Version: January 29, 2025
1. Thank you for installing Smart Technology Equipment (referred to below as the “Equipment”) and licensing Yardi® RentCafe Home IQ Software (referred to below as the “Software”), which is used in connection with the Yardi RentCafe Home IQ Hubs (referred to below as the “Hubs”) and any other compatible third-party smart home devices, including but not limited to the Equipment installed by Yardi. The latest version of these terms together with your signed Yardi RentCafe Home IQ Installation and Licensing Agreement (the “Agreement”) are the Terms of Use (or “TOU”) that apply to you. These Yardi RentCafe Smart Technology Equipment Installation and Home IQ Terms may be updated from time to time. In the event of any material update to or modification of these terms that Client does not accept, Client must immediately stop using the Software and Hubs and notify Yardi in writing within 7 days of Yardi providing notice of such changes. In the absence of such notice, the access to or use of the Software or Hubs by Client shall constitute acceptance of the terms in effect at the time of such access or use.
2. License, Restrictions, Access, and KYC
a. Limited License. Yardi licenses the Software to allow you to provide smart home functionality in applicable units and grants you a non-transferable (except as expressly permitted), limited license to access and use the Software, the Hubs, and the Equipment 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.
b. Hardware Use Grant. Yardi grants you a non-transferable, limited license to access and use the Hubs in accordance with the TOU. You may not rent, lease, sell, transfer (by sublicense, assignment, or otherwise), time share, or modify the Hubs without Yardi’s express, written permission. You must not reverse engineer, decompile, or otherwise attempt to discover the source code for the Hubs, and you must prohibit your tenants from similarly tampering with the Hubs.
c. Access to the Yardi Cloud. Yardi will use commercially reasonable efforts to keep the Yardi network including servers owned, leased and maintained by Yardi (sometimes called 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 whether you license any additional features, products and services, 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).
e. Resident Use of the RentCafe Home IQ Application.
During the term of the Agreement, Yardi will provide eligible residents with access to, and use of, and support for the RentCafe Home IQ Application (the “App”) based on the Equipment at the property. Residents are eligible for that access if they install the App on one or more compliant devices and review and accept all terms of use on the App. Residents that are not eligible to use the App will be able to use the Equipment in its most rudimentary or analog state.
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 purchase 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 (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. Where applicable, licensing fees for the Software will be invoiced to Owner’s agent or property manager.
4. Description of Installation Work
a. Scope of Work. Yardi will furnish all work, labor, tools, equipment, materials, supervision, scheduling, and coordination necessary to install the Smart Technology Equipment in a good and workmanlike manner, in accordance with your Agreement. Yardi will not be responsible for any items specified as Owner’s responsibility or for any items expressly excluded as specified in your Agreement.
b. Location of Work. The Smart Technology Equipment will be installed at the Property listed in the Agreement.
c. Compliance. All work will be performed in compliance with applicable laws and regulations.
5. Pricing, Minimums, and Billing
This information is in the Agreement signed by you and Yardi.
Yardi reserves the right to audit your use of the Software at any time solely to confirm the scope of your use of the Software relative to your contractual license.
6. Information and Services Required of Owner.
a. Property Information. If requested by Yardi, Owner shall furnish all necessary surveys, legal description, and technical Property information as necessary for the installation of Smart Technology Equipment.
b. Reliance on Information. Yardi shall be entitled to rely on the accuracy of information furnished by Owner but shall exercise reasonable precautions relating to the performance of the Work.
c. Fees and Permits. Except for permits and fees that are the responsibility of Yardi, as specified in Schedule A (Payment Schedule), Owner shall secure and pay for all other necessary permits, approvals, easements, assessments and charges required for the installation of Smart Technology Equipment.
d. Equipment. Owner shall be responsible for all theft, loss and damage to equipment, including but not limited to the Smart Technology Equipment that is received or stored on the Property.
e. Dwelling Entry. Yardi strongly recommends that Owner assign an employee to escort Yardi personnel while on the Property’s premises to minimize liability. However, if Owner chooses not to, or is unable to have an employee escort Yardi personnel while on the Property’s premises, Owner releases Yardi from liability for all claims arising from Yardi’s presence being an alleged violation of local and/or state laws/ordinances regarding entry into a unit.
f. Connectivity. Owner shall be responsible for ensuring the data transmission connection that enables the on-Property Smart Technology Equipment to communicate with the Yardi Cloud.
7. Contractor Licensing and Subcontractors
a. Contractor Licensing. Unless otherwise noted in writing, Owner acknowledges that Yardi shall not be required to obtain any contractor’s license or similar approval, or any other license to perform the Work outlined in this Agreement.
b. Subcontractors. Should the Work outlined in this Agreement require a licensed contractor, or any other licensed labor, and such licensing requirements are explicitly noted in in writing, Yardi will subcontract with an appropriately licensed and qualified party to perform the Work or such licensed contractor will enter into a contract directly with Owner. Yardi reserves the right to subcontract any or all of the tasks set out in Schedule B (Statement of Work).
8. Changes in the Work
a. Change Orders. Owner, without invalidating the Agreement, may request changes in the Work within the general scope of the Agreement consisting of additions, with the installation cost being adjusted accordingly. Owner may order changes in the Work within the general scope of the Agreement consisting of deletions or other revisions, so long as the Smart Technology Equipment has not already been secured by Yardi in preparation for the Work. Such changes in the Work shall be subject to written approval by Yardi and confirmed by written change order signed by Owner and Yardi.
b. Unknown or Concealed Conditions. If concealed or unknown physical conditions are encountered at the Property that differ materially from those conditions ordinarily found to exist, the installation costs shall be equitably adjusted as mutually agreed between Owner and Yardi; provided that Yardi provides notice to Owner promptly and before conditions are disturbed. If such concealed or unknown conditions materially impact Yardi’ ability to perform the Work, Yardi may terminate this Agreement and treat such termination as a termination for cause; however, under such circumstance, Yardi may not recover its expected profits.
9. Completion of Work
a. Cleanup. Yardi shall keep the Property free from accumulation of debris, waste materials, or rubbish caused by its performance of the Work. On completion of the Work, Yardi will remove all debris, waste materials, rubbish, and surplus material from Owner’s Property and will leave the Property in a neat and broom-clean condition.
b. Notice of Completion. Yardi will provide Owner written notice of the completion of the Work.
c. Documentation. Upon completion and final payment, all original third-party warranties associated with the Smart Technology Equipment will be delivered to Owner.
10. Right to Terminate and Survival
a. Your Right to Terminate. If you cancel on or before the 90th day of your Initial Term (the “Trial Period”), you (or your agent or property manager as applicable) 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, Hubs, installation of Equipment, or other hardware. 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:
Yardi RentCafe Home IQ
Attn: Terminations
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 RENTCAFE HOME IQ SOFTWARE WILL TERMINATE AND FOR SAFETY AND SECURITY REASONS ALL 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:
Yardi RentCafe Home IQ
Attn: Legal Department
430 S. Fairview Avenue
Santa Barbara CA 93117
d. Cooperation on Transfer of Services. Upon the expiration or any earlier termination of this Agreement, Yardi shall reasonably cooperate with Owner to provide the Services to residents during the transition to a new provider, until the new provider begins providing services to the Property; provided, however, that (i) the cooperation period is limited to a maximum of 12 months, and (ii) Owner must continue to pay for the Services at the then-current fees outlined in this Agreement (prorated, as appropriate) until the transition to a new provider is complete.
e. Survival. Your obligations under Sections 2 (License, Restrictions, Access, and KYC), 3 (Length of your License (Term), and 5 (Pricing, Minimums, and Billing) of the TOU, any other obligations you have to protect information that does not belong to you, and your obligation to pay as agreed continue through the end of the Final Term even if you stop using the Software or cancel, or are terminated per the TOU.
11. Your Responsibilities.
a. Applicable Law. You are responsible for complying with all applicable laws and regulations regarding consumer data privacy and security with respect to any consumer data, including but not limited to obtaining all required consumer consents and complying with all requirements relating to consumer age, use of biometric data, use of other personal data, and all other applicable data privacy requirements relating to consumer data that is collected or retained by you. You are also responsible for adhering to all applicable state and local laws and regulations regarding entry into units, including but not limited to any requirements to provide notice to occupants and obtain consent regarding entry into units.
b. Hardware Installation and Support. You are responsible for installation and pairing of the Hubs and any third-party devices you are using in connection with the Software except as otherwise set forth in the TOU. Installation support or support for issues caused by internet connectivity, Hub or third-party device malfunction or tampering with third-party devices may be billed to Client as On-Site Implementation/Training hours. Defective Hubs may be replaced at the then-current Hub price.
12. Authorized Users and Passwords
a. 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.
b. 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.
13. 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 by Yardi in the Yardi Cloud at 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 HEREBY 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 INDEMNITY 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 or “at rest” 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 AT REST 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.
14. 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 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 example). 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.
15. Limited Labor Warranty
a. Warranty. Yardi warrants that all Smart Technology Equipment manufactured by Yardi and all labor performed by Yardi under the Agreement shall be and remain free of defects in materials and workmanship for a period of one (1) year from the date when such Work is substantially completed by Yardi.
b. Limitations on Warranty. The warranty provided under section 15(a) (Warranty) shall not cover damage, vandalism, tampering, or electromagnetic signal interference caused by third parties, OWNER’s employees, or OWNER’s tenants. defects IN SMART TECHNOLOGY EQUIPMENT MANUFACTURED BY OTHERS are covered SOLELY under theIR RESPECTIVE manufacturer’s warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, Yardi DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH REGARD TO THE WORK AND THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
16. 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. 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 AND ANY ADDITIONAL FEATURES, PRODUCTS OR SERVICES, AND ANY OF THE TOU.
e. OTHER LIABILITY LIMITATIONS AND YOUR REMEDIES. IN ADDITION TO (AND NOT IN PLACE OF) ALL OTHER LIMITATIONS SET FORTH IN THE TOU, 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.
f. THIRD-PARTY DEVICE DISCLAIMER. Yardi is not responsible for installing, maintaining, repairing, or otherwise providing support for any third-party devices used by YOU in connection with the SOFTWARE other than as specified in this Agreement. Third-Party Device defects are not covered by Yardi and are covered solely by the respective manufacturer warranty, which is not transferable to client. Client is responsible for the costs of purchasing, installing, and maintaining any third-party devices, and Client is responsible for the costs of replacing any third-party device that has been lost, misplaced, damaged, or otherwise made unusable.
17. Insurance
Yardi carries general liability and any State-required workers’ compensation insurance required under applicable law, necessary to cover the Work and Yardi’ acts on the Property. Upon Owner’s request, Yardi will provide Owner a certificate of insurance evidencing Yardi’ insurance coverage.
18. Indemnity
Yardi shall hold harmless and indemnify Owner from and against all claims, damages, losses and expenses, including but not limited to reasonable attorneys’ fees, arising from any damage to tangible property, injury or death that occurs while Yardi, its employees or agents are installing the Smart Technology Equipment on the Property, and caused by the gross negligence or willful misconduct of Yardi, its employee or agents. Yardi’s defense and indemnification obligations per this section are conditioned upon the following: (i) Owner providing Yardi with prompt written notice of any claim for which indemnification is sought; (ii) Yardi having sole control of the defense and settlement of such claim, provided, however, that Owner shall have the right to have any suit or proceeding monitored by counsel of Owner’s choice and at its expense; and (iii) Owner’s reasonable cooperation with Yardi in the defense and settlement of the claim.
Owner shall indemnify and hold Yardi harmless for any claims, damages, losses and expenses, including, but not limited to, errors in connectivity or configuration arising from the Smart Technology Equipment installation services not provided by Yardi.
19. Disputes
In the event of a dispute arising out of or related to the TOU or your use of the Software or Hubs or installation of the Smart Technology Equipment, 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.
20. Assignment
The TOU and your access to the Software and use of the Hubs 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.
If Owner sells or otherwise conveys the Property to a third party, Owner shall cause any new owner or controlling party to expressly assume these TOU and agree to be bound by them, unless the TOU is terminated pursuant to the TOU. Owner will have no liability for any obligations arising under the TOU after any sale or conveyance, provided the purchaser or transferee assumes these TOU and Yardi consents to the assignment.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. Modifications
You acknowledge and agree that: (a) the TOU and any additional terms of use that apply to the features, products and services you qualify for and license can only be modified by Yardi; and that (b) some features, products and services (such as payment processing or tenant screening) are subject to terms of use written and required by third parties that cannot be modified. You acknowledge and agree that Yardi may modify or update these TOU 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 the Software or any part thereof without liability to You. Modifications to these TOU will be posted at this URL: https://resources.yardi.com/legal/home-iq/installation-and-software-terms and will be effective immediately upon posting. You can review the most current version of the TOU by visiting https://resources.yardi.com/legal/home-iq/tou/. You agree to review the TOU from time to time to ensure you are updated as to any modifications. By continuing to use the Software following any such modifications, 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 THE SITE AND THE SERVICES.
27. Data Processing Addendum
Client has read, understood, and agrees 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.