ResiDesk’s Terms and Conditions

Terms and Conditions

These Terms and Conditions (the “Terms”) govern the use of ResiDesk’s services as set forth below. The Terms are incorporated by reference into the Service Order by and between ResiDesk, Inc., a Delaware corporation (“ResiDesk”), and the customer that identified on a Service Order to purchase or otherwise use ResiDesk’s Services (“Customer”). The Terms and Service Order constitute a legally binding agreement between ResiDesk and Customer (the “Agreement”).

BY EXECUTING A SERVICE ORDER THAT REFERENCES THE TERMS, CUSTOMER AGREES TO BE BOUND BY THE TERMS. 

  1. USE OF THE RESIDESK SERVICES.
  2. Services Description. ResiDesk operates a software platform that permits property managers, leasing agents, maintenance providers, vendors, tenants, and prospective tenants to communicate in an efficient, secure and timely manner via text message (the “Message Service”). ResiDesk also operates a service that uses natural language processing and artificial intelligence to analyze communications between property managers and tenants to provide analysis of trends and patterns (“Residesk Insights”). ResiDesk Insights operates by integrating with Customer’s property management system (“PMS”) and e-mail system via an application programming interface (“API”) that permits ResiDesk to collect and analyze certain communications between Customer and Customer’s tenants. The Message Service and ResiDesk Insights are collectively referred to as the “Services”. Company provides Customer with access to the Services through its customer platform, which is available at www.theresidesk.com.
  3. Access Grant to the Services.   Upon payment of the Fees, and subject to Customer’s compliance with the terms and conditions contained in this Agreement, ResiDesk grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to allow authorized employees, contractors, and (“Users”) in the territory set forth in the Order From (the “Territory”) to access and use the Services during the Term, as set forth in the applicable Order Form. Users must comply with the restrictions set forth in Section 2 and the confidentiality obligations set forth in this Agreement. Customer is responsible for ensuring that each User is informed of and agrees to any end user terms required to utilize the Service.
  4. RESTRICTIONS ON USE.  Customer’s access and use of the Services is limited to Customer’s internal business use only. Customer is strictly prohibited from and shall advises Users they are prohibited from:  (a) copying, reproducing, selling, reselling, licensing, pledging, transferring, renting, leasing, distributing, publishing or disseminating all or any portion of the Services, in whole or in part; (b) using the Services for unlawful purposes or in a manner that violates any law or regulation; (c) committing fraud or falsifying information in connection with use of the Service; (d) making the Services available to anyone other than Customer or its authorized Users; (e) making the Services available to any third party for compensation or otherwise; (f) reverse engineering, disassembling, decompiling, reconfiguring, manipulating, adapting, discovering or attempting to discover the source code, object code or underlying structure or algorithms of the Services or any software, documentation or data related to or provided with the Services; (g) building a competitive product or service, including, without limitation, a product or service using similar ideas, features, or functions; (h) introducing any ransomware, virus or any mechanism into the Services that allows remote or unauthorized access, copy prevention, deletion, disabling, modification, corruption, or anything similar, to the Service; (i) modifying or creating derivative works based upon the Service; or (j) obscuring, removing, or altering any proprietary or intellectual property markings, designations, or notices in or on the Services or the documentation.
  5. CUSTOMER RESPONSIBILITIES. Customer will only use the Services as expressly permitted by this Agreement.  Customer and its Users will comply with all applicable laws, rules and regulations when using the Service.  Customer is responsible for all access to and use of the Services by Users and any other use of Customer’s account or log-in credentials.  Customer is responsible for maintaining the confidentiality and security of all usernames, passwords, and other log-in credentials used to access or use the Services.  If Customer becomes aware of or suspects any misuse or unauthorized use of log-in credentials or other unauthorized access to or use of the Services, Customer shall promptly notify ResiDesk via email at support@theresidesk.com. With respect to ResiDesk Insights only, Customer shall collaborate in good faith with ResiDesk to establish and maintain a connection between Customer’s PMS and ResiDesk’s Services via the API, or upon mutual agreement ResiDesk and Customer, to send ResiDesk such reports as are necessary for ResiDesk to provide the ResiDesk Insights service. No delay on the party of Customer in establishing such connection shall excuse Customer from payment of Fees.
  6. PAYMENT OF FEES 
  7. Fees and Taxes.  Customer will pay ResiDesk the fees described in the Order Form for all applicable Services in accordance with the terms therein (the “Subscription Fees”), as well as any fees for message overages as set forth in the Order Form (“Message Overage Fees” and together with the Subscription Fees, the “Fees”).  All Fees due for the Services are due monthly in arrears. After each month of Services, ResiDesk will send Customer an invoice for Subscription Fees based on the highest number of tenant dwelling units (“Units”) on the Services during that month, as well as any Message Overage Fees incurred that month.
  8. Payment Methods. Unless Customer and ResiDesk agree otherwise in writing, Customer hereby authorizes ResiDesk to debit Customer’s designated debit, credit, or checking account for all Fees due under this Agreement each month. Customer shall be responsible for all transaction fees imposed by third parties for payment processing. Full payment for invoices issued in any given month must be received by ResiDesk thirty (30) days after the date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
  9. ResiDesk reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Services Term or thencurrent renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that ResiDesk has billed Customer incorrectly, Customer must contact ResiDesk no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to support@theresidesk.com. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on ResiDesk’s net income.  
      1. TERM AND TERMINATION; SUSPENSION
    1. Subject to earlier termination as provided below, this Agreement is for the Initial Services Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Services Term (collectively, the “Term”), unless either party requests cancellation at least thirty (30) days prior to the end of the then-current Term, or the Term is otherwise terminated as provided herein. [Customer may terminate this Agreement or an associated Order Form upon thirty (30) days’ written notice for any reason or no reason]. Customer will not receive any refund of Fees in the event of a termination under this Section 5.  In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach.   Customer will pay in full for the Services up to and including the last day on which the Services are provided. A party may immediately terminate this Agreement or any Order Form hereunder for cause if the other party becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property. 
    2. Suspension of Service.  ResiDesk may suspend Customer’s account and access to or use of the Services, in whole or in part, immediately without prior notice to Customer, if ResiDesk determines that: (i) suspension is necessary to prevent unauthorized access to the Service; (ii) Customer or its Users fail to abide by any terms of this Agreement; (ii) Customer’s or its Users’ use of the Services (a) poses a security risk to the Services or any third party, (b) may adversely impact the Services or the systems of ResiDesk or any third party, (c) may subject ResiDesk or any third party to liability, or (d) may be prohibited by applicable laws; or (iii) for nonpayment of fees upon prior written notice of such nonpayment. During any such suspension, Customer will continue to be responsible for all Fees. ResiDesk will promptly restore access to the Services upon a cure of any action which leads to a suspension.
    3. Effect of Termination. Upon expiration or termination of this Agreement: (i) Customer’s right to use the Services will terminate and Customer and its Users may no longer access or use the Services and (ii) Customer will be obligated to pay immediately any Fees outstanding under this Agreement.  Upon any termination, ResiDesk will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter ResiDesk may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 
  10. CONFIDENTIALITY; PROPRIETARY RIGHTS.
    1. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party).  Confidential Information of ResiDesk includes non-public information regarding features, functionality and performance of the Services.  Non-public data provided by Customer to ResiDesk to enable the provision of the Services (“Customer Data”), including without limitation information about Customer’s tenants and maintenance operations, shall be considered Confidential Information. The Receiving Party agrees: (i) to treat the Confidential Information with at least the degree of care and protection with which it treats its own proprietary and confidential information of like nature, but in any event with no less than reasonable care and protection, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.  Notwithstanding the foregoing, Personal Information (defined below) shall be considered Confidential Information.
    2. Services.  ResiDesk offers access to its Services on a subscription basis.  ResiDesk is and will remain the sole and exclusive owner of all rights, title, and interest in and to the Services, including all software and documentation related to the Services, all related Intellectual Property Rights and all modifications, enhancements, improvements, and derivative works.  For purposes of this Agreement, “Intellectual Property Rights” means, on a worldwide basis, all patents, trademarks, service marks, trade name rights, logos, drawings, inventions, copyrights, mask works, samples, processes, moral rights, rights of publicity, rights of ownership, designs, design rights, trade secrets, specifications, instruction manuals, technology, materials, know how, information, data, goodwill, improvements and writings, and any applications, registrations or common law rights in any of the foregoing.   Customer agrees that ResiDesk shall have the right to use any comments, questions, suggestions, requests for improvements, ideas, or similar information (“Feedback”) provided by Customer or its Users with regard to the Services and may use and incorporate Feedback into the Service. ResiDesk’s incorporation of any Feedback does not grant Customer any ownership or intellectual property rights to ResiDesk’s any resides service offering or product.
    3. Customer Data.  Customer and/or its Users may submit certain data, content, materials and information to ResiDesk when using the Services (“Customer Data”). Customer Data may include certain information which can be used alone or in combination to identify, contact or locate a natural person or is the subject of any applicable data privacy or security or consumer protection laws, rules or regulations (“Personal Information”).  Customer Data will remain the sole and exclusive property of Customer. Customer grants to ResiDesk and its affiliates, as well as their employees and agents, a non-exclusive, worldwide, non-transferable license to host, copy, use, transmit, and display Customer Data as necessary for ResiDesk to provide the Services, to ensure proper operation of the Services, to improve the Services, and to comply with ResiDesk’s obligations under this Agreement. Customer shall be and is solely responsible for ensuring the accuracy, quality and legality of the Customer Data, and complying with any legal obligations related to the acquisition or transfer of Customer Data.  Customer will obtain all third party licenses, consents and permissions needed for ResiDesk to use the Customer Data. ResiDesk may use Customer Data to which ResiDesk has access (i) to perform its obligations and exercise its rights under this Agreement, (ii) in accordance with ResiDesk’s privacy policy, and (iii) as may be required by law.
    4. Usage Data.  Customer grants to ResiDesk and its affiliates, as well as their employees and agents, a non-exclusive, worldwide, fully paid up, royalty-free, sublicensable, transferable, perpetual and irrevocable license to anonymize and/or aggregate the Customer Data and use such anonymized and/or aggregated data (“Usage Data”) for ResiDesk’s business purposes, including but not limited to training its machine learning models and tools. ResiDesk shall own all right, title and interest in the Usage Data, provided that at no time will ResiDesk re-identify the Customer Data.  Usage Data will not include Personal Information, nor personally identifiable information or Customer Data unique to Customer.  Usage Data shall not be considered Confidential Information of Customer. 
  11. REPRESENTATIONS AND WARRANTIES. 
    1. Mutual Representations.  Each party represents to the other that: (i) it is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the power and authority to enter into and perform its obligations under this Agreement; (ii) the person executing and delivering this Agreement on behalf of such party is duly authorized to make such execution and delivery; (iii) this Agreement constitutes a valid obligation, binding upon and enforceable against each such party in accordance with its terms; and (iv) execution and delivery of this Agreement and the performance of each such party’s obligations do not breach any contract between such party and any third party.
    2. ResiDesk Representations and Warranties. ResiDesk shall use reasonable efforts consistent with prevailing industry standards to operate the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ResiDesk or by third-party providers, or because of other causes beyond ResiDesk’s reasonable control, but ResiDesk shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  
    1. Customer Representations and Warranties.  Customer represents and warrants that Customer has the full ability and legal right to provide Customer Feedback and Customer Data (including any Personal Information) to ResiDesk as contemplated by this Agreement.
    2. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, INCLUDING ANY ORDER FORM, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.  RESIDESK DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE.
    3. Disclaimer of Indirect Damages. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 OF THIS AGREEMENT, AND THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 6 OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.  IN NO EVENT WILL RESIDESK BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
    4. Limitations on Liability. RESIDESK’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY RESIDESK UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION ON LIABILITY WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS. 
  12. INDEMNIFICATION.
    1. ResiDesk Indemnity. ResiDesk will indemnify, defend and hold Customer, its directors, officers, employees and representatives (each a “Customer Indemnified Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, (collectively, “Losses”), arising out of any third party claim alleging that ResiDesk has breached any of its representations or warranties in Section 7 or that the Services infringe any U.S. patent, copyright, trademark or trade secret.
    2. Exclusions. Section 8(a) will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services by any Customer or any User in a manner outside the scope of any right granted or in breach of this Agreement, (b) 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 (c) the Customer Data.
    3. Customer Indemnity. Customer will indemnify, defend and hold harmless ResiDesk, its directors, officers, employees and representatives (each a “ResiDesk Indemnified Party”), from and against any and all Losses arising out of any third party claim (a) alleging a Customer breach of any Customer representation or warranty in Section 7, (b) arising out of any Customer indemnity obligation, or (c) arising out of or relating to any failure of Customer to comply with applicable laws, rules and regulations, including but not limited to those regulating housing discrimination. 
    4. Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense, and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
  13. Infringement.  If any Services are, or in ResiDesk’s opinion, are likely to become the subject of any infringement-related claim, then ResiDesk will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Services; (b) replace or modify the infringing technology or material so that the Services become non-infringing and remain materially functionally equivalent; or (c) terminate the Order Form(s) pursuant to which the Services are provided and give Customer a refund for any pre-paid but unused fees. THE PROVISIONS OF THIS SECTION 9 STATE RESIDESK’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
  14. GENERAL PROVISIONS.
    1. Applicable Law and Jurisdiction.  This Agreement shall be governed by and construed in all respects in accordance with the laws of the State of New York, without reference to its conflict of laws principles.  All disputes arising under or relating to this Agreement shall be resolved exclusively in the federal and state courts located in New York City, New York, and the parties waive any defense of lack of personal jurisdiction in any actions so brought, and waive all rights to bring or maintain an action in, or seek any change to, any other jurisdiction or venue.
    2. Use of Marks.  Customer shall not use ResiDesk’s names, logos, trademarks, tradenames or the like without ResiDesk’s express prior written consent.  ResiDesk may refer to Customer as user of ResiDesk’s services in any customer list, advertisement, press release, or other marketing materials.
    3. Assignment.  Neither party shall assign, in whole or in part, this Agreement or any rights or obligations hereunder to any other party, without the advanced written consent of an authorized representative of the other party, which consent shall not be unreasonably withheld conditioned or delayed.  Any such assignment without such advanced written consent is void.  Notwithstanding the foregoing, either party may assign the Agreement or any of its rights, benefits, warranties or obligations hereunder, in whole or in part, without the prior written consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. 
    4. Delay and Waiver.  Neither party’s delay in exercising or failure to exercise any of its respective rights hereunder, nor such party’s acquiescence in or waiver of a breach of any term, provision or condition of this Agreement, shall be deemed or construed to operate as a waiver of such party’s rights hereunder, except for the specific instance of delay, failure, acquiescence or waiver.
    5. Force Majeure.  ResiDesk will not be liable for any failure or delay in performing any obligations under this Agreement due to circumstances beyond its reasonable control that prevent it from performing its obligations, including without limitation, acts of God, actions of government, fires, floods, earthquakes, other acts of nature, strikes or other labor disputes, civil disturbances, terrorist threats or acts, explosions, national emergencies, and power, communications, satellite, and network outages or failures.
    6. Relationship of Parties.  This Agreement shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the parties; nor will either party hold itself out as an agent, partner, or joint venture party of the other party.  Both parties shall be, and shall act as, independent contractors.  Neither party shall have authority to create any obligation or make any commitments on the other party’s behalf.
    7. Entire Agreement.  This Agreement, including any Order Forms, constitutes the entire agreement between the parties with regard to Customer’s use of the Services and supersedes all prior or contemporaneous negotiations, discussions, understandings or agreements between the parties. Neither party has relied upon any such prior or contemporaneous communications.  The parties agree that any amendment to this Agreement must be in writing and signed by the authorized representatives of both parties. The parties agree that any term or condition stated in any Customer documentation is void.  
    8. Severability.  In the event a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and if the foregoing is not possible, such provision shall be severed from the Agreement.  All remaining provisions shall continue in full force and effect.
    9. Notice.  Except as otherwise set forth in this Agreement, all notices or communications related to this Agreement are to be sent in writing (i) by email transmission (with confirmation of receipt); or (ii) by overnight mail courier service. Any notice sent by electronic transmission shall be deemed delivered upon the date of successful transmission. Any notice sent by overnight delivery will be deemed delivered upon receipt. If the notice is sent on a weekend or holiday, the notice will be deemed received on the following business date. All notices to under this Agreement must be in writing and sent to the contact person(s) specified in the attached Order Form.