ServusConnect, Inc., a Delaware corporation (“SERVUSCONNECT”) provides subscriptions to its ServusConnect™ proprietary multifamily property management software (the “Services”) and related technical support services, in each case subject to the terms and conditions of this agreement (this “Agreement”). Details about the specific modules, features and functionality of the Services that are made available to a particular subscriber are as set forth in one or more Order Forms that incorporate the terms of this Agreement by reference and that are executed by SERVUSCONNECT and the subscriber (each, a “Order Form”). Additional Order Forms may be added at any time during the term of this Agreement to accommodate expansion/addition of services. These additional Schedules shall be pursuant to the terms set forth in this Agreement.
By executing an Order Form with SERVUSCONNECT, the subscriber to the Services identified in the applicable Order Form (the “SUBSCRIBER”) also accepts the terms and conditions of this Agreement. SUBSCRIBER should read this Agreement carefully for the terms and conditions that govern its use of the Services. The individual executing any Order Form on SUBSCRIBER’s behalf represents and warrants to SERVUSCONNECT that he or she is fully and duly authorized to agree to be bound by this Agreement on SUBSCRIBER’s behalf. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
2.1 Subject to the terms of this Agreement, SERVUSCONNECT will use commercially reasonable efforts to provide the hosting, management and operation of the Services, in accordance with the Service Level Terms attached hereto as Addendum 1, to make the same available for remote electronic access and use by SUBSCRIBER and its employees or contractors that access or use the Services on SUBSCRIBER’s behalf (“Authorized Users”). In addition, subject to the terms hereof, SERVUSCONNECT will provide SUBSCRIBER with reasonable technical support services in accordance with the terms set forth in Addendum 2.
3.1 SUBSCRIBER will not, and will ensure its Authorized Users do not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or Mobile App or any software, documentation or data related to the Services or Mobile App (collectively, the “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by SERVUSCONNECT or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of SERVUSCONNECT includes non-public information regarding features, functionality and performance of the Service and Mobile App. Proprietary Information of SUBSCRIBER includes non-public data provided by SUBSCRIBER to SERVUSCONNECT to enable the provision of the Services and/or Mobile App (“Subscriber Data”). The Receiving Party agrees: (i)to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law (provided that the party required to disclose the other party’s Proprietary Information by law provides prompt written notice to such other party and reasonably cooperate with such other party (at such other party’s expense) in such other party’s efforts to seek a protective order or other similar remedy preserving the confidentiality of its Proprietary Information).
5.1 SUBSCRIBER will pay SERVUSCONNECT the then applicable fees described in the applicable Order Form in accordance with the terms therein (the “Fees”). If SUBSCRIBER’s use of the Services exceeds the Service Capacity set forth in the applicable Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), SUBSCRIBER shall be billed for such usage and SUBSCRIBER agrees to pay the additional fees in the manner provided herein. SERVUSCONNECT reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to SUBSCRIBER (which may be sent by email). If SUBSCRIBER believes that SERVUSCONNECT has billed SUBSCRIBER incorrectly, SUBSCRIBER must contact SERVUSCONNECT no later than 30days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to SERVUSCONNECT’s support department.
5.2 SERVUSCONNECT will issue a Service invoice for agreed upon fees outlined in the applicable Order Form fifteen (15) days prior to the beginning of each mutually agreed upon Service billing period (month, quarter, year). Full payment must be received by SERVUSCONNECT prior to the start of the Service billing period. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. SUBSCRIBER shall be responsible for all taxes associated with Services other than U.S. taxes based on SERVUSCONNECT’s net income.
5.3 An Order Form may calculate Fees in part based on the number of units at properties owned or managed by SUBSCRIBER. When this pricing mechanism is employed, a SUBSCRIBER may add additional units to its subscription at any time upon written notice to SERVUSCONNECT and payment of the additional per-unit-based Fees for such additional Units, but a SUBSCRIBER may not reduce the number of units to which it is subscribed during the Initial Service Term or any renewal term unless the SUBSCRIBER notifies SERVUSCONNECT in writing and demonstrates through written evidence that its request to remove the units is due to the disposition of the corresponding property out of SUBSCRIBER’s portfolio (if the relevant property was owned by the SUBSCRIBER) or due to SUBSCRIBER no longer managing the property (if the relevant property was managed by SUBSCRIBER pursuant to a fee for management contract).
6.1 SUBSCRIBER represents and warrants that (a) it owns, or has the legal right to use and permit SERVUSCONNECT to access and use as contemplated by this Agreement and the EULA, all Subscriber Data and all other materials provided by SUBSCRIBER to enable provision of the Services and/or Mobile App (the “Subscriber Materials”), including, for the avoidance of doubt, all personal information provided or uploaded by SUBSCRIBER or collected by SERVUSCONNECT on SUBSCRIBER’s behalf by and through the Services or Mobile App regarding any of SUBSCRIBER’s tenants, residents, employees or contractors (collectively, “End User Personal Information”); and (b) that SERVUSCONNECT’s and its subcontractors’ collection, use and processing of any Subscriber Data (including End User Personal Information) and Subscriber Materials on SUBSCRIBER’s behalf as contemplated by this Agreement, the EULA and each Order Form does not and will not violate any Privacy Laws (as defined below) or any privacy right, right of publicity, intellectual property right or other right of any third party.
6.4 SUBSCRIBER shall at its expense defend SERVUSCONNECT and each of its owners, officers, directors, employees, subcontractors and agents (collectively, including SERVUSCONNECT, the “ServusConnect Indemnitees”) from and against any demands, claims, actions, suits, investigations or proceedings brought by a third party (“Claims”) and shall indemnify and hold each ServusConnect Indemnitee harmless from any and all losses, liabilities, damages, judgments, settlements, interest, awards, penalties, fines, costs and expenses of any kind or nature, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers arising from or in connection with any such Claims (“Losses”), in each case to the extent such Claims or Losses are based on or otherwise arise from or in connection with any allegations that SUBSCRIBER or its Authorized Users have in any way breached any representation, warranty, covenant or obligation under this Section 6.
7.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least ninety (90) days prior to the end of the then-current term.
7.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon ninety (90) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. SUBSCRIBER will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, SERVUSCONNECT will make all SUBSCRIBER Data available to SUBSCRIBER for electronic retrieval for a period of thirty (30) days, but thereafter SERVUSCONNECT may, but is not obligated to, delete stored SUBSCRIBER Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
SERVUSCONNECT shall use reasonable efforts consistent with prevailing industry standards to maintain the Services and Mobile App in a manner which minimizes errors and interruptions in the Services and Mobile App and shall perform the Implementation Services in a professional and workmanlike manner. Services or the Mobile App may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by SERVUSCONNECT or by third-party providers, or because of other causes beyond SERVUSCONNECT’s reasonable control, but SERVUSCONNECT shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, SERVUSCONNECT does not warrant that the Services OR MOBILE APP will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services OR MOBILE APP. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES, MOBILE APP AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND SERVUSCONNECT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
SERVUSCONNECT shall hold SUBSCRIBER harmless from liability to third parties resulting from infringement by the Service or Mobile App of any United States patent or any copyright or misappropriation of any trade secret, provided SERVUSCONNECT is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; SERVUSCONNECT will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service or Mobile App (i) not supplied by SERVUSCONNECT, (ii) made in whole or in part in accordance with SUBSCRIBER specifications, (iii) that are modified after delivery by SERVUSCONNECT, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where SUBSCRIBER continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where SUBSCRIBER’s or any Authorized User’s use of the Service or Mobile App is not strictly in accordance with this Agreement or EULA (as applicable). If, due to a claim of infringement, the Services or Mobile App are held by a court of competent jurisdiction to be or are believed by SERVUSCONNECT to be infringing, SERVUSCONNECT may, at its option and expense (a) replace or modify the Service or Mobile App (as applicable) to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for SUBSCRIBER a license to continue using the Service or Mobile App (as applicable), or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and all EULAs and SUBSCRIBER’s and any Authorized Users’ rights hereunder and thereunder and provide SUBSCRIBER a refund of any prepaid, unused fees for the Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, SERVUSCONNECT AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR THE EULA OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SERVUSCONNECT’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY SUBSCRIBER TO SERVUSCONNECT FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SERVUSCONNECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by SUBSCRIBER except with SERVUSCONNECT’s prior written consent. SERVUSCONNECT may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and SUBSCRIBER does not have any authority of any kind to bind SERVUSCONNECT in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of North Carolina without regard to its conflict of law’s provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and SUBSCRIBER otherwise agrees to reasonably cooperate with SERVUSCONNECT to serve as a reference account upon request.
The Services shall be available 99.9% of the time during normal business hours (Monday-Friday, 8am-5pm EST, excluding federal holidays) (“Business Hours”), measured monthly, excluding scheduled maintenance. If SUBSCRIBER requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of connections, systems, networks or utilities not provided by SERVUSCONNECT or other reasons beyond SERVUSCONNECT’s control will also be excluded from any such calculation. Finally, SERVUSCONNECT’s blocking of data communications or other Services in accordance with its policies shall not be deemed to be a failure of SERVUSCONNECT to provide adequate service levels under this Agreement.
SUBSCRIBER’s sole and exclusive remedy, and SERVUSCONNECT’s entire liability, in connection with any Service unavailability in violation of this Addendum 1 shall be that for a period of downtime lasting longer than two hours during Business Hours (other than any downtime caused by one of the exclusions described above), SERVUSCONNECT will credit SUBSCRIBER 5% of the monthly fees actually paid to SERVUSCONNECT by SUBSCRIBER for the affected Services in the affected month for any properties actually affected by such downtime, and an additional 5% of such fees for each additional period of 60 or more consecutive minutes of downtime that falls during Business Hours (other than any downtime caused by one of the exclusions described above).
Downtime shall begin to accrue as soon as SUBSCRIBER notifies to SERVUSCONNECT in writing that downtime is taking place and continues until the availability of the Services is restored.
In order to receive downtime credit, SUBSCRIBER must notify SERVUSCONNECT in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for 25% of Service Fees in any one (1) calendar month in any event. SERVUSCONNECT will only apply a credit to the month in which the incident occurred.
SERVUSCONNECT will provide reasonable Technical Support to SUBSCRIBER via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm EST, with the exclusion of Federal Holidays (“Support Hours”).
SUBSCRIBER may initiate a helpdesk ticket during Support Hours by calling (844)4SERVUS or (844)-473-7887 or any time by emailing email@example.com
SERVUSCONNECT will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
All feedback, comments and other communications relating to this agreement should be directed to ServusConnect, Inc at the address/method below: