This Client Agreement (Agreement) sets forth the terms and conditions under which PropertyBoss Solution, LLC (PropertyBoss) will provide property management software and related services including system hosting. Please read the terms carefully. By signing or accepting any PropertyBoss agreement, order form or otherwise that is contingent upon the acceptance of the terms of this Agreement, the Client will indicate your agreement with them. If the Client are entering into this Agreement on behalf of a company or other legal entity, your acceptance represents that the Client have the authority to bind such entity to these terms, in which case “Client” will refer to your entity.
1. ACCEPTANCE OF AGREEMENT AND AMENDMENT PROCEDURES
This Agreement will become effective upon the execution hereof and the final acceptance by PropertyBoss of any Order. Final acceptance by PropertyBoss may be conditional upon the Client completing specified requirements including, but not limited to, making initial payments to commence work, successfully passing a credit check and/or accepting the scope of Services (defined below) to be provided. PropertyBoss reserves the right to reject any Order or agreement for any reason prior to its final acceptance by PropertyBoss.
PropertyBoss reserves the right to modify this Agreement at any time, and without prior notice, by posting an amended Agreement at http://PropertyBoss. com/legal. The Client is encouraged to review any amended Agreement. A listing of material changes to this Agreement and their effective dates is provided at the same web address.
The continued use of any services or offerings provided by PropertyBoss indicates the Client’s acceptance of the amended Agreement. The Client is encouraged to check the above link periodically for amendments and their effective dates. This Agreement consists of the following: (i) this Client Agreement, (ii) any Order executed by the Client and accepted by PropertyBoss, and (iii) any Addendum to this Client Agreement.
2. DESCRIPTION OF SERVICES
PropertyBoss provides software, consulting services and hosting services (“Services”) which include:
- developing and utilizing software and software documentation for the purpose of designing, deploying, operating and maintaining property management software (“Software”),
- providing web consulting services that include the development and design of websites, website features and website functionality, training, support and other services utilized in the development, deployment, operation, maintenance and support of websites (“Website Services”) and
- providing web hosting services that include the hosting of websites and web services by PropertyBoss (“Hosting Services”).
Unless explicitly stated otherwise, any new features, options, resources or offerings that augment or enhance the current Services are subject to the terms of this Agreement
The exact type, features, options, scope, duration, price and/or terms of the Services provided to the Client are specified in an order, order scope or the like provided by PropertyBoss and accepted by the Client and PropertyBoss ( “Order”). ALL SERVICES PROVIDED BY PROPERTYBOSS REQUIRE A VALID ORDER AND, NOTWITHSTANDING THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE CLIENT IS BOUND BY ALL SUCH TERMS AND CONDITIONS SPECIFIED IN THE ORDER.
In order to use the Services, the Client may require access to the World Wide Web, either directly or through devices that access web-based content, and pay any fees associated with such access. The Client is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for their access to and use of the Services, and for all related fees. When the Client employs credit cards or bank drafts for conducting transactions, The Client is responsible for obtaining, maintaining and paying all related fees for a PropertyBoss approved gateway and merchant account for handling such transactions.
3. INTELLECTUAL PROPERTY AND OWNERSHIP
All computer programs and other technology utilized by PropertyBoss to provide the Services are owned by PropertyBoss or its licensors, and the Client does not acquire any ownership interest therein. The Client shall not (i) tamper with, copy, merge, decompile, or disassemble any such computer programs and other technology (ii) nor shall the Client disclose, share, or transmit any identification or password code provided by PropertyBoss with any third party without the express written consent of PropertyBoss. Any rights granted to the Client to use such computer programs and other technology is solely for the purpose described herein and for no other purpose or use.
PropertyBoss shall be deemed the sole author and owner of all Common Gateway Interface, Hyper Text Markup Language code, Java script, Perl script, Visual Basic script, PowerBuilder code and any other code or programming acquired, created, developed or learned by PropertyBoss during the course of providing the Services, whether at the instance of PropertyBoss or as customization or other copyrightable authorship requested by the Client. the Client hereby assigns to PropertyBoss any and all rights, title and ownership interests which the Client may have in any works of authorship developed in conjunction with PropertyBoss during the course of providing the Services and will not attempt to prohibit or enjoin PropertyBoss at any time from utilizing any skills, knowledge, technical expertise, product or feature enhancements or any other information acquired, learned or developed during the course of providing the Services.
Proprietary Marks. PropertyBoss, other PropertyBoss product and service names, and all of their related logos, are each proprietary trademarks of PropertyBoss (“PropertyBoss Marks”). Without the prior written permission of PropertyBoss, the Client agrees not to display or use in any manner the PropertyBoss Marks, except as provided for in this Agreement.
4. DEFAMATION; COMMUNICATIONS DECENCY ACT NOTICE
PropertyBoss is a provider of “interactive computer services” under the Communications Decency Act, 47 U.S.C. Section 230, and as such, PropertyBoss’s liability for defamation and other claims arising out of any postings by third parties to any PropertyBoss hosted, operated or maintained system or website is limited as described therein. PropertyBoss is not responsible for content or any other information entered by the Client or other third parties. PropertyBoss neither warrants the accuracy of such information, nor assumes any legal obligation or liability in connection with such information, including any responsibility or liability for investigating or verifying the accuracy of any content.
The Client acknowledges that PropertyBoss is not an editor or publisher of any graphics, text or data provided to PropertyBoss (“Content”) and that PropertyBoss has no responsibility for screening, policing, editing, or otherwise monitoring this Content. Notwithstanding the forgoing, PropertyBoss reserves the right to refuse to use or to remove any Content (i) for which the Client is not able to verify ownership or rights of use to the satisfaction of PropertyBoss, or (ii) which, in the judgment of PropertyBoss, is inappropriate or suspect under applicable laws.
The Client agrees that PropertyBoss shall be entitled to the maximum protection allowed by law, including, without limitation, 17 U.S.C. § 512.
Charges – General. The Client shall pay to PropertyBoss all fees and other specified payments (“Charges”) for Services in accordance with this Agreement and the Order. All payments for Charges shall be made in U.S. Dollars. In all cases, payments for Charges are due on the dates specified in the Order. All Services are provided by PropertyBoss on a non-refundable basis. The Client is liable for all amounts payable to PropertyBoss hereunder, and all such payment obligations shall survive the expiration or termination hereof. In addition to any other remedies that may be available to PropertyBoss under this Agreement (including without limitation, in connection with the termination of this Agreement) or applicable law.
PropertyBoss will immediately cease all Services and other related work if any Charges are not paid in full by the dates specified on The Order. If Charges are paid in full within fifteen (15) days after the payment due date, PropertyBoss will re-commence Services and all future Charges shall be due per the original terms and dates of the Order. Charges not paid in full within fifteen (15) days after the payment due date shall be subject to an additional late fee. Charges not paid in full within thirty (30) days after the payment due-date shall be in default (“Payment Default”) and subject to the Payment Default terms stated in this Agreement.
Payment Default. For Charges in Payment Default, PropertyBoss reserves the right to use self-help to the greatest extent permitted by law, including, but not limited to, electronic remedies to obtain such Charges and any related fees. The Client also shall pay to PropertyBoss all expenses incurred by PropertyBoss in exercising any of its rights under this Agreement or applicable law with respect to the collection of a Payment Default, including without limitation, reasonable attorneys’ fees and the fees of any collection agency retained by PropertyBoss.
Pass Through Items and Other Expenses. PropertyBoss shall have the right at any time during any term of this Agreement to pass through and invoice to the Client any new or increased fees, assessments, taxes or other charges imposed on or required to be collected by PropertyBoss by any governmental agency or any new or increased charges by any carrier that affect PropertyBoss’s costs in providing the Services. The Client also will be responsible for paying any sales, license and use taxes, fees, or assessments levied by any local, state or federal government or governmental agency with respect to the provision of Services under this Agreement. The Client will pay and be solely responsible for all taxes, fees and charges levied directly upon them.
Changes in Charges. Except as provided elsewhere in the Agreement, the prices and fees charged by PropertyBoss for its Services are only applicable for the Services or dates of Services specified in the Order. PropertyBoss will have the right, upon notice required by applicable laws, to change the amount or basis for determining any fee or charge or institute any new fees or charges for any new, incremental or additional Services or Orders. Upon the Automatic Renewal of Hosting Services, PropertyBoss will have the right, upon thirty (30) days notice and subject to applicable laws, to change the amount or basis for determining any fee or charge or institute any new fees or charges for Hosting Services.
Software. PropertyBoss grants the Client a personal, non-transferable, non-exclusive and revocable license to use the Software as outlined in a separate license agreement. PropertyBoss reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to the Client. If any revision or modification to the Software materially changes the Client’s ability to conduct business, the Client’s sole remedy is to cancel the Services.
Third Party Software. With respect to any elective, additional software that may be made available by PropertyBoss in connection with the Software, if the Client elects to download or access such additional software, the Client acknowledges that they may have to agree to additional terms and conditions before they may use such software.
Services. PropertyBoss shall provide the Services defined in the Order in accordance with the terms and conditions hereof and the applicable Order. In the event of any inconsistency or conflict between this Agreement and any Order, the Agreement shall control.
Services Contact. The Client shall designate one individual as the principal contact (“Contact”) for communicating with PropertyBoss regarding the Services. Any decisions made by the Contact with regard to the Services provided hereunder are binding upon the Client. The Client may change the Contact by written notice to PropertyBoss.
Changes. Any requested change(s) in the scope of Services specified in an Order must be agreed to by PropertyBoss in writing. Such changes may require modification of fees charged and/or delivery estimates.
Co-Branding. All websites developed by PropertyBoss shall display, at PropertyBoss’s option, a “powered by PropertyBoss™” line, logo or other graphic or phrase with a similar meaning.
The Client hereby grants to PropertyBoss the right to publicly perform and display any website developed by PropertyBoss for the purposes of marketing and advertising PropertyBoss’s Services.
Hosting Service. Subject to the terms and conditions of this Agreement, PropertyBoss shall attempt to provide the Hosting Service for twenty- four (24) hours a day, seven (7) days a week throughout the term of this Agreement. the Client acknowledges and agrees that from time to time the Hosting Service may be inaccessible or inoperable for any reason, including, without limitation: (i) repair, maintenance or improvement procedures or repairs that PropertyBoss may undertake at its own discretion; (ii) equipment malfunctions; or (iii) causes beyond the control of PropertyBoss or that are not reasonably foreseeable by PropertyBoss , including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. The Client agrees that PropertyBoss has no control of availability of the Hosting Service on a continuous or uninterrupted basis and that the Client shall not be entitled to any discount, refund or other credit for interruptions to the Hosting Service. The Client is responsible for all expense associated with maintaining its internal network, software, browsers and Internet connections sufficient to use the Hosting Service.
The Client grants to PropertyBoss all rights which may be necessary to provide the Hosting Service including, but not limited to, accessing and monitoring use of the website without notification, receiving and/or storing commands or data transmitted to and/or from the website by Internet users, transmitting web page data and storing, displaying and/or transmitting any other related or necessary data or information.
Protection of Information. The Client is solely responsible for preventing password-protected screens and information from being accessed by unauthorized persons and for any damage caused by such unauthorized access.
Identifications and Passwords. PropertyBoss shall provide the Client with a unique identification and password for accessing the Services that will provide the Client the ability to view and modify their generated identifications and passwords. The Client is solely responsible for the security and proper use of such identifications and passwords, and the Client agrees to take all reasonable steps to ensure that such identifications and passwords are kept confidential, secure, used properly, and not disclosed to unauthorized persons. The Client shall immediately notify PropertyBoss in the event that the Client has any reason to believe that such identifications and passwords have become known to unauthorized persons.
9. CLIENT CARE
Payment in full of all Services fees entitles the Client to technical assistance (“Client Care”) made available by PropertyBoss. PropertyBoss reserves the right to alter, at its sole discretion, the extent of any Client Care provided for the Services, and the hours and means of access by which it is available. PropertyBoss may offer, as an option and for a fee and subject to additional terms and conditions, additional types and levels of assistance.
10. SYNDICATED CONTENT
Syndicated Content. The Client is solely responsible for obtaining and properly licensing and paying any and all associated fees for any content, data, information or other assets provided by a third party (“Syndicated Content”) and displayed, offered or otherwise used in conjunction with the Client’s Services. The Client acknowledges and agrees that PropertyBoss shall not be responsible for obtaining, providing or otherwise offering any such Syndicated Content and that the termination of any such Syndicated Content by a third party does not relieve the Client of any of the obligations of the Agreement.
11. ELECTRONIC COMMERCE
Online Commerce. PropertyBoss may provide the Client, as an option and for a fee, certain features and functionality as a part of its Services which enable the Client (i) to engage in commerce which may, in full or in part, be conducted electronically through the Client’s website, and/or (ii) to collect information including personally identifiable information from the website’s visitors (“Online Commerce”). If the Client elects to conduct Online Commerce, the Client confirms and warrants that PropertyBoss is not the selling agent, distributor, marketer or other affiliate, and that the Client is solely responsible for each and all of the following: the operation and conduct of the Online Commerce (including, without limitation, the accuracy and appropriateness of advertising claims, content and related materials); the calculation and application of pricing, coupons, totals, shipping and sales, use, or other tax; and the purchase transactions with users, including, without limitation, order receipt, product delivery, payment terms and payment collection. The Client confirms and warrants that the content and materials appearing online or related to products do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. In no event shall PropertyBoss be liable for any claims, damages or losses arising out of or in connection with such transactions.
Credit Card Transactions. The Client acknowledges and agrees that the Client is solely responsible for processing credit card transactions and between the Client and any PropertyBoss approved credit card processing company as the Client may contract with. The Client is responsible for completing any applications or paying any fees, charges or otherwise owed in conjunction with the processing of such credit card transactions and shall assume full liability for meeting any obligations, financial or otherwise, that arise out of engaging in such credit card transactions. The Client further acknowledges and agrees that PropertyBoss shall not be responsible in any way for the collection and disbursement of funds due to the Client as a result of such credit card transactions.
Security of Visitor/Customer Information. By conducting Online Commerce, the Client acknowledges and agrees to accept full responsibility and liability for the security of any customer credit card numbers and any other related visitor or customer information, financial or otherwise, including without limitation any and all personally identifiable information which the Client may access, collect, be in receipt of, or archive through conducting Online Commerce and to treat all such information as confidential to the extent required by law. PropertyBoss will treat all such information as confidential. Regarding data security, PropertyBoss’s sole and exclusive obligation and liability will be to undertake commercially reasonable measures consistent with prevailing industry standards to safeguard all such data and information.
Financial Calculations. The Client acknowledges and agrees that the Client is solely responsible for the accuracy of any financial calculations that may be performed in conjunction with conducting Online Commerce including, but not limited to, the calculation of pricing, compensation, commissions, payments due, payments owed or any other financial calculations and any and all obligations, financial or otherwise, that may arise out of such calculations. Furthermore, the Client shall verify the accuracy of any such financial calculations prior to making or accepting any payments based on such financial calculations and, in the event the Client determine an inaccuracy in such a calculation, the Client is responsible for providing written notification of such inaccuracy to PropertyBoss and subsequently verifying that any and all corrections made by PropertyBoss are correct and accurate.
Anti-Spam Policy. The Client acknowledges and agrees to a zero-tolerance anti-spam policy. The Client acknowledges and agrees that the Client will not upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation via e-mail. This includes any e-mail originating from PropertyBoss servers, or e-mail originating from third party servers that contains any variation of a domain name or hyperlink to a domain name that is hosted on a PropertyBoss server. Violation of this policy is grounds for immediate termination of this Agreement and the permanent cancellation of any websites, domain names, e-mail accounts, and other Services without refunds or financial concessions of any kind. In addition, the Client is liable for any reasonable expenses, including the time of PropertyBoss employees associated with removing PropertyBoss server or Internet Protocol addresses from any “black lists” or other lists associated with the use of such solicitations.
Downloading of Data or Files. The Client acknowledges and agrees that PropertyBoss cannot and does not guarantee or warrant that files available for downloading through a PropertyBoss server and facilities will be free of infection, viruses, worms, Trojan horses or other means or code that manifests contaminating or destructive properties. The Client is solely responsible for implementing sufficient procedures to satisfy the particular requirements for virus detection and remediation regarding downloadable files, accuracy of data input and output, and for maintaining a means external to PropertyBoss for the reconstruction of any lost data. The Client also expressly recognizes that the Internet contains unedited materials, some of which may be unlawful, indecent, or offensive, and access to such materials by the Client is done at their sole risk.
13. ORDER CANCELLATION AND REFUNDS
Software Purchases. Software products are available for a 30-day evaluation. Clients are encouraged to fully evaluate the Software prior to purchasing Services. Evaluation software downloaded from our website at propertyboss.com is fully functional and includes complete online documentation.
After purchase, Software is covered by an additional 15-day return guarantee. If the Client is not completely satisfied, send a written refund request within 15 days of purchase by e-mail to firstname.lastname@example.org or by fax/mail. Return of all purchased items including a signed Letter of Destruction will be required prior to processing a refund. All returns are subject to a 15% reprocessing fee and approval by the PropertyBoss Client Care group. Payment method of the balance (original purchase price less reprocessing fee, shipping and handling, training, implementation, and client care fees that are non-refundable) will be at the discretion of PropertyBoss typically by mailing a check for the balance.
Classroom Training – Reschedules. Students may reschedule a class without penalty by notifying PropertyBoss at least fifteen (15) days prior to the class date. If the Client needs to cancel or reschedule their class date within the fifteen (15) day period, the Client may send a substitute from their organization to avoid any cancellation fees provided that the person meets class prerequisites.
Classroom Training – Cancellations. Registrants may cancel up to fifteen (15) days prior to the start date of class and will be reimbursed or rescheduled without penalty. Cancellations made with seven (7) days notice are subject to a cancellation fee of 50% of the list price for the class. Registrants that do not show for class or provide less than seven (7) days notice will be assessed a no show fee of 100% of the list price for the class.
PropertyBoss reserves the right to cancel or reschedule a training course. If a class is cancelled or rescheduled, registrants will be notified a minimum of fourteen (14) days in advance of the first class date. Should PropertyBoss cancel a course, our liability is limited to the return or credit of the registration fee. PropertyBoss is not responsible for any other costs to students (e.g. airline penalties) incurred because of cancelled classes.
Onsite Training. The Client may cancel up to fifteen (15) days prior to the scheduled onsite and will be reimbursed or rescheduled without penalty. Cancellations made with seven (7) days notice are subject to a 50% cancellation fee. The full amount is charged with less notice. If expenses are incurred (i.e. non-refundable airline tickets) at the request of the Client, the Client is responsible for these expenses.
Web-based Training. The instructor will attempt to contact the student for up to fifteen (15) minutes past the scheduled start time. A cancellation/rescheduling fee of 1/4 (15 minutes) of the standard hourly billing rate will be charged if the web session is abandoned.
14. TERM AND TERMINATION
Agreement Term. The term of this Agreement shall commence immediately upon the acceptance by PropertyBoss of the Order and shall continue for the duration of the term specified in the Order. After the expiration or termination of this Agreement, any existing Order then still in effect shall continue unaffected and in full force and effect unless otherwise terminated as provided herein or in such Order.
Automatic Renewal of Hosting Services. After the expiration of the original term as specified on the Order, Hosting Services shall renew from month-to-month at the prevailing prices for such Hosting Services unless sooner terminated by either party.
Termination. The Client agrees that PropertyBoss may terminate any Service without prior notice, upon the occurrence of any of the following: (i) breaches or violations of this Agreement or other incorporated agreements or guidelines, (ii) requests by law enforcement or other government agencies, and (iii) a request by the Client pursuant to the terms herein. Termination of Services includes (i) immediate termination of all Services and Services-related work, (ii) removal of the application from the PropertyBoss server, (iii) deletion of identification and password and related information, files and content associated with or inside the application, and (iv) barring further use of the Services. Further, the Client acknowledges and agrees that PropertyBoss shall not be liable to the Client or any third-party for any termination of their Services or access to their application. PropertyBoss will archive all data stored in databases maintained by PropertyBoss for a period of thirty (30) days after termination. If the Client requests a copy of such data and pays to PropertyBoss its then current fee for processing the data during the thirty (30) day period, PropertyBoss will record such data on media and in a format mutually agreed upon and transmit such data to the Client. If no request is made for a copy of such data or if a mutual agreement is not reached within the thirty (30) day period, PropertyBoss may destroy all such data without liability.
Automatic Termination. Unless PropertyBoss promptly after discovery of the relevant facts notifies the Client to the contrary in writing, this Agreement and the Order(s) will terminate immediately without notice upon the institution of insolvency, bankruptcy, or similar proceedings by or against PropertyBoss, any assignment or attempted assignment by PropertyBoss for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for PropertyBoss.
Rights and Obligations on Termination. Upon termination of this Agreement, PropertyBoss and the Client shall have no obligations to each other except as provided in this Agreement. Upon termination of this Agreement, the Client shall (i) pay all amounts due and owed to PropertyBoss without deduction of any amount and (ii) immediately cease using the Services. Any amounts due and owed to PropertyBoss not paid in full upon termination shall be Payments in Default and subject to the terms of this Agreement.
Waiver. The Client expressly waives any statutory or other legal protection in conflict with the provisions of this section.
15. MUTUAL EXCHANGE OF CONFIDENTIAL INFORMATION
The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this section terms governing the use and protection of certain information one party (“Owner”) may disclose to the other party (“Recipient”). For purposes hereof, “Confidential Information” means the terms and conditions hereof, and other information of an Owner (i) which relates to the purpose and subject matter of the Services, including the business models and plans of Owner and Owner’s plans for the design of an application, including without limitation, Non-Public Personal Information, or (ii) which, although not related to the Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Owner or an affiliate to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure. “Non-Public Personal Information” means any of the following information accessible through or archived in connection with any application operated by or for Owner: any identifier that permits physical or online contacting of a specific individual person, including without limitation, any one or more of (i) first and last name, (ii) home or physical address, (iii) e-mail address, (iv) telephone number, or (v) social security number. Recipient may use Confidential Information of Owner only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees and contractors who are bound by signed, written agreements sufficient to enable Recipient to enforce all the provisions of this section. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner; or (iv) is independently developed by Recipient without reference to Confidential Information.
16. LIMITATION OF LIABILITY
The parties acknowledge that the limitations set forth herein are integral to the amount of fees levied in connection with this Agreement, and that, were PropertyBoss to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. PropertyBoss does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the Services or any information that may be obtained there from is at the Client’s risk. PropertyBoss shall have no responsibility or liability for the accuracy or quality of information obtained through its Services. PropertyBoss shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to the Client resulting, directly or indirectly, from any (i) weather conditions, natural disasters or other acts of God, (ii) action of any governmental or military authority, (iii) failure caused by any supplier of electricity, or telecommunication or other Internet provider, or (iv) other force or occurrence beyond its control. The exclusive remedy against PropertyBoss for any damages whatsoever to the Client arising out of or related to this Agreement shall be the refund of the lesser of $1,000 or the total fees paid by the Client to PropertyBoss within the past 60 days with respect to the then current term of this Agreement.
PROPERTYBOSS SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE SERVICES BY THE CLIENT OR ANY THIRD PARTIES EVEN IF PROPERTYBOSS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) ANY LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, MIS-DELIVERIES OR SERVICE INTERRUPTIONS, OR VIRUSES, “HACKING”, ACCESS OR INTRUSIONS CAUSED BY THIRD PARTIES. PROPERTYBOSS PROVIDES THE SERVICES “AS IS” AND “WITH ALL FAULTS”, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES OF COMPLETENESS, ACCURACY, FREEEDOM FROM INTERRUPTION, OR OF VERIFICATION OF CONTENTS. PROPERTYBOSS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE CLIENT SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND PROPERTYBOSS SHALL HAVE NO LIABILITY THEREFORE.
The limitations of liability provided herein shall inure to the benefit of PropertyBoss and all PropertyBoss affiliates and to all of the respective officers, directors, attorneys, employees and agents of PropertyBoss and such other entities (“Limited Liability Parties”). The limitations of liability afforded PropertyBoss in this Agreement shall apply whether (i) the action in which recovery is sought is based in contract, tort (including without limitation, negligence, product liability, or strict liability), statute or otherwise or (ii) a Limited Liability Party is alleged to be liable jointly with one or more parties or otherwise. The forgoing limitations will not apply to the extent damage, loss, or injury is caused by the willful tortuous misconduct or gross negligence of PropertyBoss.
The immediately preceding paragraphs are intended to be independent of each other and the failure of the essential purpose of one shall not affect the other.
17. MUTUAL INDEMNITY
Each party (“Provider”) will at its expense defend and indemnify the other party (“Recipient”) against a claim that any information, design, specification, instruction, software, data or material furnished by the Provider (“Material”) and used by the Recipient hereunder infringes or violates a Proprietary Right of another, provided that: (i) the Recipient notifies the Provider in writing within thirty (30) days of the claim; (ii) the Provider has sole control of the defense and all related settlement negotiations; and (iii) the Recipient provides the Provider with the assistance, information, and authority reasonably necessary to perform the above; reasonable out-of-pocket expenses incurred by the Recipient in providing such assistance will be reimbursed by the Provider. The Provider shall have no liability for any claim of infringement resulting from: (i) the Recipient’s use of a superseded or altered release of some or all of the Material if infringement would have been avoided by the use of a subsequent unaltered release of the Material which the Provider provides to the Recipient; or (ii) any information, design, specification, instruction, software, data, or material not furnished by the Provider. In the event that some or all of the Material is held or is believed by the Provider to infringe, the Provider shall have the option, at its expense: (i) to modify the Material to be non-infringing; or (ii) to obtain for the Recipient a license to continue using the Material. If it is not commercially feasible to perform either of the above options, then the Provider may require from the Recipient return of the infringing Material and all rights thereto. THIS INDEMNITY SECTION STATES THE PARTIES’ ENTIRE LIABILITY AND EXCLUSIVE REMEDY FOR INFRINGEMENT.
Except for actions to protect propriety rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Greenville, South Carolina. The arbitrator shall apply the laws of the State of South Carolina to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by e-mail or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested. Notices to PropertyBoss shall be sent to:
PropertyBoss Solutions, LLC
56 Pointe Circle
Greenville, SC 29615
Attn: Client Agreement Notice
or via fax to (864) 242-1721.
PropertyBoss may provide notice to the address, e-mail address or facsimile provided by the Client as part of this Agreement. Such notice will be deemed to be given when received.
20. CONTINUING OBLIGATIONS
The following obligations shall survive the expiration or termination hereof: (i) any and all limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of protecting the proprietary rights of either party or any remedy for breach thereof, (iii) the payment of taxes, duties, or any money to either party hereunder, and (iv) the return of materials to either party.
This Agreement and the documents or instruments referred to herein contain the entire agreement and understanding between the parties with respect to the subject matter hereof and supersede all prior oral or written agreements or understandings between the parties relating thereto. This Agreement may be modified only in writing signed by the parties.
This Agreement shall be construed under the laws of the State of South Carolina, without regard to its principles of conflicts of law. The parties agree that any action arising under or in connection with this Agreement shall be brought in the state or federal courts in Greenville County, South Carolina, and the parties hereby waive any rights to assert jurisdiction or venue in any other court. Client rights and obligations under this Agreement are not assignable without the prior written consent of PropertyBoss. PropertyBoss may assign its interest hereunder without the consent of the Client. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. Nothing contained in this Agreement, express or implied, is intended to confer upon any person or entity, other than the parties hereto and their permitted assigns, any rights or remedies of any nature whatsoever by reason of this Agreement.
If any provision in this Agreement is held invalid, void, or unenforceable by a court of competent jurisdiction, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way. If and to the extent the provisions of this Agreement conflict with 17 U.S.C. § 512, 17 U.S.C. § 512 shall control.
Government Restricted Rights Legend. Any Software or Services which are used by or transmitted for or on behalf of the United States of America, its agencies and/or instrumentalities (U.S. Government), are provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is PropertyBoss Solutions, LLC, 403 Woods Lake Road, Suite 208, Greenville, SC 29607.
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