This is an agreement between Property Guard, LLC (“Property Guard”) and the Entity identified on the applicable Order Form (“Customer”). This Agreement applies to Customer’s use of the Property Guard service and related services (“Services”). By indicating acceptance of this Agreement, Customer agrees to be bound by this Agreement. Any individual accepting this Agreement on behalf of a Customer represents and warrants that he or she has the authority to bind Customer to this Agreement.
This Agreement is effective as of the date the Customer accepts these terms and conditions (the “Effective Date”).
1. Property Guard Services
Property Guard provides software service designed to monitor short term rentals listed online and report certain non-compliant listings to Customer. The actual compliance and any related penalties or actions resulting from such notifications is made solely between non-compliant listing host (and/or owner) and Customer. PROPERTY GUARD DOES NOT GUARANTEE OR ENSURE THE EXACT IDENTIFICATION OF ANY LISTING HOST (AND/OR OWNER) AND ITS RELATED ADDRESS. Services provided by Property Guard under this Agreement may be in pre-release or “beta” form and may contain bugs or errors. Customer assumes all risks of using the services.
1.2. Property Guard Service
During the Term, Property Guard grants to Customer a limited, nonexclusive, revocable right to access and use the Property Guard software service and Documentation in accordance with this Agreement and any usage policies made available to Customer via the Property Guard software or a Property Guard website.
1.3. Relationship of the Parties
The parties are independent contractors, not agents, partners, or franchisees of each other. Unless otherwise set forth on the Order Form, the relationship between the parties is non-exclusive. Customer is responsible for the Customer Parties’ acts or omissions related to this Agreement or use of the Property Guard service.
Customer is responsible for all compliance related matters, to include, but not limited to, contacting the non-compliant host (and/or owner), issuing penalties and/or related fines and any other action or inaction resulting from notifications received during monitoring. Property Guard is not responsible for any errors or omissions related to the monitoring notifications via the Property Guard software. Property Guard will not contact (or attempt to contact) host (an/or owner) associated with any non-compliant listing.
2. Ownership and Data rights
2.1. Ownership by Property Guard
Property Guard owns all right, title, data and interest in and to the Property Guard Materials. Customer acknowledges no right or interest in the Property Guard Materials is conveyed other than the limited rights granted in this Agreement.
2.2. Ownership by Customer
Customer owns all right, title and interest in and to the Customer Materials (including Listings Information). Customer consents to Property Guard’s use of and access to the Customer Materials to provide the services to Customer in accordance with the terms of this Agreement. Property Guard may use and disclose (to third parties) Customer Materials on an aggregated basis to perform analytic sampling, improve Property Guard’s provision of the services, or for any other reasonable purpose (including commercial purposes) determined by Property Guard in its discretion.
Customer will not: (a) alter or copy, or permit the alteration or copying of, the Property Guard Materials, (b) take any action that would foreseeably jeopardize Property Guard’s or its licensors’ rights in the Property Guard Materials, (c) seek to acquire any ownership interest in or to the Property Guard Materials, (d) attempt to derive source or object code from Property Guard Materials, to include reverse engineering, decompiling or similar means, or (e) license, sell, transfer, or disclose the Property Guard Materials.
3. Payment Terms
Property Guard agrees to waive payment terms for the first thirty (30) days as part of exclusive offer. Customer agrees to pay Property Guard advertised rate at the expiration of exclusive offer period. All fees due to Property Guard will be due upon receipt of invoice. All payments under this Agreement (a) are nonrefundable unless otherwise expressly stated in this Agreement, (b) will be made in U.S. Dollars, and (c) are exclusive of any taxes and duties, which will be paid solely by Customer (other than taxes based on Property Guard’s net income). All late payments will be assessed a service charge of 15% per month to the extent allowed by applicable law.
Customer represents and warrants that: (a) all Customer information provided during initial set up (including all location and property based information) are accurate, up-to-date and complete; (b) the Customer Materials do not infringe or violate any third-party intellectual property right; (c) it has the right to grant Property Guard the rights to the Customer Materials described in this Agreement; (d) it will conduct all actions taken and use the Property Guard service at all times in accordance with applicable laws; and (e) it will not make any representations or warranties on behalf of Property Guard or any of its affiliates.
THE SERVICES ARE PROVIDED “AS IS.” PROPERTY GUARD DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICES, CUSTOMER DATA OR OTHER MATTERS UNDER THIS AGREEMENT. WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, OR OTHERWISE, AND INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND LOSS OF DATA. PROPERTY GUARD DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. CUSTOMER ASSUMES THE RISK OF ANY LOSSES ASSOCIATED WITH CUSTOMER’S PURSUIT OF PARTIES ASSOCIATED WITH LISTINGS IDENTIFIED IN CONNECTION WITH SERVICES PROVIDED IN THIS AGREEMENT AND WILL BE SOLELY RESPONSIBLE FOR ANY AND ALL ASSOCIATED FEDERAL, STATE AND LOCAL FINES AND PENALTIES, LEGAL FEES AND INSURANCE RELATED EXPENSES, INCLUDING, BUT NOT LIMITED TO, INCREASE IN PREMIUMS OR CLAIMS OF ANY KIND.
6. Limitation of Liability
IN NO EVENT WILL (A) PROPERTY GUARD OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES IN CONNECTION WITH THIS AGREEMENT (INCLUDING CLAIMS FOR LOST INCOME, LOSS OF DATA, OR LOSS OF GOODWILL), AND (B) THE AGGREGATE LIABILITY OF PROPERTY GUARD AND ITS AFFILIATES FOR ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO PROPERTY GUARD DURING THE 12 MONTHS PRIOR TO THE APPLICABLE CLAIM. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT PROPERTY GUARD IS NOT A PARTY TO ANY ACTIO TAKEN BY CUSTOMER. CUSTOMER BEARS ALL RISK IN CONNECTION WITH ACTIONS TAKEN AGAINST NON-COMPLIANT LISTING HOSTS (AND/OR OWNERS).
Customer will indemnify Property Guard and its officers, employees, agents and licensors (“Indemnified Parties”) against any damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnified Parties arising from any (a) third-party claims related to Customer’s breach or alleged breach of its representations, warranties and covenants in this Agreement; and (b) claims brought by a Customer related to any and all Customer actions, and Customer will defend the Indemnified Parties against any of the foregoing claims in clause (a) or (b), except Customer will have no obligation to indemnify or defend to the extent such claims arise from the gross negligence or willful misconduct of the Indemnified Parties.
In connection with this Agreement, Property Guard may disclose its confidential or proprietary information to Customer. “Confidential Information” means information disclosed by Property Guard to Customer under this Agreement that is either: (a) clearly marked or otherwise clearly designated as confidential or proprietary; or (b) should be reasonably understood by Customer to be the confidential or proprietary information of Property Guard. Confidential Information includes the Property Guard Materials. Customer will not use, or otherwise disclose to any third party, any Confidential Information without the prior written consent of Property Guard. Customer will protect the Confidential Information from unauthorized access, use and disclosure.
Customer may disclose Confidential Information if required by applicable law, provided, however, that, if legally permitted, Customer will give notice of the compelled disclosure to Property Guard to allow Property Guard to make a reasonable effort to obtain a protective order or other confidential treatment of the Confidential Information.
Any suggestions, comments or other feedback provided by Customer to Property Guard with respect to the services (collectively, “Feedback”) will constitute Confidential Information of Property Guard. Property Guard will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback in any manner, without obligation or restriction of any kind.
9.1. Agreement Term
The term of this Agreement will commence on the Effective Date and continue in effect as set forth in these terms. A party may terminate this Agreement at any time, with or without cause. Customer is required to provide Property Guard with written request to terminate services. Either party may terminate this Agreement immediately on written notice if the other party suffers a bankruptcy, insolvency, or similar event. Property Guard may terminate this Agreement with written notice to Customer in the event that Property Guard determines (in its reasonable judgment) that Customer actions may have an adverse action (directly or indirectly) to Property Guard and its interests.
9.2. Suspension, Limitation or Termination
Property Guard may suspend, terminate or limit access to the Property Guard service at any time in its discretion with notice to Customer. Property Guard will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s use of services in accordance with Section 9.2.
9.3. Effect of Termination
All licenses and other rights of use granted to Customer under this Agreement will immediately cease on termination or expiration of this Agreement. All provisions of this Agreement which by their nature are intended to survive termination or expiration will so survive, including Section 2, 3, 4, 5, 6, 7, 8, 9.3, 10, 11, 12, and 13.
10. Governing Law; Arbitration
Any dispute under this Agreement will be settled by final and binding arbitration by one arbitrator, mutually selected by the parties, sitting in Dallas County, Texas, and shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. This Agreement will be governed by and construed in accordance with the laws of the State of Texas without regard to its conflicts of law provisions. Any decision of the arbitrator will be (a) a final and non-appealable determination of the matter, (b) binding upon each of the parties, and (c) enforceable by any court of competent jurisdiction. Notwithstanding anything to the contrary in this Section 10, each party will have recourse to a court for the sole purpose of seeking conservatory or interim measures (including temporary restraining orders or preliminary injunctions) or their equivalent, or for the purpose of such party’s enforcement of its intellectual property rights. Each party irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in Dallas County, Texas in connection with any action seeking such conservatory or interim measures.
11. Records; Audit
Customer will maintain complete and accurate records of all actions taken in pursuit of non-complaint hosts (and/or owners) using information provided by the Property Guard service. During the term of this Agreement and for at least two years thereafter, Customer will make these records available for Property Guard to audit to verify compliance with this Agreement. Customer will provide Property Guard with access to Customer’s personnel and other representatives in connection with such audit. Any audit under this Section 11 will be conducted on reasonable advance written notice to Customer, no more often than every 12 months, during Company standard business hours, and in such a manner to minimize interruptions to Customer’s business operations.
Neither party may assign or transfer this Agreement or any of its rights or obligations under this Agreement without the other party’s prior written consent, provided that Property Guard may assign this Agreement without Customer’s consent in connection with the sale of all or substantially all of its assets or business related to this Agreement, or a sale or other transfer of a controlling interest of Property Guard, or to any affiliate of Property Guard, in each case whether by merger, change of control, operation of law, reorganization, consolidation, sale of securities, or o Subject to the foregoing, this Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns. In any action to enforce any term or provision of this Agreement, the prevailing party will be entitled to costs and reasonable attorneys’ fees. No waiver of this Agreement will be valid unless in writing and signed by the party granting such waiver. If any provision of this Agreement is determined by any applicable court or arbitrator to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any modifications of this Agreement must be in writing signed by both Property Guard and Customer. If Customer provides Property Guard with any pre-printed terms that appear on any purchase order or other form document, such terms will be of no force or effect unless Property Guard specifically agrees in writing to modify this Agreement. In the event of a conflict between the Order Form and these terms, these terms will govern unless the Order Form
specifically references a provision of these terms that is to be overridden and the manner in which it is to be changed. This Agreement is the entire agreement between Property Guard and Customer regarding its subject matter, and supersedes any previous written or oral agreements between the parties regarding the same.
ADDITIONAL Definitions. “Agreement” means, collectively, these terms, the Order Form and any supplemental terms or online policies that reference these terms. “Customer Materials” means any text, multimedia, graphics, audio, video, data, and other information provided by Customer to Property Guard for use with and display through the Property Guard service, including the Listings Information. “Customer Party” means any of Customer’s affiliates, officers, directors, employees, contractors, representatives, agents, Users, or other entities or organizations. “Documentation” means any user manuals and any other instructional, technical or training materials that Property Guard provides to Customer in printed form or via a Property Guard website in connection with the Property Guard service, as may be updated by Property Guard from time to time. “Property Guard Materials” means the Property Guard service, the Documentation, any Property Guard software, firmware or other technology utilized, created or reduced to practice in the provision of the services, and all intellectual property rights contained therein or related thereto. “Property Guard Service” means Property Guard’s proprietary, web-based software solution and related software components designed to facilitate monitoring of short-term rentals listed online and report certain non-compliant listings to Customer. “Customer Information” means a data feed or other listing of Customer’s location and property related details. “Order Form” means any order form (whether electronic or otherwise) provided or presented by Property Guard to Customer for the services. “User” means an individual authorized by Customer with login rights to access and use the Property Guard service in accordance with the terms of this Agreement.