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.