lease.
“Protected Information” means data or information protected by copyright or any other proprietary right, in each case of a third party, as to which Customer does not have the right to make available (on a non-royalty-bearing basis), directly or indirectly, to LeaseUp , other Users or the Platform. “Protected Information” may include (without limitation) photographs, descriptions or other text authored by or made available by third parties or on third party websites, or watermarked media of any kind.
“Subscription Term” means the period of time designated on the Cover Page.
“Third Party Content” means data, information, user interface designs, layouts, configurations or other elements provided by LeaseUp or third parties that may be made available to Customer and/or through the Platform.
“User” means either (i) an owner or landlord of a Property, or (ii) a broker representing persons or entities interested in leasing a Property, or (iii) a person or entity interested in leasing a Property. Customer qualifies as a User. - Access and Use.
2.1. Access to the Platform. Subject to Customer’s compliance with the terms of this Agreement, including its payment of Fees (if any), LeaseUp hereby grants to Customer a nonexclusive, limited, nontransferable right to access and use the Platform, in object code form, via LeaseUp’s internet-hosted web site, solely (i) for Customer’s own internal business purposes, (ii) for use by Authorized Users, and no other users, in support of Customer’s internal business purposes, (iii) for the term of the Subscription Period, and (iv) in accordance with this Agreement and with Applicable Laws. LeaseUp hereby grants to Customer a nonexclusive, limited, nontransferable right to use and copy the Documentation in support of the foregoing subscription.
2.2. Restrictions. Customer shall not use, or allow others to use, the Platform in any manner other than as expressly allowed in this Agreement. Customer may not (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Platform or its structural framework, (ii) sublicense, subcontract, translate, license or grant any rights to the Platform (including without limitation allowing any distribution or sublicense of the Platform or other access to the Platform by any person or entity that is not an Authorized User, or processing Data using the Platform on behalf of third parties or any affiliated entities), (iii) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Platform, (iv) harvest or collect information about or from other users of the Platform (v) probe, scan or test the vulnerability of the Platform, or breach the security or authentication measures on the Platform, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Platform (vi) modify or create derivative works of the Platform, (vii) attempt to gain unauthorized access to the Platform or its related systems or networks, (viii) use the Platform in whole or in part for any illegal purpose, or (ix) facilitate or encourage any violations of this Section 2.2. Customer shall (a) take all reasonable precautions to prevent unauthorized or improper use of the Platform, (b) not interfere with or disrupt the integrity or performance of Platform, (c) not attempt to gain unauthorized access to Platform or its related systems or networks, and (d) not create Internet “links” to the Platform or “frame” or “mirror” any content therein.
2.3. Acceptable Use Policy. Customer acknowledges that LeaseUp engages third party vendors to host the Platform, and may change such vendors from time to time. Customer shall at all times use the Platform in accordance with such vendors’ acceptable use policy as made available by LeaseUp to Customer from time to time (“AUP”), and the AUP is incorporated into this Agreement in its entirety as if fully set forth herein. As of the Effective Date, LeaseUp’s hosting provider is AWS, and Customer shall comply with AWS’ AUP found at https://aws.amazon.com/aup/. LeaseUp will use commercially reasonable efforts to identify any changes to its hosting provider by posting this information within the Platform. Customer acknowledges that the vendor’s AUP may change from time to time, and that it is Customer’s responsibility to check the current vendor’s AUP regularly to ensure its continued compliance.
2.4. Security. Customer shall ensure the security of its account ID, password, and connectivity with the Platform. If any administrative account ID or password is stolen or otherwise compromised, Customer shall immediately change the password and inform LeaseUp of the compromise. Customer acknowledges that responsibility for all Data, text, information, messages and other material submitted by its users to the Platform lies solely with Customer. Customer is solely responsible for the integrity and quality of Data, and for maintaining an appropriate backup thereof. LeaseUp may change the authorization method for access to the Platform if it determines in its sole discretion that there are circumstances justifying such changes. LeaseUp is not responsible for loss of any data in transmission or improper transmission by Customer or its users. - Third Party Content. If any Third Party Content is made available to Customer, Customer may use such Third Party Content solely in connection with its use of the Platform as permitted herein. LeaseUp has no warranty, support, indemnity, or other obligations with respect to Third Party Content that was created or modified by Customer or any third party. Customer’s use of certain Third Party Content may be subject to additional third party terms and conditions separately required by the providers of such Third Party Content. LeaseUp and its suppliers and licensors disclaim responsibility for the use, content, accuracy, timeliness, completeness or availability of Third Party Content and make no warranty concerning such information. CUSTOMER USES SUCH THIRD PARTY DATA, INFORMATION, OR SERVICES AT ITS OWN RISK.
- Customer Data. As between the parties, Customer has and shall retain sole and exclusive title and ownership of all Data. Customer grants to LeaseUp a limited and nonexclusive license to use, copy, modify, distribute and display the Data for purposes of providing the Platform to Users in accordance with this Agreement. Customer will not use data, content, information or materials from other Users except to use the Platform as permitted herein. Customer acknowledges that LeaseUp cannot control Users’ use of the Platform and there is a risk that Users may use Data other than as permitted by LeaseUp. As between the parties, in connection with the activities contemplated hereunder, Customer will be solely responsible for all use of Data by Customer and for compliance with any third-party license or other terms and conditions of use for Data (including ensuring that Authorized Users have required account credentials to use the Data, if applicable). Customer represents and warrants to LeaseUp that (i) Customer has sufficient rights in the Data to grant the license to LeaseUp herein, (ii) Customer’s use of Data complies with all Applicable Laws, and (iii) Customer will not make Protected Information available, directly or indirectly, (a) to LeaseUp or other Users through this Agreement, or (b) to the Platform. LeaseUp may remove any Data at any time in LeaseUp’s sole discretion (including due to any demand to remove such Data by an alleged third party copyright holder).
- Payment. Customer shall pay LeaseUp the Fees as set forth on the Cover Page. Unless otherwise set forth on the Cover Page, Customer will be invoiced for applicable subscription Fees on a monthly basis, in advance. Unless set forth otherwise on the Cover Page, all invoiced amounts will be due and payable upon Customer’s receipt of the invoice. Amounts outstanding beyond thirty (30) days from the invoice date will be subject to a late payment charge at the lesser of one and one half percent (1.5%) per month or the highest rate permissible under Applicable Law for the actual number of days elapsed. All billing and payment will be in United States dollars. All fees and payments hereunder are nonrefundable and exclusive of all taxes, including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (except taxes on the income of LeaseUp), and Customer agrees to pay such taxes, whether federal, state, local, or municipal. If Customer fails to make payments when due, LeaseUp may, upon notice to Customer, suspend Customer’s access and use of the Platform until such payments are made. Customer will continue to be charged Subscription Fees during any period of suspension. LeaseUp may impose a reconnection fee if Customer is suspended pursuant to this Section and thereafter requests access to the Platform. Customer agrees and acknowledges that LeaseUp has no obligation to retain Data and that such Data may be irretrievably deleted if Customer’s account is delinquent for thirty (30) days or longer.
- Security. LeaseUp shall implement and maintain commercially reasonable technical, physical, and administrative safeguards to protect the security and confidentiality of Data. LeaseUp shall take steps, including the use of anti-virus software, designed to prevent a virus or other malware from being transmitted from its systems or software to Customer through the Platform.
- Term and Termination.
7.1. Term. The term of this Agreement will commence on the Effective Date and continue through the Subscription Period unless and otherwise terminated in accordance with this Section 7.
7.2. Termination. If either party materially breaches any term or condition of this Agreement, and if such breach has not been cured by the breaching party within thirty (30) days after its receipt of notice of such breach, the non-breaching party may immediately terminate this Agreement. Each party may terminate this Agreement immediately upon notice if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, or if the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, and such petition or proceeding is not dismissed within sixty (60) days of filing.
7.3. Effect of Termination. Upon termination of this Agreement, Customer’s right to access or use the Platform shall immediately cease and except as otherwise provided herein, LeaseUp will have no obligation to maintain, deliver or provide access to any Data. Customer’s payment obligations, and Sections 8.1, 9.2, 10, 11.3, 12, 13 and 14 will survive expiration or termination of this Agreement. Upon any termination of this Agreement, Customer shall pay any balance due to LeaseUp pursuant to Section 5. Expiration or termination of this Agreement shall immediately terminate all subscription and access rights granted to Customer herein. - Ownership.
8.1. Reservation of Rights. All rights not expressly granted to Customer herein are expressly reserved by LeaseUp. As between the parties, the Platform is and will remain the exclusive property of LeaseUp, and LeaseUp will retain ownership of all copyrights, patents, trademarks, trade secrets, know-how, databases, and other intellectual property rights relating to or residing in the Platform and any updates, improvements, modifications and enhancements (including error corrections and enhancements) thereto, and all derivative works thereof, and Customer will have no right, title, or interest in or to the same. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of LeaseUp’s or its licensors’ existing or future rights in or to the Platform. LeaseUp trade names, trademarks, service marks, titles, and logos, and any goodwill appurtenant thereto, shall be owned exclusively by LeaseUp and shall inure solely to the benefit of LeaseUp.
8.2. Violations of Law. LeaseUp may immediately suspend provision of or access to the Platform at any time, without notice to Customer and without liability, if LeaseUp suspects or becomes aware that the Platform or any use thereof may infringe or violate any third party rights, or may violate Applicable Laws. LeaseUp may suspend Customer’s and its users’ access to and use of the Platform in order to comply with Applicable Laws, or upon having reason to believe that any improper activity or potential damage to LeaseUp products or services or other customers is associated with Customer’s or its users’ use of or access to the Platform. - Platform Specifications and Requirements.
9.1. Platform Requirements. As between the parties, Customer is responsible for obtaining and maintaining all computer hardware, software, communications and office equipment needed to access and use the Platform, and for paying all associated third-party access charges.
9.2. Use of Data. LeaseUp may monitor any and all use of the Platform by Customer and its users. LeaseUp may gather Customer system and usage data for the purpose of optimizing the Platform. This information includes, but is not limited to, data regarding memory usage, connection speed and efficiency. LeaseUp may use such data, the Data and Customer’s Confidential Information (as defined in Section 10.1) for its business purposes, including, but not limited to, the identification of trends and the formulation of statistics, and may disclose the same, provided that in connection with such use or disclosure, (i) such data and information are aggregated and do not identify individuals or Customer, and (ii) such data and information shall not be identifiable as originating from Customer.
9.3. Changes to the Platform. LeaseUp may make changes, upgrades and improvements to the Platform. LeaseUp may modify or delete any features of the Platform. LeaseUp may, at any time, modify the Platform, or substitute old features with new features that have similar or improved functionality, as may be necessary to meet Applicable Laws or industry-standard requirements or requirements of third party service providers. - Confidentiality.
10.1. Confidential Information. Each party acknowledges and understands that, except as set forth in Section 10.2, any and all technical, trade secret, and business information, including, without limitation, financial information, business or marketing strategies or plans, product development or customer information, and information otherwise obtained by the other, its affiliates, employees, representatives or other agents pursuant to this Agreement (the “Confidential Information”) is confidential and proprietary, constitutes trade secrets of the owner, and is of great value and importance to the success of the owner’s business. Non-public elements of the Platform constitute LeaseUp’s Confidential Information. Customer acknowledges that Data will be published within the Platform and therefore does not constitute Confidential Information.
10.2. Exceptions. The parties shall have no obligation hereunder with respect to any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; or (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the disclosing party and which third party rightfully acquired such information. A disclosure of Confidential Information shall not be a violation of this provision if it is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process, provided the disclosing party provides prompt notice of any such subpoena, order, etc. to the other party so that such party will have the opportunity to obtain a protective order.
10.3. Obligations. Both parties shall maintain as confidential and shall not disclose (except for those employees, attorneys, accountants and other advisors, agents or authorized users of the recipient and its affiliates on a need-to-know basis and who have in turn been advised of the confidentiality obligation hereunder), copy, or use for purposes other than in connection with use of the Platform as authorized hereunder, the other party’s Confidential Information. Each party agrees to protect the other party’s Confidential Information with the same degree of care a prudent person would exercise to protect its own confidential information and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. Each party shall be liable under this Agreement to the other for any use or disclosure in violation of this Agreement by its employees, attorneys, accountants, or other advisors, agents or authorized users. - Limited Warranties.
11.1. Customer Warranties. Customer represents, warrants and covenants that (i) Customer will comply with all Applicable Laws with respect to its and its users’ access to and use of the Platform; and (ii) Customer has received all third party consents and certifications necessary for the transmission of Data to the Platform. LeaseUp is not responsible for ensuring that the Platform, or any portion thereof, is in compliance with Customer’s criteria for legal compliance.
11.2. Warranties. LeaseUp warrants to Customer that, when used in accordance with the Documentation, the Platform will comply in all material respects with the Documentation during the Subscription Term (“Product Warranty”). LeaseUp’s sole obligation under the Product Warranty, and Customer’s sole and exclusive remedy for any breach of the Product Warranty, shall be for LeaseUp to use commercially reasonable efforts to correct any nonconformity.
11.3. Disclaimers. EXCEPT FOR THE WARRANTY PROVIDED IN SECTION 9.2, LEASEUP AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PLATFORM AND ANY INFORMATION, MATERIALS AND SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LEASEUP DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR ANY ASSOCIATED SERVICES WILL BE AVAILABLE, ERROR FREE, COMPLETELY SECURE, VIRUS FREE, OR WITHOUT INTERRUPTION, OR THAT THEIR FUNCTIONS WILL MEET ANY PARTICULAR REQUIREMENTS, OR THAT PROGRAM DEFECTS OR ERRORS ARE CAPABLE OF CORRECTION OR IMPROVEMENT. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Customer acknowledges that LeaseUp is not responsible for the integrity of data and information, including without limitation, Data, including completeness, accuracy, validity, authorization for use and integrity over time, and LeaseUp shall not be responsible for any loss, damage or liability arising out of the Data, including any mistakes contained in the Data or the use or transmission of the Data, and any use of the Data by other Users. Customer accepts sole responsibility for, and acknowledges that it exercises its own independent judgment in, its selection and use of Data and any results obtained therefrom, and acknowledges the risks in making Data available to other Users through the Platform. - Indemnification.
12.1. By LeaseUp. LeaseUp, at its own expense, shall: (i) defend, or at its option settle, any claim, suit or proceeding brought by a third party against the Customer and its affiliates and its and their licensors, suppliers, officers directors, employees and agents alleging that the Platform (other than User data, including Data) infringes an existing United States copyright or trademark; and (ii) pay any final and non-appealable judgment entered or settlement against Customer thereon; provided, however, that LeaseUp shall not be responsible for any compromise or settlement made without its prior consent. If the Platform is or may become the subject of such a claim, LeaseUp may, at its option: (1) modify or replace the affected parts so the Platform become non-infringing or (2) terminate this Agreement and refund Customer for any prepaid and unused fees. LeaseUp shall have no obligation with respect to any infringement claim based upon (a) Data or (b) Customer’s or its users’ combination, operation or use of the Platform with non-LeaseUp applications, information or services if the infringement claim would have been avoided had such combination, operation or use not occurred. Where infringement claims arise with respect to third party products, LeaseUp’s sole obligation is to pass through to Customer any indemnity that may be available to Customer under the terms and conditions of the agreement between LeaseUp and such third party vendor. THIS SECTION STATES THE ENTIRE LIABILITY OF LEASEUP, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT INVOLVING THE PLATFORM.
12.2. By Customer. Customer will, if instructed by LeaseUp, defend, and in any event indemnify, and hold harmless LeaseUp and its affiliates and its and their licensors, suppliers, officers directors, employees and agents, from and against any and all losses, liabilities, damages, costs and expenses (including without limitation reasonable attorneys’ fees, settlements and judgments) arising out of or incurred as a result of: (i) any breach of this Agreement by Customer and/or its users; (ii) Customer’s and its users’ use of the Platform or any component thereof; and/or (iii) Data; provided, however, that Customer shall not be obligated to indemnify the LeaseUp entities to the extent the claim is caused by LeaseUp’s gross negligence, misconduct, and/or breach of this Agreement or if the claim is covered by LeaseUp’s indemnification obligation in Section 12.1.
12.3. Process. Each party’s indemnification obligation under this Section 12 is conditional upon: (a) the indemnified party giving the indemnifying party prompt notice upon becoming aware the claim; (b) the indemnified party giving the indemnifying party the right to solely control and direct the investigation, preparation, defense and settlement of the claim; and (c) the indemnified party fully cooperates with the indemnifying party, at the indemnifying party’s expense, in such defense and settlement. The indemnified party shall have the right, at its cost, to employ counsel of its choice to participate in the defense of such claim. - Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LEASEUP AND ITS LICENSORS AND SUPPLIERS WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM AND ANY SERVICES RENDERED HEREUNDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF LEASEUP IS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. LEASEUP’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED AMOUNTS ACTUALLY PAID BY CUSTOMER TO LEASEUP DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING ANY SUCH LIABILITY.
- General.
14.1. Assignment. The Agreement and all rights and obligations hereunder are not assignable or transferable by Customer without the prior written consent of LeaseUp, and any attempt to do so shall be void.
14.2. Force Majeure. LeaseUp will not be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control.
14.3. Governing Law and Venue. This Agreement is deemed to be made under and shall be interpreted in accordance with the laws of Massachusetts, excluding its conflict of laws provisions. Any suit or proceeding relating to this Agreement shall be brought only in the state and federal courts located in Boston, Massachusetts and both parties hereby submit to the jurisdiction of such courts.
14.4. Independent Contractors. Customer and LeaseUp are independent contractors and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the parties. Except as otherwise specifically provided in this Agreement, neither party will have or represent that such party has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party.
14.5. Notices. All notices and consents required or permitted under this Agreement must be in writing; must be personally delivered or sent by registered or certified mail (postage prepaid) or by overnight courier, in each case to the addressed listed on the first page of the Agreement and will be effective upon receipt. Notices to LeaseUp should be sent to the attention of its Chief Executive Officer. Email notices shall not suffice under this Section. Each party may change its address for receipt of notices by giving notice of the new address to the other party.
14.6. Severability. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible.
14.7. Waivers. The failure of either party to enforce any provision of this Agreement, unless waived in writing by such party, will not constitute a waiver of that party’s right to enforce that provision or any other provision of this Agreement.
14.8. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement.
14.9. Remedies Cumulative. The enumeration herein of specific remedies shall not be exclusive of any other remedies unless otherwise expressly stated herein. Any delay or failure by any party to this Agreement to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, shall not be construed to be a waiver of such right, power, remedy or privilege, nor to limit the exercise of such right, power, remedy, or privilege, nor shall it preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege.
14.10. Entire Agreement. This Agreement supersedes all prior discussions, understandings and agreements with respect to its subject matter. Any terms on a purchase order, payment document, or other document submitted by Customer shall be void and have no force or effect.
