Last update: October 2013
These Service Terms & Conditions (“Service Terms”) are agreed to by MyBuilding Inc. (“MyBuilding”, “us”, “we”) and the customer (“Customer”) using the
Online Services (as defined below) for Building Management and Community (the “Online System”). By using the Online Services and Online System, Customer
agrees to abide by these Service Terms.
MyBuilding 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 Services and 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 MyBuilding into the Online System or other product or
services to be provided by MyBuilding, including without limitation, Property photographs, information relating to each End User and each Property,
MyBuilding copies of by-laws, house rules and regulations and the Property declaration.
1.4. “Effective Date” – the date a Service Order Form is executed by Customer.
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 Services or Online System; and any other persons permitted to use the Online Services or Online System with MyBuilding’s prior written consent.
1.6. “Ongoing Services” – those content maintenance and support services to be performed by MyBuilding for Customer in relation to the Online System.
1.7. “Online Service” – a service based on a website owned and operated by MyBuilding for Customer in relation to the Online System.
1.7. “Online System” – the MyBuilding Online System for Building Management and Community online forum for the exchange of information by End Users through
use of the Online Service, including information relating to vendor services offered by third party vendors, Customers and MyBuilding.
1.7. “Property” or “Properties” – the building location(s) designated by Customer.
1.8. “Service Order Forms” – any order document generated by MyBuilding and executed by Customer and MyBuilding that incorporates by reference these
Service Terms, including without limitation any Authorization Forms, Service Authorization Forms, and/or Service Order Forms.
1.9. “Services” – those Set Up Services and Ongoing Services to be performed by MyBuilding for Customer as described in Section ?
1.10. “Set Up Services” – those design, development, customization, deployment, and training services to be performed by MyBuilding for Customer in
relation to the Online System.
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. MyBuilding shall invoice Customer in advance for the Online System as specified in Customer’s Subscription Order Form(s), or if not so specified then quarterly in advance. 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, MyBuilding 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, MyBuilding 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, MyBuilding 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 as part of the provision of the Online Service to which Customer has subscribed .
3.2. License Restrictions. Customer may not reverse engineer, decompile, or disassemble the Online Services, 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 Services, Online System available to any third party other than End Users without the express
written consent of MyBuilding.
3.3. Use by Affiliates. If Customer wishes to permit its Affiliates to use the Online System, and MyBuilding approves such use, Customer
and such Affiliate shall execute MyBuilding’s Service Order Form. Customer shall remain solely liable for such Affiliates’ acts, omissions and usage of the
3.4. Ownership. MyBuilding reserves all rights, title and interest in and to the Online Services, Online System and any deliverable
provided to Customer pursuant to this Agreement (the “MyBuilding Proprietary Materials”). Customer acknowledges that the MyBuilding 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 MyBuilding and, where applicable, MyBuilding’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, MyBuilding 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 MyBuilding
or third party service providers (“Scheduled Downtime”); malfunctions and errors; and causes beyond the control of MyBuilding or which are not reasonably
foreseeable by MyBuilding, including the interruption or failure of telecommunication or digital transmission links, hostile network attacks or network
congestion or other failures (collectively “Downtime”). MyBuilding 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, MyBuilding 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 MyBuilding may include on the Online System and in emails generated through the Online System
advertising and promotion materials of MyBuilding and third parties. Such advertising and promotional materials shall not contain any profane or offensive
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 MyBuilding, and MyBuilding is not responsible for the delivery, provision or any other activities related to the Third Party Services.
4.Modification of Online Services or Online System
MyBuilding reserves the right to modify or terminate any or all portions of the Online Services or Online System with or without cause at any time and
effective immediately (provided that MyBuilding will not change the Online Services or Online System in a way that materially diminishes its functionality
or performance). Should Customer object to any modifications to the Online Services or Online System or become dissatisfied with the Online Services or
Online System in any way, Customer’s only recourse is to terminate its use of the Online Services or Online System.
5. Customer Obligations
5.1. Content Ownership. Customer grants MyBuilding, at no cost to MyBuilding, 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 perform the Services, and to use and
display the same on and in connection with the Online Services for use 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, MyBuilding shall have
no rights, title, or interest in or to the Customer Content. MyBuilding may access, use, extract, aggregate, compile, reproduce, modify, adapt, create
derivative works from, sublicense, distribute, display, store, transmit to a MyBuilding 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 MyBuilding or its Affiliates (a “MyBuilding Party”) and all other uses necessary
for a MyBuilding Party to properly discharge its obligations to Customer; (ii) maintenance, operation, and enhancement of the Online Services or Online
System or any other product or service provided by a MyBuilding 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 MyBuilding or its users to any harm or liability of any type.
MyBuilding 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. MyBuilding 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 MyBuilding 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.MyBuilding Warranties. MyBuilding 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 MyBuilding of any material non-conformity with respect to the Online System MyBuilding’s sole obligation under such warranty and Customer’s sole
remedy shall be for MyBuilding to use commercially reasonable efforts to remedy such non-conformity.
6.2. Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1, THE ONLINE SERVICES, ONLINE SYSTEM, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE ONLINE SERVICES, ONLINE SYSTEM, AND SERVICES ARE AT ITS OWN RISK. MYBUILDING DOES NOT WARRANT THAT THE ONLINE SERVICES, ONLINE SYSTEM, AND SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. MYBUILDING DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE ONLINE SERVICES 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 MYBUILDING.
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. MYBUILDING DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.3. No Warranties for Third Party Services or Equipment. MyBuilding does not guarantee the quality of services rendered by vendors listed on the Online System. MyBuilding may provide certain third party equipment to Customer as part of the Online System. Such equipment is provided “AS IS”, with no warranties from MyBuilding. MyBuilding 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 MyBuilding, 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 Services and/or Online System and/or (b) Customer Content provided for use in connection with the Online
7.1.2 The indemnification obligations of Customer hereunder are dependent upon MyBuilding giving Customer prompt written notice of such claim.
7.2. MyBuilding Indemnity
7.2.1. MyBuilding agrees to defend and indemnify Customer against any third party claim that Customer’s use of the Online Services, Online System, or
Services 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, MyBuilding may, at its sole discretion, and option: (a) obtain the right of continued use of such service or the Online Services, Online
System, or Services 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. MyBuilding 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 Services or Online System in combination with any non-MyBuilding 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 MyBuilding hereunder are dependent upon Customer: (a) giving MyBuilding prompt written notice of such
Infringement Claim, (b) permitting MyBuilding 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 MyBuilding
in defending or settling the Infringement Claim.
7.2.4. This Section 7.2 states the entire liability of MyBuilding 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
MyBuilding shall be excused from performance hereunder for the period of time and to the extent that MyBuilding is prevented from performing Services or
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 MyBuilding’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
10. Limitation of Liability
THE ENTIRE LIABILITY OF MYBUILDING 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 MYBUILDING FROM CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
UNDER NO CIRCUMSTANCES SHALL MYBUILDING 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 MYBUILDING 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 MYBUILDING 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 MyBuilding will be sent to:
130 West 25thStreet, Suite 4C
New York, NY 10001
All notices required under this Agreement will be sent by certified or registered mail, confirmed facsimile or e-mail with confirmed read receipt.
MyBuilding 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 New York, without giving effect to its conflict of laws
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. MyBuilding may subcontract any services described in this Agreement to third parties selected by MyBuilding, provided
that MyBuilding 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. MyBuilding, in furnishing the Online Services, Online System and Services to Customer, is acting only as an independent contractor. Except where this Agreement expressly provides otherwise, MyBuilding 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 Services or 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.