Propertyware Payments Processing Agreement Terms and Conditions
Payment Processing Agreement
Terms and Conditions
Please carefully read the terms and conditions of this Payment Processing Agreement (“Agreement”). By executing and initialing the corresponding portion of the order form (“Order Form”) that incorporates by reference this Agreement, Subscriber (as identified on the Order Form) agrees to the foregoing terms and conditions whereby RealPage, Inc. (“RealPage”) agrees to furnish to Subscriber, and Subscriber agrees to purchase, certain full recourse payments processing services identified on the Order Form (each line item on the Order Form shall be treated as a separate and distinct payments processing service), together with a license to use the software required to access the service (the “Software”), and any related documentation (collectively, the payments processing service, the Software and the documentation, shall hereafter be referred to as the “Payments Service”) for each rental property (each a “Unit”) designated on the Order Form.
Subscriber should access and review this Agreement regularly. If Subscriber determines that the terms and conditions of this Agreement are unacceptable at any time, then Subscriber must immediately discontinue its access to or use of the Payments Service. Subscriber’s access to or use of the Payments Service after RealPage has made such changes available, will constitute Subscriber’s agreement to such changes.
- License Grant. RealPage hereby grants Subscriber a limited, non-exclusive, non-transferable license (the “License”) to permit Authorized Users (defined as an employee of Subscriber using the Payments Services for the purpose of management and operation of rental properties, or a certified RealPage training partner whom Subscriber has retained to provide training services) to access and utilize the Payments Services to (i) initiate debit, credit, and corrective entries (“Entries” or an “Entry”), or (ii) initiate such other transactions (collectively, “Transactions”) solely for its internal business operations, all in accordance with this Agreement. RealPage hereby retains all rights not specifically granted to Subscriber.
- Prohibitions. Unless described as a feature in the Product Specifications or unless expressly and specifically permitted to do so by this Agreement and then only in the exact manner specified, Subscriber may not (i) assign, convey, copy, create derivative works from, decompile, derive source code, disseminate, distribute, export, encumber (including any security interest), insert in any content aggregation network, lease, lend, license, localize, modify, publish, rent, reproduce, reverse engineer, sell, store in a retrieval device, sublicense, transfer, translate, or interfere with the operation of (nor attempt, allow or facilitate any of the foregoing) the Payments Services; (ii) permit third parties (other than certified RealPage training partners) to use the Payments Services for training purposes or otherwise; (iii) remove or alter any trademark, logo, copyright, or other proprietary notices in or on the Payments Services; or (iv) place on any portion of the Payments Services materials that are illegal, obscene, dangerous or libelous, or that violate, infringe or misappropriate any copyright, trademark, patent, trade secret, or other statutory or common law intellectual property right. RealPage reserves the right but does not assume the obligation to remove from any portion of the Payments Services any materials that violate the provisions of this Agreement. Subscriber agrees not to use any information obtained through the Payments Services for any unlawful or unauthorized purpose.
- License Term. The initial term of each License (the “License Term”) will commence on the date of Activation (as defined below) of a Payments Service at a Unit and will continue until the last day of the twelfth calendar month next following the calendar month in which Activation occurs (unless earlier terminated pursuant to the terms of this Agreement). Thereafter, the License Term shall automatically renew for an additional one year License Term unless either RealPage or Subscriber shall have given the other written notice of termination no less than 30 days prior to such expiration of the initial License Term or any renewal License Term. RealPage will notify Subscriber in advance by issuance of an invoice at a minimum of 45 days prior to expiration of any License Term. The expiration or termination of the License for a particular Payments Service will not affect the termination of any other Payments Service License.
- License Suspension or Termination. In addition to any other License termination provisions in this Agreement, without prejudice to any other rights, RealPage may, without prior notice, immediately suspend or terminate the License for any Payments Service hereunder if, in its reasonable judgment: (i) returned Entries are excessive as determined by RealPage in its sole discretion; (ii) Subscriber fails to maintain sufficient funds in its Bank Account (as defined below) to meet its obligations hereunder; (iii) any insurance policy obtained by RealPage relating to returned Entries is cancelled or terminated for any reason; (iv) Subscriber fails to provide financial statements suitable to RealPage on request; or (v) RealPage cannot perform its duties under this Agreement for whatever reason including, but not limited to, the Originating Depository Financial Institution’s (“ODFI”) termination of its agreement with RealPage. If RealPage determines that it is not feasible to provide to Subscriber such suspended or terminated Payments Service(s), RealPage is not obligated to provide a replacement Payments Service. Following the suspension or termination of the License for a Payments Service, Subscriber agrees to maintain in its Bank Account an amount reasonably determined by RealPage to cover all returned Entries, deposit charges, refunds, equipment charges, and fees incurred by Subscriber for a period of 90 days (the “Charges”). If the amount in Subscriber’s Bank Account is not adequate to cover the Charges, Subscriber agrees to pay RealPage the amount it owes under this Agreement, together with all costs and expenses incurred to collect that amount, including reasonable attorneys’ fees, either during the Term or any time thereafter upon demand.
2. Payment. RealPage shall invoice, and Subscriber shall pay RealPage, the Initial License Fee upon execution of the Order Form, the Access Fee upon Activation of the Payments Services (“Activation” occurs as to a Unit when Subscriber Data for the Unit is accessible through the Payments Services, regardless of whether the Payments Services are in production), and the Transfer Fee upon transfer of a Unit (collectively, the “Fees”, each of which is identified on the Order Form). When processing Transactions, RealPage shall deduct from Subscriber’s Bank Account (as defined below) such Fees as set forth on the Order Form for the Payments Services, or offset any such Fees against funds due to Subscriber from RealPage or its affiliated entities (each a “RealPage Party”). RealPage reserves the right to adjust the Fees for processing Transactions at any time by providing written notice to Subscriber and the adjusted Fees shall become effective for the month immediately following the month in which written notice was provided. Subscriber’s continued acceptance of the Payments Service for which Fees were adjusted shall constitute Subscriber’s agreement to be bound by the adjusted Fees. Subscriber may terminate the License for a Payments Service whose Fees have been adjusted prior to such adjustment by providing written notice to RealPage unless such Fees were adjusted due to an increase in charges to RealPage by any third party. Additionally, RealPage shall invoice, and Subscriber shall reimburse RealPage, for RealPage’s reasonable and verified out-of-pocket expenses incurred in connection with its implementation, training and support of the Payments Services at a Unit. In addition, Subscriber agrees to pay to RealPage any amount incurred by either of them attributable to this Agreement, including but not limited to, indemnification liability, breach of warranty, fines imposed by third parties directly related to the Payments Services, fees and penalties associated with returned Entries and chargebacks, or other Payments Services that are otherwise dishonored. Subscriber will pay to RealPage any amount incurred by either of them attributable to (i) returned Entries or (ii) fines and penalties imposed by the National Automated Clearing House Association (“NACHA”) arising out of or in connection with any action or inaction by Subscriber or otherwise with regard to any Entries processed in the name of Subscriber. If Subscriber does not activate a Unit within 12 months of the date on an Order Form for the Unit, RealPage reserves the right to charge upon Activation additional Initial License Fees for such non-activated Unit(s). Such Fees and expenses shall be payable upon receipt of invoice and due to RealPage within 30 days from the date of invoice. At RealPage’s sole discretion, all invoices not paid by ACH shall incur an additional fee of $15.00 per invoice. Subscriber shall pay any tax (and related interest and penalties) imposed for Subscriber’s access to or use of the Payments Services, or as a result of the existence or operation of this Agreement, including any tax that Subscriber is required to withhold or deduct from payments to RealPage, other than tax imposed on RealPage’s net income or corporate existence. RealPage reserves the right to assess against Subscriber interest at a rate equal to the lesser of 1.5% per month or the greatest amount permitted by applicable law for any past due invoice.
3. Payments Services. RealPage is providing the Payments Service to Subscriber as payee-agent, and all payments submitted by Subscriber’s customers through RealPage’s Payments Service shall constitute payments to Subscriber. RealPage shall provide the Payments Services selected on the Order Form subject to certain “Product Specifications”, “Service Level Specifications” and “Dependencies and Uses.” The most current version of the Product Specifications, the Service Level Specifications and the Dependencies and Uses may be found on the Payments page at http://www.specifications.controls.realpage.com, the terms of which are incorporated herein by this reference. RealPage may change the Product Specifications, the Service Level Specifications or the Dependencies and Uses, or discontinue or revise any and all aspects of the Payments Services or any of the functionality of the Payments Services at its sole discretion from time to time during the Term hereof; provided however, RealPage shall not change the Product Specifications, the Service Level Specifications or the Dependencies and Uses or discontinue the Payments Services or any of the functionality of the Payments Services in a manner that would modify or remove material functionality of the Payments Services without prior written notice to Subscriber unless prior notice is not reasonably practicable in order to permit RealPage to comply with any laws or third-party licensing requirement. In the case of a conflict between this Agreement and the Product Specifications, the Service Level Specifications or the Dependencies and Uses, the terms of the Product Specifications, the Service Level Specifications or the Dependencies and Uses shall prevail.
4. ACH Services. RealPage shall provide Automated Clearing House (“ACH”) Processing Services (“ACH Services”) via the ACH Network within the scope of the “NACHA Rules”, which shall constitute a Payments Service hereunder. With reference to the NACHA Rules, Subscriber shall be deemed to be an “Originator” and RealPage shall be deemed to be a “Third Party Originator” hereunder.
5. Check 21 Services. RealPage shall provide services related to creating and processing a substitute check (“Check 21 Services”), which shall constitute a Payments Service hereunder. RealPage is the provider of the Check 21 Services that permit Subscriber, pursuant to the Check Clearing for the 21st Century Act (“Check 21 Act”) to create a machine readable copy (“Electronic Image”) of a check (“Paper Item”) for purposes of creating a substitute check. The Check 21 Services enable Subscriber to create an Electronic Image from which RealPage will transmit an “Electronic File” of such Electronic Images and other information for presentment at the reconverting bank (“Reconverting Bank”). After the Reconverting Bank receives an Electronic File, the Reconverting Bank, at its sole option, uses the Electronic File either (a) to create substitute check(s) that the Reconverting Bank presents to the paying bank (each, the “Paying Bank”) on which the Paper Item is either (i) drawn or (ii) payable at or through; or (b) to generate one or more electronic files (from the original Electronic File), for presentment directly or indirectly to the Paying Bank. RealPage shall process the Electronic Files in accordance with the Product Specifications. Subscriber agrees to comply with the Check 21 Act at all times.
6. Project Plan. When the parties have executed an Order Form, RealPage and Subscriber may execute contemporaneously or subsequently, a Project Plan (“Project Plan”) that sets forth additional Payments Services or permits Subscriber to implement the Payments Services and train Subscriber personnel to use the Payments Services. In addition to any fees or other charges associated therewith, the Project Plan shall provide for reimbursement to RealPage of its reasonable and verified out-of-pocket expenses incurred in performing services under the Project Plan.
7. Term. The “Term” of this Agreement shall commence on the Effective Date identified on the Order Form, and continue until the expiration of the last expiring License Term granted hereunder.
8. Subscriber Data. Subscriber hereby grants to the RealPage Parties, with regard to Subscriber Data (defined herein as all data, in whatever form, entered into the Payments Services by Subscriber, its agents or a RealPage Party at the direction of Subscriber) collected during the Term, and to be used solely for the Permitted Purposes listed below, a perpetual, irrevocable, royalty-free, world-wide, non-exclusive right and license to access, use, extract, aggregate, reproduce, modify, adapt, publish, create derivative works from, sublicense, distribute, perform, display, and incorporate in other works in any form, media, or technology now known or later developed the Subscriber Data. Subscriber represents and warrants to RealPage that Subscriber Data provided to RealPage is correct and accurate and that Subscriber owns all right, title and interest in and to Subscriber Data (including, without limitation, all intellectual property rights), or possesses sufficient rights to grant to the RealPage Parties the license set forth in this paragraph. The “Permitted Purposes” are:
- maintenance and enhancement of the Payments Services, including Subscriber Data and databases in which Subscriber Data resides, and all other uses necessary for RealPage to properly discharge RealPage’s obligations pursuant to this Agreement;
- supporting Subscriber’s access to and use of the Payments Services;
- transmission of Resident (as defined below) information to third-party service providers for the purposes of processing ACH or credit card transactions.
9. Clearing Account. Subscriber must maintain sufficient funds in Subscriber’s bank account established to process electronic payments (“Bank Account”) when transmitting and clearing transactions through RealPage’s clearing account at the ODFI to satisfy all obligations, including Fees, contemplated by this Agreement. Subscriber authorizes RealPage, in accordance with this Agreement to initiate Entries to Subscriber’s Bank Account, or any other account maintained by Subscriber at any financial institution. RealPage reserves the right to delay the availability of funds for deposit without prior written notice to Subscriber if in the reasonable exercise of its sole discretion, RealPage deems itself at financial or relative risk for any and all Payment Services performed under this Agreement. Upon request by RealPage, Subscriber agrees to execute and deliver to RealPage an ACH authorization agreement in the form requested by RealPage. The authority granted by this Section shall survive the termination of this Agreement and shall remain in effect until the latter to occur of: (i) RealPage having received a written notification from Subscriber of its termination in such a manner as to afford RealPage reasonable opportunity to act upon it, and (ii) all obligations of Subscriber to RealPage that have arisen under this Agreement having been paid in full.
10. Exception Items. RealPage or its Reconverting Bank may reject any Electronic Image that RealPage or its Reconverting Bank in either’s sole discretion determines to be ineligible for the Check 21 Services (each, an “Exception Item”), including, without limitation, Electronic Images of Paper Items drawn on banks located outside the United States, Electronic Images that are illegible, Electronic Images of Paper Items previously converted to substitute checks, and Electronic Images with unreadable Magnetic Ink Character Recognition (“MICR”) information. RealPage shall notify Subscriber of such Exception Items (electronically, in writing or by telephone) in the event of any such rejection. Subscriber agrees that if it wishes to attempt to submit an Exception Item for processing, it shall do so only as permitted by the Check 21 Act by depositing the original Paper Item on which the Exception Item is based. Subscriber acknowledges and agrees that even if the Reconverting Bank does not identify an Electronic Image as an Exception Item, the substitute check or purported substitute check may nevertheless be returned to the Reconverting Bank because, among other reasons, the substitute check or purported substitute check is deemed illegible by the Paying Bank. RealPage’s failure to identify an Exception Item shall not preclude or limit the indemnification obligations of Subscriber to RealPage under this Agreement.
11. Authorized Representatives. Subscriber will designate one or more authorized representative(s) (“Authorized Representative(s)”) in connection with the Payments Services. Such person(s) will have the authority to instruct RealPage and make decisions on behalf of Subscriber regarding Subscriber’s use of the Payments Services. RealPage will be entitled to rely on any written notice or other written communication believed by it to be genuine and to have been signed by an Authorized Representative of Subscriber and any such communication will be deemed to have been signed by such person.
12. Processing Equipment and Software. Subscriber shall be solely responsible for (i) its own data processing hardware and software necessary to collect and compile data in the format required by RealPage for the provision of Payments Services and (ii) establishing and maintaining its telecommunications line and equipment necessary to transmit data from Subscriber to RealPage. Subscriber shall use only equipment or software programs provided or approved by RealPage. Subscriber will provide, at Subscriber’s expense, suitable electric power and telephone services and will pay for any alterations to Subscriber’s premises required to properly locate Subscriber’s equipment. Subscriber will use and operate the equipment only in accordance with the equipment user’s guide.
13. Authorization. Before initiating any Entries from a Unit resident (each a “Resident”), Subscriber shall obtain from such Resident an authorization to initiate on one or more Entries to an account owned by the Resident (“Resident Account”), which authorization shall comply with the Rules (as defined below). Subscriber shall not submit any Entry without first obtaining the required consent or authorization using the authorization forms and or methods approved for each type of Entry designated by RealPage from time to time. Each Entry thereafter shall be made pursuant to such authorization and no Entry shall be initiated by Subscriber after such authorization has been revoked or the arrangement between the Subscriber and Resident has terminated. If the amount of an Entry to a Resident Account varies from the amount authorized, Subscriber shall notify Resident by written notice at least 10 calendar days prior to the effective Entry date (“Entry Date”) of the Entry. If the scheduled effective Entry Date changes, Subscriber shall notify Resident in writing 7 calendar days prior to the scheduled effective Entry Date.
14. Rejection of Entries. RealPage may reject any Entry at its discretion. RealPage, within a commercially reasonable time, shall notify Subscriber of such rejection (electronically, in writing or by telephone) in the event of a rejected Entry. RealPage shall not be required to pay Subscriber interest on a rejected Entry for the period of the rejection.
15. Account Monitoring & Collections.
- Subscriber acknowledges that RealPage will monitor Subscriber’s daily deposit, returned Entry, Exception Item and settlement activity. Subscriber agrees that RealPage may, upon reasonable grounds, delay the disbursement of funds for a reasonable period of time required to investigate suspicious or unusual activity. RealPage shall have no liability for any losses, either direct or indirect, which are attributable to any such delay of funds disbursement.
- Subscriber shall obtain all authorizations under the Rules (as defined below) necessary to permit RealPage, as Subscriber’s agent for such purposes, to debit the checking accounts of Residents for the principal amount of debit Entries and for any collection or ACH Services processing fees permitted by applicable law.
16. Confirmation Letter. RealPage shall make funds from accepted Entries available to Subscriber’s depository bank in accordance with the confirmation letter prepared by RealPage upon completion of the underwriting process (“Confirmation Letter”). The Confirmation Letter, once executed by the parties, shall form a part of this Agreement.
- Processing Deadline. The ODFI has imposed on RealPage specific processing deadlines, of which RealPage shall supply notice to Subscriber from time to time. RealPage will transmit Entries to the ODFI from Subscriber received prior to the processing deadline for processing that day and such Entries will be settled by the Federal Reserve on the Entry Date. RealPage will process Entries received after the processing deadline on the next business day.
- Settlement of Funds. Based on underwriting criteria established by RealPage, from time to time RealPage may establish ACH processing restrictions for each Subscriber. Such restrictions include, but are not limited to, a maximum number of Entries that may be presented per day or per month, a maximum dollar amount of Entries that may be presented from Residents per day or month, a maximum dollar amount for any given Entry that will be accepted, the number of business days that RealPage will hold funds after settlement of Entries, or the percentage of funds to be held after settlement of Entries. Unless otherwise set forth in an Order Form, RealPage shall document such restrictions and otherwise make funds from settled Entries available to Subscriber’s depository bank in accordance with the Confirmation Letter executed by the parties.
17. Financial Accommodations. RealPage and Subscriber intend this Agreement to be construed as a contract to extend financial accommodations for the benefit of Subscriber.
18. Subscriber’s Representations and Warranties. Subscriber represents and warrants to RealPage and its ODFI that:
- (i) all information in any Payments Application executed by Subscriber is correct and complete, and Subscriber agrees to notify RealPage, in writing, of any changes to such application within two days of any change in such information; (ii) any and all Transactions that Subscriber or its employees submit for Payments Services shall be bona fide and non-fraudulent; and (iii) it has obtained all necessary regulatory approvals, certificates and licenses, and covenants that it will obtain all necessary or appropriate consents to sell any product or provide any service it intends to offer, including the use of the Payments Services;
- Subscriber shall use the Check 21 Services only for Paper Items payable to or endorsed or deposited by Subscriber into its Bank Account;
- Subscriber shall dispose of original Paper Items for which Subscriber has created an Electronic Image. In that regard, Subscriber shall maintain control over and responsibility for retention and destruction of original Paper Items;
- Subscriber shall not submit any duplicate Electronic Images to RealPage;
- Subscriber shall not deposit for Check 21 Services or otherwise negotiate any original Paper Item from which Subscriber has previously created and submitted to RealPage an Electronic File, unless RealPage has notified Subscriber that the Electronic Image is an Exception Item; and
- Subscriber shall transmit to RealPage only Electronic Images suitable for processing, including, but not limited to, Electronic Images that are legible and contain machine-readable MICR data.
19. Rules. Subscriber and RealPage each represents and warrants that it has obtained all necessary regulatory approvals, certificates and licenses, and covenants that it will obtain all necessary consents to sell any product or provide any service it intends to offer. Subscriber and RealPage each further represents, warrants and covenants that it is, and will remain, in compliance with all applicable laws, rules and regulations of federal, state and local governmental authorities and governing industry associations applicable to this Agreement, including, but not limited to, the Fair Credit Reporting Act (“FCRA”), the NACHA Rules or the Check 21 Act, and any rules of the credit card associations. RealPage may from time to time establish reasonable rules, regulations and operational guidelines with respect to use of the Payments Services by Subscriber and Residents, and Subscriber agrees to be bound by and comply with such rules, regulations and operational guidelines within 10 days after delivery thereof to Subscriber. All laws, rules, regulations and operational guidelines referred to in this Section shall be referred to collectively as the “Rules.” RealPage shall have the right to audit and inspect Subscriber’s operation and website to verify Subscriber’s compliance with such Rules.
20. Subscriber Security. Subscriber shall adopt all reasonable security precautions to prevent unauthorized or fraudulent use of the Payments Services by Subscriber, its employees, agents and Residents, and to comply with all security measures established by RealPage from time to time.
- Subscriber acknowledges that the purpose of such security procedure is for verification of authenticity and not to detect an error in the transmission of content and therefore RealPage shall not be liable for any damages whatsoever for the failure to detect such errors.
- RealPage shall have the right to audit and inspect Subscriber’s operation and website to verify Subscriber’s compliance with such security measures.
- Subscriber shall assume all responsibility for unauthorized or fraudulent use of the Payments Services originating from the Subscriber or its Authorized Users.
- RealPage shall not have any obligation to discover any possible breach of Subscriber’s security policies or procedures.
- Each party shall immediately notify the other party if it discovers any breach of security, loss of data, non-public personal information, or suspected or actual fraud with respect to the Payments Services. In the event RealPage establishes security procedures, or security procedures are required by its ODFI, an acquiring bank, a Reconverting Bank or by law, RealPage shall notify Subscriber in writing of such requirement as well as the time frame in which such security procedures must be implemented. If Subscriber cannot or will not implement the security procedures within the time frame designated in the written notice, either party may terminate the Licenses under this Agreement by written notice to the other party.
21. Debtor. To the extent that Subscriber becomes a debtor under any chapter of Title 11 of the United States Code, Subscriber hereby unconditionally and absolutely waives any right or ability that Subscriber may otherwise have had to oppose, defend against, or otherwise challenge any motion filed by RealPage, or a third party, for relief from the automatic stay of 11 U.S.C. § 362(a) to enforce any of their rights or claims under this Agreement.
22. Credit Information. As a condition to RealPage’s obligations to render Payments Services hereunder, Subscriber hereby agrees to provide to and authorizes RealPage to obtain all information regarding Subscriber’s creditworthiness and financial conditions that RealPage may from time to time reasonably require. RealPage shall have the right to audit Subscriber and Subscriber’s books and records regarding Transactions to confirm Subscriber’s compliance with the requirements of this Agreement and the applicable Rules. Subscriber shall provide all information requested by RealPage to complete RealPage’s audit. Subscriber authorizes parties contacted by RealPage to release the credit information requested by RealPage, and Subscriber agrees to provide RealPage a separate authorization for release of credit information, if requested. Subscriber shall deliver to RealPage such information as it may reasonably request from time to time, including without limitation, financial statements and information pertaining to Subscriber’s financial condition. Such information shall be true, complete, and accurate. RealPage shall treat as confidential and not disclose non-public information to which it has access during the course of any such audit.
23. Warranty. RealPage warrants that a Payments Service will perform the functions set forth in the then current version of the Product Specifications and in conformity with the Service Level Specifications applicable to such Payments Service, if used in the manner and environment described in the Product Specifications, Service Level Specifications, and Dependencies and Uses for such Payments Service. RealPage warrants that it will provide the availability, security, support, fixes, maintenance, average response times, and notices of upgrades and enhancements set forth in the then current version of the Product Specifications and the Service Level Specifications for a Payments Service, if used in the manner and environment described in the Product Specifications, Service Level Specifications, and Dependencies and Uses for such Payments Service.
24. Exclusive Remedy. Subject to the limitations set forth herein, should a Payments Service fail to perform in accordance with the applicable Product Specifications and Service Level Specifications, RealPage shall modify the Payments Service to conform to the applicable Product Specifications and Service Level Specifications. As Subscriber’s sole remedy, for each day that availability of the Payments Service falls below the Availability Period set forth in the Service Level Specifications, or for each day the average response time of the Payments Service is greater than the average response time within RealPage’s data center(s) set forth in the Service Level Specifications, RealPage shall credit Subscriber’s account for 1/365th of the yearly Access Fee, or if applicable, 1/30th of the monthly Access Fee; provided, however, that in the event RealPage has failed to meet the warranty of availability for more than 10 days in any 90 day period or the warranty of response time for more than 10 days in any 90 day period, Subscriber shall have the right to terminate the License to the applicable Payments Service. This shall be Subscriber’s sole and exclusive remedy and RealPage’s sole and exclusive liability for the breach of the warranty of availability and the warranty of response time set forth in the Service Level Specifications.
25. Disclaimer of Warranties, Limitation of Damage, and Limitation of Liability. Because of the nature of the Payments Services, Subscriber uses these Payments Services at Subscriber’s own risk. RealPage, its ODFI, and its Vendors (defined herein as licensors of software and producers of goods and services made a part of the Payments Services) are service providers, not insurers. Subscriber acknowledges that data processing services, including the Payments Services, involves the risk of human and machine errors, omissions, delays, and losses, including inadvertent loss or misstatement of data that may give rise to loss or damage, and, therefore, to the extent RealPage, its ODFI, or its Vendors are liable for the same, its liability shall be subject to the limitations provided herein. Other than as expressly provided herein, RealPage its ODFI, and its Vendors disclaim, and Subscriber releases and waives, all express or implied warranties including, without limitation, warranties of accuracy, correspondence to description, completeness, merchantability, fitness for a particular purpose or use, availability, inter-operability, non-infringement, performance to specifications, quality of service, results, title, workmanlike effort, and absence of encumbrances, errors, negligence, viruses, and interruption with respect to the Payments Services or any information available through the Payments Services. In addition to all other limitations on the liability of RealPage, its ODFI, and its Vendors contained in this Agreement, neither RealPage, its ODFI, nor its Vendors shall be liable to Subscriber, Residents, or any other person for: (i) any loss resulting from defective or faulty equipment regardless if owned by RealPage, its ODFI, or its Vendors; (ii) the unavailability of a Payments Service caused by the termination of contracts with Vendors, including without limitation, third-party processors, partners, or installers, whether terminated by RealPage, its ODFI, its Vendors, or any other person for any reason; (iii) delay, interruption, or termination of any Payments Service caused by any reason except for failure of RealPage to repair or replace equipment at Subscriber’s expense, if RealPage has undertaken an obligation to repair or replace; or (iv) for any event of force majeure. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, REALPAGE, ITS ODFI, AND ITS VENDORS DISCLAIM ANY AND ALL LIABILITY WHATSOEVER CONCERNING THE ACCURACY, CORRECTNESS, CURRENCY, AVAILABILITY, RELIABILITY, OR LOSS OF DATA. IN NO EVENT WILL REALPAGE, A REALPAGE PARTY, REALPAGE’S ODFI, OR ANY VENDOR BE LIABLE HEREUNDER FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN THE EVENT LIABILITY IS ASSESSED AGAINST REALPAGE, A REALPAGE PARTY, REALPAGE’S ODFI, OR ANY VENDOR, AND ALL OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE, SUCH PARTY’S LIABILITY, WHETHER ARISING IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED IN TOTAL AN AMOUNT EQUAL TO THE FEES PAID BY SUBSCRIBER TO REALPAGE UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE DATE IN WHICH ANY SUCH CLAIM HAS ARISEN.
26. Infringement Indemnity. RealPage will indemnify, defend and hold Subscriber harmless against any third party claim that Subscriber’s use of any Payments Service in accordance with the terms of this Agreement (but excluding any of the Subscriber Data) directly violates, infringes or misappropriates any United States patent issued as of the date of the corresponding Order Form or any copyright, trademark or other intellectual property rights (“IP Claim”). RealPage will pay all costs and expenses (including reasonable legal fees) incurred prior to notifying RealPage of such IP Claim, and all damages finally awarded against Subscriber by a court of competent jurisdiction or agreed in a written settlement agreement signed by RealPage arising out of such IP Claim; provided that: (i) Subscriber immediately notifies RealPage in writing of such IP Claim; (ii) RealPage may assume sole control of the defense of such claim with counsel of its choice and all related settlement negotiations; and (iii) Subscriber provides RealPage, at RealPage’s request, with reasonable assistance, information and authority necessary to conduct the defense of the IP Claim. If RealPage believes that Subscriber’s use of any Payments Service is likely to result in an IP Claim, RealPage may (i) modify or replace the Payments Service to make it non-infringing; provided, however, no such replacement or modification shall substantially impair the functionality or performance of such Payments Service; (ii) acquire for Subscriber a license to continue to use the Payments Service; or (iii) terminate the License with respect to the infringing Payments Service and refund to Subscriber all Fees pre-paid by Subscriber with respect to the infringing Payments Service. Notwithstanding anything in this Agreement to the contrary, RealPage shall have no obligation to Subscriber with respect to any IP Claim if such IP Claim is based upon (i) Subscriber Data, (ii) Subscriber’s use of a Payments Service in a manner not expressly authorized by this Agreement, (iii) the combination, operation, or use of a Payments Service with third-party material that was not provided by RealPage, if Subscriber’s liability with have been avoided in the absence of such combination, operation, or use, or (iv) modification to a Payments Service other than as authorized in writing by RealPage. THE FOREGOING SHALL BE REALPAGE’S ENTIRE OBLIGATION AND SUBSCRIBER’S SOLE REMEDY FOR ANY IP CLAIM.
27. Subscriber Indemnity. Subscriber shall defend, indemnify and hold RealPage, its affiliates, ODFI, and Vendors, and their directors, officers and employees (an “Indemnified Party”), harmless from and against all losses, damages, costs and expenses (including reasonable attorneys’ fees) (“Claim”) incurred by an Indemnified Party arising from Subscriber’s (or any user using Subscriber’s username or password) (i) access to or use of the Payments Services hereunder (including without limitation any Claim asserted with regard to Subscriber Data stored in the Payments Services); (ii) failure to comply with any provision of this Agreement, including without limitation, any Rule, the Check 21 Act, FCRA, or the NACHA Rules; (iii) RealPage’s presentment to the Reconverting Bank of an Electronic File for payment; (iv) Subscriber’s failure to dispose of original Paper Items in accordance with this Agreement (in which event, such Claim shall include without limitation consequential damages); or (v) failure to comply with applicable local, state or federal laws in the use of the Payments Services, including without limitation, any local, state and federal law governing the recording of conversations or the use of illegally obtained information.
28. Severability. If any provision of this Agreement be held by a court of competent jurisdiction or arbitration authority to be unenforceable, the remaining provisions of this Agreement will not be affected or impaired thereby.
29. Attorneys’ Fees. In any action (whether legal or equitable and whether litigation or arbitration or some other proceeding) related to obligations hereunder, the prevailing party (as shall be determined by the court or other adjudicator) shall be entitled to recover its reasonable attorneys’ fees and costs of suit from the other party in addition to such other relief as may be granted.
30. Merger Clause; Conflict. This Agreement, together with the Order Forms and any schedules attached hereto or thereto, supersedes any other agreement, whether written or oral, that may have been made or entered into by any party (or by any officer or officers of any party) relating to the matters covered herein and constitutes the entire agreement of the parties relating to the matters covered herein. The Order Forms, and any schedules attached hereto or thereto, are incorporated herein by this reference, and made part of this Agreement and are subject to the general terms and conditions herein.
31. Status of the Parties. Nothing herein shall be construed to create a partnership, joint venture, franchise, or employer-employee relationship by or between or amongst the parties. No party shall have the authority to commit or bind any other party without such party’s prior written consent.
32. Notices. Except as expressly provided herein, all notices and other communications required or permitted hereunder shall be given in writing and shall be delivered personally or sent by certified mail (return receipt requested), or by nationally recognized overnight courier, and shall be deemed to have been delivered upon receipted delivery to the respective addresses set forth in this Section. Any party may change its address for notice by providing notice to all other parties as provided herein.
- If to Subscriber: At the address provided by Subscriber in the Order Form.
- If to RealPage: RealPage, Inc., 2201 Lakeside Blvd. Richardson, TX 75082, ATTN: Payments Operations (with a copy to: RealPage, Inc., 2201 Lakeside Blvd. Richardson, TX 75082, ATTN: Chief Legal Officer).
33. Headings. The headings and captions of this Agreement are inserted only as a matter of convenience and in no way limit the scope or affect the meaning of any section.
34. Waiver. Any condition of this Agreement which may legally be waived must be waived in writing by the party which is entitled to the benefit thereof. No waiver shall constitute a continuing waiver; thus, no waiver by either party of any default, misrepresentation, or breach of covenant of the other party under this Agreement, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No party may waive any condition on behalf of another party.
35. Assignment. RealPage may assign or transfer this Agreement. Subscriber may not assign or transfer this Agreement without the prior written consent of RealPage. For purposes of this Section, an assignment or transfer shall include the merger of any party with or into any other corporation or entity, the sale by either party of substantially all of its assets, a transfer of the controlling interest in the capital stock, or a change in control of a party. Any permitted assignee shall acquire all of the rights and shall assume all of the obligations of the assigning party under this Agreement. Any attempted assignment, transfer, or delegation in violation of this Section shall be null and void. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, legatees, executors, and administrators of the parties hereto.
36. Survival. The provisions of this Agreement that by their terms survive termination or expiration of this Agreement, or the terms of this Agreement applicable to: (i) any License; (ii) outstanding obligations of either party at the date of termination; (iii) warranty disclaimer; (iv) indemnification; (v) limitation of liability, types of recoverable damages, and amounts of recoverable damages; (vi) integration; (vii) survival of terms; (viii) confidentiality and non-disclosure; and (ix) limitation of actions shall survive termination or expiration of this Agreement.
37. Amendment. No term, condition or covenant hereof, may be amended, modified, supplemented or cancelled by Subscriber without mutual agreement of the parties evidenced by an instrument in writing signed by authorized representatives of both parties.
38. Governing Law. This Agreement shall, in all respects, be governed by the laws of the State of Texas applicable to agreements executed and wholly performed within the State of Texas (without regard to conflicts of law rules).