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MASTER SOFTWARE AND SERVICES AGREEMENT

This Software and Services Agreement is between Rebis, LLC d/b/a Property Works and its affiliates with principal offices located at 708 Church St., Decatur, GA, 30030 (collectively, “Property Works”) and the individual or legal entity licensing the software and/or services under this Agreement by way of an applicable Service Order (“Customer”).

  1. SOFTWARE SERVICES

In consideration of Customer’s compliance with the terms of this Agreement, Property Works will use reasonable efforts to
(a) make the Software Services available to Customer pursuant to this Agreement and the applicable Service Orders,
(b) provide Support for the Software Services to Customer, in accordance with Exhibit B, and
(c) make the Software Services available in accordance with the service levels in Exhibit B. 

  1. PROFESSIONAL SERVICES

2.1 Performance. Property Works will perform the Professional Services described in the applicable Service Order(s) for the fees set forth in the applicable Service Order(s).

  1. USE OF SOFTWARE SERVICES

3.1 Subscriptions. Unless otherwise provided in the applicable Service Order, (a) Software Services are purchased as subscriptions (i.e., for a period of time, as provided in the Service Order), (b) subscriptions added during a subscription term are prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

3.2 Customer Responsibilities. Customer will: (a) be responsible for Users’ compliance with this Agreement and liable for any User’s breach thereof, (b) comply with all laws applicable to the operation of, content on and data privacy and security related to Customer’s systems, including all privacy statement requirements, (c) be responsible for the accuracy, quality and legality of Customer Materials and the means by which Customer acquired Customer Materials, (d) prevent unauthorized access to, use of or reproduction of Software Services, and notify Property Works promptly of any such unauthorized access, use or reproduction, (e) use Software Services only as permitted in this Agreement and in accordance with the Documentation and applicable laws, (f) advise its employees, agents and contractors who have access to the Software Services of the restrictions in this Agreement, and (g) comply with terms of service of Non-Property Works Applications with which Customer uses Software Services.

3.3 Usage Restrictions. Customer will not: (a) make any Software Service available to, or use any Software Service for the benefit of, anyone other than Customer; (b) sell, resell, loan, license, sublicense, assign, transfer, distribute, rent or lease any Software Service, or include any Software Service in a service bureau or outsourcing offering, or otherwise make the Software Service available to any third party; (c) use a Software Service to store, post or transmit infringing, libelous, or otherwise unlawful, tortious, harassing, abusive, threatening, harmful, vulgar, invasive, obscene or otherwise objectionable material, or material that is harmful to minors in any way, or to store, post or transmit material in violation of third-party privacy rights or other rights; (d) use a Software Service to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of any Software Service or third-party data contained therein, or any servers or networks connected thereto, or violate the regulations, policies or procedures of such networks; (f) attempt to gain unauthorized access to any Software Service or its related systems or networks, or other accounts, or computer systems or networks connected to the Software Service , through password mining or any other means; (g) permit direct or indirect access to or use of any Software Service in a way that circumvents a contractual usage limit; (h) modify, translate, copy or create derivative works of a Software Service or any part, feature, function or user interface thereof; (i) copy any part of the Software Service except as may be permitted in this Agreement or in the applicable Service Order or the Documentation; (j) frame or mirror any part of any Software Service; (k) create any Internet hyperlink to the Software Service; (l) access or use any part of the Software Service in order to build a competitive product or service; (m) decompile, disassemble, reverse engineer or reduce to human-perceivable form any software included in the Software Service (but only to the extent such restriction is not prohibited by law); (n) remove or modify, or attempt to remove or modify, any proprietary notices on the Software Service; (o) have any right to receive the source code for the Software Service or any deliverable; (p) use the Software Service to send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of duplicative messages, whether commercial or otherwise; (q) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; or (r) harass or interfere with another user’s use and enjoyment of the Software Service.

  1. NON-PROPERTY WORKS PROVIDERS

4.1 Acquisition of Non-Property Works Products and Services. Property Works or third parties may make available third-party products or services, including, for example, Non-Property Works Applications and implementation and other consulting services. Any acquisition by Customer of such non-Property Works products or services, and any exchange of data between Customer and any non-Property Works provider, is solely between Customer and the applicable non-Property Works provider. Property Works does not warrant or support Non-Property Works Applications or other non-Property Works products or services, whether or not they are designated by Property Works as “certified” or otherwise, except as specified in the applicable Service Order (if at all).

4.2 Non-Property Works Applications and Customer Data. If Customer installs or enables a Non-Property Works Application for use with a Software Service, Customer grants Property Works permission to allow the provider of that Non-Property Works Application to access Customer Data as required for the interoperation of that Non-Property Works Application with the Software Service. Property Works is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by a Non-Property Works Application.

4.3 Integration with Non-Property Works Applications. The Software Services may contain features designed to interoperate with Non-Property Works Applications. To use such features, Customer may be required to obtain access to Non-Property Works Applications from their provider(s), and may be required to grant Property Works access to Customer’s account(s) on the Non-Property Works Applications. If the provider of a Non-Property Works Application ceases to make the Non-Property Works Application available for interoperation with the corresponding Software Service features on reasonable terms, Property Works may cease providing those Software Service features without entitling Customer to any refund, credit, or other compensation.

  1. FEES AND PAYMENT

5.1 Fees. Customer will pay all fees specified in the applicable Service Orders. Except as otherwise specified in the applicable Service Order, (a) fees are based on Software Services purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, (c) quantities purchased can be decreased during the relevant subscription monthly term due to store closure although monthly prepaid fees will not be adjusted for that month, (d) Professional Services fees do not include Property Works’s reasonable travel and other expenses, which Property Works will bill to Customer and Customer will reimburse, and for which Property Works will provide receipts, and (e) prices are quoted and payable in U.S. dollars.

5.2 Invoicing and Payment. Fees will be invoiced in advance and otherwise in accordance with the applicable Service Order. Unless otherwise stated in the applicable Service Order, fees and expenses are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Property Works and notifying Property Works of any changes to such information. Except as otherwise specified in the applicable Service Order, Customer will pay all fees in U.S. dollars.

5.3 Overdue Charges. If any invoiced amount is overdue, then without limiting Property Works’s other rights or remedies, Property Works may assess late payment interest on those charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Customer will reimburse all of Property Works’s costs and expenses (including attorneys’ and experts’ fees) incurred in any attempt to collect or the collection of overdue amounts.

5.4 Suspension of Service. If any charge owing by Customer is 10 days or more overdue, Property Works may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full.

5.5 Taxes. Property Works's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Property Works has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5, Property Works will invoice Customer and Customer will pay that amount unless Customer provides Property Works with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Property Works is solely responsible for taxes assessable against it based on its income, property and employees.

5.6 Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Property Works regarding future functionality or features.

  1. PROPRIETARY RIGHTS AND LICENSES

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Property Works and its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer other than as expressly set forth in this Agreement.

6.2 License by Property Works to Use Software Services. Subject to Customer’s compliance with the terms of this Agreement, Property Works grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable license to use the Software Services ordered by Customer pursuant to applicable Service Orders, subject to those Service Orders, this Agreement and the Documentation, solely during the subscription term for Customer’s internal business purposes (i.e., only the management of Customer’s assets for those concepts and those locations specified in the Service Order).

6.3 Customer Materials. Customer will retain ownership of the Customer Materials. Customer grants Property Works and its Affiliates a worldwide, non-exclusive, royalty-free, transferable, sub-licensable license to use, host, copy, transmit and display Customer Materials as necessary for Property Works to provide the Services in accordance with this Agreement.

6.4 Work Product. Anything resulting from or arising in the course of performance of the Professional Services will be deemed “Work Product.” As between the parties, Property Works will own all right, title and interest in and to the Work Product, including all derivative works, enhancements and modifications of the Software Services. For all Deliverables for which Customer has paid the applicable fees, Property Works provides to Customer under this Agreement, Property Works grants and agrees to grant Customer a worldwide, non-exclusive right to use all Work Product in the Deliverable solely in Customer’s use of the Deliverable (but not separately from the Deliverable) for its internal business purposes for the term of the applicable Service Order. Customer will take any further acts necessary to effect the intent of this provision.

6.5 License by Customer to Use Feedback. Customer grants to Property Works and its Affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable, sublicensable license to use and incorporate into the Services or other offerings any suggestion, enhancement request, recommendation, correction or other feedback (“Feedback”) provided by Customer or Users relating to the Services. Property Works will not be obligated to credit Customer or any User for any such Feedback or hold any Feedback in confidence.

6.6 Usage Data. Notwithstanding anything to the contrary, Property Works may use (itself or through third parties) Customer Data and data regarding Customer’s use of the Software Services to prevent or fix technical problems, improve its offerings, or develop other offerings.

  1. CONFIDENTIALITY

7.1 Definition of Confidential Information“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Property Works includes the Services, Work Product, and other Property Works intellectual property; and Confidential Information of each party includes the terms and conditions of this Agreement and all applicable Service Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

7.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights in this Agreement. Except as otherwise authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements containing protections comparable to those herein. Neither party will disclose the terms of this Agreement or any applicable Service Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.

7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Receiving Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

  1. PROTECTION OF CUSTOMER DATA

8.1 Generally. Property Works will maintain commercially reasonable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards include measures designed for preventing access, use, modification or disclosure of Customer Data by Property Works personnel except (a) to provide the Software Services, prevent or fix technical problems, or improve the Software Service, (b) as compelled by law in accordance with Section 7.3, or (c) as expressly permitted in this Agreement or otherwise writing by Customer.

8.2 IT Systems Security. Property Works’s will maintain various controls, processes and standards for safeguarding Property Works’s information technology systems, which may include: controls for prevention, detection and removal of Malicious Code; processes for identifying technical vulnerabilities; minimum security requirements in network services agreements; standards for audit trails; processes for monitoring key systems for unusual or suspicious activity; processes for timely reporting of information security events or suspected security weaknesses; system access controls that include user authentication, use of unique identifiers and two-factor authentication for remote users; and procedures to control the installation of software on operational systems.

8.3 Prohibited Data. Notwithstanding any other provision of this Agreement, Customer acknowledges that the Software Services are designed for the processing of Customer’s asset data. The Software Services are not designed for the following types of data: (a) individual medical or health information, including any information comprising “Protected Health Information” under the Health Insurance Portability and Accountability Act; (b) security codes, passwords, credit or debit card numbers; (c) personal data (as defined by applicable law), particularly regarding residents of jurisdictions outside of the United States of America or individuals under thirteen years of age; or (d) information concerning a natural person’s (i) sex life or sexual orientation, (ii) racial or ethnic origin, (iii) genetic or biometric data, (iv) political opinions, (v) religious or philosophical beliefs, or (vi) trade union membership, (each of the foregoing, "Prohibited Data"). Customer shall not enter (or permit the entry of) any Prohibited Data into the Software Service or have Property Works enter Prohibited Data into the Service on Customer’s behalf, and shall ensure that no Customer Data constitutes or contains Prohibited Data.

  1. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

9.1 Representations. Each party represents that it has validly entered into this Agreement and any applicable Service Order and has the legal power to do so.

9.2 Property Works Warranties for Software Services. Property Works warrants that the Software Service will conform in all material respects to the then-current Documentation for the applicable Software Service. Customer’s sole and exclusive remedy, and Property Works’s entire liability, for breach of this limited warranty will be correction of the warranty nonconformity in the Software Service or, if Property Works fails to do so after using reasonable commercial efforts, Customer may terminate the nonconforming Software Service and receive a pro rata refund of the subscription fees paid for such Software Service for the remainder of the subscription term. This limited warranty will not be valid to the extent the warranty nonconformity was caused by Customer’s abuse, misuse or modification of the Software Service. Customer must notify Property Works in writing of any nonconformity of the Software Service within 30 days of discovery of such nonconformity in order to receive the above warranty remedies.

9.3 Property Works Warranties for Professional Services. Property Works warrants that it will perform all Professional Services in a professional, workman-like manner, and all Deliverables will conform in all material respects with the specifications in the applicable Service Order. Customer’s sole and exclusive remedy, and Property Works’s entire liability, for breach of this limited warranty will be for Property Works to correct or re-perform the deficient Professional Services or Deliverables or, if Property Works fails to do so after commercially reasonable efforts, Customer will have the right to a refund for such deficient Professional Services or Deliverables. Customer must notify Property Works in writing of any deficiency of the Professional Services or Deliverables within 30 days of Property Works discovery of such deficiency in order to receive the above warranty remedies.

9.4 Customer Warranties. Customer warrants that (a) it has the right to provide the Customer Materials to Property Works and allow Property Works to use the Customer Materials to provide the Services, and (b) it will comply with all applicable laws in its use of the Software Services and Deliverables.

9.5 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. PROPERTY WORKS DOES NOT WARRANT THAT THE SOFTWARE SERVICE WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE OR SECURE, OR THAT ALL DEFECTS IN THE SERVICES OR DELIVERABLES WILL BE CORRECTED. PROPERTY WORKS WILL NOT BE LIABLE IN ANY WAY RELATED TO NON-PROPERTY WORKS APPLICATIONS. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

  1. INDEMNIFICATION

10.1 Indemnification by Property Works. Property Works will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a Software Service or Deliverable in accordance with this Agreement and the applicable Service Order infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid or payable by Customer under a Property Works and court-approved settlement of, a Claim Against Customer, provided Customer (a) promptly gives Property Works written notice of the Claim Against Customer, (b) gives Property Works sole control of the defense and settlement of the Claim Against Customer (except that Property Works may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability for past infringements), and (c) gives Property Works all reasonable assistance. If Property Works receives information about an infringement or misappropriation claim related to a Software Service or Deliverable, Property Works may in its discretion and at no cost to Customer (i) modify the Software Service or Deliverable so that it no longer infringes or misappropriates, (ii) obtain a license for Customer’s continued use of that Software Service or Deliverable in accordance with this Agreement, or (iii) terminate Customer’s subscription for that Software Service or right to use the Deliverable upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscription for the Software Services or the fees paid for the Deliverable, depreciated over three years on a straight-line basis. Property Works will not have any obligations under this Section 10 or any liability to the extent (A) a Claim Against Customer arises from Customer Materials, a Non-Property Works Application or Customer’s breach of this Agreement or the applicable Service Order, or (B) the Claim Against Customer would not have arisen but for (I) Customer’s combination or use of the Software Service or Deliverable with non-Property Works software, services or data, (II) modification of the Software Service or Deliverable by anyone other than Property Works, (III) Customer's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (IV) Property Works’s customization of the Software Service or Deliverable to meet Customer’s particular specifications or instructions, or (V) Customer’s use of the Software Service or Deliverable in a manner not strictly in accordance with this Agreement and the applicable Service Order.

10.2 Indemnification by Customer. Customer will defend Property Works against any claim, demand, suit or proceeding made or brought against Property Works by a third party alleging (a) that the Customer Materials (or Property Works’s use thereof), or Customer’s use of any Service or Deliverable in breach of this Agreement or an Service Order, violates, infringes or misappropriates such third party’s intellectual property, privacy or other rights, or violates applicable law, (b) facts that, if true, constitute a breach of this Agreement or an Service Order by Customer or acts or omissions by Customer described in Section 10.1(I)-(V), or (c) any demand for compensation or benefits, or any other claim, related to Customer’s use of or decision based on a Service or a Deliverable, except to the extent constituting grounds for a Claim Against Customer (collectively, a “Claim Against Property Works”), and will indemnify Property Works from any damages, attorney fees and costs finally awarded against Property Works as a result of, or for any amounts paid or payable by Property Works under a court-approved settlement of, a Claim Against Property Works, provided Property Works (i) promptly gives Customer written notice of the Claim Against Property Works, (ii) gives Customer sole control of the defense and settlement of the Claim Against Property Works (except that Customer may not settle any Claim Against Property Works unless it unconditionally releases Property Works of all liability), and (iii) gives Customer all reasonable assistance, at Customer’s expense.

10.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third-party claim described in Section 10.1.

  1. LIMITATION OF LIABILITY

11.1 Limitation of Damages. PROPERTY WORKS’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR AN SERVICE ORDER WILL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM (OR THE FIRST INCIDENT IN A SERIES OF SIMILAR OR RELATED CLAIMS) THE MAXIMUM AMOUNT DESCRIBED IN THE FOREGOING SENTENCE OR (B) ITS PER INCIDENT OR PER OCCURRENCE INSURANCE COVERAGE FOR A SINGLE INCIDENT OR OCCURRENCE OR ITS AGGREGATE INSURANCE COVERAGE FOR MULTIPLE INCIDENTS OR OCCURRENCES COVERED BY THE SAME INSURANCE POLICY, AS THE CASE MAY BE. THE ABOVE LIMITATIONS WILL APPLY REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY, AND EVEN IF REMEDIES FAIL OF THEIR ESSENTIAL PURPOSES.

11.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL PROPERTY WORKS HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, REVENUES OR DATA, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY ON WHICH THEY ARE BASED, AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11.3 Limitation on Time to File Claims. A PARTY MUST FILE ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY SERVICE ORDER WITHIN ONE YEAR AFTER THE CLAIM AROSE, OR THE CLAIM WILL BE FORFEITED AND FOREVER BARRED.

11.4 Force Majeure Events. PROPERTY WORKS WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY DUE TO A FORCE MAJEURE EVENT.

  1. TERM AND TERMINATION 

12.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.

12.2 Term of Subscriptions. The term of each subscription will be as specified in the applicable Service Order. Except as otherwise specified in the applicable Service Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least 60 days before the end of the relevant subscription term.

12.3 Termination. A party may terminate the applicable Service Order or this Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

12.4 Payment upon Termination. In no event will termination or expiration relieve Customer of its obligation to pay any fees payable to Property Works for the period prior to the effective date of termination.

12.5 Customer Data Portability and Deletion. Upon request by Customer made within 30 days after the effective date of termination or expiration of the applicable Service Order, Property Works will make the Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Property Works will have no obligation to maintain or provide any Customer Data.

12.6 Effects of Termination; Surviving Provisions. Termination of this Agreement will terminate all outstanding Service Orders. Customer’s right to use the Software Services will terminate immediately and automatically upon the expiration or termination of the applicable Service Order. The following Sections will survive any termination or expiration of this Agreement: 4, 5, 6, 7, 8.3, 9.4, 9.5, 10, 11, 12.4-12.6, (only with regard to the extension of coverage) and 14.

  1. INSURANCE

13.1 Coverage. Property Works will maintain in effect at all times during the rendering of Services under this Agreement the following insurance:

(a) Commercial General Liability Insurance with limits of at least $1,000,000 - Combined Bodily Injury and Property Damage, $1,000,000 - Single Limit Bodily Injury and Property Damage. 

  1. b) Owned, Non-Owned and Hired Automobile Liability Insurance with at least $1,000,000 Combined Single Limit Bodily Injury and Property Damage limits.
    (d) Full statutory coverage for Workers’ Compensation and Employers Liability and Disability Insurance for all its employees if and as required by law. 

(e) Errors and Omissions Liability Insurance, with a minimum limit of $1,000,000 per occurrence, $2,000,000 annual aggregate; and
(f) Cyber Liability Insurance with minimum limits of $1,000,000 per occurrence and $2,000,000 annual aggregate.

 

13.2 Additional Terms. Certificates of insurance evidencing these coverages will be provided to Customer upon Customer’s written request.

 

  1. GENERAL PROVISIONS

14.1 Export Compliance. The Software Services and Deliverables, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Property Works and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Software Service or Deliverable in a U.S.-embargoed country or in violation of any U.S. export law or regulation. Property Works does not represent or warrant that the use of the Software Service or Deliverable is lawful or available in any country outside of the United States.

14.2 Entire Agreement and Order of Precedence. This Agreement (including the applicable Service Order) contains the entire agreement between Property Works and Customer regarding Property Works’s provision of, and Customer’s receipt and use of, Services and Deliverables, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding applicable Service Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Service Order, (2) any exhibit, schedule or addendum to this Agreement, (3) the body of this Agreement, and (4) the Documentation.

14.3 Affiliates. An Affiliate of either party may enter into an Service Order. In such case, for purposes of that Service Order only, the Service Order and this Agreement will be between the Affiliate and other party named in the Service Order. By entering into an Service Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

14.4 Publicity. Property Works may publicize that Customer is a Property Works customer and display Customer’s name and logo on Property Works’s website and marketing materials.

14.5 Relationship of the Parties. The parties are independent contractors. Neither this Agreement nor any Service Order creates a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

14.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement, other than each party’s Affiliates as provided in Section 14.3

14.7 Notices. Except as otherwise specified in this Agreement or in the applicable Service Order, all notices related to this Agreement or the applicable Service Order will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), which must be sent by physical mail, the day of sending by email. Notices to Property Works will be addressed to the attention of “CEO,” at the address in the preamble of this Agreement. All other notices to Customer will be addressed to the relevant contacts designated by Customer in an Service Order.

14.8 Waiver. No failure or delay by either party in exercising any right under this Agreement or the applicable Service Order will constitute a waiver of that right.

14.9 Severability. If any provision of this Agreement or the applicable Service Order is held by a court of competent jurisdiction to be contrary to law, the provision will be reformed to the nearest enforceable provision (or deemed null and void if this is impermissible), and the remaining provisions of this Agreement and the applicable Service Order will remain in effect.

14.10 Construction. Neither this Agreement nor the applicable Service Order will be construed against the drafter. Lists following “include”, “includes” or “include” are illustrative and not exhaustive. Terms not defined in the body of this Agreement are defined as stated in Exhibit A. 

14.11 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement and all applicable Service Orders in their entirety (including all applicable Service Orders), without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Property Works may also subcontract its performance of the Services under this Agreement.

14.12 Governing Law. This Agreement and all applicable Service Orders, and any disputes arising out of or related thereto, will be governed exclusively by the internal laws of the State of Georgia, without regard to any principle that would cause the application of the law of any other state.

14.13 Venue. All claims and issues arising from, relating to, or connected with this Agreement that an arbitrator determines are excluded from this Agreement’s arbitration requirements (i.e., Section 14.14) may only be filed and resolved by state or Federal courts located in Dekalb County, Georgia, and each party consents to the exclusive jurisdiction of those courts. Further, Property Works may obtain injunctive or other equitable relief in such courts in the event of any infringement or threatened infringement of its intellectual property rights. Neither party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.

14.14 Arbitration. The parties must submit all claims and issues arising from, relating to, or connected with this Agreement to binding arbitration (e.g., a contract breach claim, indemnification duty issue, and questions regarding an arbitrator’s authority) in accordance with this Section 14.14. A single arbitrator will conduct the arbitration in Dekalb County, CA, and in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). The arbitrator is bound by strict rules of law and this Agreement’s terms (i.e., the arbitrator may not waive, change or equitably excuse any Agreement term, including ancillary documents (e.g., an amendment)). The arbitrator does not have the power to commit errors of law or legal reasoning, and a court may vacate or correct an arbitration award because of such errors. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs all issues arising from the arbitrability or the enforcement of the agreement to arbitrate, except for the requirements to apply Georgia state law (but disregarding any principle of law that would cause the application of the law of any other jurisdiction or permit a court, as opposed to the arbitrator, to determine the applicability or validity of this agreement to arbitrate). The parties will equally share the arbitrators’ fees and other arbitration costs, regardless of outcome. The parties must submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same arbitration proceedings as the claim to which it relates; any such claim which is not submitted or filed will be barred. The arbitrator may only award damages and may only grant relief that is permitted by this Agreement. The arbitrator’s decision, award and relief will be conclusive and binding on the parties. Either party may enter the arbitrator’s decision, award and relief in any court having appropriate jurisdiction.

14.15 Class-Action Waiver. Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between You and Property Works may be consolidated with any other arbitration proceeding involving Property Works and any other person or entity. Each party shall file and prosecute arbitration proceedings separately and individually in the name of Customer and Property Works, and not in any representative capacity. Each party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section 14.15.

Counterparts. This Agreement and any Service Order may be executed in counterparts and delivered by email, which will be as valid as physical delivery. An e-signature will be as valid as a physical signature on this Agreement or the applicable Service Order.

EXHIBIT A

DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means this Master Software and Services Agreement and any Service Orders, exhibits, schedules and addenda hereto.

“Customer Data” means electronic data or information submitted by or for Customer to the Software Services or collected and processed by or for Customer using the Software Services. “Customer Data” does not include data transmitted to or stored in Non-Property Works Applications.

“Customer Materials” means the Customer Data and all other materials provided by Customer to Property Works.

“Deliverable” means any deliverable Property Works provides to Customer in the course of providing the Professional Services. “Deliverable” does not include Customer Materials.

“Documentation” means Property Works’s specifications, user guides and similar documentation available through its website, and any custom documentation Property Works creates for Customer, all as updated from time to time.

“Effective Date” means the date of execution of Customers initial Service Order.

“Force Majeure Event” means circumstances beyond Property Works’s control, including modifications of the Software Service by any person other than Property Works or a person acting at Property Works’s direction, war, natural disaster, or other “acts of God”, general Internet outages, failure of Customer’s infrastructure or connectivity (including direct connectivity and virtual private network (VPN) connectivity to the Software Service), computer and telecommunications failures and delays not within Property Works’s control, and network intrusions or denial-of-service or other attacks.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, cancel bots and Trojan horses.

“Non-Property Works Application” means a web-based or offline software application that is provided by Customer or a third party and interoperates with a Software Service, including, for example, an application that is developed by or for Customer.

“Professional Services” means the Property Works implementation, training, consulting and other professional services ordered by Customer. “Professional Services” do not include Software Services.

“Service Order” means an ordering document specifying the Services to be provided hereunder that is entered into between Customer or any of its Affiliates and Property Works or any of its Affiliates, including any addenda and supplements thereto.

“Services” means the Software Services and Professional Services.

“Software Services” means the Property Works software services ordered by Customer. “Software Services” excludes Non-Property Works Applications.

“User” means an individual who accesses the Software Services through Customer’s account or Customer’s website. “Users” include, for example, employees, contractors and agents of Customer or its suppliers or service providers, if an as permitted by an Service Order.

EXHIBIT B

SUPPORT AND SERVICE LEVELS

Capitalized terms not defined in this Exhibit B will have the meaning set forth in the Agreement.

  1. SUPPORT

1.1 Support Obligations. During the subscription term, Property Works will use reasonable efforts to resolve Defects in the Software Service (“Support”). Support does not include implementation services, configuration services, integration services, training services, assistance with administrative functions or other professional services unless requested and agreed to by both parties.

“Defect” means a problem causing the Software Service not to conform to the Documentation in any material respect. Customer may request Support for a Defect in accordance with Property Works’s Support Procedures located on Property Works’s website, which may be updated from time to time.


  1. UPGRADES

2.1 Generally. “Upgrades” are Property Works’s releases of the Software Services for repairs, enhancements or new features applied by Property Works to Customer’s instances of the Software Service at no additional fee. Property Works has the discretion to provide new functionality either: (i) as an Upgrade, or (ii) as different software or a service for a separate fee. Property Works determines whether and when to develop, release and apply any Upgrade to Customer’s instances of the Software Service.

2.2 Notice of Upgrades; Maintenance Downtime. Property Works will use reasonable efforts to give Customer three days’ notice of any Upgrade to the Property Works Software Services or infrastructure underlying the Software Services. Property Works will use commercially reasonable efforts to limit the period of time during which the Software Service is unavailable due to the application of Upgrades (“Maintenance Downtime”). Notwithstanding the foregoing, Property Works may provide Customer with a shorter or no notice period of an Upgrade if necessary, in the reasonable judgment of Property Works, to maintain the availability, security or performance of the Software Service.

  1. AVAILABILITY SERVICE LEVEL

3.1 Availability. If Customer’s instances of the Software Service are not Available ninety-nine and one-half percent (99.5%) of the time or more in any calendar month (the “Availability Target”), then Customer’s sole and exclusive remedy, and Property Works’s sole and exclusive liability, for failure of the Software Service to meet the Availability Target is for Customer either: (1) to request that the affected subscription term be extended for the number of minutes the Software Service was not Available in the month in excess of the Availability Target; or (2) to request that Property Works issue a service credit to Customer for the dollar value of the number of minutes the Software Service was not Available in the month in excess of the Availability Target (determined at the deemed per minute rate charged to Customer for Customer’s use of the affected Software Service), which Customer may request that Property Works apply to the next invoice for subscription fees.

3.2 “Available” means that the Software Service can be accessed by Users, but excludes: (i) Maintenance Downtime and (ii) downtime caused by a Force Majeure Event.

3.3 Requesting Credits. Customer must request all service credits or service extensions in writing to Property Works within 30 days of the end of the month in which the Availability Target was not met, identifying the Support requests relating to the instance in which the Software Service was not Available. All credit requests must be reviewed and approved by Property Works before they are issued. Customer will not be eligible for all credits and extensions not requested within that time period. The total amount of service extension or credits for any month may not exceed the subscription fee for the affected Software Service for the month. Credits have no cash value.