The Terms and Conditions of this Document Storage Software License Agreement (“Terms and Conditions”), together with any exhibits, schedules and addenda attached hereto, constitute the Document Storage Software License Agreement (the “Agreement”) made and executed between Property Solutions International, Inc., a Delaware corporation (“Property Solutions”), and the entity accepting these Terms and Conditions (“Customer”). By electronic execution and in consideration of the mutual promises contained herein, and intending to be legally bound, Property Solutions and Customer agree as follows:
WHEREAS, Property Solutions has partnered with the National Apartment Association (“NAA”) and certain third-party software providers to create a document storage program for executed lease documentation;and
WHEREAS, Customer, an NAA member in good standing, desires to make use of the document storage program.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged by each party, the parties hereto agree as follows:
“Administrative System” means the Document Storage Program Administrative Website, to which Customer is given a login and password that allow Customer to perform administrative functions in connection with the Software as more fully described herein.
“Server” means the server computer, as upgraded, replaced, or modified from time to time, that runs or executes the Software and is made available by Property Solutions to Customer for remote access via the Internet to allow Use of the Software.
“Confidential Information” means all Software, Documentation, information, data, drawings, specifications, Trade Secrets, object code and machine-readable copies of the Software, source code of or relating to the Software, and any other proprietary information (including proprietary information of third parties) supplied to either party by the other party, or any information relating to Property Solutions’ pricing and costs. However, Confidential Information does not include information that (i) is or becomes publicly known through no wrongful act of the receiving party, (ii) is already known to the receiving party free of any confidentiality obligation, (iii) is rightfully received by the receiving party from a third party without restrictions on disclosure, or (iv) was independently developed by the receiving party without reference to the disclosing party’s Confidential Information.
“Customer” means the party accepting these Terms and Conditions, including its employees and authorized agents.
“Customer Information” means all data and information obtained by Property Solutions from Customer.
“Documentation” means any materials relating to the Software, generally made available to licensees of the Software, as modified from time to time. Documentation includes, but is not limited to, user instruction files, online videos, quick reference guides, and administrator guides regarding Use of the Software, and includes any updated versions of Documentation.
“Effective Date” means the date Customer agrees to these Terms and Conditions and completes the setup process for the Software.
“Maintenance Release” means any available update or modification of the Software, including any correction, bug fix, patch or other work-around for the Software, created or developed by Property Solutions during the Term, but excluding a New Version.
“Product” or “Document Storage Program” means the software and services more fully described herein.
“Property(ies)” means a residential, mixed use, office, industrial, storage, commercial or similar property(ies) owned, managed or affiliated with Customer.
“Software” means the Property Solutions computer programs (in Object Code form only) for the Product, together with (i) Documentation; (ii) any interfaces provided by Property Solutions to Customer; and (iii) any Maintenance Release, New Version, or other modifications, corrections, improvements, enhancements or releases provided by Property Solutions to Customer. Software does not include other products or services produced by Property Solutions.
“Term” means the duration of the Agreement, as further defined in Section 9.1.
“Third-Party Software” means any software created or distributed by a party other than Property Solutions or its subsidiaries, including but not limited to Blue Moon or the National Apartment Association.
“Trade Secrets” means all information used in a company’s business which gives it a competitive advantage, which is not publicly known without restriction. Trade Secrets include items defined by applicable state or federal law.
(1.o)“Use” means operation of the Software solely in connection with those Properties currently under Customer’s control or management as specified in Schedule 1, or later added pursuant to the Terms and Conditions hereof.
Acknowledgement of Alpha Testing.
Customer acknowledges and agrees that the Software is an alpha test version that may contain bugs, defects, and errors, and that the Software is not guaranteed to function fully upon access. Customer further acknowledges and agrees that the Software is being supplied in exchange for Customer’s evaluation of the Software.
Scope of Use
The Software provided pursuant to this Agreement includes access to a cloud-based document storage system to help Customer track and manage documents that have been submitted to the Software by Customer or third parties. The Software consists of the following modules:
Document Storage. This module supports integration with Third-Party Software to store leases or other electronically executed agreements on Property Solutions’ Servers.
Report Creation. This module supports the creation of various reports, including but not limited to Property-level document organization and execution rates. Customer acknowledges that the reporting module may not be available until the Beta Release Date, as described in Exhibit A.
Responsibilities of Customer
4.1 Administrative System.
Customer will receive a login and password that allow Customer to administrate over certain functionalities of the Software. Customer is responsible for maintaining the security of any passwords used to access the Software and/or the Administrative System and the data stored therein, and Customer agrees that Property Solutions will have no responsibility or liability for the Customer’s use and safekeeping of the passwords. Customer hereby grants to Property Solutions the authority to accept such information and documentation from Third Party Software on its behalf for use and access in the Document Storage Program.
4.2 Compliance with Laws and Regulations.
Customer will comply with all applicable laws and regulations in connection with the use of the Services, including those regarding the preservation and safekeeping of Confidential Information. Customer will not use the Software in any way that infringes on the intellectual property rights of any third party, or download or upload anything while using the Software that contains any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate the Software, data, or personal information of any person or entity.
Customer agrees not to use the Software, the Administrative System, or any content from Property Solutions (or any information learned from any of the foregoing) for any purpose other than those specifically contemplated herein.
Upon the availability of the report creation module of the Software, Customer is solely responsible for accessing the Administrative System to receive reports related to the documents stored therein. Property Solutions may also post reports in the Administrative System and send reports of certain transactions to Customer via email, if and as requested by Customer.
4.5 Use of Document Storage Software.
Customer agrees to use the Software only for the Customer’s legitimate business purposes. The Customer’s use of the Software may be on behalf of Property owners as an agent of such owners. Customer may not assign, copy, transfer or transmit the Software or Services to any third party other than as contemplated herein. Customer may not publish, copy, modify, distribute, publicly display, create derivative works of, de-compile, disassemble, reverse engineer, or otherwise manipulate the Software, the underlying code, or any other intellectual property of Property Solutions. Customer may only use the Software for those Properties set forth in the Agreement. The Software may be accessed only by the Customer’s employees or by other authorized personnel working for the Customer at such location. Customer is solely responsible for procuring and maintaining any computer hardware or software necessary to remotely access, use, and store data for the Software.
4.6 Maintenance of Good Standing.
Customer represents and acknowledges that it is a member of the NAA in good standing, meaning it has paid and is current on its dues to the NAA and has fulfilled all steps necessary to complete any membership applications. The NAA may, at any time, notify Property Solutions of Customer’s NAA membership status, and Property Solutions may terminate this Agreement without notice and disable Customer’s access upon learning that Customer is not in good standing with the NAA.
Responsibilities of Property Solutions
Property Solutions will provide Customer with access to the Software through the Administrative System.
5.2 Accuracy of Information
Property Solutions will use commercially reasonable efforts to ensure the information and data used in the system is accurate. However, Customer acknowledges the information stored in the Document Storage Program is transferred to Property Solutions by third parties, and as such Property Solutions makes no representations or warranties regarding its accuracy or reliability. Upon written notification of any problems, Property Solutions will use commercially reasonable efforts to correct any data integrity errors caused by the Software.
5.3 Safeguarding of Data
5.3 Property Solutions agrees that all Customer Information is Customer’s property and will be safeguarded using commercially reasonable methods; however, Property Solutions may use such Customer Information in furthering the functionality of the Software, and may at its discretion collect Customer data for the purpose of enforcing the 5.3 Agreement.
5.4 Product Delivery and No Warranty.
5.4 Property Solutions delivers the Software to the Customer via the Internet. During the alpha and beta periods, Property Solutions does not warrant that Use of the Software and access to data or any hosting services will be uninterrupted or error free. Property Solutions and Customer agree that the Software is provided “AS IS” and that Property Solutions makes no warranty as to the Software. PROPERTY SOLUTIONS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE SOFTWARE, ITS USE OR ANY INABILITY TO USE IT, OR THE RESULTS OF ITS USE.
5.5 Training and Customer Support.
5.5 A Property Solutions representative will use commercially reasonable efforts to provide training documentation, via the Internet, regarding how to enter the Administrative System and how to set up and use the Software. This support may include webinars and/or software updates, upgrades, enhancements, or modifications to the Software.
Test Plan. Property Solutions and Customer agree that Customer’s evaluation of the Software will be conducted in accordance with the Test Plan described in Exhibit A.
Role of Customer. In accordance with the Test Plan, Customer agrees to Use and evaluate the Software. Customer agrees to provide Property Solutions with periodic feedback that describes (i) the results of Customer’s Use and evaluation of the Software, including any defects found in the Software and any information necessary for Property Solutions to evaluate such defects, and (ii) any recommendations for changes or modifications to the Software.
6.1 Alpha Version.
Property Solutions does not warrant or make any representations concerning the accuracy, likely results, or reliability of the Software. The Software is an alpha product, and is subject to errors, data loss, and bugs. In no event will Property Solutions be liable for any damages arising out of or in connection with the use of, or inability to use, the Software.
6.2 Compliance with Law.
Property Solutions hereby disclaims all warranties with respect to the satisfactoriness or accurateness of the Software in relation to compliance with federal, state, and local laws. Whereas the Software does not incorporate legal requirements, and whereas laws and regulations may change from time to time, the Software may not be updated to reflect such changes. Customer should consult its own attorney with respect to compliance with all applicable laws and regulations.
Customer will indemnify, defend and hold harmless Property Solutions and its owners, officers, employees, and agents, from and against any and all claims, actions, proceedings, judgments, losses, liabilities, costs and expenses (including attorneys’ fees) arising from claims by any third party against Property Solutions that are: (i) directly or indirectly caused by Customer’s actions or omissions; (ii) the result of unauthorized access to the Software by use of Customer’s password or account; (iii) the result of a transaction or dispute between any third party (including any property owner or tenant) and the Customer; or (iv) the result of a breach of Customer’s representations, warranties, or covenants under this Agreement.
Intellectual Property Rights.
All materials provided by Property Solutions to Customer with respect to the Software, including but not limited to the Software code, proprietary data and Documentation, or other proprietary information developed or provided by Property Solutions, including logos, trademarks, copyrights, trade names, and any non-public know-how, methodologies, equipment, or processes of the Software, will remain the sole and exclusive property of Property Solutions. All rights not granted to the Customer under this Agreement are reserved to Property Solutions.
Use of THE SOFTWARE with Existing Document Storage Software.
Property Solutions strongly recommends that during the Alpha and Beta Test Periods, Customer continue to use and rely upon its existing document storage software or methods.
The Term of this Agreement will commence on the Effective Date and will remain in force through the initial termination date, which will be twelve (12) months following the Effective Date (the “Initial Term”), unless earlier terminated or renewed as provided below. After the Initial Term, the Agreement will automatically renew for an unlimited number of successive one (1) year periods (each a “Renewal Term”).
During the Term of this Agreement, the parties agree that either party may, without penalty, terminate this Agreement with or without cause at any time upon providing at least thirty (30) days’ prior written notice to the other party. Upon Termination and written request from Customer, Property Solutions will provide to Customer all Customer Information stored on Property Solutions’ Servers in an electronic format, at Customer’s expense.
9.3 Complete Agreement.
This Agreement is the complete agreement of the parties regarding the Document Storage Program. Each party acknowledges that no other representations, inducements, or promises regarding the Software, whether oral or written, which are not contained herein, are binding. All exhibits and schedules to which reference is made in this Agreement are deemed incorporated into the Agreement, whether or not actually attached. Any amendments or modifications to the Agreement must be in writing and signed by both parties.
9.4 Conflicting Terms.
In the event any of the Terms and Conditions herein conflict with the terms and conditions set forth in any other agreement between the parties, the Terms and Conditions set forth in this Agreement will control, but only to the extent such other terms and conditions pertain to the subject matter of this Agreement.
Each party represents and warrants that the individual signing below on behalf of such party is duly authorized to execute this Agreement on such party’s behalf.
This Agreement may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same instrument. Any reproduction of this Agreement by reliable means (e.g., photocopy or facsimile) will be considered an original of this Agreement.
If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, then the meaning of said provision will be construed, to the extent feasible, so as to render the provision enforceable; in the alternative, such term, condition or provision will be severed from the remaining terms, conditions and provisions, which remaining terms, conditions and provisions will continue to be valid and enforceable to the fullest extent permitted by law. If an ambiguity or question of intent arises, this Agreement will be construed as if it had been drafted jointly by both parties, and no presumption or burden of proof will be applicable that grants favor or disfavor to either party.
The failure of either party hereto to insist upon strict performance of any covenants or obligations hereunder, irrespective of the length of time for which such failure continues, will not be deemed a waiver of that party's right to demand strict performance in the future. No term or provision of this Agreement will be deemed waived and no breach will be deemed excused, unless such waiver is in writing and signed by the waiving party.
9.9 No Agency.
The parties agree that nothing in this Agreement will be construed to create a partnership, joint venture, franchise or employee-employer relationship between Property Solutions and Customer. Neither party is an agent of the other, nor is either party authorized to make any representation, contract, or commitment on behalf of the other unless specifically requested or authorized to do so in writing by the other party.
9.10 Publicity of Customer Evaluation.
Customer agrees that Property Solutions has the right to use, in any manner and for any purpose, any information gained as a result of Customer’s Use and evaluation of the Software, and Property Solutions may reference Customer’s name in text and use Customer’s corporate logo as a part of Property Solutions’ marketing materials. Such information may include, but is not limited to, changes, modifications and corrections to the Software. Property Solutions has the right to use, in its sole discretion, all such information, including but not limited to use by incorporation of such information into computer programs and documentation for assignment, license, or other transfer to third parties. In addition, Customer may also be asked to provide material and content sufficient for Property Solutions to create a case study related to the effectiveness of the Software.
9.11 Governing Law and Forum Selection.
This Agreement is governed by the laws of the State of Utah without regard to its conflict of law principles. Utah County will have exclusive jurisdiction for any litigation and all other disputes that arise from or relate to this Agreement or any Third Party Software or services, and the parties agree that they will not contest forum or venue in Utah County. The prevailing party in any action will be entitled to collect from the other party reasonable legal fees and costs in connection with the enforcement of this Agreement.
Each party agrees it will only use the other party’s Confidential Information in accordance with the provisions of this Agreement and will not disclose, or permit to be disclosed, the same, either directly or indirectly, except as required by law, to any third party without the other party’s prior written consent. Each party shall safeguard the other party’s Confidential Information from unauthorized use and disclosure using commercially reasonable measures that are at least equal to the standard of performance used by that party to safeguard its own Confidential Information. Customer further acknowledges the Software has not yet been released for general use or purchase and agrees to only share the Software with Customer’s direct employees.