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Tenant Pro® Software License Agreement - Tenant Pro 5

Tenant Pro® Software License Agreement

IMPORTANT — READ THIS ENTIRE DOCUMENT CAREFULLY: This Software License Agreement (“Agreement”) is a legal agreement between you (either an individual or a single entity) and RealPage, Inc. (“RealPage”), and governs your use of the Tenant Pro software that accompanies this Agreement (the “Software”) and any associated Software user manual or other documentation.

BY INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT INSTALL, COPY, OR USE ANY PART OF THE SOFTWARE. YOU MAY OBTAIN A REFUND OF ANY AMOUNT YOU PAID FOR THE SOFTWARE WITHIN THE PREVIOUS SIXTY (60) CALENDAR DAYS IF YOU: (A) DO NOT USE THE SOFTWARE (AND NO ACTIVATION CODE HAS BEEN ISSUED FOR THE SOFTWARE); AND (B) RETURN IT, WITH PROOF OF PAYMENT, TO THE LOCATION FROM WHICH IT WAS OBTAINED WITHIN SIXTY (60) CALENDAR DAYS OF THE PURCHASE DATE. IF YOU HAVE PURCHASED ANY THIRD PARTY SOFTWARE (SUCH AS CRYSTAL REPORT WRITER) ALONG WITH THE SOFTWARE, YOU MUST CONTACT THAT THIRD PARTY LICENSOR REGARDING ITS RETURN AND REFUND POLICIES.

RealPage permits you to use the Software only in accordance with the terms of this Agreement. Any modifications, updates, revisions or enhancements received by you from RealPage or its dealers are also governed by this license and the other terms of this Agreement.

1. License. RealPage grants to you a non-exclusive, non-transferable, limited license to use the Software for your internal business purposes only. RealPage acknowledges that your use of the Software may be on behalf of owners of properties as an agent of such owners. You agree that you shall not copy, modify, distribute, publish, publicly display, or create adaptations or derivative works of or improvements to the Software or any other intellectual property of RealPage; provided, however, that you may generate, use and distribute reports that include information derived from or stored by the Software for uses related to your internal business purposes. The Software may be used by you at a single location on a single computer which you own or use and on which the Software is designed to operate. If you have licensed a network version of the Software, you have the right to use the network version only on a local area network established by you at a single location, and the Software may be accessed only by your employees or by other authorized personnel working for you at such location.

2. License Restrictions. You agree not to assign, copy, transfer or transmit the Software, or any portion thereof, to any third party (other than the property owner for whom you perform services). You agree that you shall not de-compile, reverse engineer, disassemble or otherwise reduce or manipulate the Software, including the underlying code of the Software, other than as expressly permitted in writing by RealPage. THE SOFTWARE CONTAINS CODE-BASED PROTECTIONS THAT SERVE TO PREVENT AND REMEDY VIOLATIONS OF THE LICENSE RESTRICTIONS. Your license to use the Software, its components, and any third party data will terminate if you violate these restrictions. If your license terminates, you agree to cease any and all use of the Software, its components, and any third party data, and to immediately return or destroy the Software. You may not make copies, translations or modifications of or to the Software, except you may copy the Software in its machine-readable form only for backup purposes in support of your use of the Software. RealPage may change, suspend or discontinue any aspect of the Software or its related services at any time, including the availability of any Software feature, database, or content. RealPage may also impose limits on certain features and services or restrict your access to parts or all of the Software without notice or liability.

3. Third Party Materials. Use of some third party materials included in the Software may be subject to other terms and conditions typically found in a separate license agreement or “Read Me” file located near such materials. The third party materials enable the Software to perform certain functions. All rights in any third party data, any third party software, and any third party data servers, including all ownership rights are reserved and remain with the respective third parties. You agree that said third parties may enforce their rights under this Agreement against you directly in their own name. As part of the Software solution, you may purchase other value-added services or programs provided by or through RealPage (“Value-Added Services”). Any such Value-Added Services shall be subject to separate agreements. Certain Value-Added Services are owned by third party suppliers and are either provided directly by such third party or are sublicensed by RealPage to you, subject to the terms of the applicable agreement. Any such third party agreements, regardless of whether attached hereto or via shrink wrap or click through license, will, in addition to this Agreement, govern your possession and use of that Value-Added Service. Client acknowledges and agrees that the terms and conditions of Value-Added Services provided by third parties are subject to change from time to time as required by such third parties, and that such changes shall be effective upon prior written notice of same by RealPage or the applicable third party. Client is solely responsible for understanding and complying with all third party agreements.

4. Accessing and Using the Software. You shall be solely responsible for procuring and maintaining any hardware and other software necessary for the complete utilization of the Software, including but not limited to computers that can host and operate the Software and sufficient server capacity to store any data used with the Software, or to remotely access the Software if it is hosted by RealPage. You represent and warrant that: (A) you have the power and authority to enter into and perform your obligations under this Agreement; and (B) any data, documents or other material used with or downloaded or uploaded to the Software by you or any user shall not (i) infringe the intellectual property rights of any third party; (ii) violate any applicable law, statute, ordinance, regulation or treaty; (iii) be defamatory, libelous, unlawfully threatening or harassing; (iv) be obscene or indecent; or (v) if the Software is hosted by RealPage or its service provider, contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate the Software, the server, or any system, data or personal information of any person or entity. You shall be responsible for maintaining the security of any license keys or passwords used to access the Software or the data stored thereon, and you agree that RealPage shall have no responsibility or liability for your use and safekeeping of such license keys and passwords.

5. Software Transfers and Returns. The Software may not in any way be transferred to another person or entity in part or in whole either through merger/acquisition, asset sale or any other transfer, assignment or sale. The company listed on the sales receipt, if applicable, or other documentation accompanying the Software activation code or key, is the company to which the license is granted. Software can only be returned provided no activation code has been issued to operate the Software. Any shipping and handling costs are not refunded since such costs have already been incurred.

6. IP Rights. All materials provided by RealPage to you with respect to the Software, including but not limited to the Software code (whether in object code or source code form), proprietary data, proprietary documentation associated with the Software and its related components, or other proprietary information developed or provided by RealPage or its suppliers, such as logos, trademarks/service marks, trade names, and any non-public know-how, methodologies, equipment, or processes used by RealPage to provide the Software and any related services to you, including but not limited to all of RealPage’s copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent in and appurtenant to the Software shall remain the sole and exclusive property of RealPage. All rights not granted to you under this Agreement are reserved by RealPage or its suppliers.

7. Medium. You may receive the Software in more than one medium. Regardless of the type or size of the medium you receive, you may use only one medium that is appropriate for your single user computer or your local area network if you licensed a network version of the Software. You may not use the medium on another computer or computer network, or loan, rent, lease, or transfer the medium to another person or computer, unless the transfer is to another computer (or network) owned and used by you and the Software is completely removed from the computer (or network) on which it was previously installed.

8. Export Control. You also may not, under any circumstances: use, acquire, ship, transport, export, or re-export the Software, except as authorized by RealPage and as permitted by applicable law. In particular, but without limitation, the Software may not be acquired, shipped, transported, exported, or re-exported (A) into (or to a national or resident of) any U.S. embargoed country or (B) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. You represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

9. Support. RealPage may elect to provide you with customer support and/or software updates, upgrades, enhancements, or modifications for the Software (collectively, "Support"), in its sole discretion, and may terminate such Support at any time without notice to you, unless you and RealPage have a separate written agreement to the contrary. RealPage reserves the right to charge you for any Support it provides but will make a schedule of those charges available to you prior to you incurring any costs. You agree to pay all fees and charges incurred through your use of Support at the rates in effect for the billing period in which such fees and charges are incurred. Support is only provided for the most recent version of the Software.

10. Limited Warranty. RealPage warrants that the media on which the Software is furnished will be free from defects in material or workmanship for a period of sixty (60) calendar days from the date of delivery. RealPage's sole obligation and liability for breach of the foregoing warranty shall be to replace or correct the defective media, at RealPage’s discretion.

11. No Other Warranties. OTHER THAN THE LIMITED WARRANTY SET FORTH IMMEDIATELY ABOVE, THE SOFTWARE AND ANY RELATED SERVICE IS PROVIDED “AS IS” AND WITHOUT WARRANTY. REALPAGE HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. REALPAGE DOES NOT WARRANT THAT THE USE OF THE SOFTWARE, ACCESS TO DATA OR ANY HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. ALTHOUGH CERTAIN OF THE SOFTWARE IS DESIGNED TO HELP USERS COMPLY WITH APPLICABLE LAWS AND REGULATIONS, REALPAGE HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SUFFICIENCY OR ACCURACY OF THE SOFTWARE IN THIS REGARD; MOREOVER, VARIOUS STATE LAWS MAY APPLY, AND THE SOFTWARE DOES NOT INCORPORATE STATE LAW REQUIREMENTS. ALL SUCH LAWS AND REGULATIONS MAY CHANGE FROM TIME TO TIME, AND THE SOFTWARE MAY NOT BE UPDATED TO REFLECT SUCH CHANGES. YOU SHOULD CONSULT AN ATTORNEY WITH RESPECT TO COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.

12. No Third Party Warranties. UNLESS EXPRESSLY STATED OTHERWISE IN WRITING, AS BETWEEN YOU AND REALPAGE, ANY SOFTWARE OR SERVICES PROVIDED BY A THIRD PARTY ARE PROVIDED “AS IS”, WITH ALL FAULTS AND NEITHER REALPAGE NOR ITS THIRD PARTY SUPPLIERS MAKE ANY WARRANTIES HEREUNDER, EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, PERTAINING TO SUCH THIRD PARTY SOFTWARE OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER REALPAGE NOR ITS THIRD PARTY SUPPLIERS WARRANT HEREUNDER THAT THE USE OF SUCH THIRD PARTY SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

13. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL REALPAGE BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE OR ACCESS THE SOFTWARE, OR THE LOSS OF OR INABILITY TO ACCESS ANY DATA STORED THEREON, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF REALPAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF DAMAGES SHALL BE EFFECTIVE EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE MAXIMUM LIABILITY OF REALPAGE TO YOU FOR COMPENSATORY DAMAGES FOR ANY REASON AND UPON ANY CAUSE OF ACTION BROUGHT UNDER OR ASSOCIATED WITH THIS AGREEMENT OR THE SOFTWARE, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO REALPAGE FOR THE SOFTWARE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, AND STRICT LIABILITY.

14. Indemnification. You shall indemnify, defend and hold harmless RealPage, its owners, officers, employees, agents, successors and assigns from and against any and all claims, actions, proceedings, judgments, losses, liabilities, costs and expenses (including attorneys’ fees) (collectively, “Liabilities”) arising from claims by any third party against RealPage that are: (A) directly or indirectly caused by your actions or omissions; (B) the result of a transaction or dispute between you and any property owner, tenant or any other third party; (C) based on or caused by unauthorized access to the Software using your password or account; or (D) based on facts or alleged facts, which if true, would constitute a breach of the your representations, warranties, or covenants under this Agreement or any related agreement.

15. U.S. Government Restricted Rights. The Software is provided with RESTRICTED RIGHTS. If the Software and/or related documentation are supplied to or purchased by or on behalf of the United States Government, then the Software is deemed to be "commercial software" as that term is used in the Federal Acquisition Regulation provisions. Rights of the United States shall in no event exceed the minimum rights set forth in FAR 52.227-19 for "restricted computer software" and shall at all times be restricted as set forth in DFAR, 48 CFR 252.227-7013. To the fullest extent possible, all other terms and conditions of this Agreement apply.

16. Audit Rights. During the term of this Agreement and for one (1) year after termination, on advance notice of no less than thirty (30) calendar days and no more than once every six (6) months, RealPage shall have the right to conduct, or have conducted by an independent third party auditor, during regular business hours at your offices (or wherever else the Software is used by you) and in such a manner as not to interfere unreasonably with your normal business activities, an on site inspection and audit of your records, processes, relevant systems, hardware, software and any other applicable materials to verify your compliance with the terms of this Agreement.

17. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio without regard to conflict of laws principles. The parties hereby submit to the exclusive jurisdiction of the state and federal courts located in Hamilton County, Ohio for the resolution of all disputes under, arising from or relating to this Agreement (including any third party software or services), its performance or otherwise between the parties, and both parties agree that they shall not contest venue in such courts. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. The prevailing party will be entitled to collect from the other party, the prevailing party's reasonable legal fees and costs in connection with the enforcement of this Agreement.

18. Interpretation and Severability. If any provision(s) of this Agreement is held by a court of competent jurisdiction to be contrary to any applicable law or regulation, the parties agree that such provision shall be construed so that it can be found lawful to the fullest extent possible and the remaining provisions of this Agreement shall remain in full force and effect. If such provision cannot be construed in a fashion that is lawful or is otherwise found void, then the parties agree that the remaining provisions of the Agreement shall continue in full force and effect as if said void provision never existed and as long as the removal of such void provision does not alter the obligations of the parties. If an ambiguity or question of intent arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring either party by virtue of authorship of any of the provisions of this Agreement.

19. Waiver. The failure of either party hereto to insist upon strict performance of any covenants or obligations hereunder, irrespective of the length of time for which such failure continues, shall not be a waiver of that party's right to demand strict compliance in the future. No express or implied consent to, or waiver of, any breach or default of the performance of any obligations hereunder shall constitute a consent to, or waiver of, any other breach or default in the performance of the same or any other obligations hereunder. No term or provision of this Agreement will be deemed waived and no breach will be deemed excused, unless such waiver is in writing and signed by the party claimed to have waived.

20. Entire Agreement and Amendment. This Agreement, including any and all exhibits and schedules attached hereto, terminates, cancels and supersedes any and all previous agreements, either oral or written, between the parties hereto and contains all the covenants and agreements between the parties in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not contained herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. All exhibits and schedules to which reference is made in this Agreement are deemed incorporated in this Agreement, whether or not actually attached. Except as otherwise stated in this Agreement or any exhibit thereto, this Agreement may be amended only in a writing executed by both parties. RealPage reserves the right to revise this Agreement at any time upon providing you with thirty (30) calendar days advance written notice of such revision.

21. Data Collection. RealPage may at its discretion collect data from you or the Software for the purposes of enforcing this Agreement and for aggregation purposes. No personal data from any individual will be used without that individual’s consent.

22. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of such events as, but not limited to, flood or other natural disaster, riot, fire, judicial or governmental action, labor disputes (and if the Software is hosted by RealPage or its service provider, any actions or failures of the hosting or internet service provider or of any telecommunications service providers or facilities in the chain of communication to and from RealPage’s server) or any other causes beyond the control of either party, the party experiencing the force majeure condition shall be excused from performance to the extent that it is prevented, hindered or delayed by such causes. Each party agrees to give the other notice as soon as possible of the existence of a force majeure condition affecting the party’s performance and to give notice of the termination of the condition and the ability to continue performance under the Agreement.

23. Separate Parties. The parties agree that nothing in this Agreement shall be construed to create a partnership, joint venture, franchise or employee-employer relationship among RealPage and you. Neither party is an agent of the other, and neither is authorized to make any representation, contract or commitment on behalf of the other unless specifically requested or authorized to do so in writing by the other.

24. Assignment. Generally, you may not assign this Agreement or any of its rights and obligations under this Agreement without the prior written permission of RealPage; however, you may transfer this Agreement in its entirety to the new property manager for the properties for which this Software was used (in the event the property owner replaces you as the property manager for such properties), whereupon both you and such transferee shall comply with and remain liable under this Agreement. RealPage may assign this Agreement and any of its rights and obligations under this Agreement upon written notice to you.

25. Publicity. RealPage may generally reference you both textually and by use of your corporate logo within RealPage’s corporate marketing materials, presentations and web site to identify you as one of RealPage’s customers.

26. Acknowledgement. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY IT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN YOU AND REALPAGE CONCERNING THE SOFTWARE AND ANY ASSOCIATED SERVICES AND THAT IT SUPERSEDES ANY DEMONSTRATION, ADVERTISEMENT, PROPOSAL OR PRIOR AGREEMENT (ORAL OR WRITTEN) OR OTHER COMMUNICATION BETWEEN YOU AND REALPAGE RELATING TO THE SOFTWARE.