Version: June 28, 2022
2. License, Restrictions, Access, and KYC
a. Limited License. Yardi licenses the Software for the business of brokerage management, and grants you a non-exclusive, non-transferable (except as expressly permitted), limited license to access and use the Software subject to your acceptance of the latest TOU version.
b. Limited License Restrictions. Anyone who develops, writes, sells, licenses, or otherwise offers property management software or services to others is not allowed to license the Software. If at any time you no longer (or choose not to) meet the TOU, you may not license, use or access the Software and any previously granted license is voided. Additionally, the Software and its features, products and services cannot be licensed or used: to reverse engineer, attempt to discover or decompile source code; to study, examine, or benchmark the software; to scrape, transfer data other than your own data (such as Yardi-compiled Matrix or ILS data) into a searchable or any other database or system; to modify, reproduce, copy, make derivative works from, distribute, publish, or promote service bureau services; to publicly disclose, display, or train others for a fee or other consideration; to use for sales or any other demonstrations; to rent, lease, sell or resell, transfer, sublicense, assign, or time-share the software; to share or disclose your log-in credentials, any Yardi or Yardi-compiled data or information, or the Software, for any reason; or to engage in any illicit activity.
c. Access to the Yardi Cloud. Yardi will use commercially reasonable efforts to keep the Yardi network, including the hardware and software comprising it (the “Yardi Cloud”), up and running 24-hours a day, seven days a week, excluding down-time for maintenance, repairs, and other necessary activities. You are prohibited from willfully, knowingly, maliciously, or negligently doing anything to, directly or indirectly, disrupt, damage, interfere with, or otherwise adversely impact the Yardi Cloud including, but not limited to, introducing, transmitting, or disseminating, actively or passively, any viruses, corrupted files, malware, or any other harmful or malicious data, code, or the like.
d. Yardi’s Know-Your-Client/Customer Identification Program (“KYC” or “CIP”). Basic information about you or your business is collected during the registration process. Depending on the additional features, products and services you license (such as tenant screening and payment processing), you may be required to provide certain additional information about you, your business, an authorized representative of your business, or anyone who own 25% or more of your company (each a “Beneficial Owner”). This information is gathered and validated by the KYC Team in order to comply with applicable Anti-Money Laundering (“AML”) and related policies. Yardi’s compliance with AML and related policies, and your compliance with the KYC process, are required. If the information you provide for KYC cannot be validated, or if you choose for any reason not to provide the information requested, you will be prohibited from licensing and using some features, products and services (such as tenant screening and payment processing).
3. Length of Your License (Term)
Initial Term, Subsequent Term, and Final Term. You have agreed to an Initial Term (and subsequent Terms) of one-year. Your right to access the Software begins when you first pay for and register the Software (the “Effective Date”) and will continue for one year from the Effective Date (the “Initial Term”). If you continue to use the Software beyond the Initial Term, a new one-year term (each, a subsequent “Term”) will automatically begin, and if you continue to use the Software beyond a subsequent Term, another Term will begin. The term in which your license ends is the “Final Term.”
4. Pricing, Minimums, and Billing
This information is in the CommissionTrac agreement signed by You and Yardi.
Yardi reserves the right to audit Client’s database at any time solely to confirm the scope of Client’s use of CommissionTrac™ relative to Client’s contractual license.
5. Right to Terminate and Survival
a. Your Right to Terminate. If you cancel on or before the 30th day of your Initial Term (the “Trial Period”), you will not be charged for your use of the Software, but you will still be responsible for any charges you may have incurred for additional services. If you elect to terminate your license after the Trial Period but before the end of your Initial or any subsequent Term, you will continue to have access to the Software and be responsible for all fees and charges through the end of your Final Term.
AT THE END OF YOUR FINAL TERM, YOUR ACCESS TO THE SOFTWARE WILL END AND FOR SAFETY AND SECURITY REASONS ALL OF THE PROPERTY MANAGEMENT AND OTHER DATA RELATED TO YOUR USE OF THE SOFTWARE WILL BE PERMANENTLY DELETED. IF YOU WISH TO SAVE ANY DATA, YOU MUST DO SO BEFORE THE END OF THE FINAL TERM.
To terminate your license, you must contact a Yardi representative by calling (800) 866-1144 or by sending a written termination notice to:
430 S. Fairview Avenue
Santa Barbara CA 93117
b. Yardi’s Right to Terminate. Terminations by Yardi are extraordinarily rare but may arise if, for example, you: materially violate the TOU; violate or threaten to violate legal or regulatory obligations; use the software for any improper purpose whatsoever; threaten or cause harm to Yardi or a third party; as required by law; and the like, as determined by Yardi in its sole discretion. If your account is terminated under this section, Yardi will make a reasonable effort to notify you in advance but may take any action as required by law or contract, or that is otherwise reasonably appropriate under the circumstances as determined by Yardi in its sole discretion.
c. Failure to Pay. If for any reason Your payment is declined, returned, or otherwise cannot be processed, you will be notified by email at the email address on file for your billing point of contact. If, after You receive such notice, you wish to dispute the status of your account, you MUST do so in writing within 10 days from the date of the notice.
IF YOU DO NOT SUBMIT A WRITTEN DISPUTE, IF YOU AND YARDI ARE UNABLE TO REACH A MUTUALLY AGREEABLE RESOLUTION, OR IF YOUR ACCOUNT IS NOT BROUGHT INTO GOOD STANDING WITHIN 45 CALENDAR DAYS FROM THE DATE OF THE NOTICE, YOUR ACCESS TO YARDI COMMISSIONTRAC WILL TERMINATE AND FOR SAFETY AND SECURITY REASONS ALL PROPERTY MANAGEMENT AND OTHER DATA RELATED TO YOUR USE OF THE SOFTWARE WILL BE PERMANENTLY DELETED. IF YOU WISH TO SAVE ANY DATA, YOU MUST DO SO BEFORE THE END OF THESE 45 CALENDAR DAYS OR BY SUCH OTHER DEADLINE AS AGREED TO BY YARDI IN ITS SOLE DISCRETION.
The address for submitting a written dispute is:
Attn: Legal Department
430 S. Fairview Avenue
Santa Barbara CA 93117
d. Survival. Your obligations under sections 2, 4, and 9 of the TOU, any other obligations you have to protect information that does not belong to you, your obligation to pay as agreed, and any obligation which, by its nature, is reasonably intended to survive; continue post-termination indefinitely even if you stop using the Software or cancel, or are terminated per the TOU.
6. Authorized Users and Passwords
Authorized Users. You agree that you will not allow anyone to log into the Software for any purpose that is inconsistent with or prohibited by the TOU. Only you or the individuals you have expressly authorized to manage properties on your behalf are authorized to access and use the Software, subject to the TOU.
Passwords. Always observe good password security practices, including when using the Software. It is your sole and exclusive responsibility to protect your password. Yardi will make a reasonable effort to work with you to restore a backup of data that is lost or corrupted because your password was compromised or obtained and used by someone without authorization, but Yardi shall not be liable to you or anyone for any data loss, corruption, password issues, or the like.
7. Data Ownership, Data Protection and Limitation of Liability
a. Data Ownership. Data related to any properties you own or manage and that you have entered into the Software is hosted in the Yardi Cloudat no additional cost to you, but this data does not belong to Yardi. Subject to the TOU, you may copy, delete, and export this data at any time using the standard reports available with the Software. YOU WARRANT, ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE AND EXCLUSIVE RESPONSIBILITY TO PRESERVE ANY DATA THAT IS IMPORTANT TO YOU, OR THAT YOU HAVE A LEGAL OBLIGATION TO PRESERVE, INCLUDING IN CONNECTION WITH A SUBPOENA OR ANY OTHER LEGAL PROCEEDING; AND THAT YOU SHALL INDEMNIFY AND HOLD YARDI HARMLESS FOR THE DELETION OF ANY DATA BY YOU OR YARDI, AS PERMITTED BY THE TOU, EVEN IF YOU WERE UNDER AN OBLIGATION TO PRESERVE IT.
b. Data Protection. Yardi takes the protection of highly sensitive tenant data in the Yardi Cloud seriously and uses firewalls and other commercially reasonable technology generally used in the industry to prevent unauthorized third-party access to and the inadvertent loss of such hosted data. Yardi uses commercially reasonable encryption technology generally used in the industry to protect highly sensitive tenant data that is being transmitted, or that is stored in the Yardi Cloud.
c. LIMITATION OF LIABILITY. NOTWITHSTANDING THE FOREGOING, YARDI SHALL NOT BE LIABLE TO YOU IF: (I) ITS USE OF FIREWALLS AND OTHER TECHNOLOGY FAILS TO PREVENT UNAUTHORIZED THIRD-PARTY ACCESS TO ANY DATA HOSTED IN THE YARDI CLOUD; OR (II) ITS USE OF ENCRYPTION TECHNOLOGY FAILS TO PREVENT UNAUTHORIZED THIRD PARTIES FROM ACCESSING ANY DATA DURING TRANSMISSION, OR THAT IS STORED IN THE YARDI CLOUD. NOTHING IN THE TOU SHALL CONSTITUTE A REPRESENTATION, GUARANTEE, OR WARRANTY BY YARDI THAT HOSTED DATA SHALL BE INACCESSIBLE TO UNAUTHORIZED THIRD PARTIES.
8. Confidentiality, Exceptions, Disclosure Obligations, and Returning Confidential Information
a. Protecting Confidential Information. Confidential Information means the property and tenant data that you manage using the Software, and all Yardi data including but not limited to all data and information that is patented, copyrighted, constitutes a trade secret, or any other information of any kind that belongs to Yardi. You and Yardi agree not to disclose the other’s Confidential Information to any unauthorized third party, except as described below or as expressly permitted by the TOU. Your Confidential Information is and shall always remain yours, and Yardi’s Confidential Information is and shall at times remain Yardi’s, and except for the license expressly granted in the TOU, there is no other right, license or right granted, express or implied, to use or disclose the Confidential Information of one party by the other party.
b. Protection Exceptions. Your and Yardi’s obligation to protect the other’s Confidential Information does not apply if the information: (1) is by definition not confidential; (2) is no longer confidential (through no fault of the party that would like to disclose it); (3) was obtained by or already in the possession of the party that wants to disclose it, provided it was obtained properly and without violating the TOU, Agreement, or any prior existing obligation to keep it confidential; or (4) was independently developed (without having used, referred to, or relied on the other party’s Confidential Information) by the party that wants to disclose it.
c. Yardi’s Obligation to Disclose. From time to time, Yardi may receive a legal request from a third party in the form of a subpoena, search warrant, or other legal process (a “Disclosure Demand”) that requires Yardi to disclose certain Confidential Information that belongs to you and that is in Yardi Cloud. When this happens, Yardi will notify you that it has received the Disclosure Demand (unless Yardi is legally prohibited from doing so, such as due to a grand jury proceeding or sealed search warrant, for examples). If you receive a Disclosure Demand notice from Yardi, You can either: (1) take no action; or (2) take steps, at Your own expense, to prevent Yardi from complying with the Disclosure Demand. TAKING STEPS TO PREVENT YARDI FROM COMPLYING WITH A DISCLOSURE DEMAND WILL LIKELY REQUIRE YOU TO TAKE PROMPT, APPROPRIATE LEGAL ACTION, WHICH YARDI CANNOT AND SHALL NOT PROVIDE. If you take no action, or if the action you take is untimely or unsuccessful, Yardi will comply with the Disclosure Demand as required.
d. Returning Confidential Information. As noted elsewhere in the TOU, it is your sole responsibility to copy and retain any data related to any properties you own or manage that you have entered into the Software and that does not belong to Yardi. Yardi may permanently delete such data as set forth in the TOU, but Yardi will not deliver this data to you. Upon termination or the end of Your Final Term, you have five business days to return to Yardi any Yardi Confidential Information you may have in your possession, custody or control, if any, in any form.
9. LIMITED WARRANTY, DISCLAIMERS, WAIVERS, REMEDIES, AND LIABILITY LIMITATIONS
a. Limited Software Warranty and Your Remedies for Breach. Yardi warrants that the Software does not infringe on or misappropriate any third-party proprietary information, trademark, copyright, patent rights, intellectual property rights, or trade secrets. Any damages for a breach of this Limited Software Warranty by Yardi are strictly limited by the TOU AND AGREEMENT. IF YARDI BREACHES THIS LIMITED SOFTWARE WARRANTY TO YOU, YARDI AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO MODIFY THE LICENSED PROGRAMS SO THEY CONFORM TO THIS WARRANTY. YARDI WILL NOTIFY YOU IF IT IS NOT COMMERCIALLY REASONABLE FOR IT TO MAKE SUCH MODIFICATIONS, WILL IMMEDIATELY TERMINATE YOUR RIGHT TO ACCESS AND USE THE SOFTWARE WITHOUT ANY PAYMENT PENALTY, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY. IF UNDER THIS WARRANTY YOU DO NOT ACCEPT YARDI’S MODIFICATIONS, YOU MUST NOTIFY YARDI IN WRITING WITHIN 30 CALENDAR DAYS AND AT THE CONCLUSION OF THESE 30 DAYS YOUR RIGHT TO ACCESS AND USE THE SOFTWARE WILL TERMINATE WITHOUT ANY PAYMENT PENALTY, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.
b. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THE ‘LIMITED SOFTWARE WARRANTY,’ YARDI DISCLAIMS TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH REGARD TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL MEET YOUR SPECIFIC SOFTWARE, TECHNICAL, PROPERTY MANAGEMENT, OR ANY OTHER REQUIREMENTS OR EXPECTATIONS.
c. INTERNET PERFORMANCE DISCLAIMER. YARDI DOES NOT AND CANNOT CONTROL THE FLOW OF DATA VIA THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES OBTAINED BY YOU AND PROVIDED OR CONTROLLED BY THIRD PARTIES OVER WHICH YARDI HAS NO CONTROL. AT TIMES, ACTIONS OR INACTIONS OF YOU AND SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT INTERNET PERFORMANCE. YARDI WILL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY AND AVOID SUCH EVENTS OVER WHICH IT HAS EXCLUSIVE CONTROL BUT CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR DESPITE YARDI’S BEST EFFORTS. ACCORDINGLY, YARDI DISCLAIMS ANY LIABILITY RESULTING FROM OR RELATING TO INTERNET PERFORMANCE.
d. DAMAGES WAIVER. NOTWITHSTANDING ANY OTHER TERMS, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YARDI DISCLAIMS ALL OBLIGATIONS AND LIABILITIES FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, ATTORNEYS’ FEES, EXPERTS’ FEES, AND COURT COSTS (EVEN IF YARDI HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING FROM OR IN CONNECTION WITH YOUR LICENSE AND USE OF THE SOFTWARE, ANY ADDITIONAL FEATURES, PRODUCTS OR SERVICES, AND THE TOU AND AGREEMENT.
e. OTHER LIABILITY LIMITATIONS AND YOUR REMEDIES. IN ADDITION TO (AND NOT IN PLACE OF) ALL OTHER LIMITATIONS SET FORTH IN THE TOU AND AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AGREE THAT YARDI SHALL HAVE NO LIABILITY WHATSOEVER FOR CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH YOUR LICENSE AND USE OF THE SOFTWARE AND ANY ADDITIONAL FEATURES, PRODUCTS OR SERVICES, EXCEPT WHERE SUCH CLAIMS OR CAUSES OF ACTION WERE CAUSED SOLELY BY YARDI AND WERE DUE TO YARDI’S WILLFUL MISCONDUCT, AND IN SUCH AN EVENT YARDI’S MAXIMUM LIABILITY TO YOU, REGARDLESS OF THE AMOUNT OF LOSS YOU MAY CLAIM OR HAVE SUFFERED, SHALL BE LIMITED TO A REFUND OF THE FEES YOU ACTUALLY PAID TO YARDI IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE DATE YOU FIRST NOTIFY YARDI OF YOUR CLAIM OR CAUSE OF ACTION, AND THIS REFUND IS YOUR SOLE AND EXCLUSIVE REMEDY UNDER THE TOU.
10. Disputes. In the event of a dispute arising out of or related to the TOU or your use of the Software, you and Yardi will use commercially reasonable efforts, in good faith, to informally resolve the dispute. These efforts shall be confidential and protected under applicable law as compromise and settlement negotiations. If after 30 calendar days of good faith negotiations the parties are unable to reach a mutually satisfactory resolution, either party may pursue its rights and remedies under applicable law.
11. Assignment. The TOU and your access to the Software cannot be assigned by you for any reason without the prior, express, written consent of Yardi, which Yardi may withhold in its sole discretion for any reason. Any attempted or purported assignment without the prior, express, written consent of Yardi is void. The TOU are binding on and inure to the benefit of both you and Yardi and our respective, authorized assigns, successors, and legal representatives.
12. Governing Law and Venue. The TOU are governed and determined by the laws of the State of California, without any regard to conflicts of laws rules or regulations. Any action or proceeding related to or arising out of the TOU shall be resolved only in a court of competent jurisdiction in the City of Santa Barbara, California (or, if there is no court of competent jurisdiction in the City of Santa Barbara, California, then the court of competent jurisdiction closest to the City of Santa Barbara, California), and you and Yardi expressly consent to the personal jurisdiction of such courts and waive any right to cause any action or proceeding to be brought or tried elsewhere.
13. Waiver. If you or Yardi waive any breach of the TOU by the other party, that waiver shall not be construed as a waiver of any subsequent breach of the same or similar nature, or any other breach of any kind.
14. Severability. If a court or other body of competent jurisdiction determines that any part of the TOU is unenforceable, you and Yardi expressly acknowledge and agree that all other parts of the TOU unaffected by that determination shall remain valid and enforceable.
15. Data Use. Yardi may aggregate, compile, and use any data in the Software to create, offer, improve, develop, or enhance the Software and any other Yardi products, features, or services. By aggregating any such data, Yardi will not preserve it in a form that can be traced back to you or any tenants residing in any property you own or manage.
16. Entire Agreement. The TOU constitute the final, complete, and exclusive agreement between you and Yardi pertaining to the subject matter in the TOU, and expressly replace and supersede other prior understandings or agreements, if any, and in any form. You and Yardi also acknowledge and agree that neither has been induced to enter into the TOU by or because of any representations, warranties, or otherwise that are not set forth in the TOU, as may be modified from time to time.
18. Data Processing Addendum. You have read, understood, and agree to be bound by the additional terms and conditions in the latest version of the Data Processing Addendum (DPA) posted at https://resources.Yardi.com/legal/data-processing-addendum/ (which will be updated from time to time and is incorporated here), and allows You to use Yardi’s privacy and data compliance tools.