UPDATED OCTOBER 2013
Our terms have changed! We have streamlined and changed the terms. The following is a summary of the most significant changes.
- We’ve added defined terms for “Agreement”, and “Service Order Forms” and clarified the definition of “End User(s)” (Section 1).
- We’ve expanded the scope of content ownership (Section 5.1).
- We’ve added a section clarifying our obligation to retain customer content (Section 5.3).
- We’ve modified and clarified the scope of our customer’s and Active Building’s indemnification obligations (Sections 7.1 and 7.2 respectively).
- We’ve added a section to address how confidential information will be treated (Section 8).
- We’ve modified the limitation of liability (Section 10).
- We’ve clarified the language regarding the assignability of this agreement (Section 14.5).
- We’ve cleaned up some language and fixed typos.
Please note that this is a summary only; you are responsible for reviewing the terms in full.
These Service Terms & Conditions (“Service Terms”) are agreed to by Active Building, LLC (“Active Building”, “us”, “we”) and the customer (“Customer”) using the Active Building Online System for Building Management and Community (the “Online System”). By using the Online System, Customer agrees to abide by these Service Terms.
Active Building reserves the right to modify these Service Terms from time to time. If we modify these Service Terms, we will indicate that we have done so on our homepage. Continued use of the Online System constitutes Customer’s acceptance of any modified Service Terms.
1.1. “Affiliate” – any legal entity that owns, is owned by, or is commonly owned with a party, where “own” means having more than 50% ownership or the right to direct the management of the entity.
1.2. “Agreement” – these Service Terms together with all Service Order Forms executed by the parties.
1.3. “Customer Content” – any proprietary materials provided by Customer for incorporation by Active Building into the Online System or other product or services to be provided by Active Building, including without limitation, Property photographs, information relating to each End User and each Property, Active Building copies of by-laws, house rules and regulations and the Property declaration.
1.4. “Effective Date” – the date Customer signs up for the Online System.
1.5. “End User(s)” – Customer employees, persons engaged in property management activities for a Property, and lessees, subtenants, and occupants of units in a Property, in each case who access or use the Online System; and any other persons permitted to use the Online System with Active Building’s prior written consent.
1.6. “Online System” – the Active Building Online System for Building Management and Community online forum for the exchange of information by End Users, third party vendors, Customers and Active Building.
1.7. “Property” or “Properties” – the building location(s) designated by Customer.
1.8. “Service Order Forms” –any order document generated by Active Building and executed by Customer and Active Building that incorporates by reference these Service Terms, including without limitation any Authorization Forms, Service Authorization Forms, and/or Service Order Forms.
2. Term; Payments
2.1. Effective Date; Termination. This Agreement shall become effective on the Effective Date and shall continue for the period specified in the Service Order Form or, if not so specified, for automatically recurring monthly terms until terminated (the “Term”). Either party may terminate this Agreement at any time upon thirty (30) days’ written notice. If Customer terminates, no prepaid fees will be refunded.
2.2. Payment Terms. Active Building shall invoice Customer monthly in advance for the Online System. All amounts set forth on the invoice shall be due within thirty (30) days after Customer’s receipt of the invoice. Customer is responsible for paying all local, state, federal or foreign taxes, levies or duties of any nature.
2.3. Late Payments. If Customer fails to pay any fees within thirty (30) days after the date due, Active Building may levy late charges of the lesser of one percent (1%) per month or the maximum allowable under applicable law. In addition, failure of Customer to fully pay any undisputed fees within forty-five (45) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of Customer’s access to the Online System. Any such suspension does not relieve Customer from paying past due fees plus interest. In the event of collection enforcement, Customer shall be liable for any costs associated with such collection, including legal costs, attorneys’ fees, court costs and collection agency fees.
2.4. Termination for Cause. Either party may terminate this Agreement immediately in the event that: (a) the other party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within thirty (30) days after receipt of notice specifying the breach; or (b) the other party (i) institutes bankruptcy or similar proceedings, or files for a stay of proceedings or similar relief, (ii) has bankruptcy or similar proceedings instituted against it, and such proceedings are not stayed or dismissed within thirty (30) days; (iii) makes an assignment of property or assets for the benefit of its creditors, or (iv) becomes insolvent, or has a liquidator, receiver, manager or administrative receiver appointed. Upon any such termination of this Agreement under this Section, Customer shall pay all unpaid and outstanding fees through the effective date of termination. If Customer terminates for cause under this Section 2.4, Active Building will refund a prorated portion of any fees paid in advance.
3. Licenses; Ownership; Availability; Third-Party Services
3.1. Limited License. In consideration of Customer’s performance of the obligations under this Agreement, including Customer’s payment obligations, Active Building grants Customer a limited, non-transferable, non-exclusive, revocable right, for the Term, for Customer and End Users to access and use the Online System.
3.2. License Restrictions. Customer may not reverse engineer, decompile, or disassemble the Online System or any part thereof, or copy any concepts, ideas or techniques demonstrated by the use thereof, or attempt to do any of the foregoing. Customer will have no right to sell, lease, or sublicense, or otherwise make the Online System available to any third party other than End Users without the express written consent of Active Building.
3.3. Use by Affiliates. If Customer wishes to permit its Affiliates to use the Online System, and Active Building approves such use, Customer and such Affiliate shall execute Active Building’s Service Order Form. Customer shall remain solely liable for such Affiliates’ acts, omissions and usage of the Online System.
3.4. Ownership. Active Building reserves all rights, title and interest in and to the Online System and any deliverable provided to Customer pursuant to this Agreement (the “Active Building Proprietary Materials”). Customer acknowledges that the Active Building Proprietary Materials, all enhancements, corrections and modifications thereto, all intellectual property rights protecting or pertaining to any aspect thereof, and all goodwill associated therewith, are and shall remain the sole and exclusive property of Active Building and, where applicable, Active Building’s licensors. This Agreement does not convey title or ownership to Customer or any other third party, but instead gives Customer only the limited rights set forth in this Section 3.
3.5. Availability. Subject to the terms and conditions of this Agreement, Active Building shall use its commercially reasonable efforts to make the Online System available for use by End Users twenty-four (24) hours a day, seven (7) days a week throughout the Term. Customer acknowledges that from time to time the Online System may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades by Active Building or third party service providers (“Scheduled Downtime”); malfunctions and errors; and causes beyond the control of Active Building or which are not reasonably foreseeable by Active Building, including the interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). Active Building shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Online System in connection with either Downtime or Scheduled Downtime. In the event that the Online System has an uptime availability of 95% or less, then upon written request by Customer, Active Building will refund a percentage of Customer’s monthly fee equal to the Downtime percentage (e.g., if the uptime availability in a month is 90%, Customer will be entitled to receive a 10% refund on the following month’s payment). Such refund will be Customer’s sole remedy for a breach of this Section 3.5.
3.6. Advertising. Customer understands that Active Building may include on the Online System and in emails generated through the Online System advertising and promotion materials of Active Building and third parties. Such advertising and promotional materials shall not contain any profane or offensive materials.
3.7. Third Party Services. Customer acknowledges that the Online System contains information about third parties or links to other web sites belonging to third parties (“Third Party Services”). Third Party Services are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Active Building, and Active Building is not responsible for the delivery, provision or any other activities related to the Third Party Services.
4. Modification of Online System
Active Building reserves the right to modify or terminate any or all portions of the Online System with or without cause at any time and effective immediately (provided that Active Building will not change the Online System in a way that materially diminishes its functionality or performance). Should Customer object to any modifications to the Online System or become dissatisfied with the Online System in any way, Customer’s only recourse is to terminate its use of the Online System.
5. Customer Obligations
5.1. Content Ownership. Customer grants Active Building, at no cost to Active Building, a perpetual, irrevocable, royalty-free, worldwide, non-exclusive right and license, to modify, use, or create derivate works of the Customer Content, as necessary to use and display the same on and in connection with the Online System and as otherwise provided herein. All rights, title and interest in and to any Customer Content is and will remain with Customer and its licensors, and except as expressly provided herein, Active Building shall have no rights, title, or interest in or to the Customer Content. Active Building may access, use, extract, aggregate, compile, reproduce, modify, adapt, create derivative works from, sublicense, distribute, display, store, transmit to an Active Building Affiliate, or incorporate in other works in any form, media, or technology now known or later developed the Customer Content for the (i) support and provision of any product or service purchased by or provided to Customer under this Agreement or any other agreement between Customer and Active Building or its Affiliates (an “Active Building Party”) and all other uses necessary for an Active Building Party to properly discharge its obligations to Customer; (ii) maintenance, operation, and enhancement of the Online System or any other product or service provided by an Active Building Party; (iii) internal statistical analysis regarding Customer Content; and (iv) distribution or publication, solely in an Aggregated Form, of Customer Content in summary and benchmark reports. “Aggregated Form” means that Customer Content shall be combined with other data in such a manner that Customer and End Users cannot reasonably be identified.
5.2. Usage Restrictions. Customer will not (and shall ensure that End Users employed by Customer will not) use the Online System:
• in a manner that is illegal under or otherwise violates any local, state, national or international law or would constitute, encourage or provide instructions for a criminal offense (including, without limitation, the CAN-SPAM Act);
• to violate the rights of any party (including without limitation rights of privacy and publicity);
• to post content that is obscene, lewd, lascivious, violent, or otherwise objectionable;
• in a manner that victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
• to display material that exploits children, or otherwise exploits children under 18 years of age;
• in a manner that is unsolicited or unauthorized, including advertising, solicitations, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
• to display private information of a third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
• in a way that, in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Online System, or which may expose Active Building or its users to any harm or liability of any type.
Active Building does not control and is not responsible for what users contribute to the Online System and is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content that may be distributed through the Online System. Active Building is not responsible for the conduct, whether online or offline, of any user of the Online System.
5.3 Retention of Customer Content. Customer acknowledges and agrees that Active Building has no obligation to retain Customer Content after the expiration or termination of the Term, and that such Customer Content may be irretrievably deleted after such expiration or termination.
6. Warranties and Disclaimers
6.1. Active Building Warranties. Active Building warrants that during the term, the Online System will operate substantially in accordance with the provisions of Section 3.5. If, during the Term, Customer notifies Active Building of any material non-conformity with respect to the Online System, Active Building’s sole obligation under such warranty and Customer’s sole remedy shall be for Active Building to use commercially reasonable efforts to remedy such non-conformity.
6.2. Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1, THE ONLINE SYSTEM IS PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE ONLINE SYSTEM IS AT ITS OWN RISK. ACTIVE BUILDING DOES NOT WARRANT THAT THE ONLINE SYSTEM PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. ACTIVE BUILDING DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE ONLINE SYSTEM OR OTHER PORTIONS OF THE INTERNET. SUCH FLOW IS DEPENDENT UPON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES AND CUSTOMER ACKNOWLEDGES AND AGREES THAT INTERNET SERVICES ARE BEYOND THE CONTROL OF ACTIVE BUILDING.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND THE EXHIBITS ATTACHED HERETO, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. ACTIVE BUILDING DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.3. No Warranties for Third Party Services or Equipment. Active Building does not guarantee the quality of services rendered by vendors listed on the Online System. Active Building may provide certain third party equipment to Customer as part of the Online System. Such equipment is provided ”AS IS”, with no warranties from Active Building. Active Building will not be liable to Customer or any End User, building personnel or other third party for any losses, damages, costs or expenses arising out of or related to such third party services or equipment.
7.1. Customer Indemnity.
7.1.1 Customer agrees to indemnify and hold Active Building, its Affiliates and vendors, and their respective officers, directors, members, employees, representatives and agents (the “Indemnified Parties”) harmless from and against any claim, loss, damage, liability, cost and expense (including reasonable attorney’s fees) (“Claims”) incurred by an Indemnified Party asserted against any of them by third parties, including End Users, which arises out of or is connected with (a) Customer’s use of the Online System and/or (b) Customer Content provided for use in connection with the Online System.
7.1.2 The indemnification obligations of Customer hereunder are dependent upon Active Building giving Customer prompt written notice of such claim.
7.2. Active Building Indemnity
7.2.1. Active Building agrees to defend and indemnify Customer against any third party claim that Customer’s use of the Online System in accordance with this Agreement (but excluding any Customer Content) directly violates, infringes, or misappropriates any United States patent issued as of the date of the corresponding Service Order Form, or any copyright or trademark (an “Infringement Claim”). Without prejudice to such indemnity obligations, Active Building may, at its sole discretion, and option: (a) obtain the right of continued use of such service or the Online System being the subject matter of the Infringement Claim; (b) replace or modify same to avoid such Infringement Claim; or (c) terminate this Agreement by notifying Customer in writing and refunding to Customer any prepaid fees.
7.2.2. Active Building will not defend or indemnify Customer if any Infringement Claim (a) is asserted by an Affiliate of Customer, (b) results from use of the Online System in combination with any non-Active Building service or product to the extent that such Infringement Claim would not have been caused but for such combination, or (c) is based in whole or in part upon any Customer Content, to the extent that such Infringement Claim would not have been brought but for such Customer Content.
7.2.3. The indemnification obligations of Active Building hereunder are dependent upon Customer: (a) giving Active Building prompt written notice of such Infringement Claim, (b) permitting Active Building to defend or settle the Infringement Claim, (c) not at any time admitting liability in respect of the whole or any part of the Infringement Claim or agreeing to settle or dispose of the Infringement Claim, and (d) providing all reasonable assistance to Active Building in defending or settling the Infringement Claim.
7.2.4. This Section 7.2 states the entire liability of Active Building and Customer’s sole and exclusive remedies for any Infringement Claim.
8. Confidential Information
“Confidential Information” means non-public, confidential or proprietary information created or acquired by a party, including products, product designs, product data, product source code, trade secrets, pricing and discounts, supplier lists, network structure and addresses, IP addresses and other computer and network related information, any other data whether written, verbal or visual, connected to or related to the business and affairs of a party or any of its affiliates, and the form and substance of this Agreement; provided, however, that Confidential Information does not include information that (i) is or becomes generally available to the public other than as a result of disclosure by the recipient or anyone to whom the recipient transmits the information, (ii) becomes available to the recipient on a non-confidential basis from a source other than the disclosing party who, to the recipient’s knowledge, is not bound by a confidentiality agreement with the disclosing party, (iii) was rightfully known to the recipient or in its possession prior to the date of disclosure by the disclosing party, or (iv) is independently developed by the recipient without benefit of or reference to the Confidential Information. No party will publish, disclose, copy, disseminate or in any manner utilize Confidential Information of the other party in its business or otherwise, for any purpose other than as contemplated herein unless compelled to do so by subpoena or compliance with other applicable law, prompt prior notice of which will be given to the other party. However, a party may disclose the other party’s Confidential Information to any of its affiliates, provided the disclosing party shall remain liable for such affiliate’s use of the Confidential Information. Each party shall use commercially reasonable efforts to protect and prevent disclosure of another party’s Confidential Information. Upon request, the recipient of Confidential Information will return all copies, written, photographic or otherwise duplicated to the owner and will not in any manner use, convey, disclose or disseminate such Confidential Information for any purpose whatsoever, except as otherwise provided herein or required by applicable law.
9. Force Majeure
Active Building shall be excused from performance hereunder for the period of time and to the extent that Active Building is prevented from providing the Online System, in whole or in part, as a result of delays caused by Customer, an act of God, war, civil disturbance, court order, labor dispute, third party non-performance or other cause beyond Active Building’s reasonable control, including failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment and such non-performance due to the force majeure event alone shall not be a default or a ground for termination.
10. Limitation of Liability
THE ENTIRE LIABILITY OF ACTIVE BUILDING AND CUSTOMER’S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATING TO OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY ACTIVE BUILDING FROM CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
UNDER NO CIRCUMSTANCES SHALL ACTIVE BUILDING BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, OR LOST DATA ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF ACTIVE BUILDING OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so some of the above limitations may not apply to Customer.
THE PARTIES ACKNOWLEDGE THAT ACTIVE BUILDING HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
All notices required by this Agreement to be given to Customer shall be sent to the address provided when Customer registers for the Online System.
All notices to be given to Active Building will be sent to:
Active Building, LLC
615 2nd Ave Suite 700
Seattle, WA 98104
All notices required under this Agreement will be sent by certified or registered mail, confirmed facsimile or e-mail with confirmed read receipt. Active Building may send out general notices to all customers via e-mail or other electronic communication.
12. Dispute Resolution
In the event of any dispute or controversy between the parties hereto of any kind or nature, upon the written request of either party, each of the parties will appoint a designated officer whose task it will be to meet for the purpose of resolving such dispute or controversy or to negotiate for an adjustment to such provision of this Agreement. Such officers will discuss the dispute or controversy and negotiate in good faith in an effort to resolve the dispute or controversy or renegotiate the applicable section or provision without the necessity of any formal proceeding relating thereto. No formal proceedings for the judicial resolution of such dispute or controversy may be commenced until either or both of the designated officers conclude in good faith that amicable resolution through continued negotiation of the matter in issue is not likely to occur.
13. End User Privacy
14. Other Provisions
14.1. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1 (Definitions), 2.2 (Payment Terms), 3.4 (Ownership), 5.1 (Content Ownership), 5.3 (Retention of Customer Content), 6 (Warranties and Disclaimers), 7 (Indemnification), 8 (Confidential Information), 10 (Limitation of Liability), 11 (Notices), 12 (Dispute Resolution), and 14 (Other Provisions).
14.2. No Waiver. Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.
14.3. Governing Law. This Agreement will be governed by the laws of the State of Washington, without giving effect to its conflict of laws principles.
14.4. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior proposals and agreements, both written and oral and all other written and oral communications between the parties.
14.5. Assignment. Active Building may subcontract any services described in this Agreement to third parties selected by Active Building, provided that Active Building remains liable as stated in this Agreement. Neither party may assign or transfer its rights or obligations under this Agreement without prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement (i) to an affiliate or subsidiary of such party, (ii) to an entity resulting from the consolidation or merger of such party with or into another entity, or (iii) to any entity which acquires a majority of such party’s issued and outstanding capital stock or substantially all of such party’s assets. Any assignment or transfer prohibited by this provision will be void.
14.6. Severability. Each paragraph and provision of this Agreement is severable and, if one or more paragraphs or provisions are declared invalid, the remaining provisions of this Agreement will remain in full force and effect.
14.7. Authorization. Each party hereto separately represents and warrants to the other party hereto that it has full corporate power and authority to enter into this Agreement and that the execution and delivery of this Agreement and the carrying out of the transactions contemplated by it have been duly and validly authorized by all necessary corporate action and do not violate any provision of its charter, certificate of incorporation or by laws.
14.8. Independent Parties. Active Building, in furnishing the Online System to Customer, is acting only as an independent contractor. Except where this Agreement expressly provides otherwise, Active Building does not undertake by this Agreement or otherwise to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer’s business or operations.
14.9. Acknowledgement by Customer. By using the Online System, Customer acknowledges that it has read and understands this Agreement and is not entering into this Agreement on the basis of any representations not expressly set forth herein.