Customer Terms and Conditions (Archived)
Published on May 25, 2023
Published on May 25, 2023
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THE FOLLOWING TERMS AND CONDITIONS ("TERMS") SHALL BE DEEMED INCORPORATED BY REFERENCE INTO EACH ORDER FORM, BY AND BETWEEN FINDIGS INC., A DELAWARE CORPORATION ("FINDIGS") AND THE CUSTOMER IDENTIFIED IN THE APPLICABLE ORDER FORM ("CUSTOMER"). THESE TERMS TOGETHER WITH ALL ORDER FORMS SHALL CONSTITUTE THE "AGREEMENT" BETWEEN FINDIGS AND CUSTOMER.
The following terms have the following meanings when used in the Agreement:
"Affiliate" means any entity that directly or indirectly owns or controls, is owned or controlled by, or is under the common ownership or control with a party, where ownership or control is denoted by having more than fifty percent (50%) of the voting power (or equivalent ownership interest) of the applicable entity.
"Customer Data" means any manuals, documentation, and other supporting materials related to the Services that Findigs provides to Customer or that Customer can access under this Agreement. Documentation is considered part of the Services.
"Effective Date" means the date specified in the applicable Order Form.
"Fees" means any amount due to Findigs under an Order Form or Statement of Work.
"Services" means the online services ordered by Customer by executing an Order Form and made available by Findigs, together with any applicable Documentation.
"Tenant" means any tenant applicant or current tenant of a property owned or managed by Customer.
"Tenant Screening Data" means any data provided to Customer through provision of the Services for the purpose of screening Tenants for renting a property owned or managed by Customer.
"Unit Count" means the number of units specified in the applicable Order Form.
"User" means an individual who is authorized by Customer to use the Services, for whom Customer has ordered the Services, as specified in the Order Form, and who signs up for the Services using a Customer email address.
Subject to the terms of this agreement, during the Subscription Term (defined below), Findigs will make the Services available to Customer as specified in an Order Form solely for Customer's internal operation and use. Findigs shall implement and maintain appropriate measures in accordance with generally accepted industry standards to (i) protect against any anticipated threats or hazards to the security or integrity of Customer Data; and (ii) protect against unauthorized access to Customer Data.
Some of the Services may be provided by third parties ("Third Party Service Providers"). These Services may be subject to additional terms entered into between Customer and the Third Party Service Provider. Findigs will have no liability to Customer for the provision of Services by Third Party Service Providers.
If pursuant to an applicable Order Form, Customer is subscribing to Findigs' Underwriting as a Service ("UwaaS"), then as part of the Services, Customer hereby delegates to Findigs, and Findigs shall provide to Customer, a rental decision on a prospective Tenant, provided that Findigs receives all the required information from or concerning the prospective Tenant. UwaaS shall be provided in accordance with (i) the applicable Order Form and (ii) Customer's Standard Operating Procedures as stated in writing and agreed upon by both parties prior to commencement of the Services ("SOP"), if applicable. Findigs shall use commercially reasonable efforts to perform such Services in compliance with the SOP.
If pursuant to an applicable Order Form, Customer is subscribing to Findigs' Pet Verification service, Findigs will use commercially reasonable efforts to collect and verify the required information from or concerning the prospective Tenant's animal in accordance with applicable laws and industry practices. Customer acknowledges and agrees that the databases and information available for companion animals is not generally available in centralized systems, and accordingly, such information may be inaccurate or incomplete.
Other ancillary Services specified in an applicable Order Form may be subject to additional terms and conditions, which are specified in the applicable Order Form.
Customer will (a) be responsible for Users' compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Findigs promptly of any such unauthorized access or use, and (c) use the Services only in accordance with the Documentation and all applicable laws and regulations, including, without limitation, applicable export control laws and regulations of the United States and other jurisdictions.
Customer represents and warrants that the Unit Count specified in the Order Form is accurate as of the beginning of the Subscription Term. Customer shall notify Findigs of the then-current Unit Count at least quarterly, and Customer will be responsible for any additional fees associated with the change.
Customer will not (a) make the Services available to, or use the Services for the benefit of, anyone other than Customer, Tenants, or Users, (b) sell, resell, license, sublicense, distribute, rent, or lease the Services, or include the Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or any third-party data contained therein, (f) attempt to gain unauthorized access to the Services or any related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, (h) copy the Services or any part, feature, function, or user interface thereof, (i) frame or mirror any part of the Services, other than framing on Customer's own intranets or otherwise for Customer's own internal business purposes or as permitted in the Documentation, (j) access the Services in order to build a competitive product or service, or (k) reverse engineer, disassemble, or decompile the Services.
Customer represents and warrants that it will not use Tenant Screening Data for any purpose other than screening potential Tenants for renting a property owned or managed by Customer. Customer is responsible for sending an adverse action notice and any other notice required by applicable laws and regulations resulting from its use of Tenant Screening Data, unless the Services specified in an Order Form include UwaaS in accordance with Section 2.3. Customer acknowledges and agrees that all decisions of whether or not to rent property to a particular Tenant, as well as the terms of any such rental, will be made by Customer unless the Services specified in an Order Form include UwaaS in accordance with Section 2.3. Findigs will have no liability to Customer or to any Tenant or other person or entity regarding (i) the decision of whether or not to rent property to a particular Tenant, provided that if the Services specified in an Order Form include UwaaS, Findigs shall perform such Services in accordance with the SOP; (ii) any rental or failure to rent, to any Tenant; (iii) the terms of such rental, or (iv) the accuracy or results of the Pet Verification service.
Findigs and its licensors own all rights, title, and interest in and to the Services. Customer's rights to the Services are limited to the rights expressly granted to Customer in Section 2 of this Agreement. Findigs reserves all rights not expressly granted in this Agreement.
This Agreement is effective as of the Effective Date and will continue for the period specified in the applicable Order Form ("Subscription Term"). The Subscription Term will automatically renew for successive periods of the same length as the initial Subscription Term unless otherwise terminated as provided herein.
Either party may terminate this Agreement and any Order Forms or Statements of Work by providing written notice to the other party at least 60 days prior to the effective date of such termination.
Either party may immediately terminate this Agreement if the other party breaches any material term of this Agreement and, if such breach is capable of cure, the breaching party fails to cure such breach within 20 days of written notice thereof.
Upon termination or expiration of this Agreement (a) the Subscription Term shall end; (b) all rights to use the Services granted to Customer hereunder shall immediately terminate; (c) Findigs may disable Customer and User access to the Services; and (d) any ongoing assistance that Customer requires following the termination of this Agreement will be subject to additional fees and terms and conditions. Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 1, 3, 4, 5.3, 7, 8, 9, 10, 12, and 13.
Tenants will pay to Findigs the following fees for use of the Services related to their rental application and rental relationship: (a) the application fee as set by Customer (the "Application Fee") and (b) any other additional fees for Services provided to the Tenant by Findigs (the "Tenant Fee"). Notwithstanding the foregoing sentence, Findigs reserves the right to change the Tenant Fee (not the Application Fee) at any time in its sole discretion.
In the event that the Fees charged to Customer by Findigs as set forth in the Order Form are less than the Application Fee established by Customer, Findigs will pay to Customer the revenue share amount set forth in the applicable Order Form. Payments will be made to Customer by ACH transfer in arrears on a calendar monthly basis.
Customer agrees to pay (a) all Fees set forth in the applicable Order Form or Statement of Work or any applicable invoice in accordance with the payment terms therein and (b) in the event that the Application Fee established by Customer is less than the Fees charged to Customer by Findigs as set forth in the Order Form, Findigs shall invoice Customer for the difference on a calendar monthly basis. Notwithstanding the foregoing sentence, Findigs reserves the right to change its prices at any time in its sole discretion.
For the purposes of this Agreement, "Confidential Information" means any business or technical information that either party discloses to the other party, in writing, orally, or by any other means, that should reasonably have been understood by the receiving party due to "confidential" and similar markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the other party, including, without limitation, computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. Neither party will use the other party's Confidential Information, except as permitted under this Agreement. Each party agrees to maintain in confidence and protect the other party's Confidential Information using at least the same degree of care as such party uses for its own information of a similar nature, but in all events at least a reasonable degree of care. Each party agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other's Confidential Information, including, without limitation, disclosing Confidential Information only to such party's employees, independent contractors, consultants and legal and financial advisors (collectively, "Representatives") (a) with a need to know such information, (b) who are parties to appropriate agreements sufficient to comply with this Section 7, and (c) who are informed of the nondisclosure obligations imposed by this Section 7. Each party will be responsible for all acts and omissions of its Representatives. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable them to contest such order or requirement. The restrictions set forth in this Section 7 shall remain in effect during the Subscription Term, and for 5 years thereafter. The restrictions set forth in Section 7 will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party independently develops without access to or use of the other party's Confidential Information.
Each party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other party and its parent companies, subsidiaries, affiliates, shareholders, member, manager, officers, directors, employees, agents and representatives (as applicable, the "Indemnified Parties") from and against any and all third party claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney's fees and legal costs, which will be reimbursed as incurred) of any kind or nature ("Losses"), arising from or relating to, any actual or alleged breach of any of the Indemnifying Party's representations, warranties or covenants in this Agreement or the Indemnifying Party's negligence or misconduct.
Customer shall indemnify, defend and hold harmless the Findigs Indemnified Parties from and against any and all third party Losses arising from or relating to, (a) Customer's violation of this Agreement or (b) an allegation of Customer's non-compliance with applicable laws, including but not limited to, the Americans with Disabilities Act and the Fair Housing Act, under any agreement with Users to which Findigs is not a party.
Findigs shall indemnify, defend and hold harmless the Customer Indemnified Parties from and against any and all third party Losses arising from or relating to an allegation that Customer's use of the Services as permitted under this Agreement infringes a patent, copyright, or trademark or misappropriates a trade secret of any third party (each, a "Infringement Claim").
Customer understands that Findigs has no obligation to indemnify Customer for any Infringement Claim that is based on (a) modification of the Services by any party other than Findigs; (b) Customer's use of the Services other than as authorized by this Agreement and the Documentation; (c) Customer's failure to use updated or modified Services that Findigs makes available to Customer that would have avoided or mitigated the Infringement Claim; (d) Customer's failure to stop using the Services after receiving written notice to do so from Findigs in order to avoid further infringement or misappropriation; or (e) the combination, operation, or use of the Services with equipment, devices, software, systems, or data that Findigs did not supply.
If Customer's use of the Services is, or in Findigs' reasonable opinion is likely to be, subject to an Infringement Claim under Section 8.3, Findigs may, at its sole option and at no charge to Customer (and in addition to Findigs' indemnity obligation to Customer in Section 8.3): (a) procure for Customer the right to continue using the Services; (b) replace or modify the Services so that it is non-infringing and substantially equivalent in function to the original Services; or (c) if options (a) and (b) above are not commercially practicable in Findigs' reasonable estimation, Findigs can terminate this Agreement and all licenses granted hereunder (in which event, Customer will immediately stop using the Services) and refund the fees for the Services that Customer pre-paid for the remainder of the then-current Subscription Term.
This Section 8 sets forth Findigs' sole and exclusive obligations, and Customer's sole and exclusive remedies, with respect to claims of infringement or misappropriation of third party intellectual property rights.
The Indemnifying Party may not settle any indemnified claim against the Indemnified Parties unless the settlement unconditionally releases Indemnified Parties of all liability. The Indemnified Parties, at the Indemnified Parties' expense, may undertake and control the defense of any indemnified claim in the event of the material failure of the Indemnifying Party to undertake and control the same. Subject to Section 10, the Indemnifying Party will pay all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal attributable to such indemnified claim, provided that the Indemnified Parties notify the Indemnifying Party in writing of any such indemnified claim as soon as reasonably practicable and allows the Indemnifying Party to control, and reasonably cooperates with Indemnifying Party in the defense of, any such indemnified claim and related settlement negotiations.
Findigs represents and warrants that the Services will be performed in a good, workmanlike manner in accordance with generally accepted industry standards. For any breach of the foregoing warranty, Customer's exclusive remedy and Findigs' entire liability shall be, at Findigs' discretion, as applicable: (a) reperformance of the Services; or (b) if Findigs cannot substantially correct such breach, Findigs may terminate the relevant Statement of Work and refund to Customer any fees Customer has paid to Findigs for the deficient Services.
Each party represents and warrants that (a) it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and (b) it will comply with all applicable laws and regulations in its performance, in the case of Findigs, and use, in the case of Customer, of the Services
EXCEPT AS EXPRESSLY SET FORTH HEREIN, FINDIGS PROVIDES THE SERVICES ON AN "AS IS", "AS AVAILABLE" BASIS. TO THE EXTENT PERMITTED BY LAW, FINDIGS AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, COURSE OF DEALING, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. FINDIGS DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE, WILL MEET CUSTOMER'S REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. FINDIGS DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ANY OF THEIR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FINDIGS' TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER'S TENANTS FOR THE 12 MONTHS PRECEDING THE CLAIM. THE PARTIES AGREE THAT THIS SECTION 10 REPRESENTS A REASONABLE ALLOCATION OF RISK.
Findigs may reproduce and use Customer's name and/or logo for the sole purpose of indicating the existence of a customer relationship between Customer and Findigs. Any other use of Customer's name or logo will require Customer's prior written consent.
This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, without giving effect to any principles of conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York, New York and the parties irrevocably consent to personal jurisdiction and venue therein.
Findigs and Customer are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship between Findigs and Customer.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed or issued by Findigs. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, government action, communication line failure, and power failures and any other similar or dissimilar causes.
All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by certified mail (return receipt requested), electronic mail or facsimile, to the other party's current or last known address. Notices shall be deemed effective upon receipt if personally delivered, 3 business days after it was sent if by certified mail, or 1 business days after it was sent if by electronic mail or facsimile.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
This Agreement may be executed electronically and simultaneously in 2 or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
This Agreement, including properly incorporated Order Form(s) and the Privacy Policy, available at Findigs Privacy Policy, constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement.
