APPFOLIO TERMS OF SERVICE
The following terms of service (collectively, the "Agreement") governs the use of the AppFolio suite of online services (the "Services") offered by AppFolio, Inc. ("AppFolio," "we," "our", or "us").
BY USING OUR WEBSITES, USING OUR SERVICES, BY CLICKING AN ONLINE ACCEPTANCE BUTTON, OR BY EXECUTING AN AGREEMENT THAT REFERENCES THESE TERMS OF SERVICE, YOU CONSENT TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. WE MAY, IN OUR SOLE DISCRETION, MODIFY OR REVISE THESE TERMS AT ANY TIME BY UPDATING THIS POSTING. YOU ARE BOUND BY ANY SUCH MODIFICATION OR REVISION AND SHOULD THEREFORE VISIT THIS PAGE PERIODICALLY TO REVIEW THESE TERMS. YOUR CONTINUED USE AFTER ANY MODIFICATION INDICATES YOUR ACCEPTANCE OF SUCH MODIFICATION AND, IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE SERVICES.
You may not access the Services if you are our competitor, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 29, 2013.
GENERAL TERMS OF SERVICE
1. Description of Services. We offer hosted software ("Software") as part of, and to provide, the Services. You must have access to the Software in order to use Services that we offer.
1.1 Description of AppFolio Property Manager Services. We offer a hosted property management software (“Property Management Software”) as a complete residential property management solution as part of, and to provide, the Services. You must subscribe to the Property Management Software in order to have access to other Services that we offer. The Order Form that you have executed identifies the Services to be accessed by you and specifies the number of your residential units (“Units”) covered by the Services. The Order Form also specifies the fees for the Services to be covered under the Agreement. A description of the Services and the specific terms related to each of the Services is set forth below under the headings “Additional Terms of Service for Property Management Software,” “Additional Terms of Service for Website Services,” “Additional Terms of Service for ACH Tenant Payment Services,” “Additional Terms of Service for Tenant Liability Insurance,” and “Additional Terms of Service for Screening Services.”
1.2 Description of AppFolio RentApp Services. AppFolio RentApp is the suite of online leasing solution services (the “RentApp Services”) offered by AppFolio. As part of the RentApp Services, we offer the online rental application service, the ability to collect application fees from prospective tenants and, at your option, the online screening services. The sign-up flow that you have agreed to identifies the RentApp Services to be accessed by you. The specific terms related to Credit Card Application Fee Payment RentApp Services and the Screening Services are set forth below under the headings "Additional Terms of Service for Credit Card Application Fee Payment Services," and "Additional Terms of Service for Screening Services," respectively.
1.3 Description of AppFolio SecureDocs Services. AppFolio SecureDocs is the suite of online secure virtual data room services (the “AppFolio SecureDocs Services”) offered by AppFolio. The sign-up flow that you have agreed to, or Order Form that you have executed, identifies the Services to be accessed by you. The sign-up flow or Order Form also specifies the fees for the Services to be covered under the Agreement. A description of the Services and the specific terms related to each of the Services is set forth below under the headings “Additional Terms of Service for AppFolio SecureDocs Service”.
2. Expanding the Services. You may subscribe to additional Services, including new service offerings as may be made available from time to time, or increase your existing service by executing an additional Order Form or sign-up flow, as part of the Services. Each new service or Order Form will include the price and billing date(s) of the Services being added at that time. All new services are subject to these General Terms of Services and any additional terms and conditions that may specifically apply to an additional service.
3. Customer Support. We will use reasonable efforts to provide, at no charge to you, technical support services to you and your authorized users who have subscribed to the Services. A client services representative will be assigned to your cases. Unlimited cases are accepted from authorized users. Our standard support is available 24 x 7, excluding major holidays, which include Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas, and New Years Day. Access to support is best accomplished by e-mailing support. Our response time shall not be greater than two business days.
4. Training. We shall make available to you remote, live or recorded training sessions to designated, named and authorized users as well as provide tutorials which are accessible via the Help and Training section of our program at no additional charge. For some Services we provide some on site training upon request for an additional charge.
5. Your Rights and Restrictions.
5.1 License. Subject to the terms and conditions of the Agreement, and upon timely payment of all applicable fees set forth in the Order Form or sign-up flow, we hereby grant to you a non-exclusive, non-transferable, limited right and license to use (and permit your authorized users to use) our Software, solely as hosted by us to access and use the Services, solely for your business purposes.
5.2 Authorized Users. We will enable you to grant your authorized users and designated employees to access and utilize the Software. You shall be (i) responsible for such users' compliance with the Agreement, and (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Software and notify us immediately of any such unauthorized access or use. It is your responsibility to remove access to the Software if authorized status of a user or designated employee changes.
5.3 Restrictions. You may not (i) disassemble, reverse engineer, decompile or otherwise attempt to decipher any code in connection with the Services or any other aspect of the Software, or modify, adapt, create derivate works based upon, or translate the Services or any other aspect of Software; (ii) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the Services or any other aspect of the Software in any form to any other party; (iii) use the Services except as expressly authorized hereunder or in violation of any applicable laws; (iv) engage in any illegal or deceptive trade practices with respect to the Services; (v) circumvent or disable any security or other technical features or measures of the Services or any other aspect of the Software or, in any manner, attain unauthorized access to the Services, (vi) use the Services to transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (vii) use the Service to store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, or (viii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein.
5.4 Reservation of Rights. No other rights are granted except as expressly set forth in the Agreement. The Agreement is not a sale and does not convey any rights or ownership in, or to, the Services or any other aspect of the Software. We are not granting you any rights whatsoever in any source code underlying the Software, or any part thereof. All right, title, and interest, including all intellectual property rights in the upgrades or modifications thereof, or in any idea, know-how, and programs developed by us or our licensors during the course of performance of the Services shall remain our property.
6. Term and Termination.
6.1 Term. Depending on the Service being provided under this Agreement, the term shall be as follows:
6.1.1 AppFolio Property Manager Term. Following the Initial Term as set out on the Order Form or sign-up flow, the Agreement shall automatically renew for successive one year terms (each a “Property Manager Renewal Term”) unless you provide us with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or any subsequent Property Manager Renewal Term.
6.1.2 AppFolio RentApp Term. Following the Initial Term as set out on the Order Form or sign-up flow, the Agreement shall automatically renew for successive one month terms (each a “RentApp Renewal Term”) unless you provide us with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or any subsequent RentApp Renewal Term.
6.1.3 AppFolio SecureDocs Term. Following the Initial Term, the Agreement shall automatically renew for successive terms (each a “SecureDocs Renewal Term”) as set out on the Order Form or sign-up flow, unless you provide us with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or any subsequent SecureDocs Renewal Term.
6.1.4 The Property Manager Renewal Term, RentApp Renewal Term, and SecureDocs Renewal Term are sometimes referred to collectively as the “Renewal Term.”
6.1.5 Written notice of non-renewal by you must be submitted to AppFolio, Inc., Billing, 50 Castilian Drive, Santa Barbara, CA 93117.
6.2 Termination. Either party may terminate the Agreement (i) if the other party breaches any of its material obligations under the Agreement and such breach is not cured within thirty (30) days of receipt of notice from the non-breaching party or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. We may terminate the Agreement immediately in the event of a breach of Section 5.3 above. Upon a termination of the Agreement, you will immediately discontinue all use of Software, cease to represent in any form that you are a user of the Services, and destroy all our Confidential Information in your possession. Neither party shall be liable for any damages resulting from a termination of the Agreement as provided for herein; provided, however, that the termination of the Agreement shall not affect any claim arising prior to such termination.
6.3 Handling of Your Data in the Event of Termination. You acknowledge and agree that following expiration or termination of the Agreement, we may immediately deactivate the Services and that, following a reasonable period of not less than ninety (90) days, may delete your account and data. However, in the event that the Services are terminated by us, we will grant you temporary, limited access to the Services for the sole purpose of permitting you to retrieve your proprietary data, provided, that you have paid in full all good faith undisputed amounts owed to us. You further agree that we shall not be liable to you or to any third party for any termination of your access to the Services or deletion of your data, provided that we are in compliance with the terms of this Section 6.3.
7.1 Service Fees. Beginning with the Initial Term and for each subsequent Renewal Term, you shall pay the fees for the Services in the amount set forth in the sign-up flow or Order Form ("Service Fees") and according to the billing frequency stated in the sign-up flow or Order Form. Service Fees shall be due and payable on the date of the invoice. Service Fees may be increased based upon our then-current fees.
7.2 Additional Fees. Additional terms related to fees for other Services are set forth below under the applicable Service heading.
7.3 Late Payments. In addition to any other remedy otherwise available to us, payments made later than the due date will accrue interest from the date due to the date paid at the lesser of the rate of (i) 10% per year, or, (ii) the highest rate allowed by applicable law.
7.4 Taxes. You shall be responsible for all sales tax, use tax, value added taxes, withholding taxes and any other similar taxes and charge of any kind imposed by federal, state or local governmental entity on the transactions contemplated by the Agreement. When we have the legal obligation to pay or collect taxes for which you are responsible, pursuant to this Section, the appropriate amount shall be invoiced to and paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
8. Representations and Warranties.
8.1 Mutual Representations and Warranties. Each party hereby represents and warrants to the other party that (i) it has all necessary authority to enter into and perform its obligations under the Agreement without the consent of any third party or breach of any contract or agreement with any third party, (ii) all persons performing any obligations hereunder have entered into all necessary agreements in order for it to comply with the terms and conditions of the Agreement, and (iii) it shall comply in all material respects with all laws applicable to the Services.
8.2 Additional Representations and Warranties. You warrant, represent and covenant to us that you will use the Services only for lawful purposes in accordance with the Agreement and all applicable policies and guidelines.
8.3 Disclaimer of Warranties.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SOFTWARE OR THE SERVICES WILL MEET ALL OF YOUR REQUIREMENTS, INCLUDING ACCOUNTING REQUIREMENTS, OR THAT THE USE OF THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SOFTWARE AND SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS AND YOUR USE OF SOFTWARE AND SERVICES IS AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, COMPLIANCE WITH ANY LAWS OR REGULATIONS RELATED TO PROPERTY MANAGEMENT. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT.
WE DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO ANY FEDERAL OR STATE STATUTES OR REGULATIONS THAT MAY BE APPLICABLE TO YOU. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW.
9. Confidential Information. Unless expressly authorized by the other party, neither party shall disclose to any third party any information or materials provided by the other party under the Agreement and reasonably understood to be confidential ("Confidential Information"), or use such Confidential Information in any manner other than to perform its obligations under the Agreement. The foregoing restrictions do not apply to any information that is in the public domain or already in the receiving party's possession, was known to the receiving party prior to the date of disclosure or becomes known to the receiving party thereafter from a third party having an apparent bona fide right to disclose the information, or Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, providing receiving party provides disclosing party of timely notice of such court order or subpoena. Furthermore, you will keep in strict confidence all passwords and other access information to the Services. This Section 9 shall survive termination or expiration of this Agreement.
10.1 Indemnification for Infringement. Subject to Section 10.4, we shall, at our expense, defend, indemnify, and hold you harmless from and against all claims, losses, liability, actions, demands or expenses which arise out of or result directly from third party claims, suits or proceedings brought against you alleging that the Services, used by you in accordance with this Agreement, infringe any US patent issued as of the Effective Date or any copyright, trademark or trade secret of any third party during the term of the Agreement (collectively referred to as the "Intellectual Property Underlying the Services"). In the event an injunction is sought or obtained against use of the Intellectual Property Underlying the Services or in our opinion is likely to be sought or obtained, we shall, at our option and expense, either (i) procure for you and your named authorized users the right to continue to use the Services, or (ii) replace or modify the Services to make their use non-infringing while being capable of substantially performing the same function. In the event subsections (i) and (ii) above are not commercially practicable, we may terminate the Services and refund any prepaid, but unused Service Fees. We shall not be obligated to defend or be liable for any costs or damages under this Section 10.1 if the alleged infringement arises out of or is in any manner attributable to any modification of any Services by you (or any of your authorized or designated users) or is due to the use of Services in combination with your other services and products if such infringement would have been avoided without such modification or combination (each an "Excluded Claim"). The indemnification obligations contained in this Section 10.1 shall survive termination of this Agreement.
10.2 Indemnification for Data Security and Privacy. Subject to Section 10.4, and during the life of the Agreement, we shall defend, indemnify, and hold you harmless from and against all claims, losses, liability, actions, demands or expenses which arise out of or result directly from our gross negligence in preventing unauthorized access to, or willful misconduct in disclosing, confidential personally identifiable information of your customers received by us. This indemnity will not apply to the extent the portion of such claim, loss, liability, action, demand or expense is the result of your negligence or willful misconduct or that of your agents or representatives, or to the extent liability is disclaimed or limited by either party under the Agreement. The indemnity obligations set forth in this section are contingent upon you proving actual damages, including reasonable attorney's fees, resulting from any act, omission or negligence by us. At our request and expense, you shall cooperate in the investigation, defense and settlement of such claim(s), loss(es), liability(ies), action(s), demand(s) or expense(s).
10.3 Your Indemnification. You agree to indemnify, hold harmless, and defend us and all our employees, officers, directors and agents from any third party claims, damages, losses, liabilities and expenses (including reasonable attorneys' fees) arising out of or relating to (i) your use of the Services in violation of the Agreement, (ii) an Excluded Claim, or (iii) any actual or alleged breach by you of any representation, warranty, covenant or obligation under the Agreement or your gross negligence or willful misconduct. Your indemnification obligation under this Section 10.3 shall survive any termination or expiration of the Agreement.
10.4 Notification and Cooperation. The indemnifying party's obligations to the indemnified party under this Section 10 above are conditioned upon (i) indemnified party notifying indemnifying party promptly in writing, upon knowledge of any claim, for which it may be entitled to indemnification under the Agreement; (ii) to the extent applicable, indemnified party ceasing use of the claimed infringing activity upon receipt of notice of same; (iii) indemnified party permitting indemnifying party to have the sole right to control the defense and settlement of any such claim (provided that indemnifying party may not settle any claim unless the settlement unconditionally releases indemnified party from all liability); (iv) indemnified party providing reasonable assistance to indemnifying party, at indemnifying party's expense, in the defense of such claim; (v) indemnified party not entering into any settlement agreement or otherwise settling any such claim without indemnifying party's express prior written consent or request; and (vi) indemnified party complying with any settlement or court order made in connection with the claim (related to the future use of any infringing materials). Indemnified party may participate in the defense or settlement of a claim with counsel of its own choice and at its own expense.
10.5 Exclusive Remedy. This Section 10 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section.
11. Limitation on Liability. EXCEPT WITH RESPECT TO DAMAGES ARISING IN CONNECTION WITH SECTION 5.3, IN NO EVENT SHALL EITHER PARTY'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE SUM OF THE AMOUNTS PAID BY YOU FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEEDING THE DATE THE CAUSE OF ACTION AROSE.
EXCEPT WITH RESPECT TO DAMAGES ARISING IN CONNECTION WITH SECTION 5.3 IN NO EVENT SHALL EITHER PARTY HERETO, ITS LICENSORS OR SUPPLIERS, HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING OUT OF THE AGREEMENT, THE PERFORMANCE OR NONPERFORMANCE BY EITHER PARTY OF ITS OBLIGATIONS HEREUNDER, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Personal Information and Privacy Statement. You will comply with all applicable privacy and other laws and regulations relating to protection, collection, use and distribution of Personally Identifiable Information (as defined below) of any person. You will post a privacy statement on the page where you collect Personally Identifiable Information ("Privacy Statement") that complies with all applicable laws, regulations and rules and, at a minimum, notifies users of the Personally Identifiable Information collected, how it will be used and how it will be secured. Such Privacy Statement shall also include technical information related to collection, transmission and storage of Personally Identifiable Information provided by us. You agree to comply with the descriptions and provisions of the Privacy Statement. "Personally Identifiable Information" means any information that can be associated with or traced to any individual, including an individual's name, address, telephone number, e-mail address, credit card information, social security number or other similar specific factual information, regardless of the media on which such information is stored (e.g., on paper or electronically).
13.1 Independent Parties. You and AppFolio are independent contractors. The Agreement does not create any joint venture, partnership, agency or employment relationship between the parties. You shall be solely responsible for managing your Units and for any and all compensation, taxes, benefits and liabilities to your Units and any of your other employees or service providers. Neither you nor any of your employees, Units or representatives shall make any representations, warranties or guarantees with respect to us, the Agreement or the Services (including, without limitation, that we are a warrantor or seller of any of your products) other than as expressly authorized by us.
13.2 Assignment. Neither the Agreement nor any of your rights or obligations under the Agreement may be assigned or transferred, by operation of law or otherwise, without our prior written consent, unless assigned to a successor in interest, or pursuant to a merger, corporate reorganization, or a sale or transfer of all or substantially all of your assets. An assignment by you based on any other circumstances requires our consent, which consent shall not be unreasonably withheld.
13.3 Force Majeure. Neither party will be responsible for any delay, interruption or other failure to perform under the Agreement due to acts beyond the control of the responsible party, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; a local exchange carrier's activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; and governmental decrees and any other cause beyond the reasonable control of a party.
13.4 Choice of Law. The Agreement and any dispute arising out of or in connection with the Agreement shall be governed by and construed under the laws of the State of California, without regard to the principles of conflict of laws. All disputes arising out of or related to the Agreement shall be subject to the exclusive jurisdiction and venue of the California state and federal courts for Santa Barbara, California, and the parties consent to the personal and exclusive jurisdiction of these courts.
13.5 E-mail and Notices. You further agree that we may provide any and all notices, statements and other communications to you through either e-mail, mail, express delivery service, or delivered by a recognized commercial carrier addressed to the address last designated on the Agreement. You are responsible for providing us with any updated contact information.
13.6 No Waiver. No waiver or amendment of any term or condition of the Agreement shall be valid or binding on any party unless agreed to in writing by the party to be charged. In the event you issue a purchase order, other order confirmation, or any documentation which contains terms or conditions contrary to the Agreement, the terms of the Agreement shall prevail and any such contradictory terms or conditions shall have no force or effect.
13.7 Export. Both parties agree to comply with applicable US export and import laws and regulations.
13.8 Publicity. We may not name you as a user of the Services without your written consent.
ADDITIONAL TERMS OF SERVICE FOR PROPERTY MANAGEMENT SOFTWARE
1. Management and Accounting. By subscribing to the Services, and during the terms of the Agreement, you may access and use our Property Management Software to allow you to manage the properties and perform necessary accounting procedures.
2. Migration of Data. You and AppFolio shall determine in advance the amount of data, number of data sources and other considerations applicable to the data migration process. You shall be responsible for providing data in a format deemed acceptable by us. You shall retain all right title and interest in and to such data and other materials. You shall provide such materials and reasonable assistance as identified by us for the migration of your data. If the migration of data is not completed upon a scheduled date on two or more occasions, we will have the right to charge an additional Data Migration Fee (as defined below) at our sole discretion.
3. Initial Set Up. You, in consultation with AppFolio, shall determine the appropriate set up and configuration of your online account. Following the set-up, configuration and data migration, you shall be responsible for approving and signing off on such initial set-up.
4. Data Migration Fees. The fees for data migration in the amount set forth on the Order Form (“Data Migration Fees”) are due and payable on the date of invoice. Data Migration Fees are nonrefundable unless we fail to complete the data migration.
5. Re-Migration. In the event that another migration of data is necessary as a result of a change of your business name, a change in your tax identification number, a change in your business structure or any other similar reasons (“Re-Migration”), we will charge an additional one-time fee for setting up a new database and/or migrating the data with the existing database. We will help determine the optimal plan for Re-Migration based upon the individual situation.
6. Property Management Software Fees. Beginning with the Initial Term and for each subsequent Renewal Term, you shall pay the fees for the Property Management Software in the amount set forth on the Order Form (“Property Management Service Fees”) and according to the billing frequency stated on the Order Form. Property Management Service Fees shall be due and payable on the date of invoice. Property Management Service Fees may be increased for Renewal Terms based upon our then-current fees and your active Unit count.
7. Additional Units; Databases. You may increase the number of Units and/or add additional databases by executing an additional Order Form. Each Order Form will include the price and billing date(s) of the additional Units or databases being added at that time. You shall pay an additional implementation fee as set forth in the Order Form for any additional migrations or additional databases on the date of invoice. In the event that additional Units or databases are added during the Initial Term or any Renewal Term, the Service Fees for such additional Units or databases will be due and payable on the date of invoice and the term for such additional Services shall be coterminous with the other Services provided hereunder.
ADDITIONAL TERMS OF SERVICE FOR APPFOLIO SECUREDOCS SERVICE
1. Management and Accounting. By subscribing to the Services, and during the terms of the Agreement, you may access and use our Secure Virtual Data Room Service to allow you to securely store and access documents.
2. Migration of Data. You and AppFolio shall determine in advance the amount of data, number of data sources and other considerations applicable to the data migration process. You shall be responsible for providing data in a format deemed acceptable by us. You shall retain all right, title and interest in and to such data and other materials. You shall provide such materials and reasonable assistance as identified by us for the migration of your data. If the migration of data is not completed upon a scheduled date on two or more occasions, we will have the right to charge an additional Data Migration Fee (as defined below) at our sole discretion.
3. Initial Set Up. You, in consultation with AppFolio, shall determine the appropriate set up and configuration of your online account. Following the set-up, configuration and data migration, you shall be responsible for approving and signing off on such initial set-up.
4. Data Migration Fees. The fees for data migration in the amount set forth in the sign-up flow or on the Order Form (“Data Migration Fees”) are due and payable on the date of invoice. Data Migration Fees are nonrefundable unless we fail to complete the data migration.
5. Re-Migration. In the event that another migration of data is necessary as a result of a change of your business name, a change in your tax identification number, a change in your business structure or any other similar reasons (“Re-Migration”), we will charge an additional one-time fee for setting up a new database and/or migrating the data with the existing database. We will help determine the optimal plan for Re-Migration based upon the individual situation.
6. AppFolio SecureDocs Service Fees. Beginning with the Initial Term and for each subsequent Renewal Term, you shall pay the fees for the AppFolio SecureDocs Service in the amount set forth in the sign-up flow or on the Order Form (“AppFolio SecureDocs Service Fees”) and according to the billing frequency stated in the sign-up flow or on the Order Form. AppFolio SecureDocs Service Fees shall be due and payable on the date of invoice. AppFolio SecureDocs Service Fees may be increased for Renewal Terms based upon our then-current fees.
7. Additional Data Rooms. You may add additional data rooms by executing an additional sign-up flow or Order Form. Each additional sign-up flow or Order Form will include the price and billing date(s) of the data rooms being added at that time. You shall pay an additional implementation fee as set forth in the additional sign-up flow or in the Order Form for any additional migrations or additional data rooms within thirty (30) days of the date of invoice. In the event that additional data rooms are added during the Initial Term or any Renewal Term, the Service Fees for such additional data rooms will be due and payable on the date of invoice and the term for such additional Services shall be coterminous with the other Services provided hereunder.
8. Fair Use Policy. You understand that the intended use of the AppFolio SecureDocs Service is to share business documents with company employees and external business partners. It is not meant as a backup solution, replacement for a file server, content distribution network, or to store non-business documents such as systems software or large media files. We reserve the sole discretion to deny or restrict your Service, or immediately to suspend or terminate your Service, if the use of your Service by you or anyone using it, in our sole discretion, violates the Agreement or other AppFolio policies, is objectionable or unlawful, interferes with the functioning or use of other users, or violates the terms of this Fair Use Policy.
ADDITIONAL TERMS OF SERVICE FOR WEBSITE SERVICES
1. Website Hosting. By subscribing to the Property Management Software, and during the term of this Agreement, you shall have the option to receive our website hosting service (“Website Hosting Service”). As part of the Website Hosting Service, we shall be responsible for the initial set-up and registration of one domain name or transferring of one domain name if we decide, in our sole determination, the registration or transfer is necessary for the Website Hosting Service. If more than one domain name must be registered or transferred, additional fees may apply. You shall be responsible for providing materials and reasonable assistance as identified by us for the registration and/or transfer of domain name(s). We will maintain current domain registration as long as you are subscribing to the Website Hosting Service. As part of the set-up process, we will give you an opportunity to modify the current content of your website. We will interact with your current hosting company only if necessary and will not be responsible for any costs incurred to obtain files or other transfer related costs.
2. Design and Content for Website. By subscribing to the Website Hosting Service, you shall have the option to receive a website design service (“Website Design”). As part of the Website Design, we shall offer design templates for your website with a limited selection of alternative text, images and colors; provided, however, that you shall remain responsible for final content of your website. We will not provide custom design and photography services and may, in our sole determination, provide recommendations for changes to content, testimonials, etc. You agree not to hire a third party to modify the website or the content and you agree to use AppFolio to make any changes to the content on the website.
3. Integration Services. By subscribing to the Website Hosting Service, you may request us to integrate all the Services for your website such as our vacancy listings, tenant portal, owner portal and other services; provided, however that we will not be responsible to integrate your website with any third party services. Links to outside services may be available upon request. We do not provide paid search engine placement, but will make recommendations and utilize web industry best practices to maximize exposure to search engines.
4. Your Website Content.
4.1 License. You grant us a non-exclusive, worldwide and royalty-free license for the term of the Agreement to (i) edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, or otherwise use all data and content of your website including all content you will upload in conjunction with the Services (the “Content”), and (ii) to make archival or back-up copies of the Content, as necessary for the purpose of rendering and operating the Services to you under the Agreement. Except for rights expressly granted under the Agreement, we do not acquire any right, title or interest in or to the Content, all of which shall remain solely with you.
4.2 Our Rights. We may restrict or remove from our servers any Content that violates the Agreement or any related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party’s rights or that potentially violates any laws. These rights of action, however, do not obligate us to monitor or exert editorial control over the information available for distribution via the Services. If we take corrective action because of any possible violation, we will not refund to you any fees paid by you in advance of the corrective action.
4.3 Additional Representations and Warranties. To the extent that you are using any of the website services, you warrant, represent and covenant to us that (a) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including Content, descriptive claims, warranties, guaranties, nature of business and address where business is conducted; (b) you are the owner or valid licensee of the Content and have secured all necessary permissions, consents, licenses, waivers and release for the use of the Content and each part thereof, and (c) use, publication and display of the Content does not, and will not, infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
5.1 Website Set Up Fee. The non-refundable one-time website set-up fees set forth in the Order Form is due and payable on the date of invoice.
5.2 Website Monthly Fees. If Plus package website offering is purchased, then a recurring monthly fee per website is applicable as set forth in the Order Form, and is due and payable on the date of invoice.
ADDITIONAL TERMS OF SERVICE FOR ACH TENANT PAYMENT SERVICES
1. ACH Services. By subscribing to the Property Management Software, and during the term of the Agreement, you may request us to process ACH tenant payments (“ACH Services”). You shall be responsible for providing materials and reasonable assistance as identified by us for the underwriting and application process. If approved through the underwriting process, we shall, as part of ACH Services, be responsible for the initial set-up and registration.
2. Additional Representations and Warranties. To the extent you are using the ACH Services, you further warrant, represent and covenant to us that (a) you have verified or will verify the accuracy of transactions processed or payments collected via the ACH Services, and (b) you have secured all necessary permissions, consents, licenses, waivers and release for the processing of the ACH Services and each part thereof.
3. Our Rights. We may restrict or remove from our servers any access to processing ACH Services if you violate the Agreement or any related policies or guidelines.
4. Sage Payment Solutions Terms of Service. By using our ACH Services, you also agree to the following conditions with our third-party processor (“Sage Payment Solutions”).
The following terms and conditions govern Company’s use of Sage Payment Solutions' ACH Processing Services (the "Services") for its virtual check products.
The term “Sage” means “Sage Payment Solutions”, a Virginia corporation. The term “Company” refers to the merchant receiving the Services. These are the terms and conditions referred to in the Sage Payment Solutions Virtual Check Merchant Processing Agreement attached hereto, the provisions of which are incorporated herein by reference. These terms and conditions and the attached application constitute the entire agreement between Sage and Company with respect to the subject matter hereof.
Sage is providing an Internet gateway to enable Company’s customers to pay for goods and services by means of the Automated Clearing House (“ACH”) process. This Agreement and Sage’s Web site includes important disclosures and regulatory information that are associated with the Services. The Services allow Company to collect periodic payment receivables from its customer accounts ("Customer Accounts") through Sage Virtual Check and/or transfer credits to its customers through use of the ACH process; Sage will act as Company’s agent to initiate credit, debit and adjustment Entries through an Originating Depository Financial Institution (the "Bank"), all pursuant to the terms of this Agreement, the provisions of Title 31 Code of Federal Regulations Part 210 and the operating rules of the National Automated Clearing House Association, as amended from time to time (collectively referred to herein as the "Rules"). Company agrees that it entering into this Agreement, that it will be bound by the Rules. Company understands that in order for the Services, including future services that may be available, to perform, Company is solely responsible for the hardware, software or other technology it uses to access the Services, which will be processed via ACH. Sage will not be responsible for any service difficulties resulting from Company’s failure to possess technology adequate to use the Services.
TERMS & CONDITIONS
1. Definitions. Except as otherwise defined herein, capitalized terms shall have the meanings provided in the Rules. The term "Entries" shall have the meaning provided in the Rules and shall also mean the data received from the Company hereunder from which Sage prepares Entries.
2. Transmittal of Entries by Company. The Company will use reasonable efforts to provide computer readable information that is accurate, current and in the format specified in the Rules and in conformance with other requirements set forth by Sage, as the same may be amended from time to time, necessary to prepare debit and credit Entries in order to effect collection from and credit to Customer Accounts of the following types: ARC, PPD, WEB, CCD, TEL, POP, RCK. The Company shall update such information from time to time in order that it remains current and accurate at all times. The Company hereby authorizes Sage to initiate ACH credits, debits and adjustments to the Authorized Account. This authorization will remain in effect after termination of this Agreement until all of the Company's obligations to Sage have been paid in full. Confirmation from Sage of a credit or debit ACH transaction does not constitute a warranty that the Company will be paid for the transaction.
3. Processing and Transmittal of Entries. (a) Debits. Sage shall process Entries received from the Company to conform with the file specifications set forth in the Rules, transmit such Entries to the Bank for re-transmittal to the ACH Operator or other location designated by the Bank, all in accordance with the Rules and applicable regulations and operating circulars adopted or issued by the Federal Reserve Board or applicable Federal Reserve Bank, as in effect from time to time. Each Entry or File shall be delivered to Sage by an authorized representative of the Company in accordance with the processing instructions attached hereto. Provided the Company delivers the necessary data in accordance with the processing instructions and in an acceptable format, Sage shall initiate debit Entries to electronically debit Customer Accounts for settlement on the Effective Entry Date (or next banking day in the event that the Effective Entry Date falls on a non-banking day at the customer's depository institution), however if any Debit Entries are returned to Sage in accordance with the Rules, or if any Debit Entries originated by you were unauthorized, Sage reserves the right to charge the amount of such Debit Entries to the Authorized Account. All Net Settlement Amounts (as defined in Section 16 below) shall be deposited into the account at the financial institution designated in the Application attached hereto to which Sage and the Company are parties ("Authorized Account"). (b) Credits. Provided the Company delivers the necessary data in accordance with the processing instructions and in an acceptable format and deposits immediately available funds into the Agent Account (as hereinafter defined) in an aggregate amount equal to the Entries to be transmitted, Sage shall initiate credit Entries to electronically credit Customer Accounts for settlement on the Effective Entry Date (or next banking day in the event that the Effective Entry Date falls on a non-banking day at the customer's depository institution). Unless such funds are timely received, Sage shall be under no obligation to transmit the related Entry(ies). Once an Entry is transmitted by Sage, the Company shall have no right to the cancellation or amendment of any Entry after its receipt by the Bank. However, Sage shall use reasonable efforts to act on a request by the Company for cancellation of such Entry(ies) prior to crediting a Receiver's account. The Company acknowledges and agrees that, if an Entry describes its customer or other Receiver inconsistently by name and account number, payment of the Entry transmitted to the Receiving Depository Financial Institution might be made by the Receiving Depository Financial Institution (or by the Bank in the case of an "on-us" Entry) on the basis of the account number even if it identifies a person different from the named customer or Receiver, and that the Company's obligation to pay the amount of the Entry to Sage is not excused in such circumstances. Company agrees that Sage may withhold any amounts due to the Company from subsequent payments in the event of an overpayment by Sage to Company.
4. Authorizations; Prenotifications. The Company will obtain written authorizations for each requested Entry that it has received from its customers, or, in the event of an authorization for a TEL entry, the minimum information requirements in accordance with the Rules must be provided to Sage. The Company shall further retain the original or a microfilm record for two (2) years after termination or revocation of such authorization, or in the case of an authentication made via telephone, the Internet or other on-line network, the Company must retain a copy of the authorization and a recorded record of the authentication. The foregoing authorizations shall be provided to Sage upon request. The Company agrees that, at its cost, it will periodically review its authentication techniques to ensure that its security measures are adequate, and make all necessary changes, to ensure that all authentication techniques are in accordance with all applicable laws, regulations and statutes and the Rules. Sage may, at its option, initiate a pre-notification entry for any ACH transaction. If Sage chooses to transmit pre-notification entries, it will not initiate live dollar entries until at least six (6) banking days following the settlement date of the prenotification entry. Such notice shall be provided to the Bank in the format and on the medium provided in the Rules. After Sage has received notice that any such notification has been rejected by a receiving financial institution, or that a receiving financial institution will not receive Entries without having first received a copy of the authorization signed by its customer, Sage will not initiate any Entry to such customer unless and until the Company provides Sage and the receiving financial institution with such authorization within the time limits provided by the Rules. If individual ACH transaction values or the monthly total of the Company’s ACH Debits and Credits exceeds Sage’s standard limits, Company may request Sage to increase these limits by agreeing to additional underwriting review to be performed by Sage. If Rejects or Returns exceed two percent (2.0%) of total monthly transaction volume, Sage reserves the right to (i) adjust transaction fees and rates, (ii) require reserves, or additional reserves as defined in this Agreement; or (iii) to cease providing the Services described hereunder if Sage in its sole discretion determines that the Services provided to the Company hereunder contribute to an unacceptable volume of ACH returned items. Additional factors that may determine adjustment of fees, potential reserves or cancellation include average sale amount, processing volume, credit volume, and other factors that may affect the risk of fraud or merchant instability, in the sole discretion of Sage.
5. Rejects/Returns/Revocations of Authorization; Reserve Account. Sage shall notify the Company by fax or electronic transmission of the receipt of a returned Entry from the ACH Operator no later than two (2) business days after such receipt. Except for an Entry transmitted by the Company in accordance with Section 3, Sage shall have no obligation to re-transmit a returned Entry or reinitiate an Entry without further evidence of valid authorization. Company hereby agrees, if so requested by Sage, to maintain a reserve with Sage with a sufficient balance in Sage’s sole discretion to cover Returns, NSF, reversal of ACH transactions and similar debits and fees payable hereunder and any other liabilities of Company as specified in Section 16 ("Reserve Account"). Company authorizes Sage to establish and maintain reserves in such Reserve Account by means of offset from daily settlement activity or provide such reserve funds requested by Sage within 48 hours of the request. Company will pay to Sage the amount of any returned debit that cannot, for any reason in part or in whole, be debited against Company. Company understands that electronic funds transfers can be “charged back” or “returned” against the Originating Financial Depository Institution’s account for up to 60 days following the statement date of the receiving institutions’ transaction notification to customers’ accounts for debit and credit entries. If the Company wishes to revoke an authorization, (other than for a POP, TEL and Single Entry WEB entries) it must do so directly with Sage and provide an executed affidavit to the RDFI that the debit entry has been revoked directly with Sage. Sage's Bank may request a copy of the affidavit within one (1) year of the date on which the adjustment entry was initiated by the RDFI.
6. Compliance with Laws and the Rules; Notification of Change. The Company and its principals understand the Rules, agree to be bound by, and shall comply with the Rules. Furthermore, the Company agrees to comply with all applicable Federal, state and local laws, rules and regulations as amended from time to time regarding the subject matter of this Agreement, including but not limited to the Federal Fair Credit Reporting Act and Regulation E, 12 CFR 205 et. seq., Regulation CC, Articles 4 and 4A of the Uniform Commercial Code, and the Electronic Funds Transfer Act. The specific duties of the Company provided in this Agreement in no way limit the foregoing undertaking. The Company agrees that it will promptly respond to all Reports of Possible ACH Rules Violation to Sage. Company bears the final responsibility to ensure that its consumers' policies and procedures meet the requirements of the Rules. The Company agrees to consult with its counsel regarding compliance of its authorization and payment procedures and its compliance with the Rules, and shall not rely on Sage for any advice with respect to compliance with the Rules, or any Federal, state, or local rule, statute, regulation or law. Sage shall make reasonable attempts to provide the Company with a notification of change ("NOC") from the ACH Operator within two (2) business days following the Bank's receipt of same, if the Bank has provided Sage with the NOC. Sage shall, following receipt of an NOC, reserve the right not to re-transmit or reinitiate an Entry without confirmation that the Entry is accurate.
7. Rejected Entries. Sage shall use reasonable efforts to notify the Company of a rejected Entry by fax or electronic transmission no later than the following business day such Entry would have been transmitted by Bank or ACH Operator to Sage. Regardless of the reason for a rejected Entry, it shall be the responsibility of the Company to remake such Entries or provide sufficient data for Sage to remake the same; provided, however, that Sage shall remake such Entries in any case where such rejection by the ACH was due to mishandling of such Entries by Sage and sufficient data is available to Sage to permit it to remake such Entries. The Company shall retain and provide Sage on request all information necessary to remake any file of Entries for three (3) days after the midnight of the Settlement Date.
8. Reversals; Erroneous Entries. The Company shall be responsible for monitoring the accuracy of all transmittals and of notifying Sage of any duplication or error requiring correction. The Company shall not knowingly transmit any false information. Sage may assess a processing fee of up to $500 per occurrence for each instance in which it proves that the Company has knowingly transmitted false information as part of an Entry. If the Company discovers that any Entry it has initiated was in error, it must notify Sage within 24 hours of the discovery of the error. If such notice is received no later than three hours prior to the ACH receiving deadline, Sage will utilize reasonable efforts to initiate a reversing Entry or stop payment of any "on us" Entry within the time limits provided by the Rules. If such notice from the Company is received after the time provided above, Sage would utilize its reasonable efforts on behalf of the Company. Except for an Entry transmitted by the Company in accordance with Section 3, Sage shall have no liability for and shall be indemnified (including attorneys' fees and costs) by the Company for its efforts to affect an adjusting Entry or stop payment.
9. Marketing Materials; Use of Sage Marks; Company's Marks. The Company shall have a non-exclusive license to use Sage marketing materials containing the Sage name, service mark, symbols, and logos associated therewith as may be supplied by Sage from time to time including but not limited to EFTCash® Sage™, Sage Virtual Check™, and Sage Gateway™ (the “Sage Marks”). The Company will use the Sage Marks only in a manner and form approved by Sage. Company is granted by Sage the right to use the Sage logo unaltered on its web-site in the reasonable representation of the Company's use of the Services until such time as this Agreement is terminated and solely in the connection with the solicitation of its customers' agreement to utilize the Services provided hereunder. All right, title, ownership and interest in and to the Sage Marks remain with Sage, and upon termination of this Agreement, the Company shall have no further right to the use of the Sage Marks, shall immediately cease all use and display thereof, and shall return to Sage all such marketing materials provided by Sage and remaining in Company’s possession. If at any time during the term of this Agreement, Sage determines that the Company is not utilizing the Sage Marks in accordance with the terms of this Agreement, Sage may demand that the Company cease and desist from all use of the Sage Marks and return all such marks directly to Sage. The Company is fully responsible for the content of its web site and for the advertising and promotion through any media of all of its offerings. The Company certifies and represents to Sage that it is the owner or that it has full right and authority to use and disseminate all information, data, graphics, text, video, music or other intellectual property which either forms a part of its web-site, which is provided by Company to its consumers, or which is used by Company in its advertising or promotion.
10. Acceptance of ACH Rules. In order to facilitate the Company's compliance hereunder with the Rules and with applicable law, subject to the limitations set forth in Paragraph 6, Sage may provide certain materials, and forms ("Materials") and may make available appropriate personnel as it deems appropriate to assist the Company to maximize their use of the Services offered hereunder. The Company further acknowledges that it is an Originator under the Rules. All Materials are provided solely for the convenience of the Company, and Sage makes no representation or warranty as to the legal sufficiency thereof and assumes no liability therefore, and Company represents and warrants that it will have its own legal counsel review the sufficiency thereof and will rely on its own business and legal judgment in determining to what, if any, extent it wishes to utilize Sage Materials. All such forms shall be printed at the sole expense of the Company and all unused Materials shall be returned to Sage or destroyed by the Company upon termination of this Agreement.
11. Data Retention; Verification and Security. The Company shall retain data on file adequate to permit remaking of Entries for seven (7) banking days following the date of their transmittal by Sage as provided herein, and shall provide such data to Sage upon its request. For Internet-initiated Entries, the Company represents and warrants that it shall ensure that the financial information it receives is protected by security practices and procedures that include (i) physical security to protect against theft, tampering or damage, (ii) personnel and access controls to protect against unauthorized access and use, (iii) network security to ensure secure capture, storage and distribution, (iv) 128- bit encryption technology for Internet transactions, (v) commercially reasonable fraud detection systems, (vi) procedures to verify routing numbers and authenticate consumer identity, and procedures to establish credit-worthiness and exposure limits for its customers. Company agrees that it shall conduct or have conducted annual audits to ensure that the financial information it obtains from its customers is protected by security practices and procedures that include, at a minimum level, the practices set forth in (i) through (iii), hereinabove. For each Entry initiated in response to a telephone authorization from a consumer, Company represents and warrants that its has employed commercially reasonable procedures to verify the identity of the consumer; and that it has utilized commercially reasonable procedures to verify that each routing number is valid.
12. Further Representations and Warranties of Company. The Company represents, warrants and agrees that (a) All information contained in this Agreement, any application or in any other documents delivered to Bank and/or Sage in connection therewith is true and complete and properly reflects Company's business, financial condition and principal partners, owners or officers; (b) this Agreement (i) has been duly authorized, and delivered by the Company; (ii) is in full force and effect; (iii) the person executing this Agreement is duly authorized to bind the Company to all provisions of this Agreement; and (iv) such person is authorized to execute any and all documents and to take any action on behalf of the Company which may be required by Sage now or in the future; (c) this Agreement does not violate any law or conflict with any other agreement to which the Company is bound; (d) There is no action, suit or proceeding pending or threatened which if decided adversely would impair Company's ability to carry on its business substantially as it is now being conducted; (e) the Company has obtained all necessary regulatory approvals, licenses and certificates to provide any services that it intends to offer; (f) the Company shall perform its obligations under this Agreement in accordance with all applicable laws and regulations, regardless of the nature of the laws and regulations, and shall continue to comply with all applicable laws and regulations that may apply to it in the future; (g) Company shall be bound by and comply with the Rules as in effect from time to time and acknowledges that Entries may not be initiated that violate the Rules, or laws of the United States; (h) it shall pay all taxes and other charges imposed by any governmental authority on the Services provided under this Agreement (i) each person shown as the Receiver on an Entry received by Sage from Company has authorized the initiation of such Entry and the crediting and/or debiting of such person's account in accordance with the Rules, by Regulation E or other applicable law and this Agreement in the amount and on the Effective Entry Date shown on such Entry, and the Company will retain all of such authorizations for a period of six (6) years after their termination or revocation or for such longer period as may be required by the Rules or applicable law and provide a copy to Sage upon request; (j) such authorization is valid at the time of transmittal or crediting/debiting by Sage as provided herein and has not been revoked by operation of law or otherwise; (k) Entries transmitted to Sage by Company are limited to those types of credit and debit Entries set forth in Schedule A, and is for an amount which, as of the applicable Settlement Date, will be due and owing, has been specified to be paid, or is a correction of a previously transmitted erroneous Entry; (l) except as otherwise notified by Company, each of the Customer Accounts is a "consumer account" within the meaning of Federal Reserve Board Regulation E; (m) all transactions submitted hereunder are bona fide; (n) Company has never been terminated for cause from an agreement in which the Services contemplated herein are provided; (o) this Agreement constitutes the legal, binding and enforceable obligation of Company, enforceable in accordance with its terms; (p) each Entry conforms in all respects to the Rules and applicable law; and (q) Company authorizes Sage to audit its records to confirm compliance with this Agreement. All Sage instructions as set forth in this Agreement or in any schedule shall be complied with by Company. Non-compliance may result in immediate implementation of non-compliance fines and/or cessation of service by Sage.
13. Liability; Limitations on Liability. Sage shall be responsible only for performing the Services expressly provided for in this Agreement, and may be liable only for its gross negligence in performing those Services. Sage shall not be responsible for the acts or omissions of the Company or its owners, directors, officers, employees or representatives (including without limitation the amount, accuracy, timeliness of transmittal or due authorization of any Entry received from the Company) or those of any other person, including, without limitation, the Bank, any Federal Reserve Bank or transmission or communications facility, any Receiver or Receiving Depository Financial Institution (including without limitation the return of an Entry by such Receiver or Receiving Depository Financial Institution), and no such person shall be deemed Sage's agent. Sage also will not be responsible for any loss, liability or delay caused by fires, earthquakes, wars, civil disturbances, power surges or failures, acts of government, labor disputes, failures in communication, networks, legal constraints or other events beyond its control Because of the difficulty of determining actual damages for any failure of Sage to perform its obligations under this Agreement, the parties agree that the extent of any damages hereunder, if any, shall be limited in amount to the greater of the Minimum Transaction Processing Fees or the amount of the Transaction Processing Fees based upon the Schedule of Charges (Fees) attached to this Agreement paid for the one calendar month preceding the month in which the loss occurred. IN NO EVENT SHALL Sage BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT LOSS OR DAMAGE WHICH THE COMPANY MAY INCUR OR SUFFER IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT, INCLUDING ANY LOSS OR DAMAGE FROM SUBSEQUENT WRONGFUL DISHONOR RESULTING FROM Sage'S ACTS OR OMISSIONS PURSUANT TO THIS AGREEMENT. Sage DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE, ITS USE AND THE RESULTS OF SUCH USE. Without limiting the foregoing, Sage specifically disclaims any warranty (i) that the service will be uninterrupted or error-free, (ii) that defects will be corrected, (iii) that security methods employed will be sufficient, or (iv) the service will be correct, accurate or reliable. In addition, Sage shall be excused from failing to transmit or delay in transmitting an Entry if such transmittal would result in the Bank's having exceeded any limitation upon its intra-day net funds position established pursuant to Federal Reserve Board guidelines or if Sage otherwise would cause the violation of any provision of any risk control program of the Federal Reserve Board or any rule or regulation of any other US governmental regulatory authority. Sage's liability for loss of interest resulting from its unexcused error or delay shall be calculated by using a rate equal to the average Federal Funds rate at the Federal Reserve Bank of New York for the period involved. At Sage's option, payment of such interest may be made by crediting the Authorized Account resulting from any claim for which Sage is liable for under this Section 13.
14. Indemnification. The Company shall be liable for and shall indemnify and hold harmless Sage and the Bank and their employees, officers, directors, agents and affiliates from and against any claim, loss, damage, penalty, cost or expense (including attorneys' fees and expenses) resulting or arising from (a) any breach of any of the representations, warranties and agreements of the Company contained in this Agreement, (b) any claim of any person whatsoever of whatever nature arising out of this Agreement, and for all attorneys' fees and other costs or expenses paid by Sage in the enforcement of this Agreement, including, but not limited to those resulting from any transaction processed under this Agreement and/or (c) any costs or expenses incurred by Sage related to any bankruptcy filing that Company may file. If any of the Entries that are on Sage’s system belonging to Company are subpoenaed by legal process or otherwise, Sage shall use reasonable efforts to notify Company. If Company does not respond in a timely manner, and/or thirty (30) days elapses from Sage’s receipt of subpoena, Sage may produce records in accordance with the subpoena. Notwithstanding the foregoing, should Company request that Sage not produce any records in response to a valid subpoena, Company shall indemnify and pay all costs incurred, including attorneys' fees that Sage incurs in opposing the subpoena. Sage shall estimate the costs and attorneys' fees of opposing the subpoena, and Company shall pay those fees and costs to Sage BEFORE Sage has any obligation to take any action to oppose the subpoena. If Company fails to pay the costs and fees in advance, Sage shall have no obligation to oppose the subpoena and may respond to it in accordance with its terms. Should Company pay Sage's fees and costs in advance, Sage shall oppose the subpoena but does not warrant whether it will be successful in doing so.
15. Compensation. The Company shall pay Sage the fees and charges for the Services rendered hereunder in accordance with the Fees and Charges as set forth in this Agreement. Such fees and charges do not include, and Company shall be responsible for payment of, any sales, use, excise, value added, utility or other similar taxes relating to the Services provided for herein, and any fees or charges provided for in any related account agreement with the Bank. The fees and charges are subject to change upon 30 days' prior written notice (by electronic or U.S. mail) to the Company. Upon receipt of any notice of fee increase, the Company may, by written notice to Sage given at least 10 days prior to the effective date of any such fee increase, terminate this Agreement as set forth in Paragraph 17. In such event no cancellation fees will be charged. The effective date of termination shall be no later than 90 days following the date of the Company's notice. Any such fee increase shall not be effective with respect to the Company during the notice period. If Company does not terminate the Agreement, it shall be deemed to have accepted the fee and cost increase.
16. Collection of Amounts from Debit Entries and Fees. Concurrent with the execution and delivery of this Agreement, Sage shall have established a fiduciary account and a ledger account on its books in connection with its master account, titled "Sage Corporation/Fiduciary” (the "Agent Account") with the Bank(s) into which funds received from Customer Accounts shall be credited and from which funds may be debited by Sage for settlement in accordance with this Agreement. Within 5 days of the Settlement Date of the respective debit Entries initiated by it hereunder (or such longer period as may be required by Sage as a condition to acceptance of this Agreement, which shall be specified in a written notice to the Company), Sage shall direct the remittance to the Company of the aggregate amount of such debit Entries less (i) all applicable fees and charges payable to Sage under this Agreement or required by Sage to fund or replenish the reserve established hereunder and (ii) the amount of rejected Entries and returns of debit Entries (the “Net Settlement Amount”). Periodic and other single charges payable hereunder shall be deducted from the first transmittal of Entries received during the period in which the fee or charge is payable. From time to time, Sage shall debit the Agent Account, the Authorized Account, or related clearing account for fees and charges earned under this Agreement and for any returns not previously deducted. The Company authorizes Sage and Bank to debit via ACH the Agent Account, the Authorized Account, the Reserve Account, any other account the Company has with Sage, an affiliate or subsidiary of Sage, Bank or at any other financial institution as an offset for any amount the Company owes under this Agreement or under any other contract, note, guaranty, or dealing of any kind now existing or later entered into between the Company and Sage or any subsidiary or affiliate, whether the Company’s obligation is direct, indirect, primary, secondary, fixed, contingent, joint or several. In the event such ACH does not fully reimburse Sage and Bank for the amount owed, the Company will immediately pay Sage and Bank such amount. The Company acknowledges that this Agreement is an agreement pursuant to which Sage is extending the Company financial accommodations within the meaning of Section 365(c) of the Bankruptcy Code. In the event Company becomes a debtor in any bankruptcy or similar proceeding, this Agreement cannot be assumed or enforced by any other person and Sage shall be excused from any further performance hereunder.
17. Term. Except as otherwise provided herein for earlier termination, the initial term of this Agreement shall be three (3) years commencing as of the Effective Date hereof and shall be automatically renewed for additional two (2) year terms, unless either party gives to the other party written notice of its intention not to renew at least ninety (90) days prior to the expiration of the then current term. The effective date ("Effective Date") shall be defined by the date the contract is ratified by Sage. Upon receipt of any material modification to this Agreement as set forth in Paragraph 15, the Company may terminate this Agreement within seven calendar days after delivery of notice of termination to Sage. Notwithstanding the foregoing, this Agreement shall not terminate beyond the term of Sage's agreement with the Bank for the origination of ACH entries.
18. Default; Termination. Sage shall have the right to immediate termination of this Agreement if the Company's representations and warranties contained in this Agreement are not true and correct both on the day made and at any time during the term of this Agreement. Sage may also cancel any account for any customer of Company or Company if it participates in any illegal, unethical or other unacceptable behavior that Sage, in its sole discretion, deems to adversely reflect on Sage's reputation, and either party may terminate this Agreement if the other party (i) is in default of any obligation under this Agreement (which shall include nonpayment of fees and charges) and such default has continued for fifteen (15) days following notice and opportunity to cure, (ii) files or suffers the filing of a petition for relief under the bankruptcy laws or (iii) makes an assignment of all or substantially all of its assets for the benefit of creditors. Any termination of this Agreement shall not affect any of the obligations of either party arising prior to such termination. Notice of termination must be given in writing by Company. Upon termination as set forth in this Paragraph, the Company shall notify Sage of the effective date of such termination, and any processing fees due to Sage must immediately be paid upon notice of cancellation. Sage shall retain in the Agent Account for a period of no less than one hundred fifty (150) days following termination an amount in reserve sufficient, in its sole discretion, to pay for any items returned subsequent to the effective date of termination to cover return items. Accounts are not closed until the account balance is paid in full. Sage is hereby authorized to draft from Company's bank account the amount of all fees due upon cancellation. During this period, Sage shall forward to the Company return item verifications as they are received. At the expiration of such period, Sage shall return any remaining funds owed the Company or invoice the Company for any return item amount still due it. Any termination by Company will not affect Sage’s rights or obligations arising before the termination.
19. Status of Sage. The parties hereto acknowledge and agree that Sage is acting solely in the capacity of data processing agent for the Company, has no responsibility for providing any funds to the Bank to cover any Entry it transmits on behalf of the Company, and the Company, any accounts established by the Company, hereunder or otherwise, and/or the Guarantor(s) are liable for any and all compensation due Sage for its Services as agent.
20. Security Procedures; Confidentiality. The Company agrees to comply with the procedures established by Sage or the Bank for security as are communicated to it either orally or in writing and will contact Sage immediately if it has reason to believe that confidentiality has been or is likely to be breached.
21. Notices. All notices, requests and other communications under or in connection with this Agreement shall be in writing and shall be given by electronic mail, facsimile transmission, express carrier or United States registered or certified mail, addressed to the applicable party or parties at the address provided to the other or as set forth above, or at such other address as may be designated by notice as provided herein. Any such communication shall be effective upon its receipt.
22. Binding Agreement; Third Party Beneficiary. The terms of this Agreement shall be binding upon and inure to the benefit of each party hereto and its respective successors and permitted assigns. The Company agrees that the Bank shall be a third party beneficiary of this Agreement and, without limitation as to other rights as a third party beneficiary, shall be entitled to rely on the representations, warranties and agreements of the Company as if made in a written agreement directly between the Bank and the Company. Except as expressly contemplated by herein, this Agreement shall not benefit or create any right or cause of action in or on behalf of any person other than the parties hereto and the Bank.
23. Amendment. From time to time Sage may amend any of the terms and conditions contained in this Agreement, including without limitation, any cut-off time, any business day in order to comply with modifications to applicable laws and regulations and the Rules. Such amendments shall become effective upon receipt of notice by the Company or such later date as may be stated in Sage's notice to the Company.
24. Assignment. The Company may not assign this Agreement or any of the rights or obligations hereunder, without the prior written consent of Sage, which consent shall not be unreasonably withheld.
25. Entire Agreement; Headings. The terms and conditions contained herein together with the Agent Account, application, Authorized Account and any exhibits hereto constitute the entire agreement between the parties hereto relating to the subject matter hereof and supersede any prior agreement or understanding and except as set forth herein, may only be modified in writing executed by all parties. In the event of any inconsistency between the terms of this Agreement and any Materials/Instructions provided by Sage, the terms of this Agreement shall govern. Headings contained in this Agreement are used for reference purposes only and are not a part and shall not affect the construction or interpretation of this Agreement.
26. Credit and Financial Inquiries. (a) Company authorizes Sage to make, at any time, any credit inquiries which either may consider necessary to accept or review acceptance of this Agreement subsequent to Sage's acceptance of this Agreement. Such inquiries shall include, but are not limited to, a credit check of the business including its proprietor, partners, principal owners or officers. If requested to do so by Sage, Company shall provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial statements income tax and business tax returns and other financial information as Sage may consider necessary to perform initial or periodic reviews of Merchant’s financial stability and business practices.
27. Severability. In the event performance of the Services required hereunder would result in a violation of any present or future statute, regulation or government policy to which Sage is subject, then any provision of this Agreement the performance of which would constitute such a violation shall be deemed null and void, and this Agreement shall be deemed amended to the extent necessary to comply with such statute, regulation or policy, and Sage shall incur no liability to the Company as a result of its performance in accordance with any such amendment.
28. Survival. All representations, warranties, covenants, and agreements of the Company contained herein shall survive the execution, delivery and termination of this Agreement.
29. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without giving effect to choice of law rules. The Company consents to the jurisdiction and venue of the United States District Court for the Eastern District of Virginia and the courts of general jurisdiction of Fairfax County, Virginia as applicable, to the exclusion of all other forums. Sage hereby designates Christian Abou Fadel, CFO, at Sage’s address, as its agent for service of process upon it in any suit or action. EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHTS IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE ARISING OUT OF, BY VIRTUE OF, OR IN ANY WAY CONNECTED TO THIS AGREEMENT, ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH, ANY AMENDMENT OR SUPPLEMENT HERETO OR THERETO, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. COMPANY ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
30. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same instrument. A facsimile signature will be binding and legal in all respects as if it were an original signature to the Agreement.
31. Consent to E-Mail Communications. By entering into this Agreement with Sage the Company is consenting to the receipt of electronic mail (“e-mail”) from Sage.
32. Non-Compliance. Non-compliance with the terms of this Agreement could result in immediate implementation of non-compliance fines to Company and/or cessation of the service described hereunder by Sage.
33. Appointment as Agent. The Company desires to effect settlement of credits and debits from the clearing account of Sage by means of ACH as anticipated by Agreement. In accordance with this desire, the Company authorizes Sage to initiate debit and credit entries to the Authorized Account. By signing this authorization, the Company states that it has authority to agree to such transactions and that the Authorized Account indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until Sage receives written notice from the Company withdrawing it. This authorization is for the payment of fees, returns, credit collections, and disbursements. The Company also certifies that the appropriate authorizations are in place to allow the Company to authorize this method of settlement.
34. Authorization and Notification Requirements. Transactions processed through the Automated Clearing House (ACH) are strictly controlled by Governmental Regulations and monitored by the Federal Reserve. The Company must have appropriate authorization from Receivers for initiation of Entries. The following directive is offered to promote accuracy and standardization for authorization requirements: A statement authorizing the Originator (Company) to initiate credit or debit entries to the consumer's account and authorizing the RDFI to accept and post them to such account including (i) Account and Routing numbers must be accurately stated; (ii) date and signature(s) are required, except that in the case of Internet or other electronically initiated transactions, there must be evidence of similar authentication by the Receiver ; (iii) Originators (Companies) must ensure that the consumer is completely aware of the nature of the product or service that he or she is purchasing; (iv) provisions that permit the consumer to terminate the authorization by written notification to the Originator (Company) in such time and manner to afford the Originator (Company) and the RDFI reasonable opportunity to act on such notification. In an application where the debit amount varies, specific additional requirements apply. If a pre-authorized debit transfer varies from a previous transfer relating to the same authorization or from a fixed preauthorized amount, the Originator (Company) must mail to the customer or deliver to him written notice of the amount and scheduled date of the transfer at least ten (10) calendar days before the scheduled transfer date. Additionally, if the Originator (Company) informs the consumer of the right to receive notice of all varying transfers, the consumer may elect to receive notice only when a transfer does not fall within a specified range of amounts; or, alternately, the consumer may elect to receive notice only when a transfer differs from the most recent transfer by more than an agreed upon amount.
35. Attorneys Fees. Company will be liable for and will indemnify and reimburse Sage for all attorneys' fees and other costs and expenses paid or incurred by Sage in the enforcement of this Agreement, or in collecting any amounts due from the Company to Sage or resulting from any breach by Company of this Agreement.
36. Security Interest. TO SECURE ALL OBLIGATIONS OF COMPANY TO Sage ARISING FROM THIS AGREEMENT, COMPANY HEREBY GRANTS Sage A LIEN AND SECURITY INTEREST IN ALL TRANSACTIONS AND ITEMS SUBMITTED FOR PROCESSING, ALL RIGHTS RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ALL AMOUNTS DUE COMPANY, ALL DEPOSITS REGARDLESS OF SOURCE, TO ANY OF COMPANY'S ACCOUNTS ESTABLISHED AS SET FORTH IN THIS AGREEMENT OR OF ANY PARTY SIGNING THIS AGREEMENT PERSONAL GUARANTY (THE "SECURED ASSETS"). Said security interest may be set off or otherwise be exercised by Sage without notice or demand of any kind. The exercise of this security interest shall be addition to any other rights of Sage under the Uniform Commercial Code, this Agreement, applicable laws or in equity. The parties specifically acknowledge and affirm that pursuant to the Uniform Commercial Code of Virginia, this Agreement shall constitute a security agreement and that Sage has a general lien upon the accounts described in this Agreement and right of offset against all funds that may be due to Company, which shall stand as one continuing collateral security for the timely performance of Company's obligations to Sage. Sage shall also have the right to require the Company to furnish such other and different security, as Sage shall deem appropriate in its sole discretion in order to secure Company's obligations under this Agreement. Company agrees to execute any documents or take any actions required in order to comply with and perfect any security interest under this Section at Company's cost. To the extent permitted by law, Company authorizes Sage to execute any financing statement or other documents relating to this security interest. Company represents and warrants that no other party has a security interest or lien in the Secured Assets.
37. Force Majeure. Sage shall not have any responsibility and shall incur no liability for any failure to carry out, or any delay in carrying out, any of its obligations under this Agreement resulting from acts, omissions, or inaccuracies of third parties not under its reasonable control, acts of God (including, but not limited to, fire, floods or adverse weather conditions), labor difficulty, legal constraint, war, terrorism, the unavailability or interruption of transmission or communication facilities or utilities, equipment or other technological failure, emergency conditions or any other cause beyond its reasonable control.
ADDITIONAL TERMS OF SERVICE FOR CREDIT CARD APPLICATION FEE PAYMENT SERVICES
These are the additional terms that govern your use of AppFolio’s payment processing services:
1. Verification. We may require you to provide additional information to verify your identity as a condition of providing the services to you. Such information may include a government issued identification such as a passport or driver’s license, a business license, or your employer verification number (EIN), valid U.S. credit card, a verified bank account, or other financial or personal information. We may make, directly or through third parties, any inquiries we consider necessary to validate information that you provide to us. We may also ask for permission to inspect your business location. If you refuse any of these requests or provide inaccurate, untrue, or incomplete information, your AppFolio account may be suspended or terminated. By accepting these terms, you specifically authorize use to request identity verifying information about you from third parties, including a consumer report that contains your name and address. You agree that we are permitted to contact and share information about you and your account with banks and other financial institutions. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct our risk management process.
2. Acceptable Cards. The services allow you to accept payments initiated with cards bearing the trademarks of MasterCard International Incorporated (“MasterCard”) and Visa U.S.A., Inc. (“Visa” and together with MasterCard, the “Associations”). We may remove or add cards that we accept at anytime without prior notice. We will only process cards that receive an authorization from the applicable Association or card issuer.
3. AppFolio’s Role. AppFolio is only a payment service provider and not a bank and does not offer banking or money service business services as defined by the United States Department of Treasury. As a merchant payment processor, we merely collect and relay information generated in connection with these payments. In order to serve in this role, we must enter into agreements with Associations, other processors and banks. These third parties require that our merchant customers enter into an agreement with our payment processor of record. If you are such a user, we will provide you a “Commercial Entity Agreement” that you must execute in order to use the services.
4. Your Authorization. By accepting these terms, you authorize us to hold, receive, and disburse funds on your behalf. Your authorization permits us to generate a paper draft or an electronic funds transfer to process each payment transaction that you authorize. Your authorizations will remain in full force and effect while you use the payment processing services.
5. Restricted Use. You may use the payment processing services only to the extent that you obey all laws, rules, and regulations applicable to your use of the services. You may not act as a payment intermediary, aggregator or service bureau or otherwise resell our services on behalf of any third party or use the services to handle, process or transmit funds for any third party. You also may not use the services to process cash advances.
6. Prohibited Transactions. You acknowledge and agree that you will not accept payments in connection with the following businesses or business activities: (i) business physically located outside the U.S.; (ii) embassy, foreign consulate, or other foreign government; (iii) door-to-door sales; (iv) merchants offering substantial rebates or special incentives that are awarded to the cardholder subsequent to the original purchase, (v) negative response marketing techniques by any type of merchant (i.e. customer is automatically charged if they don’t return the merchandise at the end of a free trail period), (vi) airlines, (vii) audio/video text (“adult-oriented”), (viii) bail bonds, (ix) bankruptcy lawyers, (x) businesses selling age or legally restricted products or services, (xi) cell phones/pagers (billing for services only), (xii) centralized reservation services, (xiii) collection agencies or firms involved in recovering/collecting past due receivables, (xiv) chain letters, (xv) check cashing, (xvi) currency exchange or dealer, (xvii) consulting firms or firms selling “get rich quick” schemes, business opportunities, investment opportunities, mortgage consulting, real estate purchase with no money down, mortgage reductions services, credit repair or protection, etc., (xviii) credit card and identity theft protection, (xix) cruise lines, (xx) flea markets (defined as firms/individuals operating from a booth, on a party time basis with no lease or telephone availability; whether indoor or outdoors), (xxi) drug paraphernalia, (xxii) extended warranties, (xxiii) fortune tellers, (xxiv) gambling involving: (a) legal gambling where the cardholder is not present when the bet is made, (b) lotteries, (c) illegal gambling, including internet gambling, (d) sports forecasting or (e) odds making; (xxv) illegal products and/or services; (xxvi) money transmitter; (xxvii) money service businesses (e.g., seller/issuer/redeemer of traveler’s checks, money orders , or open stored value cards); (xxviii) multi-level marketing or pyramid schemes; (xxix) pharmacies; (xxx) pseudo pharmaceuticals (e.g., anti-aging pills, sexual stimulants, weight loss, diet, etc.); (xxxi) quasi-cash or stored value; (xxxii) security brokers; (xxxiii) sexually-oriented or pornographic merchants: (a) adult book stores or video stores, (b) adult telephone conversations, (c) adult websites and content, (d) companion/escort services, (e) dating services (sexually-oriented), (f) mail order brides, (g) massage parlors, (h) topless bars, or (i) miscellaneous adult entertainment; (xxxiv) shipping/forwarding brokers; (xxxv) telemarketing companies involved with the following methods of operations: (a) offering a free gift, prize, or sweepstakes/contest entry as an inducement to purchase their product or service, (b) inbound telemarketing companies that receive calls as the result of post cards or similar mailings (as opposed to catalog or media advertising), (d) selling products/services as an agent for a third party; (xxxvi) timeshares; (xxxvii) tobacco products; (xxxviii) weapons and ammunitions; (xxxix) Wire transfer/money order.
7. Applicable Association Rules. The Associations require that you and AppFolio comply with their applicable bylaws, rules, and regulations (“Association Rules”). The Associations have the right to amend their rules and regulations. AppFolio may be required to change these terms in connection with amendments to the Association Rules, which are located at:
Among other things, the Association Rules currently prohibit you from (a) assessing a surcharge for the use of a card in connection with any transaction, or (b) dispensing cash on any card transaction.
8. Account Deposits. Subject to the payout schedule below, we will deposit to your account the amounts actually received by us for transactions submitted through the services (less any applicable fees). Once your bank account information is verified, we will automatically deposit your money in your designated bank account. Funds for any given transaction will not be deposited until the transaction is deemed complete. Transactions will be deemed complete when we have received or sent the funds and when we or the designated financial institutions have accepted the transaction or funds. You are responsible for monitoring your transactions and ensuring that our payments to you are correct. You must notify us of any errors in payments made to you within sixty (60) days of the error first appearing on your electronic transaction history. Failure to notify us of such an error will be deemed a waiver of any right to amounts owed to you.
(a) Standard Payout Schedule. Once you validate your US bank account, we will automatically initiate a payout to your bank account at the end of every business day. Payouts to your bank account will normally register within 1-2 business days.
9. Availability of Funds. Should we need to conduct an investigation or resolve any pending dispute related to your account, we may defer payout or restrict access to your funds for the entire time it takes for us to do so. We also may defer payout or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
10. Your Account History. When a payment is made to your account, we will update your account activity on the AppFolio service and provide you a transaction confirmation. The confirmation will serve as your receipt. Summaries of your account activity, including monthly statements, are available through our service. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your account and your use of the services, and (b) reconciling all transactional information that is associated with your account. If you believe that there is an error or unauthorized transaction activity is associated with your account, you agree to contact us immediately.
11. Reserve. At any time and from time to time, we may temporarily suspend or delay payments to you and/or designate an amount of funds that we must maintain in your account or in a separate reserve account (“reserve”) to secure the performance of your payment obligations for the services. We may require a reserve for any reason, including if you have a high rate of chargebacks (as defined below), refunds, or other indications of performance problems related to your use of the services. The reserve will be in an amount as reasonably determined by us to cover anticipated chargebacks, returns, unshipped merchandise and/or unfulfilled products or services or credit risk based on your processing history or such amount designated by our processor. The reserve may be raised, reduced or removed at any time by us, in our sole discretion, based on your payment history, a credit review or otherwise as we or our processor may determine or require. If you do not have sufficient funds in your reserve, we may fund the reserve from any funding source associated with your account, including but not limited to any funds (a) deposited by you, (b) due to you under these terms, or (c) available in your bank account, or other payment instrument registered with us. You grant us a security interest in and lien on any and all funds held in any reserve, and also authorize us to make any withdrawals or debits from the reserve, without prior notice to you, to collect amounts that you owe us under these terms, including without limitation for any reversals of deposits or transfers made to your account. You will execute any additional documentation required for us to perfect our security interest in any funds in the reserve. This security interest survives for as long as we hold funds in your reserve.
12. Your Account Balances. You may, but are not required to hold monetary balances that you receive in your account (your “balance”). When you carry a balance, your funds will be co-mingled and held with other participants’ funds in one or more pooled accounts at one or more FDIC-insured banks by us on your behalf and for the benefit of you and other users holding balances (each a “pooled account”). US dollar balances held in the pooled account are eligible for FDIC pass-through insurance, meaning that your balance may be insured up to the FDIC maximum, which is currently $250,000. We have sole discretion over the establishment and maintenance of any pooled account. Funds associated with your account will at all times be held separate from our corporate funds. We will not use your funds for our corporate purposes (including the granting of any security or similar interest), will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit our creditors to attach the funds. You will not receive interest or any other earnings on any funds that we handle for you. As consideration for using the services, you irrevocably assign to us all rights and legal interests to any interest and/or other earnings that may accrue or are attributable to our holding of your balance in a pooled account or reserve (described below).
13. Receipts. You must make a written receipt available to your customers for any transaction greater than fifteen dollars ($15.00). You may give your customers the option to receive or decline a written receipt. As a convenience, but not in lieu of a written receipt, you may also offer electronic receipts for delivery through email to your customers.
14. Customer Service. You are solely responsible for all customer service issues relating to your services, including pricing, order fulfillment, order cancellation by you or customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us.
15. Refunds and Returns. By accepting payment card transactions through our services, you agree to process returns of, and provide refunds and adjustments for, your services through your account in accordance with these terms and the Association Rules. Association Rules require that you will (a) maintain a fair return, cancellation or adjustment policy; (b) disclose your return or cancellation policy to customers at the time of purchase, (c) not give cash refunds to a customer in connection with a card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a card sale refund. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage that the customer paid to return merchandise. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the buyer, you may still receive a chargeback relating to such sales.
You can process a refund through your account up to sixty (60) days from the day you accepted the payment. If your balance is insufficient to cover the refund, we will request your authorization to withdraw up to the requested refund amount from your bank account. We will then withdraw the amount you were paid (the sale amount minus the initial transaction fee) from your bank account, and credit it back into your customer’s card. The fees are also refunded by us, so the full purchase amount is always returned to your customer. We have no obligation to accept any returns of any of your services on your behalf.
16. Your Liability for Chargebacks. The amount of a transaction may be reversed or charged back to your account (a “chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Association, our processor, or a payer’s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of these terms.
17. Our Collection Rights for Chargebacks. For any transaction that results in a chargeback, we may withhold the chargeback amount in a reserve. We may deduct the amount of any chargeback and any associated fees, fines, or penalties or assessed by the Association or our processor from your account (including without limitation any reserve), any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending chargebacks, we may delay payouts from your account. Further, if we reasonably believe that a chargeback is likely with respect to any transaction, we may withhold the amount of the potential chargeback from payments otherwise due to you under these terms until such time that: (a) a chargeback is assessed due to a customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a chargeback on the transaction will not occur. If we are unable to recover funds related to a chargeback for which you are liable, you will pay us the full amount of the chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all account deficit balances unpaid by you.
18. Excessive Chargebacks. If we determine that you are incurring an excessive amount of chargebacks, we may establish controls or conditions governing your account, including without limitation, by (a) establishing new processing fees, (b) creating a reserve in an amount reasonably determined by us to cover anticipated chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending the services.
19. Contesting Chargebacks. You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the services. Towards that end, you permit us to share information about a chargeback with the payer, the payer’s financial institution, and your financial institution in order to investigate and/or mediate a chargeback. We will request necessary information from you to contest the chargeback. If the chargeback is contested successfully, we will release the reserved funds to your account. If a chargeback dispute is not resolved in your favor by the Association or issuing bank or you choose not to contest the chargeback, we may recover the chargeback amount and any associated fees as described in these terms. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating chargeback disputes.
20. Our Set-off Rights. To the extent permitted by law, we may set off against the balances for any obligation you owe us under these terms, including without limitation any chargebacks. All fees will be charged at the time we process a transaction and are deducted first from the transferred or collected funds and thereafter from the balance in your account. If you owe us an amount that exceeds your balance, we may charge or debit a payment instrument registered in your account.
21. Dormant Accounts. If there is no activity in your account (including access or payment transactions) for at least two (2) years, consecutively, and you have a balance, we will notify you by sending an email to your registered email address and give you the option of keeping your account open and maintaining the balance, withdrawing the balance, or requesting a check. If you do not respond to our notice within thirty (30) days, we will automatically close your account and escheat your funds in accordance with applicable law, and if permitted, to AppFolio.
22. Our Processing Errors. We will attempt to rectify processing errors that we discover. If the error resulted in your receipt of less than the correct amount to which you were entitled, we will credit your account for the difference. If the error results in your receipt of more than the correct amount to which you were entitled, we will debit the extra funds from your account. We will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
ADDITIONAL TERMS OF SERVICE FOR TENANT LIABILITY INSURANCE
1. Policy. You are purchasing Tenant Liability Insurance Services from AppFolio. As part of the Services, a commercial policy (“Policy”) is issued to you in order to extend tenant legal liability coverage to the occupied residential dwelling units where your tenants reside (“Resident Units”). Great American Insurance Group underwrites the Policy, a copy of which will be provided to you upon completion of the Order Form and will contain full details of the level of coverage provided under the Policy.
2. Agent/Broker. The agent/broker for the Tenant Liability Insurance Services is Beecher Carlson Insurance Services, LLC.
3. Coverage. Policy coverage is limited to those Resident Units located on an insured location that you report as enrolled in the Tenant Legal Liability Services. The Policy provides limited liability coverage for property damage to the Resident Unit by the tenant (“Resident”) and is intended to meet the minimum tenant liability insurance requirements of a residential lease agreement (“Lease”). Coverage may be narrower than a personal liability insurance policy or the liability coverage afforded to the Resident by a renter’s insurance policy. The Tenant Liability Insurance Services being offered do not provide coverage for liability rising from bodily injury or property damage to property of others except as may be specifically designated in the terms of the Policy itself.
4. Payment. You agree to pay the insurance premiums (“Premiums”) in accordance with the Agreement and the rates set forth in the Order Form or application. You acknowledge and agree that Premiums are subject to change without notice, although we will make reasonable effort to give notice of such change in premiums before such changes become effective. There are no refunds for Premiums.
5. Collection of Premiums. You are the named insured (“Named Insured”) on the Policy and are responsible for payment of all Premiums associated with the Policy. You agree to maintain an electronic payment authorization with AppFolio and understand it is your responsibility to pay all Premiums in full each month regardless of your ability to collect reimbursement from other parties. You understand and agree that payment of Premiums will be due on the first of each month for all resident units reported the preceding month and that overdue Premiums may result in cancellation of your Policy and no coverage.
6. Reporting. You must use the Software and any other forms provided by us in connection with the Tenant Liability Insurance Services to report enrolled Resident Units. Coverage under the Policy will not be provided retroactively under any circumstances.
7. Additional Insured. Each Resident that opts to purchase the Tenant Liability Insurance will be an additional insured (“Additional Insured”) under the Policy. In the event of any personal liability claim against a Resident as an Additional Insured, the Resident is responsible for any obligations in connection with such claim.
8. Reimbursement You will not seek reimbursement from the Resident for the Premiums unless, in your capacity as landlord, you have: (a) disclosed to the Resident the mandatory insurance requirements described in the Resident’s Lease, and (b) allowed the Resident an opportunity at Lease execution to provide proof of meeting the insurance requirements in the Lease, and, in the event Resident has not executed an addendum to the Lease and provided evidence of insurance as required by the Lease, Resident will automatically be enrolled as an Additional Insured under the Policy and Resident will be required to pay any associated Premiums. AppFolio renders no legal opinion with respect to the form, content or substance of any such Lease addendum or similar document. You should obtain your own legal advice with respect to the form and content of any Lease addendum or similar document. You are responsible for notifying the Resident that this Policy is intended to meet the minimum tenant liability insurance requirements set forth in the Lease and that coverage may be narrower than a personal liability insurance policy or the liability coverage provided by a renter’s insurance policy
9. Adverse Selection. You will take reasonable measures to roll out mandatory insurance requirements across your portfolio of Resident Units without consideration to individual Residents; your policy may be canceled if you have not taken reasonable measures to meet this commitment.
10.Claims. Claims made under the Policy will be paid to the Named Insured; claims in excess of the landlord’s property insurance deductible may be legally attached by the landlord’s property insurer via subrogation.
11.Concealment Or Fraud. AppFolio will not provide coverage under the Policy when , whether before or after a loss, involved persons (e.g. property manager, landlord, tenant) have:
a. intentionally concealed or misrepresented any material fact or circumstance; or
b. engaged in fraudulent conduct; or
c. made false statements; relating to any claim or the or the insurance coverage provided under the policy.
12.Resident Notice. It is your responsibility to communicate details of the Tenant Liability Insurance Services, including types and level of coverage provided under the Policy, to enrolled Residents. You do not need to provide Residents with any formal or customized certificates of insurance; a generic notice of insurance or statement of disclosure available in electronic and/or paper format summarizing relevant coverage terms under the Named Insured’s Policy is sufficient to fulfill your obligations under this section.
13.Changes to the Tenant Liability Insurance Services. We reserve the right at any time and from time to time to modify, temporarily or permanently, the Tenant Liability Insurance Services (or any part thereof). You have the right to cease using the Tenant Liability Insurance Services at any time by providing notice of termination. You agree that we have no liability to you or to any third party for any modification of the Tenant Liability Insurance Services as set forth in these Terms of Service.
Conflict Between Terms of Service and Policy. In the event of any conflict or inconsistency between these Terms of Service and the terms of the Policy, such conflict or inconsistency will be resolved by giving precedence first to the Policy, then to these Terms of Service.
ADDITIONAL TERMS OF SERVICE FOR TENANT SCREENING
1. Screening Services. By subscribing to the Software, and during the term of the Agreement, you may request us to provide online tenant screening services (the "Screening Services"). We shall provide the Screening Services solely to enable the Company to make intelligent and informed decisions in the tenant screening process. Screening Services are subject to FCRA Requirements, Access Security Requirements and Additional Rules Relating to FICO Scores as set forth below.
2. Authorized Use. Subject to the full and timely fulfillment of all your obligations under the Agreement, you are hereby authorized to request and use the criminal, eviction or credit information (collectively, the "Information") of your prospective tenants ("Applicants") solely to enable you to make intelligent and informed decisions in the tenant screening process ("Permitted Purpose"). You certify and warrant that you will request and use the Information solely for the Permitted Purpose.
3. Screening Service Fees. You agree to pay the fees for Screening Services in accordance with our then current fee plan, which is incorporated into this Agreement. You agree and acknowledge that the Screening Service fees are subject to change without notice, although we will make reasonable effort to give notice of such change in fees before such changes become effective. There are no refunds for Screening Services.
4. End User Certification. You further certify that you are an end-user of the Information (including, without limitation, the credit information) and you shall not resell, sublicense, deliver, display or distribute such Information to any third party, except as expressly required by applicable laws. You shall receive and maintain all Information in strict confidence and shall: (a) request the Information pursuant to the procedures prescribed by us; (b) use the Information solely for certified one-time use for the Permissible Purpose; and (c) not disclose it to any third party except, if required by applicable laws, to the subject of the Information in connection with an adverse action based on the Information.
5. Compliance. You agree and warrant that the Information will not be used in violation of any applicable federal, state or local laws, including, but not limited to the federal Fair Credit Reporting Act ("FCRA"), Equal Credit Opportunity Act and the Fair Housing Act, and Title VII of the Civil Rights Act of 1964 and any state law equivalent of such laws. You accept full responsibility for complying with all such laws and for using the Information you receive in a legally acceptable fashion. It shall be your sole responsibility to ensure that you are in full compliance with applicable laws and all of our policies and procedures before requesting or using any Information. You acknowledge that you will be receiving credit information of the Applicants from one or more national credit bureaus (a "National Credit Bureau"). Being the recipient of consumer information, you are required to comply with the provisions of the FCRA and certify that you have read and understand the Obligations of Users under the FCRA located at www.ftc.gov/os/2004/11/041119factaapph.pdf and shall comply with the FCRA Requirements listed below.
6. Applicant Consent. You will obtain permission in writing from each Applicant before using the Screening Service to obtain any Information of such Applicant. You will retain consent forms and any adverse action notice in your records for a period of at least five (5) years in case of adverse action based on the Information and provide copies thereof to us, upon request.
7. Information Security. You agree to have reasonable procedures for the fair and equitable use of the Information and to secure against unauthorized access, use, disclosure and loss. You agree to take reasonable security measures to protect the security and dissemination of the Information including, without limitation, restricting terminal access, utilizing passwords to restrict access to terminal devices, and securing access to, dissemination and destruction of electronic and hard copy reports. Without limiting the foregoing, you represent and warrant that you shall comply with Access Security Requirements, listed below, as amended from time to time. You shall implement security breach notification procedures in accordance with applicable laws. In the event of a security breach, you shall immediately notify us in writing and comply with our compliance requirements and those of the National Credit Bureaus and under any applicable laws.
8. No Warranties. You understand that we obtain the Information reported through the Screening Service from various third party sources "AS IS," and therefore are providing the information to you "AS IS." You further agree that we cannot and will not, for the fee charged for the Screening Service, be an insurer or guarantor of the accuracy or reliability of the Information. You release us, our third party information providers and employees, agents and independent contractors from liability for any loss or expense suffered as a result of any inaccuracy in the Information. WE MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR A COURSE OF PERFORMANCE WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION, THAT THE INFORMATION WILL MEET YOUR NEEDS, OR WILL BE PROVIDED ON AN UNINTERRUPTED BASIS.
9. No Legal Opinion. We do not guarantee your compliance with all applicable laws in your use of the Information, and do not provide legal or other compliance related opinions upon which you may rely in connection with your use of the Information. You understand that any conversation or communication with our employees or representatives regarding searches, verifications or other services offered by us are not to be considered a legal opinion regarding such use. You agree that you will consult with your own legal or other counsel regarding the use of the Information, including but not limited to, the legality of using or relying on the Information.
10. Decisions. All rental decisions will be made by you. You acknowledge and agree that we provide only recommendations as to actions concerning an Applicant, and you further acknowledge and agree that all decisions of whether or not to accept a particular Applicant, as well as the length of and terms of any rental, will be made by you. We shall have no liability to you or any other person or entity for any acceptance of, or the failure to accept, an Applicant, or the terms of any such acceptance, regardless of whether or not your decision was based on recommendations, reports or other information provided to you by us.
11. Right to Inspect. We may inspect your offices and records to verify qualification and compliance under the Agreement and applicable laws. In addition, you agree to supply any qualifying documents requested by us including, without limitation, documents to verify ownership of rental units and business and professional licenses. You agree to cooperate fully and unconditionally with us in any periodic reviews, audits or investigations of your compliance with the obligations under the Agreement and applicable laws.
12. Changes to the Screening Service. We reserve the right at any time and from time to time to modify, temporarily or permanently, the Screening Service (or any part thereof). At any time, you shall have the right to cease using the Screening Service. You agree that we shall not be liable to you nor to any third party for any modification of the Screening Service as described in this Section 12.
Although the FCRA primarily regulates the operations of consumer credit reporting agencies, it also affects you as a user of information. We suggest that you and your employees become familiar with the following sections in particular:
§ 604. Permissible Purposes of Reports
§ 607. Compliance Procedures
§ 615. Requirement on users of consumer reports
§ 616. Civil liability for willful noncompliance
§ 617. Civil liability for negligent noncompliance
§ 619. Obtaining information under false pretenses
§ 621. Administrative Enforcement
§ 623. Responsibilities of Furnishers of Information to Consumer Reporting Agencies
§ 628. Disposal of Records
Each of these sections is of direct consequence to users who obtain reports on consumers.
As directed by the law, credit reports may be issued only if they are to be used for extending credit, review or collection of an account, employment purposes, underwriting insurance or in connection with some other legitimate business transaction such as in investment, partnership, etc. It is imperative that you identify each request for a report to be used for employment purposes when such report is ordered. Additional state laws may also impact your usage of reports for employment purposes.
We strongly endorse the letter and spirit of the Federal Fair Credit Reporting Act. We believe that this law and similar state laws recognize and preserve the delicate balance between the rights of the consumer and the legitimate needs of commerce.
In addition to the Federal Fair Credit Reporting Act, other federal and state laws addressing such topics as computer crime and unauthorized access to protected databases have also been enacted. As a prospective user of consumer reports, we expect that you and your staff will comply with all relevant federal statutes and the statutes and regulations of the states in which you operate.
Access Security Requirements
We must work together to protect the privacy and information of consumers. The following information security measures are designed to reduce unauthorized access to consumer information. It is your responsibility to implement these controls. If you do not understand these requirements or need assistance, it is your responsibility to employ an outside service provider to assist you. AppFolio reserves the right to make changes to Access Security Requirements without notification. The information provided herewith provides minimum baselines for information security.
In accessing AppFolio's tenant screening services, you agree to follow these security requirements:
1. Implement Strong Access Control Measures
1.1 Do not provide your AppFolio passwords to anyone. No one from AppFolio will ever contact you and request your password.
1.2 Proprietary or third party system access software must have AppFolio password(s) hidden. Passwords should be known only by supervisory personnel.
1.3 You must change your AppFolio password immediately when:
· any system access software is replaced by system access software or is no longer used;
· the hardware on which the software resides is upgraded, changed or disposed of
1.4 Protect your AppFolio password(s) so that only key personnel know this sensitive information. Unauthorized personnel should not have knowledge of your password(s).
1.5 Create a separate, unique user ID for each user to enable individual authentication and accountability for access to AppFolio. Each user of the system access software must also have a unique login password.
1.6 Ensure that user IDs are not shared and that no peer-to-peer file sharing is enabled on those users' profiles.
1.7 Keep user passwords confidential.
1.8 Develop strong passwords that are:
· Not easily guessable (i.e. your name or company name, repeating numbers and letters or consecutive numbers and letters)
· Contain a minimum of seven (7) alpha/numeric characters for standard user accounts
1.9 Implement password protected screensavers with a maximum fifteen (15) minute timeout to protect unattended workstations.
1.10 Active logins to credit information systems must be configured with a 30 minute inactive session timeout.
1.11 Restrict the number of key personnel who have access to credit information.
1.12 Ensure that personnel who are authorized access to credit information have a business need to access such information and understand these requirements to access such information are only for the permissible purposes listed in the permissible purpose information section of your Terms of Service.
1.13 Ensure that you and your employees do not access your own credit reports or those reports of any family member(s) or friend(s) unless it is in connection with a credit transaction or for another permissible purpose.
1.14 Implement a process to terminate access rights immediately for users who access credit reporting agency credit information when those users are terminated or when they have a change in their job tasks and no longer require access to that credit information.
1.15 After normal business hours, turn off and lock all devices or systems used to obtain credit information.
1.16 Implement physical security controls to prevent unauthorized entry to your facility and access to systems used to obtain credit information.
2. Maintain a Vulnerability Management Program
2.1 Keep operating system(s), firewalls, routers, servers, personal computers (laptop and desktop) and all other systems current with appropriate system patches and updates.
2.2 Configure infrastructure such as firewalls, routers, personal computers, and similar components to industry best security practices, including disabling unnecessary services or features, removing or changing default passwords, IDs and sample files/programs, and enabling the most secure configuration features to avoid unnecessary risks.
2.3 Implement and follow current best security practices for computer virus detection scanning services and procedures:
· Use, implement and maintain a current, commercially available computer virus detection/scanning product on all computers, systems and networks.
· If you suspect an actual or potential virus, immediately cease accessing the system and do not resume the inquiry process until the virus has been eliminated.
· On a weekly basis at a minimum, keep anti-virus software up-to-date by vigilantly checking or configuring auto updates and installing new virus definition files.
2.4 Implement and follow current best security practices for computer anti-spyware scanning services and procedures:
· Use, implement and maintain a current, commercially available computer anti-spyware scanning product on all computers, systems and networks.
· If you suspect actual or potential spyware, immediately cease accessing the system and do not resume the inquiry process until the problem has been resolved and eliminated.
· Run a secondary anti-spyware scan upon completion of the first scan to ensure all spyware has been removed from your computers.
· Keep anti-spyware software up-to-date by vigilantly checking or configuring auto updates and installing new anti-spyware definition files weekly, at a minimum. If your company's computers have unfiltered or unblocked access to the Internet (which prevents access to some known problematic sites), then it is recommended that anti-spyware scans be completed more frequently than weekly.
3. Protect Data
3.1 Develop and follow procedures to ensure that data is protected throughout its entire information lifecycle (from creation, transformation, use, storage and secure destruction) regardless of the media used to store the data (i.e., tape, disk, paper, etc.)
3.2 All credit data is classified as confidential and must be secured to this requirement at a minimum.
3.3 Procedures for transmission, disclosure, storage, destruction and any other information modalities or media should address all aspects of the lifecycle of the information.
3.4 Encrypt all credit reporting agency data and information when stored on any laptop computer and in the database using AES or 3DES with 128-bit key encryption at a minimum.
3.5 Only open email attachments and links from trusted sources and after verifying legitimacy.
4. Maintain an Information Security Policy
4.1 Develop and follow a security plan to protect the confidentiality and integrity of personal consumer information as required under the GLB Safeguard Rule.
4.2 Establish processes and procedures for responding to security violations, unusual or suspicious events and similar incidents to limit damage or unauthorized access to information assets and to permit identification and prosecution of violators.
4.3 The FACTA Disposal Rules requires that you implement appropriate measures to dispose of any sensitive information related to consumer credit reports and records that will protect against unauthorized access or use of that information.
4.4 Implement and maintain ongoing mandatory security training and awareness sessions for all staff to underscore the importance of security within your organization.
5. Build and Maintain a Secure Network
5.1 Protect Internet connections with dedicated, industry-recognized firewalls that are configured and managed using industry best security practices.
5.2 Internal private Internet Protocol (IP) addresses must not be publicly accessible or natively routed to the Internet. Network address translation (NAT) technology should be used.
5.3 Administrative access to firewalls and servers must be performed through a secure internal wired connection only.
5.4 Any stand-alone computers that directly access the Internet must have a desktop firewall deployed that is installed and configured to block unnecessary/unused ports, services and network traffic.
5.5 Encrypt wireless access points with a minimum of WEP 128-bit encryption, WPA encryption where available.
5.6 Disable vendor default passwords, SSIDs and IP Addresses on wireless access points and restrict authentication on the configuration of the access point.
6. Regularly Monitor and Test Networks
6.1 Perform regular tests on information systems (port scanning, virus scanning, vulnerability scanning).
6.2 Use current best practices to protect your telecommunications systems and any computer system or network device(s) you use to provide services hereunder to access AppFolio systems and networks. These controls should be selected and implemented to reduce the risk of infiltration, hacking, access penetration or exposure to an unauthorized third party by:
· protecting against intrusions;
· securing the computer systems and network devices;
· and protecting against intrusions of operating systems or software.
Record Retention: The Federal Equal Opportunities Act states that a creditor must preserve all written or recorded information connected with an application for 25 months. In keeping with the ECOA, the credit reporting agency requires that you retain the credit application and, if applicable, a purchase agreement for a period of not less than 25 months. When conducting an investigation, particularly following a breach or a consumer complaint that your company impermissibly accessed their credit report, the credit reporting agency will contact you and will request a copy of the original application signed by the consumer or, if applicable, a copy of the sales contract.
"Under Section 621 (a) (2) (A) of the FCRA, any person that violates any of the provisions of the FCRA may be liable for a civil penalty of not more than $2,500 per violation."
ADDITIONAL TERMS RELATING TO FICO SCORES
Additional terms governing FICO scores from Experian Information Solutions, Inc. and Fair Isaac Corporation (collectively, Experian/Fair Isaac").
AppFolio purchases certain credit scoring services known as "Experian/Fair Isaac Model" for resale of the Scores and reason codes to you as an end-user of the information. Experian/Fair Isaac Model is an application of a risk model developed by Experian/Fair Isaac which employs a proprietary algorithm and which, when applied to credit information relating to individuals with whom you have a credit relationship or with whom you contemplate entering into a credit relationship will result in a numerical score ("Score" or, collectively, "Scores"); the purpose of the models being to rank said individuals in order of the risk of unsatisfactory payment.
AppFolio is reselling the Scores and reason codes to you subject to your compliance with following provisions, each of which is material:
1. You warrant that you have a "permissible purpose" to obtain the information derived from the Experian/Fair Isaac Model under the Fair Credit Reporting Act, as it may be amended from time to time, and any similar applicable state statute.
2. You shall limit your use of Scores and reason codes solely to use in your own business with no right to transfer or otherwise sell, license, sublicense or distribute said Scores or reason codes to third parties.
3. You agree that you will not publicly disseminate any results of the validations or other reports derived from the Scores without each of Experian's or Fair Isaac's express written permission. You agree to maintain internal procedures to minimize the risk of unauthorized disclosure and agree that such Scores and reason codes will be held in strict confidence and disclosed only to those of your employees with a "need to know" and to no other person.
4. Notwithstanding any contrary provision of the Agreement, you may disclose the Scores to credit applicants, when accompanied by the corresponding reason codes, in the context of bona fide lending transactions and decisions only.
6. You shall comply with all applicable laws and regulations in using the Scores and reason codes purchased from AppFolio, including, without limitation, the Equal Credit Opportunity Act ("ECOA"), Regulation B, and/or Fair Credit Reporting Act, and you agree that the Scores will not be used for Adverse Action as defined by the ECOA or Regulation B, unless adverse action reason codes have been delivered to you along with the Scores.
7. You, your employees, agents or subcontractors, are prohibited from using the trademarks, service marks, logos, names, or any other proprietary designations, whether registered or unregistered, of Experian Information Solutions, Inc. or Fair Isaac Corporation, or the affiliates of either of them, or of any other party involved in the provision of the Experian/Fair Isaac Model without such entity's prior written consent.
8. Nothing contained in this Agreement shall be deemed to grant you any license, sublicense, copyright interest, proprietary rights, or other claim against or interest in any computer programs utilized by AppFolio, Experian and/or Fair Isaac or any third party involved in the delivery of the scoring services hereunder. You acknowledge that the Experian/Fair Isaac Model and its associated intellectual property rights in its output are the property of Fair Isaac. You may not attempt, in any manner, directly or indirectly, to discover or reverse engineer any confidential and proprietary criteria developed or used by Experian/Fair Isaac in performing the Experian/Fair Isaac Model.
9. By providing Scores to you under this Agreement, AppFolio grants to you a limited license to use information contained in reports generated by the Experian/Fair Isaac Model solely in your own business with no right to sublicense or otherwise sell or distribute said information to third parties. Before directing AppFolio to deliver Scores to any third party, you agree to enter into a contract with such third party that (1) limits use of the Scores by the third party only to the use permitted to you, and (2) identifies Experian and Fair Isaac as express third party beneficiaries of such contract.
10. As an authorized reseller, AppFolio warrants that the Scores are empirically derived and statistically sound predictors of consumer credit risk on the data from which they were developed when applied to the population for which they were developed. AppFolio further warrants that so long as it provides the Scores, the Scores will not contain or use any prohibited basis as defined by the federal Equal Credit Opportunity Act, 15 USC Section 1691 et seq. or Regulation B promulgated thereunder. THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES APPFOLIO HAS GIVEN END USER WITH RESPECT TO THE SCORES, AND SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, APPFOLIO MIGHT HAVE GIVEN YOU WITH RESPECT THERETO, INCLUDING, FOR EXAMPLE, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Your rights under the foregoing warranties are expressly conditioned upon your periodic revalidation of the Experian/Fair Isaac Model in compliance with the requirements of Regulation B as it may be amended from time to time (12 CFR Section 202 et seq.).
11. You hereby release and hold harmless AppFolio, Fair Isaac and/or Experian and their respective officers, directors, employees, agents, sister or affiliated companies, and any third-party contractors or suppliers of AppFolio, Fair Isaac or Experian from liability for any damages, losses, costs or expenses, whether direct or indirect, suffered or incurred by you resulting from any failure of the Scores to accurately predict that a United States consumer will repay their existing or future credit obligations satisfactorily.
12. The aggregate liability of Experian/Fair Isaac to you is limited to the lesser of the fees paid by AppFolio to Experian/Fair Isaac for the Experian/Fair Isaac Model resold to you during the six (6) month period immediately preceding your claim, or the fees paid by you to AppFolio under the resale contract during said six (6) month period, and excluding any liability of Experian/Fair Isaac for incidental, indirect, special or consequential damages of any kind.
13. You agree to indemnify, defend, and hold each of AppFolio, Experian and Fair Isaac harmless from and against any and all liabilities, damages, losses, claims, costs, and expenses (including attorneys' fees) arising out of or resulting from any nonperformance by you of any obligations to be performed by you under this Agreement, provided that AppFolio, Experian/Fair Isaac have given you prompt notice of, and the opportunity and the authority (but not the duty) to defend or settle any such claim.
14. You acknowledge that the Scores results from the joint efforts of Experian and Fair Isaac. You further acknowledge that each Experian and Fair Isaac have a proprietary interest in said Scores and agree that either Experian or the Fair Isaac may enforce those rights as required.