fuelcre.com
Terms and Conditions
By using the Software (as defined
below), Services (as defined below) and/or Site (as defined below), you agree
to these Terms and Conditions of Use ("Terms & Conditions”) by
and between RealPage, Inc. (“RealPage”), and you and your affiliates
(the “User” or “you” or “your”). These Terms & Conditions
shall not be valid, binding or effective until the date upon which you click
the box at the end of these Terms & Conditions (the “Acceptance Box”)
indicating acceptance of these Terms & Conditions on your behalf and on
behalf of your affiliates. You are prohibited from using the Software, Services
and Site unless and until you agree to these Terms & Conditions by clicking
the Acceptance Box below.
BY ACCEPTING THESE TERMS & CONDITIONS, YOU ARE AGREEING TO ALL OF THE TERMS
SET FORTH HEREIN.
1. Subscription
and License.
(a) User has a
service-provider, agency or other relationship with one or more customers (each
a “Customer”) of RealPage who has entered into a User Access &
License Agreement (“Agreement”) with RealPage to utilize the Software,
Services and Site (collectively, the “Licensed Materials”). As part of
the Agreement, RealPage has granted to Customer the ability to allow certain
third party users to use the Licensed Materials in accordance with these Terms &
Conditions.
(b) User is
granted a restricted license to access and use the Software, Services and the
Site on the following terms: (a) access will be limited solely to the User; (b)
User’s rights are personal, non-transferable, non-sublicensable, non-exclusive;
and (c) access may be terminated and this license revoked by RealPage upon any
breach by (i) User or (ii) a Customer to which User is associated of these
Terms & Conditions or the Agreement or any Web Site Policies, as described
in Section 7 herein. The term “Software” shall mean the
online software applications and documentation provided by RealPage as part of
the Services on RealPage's web site at http://www.fuelcre.com (the “Site”). User’s access to the Site
is determined by the Agreement between RealPage and the applicable Customer.
The term “Services” includes the subscription services which grant
access to the Software provided by RealPage to the User under this Agreement,
and any other services provided by RealPage to the User. The rights provided
under this Section 1(b) are granted to User only, and shall not be considered
granted to any subsidiary, employee, associate, holding company, representative
or other affiliate of User.
(c) User
covenants and agrees to keep a secure password for his or her use of the Licensed
Materials, and that User shall keep his or her password confidential at all
times.
(d) During the
Term, RealPage shall provide the Services and make available access to the
Software to the User on and subject to the terms of this Agreement. RealPage
shall use commercially reasonable efforts to make the Services available 24
hours a day, seven days a week, except for (i) planned maintenance for which RealPage
will use its best efforts to carry out during weekends after 6pm Eastern
Standard Time (EST); and unscheduled maintenance performed outside normal
business hours (EST), provided that RealPage has used reasonable effort to give
the User at least one (1) hour notice in advance by electronic mail or other
posting on the Site.
(e) RealPage
will provide the User with RealPage’s standard customer support services during
normal business hours. Standard customer support includes responding to User
inquiries about the operation of the Software and System. This does not include
training services which may be provided for an additional fee by RealPage. RealPage
may limit support services included under this Agreement at any time and at RealPage’s
sole discretion. The User may purchase enhanced support services separately at RealPage’s
then current rates.
2. Limitations
on Use and User Obligations.
(a) User may
access and use the Software solely for its own purposes on behalf of User’s
associated Customer and in accordance with the terms of this Agreement.
(b) User agrees
to abide by the following restrictions on the use of the Software, except as
otherwise permitted in this Agreement: (i) other than spreadsheet and other
downloads expressly enabled by the Site and printing of selected entries, User
may not duplicate any significant portion of the Software digitally or in print
for User’s own use or use by others; (ii) User may not create a “local” copy of
any portion of the Software on any computer; (iii) User may not permit any
third party to use User’s password or otherwise have access to the Software;
(iv) User may not disclose any information from the Software to any third party
at any time, nor may User redistribute any information obtained about the
functionality or features of the Software; and (v) User may not use information
obtained from the Software to develop User’s own software or to assist or
support software development by others.
(c) User shall
not access, store, distribute or transmit any virus or other thing or device
(including any software, code, file or program) in, on or in any way affecting RealPage,
the Site, the Software or any users of the foregoing, which may: prevent,
impair or otherwise adversely affect the operation of any computer software,
hardware or network, any telecommunications service, equipment or network or
any other service or device; prevent, impair or otherwise adversely affect
access to or the operation of any program or data, including the reliability of
any program or data (whether by re-arranging, altering or erasing the program
or data in whole or part or otherwise); or adversely affect any user
experience, including worms, trojan horses, viruses and other similar things or
devices.
(d) User shall
not, except as may be allowed by any applicable law which is incapable of
exclusion by Agreement between the parties, and except to the extent expressly
permitted under these Terms & Conditions, attempt to copy, modify,
duplicate, create derivative works from, frame, mirror, republish, download,
display, transmit, or distribute all or any portion of the Software and/or Site
(as applicable) in any form or media or by any means; or attempt to reverse
compile, disassemble, reverse engineer or otherwise reduce to human-perceivable
form all or any part of the Software; or access all or any part of the Licensed
Materials, for any reason, including development of a product or service which
competes with the Services and/or the Software; or use the Services and/or
Documentation to provide services to third parties; or license, sell, rent,
lease, transfer, assign, distribute, display, disclose, or otherwise
commercially exploit, or otherwise make the Licensed Materials available to any
third party, or attempt to obtain, or assist third parties in obtaining, access
to the Licensed Materials, other than as explicitly provided in these Terms &
Conditions; or use the Licensed Materials to store or transmit infringing,
libelous, or otherwise unlawful or tortious content, or other content in
violation of thirty-party privacy rights.
(e) User shall
use its best efforts to prevent any unauthorized access to, or use of, the Licensed
Materials and, in the event of any such unauthorized access or use, immediately
notify RealPage and Customer.
(f) RealPage
may, at its sole discretion, allow a User to create a program that makes use of
the Software and Site’s application programming interface (“API”). The
authorization to access the API may only be provided in writing, and will be
covered under a separate agreement.
(g) The
Software and Services are subject to other limitations, such as limitations on
disk storage space. These limitations are established by RealPage at its sole
discretion.
(h) User shall
be responsible for strict compliance with these Terms & Conditions.
(i) RealPage reserves the
right to suspend access to all or portions of the Licensed
Materials, with
or without prior notice, if User (A) commits acts that are deemed directly
competitive to RealPage; (B) compromises the security of the Licensed Materials; (C) fails to prevent
unauthorized access to and use of the Licensed
Materials; (D)
introduces viruses or other harmful contaminants into the Licensed Materials,
(v) interferes with other users of the Licensed Materials; or (E) otherwise
engages in harmful, inappropriate or unlawful conduct relating to the Licensed
Materials.
3. RealPage
Intellectual Property and Confidentiality.
(a) User acknowledges and agrees that (i) RealPage
or its third-party licensors own all right, title and interest in and to the content, layout, functions, features, source code,
object code, appearance, know-how, look and feel, patents, trademarks and other
intellectual property comprising the Software and the interface that is made
available to User on the Site, and all intellectual property
derived from the Licensed Materials, including without limitation all patents,
trademarks, copyrights and trade secrets; (ii) the Licensed Materials were
created, compiled, prepared, selected and arranged by RealPage through the
expenditure of substantial time, effort and resources and constitute valuable
RealPage assets; (iii) no title to nor ownership of the Licensed Materials is
transferred to User by operation of these Terms & Conditions; and (iv) User
will not remove, alter or obscure any RealPage trademarks or proprietary
notices contained in the Licensed Materials or other materials provided or made
accessible by RealPage to User. Screenshots
or any other image of the Software may not be used for educational purposes or
otherwise unless written authorization is provided by RealPage.
(b) Certain
information constituting the Licensed Materials is confidential, including, but
not limited to the design and architecture of databases used throughout the Licensed
Materials, the look and feel of the Site, including the technical design of
input forms, interactive features, and reports, the Licensed Materials source
code, object code, and calculation routines, the documentation and
instructional materials associated with the Licensed Materials (the “Confidential
Information”). During the term and at all times after the expiration or
termination of the Agreement, User (i) agrees not to use (or permit use of) the
Confidential Information for any purpose other than as provided in this
Agreement, and (ii) shall not use or permit use of the Licensed Materials for
the purpose of (directly or indirectly) competing with RealPage. At any time
hereafter, including all times after expiration or termination of the
Agreement, User shall not provide access to the Licensed Materials to any
competitor (any individual or entity engaged in any way of the
development, marketing, and/or provision of software for the commercial real
estate industry) of RealPage without prior authorization from RealPage.
User may disclose the Confidential Information, if necessary, in the reasonable
and written opinion of User’s attorney, to comply with any law applicable to
User, after giving prompt, prior notice to RealPage and cooperating with RealPage’s
efforts to avoid the requirement to disclose the Confidential Information. User
shall safeguard the Confidential Information with a degree of care not less
than the reasonable standards of security for similar information, or with
User’s own standards used to protect its confidential information, whichever is
greater.
(c) RealPage
shall have a royalty-free, worldwide, irrevocable, perpetual license to use any
User feedback, suggestions, requests, recommendations, or any other
communications to develop or enhance the Software and Services or for marketing
purposes.
4. User
Data.
(a) As used
herein, the term “User Data” shall include the data uploaded or inputted
by User or RealPage on User’s behalf for the purpose of using the Services and
Software, or facilitating User’s use of the Services or Software. User
shall own all rights, title and interest in and to all of the User Data and
shall have sole responsibility for the legality, reliability, integrity,
accuracy and quality of the User Data. In the event of any loss or damage to
User Data, User's sole and exclusive remedy shall be for RealPage to use
reasonable commercial efforts to restore the lost or damaged User Data from the
latest back-up of such User Data maintained by RealPage. RealPage shall not be
responsible for any loss, destruction, alteration or disclosure of User Data
caused by any third party (except those third parties sub-contracted by RealPage
to perform services related to User Data maintenance and back-up to the extent
that RealPage fails to use commercially reasonable efforts to protect against
any such loss, destruction or otherwise). RealPage does not own the User Data
and has no responsibility for its accuracy, use, or its handling in compliance
with applicable law. Upon User’s loss of access to the Software and Services,
other than for default by User, the User Data may be removed by RealPage from
the Software or Site within sixty (60) days.
(b) Notwithstanding
any contrary provisions herein or in the Website Policies (as hereinafter
defined) and without limiting the foregoing, User grants RealPage a
perpetual, irrevocable, royalty-free, world-wide, non-exclusive right and
license to access, use, extract, aggregate, compile, reproduce, modify, adapt,
publish, and create derivative works from User Data in Aggregated Form, and to
sublicense, distribute, display, store, and transmit between RealPage and its
affiliated entities, User Data in Aggregated Form, and to incorporate User Data
in Aggregated Form in other works in any form, media, or technology now known
or later developed. “Aggregated Form”
means User Data and data from other users that is irreversibly de-identified
and anonymized in a form that prevents a third party from identifying any
Customer, individual user, asset or location.
(c) RealPage will implement
and maintain a written information security program to protect: (i) the
security of User Data; (ii) against anticipated threats or hazards to the
security of User Data; and (iii) against unauthorized access to or use of User
Data. Such security measures and procedures will be no less rigorous
than are required under information security laws, rules and regulations
applicable to the provision of the Licensed Materials (collectively “Applicable
InfoSec Laws”). Further, such security measures and procedures
will be no less rigorous than the measures and procedures that RealPage uses to
protect its own Confidential Information. Such program will contain
physical, technical and administrative controls for the maintenance,
transmittal and disposal of User Data provided under these Terms &
Conditions, including access controls and password protected access, electronic
barriers (e.g., firewalls or other similar barriers), encryption, secured
storage of User Data (for hardcopy and electronic documents), and appropriate
policies and employee training. These controls are to be
commercially reasonable and appropriate for the type of User Data received
hereunder, and will include ongoing data security risk assessment and
adjustments. Except where prohibited by law, RealPage will inform you
of any breach of User Data promptly after confirmation of any such
breach. Unless disclosure is required under Applicable InfoSec
Laws, RealPage will treat the breach as a confidential matter and it will be at
your discretion whether to disclose publicly the occurrence and/or nature of
the breach. In the event of any such breach, RealPage will, at RealPage’s cost
and expense, (a) promptly address the breach and create a plan to stop any
related suspicious activity, (b) meet any obligations it has under Applicable
InfoSec Laws relating to such breach or suspicious activity, and
(c) cooperate fully in good faith to investigate any incident and assist User
with meeting any applicable legal obligations relating thereto.
(d) You are
solely responsible for your conduct and any data, text, files, information,
usernames, images, graphics, photos, audio and video clips, sounds, links and
other content or materials (collectively, "Content") that you
upload to the Site.
(e) You
represent and warrant that: (i) you own the Content uploaded by you on or
through the Site or otherwise have the right to grant the rights and licenses
set forth in these Terms of Use; (ii) the posting and use of your Content on or
through the Service does not violate, misappropriate or infringe on the rights
of any third party, including, without limitation, privacy rights, publicity
rights, copyrights, trademark and/or other intellectual property rights; (iii)
you agree to pay for all royalties, fees, and any other monies owed by reason
of Content you post on or through the Service; and (iv) you have the legal
right and capacity to enter into these Terms of Use in your jurisdiction.
5. Disclaimer. USER ACKNOWLEDGES AND AGREES THAT OTHER THAN
AS EXPRESSLY PROVIDED HEREIN, REALPAGE PROVIDES THE LICENSED
MATERIALS,
INCLUDING ANY INFORMATION INCLUDED THEREIN, TO USER ON AN “AS IS,” “WHERE IS”
BASIS. IN ENTERING INTO THESE TERMS & CONDITIONS, USER HAS CONSIDERED ITS
BUSINESS RISK INHERENT IN OR ASSOCIATED WITH ACCESS TO AND USE OF THE LICENSED
MATERIALS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, REALPAGE GIVES NO
WARRANTIES, EXPRESS OR IMPLIED, AND USER HEREBY DISCLAIMS ANY IMPLIED
WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. REALPAGE DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL
BE PROVIDED FREE OF ERROR, DELAYS OR DEFECTS.
REALPAGE DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL MEET USER’S
REQUIREMENTS, WILL BE PROVIDED WITHOUT INACCURACIES, ERRORS OR DEFECTS, NOR
THAT ACCESS TO THE LICENSED MATERIALS WILL BE UNINTERRUPTED (INCLUDING, WITHOUT
LIMITATION, AS A RESULT OF ACTS OF TERROR, ACTS OF GOD, ACTS OF GOVERNMENTAL
AUTHORITIES, EARTHQUAKES, FLOOD, FIRE, LABOR PROBLEMS, CIVIL UNREST, STRIKES,
INTERNET SERVICE PROVIDER FAILURES OR DELAYS, OR OTHER CIRCUMSTANCES BEYOND
REALPAGE’S CONTROL). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY REALPAGE
OR ANY OF ITS EMPLOYEES, AGENTS, OR OFFICERS, WILL MODIFY THE LIMITATION SET
FORTH IN THIS DISCLAIMER.
6. Limitation of Liability. USER HAS
ELECTED TO USE THE LICENSED MATERIALS AT ITS OWN RISK. USER HEREBY WAIVES ALL
LIABILITY AGAINST REALPAGE ARISING FROM THE USE OF THE LICENSED MATERIALS.
FURTHERMORE, IN NO EVENT WILL REALPAGE AND ITS OFFICERS, DIRECTORS,
EMPLOYEES, MEMBERS, AGENTS, PARTNERS, SUCCESSORS OR ASSIGNS, BE LIABLE FOR ANY
INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES
THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE SITE OR SERVICES, OR THE
INTERRUPTION OF THE SITE OR SERVICES, INCLUDING WITHOUT LIMITATION, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR BUSINESS OR SALES INTERRUPTION, EVEN IF REALPAGE,
OR A REPRESENTATIVE THEREOF, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION HEREIN, REALPAGE’S MAXIMUM
LIABILITY FOR ANY CLAIM OR SERIES OF RELATED CLAIMS ARISING UNDER THIS
AGREEMENT SHALL BE LIMITED TO THE PRECEDING TWELVE MONTHS OF FEES PAYABLE UNDER
THE AGREEMENT BETWEEN REALPAGE AND THE APPLICABLE CUSTOMER ACCOUNT TO WHICH THE
CLAIM IN QUESTION RELATES.
7. Term
and Termination.
(a) This
Agreement shall, unless otherwise terminated as provided in this Section
7, commence on the date of acceptance and shall continue until the earlier of
(i) the expiration of the Agreement or (ii) the removal of User as a permitted
user under all Agreements between RealPage and the Customers with which User is
associated. User’s access to the Licensed Materials is at all-time contingent
upon the terms of the Agreement between each applicable Customer and RealPage. Any
material violation of the Agreement or the Terms & Conditions posted on the
Site or these Terms & Conditions may result in termination of
User’s access to the Licensed Materials and User Data inputted or uploaded
to the Software or Site.
(b) On
termination of this Agreement for any reason: (i) all licenses granted under
this Agreement shall immediately terminate; (ii) each party shall return and
make no further use of any data, property, Documentation and other items (and
all copies of them) belonging to the other party; (iii) the accrued rights of
the parties as of termination, or the continuation after termination of any
provision expressly stated to survive or implicitly surviving termination,
shall not be affected or prejudiced; (iv) RealPage may destroy or otherwise
dispose of any of the User Data in its possession unless RealPage receives, no
later than thirty days after the effective date of the termination of this
Agreement, a written request for the delivery to the User of the then most
recent back-up of the User Data; (v) User’s obligations related to
confidentiality described in Section 3 shall continue; and (vi) Any
subscription fees, license fees, and other associated fees incurred by
obtaining a license including and not limited to neglect to cancel, will not be
refunded.
8. Governing Law.
This Agreement is governed by the by the internal laws of the State of Texas,
without reference to any conflicts of law principle that would require the
application of the substantive laws of another jurisdiction. The parties
consent to (and waive any objection to) the personal and exclusive jurisdiction
of the federal and state courts in Dallas, Texas.
9. Indemnification.
(a)
User shall defend, indemnify and hold RealPage, and its respective
directors, officers, employees, and agents harmless from and against all
claims, losses, damages, liabilities, costs and expenses (including reasonable
attorneys’ fees) incurred arising from User’s (or any user using User’s
username or password) (i) access to or use of the Licensed Materials hereunder;
(ii) failure to comply with any provision of these Terms & Conditions; or
(iii) failure to comply with applicable local, state or federal laws in the use
of the Licensed Materials. User agrees
to cooperate with RealPage in RealPage’s defense of any such claim.
(b)
RealPage shall indemnify and defend User against any third-party
claim that the Licensed Materials or User’s use of any portion of the Licensed
Materials violates, infringes or misappropriates any patent, copyright,
trademark or other intellectual property rights (“IP Claim”). RealPage
shall pay all losses, liabilities, damages, costs, and expenses (including
reasonable attorneys’ fees) arising out of an IP Claim provided that: (i) User
promptly notifies RealPage in writing of such IP Claim (provided, however, that
any failure to provide such notice does not relieve RealPage of its
indemnification obligations unless such failure results in material prejudice
to RealPage); (ii) RealPage may assume sole control of the defense of such IP
Claim with counsel of its choice and all related settlement negotiations
(provided, however, that RealPage may not settle or compromise any IP Claim
that imposes any obligation or liability onto User or an affiliate without User’s
prior written consent, not to be unreasonably withheld); and (iii) User
provides RealPage, at RealPage’s request and expense, with reasonable
assistance, information and authority necessary to conduct the defense of the
IP Claim. If RealPage believes that User’s use of the Licensed Materials is
likely to result in an IP Claim, RealPage may (x) modify or replace the
relevant portion of the Licensed Materials to make it non-infringing (provided,
however, no such replacement or modification shall substantially negatively
impair functionality or performance); (y) acquire for Client a license to continue
to use the Licensed Materials; or (z) if RealPage cannot achieve (x) or (y)
using commercially reasonable means, terminate the license with respect to the
infringing Licensed Materials and refund to User all fees pre-paid by User with
respect to the infringing Licensed Material. RealPage shall have no obligation
to User with respect to any IP Claim if such IP Claim is based on (1) User’s
use of the Licensed Material in breach of this Agreement (but only if the claim
would not have arisen but for such breach), (2) the combination, operation, or
use of the Licensed material with third-party material that was not provided by
RealPage (but only if the claim would not have arisen but for such combination,
operation or use), or (3) modification to the Licensed Material other than as
authorized in writing by RealPage (but only if the claim would not have arisen
but for such modification). THE FOREGOING SHALL BE REALPAGE’S ENTIRE OBLIGATION
AND USER’S SOLE REMEDY FOR ANY IP CLAIM.
10. Additional Agreements. User agrees to abide by and accept
all policies and Terms & Conditions applicable to all licensees of the
Software and posted on RealPage's Site, including, without limitation, RealPage's
(i) Privacy Policy and (ii) Website Terms & Conditions (collectively, the
“Web Site Policies”, each a “Web Site Policy”). The Web Site Policies may
change from time to time and RealPage will post such changes on the Site. In
the case of a direct conflict between any provision of a Web Site Policy and
the provisions of these Terms & Conditions, the provision of these Terms &
Conditions shall prevail. It is User’s sole obligation to read all Web Site
Policies and updates thereto. User agrees that failure to comply with any Web
Site Policy shall be a material breach of this Agreement, and may result in the
immediate termination of User’s right to access the Software. User’s continued
accessing of the Software constitutes User’s assent to any changed terms of any
of the Web Site Policies
11. Miscellaneous.
(a) This
Agreement constitutes the entire agreement between User and RealPage and
supersedes any term or representation in all other documents, except as
specified in Section 11, herein. This Agreement may only be amended
in a writing designated as such and signed by both parties, except as provided
for in Section 11, herein.
(b) Neither party will be responsible
for failure or delay of performance if caused by an act of God; act of war,
hostility or sabotage; electrical, internet or telecommunications outage that
is not caused by the obligated party; government restrictions; or other event
outside the reasonable control of the obligated party.
(c) If any provision of this Agreement is held
unenforceable or invalid, the remaining provisions shall nevertheless be
binding upon the respective parties hereto with the same effect as though the
invalid or unenforceable provision was deleted.
(d) No delay by RealPage
in the enforcement of, or failure to enforce, any provision or right hereunder
shall operate as a waiver of such right.
(e) User may
not assign this Agreement or delegate any right hereunder without the prior
written consent of RealPage. RealPage may at any time assign, transfer or
sub-contract in any other manner with all or any of its rights or obligations
under this Agreement upon written notice to User.
(f) Nothing in
this Agreement is intended to or shall operate to create a partnership between
the parties, or authorize either party to act as agent for the other, and
neither party shall have the authority to act in the name or on behalf of or
otherwise to bind the other in any way (including, but not limited to, the
making of any representation or warranty, the assumption of any obligation or
liability and the exercise of any right or power).
(g) This
Agreement does not confer any rights on any person or party (other than the
parties to this Agreement and, where applicable, their successors and permitted
assigns).
(h) All notices and
other communications among the parties shall be in writing and shall be deemed
to have been duly given (a) when delivered in person; (b) when delivered after
posting in the United States mail having been sent registered or certified mail
return receipt requested, postage prepaid; (c) when delivered by UPS, FedEx or
other nationally recognized overnight delivery service; or (d) when delivered
by facsimile (with respect to this clause (d), solely if receipt is confirmed),
except that any Notice received after 5:00 pm in the time zone of delivery or
on any day that is not a Business Day shall be deemed received on the next
Business day, addressed if to RealPage, at its Principal Office, and if to
User, at the address set forth in RealPage’s records.