“Agreement” means these Terms of Service and any applicable Order Form and Statement of Work fully executed by Client and G5.
“Content” means any information, data, data streams, text, photographs, graphics, video, or other materials provided with the Services.
“G5 Platform” means the G5 proprietary technology and services.
“Order Form” means any fully executed G5 Order Form that references this Agreement.
“Property” means a single physical structure at a geographic address identified by street address.
“Services” means the Digital Experience Management services specified in an Order Form to be provided by G5 to Client directly, through any G5 website and/ or the G5 Platform under the terms of this Agreement. Services may include Third Party Services and any G5 professional services as set forth in any Statement of Work between the parties.
“Statement of Work” or “SOW” means a document signed by Client and G5 as an addendum to this Agreement which sets out the scope of professional services to be performed by G5 for Client and any other applicable terms and conditions.
“Term” means the period of time for which Client has a license to use the Services specified in an Order Form. The duration of the Term is specified in the applicable Order Form.
“Third Party Services” means any product, service or Content delivered or fulfilled by a third party supplier to G5 that may be part of the Services.
2. Grant of License and Restrictions.
2.1 Subject to all the terms of this Agreement and payment of all fees, and only for the Service Term specified in an Order Form, G5 grants Client a limited, personal, non-exclusive, non-transferable, worldwide right to use the Services, solely for Client’s own internal business purposes subject to any additional terms and conditions set forth on the applicable Order Form. To the extent Services relate to one or more Properties listed in an Order Form, the license herein is limited to the Properties in the Order Form only. All rights not expressly granted to Client are reserved by G5. There are no implied rights. Client will not (and will not permit any third party to): (i) mirror any Content on any G5 website or any server owned or controlled by G5 without the prior written permission of an officer of G5; (ii) modify, translate, or create derivative works based on the Services, reverse engineer, reverse assemble or otherwise attempt to discover any G5 Proprietary information; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices or labels from the Services; or (vi) provide any content or information from the Services to any unauthorized third party. 2.2 Client may not use the Services or any G5 Proprietary Information for any purpose other than as expressly permitted in this Agreement.
3. Prices; Payment Terms.
3.1 Price. All Order Forms will set forth the fees for Services including professional services for Statements of Work and payment terms.
3.2 Payment Terms. All fees shall be due and payable as indicated in the applicable Order Form. Client agrees to pay G5 all fees when due and will be considered delinquent after thirty (30) days of the due date. The prices do not include any taxes and Client shall pay any applicable sales, use, excise, withholding or other taxes applicable to sale or furnishing of the Services. Delinquent payments shall bear interest at the rate of one-and-one-half (1.5%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Client will be responsible for all reasonable expenses (including attorneys’ fees and costs) incurred by G5 in collecting unpaid or delinquent amounts. Client may not require G5 to use a third party vendor for billing without G5’s prior written consent. If G5 consents to such billing method, Client shall be responsible for all fees and costs associated therewith, including without limitation, any fees incurred by G5. G5 reserves the right to suspend the Services (by advance written notice or email) until Client pays all past due amounts.
3.3 Services are non-cancelable before the end of the then-current Service Term and fees are non-refundable except to the limited extent provided for in Section 12.3.
4. Intellectual Property.
4.1 Ownership of G5 Proprietary Information. All information of G5 relating to the G5 Platform or G5 products, or any information relating to G5 processes, designs, software programs, source code, formulas, test procedures and results, improvements, inventions or techniques, client lists, business plans, marketing plans and strategies, pricing strategies or other subject matter pertaining to any business of G5 (“G5 Proprietary Information”) is owned by G5. Client shall not reproduce or allow any such G5 Proprietary Information to be delivered to or used by any third party. In the event of the termination of this Agreement for any reason, Client shall promptly deliver to G5 all materials and documents of any nature in its possession pertaining to any G5 Proprietary Information. As between Client and G5, G5 is the sole and exclusive owner of all G5 Proprietary Information.
4.2 Client Content. Client may upload Client Content to the Services or provide Client Content to G5 in connection with Client’s use of the Services. G5 does not verify, endorse, or claim ownership of any Client Content, and Client retains all right, title, and interest in and to the Client Content. Client grants to G5 during the term of this Agreement a non-exclusive, royalty-free, world-wide right to modify, create derivative works and publicly display Client Content solely and exclusively as part of G5’s performance of Services to Client.
4.3 No Transfer of Ownership. Except for the limited licenses expressly provided in this Agreement or any signed attachment hereto, neither party has or will acquire, any right, title or interest in any of the products, services, technology or intellectual property rights of the other party as a result of this Agreement.
5. Confidential Information.
5.1 As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), that is designated in writing as confidential or that reasonably should be considered confidential in light of the content of the information and the circumstances of its disclosure, as well as the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder) and all G5 Proprietary Information. Each party as the Receiving Party understands that the other party as the Disclosing Party has disclosed or may disclose information relating to the Disclosing Party’s business. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information and to only use the Confidential Information to perform its obligations under this Agreement, and (ii) not to divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. This Section 5 will not be construed to prohibit the disclosure of Confidential Information if such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
5.2 Return of Confidential Information. Upon termination of this Agreement, or earlier upon Disclosing Party’s request, the Receiving Party will promptly return or destroy all Confidential Information, together with all copies and summaries of Confidential Information in its possession or under its control.
5.3 No Transfer. This Agreement does not transfer any ownership rights to any Confidential Information.
5.4 Equitable Relief. The parties acknowledge that the remedies available at law for any breach of this Section 5 will, by their nature, be inadequate. Accordingly, a party may seek injunctive relief or other equitable relief to restrain a breach or threatened breach of this Section 5 or to specifically enforce this Section 5, without proving that any monetary damages have been sustained.
6. User Data.
7. Third Party Services.
The Services or G5 Platform may contain hyperlinks to web sites that are not controlled by G5. Client acknowledges and agrees that G5 is not responsible for and does not endorse or accept any responsibility over the content or use of third party sites, including, without limitation, the accuracy or reliability of any information, data, opinions, advice or statements made on these web sites. Client further understands that Client’s use of such third party sites and Third Party Services are governed by separate agreements accompanying such portions of the Services and Client is responsible for complying with the terms and conditions of such agreements. Client dealings with other entities promoted on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between Client and such other entity. Client agrees that G5 shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities through the Services.
8. Warranties and Disclaimers.
8.1 Client Warranty. Client represents and warrants that (a) Client will not engage in any activities or actions in connection with the Services that infringe or misappropriate the intellectual property rights of others, including without limitation, copyright, patent, trademark, trade secret and confidential information; (b) engage in any activities that violate the personal privacy or publicity rights of others; (c) Client will not breach any Third Party terms or conditions, terms of service, acceptable use policies, privacy policies or any similar agreements; and (d) that Client is the owner, licensor, or is the fully authorized user of all Client Content; and (d) Client will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that: (i) advocates, promotes, incites, instructs, assists or otherwise encourages violence or any illegal activities; (ii) attempts to mislead others about Client identity or the origin of a message or other communication, or impersonates or otherwise misrepresents Client’s affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iii) promotes, solicits or comprises inappropriate, harassing, abusive, profane, defamatory, libelous, threatening, hateful, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (iv) is harmful to minors; (v) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Information, or property of another; or (vi) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, fair housing, anti-discrimination, or false advertising).
8.2 Services Operations. G5 warrants that the Services will operate or be provided in material conformity with the applicable documentation provided by G5 and that the functionality of the Services will not be materially decreased during a Term. For any breach of this warranty, the Client’s sole and exclusive remedy and G5’s sole and exclusive liability shall be for G5 to correct any reported failure in the Services causing a breach of this warranty. G5 shall have no obligation with respect to a warranty claim hereunder unless notified of such claim within thirty (30) days of the first instance of any material functionality problem. If G5 is unable to correct any reported failure in the Services causing a breach of this warranty within ten (10) business days, Client may terminate the Services that G5 is unable to correct upon written notice to G5, and G5 will refund to Client any unused pre-paid fees for such terminated Services. Subject to the foregoing warranty G5 reserves the right, for any reason, in G5’s sole discretion and without notice to Client, to modify or change the Services or G5 Platform, to provide additional features or functions, or to enhance, delete or modify Content or its format or presentation. Notwithstanding the foregoing, G5 may change, modify, suspend or discontinue any and all aspects of the Services, G5 Platform or Content to reflect changes in Third Party Services (or the terms on which such are made available) and, except for a refund to Client of any unused pre-paid fees for such terminated Third Party Services, G5 will not be liable to Client or to any third party for doing so.
8.3 Disclaimer of Warranties. EXCEPT AS STATED IN THIS SECTION 8, THE SERVICES AND G5 PLATFORM ARE PROVIDED ON AN AS-IS BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND CLIENT’S USE THEREOF IS AT CLIENT’S OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, G5 DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability.
EXCEPT FOR PAYMENTS TO THIRD PARTIES UNDER THE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT AND FOR A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE CAUSE OF SUCH DAMAGES. IN ADDITION, EXCEPT WITH RESPECT TO A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A BREACH OF A PARTY’S OBLIGATIONS PURSUANT TO SECTION 2, 4, OR 5, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID TO G5 UNDER THIS AGREEMENT DURING THE PRECEDING THREE MONTH PERIOD PRIOR TO THE OCCURRENCE OF SUCH DAMAGES; PROVIDED THAT LIABILITY ARISING UNDER ANY OTHER TERMS AND CONDITIONS MADE A PART OF THIS AGREEMENT MAY BE FURTHER LIMITED AS PROVIDED IN SUCH TERMS AND CONDITIONS.
10.1 G5, at its expense, shall indemnify, defend and hold harmless Client against any losses, costs and damages arising from a claim by a third party against Client that the Services or the G5 Platform infringe any copyright or any United States patent issued as of the Effective Date or misappropriates any protected trade secret; provided that Client will provide G5 with (i) prompt written notice of the claim, (ii) sole control over the defense or settlement (provided, however, that any such settlement shall not result in financial liability on Client or require its admission of any fault without its prior written consent which shall not unreasonably be withheld), and (iii) reasonable support and cooperation with regard to the defense. In the event that G5’s right to provide the Services is enjoined or in G5’s reasonable opinion is likely to be enjoined, G5 may, at its expense, obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing but remain functionally equivalent, or if such remedies are not reasonably available, terminate this Agreement without liability. G5 shall have no indemnification liability under this Section 10 or otherwise to the extent a claim or suit is based upon (a) use of the Services or the G5 Platform in combination with software or hardware not provided by G5 if infringement would have been avoided in the absence of such combination, (b) modifications to the Services or G5 Platform not made by G5, if infringement would have been avoided by the absence of such modifications, (c) use of any version other than a current release of the Services or G5 Platform, if infringement would have been avoided by use of a current release, or (d) any claim against third party software, content or services that may be included in the Services or G5 Platform.
10.2 Client at its expense, shall indemnify, defend and hold harmless G5 against any losses, costs and damages arising from a claim by a third party for any breach by Client of Sections 2, 4, 5 or 8.1, provided that G5 will provide Client with (i) prompt written notice of the claim, (ii) sole control over the defense or settlement (provided, however, that any such settlement shall not result in financial liability on G5 or require its admission of any fault or the making of any public statement without its prior written consent), and (iii) reasonable support and cooperation with regard to the defense.
Unless earlier terminated pursuant to Section 12, this Agreement shall continue in full force and effect from the Effective Date stated in an Order Form signed by Client and G5, and will continue so long as any Services or Statement of Work under an Order Form between the parties [is in effect/ are being provided by G5].
12.1 Generally. Either party may immediately terminate this Agreement, including any Order Form or Statement of Work, and any order previously accepted by G5: (a) in the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against the other party; or in the event of the appointment, with or without the other party’s consent, of an assignee for the benefit of creditors, or of a receiver; or if the other party admits in writing its inability to pay its debts when due; or (b) in the event the other party has materially breached this Agreement and, if curable, has not cured such breach within 30 days after receiving written notice thereof by the non-breaching party. If a breach is not curable, the non-breaching party can terminate this Agreement immediately.
12.2 By G5 On Certain Conditions. G5 may at any time and upon written notice to Client immediately terminate this Agreement and Client’s access to the Services, G5 Platform or any deliverables under a Statement of Work, or suspend or restrict Client’s access to the Services, G5 Platform or any deliverables under a Statement of Work in whole or in part, if: (a) Client breaches Section 2, License, Section 4.1 Ownership of G5 Proprietary Information or Section 8.1 Client Warranty; or (b) G5 determines in its sole and exclusive judgment that terminating Client’s access to the Services, G5 Platform or deliverables under a Statement of Work is advisable for security reasons, to protect G5 from liability, or for the continued normal and efficient operation of the Services or G5 Platform.
12.3 By Client on Certain Conditions. If Client provides management services to property owners, and if during the term of this Agreement a property owner terminates its agreement with Client in regard to one or more Properties, then upon thirty (30) days prior written notice to G5, and presentation of satisfactory proof of such termination, Client may terminate this Agreement as to the affected Property(ies) only, and G5 will refund to Client within thirty (30) days any unused pre-paid fees for the affected Property(ies). If Client is a property owner and during the term of this Agreement sells one or more Properties, upon presentation to G5 of documents evidencing the completion of sale, Client may terminate this Agreement as to the sold Property(ies) only, and G5 will refund to Client, within thirty (30) days, any unused pre-paid fees for such Property(ies).
12.4 Effect of Termination. Client’s license rights to use the Services or G5 Platform shall terminate immediately upon termination of this Agreement or shall terminate with regard to the relevant Property in the event of a partial termination under Section 12.3.
12.5 Survival of Obligations. Except for termination arising from a material breach by G5 under Section 12.1 Client shall remain liable for all amounts due under any Order Form, and all such sums will become immediately due and payable upon termination or expiration of this Agreement. Upon expiration or termination the provisions of this Agreement relating to ownership of proprietary information and confidentiality and any other provisions which by their nature should survive termination or expiration of this Agreement, shall so survive.
13.1 Entire Agreement. This Agreement and any executed Order Form or Statement of Work sets forth the entire understanding and supersedes all prior and contemporaneous oral and written agreements between the parties relating to the subject matter contained herein.
13.2 Amendment; Modification. The parties to this Agreement may modify, amend or supplement this Agreement in a signed writing explicitly referencing this Agreement and their intent to modify its terms.
13.3 Waiver of Provisions. No waiver by a party of any condition, or breach of any provision term, covenant, representation, or warranty contained in this Agreement, whether by conduct or otherwise, shall be deemed to be or construed as a further or continuing waiver of any such condition or of the breach of any other provision, term, covenant, representation or warranty of this Agreement.
13.4 Severability. If any portion of this Agreement is found to be invalid, illegal, or unenforceable for any reason, the remainder of the Agreement shall continue in force and, if needed, the parties or a court of competent jurisdiction shall substitute suitable provisions having like economic effect and intent.
13.5 Governing Law. The rights and obligations of the parties under this Agreement shall be governed by and construed under the substantive and procedural law of the State of California, including its Uniform Commercial Code, without reference to its conflict of law principles.
13.6 Resolution of Disputes. The parties agree that any and all claims and controversies of any kind relating to this Agreement shall be finally settled by arbitration before one arbitrator in Santa Clara County, California, in accordance with the commercial dispute resolution procedures then in effect of the American Arbitration Association. The arbitrator will be an attorney with not less than ten (10) years trial experience in technology and licensing matters. In the event of arbitration, the prevailing party shall be reimbursed by the non-prevailing party for all reasonable attorneys’ fees and expenses. Both parties understand and agree that arbitration shall be instead of any civil litigation. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief or other equitable remedy without breach of this arbitration provision.
13.7 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Client may not assign this Agreement or the rights or obligations of Client hereunder (including by operation of law or otherwise), except with the written consent of G5, which will not be unreasonably withheld.
13.8 Excuse of Performance. No liability shall result from delay in performance by G5 caused by act of God, fire, flood, war, government action, accident, labor trouble or shortage, inability to obtain material, equipment or transportation, or similar circumstances beyond the reasonable control of G5.
13.9 No Third Party Beneficiaries. Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and permitted assigns, any rights or remedies under or by reason of this Agreement.
13.10 Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by either party shall be in writing and shall be deemed validly given if (i) personally served, (ii) deposited in the United States mail, certified or registered, postage prepaid, or (iii) emailed, in each case to the address of such party set forth in the Order Form. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given three days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given. Either party may change its address for purposes of this paragraph by written notice given in the manner provided above.
Updated October 2012