Propertyware Screening Services Agreement
Screening Services Agreement
Please carefully read the terms and conditions of this Screening Services Agreement (“Agreement”). By executing, and initialing the corresponding portion of, the order form (“Order Form”) that incorporates by reference these terms and conditions, Subscriber (as identified on the Order Form) agrees to the foregoing terms and conditions whereby RealPage, Inc. (“RealPage”) licenses its applicant screening system and service (the “Service”). RealPage may amend the terms and conditions of this Agreement from time to time, in its sole discretion, by providing Subscriber written notice by electronic mail, or by regular mail, or by posting the updated terms and conditions on this website. 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 Service. Subscriber’s access to or use of the Service after RealPage has made such changes available, will constitute Subscriber’s agreement to such changes.
Subscriber manages or owns residential properties (each a “Property”), either on its own behalf, or as an agent of the owner of the Property. Through use of the Service, Subscriber accesses information from the databases of the national credit bureaus (“Credit Bureaus”), third party databases and from databases owned by RealPage or its affiliates. Such information may include, without limitation, credit history, resident history, criminal history and eviction history (all of the information available through use of the Services, the “Information“). Subscriber desires to license access to and use the Service at Properties. This Agreement sets forth the terms and conditions under which RealPage licenses the Service to Subscriber for each Property for which the Service is implemented. The Order Form identifies the Services that Subscriber may license, along with the commercial terms for the license of these Services, including the terms set forth in this Agreement. Once the parties have executed an Order Form in which Subscriber has also initialed its consent to this Agreement, the parties shall have created a binding, legally enforceable obligation for RealPage to provide and Subscriber to accept and pay for each of the Services implemented by RealPage for each Property at Subscriber’s request, subject to the terms and conditions of the Order Form and this Agreement.
By executing the Order Form that incorporates this Agreement, Subscriber represents and warrants to RealPage that it is the Property Owner or the duly appointed agent of the Property Owner of the Property(s), and has the authority either on its own behalf or pursuant to such agency agreement to: (i) execute the Order Form; (ii) enter into this Agreement on behalf of each such Property Owner; and (iii) pay all invoices for all fees and charges associated with implementation (including Fees), access and use of the Service.
1. License Grant to Access and Use. RealPage hereby grants to Subscriber, with regard to each Property for which the Service is implemented by RealPage, a limited, revocable, terminable, non-transferable, non-exclusive, use-restricted license to access the Service and use the Service solely for management and operation of the Property(s) identified on the Order Form. Any use of the Service by new Properties shall be subject to the terms of this Agreement. All rights not specifically identified in the License are reserved to RealPage. Except to the extent set forth in this Section 1, RealPage grants no additional rights or licenses in or with regard to the Services, and reserves for itself all such additional rights and licenses.
2. Charges and Payments. Subscriber shall pay RealPage for the Service either on its own behalf or through the agency of the Property Manager for Service provided hereunder in accordance with the terms of the applicable Order Form. Subscriber shall pay any tax (and related interest and penalties) imposed for Subscriber’s access to or use of the 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. Notwithstanding any other provision in this Agreement, and unless otherwise provided on the applicable Order Form, RealPage may adjust prices for the Services at any time with prior notice to Manager (“Notice”) and the new prices shall be effective on the date identified in the applicable Notice.
3. Term and Termination of Agreement and License. The term of this Agreement (“Term”) and the license granted herein for each Property will commence on the date of activation (defined as whenever Subscriber is enabled to order Information through the Service, regardless of whether the Service is in production) and shall, unless otherwise provided on the applicable Order Form, continue until the expiration or termination of the agreement and license(s) for the Propertyware Service with which the Screening Service was bundled and purchased. Notwithstanding anything to the contrary in this Agreement, RealPage may immediately suspend or terminate the Service, without prior notice, if in its reasonable judgment: (i) Subscriber(s) breaches any material provision(s) of this Agreement, including without limitation, violation of the Fair Credit Reporting Act, 15 U.S.C. Section 1681 et seq., as amended (the “Act”); or (ii) RealPage cannot perform its duties under this Agreement for whatever reason, including, but not limited to, a change in any law. If RealPage determines that it is not feasible to provide to Subscriber such suspended or terminated Service, RealPage is not obligated to provide a replacement Service. Notwithstanding the foregoing and where not otherwise prohibited by the law or the rules, RealPage will use reasonable efforts to provide prior notice of any suspension or termination to Subscriber whenever possible.
4. Service Warranty; Remedies; Intellectual Property Indemnity (a) Service Warranty. RealPage warrants that each Service will perform the functions set forth in the then-current version of the Product Specifications applicable to the Service, if used in the manner and environment described in such Specifications The most current version of Product Specifications can be found at http://www.specifications.controls.realpage.com/.
RealPage may change the Product Specifications at any time; provided however, RealPage shall not do so in a manner that would modify or remove material functionality of the 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 requirements. RealPage shall have no responsibility for failures of the Service(s) arising from any misuse of a Service, equipment or communications malfunction or other software products not licensed by RealPage.
(b) Remedy for Breach & For Claims Relating to the Information. Subject to the limitations set forth herein, a Subscriber’s sole remedy for all claims (whether in contract, tort, negligence, strict liability, or otherwise) relating to the Information provided (or not provided) hereunder or for any breach of the above Service warranty, shall be (i) RealPage’s re-run of the Information request if such can be accomplished through the exercise of commercially reasonable efforts or (ii) if RealPage is unable to provide such remedy, and the Information supplied (or not supplied) causes the Subscriber to incur direct and verified expenses, RealPage shall grant Subscriber a credit of an amount equal to the Fee for the applicable Information. The foregoing states Subscriber’s sole and exclusive remedy and RealPage’s sole and exclusive liability with regard to the Information provided (or not provided) or for any breach of warranty hereunder.
(c) Intellectual Property Indemnity. If a third party makes a claim against Subscriber that the access to the Service or use of the Service licensed by Subscriber pursuant to this Agreement, excluding any of the Subscriber Data, directly infringes any United States patent issued as of the date of this Agreement or any copyright or trademark, (“IP Claim”), RealPage will indemnify and defend Subscriber against the IP Claim and pay all costs and expenses (including reasonable legal fees, including on appeal) incurred and all damages, and all other amounts ancillary to the award of such damages, finally awarded against Subscriber by a court of competent jurisdiction or agreed to in a written settlement agreement signed by RealPage arising out of such IP Claim; provided that: (i) Subscriber promptly notifies RealPage in writing of Subscriber’s receipt of notification of a potential 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 perform RealPage’s obligations under this Section. If RealPage believes that the RealPage System or any Service is likely to be determined to be an infringement or misappropriation of a patent, copyright, trade secret, trademark, or other proprietary right, RealPage may (i) modify or replace such RealPage System or Service to make it non-infringing; provided, however, no such replacement or modification shall substantially impair the functionality or performance of such RealPage System or any Service or (ii) terminate the license with respect to the infringing RealPage System of Service. Once RealPage has exercised any of the actions referenced in subsections (i-iii) above, RealPage’ s obligations under this Section 4 shall cease other than for those IP claims preceding the date RealPage exercises any of actions (1-iii). THE FOREGOING STATES REALPAGE’’S SOLE OBLIGATION AND SUBSCRIBER’S SOLE REMEDY FOR ANY CLAIMS RELATED TO INRFRINGEMENT OF INTELLECTUAL PROPERTY.
5. Order and Supply of Information; Use of Subscriber Data. When initially establishing an account with RealPage, Subscriber’s administrative personnel (“Administrative Personnel”) will undergo (and must pass) a qualification process, which will include: (i) supplying RealPage with Subscriber Data reasonably required to identify the Property, Subscriber, and, if applicable, any Property manager; and (ii) a physical site inspection, conducted by a third party, of the location where the screening reports will be reviewed. Subscriber shall order Information and shall use Information solely and exclusively for the purpose of determining the eligibility for residency of individuals from whom Subscriber(s) has received a signed rental application agreement relating to residency at the Property (the “Permissible Purpose“) and solely and exclusively for Subscriber’s one-time use. When Subscriber desires to receive Information concerning individuals for the Permissible Purpose, Administrative Personnel will supply RealPage with Subscriber Data reasonably required to identify the prospective resident. Upon receipt of this Subscriber Data, RealPage shall use commercially reasonable efforts to furnish the requested Information to Subscriber. RealPage shall be under no obligation to provide any Information in any instance in which doing so would result in any violation of RealPage’s obligations under the Fair Credit Reporting Act, 15 U.S.C. Section 1681 et seq., as amended (the “Act“) or of RealPage’s agreements with the Credit Bureaus or any other data provider. If no Information or only partial Information is available from any data provider or from RealPage’s own resources, RealPage shall be relieved of the obligation hereunder to supply such Information or component thereof.
Subscriber agrees that with respect to any credit or other scores (the “Scores”) provided as part of the Information, Subscriber may store Scores solely for the Subscriber’s own one-time use in furtherance of the Permissible Purpose. Subscriber shall not use the Scores for model development or model calibration, and shall not reverse engineer the Scores. All Scores provided hereunder will be held in the strictest confidence, and may never be sold, licensed, copied, reused, disclosed, reproduced, revealed or made accessible, in whole or in part, to any person except (i) to Administrative Personnel with a need to know in the course of their employment; (ii) when accompanied by the corresponding reason codes, to the consumer who is the subject of the Score; or (iii) as required by law.
Subscriber hereby grants to RealPage a perpetual, irrevocable, royalty-free, world-wide, non-exclusive right and license to access, use, extract, aggregate, compile, reproduce, modify, adapt, create derivative works from, display, store, transmit to its affiliates, or incorporate in other works in any form, media, or technology now known or later developed, the Subscriber Data for the following “Permitted Purposes”: (i) support and provision of a product or service purchased by or provided to Subscriber from RealPage or its affiliates under any agreement between Subscriber and RealPage or its affiliate, (ii) maintenance, operation, and enhancement of a product or service, (iii) internal statistical analysis regarding Subscriber Data or (iv) distribution or publication, solely in an Aggregated Form, of Subscriber Data in summary and benchmark reports. “Aggregated Form” means that Subscriber Data shall be combined with data from a minimum of four (4) additional properties.
6. Subscriber’s Covenants and Certifications. Subscriber agrees and covenants that: (i) it will not request or use any Information for any purpose prohibited by the terms of this Agreement, the Act or by other applicable law or regulation; (ii) it will request and use Information only for the Permissible Purpose and for no other purpose, including, without limitation, other purposes permitted by the Act such as to determine eligibility for employment; (iii) it will request and use Information solely as an end user; (iv) it will not resell, attempt to resell nor disclose any portion of the Information to any third party; (v) it will use the Information entirely at its own risk; (vi) it will bring no action or claim, and hereby irrevocably and completely waives and releases all future actions and claims, against RealPage or any Credit Bureau or other data provider for any injury or damage arising from or attributable to the provision, non-provision or use of any Information; (vii) RealPage shall have no obligation or liability for delays or nonperformance by the Credit Bureaus or any other data provider; (viii) it understands and acknowledges that RealPage only reports the Information from public records such as criminal and eviction data made available by the public record source at the time the record was collected and so it may be incomplete; (ix) it understands and acknowledges that due to the organization of criminal records and/or the nature of the query there will be instances where no criminal information is reported with regard to persons who, in fact, have criminal records; (x) it understands and acknowledges that there is a wide diversity in the types of criminal records made available by various jurisdictions and in the content of such records; (xi) it understands and acknowledges certain laws restrict the use of certain criminal records for purposes related to housing or accommodations; (xii) it will use reasonable judgment with regard to undertaking independent verification of all negative criminal and eviction Information; (xii) only Administrative Personnel having a direct need to know and whose duties reasonably relate to processing applications for leases will be permitted to employ the RealPage Service to order, receive or use Information; (xiv) all Administrative Personnel have read this Agreement, including, without limitation, the Sections to this Agreement entitled “FCRA Requirements” and “Access Security Requirements” and have agreed to comply with all obligations stated in those Sections which are applicable to them; and (xv) all Administrative Personnel will maintain all Information in strictest confidence and disclose it only as permitted by this Agreement, the Act (as amended) or by other applicable law.
7. Indemnification by Subscriber. Subscriber(s), at its own expense, shall indemnify, defend and hold harmless RealPage, and its affiliates, and their directors, officers, employees’, agents and vendors from and against losses, costs, and expenses (including legal fees and expenses) actually and reasonably incurred by an Indemnified Party in connection with any liability (including, without limitation, third party claims by applicants or residents) arising from (i) RealPage’s possession or use of data submitted to RealPage by Subscriber(s), (ii) Subscriber(s)’s request for, access to, unauthorized access to, use or misuse of, possession of, disclosure of or reliance upon Information, (iii) Subscriber(s)’s use of any Information in connection with any “scoring” model or procedure, and (iv) any violation by Subscriber(s) of this Agreement, the Act or other applicable laws. RealPage shall promptly notify Subscriber(s) of any claim or action of a third party as to which RealPage may seek indemnification hereunder. RealPage’s failure to notify Subscriber(s) shall not relieve Subscriber(s) of the obligation to indemnify RealPage unless such failure to notify shall have materially impaired Subscriber(s)’s ability to defend such claim or action.
8. Maintenance of Substantiation. Subscriber covenants to maintain for a period of at least five years from the date thereof all signed rental application agreements from applicants pursuant to which Subscriber requests Information hereunder, as well as all other documentation serving to demonstrate permissible purpose under the Act, Subscriber covenants to make such available to RealPage upon RealPage’s reasonable request.
9. FCRA Requirements. Although the Act, as amended, primarily regulates the operations of consumer credit reporting agencies, it also applies to RealPage’s customers, such as Subscriber(s), as users of information about consumers. The Act may be found at >www.ftc.gov/os/statutes/fcrajump.htm<. Subscriber shall review and become familiar with the Act, paying particular attention to the following Sections, which have application to Subscriber as a purchaser of consumer reports. The following list of Sections from the Act is not intended to be inclusive:
604. Permissible Purposes of Reports 607. Compliance Procedures 615. Requirement on users of consumer reports 616. Civil liability for willful noncompliance 617 Civil liability for negligent noncompliance 619 Obtaining information under false pretenses 621 Administrative Enforcement 623. Responsibilities of Furnishers of Information to Consumer Reporting Agencies
By law, consumer reports may be issued only if used for certain specific purposes. One such purpose is to fulfill a legitimate business need for information in connection with a business transaction that is initiated by the consumer. Under this Agreement the sole Permissible Purpose for ordering and using a consumer report is determining the eligibility of individuals from whom Subscriber(s) has received a signed rental application agreement relating to residency at the Property. THE ACT PROVIDES THAT ANY PERSON WHO KNOWLINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18 OF THE UNITED STATES CODE OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.
In addition to the Act, other federal and state laws addressing such topics as computer crime, unauthorized access to protected databases, and use of personally identifiable information of individuals may also be applicable. RealPage requires users of the Service, as users of consumer reports, to comply with all relevant federal statutes and the statutes and regulations of the states and localities in which their Properties are located.
10. Access Security Requirements. In order to ensure consumer’s rights to privacy, federal, state and local laws may impose a legal obligation on those who order and use consumer reports. The Act also provides stringent legal sanctions against parties that violate the Act’s provisions. The Credit Bureaus and RealPage have a similar obligation. The Act requires credit bureaus and other consumer reporting agencies to furnish consumer reports only when a permissible purpose exists. The Credit Bureaus and RealPage only provide consumer reports to entities that have accepted a service agreement, such as this Agreement, and that continuously meet certain requirements. One such requirement is that RealPage’s clients, such as Subscriber(s), have in place, and adhere to; effective controls designed to prevent the order or use of consumer reports for personal and other non-Permissible Purposes. To meet this requirement, the Credit Bureaus and RealPage require that RealPage customers (and management companies, and their employees and agents) implement and follow the following Security Access Requirements:
ACCESS SECURITY REQUIREMENTS
THE FOLLOWING INFORMATION SECURITY MEASURES ARE DESIGNED TO REDUCE UNAUTHORIZED ACCESS TO CONSUMER REPORT INFORMATION. IT IS YOUR RESPONSIBILITY TO IMPLEMENT THESE CONTROLS. IF YOU DO NOT UNDERSTAND THESE REQUIREMENTS OR NEED ASSISTANCE, IT IS YOUR RESPONSIBILITY TO ENGAGE A SERVICE PROVIDER TO ASSIST YOU. REALPAGE RESERVES THE RIGHT TO MAKE CHANGES TO THESE ACCESS SECURITY REQUIREMENTS AT ANY TIME WITHOUT PRIOR NOTIFICATION. SUBSCRIBER HEREBY ACKNOWLEDGES AND AGREES THAT ADHERENCE TO SUCH CHANGES CONSTITUTES A CONDITION TO SUBSRIBER’S CONTINUED USE OF THE SERVICES. THE INFORMATION PROVIDED HEREIN ESTABLISHES THE MINIMUM BASELINES FOR INFORMATION SECURITY. THESE REQUIREMENTS ARE APPLICABLE TO ALL SYSTEMS AND DEVICES USED TO ACCESS, TRANSMIT, PROCESS OR STORE ANY INFORMATION PROVIDED HEREUNDER. A. Implement Strong Access Control Measures
- All credentials such as user names/identifiers (user IDs) and user passwords must be kept confidential and must not be disclosed to an unauthorized party. No one from RealPage will ever contact you and request your credentials.
- Create a unique user ID for each user to enable individual authentication and accountability for access to RealPage’s Services. Each user of the system access software must also have a unique logon password.
- User IDs and passwords shall only be assigned to authorized individuals based on least privilege necessary to perform job responsibilities.
- User IDs and passwords must not be shared, posted, or otherwise divulged in any manner.
- Develop strong passwords that are: • Not easily guessable (i.e. your name or company name, repeating numbers and letters or consecutive numbers and letters) • Contain a minimum of eight (8) alphabetic and numeric characters for standard user accounts • Ensure that passwords/passwords are changed periodically (every 90 days is recommended)
- Passwords must be changed immediately when any suspicion of password being disclosed to an unauthorized party.
- Ensure that passwords are not transmitted, displayed or stored in clear text; protect all end user (e.g. internal and external) passwords using, for example, encryption or a cryptographic hashing algorithm also known as “one-way” encryption. When using encryption, ensure that strong encryption algorithms are utilized (e.g. AES 256 or above).
- Implement password protected screensavers with a maximum fifteen (15) minute timeout to protect unattended workstations. Systems should be manually locked before being left unattended.
- Ensure that personnel who are authorized access to Information have a business need to access such Information and understand the requirement to access such information only for the Permissible Purpose of determining the eligibility for residency of individuals from whom Subscriber has accepted a signed rental application agreement relating to residency at the Property, and solely and exclusively for Subscriber’s one-time use.
- Ensure that Subscriber employees do not access their own credit or consumer reports or those reports of any family member(s) or friend(s) unless it is in connection with a credit transaction or for the Permissible Purpose.
- Implement a process to terminate access rights immediately for users who access Information when those users are terminated or when they have a change in their job tasks and no longer require access to the Information.
- Implement a process to perform periodic user account reviews to validate whether access is needed as well as the privileges assigned.
- Implement a process to periodically review user activities and account usage, ensure the user activities are consistent with the individual job responsibility, business need, and in line with contractual obligations.
- Implement physical security controls to prevent unauthorized entry to Subscriber’s facility and access to systems used to obtain Information. Ensure that access is controlled with badge readers, other systems, or devices including authorized lock and key.
B. Maintain a Vulnerability Management Program
- Keep operating system(s), firewalls, routers, servers, personal computers (laptops and desktops) and all other systems current with appropriate system patches and updates.
- Configure infrastructure such as firewalls, routers, servers, tablets, smart phones, personal computers (laptops and desktops), and similar components to industry best security practices, including disabling unnecessary services or features, and removing or changing default passwords, IDs and sample files/programs, and enabling the most secure configuration features to avoid unnecessary risks.
- Implement and follow current best security practices for computer virus detection scanning services and procedures: • Use, implement and maintain a current, commercially available anti-virus software on all systems, if applicable anti-virus technology exists. Anti-virus software deployed must be capable to detect, remove, and protect against all known types malicious software such as viruses, worms, spyware, adware, Trojans, and root-kits. • Ensure that all anti-virus software is current, actively running, and generating audit logs; ensure that anti-virus software is enabled for automatic updates and performs scans on a regular basis. • If you suspect an actual or potential virus infecting a system, immediately cease accessing the system and do not resume using the system until the virus has been eliminated.
C. Protect Data
- Develop and follow procedures to ensure that data is protected throughout its entire information lifecycle (from creation, transformation, use, storage and secure destruction) regardless of the media used to store the data (i.e., tape, disk, paper, etc.).
- The Information is classified Confidential and must be secured in accordance with the requirements mentioned in this document at a minimum.
- The Information must not be stored locally on smart tablets and smart phones such as iPads, iPhones, Android based devices, etc. Storing Information on mobile devices is prohibited. Any exceptions must be obtained from RealPage in writing; additional security requirements will apply.
- When using smart tablets or smart phones to access Information, ensure that such devices are protected via device pass-code.
- Only open email attachments and links from trusted sources and after verifying legitimacy.
- When no longer in use, ensure that hard-copy materials containing Information are crosscut shredded, incinerated, or pulped such that there is reasonable assurance the hard-copy materials cannot be reconstructed.
- When no longer in use, electronic media containing Information is rendered unrecoverable via a secure wipe program in accordance with industry-accepted standards for secure deletion, or otherwise physically destroying the media (for example, degaussing).
D. Maintain an Information Security Policy
- Develop and follow a security plan to protect the confidentiality and integrity of personal consumer information as required under the Gramm-Leach-Bliley Safeguards Rule.
- Suitable to complexity and size of the organization, establish and publish information security and acceptable user policies identifying user responsibilities and addressing requirements in line with this document and applicable laws and regulations.
- Establish processes and procedures for responding to security violations, unusual or suspicious events and similar incidents to limit damage or unauthorized access to information assets and to permit identification and prosecution of violators. If you believe Information may have been compromised, immediately notify RealPage within twenty-four (24) hours or per agreed contractual notification timeline (See also Section G).
- Comply with the Fair and Accurate Transactions Act (“FACTA”) Disposal Rules, which require that Subscriber implement appropriate measures to dispose of any sensitive information related to consumer credit reports and records that will protect against unauthorized access or use of that information.
- Implement and maintain ongoing mandatory security training and awareness sessions for all staff to underscore the importance of security in the organization.
E. Build and Maintain a Secure Network
- Protect Internet connections with dedicated, industry-recognized firewalls that are configured and managed using industry best security practices.
- Internal private Internet Protocol (IP) addresses must not be publicly accessible or natively routed to the Internet. Network address translation (NAT) technology should be used.
- Administrative access to firewalls and servers must be performed through a secure internal wired connection only.
- Any stand-alone computers that directly access the Internet must have a desktop firewall deployed that is installed and configured to block unnecessary/unused ports, services, and network traffic.
- Change vendor defaults including but not limited to passwords, encryption keys, SNMP strings, and any other vendor defaults.
- For wireless networks connected to or used for accessing or transmission of Information, ensure that networks are configured and firmware on wireless devices updated to support strong encryption (for example, IEEE 802.11i) for authentication and transmission over wireless networks.
F. Regularly Monitor and Test Networks
- Perform regular tests on information systems (port scanning, virus scanning, internal/external vulnerability scanning). Ensure that issues identified via testing are remediated according to the issue severity (e.g., fix critical issues immediately, high severity in 15 days, etc.)
- Ensure that audit trails are enabled and active for systems and applications used to access, store, process, or transmit Information; establish a process for linking all access to such systems and applications. Ensure that security policies and procedures are in place to review security logs on daily or weekly basis and that follow-up to exceptions is required.
- Use current best practices to protect telecommunications systems and any computer system or network device(s) used to access RealPage services, systems and networks. These controls should be selected and implemented to reduce the risk of infiltration, hacking, access penetration or exposure to an unauthorized third party by: • protecting against intrusions; • securing the computer systems and network devices; • and protecting against intrusions of operating systems or software.
- RealPage (along with any of its third party vendors whose information may be included in any Information) may from time to time audit the security mechanisms Subscriber maintains to safeguard access to Information, systems and electronic communications. Audits may include examination of systems security and associated administrative practices.
- Reasonable access to audit trail reports of systems utilized to access RealPage systems shall be made available upon request, for example during breach investigation or while performing audits.
- Subscriber shall report actual security violations or incidents that impact RealPage to RealPage within twenty-four (24) hours. Subscriber agrees to provide notice to RealPage of any confirmed security breach that may involve data related to the contractual relationship, to the extent required under and in compliance with applicable law. Telephone notification is preferred at 972-820-4914, Email notification should be sent to email@example.com.
- Subscriber acknowledges and agrees that it (a) has received a copy of these requirements, (b) has read and understands Subscriber’s obligations described in the requirements, (c) will communicate the contents of the applicable requirements contained herein, and any subsequent updates hereto, to all employees that have access to RealPage services, systems or data, and (d) will abide by the provisions of these requirements when accessing the Information.
- Subscriber understands that its use of RealPage networking and computing resources may be monitored and audited by RealPage, without further notice.
- Subscriber acknowledges and agrees that it is responsible for all activities of its employees/Authorized users, and for assuring that mechanisms to access RealPage services or data are secure and in compliance with the Agreement.
11. Warranty Disclaimer. Other than as expressly and specifically set forth in this Agreement, RealPage makes no warranty, guaranty, representation or covenant of any type, express or implied, with regard to any aspect of the RealPage System, including any Service. Without limiting the generality of the foregoing and other than as expressly and specifically set forth in this Agreement, RealPage hereby disclaims any liability concerning (i) the accuracy, correctness, currency, availability, reliability, loss of Subscriber Data, performance, suitability, compatibility, non-infringement, merchantability, time of performance or fitness for a particular purpose of; (ii) continuous, uninterrupted or error-free access to or use of; or (iii) the results that may be obtained from the use of the RealPage System, including any Service or Service.
12. Limitation on Types of Damages. RealPage will not be liable to Subscriber for any exemplary, punitive, special, incidental, indirect or consequential damages (including, without limitation, any damages of any type for lost profits, goodwill, revenues, or business opportunities), even if advised of the possibility of such damages and regardless of the legal or equitable theory upon which the claim of damages is based.
13. Limitation on Amount of Damages. RealPage shall not be liable to Subscriber for any damages, whether arising in contract, tort, strict liability or otherwise in an amount exceeding the aggregate of the Fee paid by Subscriber for all Services licensed for the Property to which the claim relates during the 12 month period preceding the occurrence of the event that gave rise to the damages.
14. Force Majeure. RealPage will not be liable to Subscriber for any damages or injury, direct or indirect, caused by any delay or failure in its performance of any of the acts and obligations required by this Agreement if and to the extent that such delay or failure arises for reasons beyond the reasonable control of RealPage, including, without limitation, Third Party System Failures. For the purposes of this Agreement, “Third Party System Failures” means, as it relates to third party software, hardware or systems, computer downtime; utility or telecommunication interruption; failure, fluctuation or delay; computer virus; electrical surge; or line-noise interference.
15. Essential Nature. The indemnification in Section 7, the limitations set forth in Sections 11, 12 and 13 constitute (i) essential inducements to RealPage to accept this agreement, (ii) major predicates of the price charged by RealPage for access to the Service, the use of the Service, the use of the Information and access to the RealPage System and (iii) conditions precedent to RealPage’s agreement to be bound by the provisions of this Agreement. No access to the Service or use of the Service, the Information or the RealPage System, is authorized except subject to these indemnifications, limitations and disclaimers.
16. Survival of Terms. The provisions of this Agreement applicable to (i) any Service License; (ii) outstanding obligations of Subscriber at the date of termination; (iii) warranty disclaimer; (iv) indemnification; (v) limitation of liability, types of recoverable damages and amount of recoverable damages; (vi) integration; (vii) survival of terms; (viii) confidentiality and non-disclosure; and (ix) limitation of actions will survive termination or expiration of this Agreement.
17. Amendment. This Agreement may be amended, altered or modified only by an instrument in writing, specifying such amendment, alteration or modification, executed by both parties.
18. RealPage’s Ownership. Subscriber acknowledges that RealPage is the owner of all Services, the RealPage content (except for third party content), the RealPage databases and the RealPage data and that all Services are protected by copyright, trade secret and other intellectual property laws and legal precedent of the United States and other jurisdictions. No title to or ownership of any Service is transferred to Subscriber by operation of this Agreement.
19. Sale of the Property. Where Subscriber sells or otherwise transfers a Property, this Agreement, together with any applicable addenda, shall terminate at the end of the month in which the sale or transfer occurs. Where a Property is sold or transferred, unless RealPage has received written instructions from the parties to the contrary, (i) RealPage will consider Subscriber Data for the Property stored in any Service to have vested in the new owner of the Property; and (ii) Manager shall no longer be permitted access to the Subscriber Data.
20. Information from the SSA’s Death Master File. Information provided hereunder may include information from the national credit bureaus and the Death Master File (“DMF”), as issued by the United States Social Security Administration (“SSA”). An example of this information might be an alert that the social security number entered by the applicant belongs to someone who is deceased.
Access to the DMF, as issued by the SSA, requires an entity to have a legitimate fraud prevention interest or a legitimate business purpose pursuant to a law, governmental rule regulation, or fiduciary duty, as such business purposes are interpreted under 15 C.F.R. § 1110.102(a)(1).
The National Technical Information Service has issued the Interim Final Rule for temporary certification permitting access to the DMF. Pursuant to Section 203 of the Bipartisan Budget Act of 2013 and 15 C.F.R. § 1110.102, access to the DMF is restricted to only those entities that have a legitimate fraud prevention interest or a legitimate business purpose pursuant to a law, governmental rule regulation, or fiduciary duty, as such business purposes are interpreted under 15 C.F.R. § 1110.102(a)(1). As many services from the credit bureaus contain information from the DMF, Subscribers must restrict their use of deceased flags or other indicia within the Information to legitimate fraud prevention or business purposes in compliance with applicable laws, rules and regulations and consistent with the applicable Fair Credit Reporting Act (15 U.S.C. §1681 et seq.) or Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.) use. Subscriber’s continued use of the Services affirms its commitment to comply with these terms and all applicable laws. Subscriber acknowledges that it will not take any adverse action against any consumer without further investigation to verify the information from the deceased flags or other indicia within the Information.
21. Miscellaneous. For purposes of the disclaimer of warranties and consequential damages, limitation of liability and Subscriber indemnities, the term “RealPage” shall be deemed to include all RealPage licensors of software and providers of services and information made a part of the RealPage System. If any part of this Agreement is held to be invalid, illegal, or unenforceable, such part will be treated as severable, and the remaining portions of the Agreement shall continue to be valid and enforceable as to the parties hereto. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity other than the parties and their respective successors and assigns, any rights, remedies, obligations or liabilities. The failure of either party hereto at any time to enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor, in any manner, affect the validity of this Agreement, any provision hereof or the right to thereafter enforce each and every provision of this Agreement. No waiver of any breach of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by a duly authorized officer of the party against whom enforcement of such waiver is sought, nor shall it be deemed or construed to be a waiver of any succeeding or other breach of this Agreement. All notices required to be given hereunder shall be given in writing and shall be delivered either by hand, by certified mail with proper postage affixed thereto, or by facsimile (with confirmation copy sent by certified or registered mail) addressed to the signatory at the address set forth above, or such other person and address as may be designated from time to time in writing. All such communications shall be deemed received by the other party upon the earlier of actual receipt or actual delivery. Subscriber may not assign this Agreement or any rights granted herein prior to RealPage’s qualification of all of the assignee’s end users of Information. This Agreement — together with any applicable addenda, schedules, Order Forms and Product Specifications — sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes, replaces and terminates all prior and contemporaneous letters of intent, agreements, covenants, negotiations, arrangements, communications, representations, advertisements, selling brochures, sales presentations, understandings or warranties, whether oral or written, by any officer, employee or representative of either party with respect to the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED UNDER THE LAW (INCLUDING EQUITABLE DOCTRINE) OF THE STATE OF TEXAS (WITHOUT REGARD TO THE CONFLICTS OF LAW RULES).