2. License, Restrictions, and Access.
b. Restrictions. You are prohibited by these Terms from sharing (except as expressly provided by these Terms), renting, leasing, selling, transferring, sublicensing, assigning, time sharing, or making publicly available, your access to Asset IQ, including but not limited to your log-in credentials. You are also prohibited from using Asset IQ for any purpose other than managing your real estate portfolio, including but not limited to: reverse engineering, decompiling or otherwise attempting to discover source code, studying, examining, benchmarking, scraping, modifying, reproducing, copying, making derivative works from, distributing, publishing, promoting service bureau services, publicly displaying or training, or demonstrating Asset IQ. You may not provide your property manager(s) with access to your Asset IQ license. If you are a property management software company or any other competitor of Yardi, you should know that accessing, using, or licensing Asset IQ for any reason whatsoever is strictly prohibited.
c. Access to the Yardi Network. Depending on the Asset IQ features and services you use, you may have direct or indirect access to the Yardi network including servers owned, leased and maintained by Yardi (the “Yardi Cloud”). Yardi makes no representations or warranties as to your continued access to the Yardi Cloud. By using Asset IQ, you are prohibited from knowingly or negligently doing anything to disrupt, damage, interfere with, or otherwise adversely affect the Yardi Cloud including but not limited to introducing, transmitting or disseminating viruses, corrupted files, malware, or any other harmful or malicious software or programs.
d. Property Manager Configurations. You acknowledge that the relevant property data is stored in your property manager(s)’ Yardi environment, and your access to Asset IQ requires your property manager(s) to make the necessary configurations in their Yardi environment(s). You acknowledge that each property manager is solely responsible for such configurations, and Yardi disclaims any liability relating to such configurations. Asset IQ does not include imports of your data that may be stored on third party systems.
e. Additional Restrictions and Disclaimers. You shall not resell, compile or transfer into a searchable database any of the information provided or generated by Asset IQ, Yardi Matrix or any similar Yardi data research product, or use such information in any way that competes with Yardi. Such information is offered “as is,” without warranties regarding title, merchantability, fitness for a particular purpose, or non-infringement. Yardi is not responsible for the availability or content of any third party hyperlinked sites.
3. Term. Your right to access Asset IQ in accordance with these Terms will begin when you first register Asset IQ (the “Effective Date”) and will continue for a one-year term (the “Initial Term”). If you continue to use Asset IQ beyond the Initial Term, a new 3-year term will automatically begin, and after that new 3-year term ends another new 3-year term will begin, and so on (each a subsequent “Term”).
4. Pricing and Payment.
a. Fees, Billing and Payment. Yardi will invoice Client for Asset IQ on or around one-year from the Effective Date and each year thereafter.
b. Failure to Pay. If after the Initial Term your payment is not received (including if your payment is declined, returned, or otherwise cannot be processed), your access to Asset IQ will be suspended.
c. Annual Fees Include. Client’s annual fees include access to the Yardi Cloud, licensed software and updates/upgrades thereto.
5. Termination and Survival.
a. Your Right to Terminate. You may elect to terminate your Asset IQ license at any time before the end of your Initial Term
without any obligation to pay any fees. Thereafter, you may terminate your Asset IQ license at any time, but you will not receive a refund of any paid fees. To terminate your Asset IQ license, you must send a written termination notice to:
Yardi Systems, Inc.
Attn: Asset IQ Terminations
430 S. Fairview Avenue
Santa Barbara CA 93117
c. Survival. Your obligations under these Terms to protect information that does not belong to you and to remit payments, fees or charges that are your responsibility under these Terms continue even after you cancel or terminate Asset IQ.
6. Support. We will provide you and your Asset IQ users with 20 hours of free support. If you use your free allotment, you can still contact us for support at a cost of $120 per hour (billed in 15-minute increments).
7. Authorized Users and Passwords.
a. Authorized Users. You agree that you will not allow anyone to log into Asset IQ for any purpose that is inconsistent with or in any way prohibited by these Terms. Only you and your employees are authorized to access and use Asset IQ. You cannot allow your property manager(s) to log into Asset IQ.
b. Passwords. You should always observe good password security practices in all your on-line activity, including when using Asset IQ. It is your sole and exclusive responsibility to protect your password. Under no circumstances shall Yardi be liable to you or anyone for any reason whatsoever, including for any data loss, corruption, or misuse, arising from the misuse of your password by anyone under any circumstance.
8. Confidentiality, Exceptions, Obligations to Disclose, and the Return of Confidential Information.
a. Confidentiality. “Confidential Information” means all Yardi patent, copyright, trade secret, and other proprietary information of any kind. You agree not to disclose the Confidential Information to any unauthorized third party, except as described below.
b. Confidentiality Exceptions. Confidential Information is not protected from disclosure if the information: (1) is no longer confidential (through no fault of the party that would like to disclose it); (2) was already in the possession of the party that would like to disclose it, provided it was obtained properly and without any violation of any other confidentiality requirements that apply; or (3) was independently developed by the party that wants to disclose it without having used, referred to, or relied on the other party’s Confidential Information. If you are required by applicable law or enforceable court order to disclose our Confidential Information, you must give us prompt written notice of such requirement to allow us to seek a protective order or otherwise prevent such disclosure.
c. Return of Confidential Information. These Terms do not grant or imply any license or other rights to you or of Yardi Confidential Information, except as expressly set forth in these Terms. Upon the end of your Term, you have five business days to return to Yardi any of Yardi Confidential Information you may have, if any.
9. DISCLAIMERS, WARRANTY, WAIVERS, REMEDIES, AND LIABILITY LIMITATIONS.
a. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH BELOW IN THE “LIMITED SOFTWARE WARRANTY,” AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, YARDI DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH REGARD TO ASSET IQ, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT ASSET IQ WILL MEET YOUR SPECIFIC REQUIREMENTS OR EXPECTATIONS.
b. 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 PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT THE INTERNET. YARDI WILL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY AND AVOID SUCH EVENTS, BUT CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, YARDI DISCLAIMS ANY LIABILITY RESULTING FROM OR RELATING TO SUCH EVENTS.
c. LIMITED SOFTWARE WARRANTY. Yardi warrants that Asset IQ 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 these Terms.
d. REMEDY FOR BREACH OF LIMITED SOFTWARE WARRANTY. IF YARDI BREACHES ITS LIMITED SOFTWARE WARRANTY TO YOU, YARDI AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO MODIFY THE LICENSED PROGRAMS SO THAT THE LICENSED PROGRAMS CONFORM TO THAT WARRANTY. IF SUCH MODIFICATION IS NOT COMMERCIALLY REASONABLE, THEN YARDI WILL NOTIFY YOU AND YOU MAY TERMINATE THESE TERMS WITHOUT PENALTY. THE FOREGOING IS YOUR SOLE REMEDY IN THE EVENT OF A BREACH OF THE LIMITED SOFTWARE WARRANTY.
e. DAMAGES WAIVER. NOTWITHSTANDING ANY OTHER OF THESE 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 THESE TERMS.
f. LIMITATION OF YARDI’S LIABILITY AND YOUR SOLE REMEDY AGAINST YARDI. IN ADDITION TO ALL OTHER LIMITATIONS SET FORTH IN THESE TERMS, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AGREE THAT YARDI SHALL HAVE NO LIABILITY WHATSOEVER, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEPT IN THE EVENT OF A CLAIM OR CAUSE OF ACTION ARISING OUT OF OR CONNECTED WITH YARDI’S BREACH OF THESE TERMS FOR WHICH YARDI WAS THE SOLE CAUSE, AND THAT 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. THIS REFUND IS YOUR SOLE AND EXCLUSIVE REMEDY.
10. Disputes. In the event of a dispute arising out of or related to these Terms or your use of Asset IQ, you and Yardi will use commercially reasonable and good faith efforts to informally and timely resolve the dispute. All such efforts shall be confidential and be protected under applicable law as compromise and settlement negotiations. If after 30 calendar days of good faith negotiations in accordance with this section the parties are unable to reach a mutually satisfactory resolution, either party may pursue its rights and remedies under applicable law.
11. Assignment. These terms and your access to Asset IQ cannot be assigned by you for any reason without the prior, express, written consent of Yardi, which Yardi may withhold in its sole discretion. Any attempted or purported assignment without the prior, express, written consent of Yardi is void. These Terms 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. These Terms 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 these Terms shall be resolved only in a court of competent jurisdiction in the City of Santa Barbara, State of 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 waiver any breach of these Terms 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 these Terms is unenforceable, you and Yardi expressly acknowledge and agree that all other parts of these Terms unaffected by that determination shall remain valid and enforceable.
15. Headings. The section headings and captions in these Terms are for convenience only, and you and Yardi agree that the headings and captions do not and are not intended to limit or change the substance of these Terms in any way.
16. Data Use. Yardi may aggregate, compile, and use your data to improve, develop or enhance Asset IQ or the other services Yardi offers or may offer in the future. 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.
17. Audit. Yardi reserves the right to audit your instance of Asset IQ at any time solely to confirm the scope of your use of Asset IQ in relation to your contractual license.
18. Data and File Management. Yardi will provide an environment with data and file management services per the following guidelines. The production data will be replicated in near-real-time both locally within the production data center, as well as to a separate, off-site disaster recovery location.
19. Entire Agreement and Modification.
a. Entire Agreement. These Terms constitute the final, complete, and exclusive agreement between you and Yardi pertaining to the subject matter in these Terms, and these Terms expressly replace and supersede other prior understandings or agreements, if any and no matter what form they may have been in. You and Yardi also acknowledge and agree that each has not been induced to enter into these Terms by or because of any representations, warranties, or otherwise that are not set forth in these Terms.
b. Modification. These Terms can only be modified by Yardi, which it may do in its sole discretion, from time to time. It is your responsibility to know, understand, and abide by the most current version of these Terms.
Updated: March 22, 2022