As of April 17, 2017
THESE TERMS OF SERVICE (THE “TERMS”) ARE A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND APARTMENT JET, INC. (“SUPPLIER”). BY EXECUTING A PURCHASE AGREEMENT THAT INCLUDES THESE TERMS BY REFERENCE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL CUSTOMER REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND CUSTOMER REFERS TO THAT ENTITY AND ALL THE USERS SPECIFIED IN THE PURCHASE AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SERVICE. SUPPLIER MAY MAKE CHANGES TO THE SERVICE AT ANY TIME. IN ADDITION, SUPPLIER MAY MAKE CHANGES TO THESE TERMS AT ANY TIME, AND WILL PROVIDE NOTICE TO CUSTOMER OF SUCH CHANGES BY POSTING A MESSAGE ON SITE OR SITES USED TO ACCESS THE SERVICE NOTIFYING CUSTOMER OF THE UPDATES TO THESE TERMS AND REQUESTING THAT THE CUSTOMER REVIEW SUCH UPDATED TERMS. CUSTOMER’S CONTINUED USE OF THE SERVICE AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS.
1.1 Customer Data means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User and received and analyzed by the Service.
1.2 Customer System means Customer’s internal website(s), servers and other equipment and software used in the conduct of Customer’s business.
1.3 Documentation means the online user instructions and help files made available by Supplier for use with the Service, as may be updated from time to time by Supplier.
1.4 Intellectual Property Rights means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.5 Malicious Code means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.6 Purchase Agreement means the ordering documents for the Service purchased from Supplier that are executed hereunder by the parties from time to time, including modifications, supplements and addend thereto. Purchase Agreements shall be deemed incorporated herein.
1.7 Service means the Supplier’s ApartmentJet services provided by Supplier to Customer pursuant to these Terms at www.ApartmentJet.com.
1.8 Third Party Offerings means certain software or services delivered or performed by third parties that are required for the operation of the Service and any associated offline products provided by third parties, that interoperate with the Service.
1.9 Users means Customer’s employees, consultants, contractors, agents and third parties with whom Customer may transact business and (a) for whom access to the Service during the Subscription Term have been purchased pursuant to a Purchase Agreement, (b) who are authorized by Customer to access and use the Service, and (c) who have been supplied user identifications and passwords for such purpose by Customer.
2. ORDERS; LICENSES; AND RESTRICTIONS.
2.1 Orders. Subject to the terms and conditions contained in these Terms, Customer may purchase subscriptions for Users to access and use the Service pursuant to Purchase Agreements. User subscriptions are for designated Users only and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Supplier regarding any future functionality or features. If there is any inconsistency between a Purchase Agreement and these Terms, the Purchase Agreement controls.
2.2 Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in these Terms, Supplier hereby grants to Customer, during the Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use the Service in accordance with the Documentation in each case solely for Customer’s internal business purposes and not for the benefit of any other person or entity. Customer’s use of the Service may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Purchase Agreement or in the Documentation.
2.3 Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Service; (b) modify, translate, or create derivative works based on any element of the Service or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Service; (d) use the Service for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Users; (e) remove any proprietary notices from the Documentation; (f) use the Service for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Service; or (h) attempt to gain unauthorized access to the Service or their related systems or networks.
2.4 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Supplier.
3. THIRD PARTY OFFERINGS.
3.1 Use of Third Party Offerings. Supplier or third parties may from time to time make Third Party Offerings available to Customer in connection with Customer’s use of the Service. Supplier does not warrant or support any Third Party Offering, whether or not they are designated by Supplier as certified or otherwise, except as specified in a Purchase Agreement. Customer acknowledges that Supplier may allow providers of that Third Party Offering to access Customer Data or Other Information (as defined in Section 11.2) as required for the interoperation and support of such Third Party Offering with the Service. Supplier shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by the providers of Third Party Offerings.
3.2 Integration with Third Party Offerings. The ervices may contain features designed to interoperate with Third Party Offerings (e.g., VRBO, HomeAway, Airbnb). To use such features, Customer may be required to obtain access to such Third Party Offering from their providers. Should Customer contract directly with a provider of any Third Party Offering, any such relationship, and any exchange of data between Customer and any provider of a Third Party Offering, is solely between Customer and the applicable provider of the Third Party Offering. If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding Service features on reasonable terms, Supplier may cease providing such features without entitling Customer to any refund, credit, or other compensation. Customer shall at all times be solely responsible for ensuring that its use of the Supplier Service and Customer’s interactions with Third Party Offering providers is compliant with the terms and conditions governing the use of and access to such Third Party Offerings.
3.3 Disputes. Customer hereby acknowledges and agrees that Supplier is NOT a party to any oral or written agreement for services or any other contract entered into between Customer and any user of any Third Party Offering. Customer’s interactions with individuals and/or organizations found on or through Third Party Offerings and/or the Service, including any other terms, conditions, warranties or representations associated with such transactions or dealings, are solely between Customer and such individual or organization. Customer should take reasonable precautions and make whatever investigation or inquiries Customer deems necessary or appropriate before proceeding with any online or offline transaction with any third party. Customer understands that Supplier does not and cannot make representations as to the suitability of any individual Customer may decide to interact with on or through the Third Party Offerings or Service and/or the accuracy or suitability of any advice, information, or recommendations made by any individual. IF THERE IS A DISPUTE BETWEEN CUSTOMER AND ANY USERS OF THE THIRD PARTY OFFERINGS OR SERVICE , CUSTOMER ACKNOWLEDGES AND AGREES THAT SUPPLIER IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN CUSTOMER AND ANY THIRD PARTY, CUSTOMER HEREBY RELEASES SUPPLIER, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES AND/OR THE THIRD PARTY OFFERING OR ANY SERVICES PROVIDED IN CONNECTION THEREWITH. IF CUSTOMER IS A CALIFORNIA RESIDENT, CUSTOMER WAIVES CALIFORNIA CIVIL CODE ¤1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
3.4 Third Party Hosting. Supplier may use the services of one or more third parties to host all or part of the Service. Supplier will pass-through any warranties to the extent that Supplier receives any from its then current third-party hosting provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party hosting provider that are provided or otherwise made available to Customer from time to time.
4. PASSWORDS; SECURITY.
4.1 Passwords. Supplier will issue Customer an initial administrator user login and password and Customer may create user logins and passwords for each of its Users. Customer shall be, and shall ensure that each of its Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Customer is solely responsible for any and all access and use of the Service that occurs using logins and passwords issued to Customer by Supplier or issued to Users by Customer. Customer shall restrict its Users from sharing passwords. Customer agrees to immediately notify Supplier of any unauthorized use of any account or login and password issued to Customer’s Users, or any other breach of security known to Customer. Supplier shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
4.2 No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the Service. Customer will immediately notify Supplier of any breach, or attempted breach, of security known to Customer.
4.3 Security. Supplier will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by Supplier, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Service and Customer Data. Supplier cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
5. CUSTOMER OBLIGATIONS.
5.1 Customer System. Customer is responsible for (a) obtaining, deploying and maintaining the Customer System, and all computer hardware, software, modems, routers and other communications equipment necessary for Customer and their respective Users to access and use the Service via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Service via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms or a Purchase Agreement, Supplier shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.
5.3 Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Supplier to communicate with Customer from time to time regarding the Service, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Supplier of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Supplier at the e-mail addresses specified by its Users for login purposes. In addition, Customer agrees that Supplier may rely and act on all information and instructions provided to Supplier by Users from the above-specified e-mail address.
5.4 Temporary Suspension. Supplier may temporarily suspend Customer’s its Users’ access to the Service in the event that either Customer any of their Users is engaged in, or Supplier in good faith suspects Customer or any of its Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Supplier will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Supplier’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include User sub-accounts. Customer agrees that Supplier shall not be liable to Customer, any of its Users, or any other third party if Supplier exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Supplier’s reasonable satisfaction, Supplier shall reinstate Customer’s and their respective Users’ access and use of the Service. Notwithstanding anything in this Section to the contrary, Supplier’s suspension of access to the Service is in addition to any other remedies that Supplier may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Supplier may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
5.5 Evaluations. At Supplier’s request, Customer will provide Supplier with written or oral report(s) of the results of Customer’s evaluation of the Service, including, but not limited to, a report of any errors that Customer has discovered in the Service.
6.1 Availability. Subject to the terms and conditions of these Terms, Supplier will use commercially reasonable efforts to make the Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Supplier will use commercially reasonable efforts to provide at least 24 hours advance notice and routine maintenance times currently scheduled for every Thursday, 10 PM to 4:00 AM Central Time and as otherwise specified by Supplier, or (b) any unavailability caused by circumstances beyond Supplier’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Offerings. Certain enhancements to the Service made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the Service may require the payment of additional fees, and Supplier will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. Unless Supplier requires Customer to agree to additional terms in connection with new features or modules, these Terms will apply to, and the Service includes, any enhancements, updates, upgrades and new modules to the Service subsequently provided by Supplier to Customer hereunder.
7. FEES AND PAYMENT.
7.1 Fees. Customer agrees to pay all fees specified in all Purchase Agreements using one of the payment methods Supplier supports. Except as otherwise specified in these Terms or in a Purchase Agreement, (a) fees are quoted and payable in United States dollars, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c) Supplier is authorized to withhold fees from amounts received from third parties and remit Customer’s portion to Customer. Fees owed by Customer can be (i)based on a percentage of those fees received from third parties; (ii) a flat rate, or (iii) some other arrangement, in each case, as specified in the Purchase Agreement. Fees will be paid by third parties directly to Supplier, who will withhold the applicable percentage and will remit the remainder to Customer on a monthly basis.
7.2 Taxes. Taxes means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, purchase agreement or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Customer is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. No part of fees paid to Customer will be subject to withholding by Supplier for the payment of any federal, state or any other taxes. Supplier will regularly report amounts paid to Customer by filing Form 1099MISC with the Internal Revenue Service as required by law. Customer’s obligation under this Section 7.5 shall survive the termination or expiration of this Agreement.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
8.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
8.2 Disclaimer of Warranties. THE WARRANTIES SET FORTH IN THIS SECTION 8, THE SERVICE AND THIRD-PARTY OFFERINGS ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE SERVICE AND THIRD-PARTY OFFERINGS IS AT ITS OWN RISK. SUPPLIER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ANY WARRANTIES MADE BY SUPPLIER ARE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY MATERIALS PROVIDED THROUGH THE SERVICE ARE LICENSED AND NOT SOLD.
NO AGENT OF SUPPLIER IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SUPPLIER AS SET FORTH HEREIN. SUPPLIER DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICE WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SUPPLIER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
9. INDEMNIFICATION. Customer shall defend Supplier and its licensors and their respective officers, directors and employees (Supplier Indemnified Parties) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Supplier of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; or (b) Customer’s use or alleged use of the Service other than as permitted under these Terms. Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Supplier Indemnified Parties from any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Supplier providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no event shall Supplier settle any claim without Customer’s prior written approval. Supplier may, at its own expense, engage separate counsel to advise Supplier regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
10. CONFIDENTIALITY. Customer will not disclose any pricing terms (Confidential Information) without Supplier’s prior written approval.
11. PROPRIETARY RIGHTS.
11.1 Service. As between Supplier and Customer, all right, title and interest in the Service and any other Supplier materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Supplier, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Supplier or Supplier’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Supplier all evaluations, ideas, feedback and suggestions made by Customer to Supplier regarding the Service (collectively, Feedback) and all Intellectual Property Rights in the Feedback.
11.2 Customer Data. As between Supplier and Customer, all right, title and interest in (a) the Customer Data, (b) other information input into the Service by Customer (collectively, Other Information) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Customer. Customer hereby grants to Supplier a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Supplier to provide the Service to Customer, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Other Information as a part of the Aggregated Statistics (as defined in Section 11.3 below). To the extent that receipt of the Customer Data requires Supplier to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and Supplier hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in these Terms. As between Supplier and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
11.3 Intellectual Property Infringement. Customer and its Users shall respect the intellectual property rights of others. Supplier may, in appropriate circumstances and at our discretion, terminate the Service and/or access to the Service if Customer or its Users infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears via the Service, please provide Supplier’s designated agent the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled via the Service, and information reasonably sufficient to permit Supplier to locate the material; (d) information reasonably sufficient to permit Supplier to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Supplier’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows: Andy Hamilton, Apartment Jet, Inc. 222 W. Merchandise Mart Plaza, Floor 12, Suite 1212, Chicago, IL 60654; Email: firstname.lastname@example.org..
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
Supplier will notify Customer that we have removed or disabled access to copyright-protected material that Customer or its Users provided, if such removal is pursuant to a valid DMCA take-down notice that Supplier has received. If Customer receives such notice from Supplier, Customer may provide us with a counter-notification in writing to Supplier designated agent that includes all of the following information:
1. Customer’s authorized representative’s physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from Customer’s authorized representative under the penalty of perjury, that Customer’s authorized representative has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Customer’s authorized representative’s name, physical address and telephone number, and a statement that Customer’s authorized representative consents to the jurisdiction of a court for the judicial district in which his or her physical address is located, or if his or her physical address is outside of the United States, for any judicial district in which Supplier may be located, and that Customer’s authorized representative will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
Supplier reserves the right, in its sole discretion, to terminate the account or access to the Service of any Customer or User of our Service who is the subject or repeated DMCA or other infringement notifications.
11.4 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, Supplier may monitor Customer’s use of the Service and use data and information related to such use, Customer Data, and Other Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Service (Aggregated Statistics). As between Supplier and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Supplier. Customer acknowledges that Supplier will be compiling Aggregated Statistics based on Customer Data, Other Information, and information input by other customers into the Service and Customer agrees that Supplier may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
11.5 Supplier Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Supplier, whether solely or jointly, and all Intellectual Property Rights therein, shall be the sole and exclusive property of Supplier. Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Supplier Developments is not, by operation of law or otherwise, vested in Supplier, Customer hereby assigns and agrees to assign to Supplier all right, title and interest in and to such Supplier Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.
11.6 Further Assurances. To the extent any of the rights, title and interest in and to Feedback or Supplier Developments or Intellectual Property Rights therein cannot be assigned by Customer to Supplier, Customer hereby grants to Supplier an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. To the extent that the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Supplier those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Supplier may reasonably request, to perfect ownership of the Feedback and Supplier Developments. If Customer is unable or unwilling to execute any such document or take any such action, Supplier may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
12. LIMITATION OF LIABILITY.
12.1 No Consequential Damages. NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF SUPPLIER OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICE OR THE RESULTS THEREOF. SUPPLIER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE.
12.2 Limits on Liability. NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID BY CUSTOMER TO SUPPLIER UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
12.3 Release of Liability for Results of Background Checks and Internal Background Checks. WE MAY OFFER CUSTOMER THE OPTION OF UTILIZING BACKGROUND CHECK SERVICES FROM A THIRD-PARTY CONSUMER REPORTING AGENCY WITH WHOM WE HAVE PARTNERED (COLLECTIVELY “BACKGROUND CHECKS”). SHOULD CUSTOMER DECIDE TO USE, ACCESS OR RELY ON INFORMATION INCLUDED IN A ANY BACKGROUND CHECK, CUSTOMER HEREBY REPRESENTS, UNDERSTAND AND EXPRESSLY AGREES THAT THOSE CHECKS ARE NOT ALWAYS ACCURATE OR COMPLETE (OR BASED ON INFORMATION THAT IS ACCURATE OR COMPLETE) AND THAT THE SPECIFIC RECORDS SEARCHED, AND THE COMPREHENSIVENESS OF THE SEARCH, VARIES BY THE TYPE OF BACKGROUND CHECK ORDERED AS WELL AS THE STATE AND COUNTY WHERE THE CHECK IS PERFORMED. TO THE EXTENT SUPPLIER PERFORMS SUCH CHECKS, THE CHECKS ARE LIMITED AND SHOULD NOT BE TAKEN AS COMPLETE, ACCURATE, UP-TO-DATE OR CONCLUSIVE EVIDENCE OF THE ACCURACY OF ANY INFORMATION THOSE USERS HAVE PROVIDED. SHOULD CUSTOMER DECIDE TO ACCESS, USE, OR RELY ON INFORMATION PROVIDED BY A BACKGROUND CHECK, CUSTOMER AGREES TO DO SO IN ACCORDANCE WITH APPLICABLE LAW. CUSTOMER ALSO AGREES TO INDEMNIFY AND HOLD SUPPLIER HARMLESS FROM ANY LOSS, LIABILITY, DAMAGE, OR COSTS THAT MAY RESULT FROM SUCH ACCESS, USE, OR RELIANCE UPON SUCH INFORMATION REGARDLESS OF THE CAUSE. SUPPLIER DOES NOT ASSUME AND EXPRESSLY DISCLAIM, AND CUSTOMER HEREBY AGREE TO RELEASE SUPPLIER FROM, ANY LOSS, LIABILITY, DAMAGE, OR COSTS THAT MAY RESULT FROM THE USE OF INFORMATION PROVIDED IN A BACKGROUND CHECK, INCLUDING, WITHOUT LIMITATION, THE INACCURACY OR INCOMPLETENESS OF ANY SUCH INFORMATION.
12.4 Essential Purpose. Customer acknowledges that the terms in this Section 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
13. TERM AND TERMINATION.
13.1 Term. The term of these Terms commence on the Purchase Agreement date and continue for the term set forth in the Purchase Agreement or, if no term is stated, until terminated as provided in these Terms (the Subscription Term). The pricing during the term shall be the same as that stated on the Purchase Agreement unless Supplier has given Customer written notice of a pricing increase at least fifteen (15) days prior to such change, in which case the pricing increase shall be effective upon the expiration of such fifteen (15) day period.
13.2 Termination for Cause. A party may terminate these Terms (and the Subscription Term) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree. Upon any termination for cause by Customer, Supplier shall refund Customer any prepaid fees for the remainder of the terminated Subscription Terms after the effective termination date. Upon any termination for cause by Supplier, Customer shall pay any unpaid fees covering the remainder of the term of all Purchase Agreements after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Supplier for the period prior to the effective date of termination.
13.3 Termination for Convenience. Customer shall have the right to terminate these Terms for convenience on at least thirty (30) days prior written notice to Supplier; provided, however, that under no circumstances shall Customer be entitled to any refund of any Fees for such terminated Subscription Term. Supplier shall have the right to terminate these Terms for convenience on at least five (5) days prior written notice to Customer. If Supplier exercises such termination right, Supplier shall refund to customer the amount of any pre-paid fees for the terminated Subscription Term.
13.4 Effects of Termination. Upon expiration or termination of these Terms, (a) Customer’s use of and access to the Service shall cease; (b) all Purchase Agreements shall terminate; and (c) all fees and other amounts owed to Supplier shall be immediately due and payable by Customer. Supplier shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.
13.5 Survival. This Section and Sections 1, 2.2, 3.2, 3.3, 8, 9, 10, 11, 12, 13.4, 14 shall survive any termination or expiration of these Terms.
14.1 Notices. Supplier may give notice to Customer by means of a general notice through the Service interface, electronic mail to Customer’s e-mail address on record with Supplier, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Supplier. Customer may give notice to Supplier by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Supplier, , Attention: . Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
14.2 Governing Law. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Illinois as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties’ relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties’ rankings. The seat, or legal place of arbitration shall be Illinois, United States. Notwithstanding the foregoing, Supplier has the right to pursue equitable relief in the state and federal courts located in Illinois, and Customer agrees to the exclusive jurisdiction and venue of such courts.
14.3 Publicity. Supplier has the right to reference and use Customer’s name and trademarks and disclose the nature of the Service provided hereunder in each case in Supplier business development and marketing efforts, including without limitation Supplier’s web site.
14.4 No Solicitation of Employees. Customer agrees that, so long as the Subscription Term remains in effect, and for a period of two (2) year following the termination or expiration of the Subscription Term, it will not directly solicit for employment the employees of Supplier without Supplier’s prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by Customer of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, only job postings and social networking sites.
14.5 Export. The Service utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, Embargoed Countries), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, Designated Nationals). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Supplier and its licensors make no representation that the Service is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
14.6 General. Customer shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Supplier. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms, including all applicable Purchase Agreements constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for Customer’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.