LAST UPDATED ON 9/26/2018
1, Legal Contract.
1.2 By utilizing the Website, the Services, and/or by becoming a Customer via an executed Customer Agreement or Customer Order Form, you do hereby acknowledge the following:
- a) Company is neither a governmental nor a quasi-governmental agency and neither represents nor speaks on behalf of any government or quasi-government agency;
- b) Company is solely and exclusively a data provider and is not in a superior or more advantageous position to be able to locate, obtain or determine any data than anyone else may be in conducting his or her own due diligence concerning the data provided to you by Company and its employees;
- c) Company does not physically inspect any buildings;
- d) All data provided by Company is received and/or derived from sources that do not include physical inspection;
- e) Company is not responsible for – nor does it guarantee – the accuracy, completeness or correctness of any of the data provided to you;
- f) The Services are not a substitute for your own due diligence. They are intended only to enhance and supplement your own due diligence;
- g) All data is provided to you for informational purposes only;
- h) All data is provided to you “as is” and “as available” from various governmental and quasi-governmental agencies and other public databases;
- i) You assume all risk and liability for any actions you take, decisions you make or any other reliance you place on the information Company provides to you through the Website and/or the Services;
- j) Your payment of any fees to Company is separate from and not contingent upon any predetermined results or information Company conveys to you via the Website or the Services or any analysis, opinion, or conclusions drawn or derived from the Website or the Services;
- k) Company is under no obligation to make any affirmative disclosures to any individual or entity;
- l) Company does not provide legal advice; and
- m) The Services may contain Confidential Information (as defined below).
2.2 Annual Tenant Safety Mailings
2.3 InCheck. The InCheck product may be provided to all New York City Compliance Automation Customers for all buildings that are currently monitored by Company, provided Customer opts-in to the InCheck product. There is no additional charge for New York City Compliance Automation Customers opting in to the InCheck product for buildings within New York City, however, Company reserves the right to charge Customer additional fees for future product upgrades or premium features. InCheck is not a free product upgrade for buildings outside of the five boroughs of New York City or that are not being monitored by Company. For the fees associated with those buildings, please refer to your Customer Order Form.
5. Electronic Communications. You agree to communicate with Company exclusively via email. Company may communicate with you in its discretion either via email or by posting notices on the Website. ou do hereby agree that all notices, disclosures, and other communications that Company makes electronically to you satisfy any legal requirement that such communications be in writing and be delivered to you. If you do not agree to receive electronic communications, you must stop using the Services and/or the Website.
6. Building List. If you have an account with Company, you may provide Company via email with a written list of buildings for which you would like to use the Services initially (the “Building List”). During the Term, you may add certain buildings to the Building List at any time via the Website or upon request to Company. During the Term, you may also remove buildings from the Building List only if during the Term such building ceases to owned or managed by you or any of your affiliates (and evidence thereof in form and substance satisfactory to Company, in its sole discretion, shall have been provided to Company). It is your responsibility to periodically check your Building List to ensure that all of the buildings of interest are included therein. Company assumes no responsibility for your Building List. Except as may be set forth in a Customer Agreement or Customer Order Form (as applicable) (a) irrespective of the date upon which it is added to the Building List, any additional building will be billed for a full month as if the addition was made to the Building List on the first day of the month, and (b) permitted deletions of buildings from your Building List will take effect when the current billing period as indicated on your latest invoice has ended, or upon the requested deactivation date, whichever is later. If the Customer Agreement or Customer Order Form (as applicable) or Services are terminated by either party, upon request, Company will provide you with a copy of information regarding your XLS/CSV export of your compliance data on file as soon as practicable in a machine-readable format at no additional charge provided that you have paid in full all fees due to Company. It is understood and agreed that you shall own all right, title and interest in and to your compliance information provided that you grant Company and its affiliates a perpetual, royalty-free, transferable license to use any such information in individual, aggregated or derivative form for purposes Company deems appropriate in its sole and absolute discretion.
9. Third Party Referrals/ Links.
9.1 To the extent that Company provides referrals to consultants, vendors or other professionals (“Third-Party Referrals”), such shall not be deemed to be an approval or endorsement thereof by Company. It is solely your responsibility to conduct your own due diligence regarding such Third-Party Referrals. Interactions that occur between you and Third-Party Referrals are strictly between you and the Third-Party Referrals. Company does not assume any liability or responsibility for any Third-Party Referrals.
10 Representations and Warranties.
10.1 Company represents and warrants that (a) it has the right, power and authority to perform the Services, (b) the Services will be reasonably available to you, which may be subject to your systems and other factors not in Company’s control including, but not limited to, the availability of government databases, third-party networks or Internet connections.
11. Payment of Fees.
12.1 Violates or infringes the rights of others, including without limitation, patent, trademark, trade secret, copyright, publicity, or other intellectual or proprietary rights;
12.2 Is, without limitation, libelous, obscene, threatening, defamatory, pornographic, profane, sexually explicit, abusive, harassing, intimidating, fraudulent, invasive of another’s privacy, tortiously interferes with another, or is otherwise objectionable, or which otherwise violates any law, rule or regulation or the rights of a third party;
12.3 Forges email headers or otherwise disguises the origin of any communication;
12.4 Impersonates any person, business or entity including Company and/or our employees or agents;
12.5 Contains viruses, worms, Trojan horses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telephonic (including cable) equipment and/or is likely to harm Company’s or a third party’s computer system;
12.6 Tests the vulnerability of the Website or the Services or circumvents any security mechanism used by the Website or Services;
12.7 Allows for you or any third party to unlawfully access the computer and/or computer network of a third party;
12.8 Discloses, harvests, or otherwise collects information, including email addresses, or other private information about any third party without that party’s express consent;
12.9 Transmits junk mail, spam, surveys, contests, pyramid schemes, chain letters, or other unsolicited email or duplicative messages;
12.10 Encourages conduct that constitutes a criminal act or that gives rise to civil liability;
12.12 Attempts to or does reverse engineer, decompile, disassemble, or otherwise discover the source code of the Company’s software applications, processes, or other intellectual property;
12.13 Attempts to gain unauthorized access to services, materials, other accounts, computer systems or networks connected to the Website, through hacking, password mining, or any other means; and/or
13. Ownership; Acknowledgement of Rights.
13.1 Ownership. The information, data, software and analytics available through the Website and the Services are the property of Company or its information providers and are protected by copyright and other intellectual property laws, including protection as a collective work or compilation. Company shall retain all right, title and propriety interest (including without limitation all copyrights, trademarks, patents, and trade secrets) in and to all components of the Website and the Services including the designs, user interfaces, protocols, the “look and feel” of all screens and the organization and presentation of any of its components and you shall not acquire any proprietary rights thereto. You shall not alter or remove Company’s name, trademarks, copyright notices, disclaimers or other restrictive legends on the Website or the Services or any reports or information obtained through the Website or the Services.
13.2 Restrictions on Use. You agree not to, and agree not to encourage or engage any third party to, undertake any effort to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of Company’s software, applications, processes, or other intellectual property. Notwithstanding anything to the contrary set forth herein, the Services may not under any circumstance be used or be permitted to be used in any manner that is or could potentially be competitive with Company’s distribution or sale of all or any part of the Services or of any other product or service distributed or sold by Company from time to time and in no event may any Services or any reports, data or information provided through the Services be provided to any person or entity who provides services which are competitive with the Services.
13.4 Password. Company will provide and authorize a password for each Delegate Account Holder. That password will be personal to each Delegate Account Holder and such Delegate Account Holder is obligated to keep the user name and password confidential and may not share the password with any other person. You must promptly notify Company in writing when any person ceases to be a Delegate Account Holder so that Company may immediately disable such person’s password. You may change Delegate Account Holders and obtain new passwords for such Delegate Account Holders only upon providing written notice to Company. You shall immediately notify Company in writing if any third party gains or has the potential to gain access to any of your passwords, and shall be fully responsible for any and all activities that occur under any password, whether conducted by an employee or a third party.
13.6 Submissions. With respect to any information, feedback, questions, and/or comments (collectively, “Submissions”) that you provide us via the Website, you grant to the Company a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, copy, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material, without territorial or time limitations, and to sublicense such rights through multiple tiers of sublicensees, for any purpose whatsoever including, but not limited to, developing, manufacturing, and marketing products or services incorporating such ideas, concepts, or techniques, without attribution. You further represent and warrant that if you are not the owner of such material, that the owner of such material has expressly granted you the foregoing license. You acknowledge and agree that any other user of the Website may access, view, store or reproduce the material for that user’s personal use and that Company shall have no obligations of any kind with respect to any Submissions. In addition, you hereby waive all moral rights you may have in any Submissions sent to the Company by you.
14.1 The contents of the Website, Email Alerts, reports, and other communications, electronic or otherwise, are owned by Company and are subject to copyright protection and may not be reproduced, displayed, disclosed to third parties or published in full or in part without the prior written consent of Company. The Company grants to you a limited, non-exclusive, non-transferrable, nonsublicensable, nonassignable license to copy its content for your personal use, for example by downloading, printing, or saving to your individual storage medium. You must not remove or alter any proprietary notice included in the content. This limited license does not apply to any copyright protected materials on the Website that are owned by third parties. You are solely responsible for determining whether and under what conditions you may download, print, or otherwise use the copyright protected materials of third parties. You understand that any unauthorized use of Company’s or a third party’s copyrighted materials may subject you to the payment of damages, attorneys’ fees and disbursements and the grant of injunctive relief against you.
14.2 The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Company reserves the right to remove any material on the Website which allegedly infringes another person’s copyright. If you believe in good faith that materials hosted by Company infringe your copyright, you (or your agent) may send us a notice requesting that the materials be removed, or access to them blocked. Such notice must meet statutory requirements imposed by the DMCA and must be in writing and include the following information in writing: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; A description of the copyrighted work that you claim has been infringed. Please describe the work and, where possible, include a copy or the location (e.g., URL) of an authorized version of your work; A description of the material that you claim to be infringing, as well as its location on the Website; Your name, address, telephone number, and email address; A statement by you that you have a good faith belief that the disputed use of the materials is not authorized by the copyright owner, its agent, or the law; and A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices for the Website should be sent to: Matthew S. Kelman, Esq., 46 Southfield Avenue, Suite 400, Stamford, CT 06902. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be substantial penalties for false claims.
14.3 Trademarks. Trademarks and service marks on the Website are the property of Company or other third parties, and are either registered, the subject of pending trademark applications and/or are common-law trademarks. You are prohibited from the use of any of Company’s trademarks and understand that any unauthorized use of Company’s trademarks or of a third party’s trademarks may constitute infringement and may subject you to the payment of damages, attorneys’ fees, and disbursements and the grant of injunctive relief against you.
15. Confidential Information.
15.1 You and Company (the “Receiving Party”) each agree that certain information or materials which may be received from the other party (the “Disclosing Party”) hereunder is proprietary and confidential to such party. Such information or materials may include, but not be limited to, trade secrets, designs, concepts, technical knowledge, business, pricing, contract arrangements, customer lists, marketing and business plans, sales and marketing strategies, research and development activities, financial affairs, data and information systems, vendors, suppliers, orders, and employees, current or future business agreement prospects, relationships, strategies and/or goals and/or any other information and any proprietary ideas, non-public information of a technological, strategic, financial or business nature, computer software, user interfaces and any other non-public data or information concerning the business, customers or finances of the Disclosing Party, and any other information or materials provided by the Disclosing Party which is designated in writing by the Disclosing Party prior to or upon disclosure as being proprietary or confidential to such party (collectively, “Confidential Information”).
15.2 The Receiving Party shall treat all Confidential Information of the Disclosing Party with the same degree of care, but no less than commercially reasonable care, than that which the Receiving Party uses to protect its own Confidential Information of a similar nature. Except as otherwise expressly provided herein, the Receiving Party shall neither use, distribute nor disclose to any third party Confidential Information of the Disclosing Party, in whole or in part, without the Disclosing Party’s prior written authorization. Each party shall notify and inform its employees or consultants having access to the other party’s Confidential Information of the limitations, duties and obligations regarding use and non-disclosure of such Confidential Information. Confidential Information shall be used only by employees or consultants of the Receiving Party with a need to know, provided further that any such consultants shall first be required to execute a confidentiality agreement at least as protective of Confidential Information as the terms and conditions of this Agreement.
16. Equitable Relief. You understand and agree that due to the nature of the harm it would cause to Company if there were any unauthorized use of the Company’s intellectual property or Confidential Information, in addition to such other remedies which may be available to it hereunder, at law or in equity, Company may seek and obtain immediate injunctive relief enjoining such unauthorized use of the intellectual property or Confidential Information. You hereby waive any requirement that Company post a bond in seeking equitable relief. Company shall be entitled to recover from you all legal fees (including attorneys’ fees), costs and other expenses which Company incurs in connection with its enforcement of the provisions of this Agreement.
- DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
17.1 DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE THAT COMPANY IS NOT A GOVERNMENT OR QUASI-GOVERNMENT AGENCY AND DOES NOT REPRESENT OR SPEAK ON BEHALF OF ANY GOVERNMENT OR QUASI-GOVERNMENT AGENCY. THE SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY ON AN “AS IS” AND “AS AVAILABLE” BASIS TO YOU. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, COMPANY, ITS LICENSORS AND OTHER SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY PROMISES OF ACCURACY OR CORRECTNESS OF INFORMATION PROVIDED OR OMITTED OR OF ANY REFERRALS PROVIDED. YOU ACKNOWLEDGE THAT COMPANY IS NOT RESPONSIBLE FOR THE QUALITY, COMPLETENESS OR ACCURACY OF THE INFORMATION PROVIDED THROUGH THE SERVICES, AND THAT YOU SHOULD UNDERTAKE YOUR OWN DUE DILIGENCE DIRECTLY WITH ANY APPROPRIATE GOVERNMENT OR QUASI-GOVERNMENT AGENCY OR THIRD PARTY. YOU ASSUME ALL RISK AND LIABILITY FOR ANY ACTIONS TAKEN, DECISIONS MADE OR ANY OTHER RELIANCE ON THE INFORMATION PROVIDED THROUGH THE SERVICES. THE SERVICES DO NOT CONSTITUTE LEGAL ADVICE.
17.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PROVIDED BY LAW, YOU AGREE THAT COMPANY AND ITS AFFILIATES, SUBSIDIARIES, SUPPLIERS, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS AND MEMBERS (“COMPANY PARTIES”) SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL COMPANY’S LIABILITY FOR ANY AND ALL CLAIMS, CAUSES OF ACTION, LOSSES, OR DAMAGES IN CONNECTION WITH THE SERVICES EXCEED THE TOTAL AMOUNT THAT YOU PAID THE COMPANY FOR THE SPECIFIC SERVICES AT ISSUE FOR THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE TIME THE CAUSE OF ACTION ACCRUED. THE LIMITATIONS SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY AND THAT COMPANY WOULD NOT BE ABLE TO PROVIDE YOU WITH THE SERVICES WITHOUT SUCH LIMITATIONS.
17.3 COMPANY AND COMPANY PARTIES ARE NOT LIABLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES OR THE WEBSITE. TO THE MAXIMUM EXTENT PROVIDED BY LAW, UNDER NO CIRCUMSTANCES WILL COMPANY OR COMPANY PARTIES BE LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANY USE OF THE SERVICES, THE INFORMATION PROVIDED ON THE WEBSITE, INFORMATION PROVIDED BY COMPANY, ANY CONTENT POSTED ON THE WEBSITE, ANY CONTENT TRANSMITTED TO USERS, ANY INTERACTIONS BETWEEN YOU AND COMPANY, OR ANY INTERACTIONS BETWEEN OR AMONG USERS OF THE WEBSITE, WHETHER ONLINE OR OFFLINE.
- Disputes; No Class Action; Miscellaneous.
19..2 No Class Action. Even if applicable law permits class actions, Company and you each waive any right to pursue disputes on a classwide basis; that is, to either join a claim with the claim of any other person or entity, or assert a claim in a representative capacity on behalf of anyone else in any lawsuit, arbitration or other proceeding.
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