Service Terms & Conditions
These Service Terms & Conditions are agreed to by MyBuilding and Client (as identified in the attached Service Order Form) and govern MyBuilding’s provision of and Client’s use of the Service.
For all purposes of this Agreement, the following terms shall have the following meanings:
1.1. Additional Services – additional services that Client may request that MyBuilding perform in connection with the MyBuilding Online System for Building Management and Community, beyond the scope of the Services.
1.2. Commencement Date of Set Up Services – the Effective Date.
1.3. Commencement Date of Ongoing Services – the date when the MyBuilding Online System for Building Management and Community is made available online for use by End-Users.
1.4. Set Up Services – those design, development, customization, deployment, and training services, to be performed by MyBuilding for Client In relation to the MyBuilding Online System for Building Management and Community.
1.5. Building or Buildings – the building location(s) designated by Client, to be included as part of the MyBuilding Online System for Building Management and Community and for which MyBuilding shall provide the Services to Client hereunder.
1.6. Effective Date – the date the Authorization Form is executed by Client.
1.7. End-User(s) – all residents of the Building, all employees of Client, and members of Building’s management.
1.8. MyBuilding Online System for Building Management and Community – an 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 parties, Client and, at MyBuilding’s option, by MyBuilding.
1.9. Ongoing Services – those content maintenance, support, to be performed by MyBuilding for Client in relation to the MyBuilding Online System for Building Management and Community.
1.10. Online Service – a service based on a website owned and operated by MyBuilding for use by Client and End Users in connection with the MyBuilding Online System for Building Management and Community.
1.11. Service Term – shall have the meaning set out in Section 2 hereof.
1.12. Services – those Set Up Services and Ongoing Services to be performed by MyBuilding for Client as described in Section 4 herein.
This Agreement will become effective on the Effective Date and will automatically renew, unless earlier terminated in writing by client. Any fees collected by MyBuilding for future services will be refunded pro-rata per the termination date.
3.1. In consideration of Client’s performance of the obligations under this Agreement, including Client’s payment obligations, MyBuilding grants Client a limited, non-transferable, non-exclusive, revocable license, for the Term, to adapt, publish, display, distribute and use the Online System for Building Management and Community solely for use by Client and End Users as part of the provision of the Online Service to which Client has subscribed, so long as Client has met all payments and other obligations stated herein and therein.
3.2. Client may not, and shall procure that no End User shall, reverse engineer, decompile, or disassemble the Online Service, the Online System for Building Management and Community, or any part thereof, or copy any concepts, ideas or techniques demonstrated by the use thereof, or attempt to do any of the foregoing. The provisions of this paragraph will survive any termination or expiration of this Agreement.
3.3. MyBuilding reserves all rights, title and interest in and to the Online Service, the MyBuilding Online System for Building Management and Community, or any deliverable to be provided pursuant to this Agreement (the “MyBuilding Proprietary Materials“). Client 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 Client or any other third party, but instead gives Client only the limited rights set forth in this Section 4.
3.4. Subject to the terms and conditions of this Agreement, MyBuilding shall use its commercially reasonable efforts to make the Online Service available for use by End-Users twenty-four (24) hours a day, seven (7) days a week throughout the Service Term. Client acknowledges that from time to time the MyBuilding Online System for Building Management and Community 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, and to cause third party service providers utilized in connection with the provisioning of Services hereunder to, minimize any disruption, inaccessibility and/or inoperability of the Services in connection with either Downtime or Scheduled Downtime.
3.5. Following the Effective Date and during the Service Term, provided that Client is not in breach of this Agreement, MyBuilding will provide the Services described in this Agreement.
3.6. Client understands that, as part of the Services MyBuilding may include on the MyBuilding Online System for Building Management and Community and in emails generated through the MyBuilding Online System for Building Management and Community advertising and promotion materials of MyBuilding and third parties, as MyBuilding may propose to include on the MyBuilding Online System for Building Management and Community. All such advertising materials shall be subject to the prior approval of Client, which may be withheld at any time for any reason. Both parties agree that such advertising and promotional materials shall not contain any profane or offensive materials.
3.7. Client will have no right to sell, lease, or sublicense, or otherwise make the Services, the MyBuilding Online System for Building Management and Community, the Online Service, or the information provided in accordance with this Agreement, available to any third party, other than End-Users, without the express written consent of MyBuilding.
3.8. The parties acknowledge that cooperation and teamwork are essential to the success of the Services. Both parties agree to use mutually agreed processes and forms to report progress and to identify, track and resolve problems, issues and questions. Unless otherwise agreed, the processes will be based on MyBuilding methodologies.
3.9. Each party shall appoint a project manager who shall be the primary representative of the party in relation to administration and other matters relative to the Services. Each party may rely on the authority of the other party’s project manager to represent its respective company, provided that neither project manager shall have the authority to amend or modify this Agreement or the express terms of any order.
4.1. In connection with the Services provided hereunder by MyBuilding, Client will, in addition to its other obligations hereunder, at its own cost and expense and on a timely basis provide MyBuilding with all content relating to the Building, its staff members and residents which shall be intended to be published on the Online Service. Such content shall be delivered to MyBuilding in form and on media as set out in the Agreement or as shall otherwise be instructed upon by MyBuilding. Failure to timely deliver any content may result in delays in the publication of such content on the Online Service. Client shall procure for MyBuilding, at no cost to MyBuilding, the right to publish, display and use all such content on or in connection with the Online Service, for the duration of the Term.
4.2. All rights, title and interest in and to any Client Materials is and will remain with Client and its licensors, and except as expressly provided herein, MyBuilding shall have no rights, title, or interest in or to the Client Materials. Client hereby grants and shall continuously procure for MyBuilding a limited, non-transferable, non-exclusive, revocable license for the Term, to modify, use, or create derivate works of the Client Content, as necessary to perform the Services, and to use and display the same on and in connection with the Online Service for use with the MyBuilding Online System for Building Management and Community. As used herein, “Client Content” shall mean any proprietary materials provided by Client for incorporation by MyBuilding into the Online Service, the MyBuilding Online System for Building Management and Community or other product or Services to be provided by MyBuilding, including without limitation, Building photographs, information relating to each End User, the Building and documentation required for MyBuilding to successfully perform the Services under this Agreement, copies of by-laws, house rules and regulations and the Building declaration. With respect to Client Content, Client warrants to MyBuilding that it has the right to disclose and to authorize and license MyBuilding to use all Client Content so provided in accordance with the terms hereof. Client will, at its own expense, protect, indemnify, defend and hold MyBuilding, its affiliates, employees, members, officers, directors, agents and representatives harmless from and against any claims, proceedings, loss and damages, cost and expense (including reasonable attorneys’ fees) arising from or relating to Client’s breach of the foregoing representation, or otherwise associated with the Client Content provided to MyBuilding by Client and published, displayed or used on or in connection with the Online Service.
5.1. Unless MyBuilding receives a notification of termination from Client, MyBuilding shall invoice Client for Services rendered in the next month, quarter or year, per client preference as set in the Authorization Form. All amounts set forth on the invoice shall be due within thirty (30) days from Client’s receipt of the invoice.
6.1. MyBuilding warrants that during the term, the Online Service will operate substantially hereto. If, during the Term, Client notifies MyBuilding of any material non-conformity with respect to the Online Service, MyBuilding’s sole obligation under such warranty shall be to use its commercially reasonable efforts to promptly remedy such non-conformity.
6.2. EXCEPT AS SET FORTH IN SECTION 8, THE ONLINE SERVICE, MYBUILDING ONLINE SYSTEM FOR BUILDING MANAGEMENT AND COMMUNITY AND SERVICES, ARE PROVIDED ON AN “AS IS” BASIS, AND CLIENT’S AND EACH END-USER’S USE OF THE ONLINE SERVICE, MYBUILDING ONLINE SYSTEM FOR BUILDING MANAGEMENT AND COMMUNITY AND SERVICES ARE AT THEIR OWN RISK. MYBUILDING DOES NOT WARRANT THAT THE ONLINE SERVICE, THE MYBUILDING ONLINE SYSTEM FOR BUILDING MANAGEMENT AND COMMUNITY, OR THE 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 SERVICE OR OTHER PORTIONS OF THE INTERNET. SUCH FLOW IS DEPENDENT UPON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES AND CLIENT ACKNOWLEDGES AND AGREES THAT INTERNET SERVICES ARE BEYOND THE CONTROL OF MYBUILDING.
6.3. CLIENT AGREES TO PROTECT, INDEMNIFY, DEFEND, SAVE AND HOLD HARMLESS MYBUILDING, ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, REPRESENTATIVES AND AGENTS ARISING FROM ANY CLAIM OR DAMAGE ASSERTED AGAINST MYBUILDING BY THIRD PARTIES, INCLUDING END-USERS, WHICH ARISE OUT OF OR ARE CONNECTED WITH THE CLIENTS OR ANY END USERS’ USE OF THE ONLINE SERVICE AND/OR THE MYBUILDING ONLINE SYSTEM FOR BUILDING MANAGEMENT AND COMMUNITY, WHETHER OR NOT THE CAUSE OR OUTCOME OF SUCH DISPUTE IS THE SUBJECT OF THIS AGREEMENT AND FROM ANY CLAIM, LIABILITY OR OTHERWISE BY ANY END USER, ASSOCIATED WITH THE CLIENT CONTENT PROVIDED TO MYBUILIDING. Notwithstanding the preceding paragraph, Client’s sole and exclusive liability to MyBuilding relating to the Online Service, use of the Online Service, or otherwise arising in connection with this Agreement, under any theory of law, shall be limited to the fees payable to MyBuilding during the Term.
6.4. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, 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, FOR THE ONLINE SERVICE AND THE MYBUILDING ONLINE COMMUNITY SERVICE.
6.5. ANY WARRANTY OR OBLIGATION Of MYBUILDING HEREUNDER SHALL EXTEND ONLY TO CLIENT AND NOT TO ANY END USER, BUILDING PERSONNEL, OR OTHER THIRD PARTY.
6.6. MyBuilding does not guarantee the quality of services rendered by vendors listed on the MyBuilding Online System for Building Management and Community, as approved by Client.
7.1. MyBuilding agrees to defend and indemnify Client against any third party claim of infringement or misappropriation alleging that the MyBuilding Online System for Building Management and Community, the Online Service or the Services infringe upon or misappropriate a United States patent, 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 MyBuilding Online System for Building Management and Community, the Online Service or any Services being the subject matter of the Infringement Claim, for Client; (b) replace or modify same to avoid such claim; or (c) terminate the Services and this Agreement by notifying Client in writing and refunding to Client the fees paid to MyBuilding in the immediately preceding twelve (12) month period. Any applicable license to use the MyBuilding Online System for Building Management and Community will terminate effective immediately.
7.2. MyBuilding will not defend or indemnify Client if any Infringement Claim (a) is asserted by a parent, subsidiary or affiliate of Client, (b) results from Client’s design or alteration of any MyBuilding Service, (c) results from use of any Service in combination with any non-MyBuilding Service, (d) relates to a non-MyBuilding Service alone, or (e) is based in whole or in part upon any Client Content.
7.3. The indemnification obligations of MyBuilding hereunder are dependent upon Client: (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.
7.4. This Section 9 states the entire liability of the indemnifying party and the other party’s sole and exclusive remedies for any Infringement Claim.
MyBuilding shall be excused from performance hereunder for the period of time and to the extent that MyBuilding is prevented from performing the Services, in whole or in part, as a result of delays caused by Client, 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 shall not be a default or a ground for termination.
9.1. UNLESS FURTHER LIMITED ELSEWHERE IN THIS AGREEMENT, THE ENTIRE LIABILITY OF MYBUILDING AND CLIENT’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 BE AS SET OUT IN SECTION 8.1 AND IN ANY EVENT WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY MYBUILDING FOR THE SERVICES PROVIDED HEREUNDER DURING THE INITIAL TERM.
9.2. In no event will either party be liable for any incidental, indirect, special, consequential or punitive damages, including, but not limited to, loss of use, loss of data, revenues, profits or savings, Except if the party knew of the possibility of such damages and did not allert the other party within reasonable time of such possibility. Without limiting the generality of the above, to the maximum extent permitted at law, MYBUILDING DISCLAIMS ANY AND ALL LIABILITY FOR THE CONSEQUENCES OF ERRORS, LOST MESSAGES OR FAULTY TRANSMISSION, DOWNTIME OR SCHEDULED DOWNTIME. EXCEPT AS HEREINAFTER PROVIDED, MYBUILDING HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY CAUSED BY OR ARISING IN CONNECTION WITH THE USE OF THE MYBUILDING ONLINE SYSTEM FOR BUILDING MANAGEMENT AND COMMUNITY, THE ONLINE SERVICE, or ANY FAILURE OR DELAY IN FURNISHING SERVICES.
9.3. Each of the parties acknowledge that by entering into and performing its obligations under this Agreement, MyBuilding will not assume and should not be exposed to the business and operational risks associated with Client’s business and Client therefore agrees to indemnify, defend and hold harmless MyBuilding from any and all third party claims, actions, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, arising out of the conduct of Client’s business, including the use by Client, End Users or the Building Personnel of the Online Service, MyBuilding Online System for Building Management and Community and/or Services.
9.4. 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.
10.1. 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 of 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 under chapter 11 of title 11 of the United States Code, (ii) has bankruptcy similar proceedings instituted against it, and such proceedings are not stayed or dismissed within thirty (30) days; or (iii) makes an assignment of property or assets for the benefit of its creditors. Upon any such termination of this Agreement under this Section, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.
10.2. Client may terminate this Agreement at any time effective on written notice to MyBuilding; provided, however, that Client shall not be entitled to any refund or credit of any type upon such a termination (including with respect to any Service Term that will not be completed due to Client’s termination) nor shall Client be relieved of paying any fees then due under this Agreement.
10.3. The termination or expiration of this Agreement shall not affect any accrued rights. Upon the termination or expiration of this Agreement, each party shall promptly return or make available to the other all proprietary documents and other materials delivered or made available to it by the other party pursuant to this Agreement, and Client shall immediately cease using the Online Service and the MyBuilding Online System for Building Management and Community.
10.4. The following Sections shall survive any expiration or termination of this Agreement: 1 (Definitions), 2 (Term), 4.2-4.3, 4.7 (Vested Rights), 6.2 (Client Content), 7 (Payment and Taxes), 8 (Warranties and Disclaimers), 9 (Patent, Copy Rights and Trade Secrets Indemnification), 11 (Limitation of Liability), 12 (Termination), 16 (Confidentiality), and 17 (Other Provisions).
All notices required by this Agreement to be given to Client shall be sent to its address on the first page of this Agreement.
All notices to be given to MyBuilding will be sent to:
130 West 25th Street, Suite 4C
New York, NY 10001
All notices to be given to Client will be sent to the address set out in the Authorization Form.
All notices required under this Agreement will be sent by certified or registered mail.
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.
13.1. In the event that the parties are not able to resolve a dispute or controversy in accordance with the provisions above, either party may demand arbitration in writing, stating the nature of the controversy. The arbitration shall be conducted in accordance with the Commercial Arbitration Rule of the American Arbitration Association as then in effect, in the State of New York, and shall be held before a single arbitrator. Discovery proceedings shall be kept to a reasonable minimum, and all discovery disputes shall be resolved by the arbitrator. Each party shall bear its own arbitration costs and expenses, except that the prevailing party in the arbitration shall be entitled to reimbursement of its reasonable attorneys’ fees, and the parties shall use all reasonable efforts to keep arbitration costs to a minimum.
13.2. Other than those matters involving injunctive relief as a remedy, or any action necessary to enforce the award of the arbitrators, the parties agree the provisions of this Section are a complete defense to any suit, action or other proceeding instituted in any court or before any administrative tribunal with respect to any dispute or controversy arising out of or in connection with this Agreement. The provisions of this Section will survive termination of this Agreement. Nothing in this Section prevents the parties from exercising their rights to terminate this Agreement as specified in this Agreement.
MyBuilding shall at all times maintain all personal or private data relating to End Users (including but not limited to the names, email address, and apartment addresses, of any and all End users, but excluding Client Content delivered to MyBuilding for purposes of display as part of the Online Service) (“End User Private Data“) shall be treated as confidential information and used only for the purposes of this Agreement, and that no such End User Private Information shall be disclosed to outside parties by MyBuilding, without the prior written consent of Client. MyBuilding agrees to take all reasonable precautions to prevent the disclosure to outside parties of any End User Private Data, unless required to do so by law enforcement authorities or by a court of law of competent authority. Nothing herein is intended to limit MyBuilding’s right to identify that Client is a customer of MyBuilding and to utilize all information obtained pursuant to this Agreement or in connection with the Services provided hereunder for statistical and comparative purposes, provided it is not disclosed in any manner which could reasonably identify Client or End Users.
15.1. Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.
15.2. This Agreement will be governed by the laws of the State of New York, without giving effect to its conflict of laws principles.
15.3. 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.
15.4. MyBuilding may not assign its rights nor delegate its obligations under this Agreement to one or more third parties without Client’s consent. 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. Client will not assign or transfer its rights or obligations under this Agreement without prior written consent of MyBuilding. Any assignment or transfer prohibited by this provision will be void.
15.5. Notwithstanding anything herein to the contrary, in the event that MyBuilding is no longer able to operate and/or maintain the Online Service or the MyBuilding Online System for Building Management and Community by reason of bankruptcy or insolvency, MyBuilding shall contract with a third party hosting company for the continued operation and maintenance of the Online Service and the MyBulding Online System for Building Management and Community, subject to Client’s approval. MyBuilding shall turn over to such hosting company all proprietary software necessary for the operation of the system.
15.6. This Agreement may be modified only by a written agreement to that effect signed by a duly authorized representative of each party.
15.7. 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.
15.8. 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.
15.9. MyBuilding, in furnishing the Services to Client, 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 Client, whether regulatory or contractual, or to assume any responsibility for Client’s business or operations.
15.10. Client and MyBuilding acknowledge that they have read and understand this Agreement and are not entering into this Agreement on the basis of any representations not EXPRESSLY SET FORTH HEREIN.