Version: February 9, 2021
IMPORTANT – PLEASE READ CAREFULLY. THIS COMMERCIALCAFE AGREEMENT FOR PROPERTY OWNERS AND MANAGERS, ALONG WITH ANY OTHER TERMS THAT MAY BE POSTED ON COMMERCIALCAFE WITH RESPECT TO A PARTICULAR COMMERCIALCAFE SERVICE AND/OR ANY SEPARATE WRITTEN AGREEMENT OR CONTRACT PROVIDING OTHER TERMS AND CONDITIONS THAT INCORPORATE THIS AGREEMENT BY REFERENCE (“AGREEMENT”), STATES THE TERMS AND CONDITIONS UNDER WHICH YOU, THE PROPERTY OWNER OR MANAGER (“Client” or “you”), MAY USE THE COMMERCIALCAFE PLATFORM INCLUDING THE COMMERCIALCAFE WEBSITE, SERVICES (AS DEFINED BELOW) AND ANY OF ITS DOWNLOADABLE MOBILE APPLICATIONS (“COMMERCIALCAFE”). READ THIS AGREEMENT CAREFULLY AND COMPLETELY AS IT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR USE OF COMMERCIALCAFE. IF YOU DO NOT AGREE TO BE BOUND BY THE LATEST VERSION OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, WHICH WILL BE UDPATED FROM TIME TO TIME, YOU MAY NOT USE COMMERCIALCAFE.
Yardi Systems, Inc. (collectively, with its subsidiaries and affiliates, “Yardi,” “we,” or “us”) provides CommercialCafe to you conditioned upon your acceptance, without modification, of the terms, conditions and notices contained in this Agreement. CommercialCafe is owned and operated by Yardi. Since 1982, Yardi has been dedicated to the design, development, and support of property management software. Throughout the Agreement, all references to “CommercialCafe” shall include any websites of affiliates and subsidiaries of Yardi Systems, Inc. that are involved with the provision of the services through and/or the operation of CommercialCafe.
CommercialCafe is a technology platform that facilitates the development and delivery of innovative commercial tenant-related services including, without limitation, property marketing, availability, and self-service advertising (the “Services”). CommercialCafe allows prospects and commercial tenants (of properties utilizing CommercialCafe) (“Tenants”) to take advantage of a range of services designed to make their relationship with you as pleasant as possible.
1. YARDI IS NOT A PARTY TO RENTAL TRANSACTIONS.
1.1 CommercialCafe serves as a platform for you to advertise rental listings and for Tenants and Clients to engage in activities and transactions pertaining to the rental of such properties. Yardi does not own or manage any properties listed on CommercialCafe, does not act as an agent or broker on behalf of Client in connection any properties listed on CommercialCafe, and does not enter into rental contracts for those properties. Although Yardi may provide the Services and CommercialCafe to enable Tenants and Clients to enter into communications and leases for specific properties, Yardi is not involved in any way in the transactions between Tenants and Client other than facilitating such communications and providing a means for digital signature execution of leases by Tenants and Client, and except for transactions for services expressly entered into between Yardi and Tenants. As a result, Client and Yardi agree that Yardi will not be liable under any circumstances for contracts entered into between Tenants and Client or any other interactions between Tenants and Client.
1.2 Yardi encourages all users of CommercialCafe, including Tenants and Clients to engage in responsible use of CommercialCafe and to exercise sound judgment when entering into property rental transactions. However, in the event that you have a dispute with a Tenant or another property owner, property manager or advertiser, or commercial broker on CommercialCafe , you release Yardi from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
2. RELATIONSHIP TO OTHER YARDI SERVICES AND SOFTWARE. Any services or software provided to Client by Yardi, whether or not the services or software can be accessed through, interface with, or otherwise provide access to CommercialCafe, are governed by the terms and conditions of agreements between Client and Yardi specific to those services or software (“Yardi Separate Agreement”) and not by this Agreement. To the extent any provisions of this Agreement conflict with any provisions of a Yardi Separate Agreement, then such provisions of the Yardi Separate Agreement shall control. This Agreement is not intended to modify or supersede, in any way, a Yardi Separate Agreement unless Yardi and Client expressly agree otherwise in a writing signed by both.
3. ACCESS AND USE OF THE SITE.
3.1 Yardi is providing you with the information and functionality of CommercialCafe (except for the information that is provided by you and by third parties). You are responsible for providing all equipment necessary to establish a connection to the Internet, access to the Internet, and any telephone, wireless or other connection and service fees associated with such access.
3.2 Yardi has the right, but not the obligation, to take any of the following actions without providing any prior notice to you: (i) change or terminate all or any part of CommercialCafe; (ii) restrict or terminate your access to all or any part of CommercialCafe; or (iii) refuse, move, or remove any content that is available on the Site and any material that you submit to the Site.
3.3 Subject to your compliance with this Agreement, Yardi hereby grants you permission to access and use CommercialCafe, provided that you shall not (and shall not allow any third party to): (i) engage in commercial use of CommercialCafe or any content on CommercialCafe not provided by you, except for the purpose of engaging in rental-related activities with Tenants; (ii) reproduce, copy, display, store, perform, re-post, publish, transmit, distribute, sell, offer for sale, license, modify, create derivative works, or otherwise use any portion of the content offered on CommercialCafe for other than your own use; (iii) remove any copyright, trademark or other proprietary rights notices contained in or on CommercialCafe or in or on any content or other material obtained via CommercialCafe; (iv) use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of CommercialCafe, including, but not limited to, for purposes of constructing or populating a searchable database of business or property reviews; (v) collect or harvest any information about other users or members (including usernames and/or email addresses) for any purpose; (vi) reformat or frame any portion of the web pages that are part of CommercialCafe; (vii) create accounts by automated means or under false, misleading or fraudulent pretenses; (viii) create or transmit unwanted electronic communications such as “spam” to other users or members of CommercialCafe or otherwise interfere with other users’ or members’ enjoyment of CommercialCafe; (ix) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; (x) use CommercialCafe to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material, including any material that may be deemed threatening or obscene; (xi) copy or modify the HTML code used to generate web pages on CommercialCafe; (xii) use any device, software or procedure that interferes with the proper working of CommercialCafe, or otherwise attempt to interfere with the proper working of CommercialCafe; (xiii) take any action that imposes, or may impose in Yardi’s sole discretion, an unreasonable or disproportionately large load on our IT infrastructure; (xiv) modify, adapt, translate, or reverse engineer any portion of CommercialCafe except for content provided by you; or (xv) use CommercialCafe, intentionally or unintentionally, to violate any applicable local, state, national or international law or regulation, including, but not limited to, Fair Housing and privacy laws and regulations.
3.4 Services provided on CommercialCafe (further described above) may include a user management function that allows Clients to create user groups, granting the Client users in such user group the right, or permission, to access and use certain Services. Such Services may include, but are not limited to, Services that incur or require the payment of additional Fees. Client expressly understands and agrees that Client shall pay any Fees for Services incurred by Client users’ use of any such Services.
4. SERVICES NOT PROVIDED. You acknowledge and agree that Yardi does not provide the following services through CommercialCafe or as a part of its Services, and bears no responsibility or liability for the following activities, among others:
• Lease transactions, including without limitation, negotiations, offers, agreements, establishing rents or fees, or any related communications (although the Services do facilitate these transactions between Property Managers and Tenants);
• Legal, brokerage or other related professional services or advice;
• Inspection, screening or pre-approval of rental properties;
• Verification, screening or pre-approval of property listings; or
• Evaluation, screening or pre-approval of other advertisers who post listings or other content on CommercialCafe.
In the event that you need or desire such services or need assistance with such services, you are responsible for obtaining them from a third party.
5. ADDITIONAL REQUIREMENTS. Specific Services may be subject to fees (including, for clarity, additional fees not identified or specifically described in the Yardi Separate Agreement), additional guidelines, technical and non-technical specifications, and other requirements, terms, rules, or policies of Yardi that are not set forth in this Agreement (“Yardi Requirements”). The Yardi Requirements will be posted on CommercialCafe or the applicable screens or page(s) throughout CommercialCafe. All such Yardi Requirements are hereby incorporated by reference into this Agreement. In the event of a conflict between the Yardi Requirements and this Agreement, the terms of the Yardi Requirements shall govern. You may impose your own requirements on Tenants in connection with rent-related transactions and activities, but any such requirements imposed by you are separate from the Yardi Requirements and this Agreement and Yardi shall have no responsibility or obligation for requirements imposed by you on Tenants.
6. USER-CONTRIBUTED CONTENT.
6.1 Yardi has no responsibility or duty to review, approve or pre-screen any content posted on CommercialCafe by any third party (including you), and Yardi is not responsible for such content. Client understands that all property listings, lease agreements, rental terms, personal information, financial information, postings, messages, text, images, photos, files, video, key word data and other advertising content and other information, documents or other materials posted on CommercialCafe or transmitted through or in connection with the Services by Client, Tenants or other advertisers (the “User Content”) are the sole responsibility of Client or any other entity or person from whom such User Content originated.
You represent and warrant that you own or otherwise possess all necessary rights with respect to any User Content you post on CommercialCafe or transmit through or in connection with the Services, including without limitation photographs, images, text, graphics and other materials, and that your User Content does not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or property right of any third party, and that the User Content is not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.
You hereby grant Yardi a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense, to use, reproduce, distribute, create derivative works of and publicly display your User Content and any and all non-personal data provided in conjunction with the rendering of Services through CommercialCafe . The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones.
YARDI DISCLAIMS ANY AND ALL LIABILITY RELATING TO THE USER CONTENT. YARDI DOES NOT GUARANTEE, AND YOU SHALL NOT HOLD YARDI RESPONSIBLE FOR, THE USER CONTENT (INCLUDING THE ACCURACY OR TRUTH OF SUCH USER CONTENT), any services offered by any Client, advertisers or third parties on CommercialCafe, OR THE NATURE, SAFETY, QUALITY, CONDITION, MANAGEMENT OF ANY COMMERCIAL LISTINGS OR PROPERTIES ADVERTISED ON CommercialCafe OR CLIENTS’ OR THIRD PARTIES’ COMPLIANCE WITH ANY LAWS, REGULATIONS OR RULES THAT MAY BE APPLICABLE. CLIENT AGREES THAT CLIENT BEAR SOLE RESPONSIBILITY TO EVALUATE, AND IS SOLELY RESPONSIBLE FOR ALL RISKS ASSOCIATED WITH, THE USE OF ANY USER CONTENT, AND THAT UNDER NO CIRCUMSTANCES WILL YARDI BE LIABLE FOR ANY USER CONTENT OR FOR ANY DAMAGE OR LOSS OF ANY KIND INCURRED AS A RESULT OF THE USE OR POSTING OF ANY USER CONTENT.
6.2 Yardi reserves the right (but does not have the obligation) in its sole discretion to delete or refuse to post any User Content that violates the letter or spirit of any applicable agreements between Yardi and the entity or individual posting or seeking to post the content, or for any other reason, including without limitation if User Content violates any third party intellectual property rights.
7. MODIFICATIONS. Yardi may modify or update this Agreement from time to time, in its sole discretion, and reserves the right at any time and from time to time to modify, suspend or discontinue, temporarily or permanently, CommercialCafe (or any part thereof) or any or all of the Services, or any feature thereof, with or without notice and without liability to you. You agree that Yardi has no responsibility or liability for the failure of CommercialCafe and the deletion of other content maintained or transmitted by CommercialCafe. You further agree that Yardi shall not be liable to you or to any third party for any modification, suspension or discontinuance of CommercialCafe. Modifications to this Agreement, including, but not limited to, any Yardi Requirements, will be posted on the relevant area of CommercialCafe and will be effective immediately upon posting. You can review the most current version of this Agreement at any time by accessing this Agreement on CommercialCafe. You agree to review this Agreement from time to time to ensure you are updated as to any modifications. By continuing to use CommercialCafe or Services following any such modification, you accept and agree to be bound by such modifications. IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE AND EXCLUSIVE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF COMMERCIALCAFE.
8. ACCOUNT REGISTRATION AND USE. In order to use the Client features of CommercialCafe, you will have to register and create a password-protected account (“Your Account”) and/or submit information, content, photos, data or other material (“Information” or “Material”).
8.1 Your Account. You agree to: (i) provide true, accurate, current, and complete information as prompted by the registration form; and (ii) maintain and update such information to keep it true, accurate, current, and complete at all times. Yardi reserves the right to delete Your Account and refuse any and all current or future use of CommercialCafe (or any portion thereof) without notice if you are found to have misrepresented any information submitted in connection with Your Account or if Yardi has reasonable grounds to suspect that such information is untrue, inaccurate, incomplete, infringing intellectual property, or not current. You are responsible for maintaining the confidentiality of your password, your email address and Your Account, and are fully responsible for all activities that occur under your password and Your Account. You agree to: (i) immediately notify Yardi of any unauthorized use of your password or account, or any other breach of security, (ii) immediately change your password if you become aware that Your Account has been compromised, (iii) ensure that you fully exit from Your Account at the end of each session. You agree and acknowledge that you will not allow others to utilize Your Account and that you will not disclose your CommercialCafe password to anyone. You will be solely responsible for safeguarding your password and also for any actions under your password and Account, whether authorized by you or not. If you lose control of your password, you may lose substantial control of your information and could potentially be subject to legally binding actions taken on your behalf. You further agree not to use anyone else’s password on CommercialCafe or attempt to gain access to the CommercialCafe account of any other person. Yardi cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
8.2 User Information and Material. You hereby consent to Yardi’s use and sharing of the Information and Materials you submit in order for Yardi to provide you with Services. In addition, you hereby represent and warrant that your Information and Materials and Yardi’s use thereof pursuant to this Agreement, (i) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any Fair Housing, copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right; (ii) are not fraudulent, misleading, hateful, tortious, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene; (iii) do not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age, or otherwise interfere with another party’s use of CommercialCafe; (iv) do not promote illegal or harmful activities; and (v) are not illegal, unlawful or contrary to the laws or regulations in any state or country where, as applicable, your Information and Materials are created, displayed or accessed.
8.3 Communications. Although Yardi provides a platform through CommercialCafeand a Service through which Tenants may communicate with various third parties such as Client and advertisers, Yardi is not involved in those third-party communications and is not responsible or liable under any circumstances for the content of any communications sent to or from a Tenant through use of CommercialCafe and/or the Services (“Communications”) or for a party’s failure to communicate. The contents of those third-party Communications are determined solely by the third party with which you are corresponding, and not by Yardi. Yardi is only responsible for the content of communications issued directly by Yardi. You acknowledge that you will address any issues or concerns with such third-party Communications by contacting the third party directly, rather than Yardi. Yardi shall not be involved in such issues except where the issue is solely attributable to a malfunction or error occurring on CommercialCafe or in connection with the Services.
8.4 Third Party Interactions and Services Offered On CommercialCafe. During your use of the Services, you may enter into correspondence with, or purchase or sign up to receive goods and/or services from, a third party, or you may participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third party. Yardi and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party, including any termination by such third party of their provision of goods or services to you. Yardi does not endorse any sites on the Internet that are linked through the Service and does not endorse any third party goods or services that are made available to you as a result of your use of the Service. Yardi provides these links to you and facilitates your use of such services only as a matter of convenience, and in no event shall Yardi or its licensors be responsible for any content, products, or other materials on or available from such sites or services. Yardi provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services. Service features that interoperate with the Google AdWords, Microsoft adCenter, Facebook Ads or other third party programs depend on the continuing availability of the Google AdWords, Microsoft adCenter, Facebook Ads or other third party, as the case may be, application programming interface (“API”) and program for use with the Services. If Google Inc. or its affiliates (“Google”), Microsoft, Inc. or its affiliates (“Microsoft”), Facebook, Inc. or its affiliates (“Facebook”), or any other applicable third party ceases to make the Google AdWords API or program, Microsoft adCenter API or program, Facebook Ads API or program, or other third party API or program, as the case may be, available on reasonable terms for the Services, Yardi may cease providing such Service features and you shall have no payment obligations to Yardi with respect to such Service features for periods following such cessation.
8.5 Client Services Offered On CommercialCafe. Some of the services provided by Yardi to Client outside of CommercialCafe through a Yardi Separate Agreement, may have functionality available on CommercialCafe. Notwithstanding the presence of such functionality on CommercialCafe, Client acknowledges and agrees that any such services are governed by the Yardi Separate Agreement and not this Agreement in accord with Section 2 of this Agreement.
8.6 Payments. Except as expressly provided below, any payments submitted through CommercialCafe by Tenants for any service or transaction are for services provided by Client or another party other than Yardi. Yardi is not involved in, is not liable for, and is not a party to those transactions even though (i) Yardi provides a platform through CommercialCafe and a Service through which Tenants may submit payments to you and various third parties and (ii) Yardi may receive a portion of payments made by Tenants through CommercialCafe. The total payment amounts required for those transactions are determined solely by you and the third party with which you are entering into an agreement, and not by Yardi. You acknowledge that you will address any discrepancies, issues or concerns with such payments by contacting the third party directly, rather than Yardi. Yardi shall not be involved in such issues except where the issue is solely attributable to a malfunction or error occurring on CommercialCafe or in connection with the Services. Certain Services relating to Tenants may have a charge associated with them that may be imposed by Yardi or another company, which other company may or may not be a subsidiary or affiliate of Yardi. Yardi or such other company may collect these fees directly from Tenants.
9. OWNERSHIP. You acknowledge and agree that CommercialCafe and Services use and contain content, information and proprietary and confidential technology owned by or licensed to Yardi, and protected by applicable intellectual property and other laws and international treaties (collectively, “Yardi Content”). The Yardi Content displayed on or through CommercialCafe and Services includes, without limitation, information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials is copyrighted by Yardi and its licensors under United States and international copyright laws. All rights reserved. You agree not to reproduce, copy, display, store, perform, re-post, publish, transmit, distribute, sell, offer for sale, license, modify, create derivative works, or otherwise use or exploit for any commercial purposes any or all of the Yardi Content or, except as expressly set forth in this Agreement, CommercialCafe or access to CommercialCafe in any way without the prior written permission of Yardi. All content on CommercialCafe that is not Yardi Content is the property and responsibility of other parties. You must abide by all copyright notices, information, or restrictions contained in or attached to any Yardi Content. CommercialCafe, the CommercialCafe logo, YARDI, and the Yardi logo (the “Yardi Marks”) are trademarks, trade names, or service marks of Yardi. You are not authorized to use or display the Yardi Marks, without the express prior permission of Yardi. Ownership of all Yardi Marks and the goodwill associated therewith remains with Yardi. All other trademarks are the property of their respective owners.
10. INDEMNITY. You agree to indemnify, defend and hold Yardi and its officers, directors, employees, shareholders, successors, agents, affiliates, subsidiaries and relevant third parties including advertisers, distribution partners, referral partners, service providers, licensors, licensees, consultants and contractors (collectively the “Yardi Indemnified Parties”) harmless from and against any claims, liabilities, losses, costs, damages or expenses including reasonable attorneys’ fees and costs, directly or indirectly, arising out of or in any way relating to: (i) your negligence or misconduct (alleged or actual); (ii) your Information or Material contributed to or submitted through CommercialCafe, the Services, or the User Content, including without limitation information associated with Your Account; (iii) your conduct, including your use of CommercialCafe and Services; (iv) your violation (alleged or actual) of any laws or regulations of any state or country, including without limitation, privacy or Fair Housing laws; (v) your connection to CommercialCafe; (vi) any violation or breach (alleged or actual) of this Agreement; or (vii) any violation or infringement (alleged or actual) of any intellectual property, privacy, publicity, confidentiality or proprietary rights of any third-party as a result of your use of CommercialCafe or Services (collectively, the “Claims”). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the Yardi Indemnified Parties. Yardi shall have the right, in its sole discretion, to select its own legal counsel to defend Yardi from any Claims (but by doing so shall not excuse your indemnity obligations) and you shall be solely responsible for the payment of all of Yardi’s reasonable attorneys’ fees incurred through appeal in connection therewith. You shall notify Yardi immediately if you become aware of any actual or potential claims, suits, actions, allegations or charges that could affect your or Yardi’s ability to fully perform their respective duties or to exercise its rights under this Agreement. You shall not, without the prior written approval of Yardi, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for Yardi.
11. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
11.1 YOUR USE OF COMMERCIALCAFE AND SERVICES IS AT YOUR SOLE RISK. COMMERCIALCAFE AND SERVICES AND ALL MATERIALS, INFORMATION, PRODUCTS, AND SERVICES INCLUDED THEREIN, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. WITH RESPECT TO COMMERCIALCAFE AND INFORMATION AND MATERIAL IN COMMERCIALCAFE, YARDI AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE.
11.2 YARDI AND ITS LICENSORS MAKE NO WARRANTY: (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS AND PERFORMANCE OF COMMERCIALCAFE OR SERVICES; (II) REGARDING THE SERVICES, ADVICE, INFORMATION OR LINKS OBTAINED THROUGH COMMERCIALCAFE; (III) THAT THE SERVICES (OR ANY THIRD PARTY PRODUCTS OR SERVICES AVAILABLE THROUGH THE SERVICE) OR COMMERCIALCAFE, OR ANY INFORMATION AND MATERIALS THEREIN WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (IV) THAT THE SERVICES OR COMMERCIALCAFE, OR ANY FUNCTIONS CONTAINED IN COMMERCIALCAFE, WILL BE ERROR-FREE, SECURE, TIMELY, OR UNINTERRUPTED OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (V) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF COMMERCIALCAFE OR INFORMATION, DATA AND MATERIALS THEREIN WILL BE ACCURATE, RELIABLE, OR AVAILABLE, (VI) THAT ANY ERRORS IN COMMERCIALCAFE OR INFORMATION OR MATERIALS THEREIN WILL BE CORRECTED, AND (VII) COMMERCIALCAFE AND ITS CONTENTS AND SERVER THAT MAKES COMMERCIALCAFE AVAILABLE ARE FREE OF ANY VIRUSES OR OTHER HARMFUL COMPONENTS.
11.3 ANY MATERIAL, INFORMATION, PRODUCTS OR SERVICES DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF COMMERCIALCAFE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
11.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM YARDI OR FROM YOUR USE OF COMMERCIALCAFE OR SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
12. LIMITATION OF LIABILITY
12.1 YARDI AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, SUCCESSORS, AGENTS, AFFILIATES, SUBSIDIARIES AND RELEVANT THIRD PARTIES INCLUDING ADVERTISERS, DISTRIBUTION PARTNERS, REFERRAL PARTNERS, SERVICE PROVIDERS, LICENSORS, LICENSEES, CONSULTANTS AND CONTRACTORS WILL NOT BE LIABLE FOR:
• ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, YOUR ACCESS AND USE OF OR INABILITY TO ACCESS OR USE THE SITE AND/ OR ANY SERVICE, ANY MATERIALS AVAILABLE TO YOU FROM OR THROUGH COMMERCIALCAFE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT YARDI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
• THE CONTENTS OF ANY COMMUNICATION, MESSAGE, OR INFORMATION POSTED BY YOU OR OTHER THIRD PARTIES;
• THE CONTENT, SERVICES OR INFORMATION PROVIDED BY ANY WEBSITE PURPORTING TO BE OPERATED BY YARDI OR ITS AFFILIATES, BUT NOT ACTUALLY AFFILIATED WITH, CONTROLLED, OWNED, OR OPERATED BY YARDI;
• THE CONTENT OF ANY WEBSITE NOT CONTROLLED, OWNED, OR OPERATED BY YARDI THAT IS ACCESSED FROM OR LINKED TO COMMERCIALCAFE; AND
• ANY DAMAGES OR INJURY CAUSED BY, INCLUDING BUT NOT LIMITED TO, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURE.
12.2 You acknowledge that the limitations set forth above are an essential basis of the bargain and of the allocation of risks between the parties. Some states or jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you. If you are dissatisfied with any portion of CommercialCafe, your sole and exclusive remedy is to discontinue use of CommercialCafe and Services.
13. ENFORCEMENT. Yardi does not assume responsibility to you or others for any failure by Yardi to enforce the provisions contained in this Agreement.
14. TERMINATION. You agree that Yardi, in our sole discretion and with or without notice, may terminate your use of CommercialCafe (or any part thereof) or any or all Services for any reason, including, without limitation, for lack of use or if Yardi believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Yardi may also in its sole discretion and at any time discontinue providing CommercialCafe, or any part thereof, or any or all of the Services with or without notice. You agree that any termination of your access to CommercialCafe under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Yardi may immediately bar any further access to CommercialCafe. Further, you agree that Yardi shall not be liable to you or any third party for any termination of your access to CommercialCafe or the Services.
15. AUTHORITY. You hereby represent and warrant to Yardi that: (i) you have all the requisite power and authority, corporate or otherwise, to enter into the binding contract created by this Agreement, conduct yourself and your business and to execute, deliver, and perform all of your obligations under this Agreement; (ii) you have the right to submit and use your Information and Materials in the manner you have done so to or through CommercialCafe and/or through Your Account; (iii) you have the right to grant the permissions granted under this Agreement; (iv) your performance under this Agreement and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which you are currently bound or will become bound in the future; and (v) your performance under this Agreement will comply with all applicable laws, rules and regulations (including, without limitation, Fair Housing, export control, privacy and obscenity laws), domestic or foreign.
16. Copyright Policy
Reporting Copyright Infringement Claims
Yardi respects the intellectual property of others, and we ask our Clients to do the same. Yardi has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Digital Millennium Copyright Act, 17 U.S.C. Section 512 (“DMCA”).
If a third party believes that its work has been copied in a way that constitutes copyright infringement, or its intellectual property rights have been otherwise violated, it should provide the designated agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (ii) a description of the copyrighted work or other intellectual property that it claims has been infringed; (iii) a description of where the material that it claims is infringing is located on the Yardi Site; (iv) its address, telephone number, and email address; (v) a statement that it has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement made under penalty of perjury, that the above information in your notice is accurate and that it is the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
DMCA Notices should be sent to our designated copyright agent: [email protected] or via mail Attn: DMCA Agent – Legal Department, Yardi Systems, Inc., 430 S. Fairview Avenue, Santa Barbara CA 93117.
16.2 Repeat Infringers
It is Yardi’s policy, in appropriate circumstances, to terminate the accounts of parties who are repeat infringers or are repeatedly charged with infringement.
17.1 Governing Law. This Agreement and the relationship between you and Yardi shall be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of laws analysis. For all legal proceedings arising out of use of CommercialCafe and/or relating to this Agreement, you and Yardi hereby irrevocably and unconditionally submit to the jurisdiction of courts located in the City of Santa Barbara, State of California (or the court of competent jurisdiction closest to the City of Santa Barbara, CA if no court of competent jurisdiction resides in the City of Santa Barbara, CA), and the parties consent to the personal jurisdiction of such courts and expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere. You and Yardi irrevocably waive, to the fullest extent permitted by law, any objection that you/it may now or hereafter have to the laying of the venue of any proceeding brought in any such court or any claim that a legal proceeding commenced in such court has been brought in an inconvenient forum.
17.2 Assignment. You may not assign or transfer this Agreement, in whole or in part, without the prior written consent of Yardi, which may be granted or withheld by Yardi in its sole discretion. Any attempted assignment in violation of this Section will be null and void and of no force or effect. Yardi may assign this Agreement freely at any time without notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
17.3 Waiver. The failure to exercise or enforce any right or provision shall not affect Yardi’s right to exercise or enforce such right or provision at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
17.4 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction not enforceable to its full extent, then such provision shall be enforced to the maximum extent permitted by law. If any provision of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
17.7 Headings. The section headings and sub-headings contained in this Agreement are for convenience only and have no legal or contractual effect.