ResiDesk Subscription Agreement

ResiDesk, Inc. (“ResiDesk,” “we,” “us,” or “our”) provides a software platform that enables customers to more effectively communicate with prospective, existing, and former renters or tenants. This ResiDesk Subscription Agreement (“Agreement”) governs the use of Services obtained by a customer (“Customer,” “you,” or “your”) through an Order Form incorporating this Agreement by reference. ResiDesk and Customer shall each be referred to as a “Party” and collectively referred to as the “Parties” for purposes of this Agreement.

By accepting this Agreement, either by executing an Order Form or accessing or using the Services or authorizing or permitted any Authorized User to access or use the Services, Customer agrees to be bound by this Agreement as of the date of such access or use of the Services (the “Effective Date”). If you use the Services on behalf of an entity or another individual, you represent and warrant that you have the authority to bind that entity or individual, and your acceptance of the Agreement will be deemed an acceptance by that entity or individual.

This Agreement does not apply to your access and use of our website, which is governed by the ResiDesk Website Terms of Use.

1. Definitions

2. Services
1. License. Subject to Customer’s compliance with the terms and conditions of this Agreement and the applicable Order Form, ResiDesk grants Customer a limited, revocable, non-sublicensable, non-transferable, non-exclusive license to access the Services including the Content made available in the Services solely for Customer’s internal business purposes.
2. Services. ResiDesk will (i) use commercially reasonable efforts to make the Services available to Customer during the applicable Term pursuant to this Agreement and the applicable Order Form, subject to reasonable downtime for maintenance of the Services; and (ii) provide technical support for use of the Services.
3. Personnel and Subcontractors. ResiDesk shall engage a sufficient number of qualified personnel who have the skills, expertise, and qualifications necessary to make the Services available to Customer in accordance with this Agreement.
4. Trial Periods. We may offer the Services on a free trial basis for the period of time specified in an applicable Order Form (the “Trial Period”). Except as may be otherwise provided in the specific terms for the Trial Period, only Customers who have not previously subscribed to or otherwise purchased the Services shall be eligible for a Trial Period. We reserve the right to terminate Services retained on a Trial Period at any time, without notice and in our sole discretion. To use the Services after the end of the Trial Period, you must purchase a subscription to such Services before the Trial Period ends.

3. Proprietary Rights and Licenses
1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, ResiDesk reserves all rights, title, and interest in and to the Services and its Content, including all related intellectual property rights. No rights are granted to Customer other than as expressly set forth herein.
2. License to Customer Data. Customer grants to ResiDesk and its Affiliates a worldwide, non-exclusive, limited-term license to access, use, process, copy, distribute, perform, export and display Customer Data only as necessary (i) for ResiDesk to provide, maintain, and update the Services; (ii) to prevent or address service, security, support, or technical issues; (iii) as required by law and subject to the compelled disclosure requirements of Section 7(c); and (iv) as expressly permitted in writing by Customer. Customer is solely responsible for Customer Data, and Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users or third parties as may be necessary to grant this license.
3. License to Feedback. Customer represents it has the rights to and grants to ResiDesk and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorized Users relating to the operation of the Services.
4. License to Disclose Business Relationship. Customer grants to ResiDesk and its Affiliates a worldwide, royalty-free license to use any of Customer’s trademarks, brand names, and/or logos for the limited purpose of disclosing the ResiDesk provides services to Customer. The license set forth in this Section 3(d) shall be valid only during the period of time in which ResiDesk provides Services to Customer and shall expire at the termination of this Agreement.
5. De-Identified Data. Customer agrees that ResiDesk may collect, generate, use, and disclose aggregated or de-identified data for its business purposes, including industry analysis, benchmarking, analytics, and marketing. All data collected, generated, used, and disclosed will be in aggregate and deidentified form only and will not identify Customer, its Authorized Users, or Customer Data. De-identified data shall not be considered Confidential Information of Customer.
6. Remedies for Infringement Claims Related to the Services. If ResiDesk receives information about an infringement or misappropriation claim related to the Services, ResiDesk may in its discretion and at no cost to Customer: (i) modify the Services so that it no longer infringes or misappropriates, without breaching its warranties under Section 8(b) (ResiDesk Warranties); (ii) obtain a license for Customer’s continued use of the Services in accordance with this Agreement; or (iii) terminate Customer’s subscriptions for the Services upon 30 days' written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. Notwithstanding any contrary provision in this Agreement, if ResiDesk provide any of the remedies set forth in this Section 3(f), Customer agrees that such action satisfies ResiDesk’s obligations under this Agreement, and Customer is not eligible for further relief.

4. Customer Responsibilities
1. Authorized Users. Customer shall identify an Administrator who may designate Authorized Users for the Account. Customer will ensure that its Affiliates and all Authorized Users using the Services under its Account comply with all of Customer’s obligations under this Agreement, and Customer is responsible for their acts and omissions relating to the Agreement as though they were those of Customer.
2. Content. Customer may use Content from the Services for Customer’s internal use only during the period that Customer is licensed to use the Services. No Content from the Services may be copied, publicly displayed, reproduced, uploaded, downloaded, transmitted or otherwise used other than as set forth in this Agreement.
3. Usage Restrictions. Customer shall not: (i) make the Services or its Content available to, or use the Services or its Content for the benefit of, anyone other than Customer; (ii) sell, resell, license, sublicense, distribute, rent or lease the Services or its Content, or include the Services or its Content in a service bureau or outsourcing offering; (iii) store or transmit infringing, libelous, or otherwise unlawful or tortious material through the Services; (iv) store or transmit material in violation of third-party intellectual property, proprietary, privacy, or similar rights through the Services; (v) store or transmit malicious code through the Services; (vi) interfere with or disrupt the integrity or performance of the Services or Content contained therein; (vii) attempt to gain unauthorized access to the Services or its related systems or networks; (viii) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (ix) copy the Services or its Content or any part, feature, function or user interface thereof; (x) frame or mirror any part of the Services; (xi) access the Services or its Content in order to build a competitive product or service; (xii) reverse engineer the Services or any part thereof; (xiii) modify, translate, or otherwise create derivative works of the Services or its Content; (xiv) allow the removal, alteration, covering, or obscuring of any of ResiDesk’s trademarks that appear on the Services or its Content; (xv) use the Services for unlawful purposes or in a manner that violates any law or regulation; or (xvi) promote, market, or sell any products or services that are competitive with the Services.
4. Unauthorized Account Use. Customer shall require that all Authorized Users maintain confidentiality of their usernames and passwords to the Services. Customer is responsible for all actions taken under the usernames and passwords of Authorized Users, and Customer shall notify ResiDesk at Support@TheResiDesk.com if Customer becomes aware of any unauthorized use or access to the Account.
5. Communications with Residents. Customer understands that the Services may enable text message communications on behalf of Customer to Residents, including by automated and non-automated methods. Customer shall review and approve all types of Communications before enabling such Communications on the Services. Customer further agrees that it remains solely responsible for its relationship with Residents, including duties associated under rental laws or other applicable laws, and the resolution of any disputes Customer may have with Residents.
6. Suspension Rights. ResiDesk may restrict functionalities or suspend the Services (or any part thereof) or remove or make unavailable any Customer Content for (i) violations by Customer, including its Authorized Users, of this Agreement; or (ii) as reasonably necessary to protect the Services, ResiDesk, or third parties. Unless legally prohibited from doing so or where immediate action is deemed necessary, ResiDesk will make commercially reasonable efforts to notify Customer of any suspension. ResiDesk shall not be liable to Customer, its Authorized Users, or any third party, including Residents, for any suspension. ResiDesk may refer any suspected fraudulent, abusive, or illegal activity by Customer, including its Authorized Users, to law enforcement authorities in ResiDesk’s sole discretion.

5. Invoicing and Fees
1. Fees. Customer shall pay all fees specified in an Order Form for the entire Subscription Period. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, and (ii) payment obligations are non-cancelable and all fees paid are non-refundable. Customer shall pay ResiDesk the amount stated in an Order Form within thirty (30) days after receipt of an invoice. Customer shall at all times maintain current and accurate billing information in the Account. Except as set forth in an Order Form, invoices sent to the designated billing contact in the Account shall be deemed received by Customer one business day after delivery. Customer’s payments are subject to applicable governmental regulations and rulings, including withholding of taxes. ResiDesk’s fees exclude, and Customer will be responsible for, taxes and similar charges, including sales, usage, excise, and ad-valorem taxes. Nothing in this section requires either Party to pay income taxes or similar charges of the other Party.
2. Overdue Charges. If any invoiced amount not subject to good faith dispute is not received by Customer by the due date, then without limiting ResiDesk’s rights or remedies, (i) Customer agrees that ResiDesk may impose later interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and/or (ii) ResiDesk may condition acceptance of future Order Forms on payment terms shorter than those specified in Section 5(a).
3. Suspension of Services. If any amount owed by Customer under this Agreement or any Order Forms for the Services that are not subject to good-faith dispute is thirty (30) or more days overdue, ResiDesk may, without limiting ResiDesk’s other rights and remedies, suspend the provision of the Services to Customer until all such amounts are paid in full.
4. Payment Disputes. If Customer believes, in good faith, that all or a portion of an invoice is incorrect, Customer shall have the right to withhold payment for the portion of the invoice disputed in good faith, until such time as the dispute has been resolved. Customer shall provide notice to ResiDesk of any objection or dispute to any portion or all of an invoice no later than thirty (30) days after receipt of an invoice, or the invoice shall be deemed valid. ResiDesk will not exercise its rights under Section 5(b) (Overdue Charges) or 5(c) (Suspension of Services) if Customer (i) is disputing the applicable charges reasonably and in good faith; (ii) is cooperating diligently to resolve the dispute; and (iii) timely pays any undisputed amounts due.
5. Future Functionality. Customer agrees that its subscription or other purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by ResiDesk regarding future functionality or features.

6. Term and Termination
1. Term of Agreement. This Agreement commences on Effective Date and continues until all Order Forms hereunder have expired, been delivered in entirety, or have been terminated (the “Term”).
2. Term of Provision of Services. With respect to the Services, the Subscription Period for a new subscription (the “Initial Subscription Period”) shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the Initial Subscription Period or one year, whichever is shorter (each, a “Renewal Period”), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant Initial Subscription Period or Renewal Period. Fees for the Services during any Renewal Period will be the same as that during the immediately prior Initial Subscription Period or Renewal Period, as applicable, unless ResiDesk provides written notice to Customer of a pricing increase at least 60 days before the end of that prior period, in which case the pricing increase will be effective upon renewal and thereafter.
3. Termination for Cause. A Party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other Party of a material breach, including nonpayment, if such breach remains uncured at the expiration of such period, or (ii) 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.
4. Refund or Payment Upon Termination for Cause. If Customer terminates this Agreement in accordance with Section 7(c), ResiDesk will refund Customer any prepaid fees covering the remainder of the term of an Order Form after the effective date of termination. If ResiDesk terminates this Agreement in accordance with Section 7(c), Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to ResiDesk for the period prior to the effective date of termination.
5. Portability and Deletion of Customer Data. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, ResiDesk will make Customer Data available to Customer for export or download. After that thirty (30) day period, ResiDesk will have no obligation to maintain Customer Data, and may thereafter delete or destroy all copies of Customer Data maintained by ResiDesk. After termination of this Agreement, each Party shall, upon written request, promptly return or destroy all of the Confidential Information of the other Party in its possession or control.
6. Survival. The following provisions shall survive termination of this Agreement: 1, 3(a), 3(c)-(e), 4(c), 4(e), and 5-11.

7. Confidentiality
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. Except as otherwise specifically provided in this Agreement, Customer’s Confidential Information includes Customer Data; ResiDesk’s Confidential Information includes the Services and Content; and Confidential Information of each Party includes the terms and conditions of all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, business processes, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind of nature, plans for future development and new product concepts, contemplated products, research, development, and strategies disclosed by such Party. However, Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third Party who rightfully possess the information without confidential or proprietary restrictions, or (iv) was independently developed by the Receiving Party.
2. Protection of Confidential Information. Except as otherwise specifically provided in this Agreement, each Party covenants and agrees that it will not publish, communicate, divulge, or disclose to any person, firm, or corporation any Confidential Information of any other Party, except as necessary in the performance of the terms of this Agreement. Each Party covenants and agrees that it will not use any Confidential Information of any other Party except as necessary to fulfill its obligations or exercise its rights under this Agreement, and only for such purposes and only for the time that it is necessary to do so. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care): (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, service providers and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Liability for damages due to disclosure of the Confidential Information by any such third Party shall be with the Party that disclosed the Confidential Information to the third Party. Neither Party will disclose the terms of any Order Form 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(b).
3. Compelled Disclosure. In the event that the recipient of Confidential Information is requested or becomes legally compelled to disclose any Confidential Information of the other Party, it is agreed that the Receiving Party will provide the Disclosing Party with prompt written notice of such request(s) to enable the Disclosing Party, at its sole cost and expense, to seek a protective order or take other lawful steps to protect and preserve the confidential nature of the Confidential Information, and the Receiving Party will cooperate with such efforts by the Disclosing Party, including by delaying the disclosure to the extent lawfully permitted to do so to permit the Disclosing Party the opportunity to engage in such efforts. Each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed. Each Party shall immediately notify the other upon discovery of any loss or unauthorized disclosure or other processing of the Confidential Information of the other Party. The Parties agree that to the extent any of their respective regulators have the right to examine the relationship between the Parties described in this Agreement, along with the records associated with such relationship, subject to any privacy requirements applicable to either Party or its Affiliates, or to the individual customers of either Party, the Parties shall: (i) provide advance notice of such examination; and (ii) cooperate with each other in making relevant records available.
4. Return or Destruction. As requested by the Disclosing Party during the Term, upon expiration or any termination of this Agreement, or completion of the obligations of the Receiving Party, as applicable, the Receiving Party shall: (i) return or destroy, as the Disclosing Party may direct, and in the manner reasonably directed by the Disclosing Party, all material in any medium that contains, refers to, or relates to the Disclosing Party's Confidential Information; and (ii) retain no copies except one copy solely to the extent, if any, required compliance with record retention requirements under applicable law; provided, however, that no Party will be obligated to erase Confidential Information subject to a license granted herein or contained in an archived computer system backup made in accordance with such Party's security and/or disaster recovery procedures, provided that such archived copy will: (a) eventually be erased or destroyed in the ordinary course of such Party's data processing procedures; and (b) will remain fully subject to the obligations of confidentiality and security stated herein.
5. Misuse. In the event of any actual or suspected misuse, disclosure or loss of, or inability to account for, any Confidential Information of the Disclosing Party, the Receiving Party promptly shall: (i) (and in any event within three business days) notify the Disclosing Party upon becoming aware thereof; (ii) furnish to the Disclosing Party full details of the unauthorized possession, use or knowledge, or attempt thereof, and use reasonable efforts to assist the Disclosing Party in investigating or preventing the reoccurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information; (iii) take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the violation; and (iv) cooperate in all reasonable respects with the Disclosing Party to minimize the violation and any damage resulting therefrom.

8. Representations, Warranties, Exclusive Remedies, and Disclaimers
1. Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
2. ResiDesk Warranties. ResiDesk warrants that during an applicable Subscription Period: (i) this Agreement, the Order Form, and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (ii) ResiDesk will not materially decrease the overall security of the Services, and (iii) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty in this Section 8(b), Customer’s exclusive remedies are those described in 6(c) (Termination for Cause) and 6(d) (Refund or Payment upon Termination).
3. Customer Warranties. Customer warrants that (a) at all times during the term of this Agreement, Customer shall comply with all applicable federal, state, and local laws, and the terms of this Agreement and (b) Customer’s use of the Services or execution of this Agreement does not and will not conflict with Customer’s obligations to any third parties.
4. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, RESIDESK MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND RESIDESK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; CLAIM OF INFRINGEMENT; OR CLAIM IN TORT (WHETHER BASED ON NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR OTHER THEORY). EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY THIRD-PARTY HOSTING PROVIDERS.

9. Indemnification
1. Indemnification by ResiDesk. ResiDesk will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Services in accordance with this Agreement 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 by Customer under a court-approved settlement of, a Claim Against Customer, provided Customer (a) promptly gives ResiDesk written notice of the Claim Against Customer, (b) gives ResiDesk sole control of the defense (including selection of attorneys) and settlement of the Claim Against Customer (except that ResiDesk may not settle any Claim Against Customer unless it releases Customer of all liability), and (c) gives ResiDesk necessary assistance, at ResiDesk’s expense. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from (i) Customer’s breach of this Agreement; (ii) a combination, operation, or use of the Services with other software, hardware, or technology not provided by ResiDesk if the claim would not have arisen but for the combination, operation, or use; or (iii) Customer Data.
2. Indemnification by Customer. Customer will indemnify, defend, and hold ResiDesk harmless against any claim, demand, suit or proceeding made or brought against ResiDesk by a third party alleging that Customer Data, or Customer’s breach of this Agreement, or any conduct arising out of Customer’s breach of this Agreement infringes or misappropriates such third party's intellectual property rights or violates applicable law (a "Claim Against ResiDesk "), and will indemnify ResiDesk from any damages, attorney fees and costs finally awarded against ResiDesk as a result of, or for any amounts paid by ResiDesk under a court-approved settlement of, a Claim Against ResiDesk, provided ResiDesk promptly gives Customer written notice of the Claim Against ResiDesk (provided that failure to so notify will not remove Customer’s obligation except to the extent Customer is materially prejudiced thereby). For a Claim Against ResiDesk, Customer controls the defense and settlement of the Claim Against ResiDesk and ResiDesk agrees to give Customer all reasonable assistance, at Customer’s expense. Customer will not settle, compromise, or otherwise enter into any agreement regarding the disposition of any Claim Against ResiDesk without the prior written consent and approval of ResiDesk unless such settlement: (i) is solely for a cash payment; (ii) requires no admission of liability or wrongdoing on the part of ResiDesk, (iii) imposes no affirmative obligation on ResiDesk; (iv) imposes no restriction on ResiDesk’s business; (v) provides that the parties to such settlement shall keep the terms of the settlement confidential; and (vi) provides for a full and complete release of ResiDesk. Customer shall reimburse ResiDesk upon demand for any losses incurred by ResiDesk that is subject to an indemnification obligation as set forth in this Section 9(b).
3. Exclusive Remedy. This section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section 9.

10. Limitation of Liability
1. Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT APPLY TO: (A) CUSTOMER’S RECKLESS OR NEGLIGENT ACTS OR OMISSIONS; (B) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (INVOICING AND FEES); (C) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9; OR (D) EITHER PARTY'S LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7; OR (E) EITHER PARTY'S LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY.
2. Exclusion of Consequential and Related Damages. NEITHER PARTY WILL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11. General
1. Notices. Except as otherwise set forth herein, all notices under this Agreement will be in writing addressed to the Parties to the individual at the address set forth on the Order Form and will be deemed to have been duly given (i) when received, if personally delivered; (ii) the first business day after sending by email; (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (iv) upon receipt, if sent by certified or registered mail, return receipt requested.
2. Relationship of the Parties. ResiDesk is performing the services as an independent contractor and nothing in this Agreement will be construed as establishing an employment, agency, partnership or joint venture relationship between Customer and ResiDesk or any ResiDesk employees or other persons performing ResiDesk’s obligations hereunder. Neither Party will have the authority to act on behalf of or bind the other Party in any manner.
3. Trade Restrictions. Customer acknowledges that the Services and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that ResiDesk makes available (collectively “Excluded Data”) are subject to the export control and sanctions laws and regulations of the United States and other countries that may prohibit or restrict access by certain persons or from certain countries or territories currently including, but not limited to, Cuba, the Crimea region of the Ukraine, Sudan, Iran, North Korea and Syria ("Trade Restrictions”). Customer represents and warrants that it is not: (i) located in an embargoed country or territory, (ii) under the control of an entity organized in or a resident of an embargoed country or territory, (iii) listed on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, including, but not limited to, OFAC’s List of Specially Designated Nationals and Other Blocked Persons, the U.S. State Department's Nonproliferation Sanctions lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List; or (iv) subject to end destination export control regulations, such as, but not limited to, the U.S. Export Administration Regulations and U.S. Government EU Dual-Use Regulation EC 428/2009. Customer is solely responsible for complying with Trade Restrictions for all Excluded Data and any of its content transmitted through the Services.
4. Governing Law and Venue. This Agreement shall be governed by the laws of the State of New York, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in New York. Customer hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement, or relating to access to or use of the Services by Customer or its Authorized Users.
5. Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of such Party, which may include hosting provider failure or delay, non-Services application, denial-of-service attacks, strikes, shortages, riots, fires, pandemic, acts of God, war, terrorism, and governmental action.
6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
7. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
9. Construction. Each Party acknowledges that it has consulted with or had the opportunity to consult with counsel of its choice, and that in executing this Agreement it has not relied upon any statements, representations or agreements other than those expressly contained herein.
10. 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 in its entirety (including all Order Forms), without the other Party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that such party assumes or is otherwise fully bound by all of the obligations of the assigning Party under the Agreement. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. In the event of such a termination, ResiDesk will refund to Customer any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11. Modification of Agreement. ResiDesk may modify this Agreement in its discretion, in which case the new Agreement will supersede prior versions. ResiDesk shall notify Customer at least thirty (30) days prior to the effective date of any such amendment and Customer’s continued use of the Services following the effective date of any such amendment may be relied upon by ResiDesk as consent to any such amendment.
12. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and ResiDesk regarding Customer’s use of the Services and its Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The Parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Order Form as defined herein) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) this Agreement. Notwithstanding any other provision of this Agreement, in no event shall any terms or conditions in this Agreement or any other document be agreed, accepted, waived or modified via a “Void Contracting Method.” A “Void Contracting Method” is one in which an agreement or acceptance purportedly takes place within or through products or services or an application, website, or portal operated by or for ResiDesk through Customer action (such as electronic signature, checking a box, or clicking to accept) or inaction, even if Customer is informed that such action or inaction will constitute agreement or acceptance. Any terms or conditions purportedly accepted or agreed via a Void Contracting Method shall be void and of no legal consequence.
13. Headings. The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.