These Terms of Service (“Buildium Terms”) apply to all websites and mobile applications (the “Sites”) provided by Buildium LLC (“Buildium”) for the purpose of providing information and selected functionality to you (the “Buildium Services”) or to enable certain property managers, property owners or other third party service providers (the “Providers”) to provide services to you (the “Provider Services”).
PLEASE READ THESE BUILDIUM TERMS AND OUR PRIVACY POLICY (COLLECTIVELY, THIS “AGREEMENT”) CAREFULLY BECAUSE THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND BUILDIUM. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT PERMITTED ACCESS OR USE THE SITE, BUILDIUM SERVICS OR PROVIDER SERVICES. BY ACCESSING, DOWNLOADING OR USING THE SITE, YOU (1) AGREE TO BE BOUND BY THIS AGREEMENT, (2) CONFIRM THAT YOU ARE AT LEAST 18 YEARS OLD, (3) CONFIRM THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND (4) ACCEPT THE TERMS OF THIS AGREEMENT.
PLEASE BE ADVISED THAT THESE BUILDIUM TERMS CONTAIN PROVISIONS, INCLUDING A DISPUTE RESOLUTION AGREEMENT (SEE SCHEDULE A AT THE END OF THESE BUILDIUM TERMS, TITLED “DISPUTE RESOLUTION TERMS (ARBITRATION AGREEMENT; CLASS AND COLLECTIVE ACTION WAIVER; AND JURY TRIAL WAIVER)”), THAT GOVERN HOW CLAIMS YOU AND BUILDIUM HAVE AGAINST EACH OTHER ARE RESOLVED, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE THE PARTIES TO SUBMIT CLAIMS THEY MAY HAVE AGAINST ONE ANOTHER TO BINDING AND FINAL ARBITRATION. UNDER THE DISPUTE RESOLUTION AGREEMENT, THE PARTIES WILL (I) ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST EACH OTHER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (II) BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY ON AN INDIVIDUAL BASIS.
Portions of the Site serve as a platform for Providers to provide the Provider Services. Buildium does not own or manage the properties listed on the Site and does not enter into rental contracts for those properties. For clarity, Buildium is not a party to any transaction between you and any Providers, even if any such transactions are conducted through the Site. AS A RESULT, BUILDIUM SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INFORMATION EXCHANGED, THE CONTENTS OF ANY DOCUMENTS, OR FOR ANY OTHER INTERACTIONS BY, BETWEEN OR AMONG YOU AND ANY PROVIDERS, CONDUCTED THROUGH THE SITE, AND YOU HEREBY RELEASE BUILDIUM FROM ANY CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY PROVIDER SERVICES.
1. MODIFICATION OF THIS AGREEMENT. Buildium reserves the right to change, modify, add or remove portions of this Agreement (each, an “Update”) at any time and in our sole discretion without prior notice. Any such Update will be effective immediately. If we make any Updates to this Agreement, we will post the new terms here and note the date this Agreement was last updated. We encourage you to frequently review this Agreement to ensure you are familiar with and understand the latest terms and conditions associated with use of the Site and any Buildium Services. If you do not agree to an Update, you must discontinue using the Site and any Buildium Services.
2. INTELLECTUAL PROPERTY. The Sites and all Buildium Services are owned by Buildium and are protected by United States and international copyright, trademark, trade secrets and other laws (“Intellectual Property”).
None of the Intellectual Property may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of Buildium or the respective intellectual property owner. Any non-permitted use of the Sites or Buildium Services – including any commercial use, modification, distribution, republication, display, or performance – without the prior written permission of Buildium – is strictly prohibited.
3. GUIDELINES; USAGE RULES; PROHIBITED CONDUCT AND USES. YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU WILL NOT ENGAGE IN THE PROHIBITED CONDUCT AND USES LISTED BELOW (THE “GUIDELINES”). YOU WILL NOT:
a. use the Sites or any information displayed within the Site to stalk, harass, abuse, defame, threaten or defraud other users, or collect, attempt to collect or store location or personal information about other users;
b. use the Sites if you are under the age of eighteen (18) years old;
c. use the Sites for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data security and privacy, and import or export control;
d. make unsolicited offers, advertisements, proposals, or send junk mail, to other users of the Sites. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures, surveying or requests to participate in surveys or studies;
e. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the accounts of any other users;
f. misrepresent the source, identity or content of information transmitted via the Sites;
g. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Sites, features that prevent or restrict use or copying of any content accessible through the Sites, or features that enforce limitations on use of the Sites;
h. intentionally interfere with or damage operation of the Sites or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, invalid data, keyloggers, spyware, Trojan horses, time bombs, or other malicious or harmful code, or imposing an unreasonable or disproportionately large load on our infrastructure;
i. post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, defamatory, libelous, offensive, obscene, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially, religiously or ethnically or otherwise offensive to any group or individual, intentionally misleading, false, harmful to minors, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
j. post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
k. attempt to gain unauthorized access to the Sites, or any part thereof, other accounts, computer systems or networks connected to the Sites, or any part of thereof, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Sites or any activities conducted on the Sites;
l. hack, spam or phish Buildium or any users of the Sites; or
m. hold Buildium responsible for your use of the Sites.
Please let us know about any inappropriate behavior that you become aware of within the Sites. If you find something that violates this Agreement, let us know by sending an e-mail to [email protected]. Buildium reserves the right, in our sole discretion, to deny you or anyone access to the Sites without notice.
4. USAGE; CONTENT; REFUSAL OR SUSPENSION OF SERVICE. BUILDIUM RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO ACTIVELY MONITOR YOUR USE OF THE SITES. ACCORDINGLY, BUILDIUM ALSO RESERVES THE RIGHT TO DISABLE YOUR USE OF OR ACCESS TO THE SITES. You are solely responsible for your interactions with any other users of the Sites. You agree that Buildium is not responsible for any loss or damage incurred as the result of any such interactions.
Buildium has no responsibility or duty to review, approve or pre-screen any content posted on the Sites by any third party (including property managers and owners and other Providers), and Buildium is not responsible for such content. You understand that all property listings, lease agreements, rental terms, postings, messages, text, voice commands, images, photos, files, video, and other information, materials or documents posted on the Sites or transmitted through or in connection with the Provider Services, users, advertisers or others (the “Non-Buildium Content”) are the sole responsibility of the applicable third party from whom such Non-Buildium Content originated. BUILDIUM DISCLAIMS ANY AND ALL LIABILITY RELATING TO THE NON-BUILDIUM CONTENT. BUILDIUM DOES NOT GUARANTEE, AND YOU MAY NOT HOLD BUILDIUM RESPONSIBLE FOR, THE NON-BUILDIUM CONTENT (INCLUDING THE ACCURACY OR TRUTH OF SUCH NON-BUILDIUM CONTENT), OR THE NATURE, SAFETY, QUALITY, CONDITION, MANAGEMENT OF ANY RENTAL UNITS OR PROPERTIES ON THE SITES OR THE COMPLIANCE WITH ANY LAWS, REGULATIONS OR RULES THAT MAY BE APPLICABLE TO SUCH PROPERTIES. YOU AGREE THAT YOU BEAR SOLE RESPONSIBILITY FOR EVALUATING, AND ARE SOLELY RESPONSIBLE FOR ALL RISKS ASSOCIATED WITH, THE USE OF ANY NON-BUILDIUM CONTENT, AND THAT UNDER NO CIRCUMSTANCES WILL BUILDIUM BE LIABLE FOR ANY NON-BUILDIUM CONTENT OR FOR ANY DAMAGE OR LOSS OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY NON-BUILDIUM CONTENT.
Buildium reserves the right, but has no obligation, to delete or refuse to post any Non-Buildium Content for any reason.
You acknowledge and agree that Buildium provides only those Buildium Services as described in these Buildium Terms or as otherwise expressly provided on the Sites by Buildium. Buildium does not provide, and has no responsibility or liability for, any other content or Provider Services, including but not limited to the following:
a. Any services provided by any Provider or otherwise not expressly provided by Buildium;
b. Electronic payment services, renters insurance, call center functionality and other functionality or offerings provided by Providers;
c. Lease transactions, including without limitation, negotiations, offers, agreements, establishing rents or fees, or any related communications (although the Buildium Services may facilitate these transactions between property managers and renters);
d. Legal, brokerage or other related professional services or advice;
e. Inspection, screening or pre-approval of rental properties;
f. Verification, screening or pre-approval of property listings; or
g. Evaluation, screening or pre-approval of property managers or other advertisers who post listings or other content on the Sites. In the event that you desire, require, or need assistance with any such services or any other services not provided through the Sites, you are solely responsible for obtaining such services from a qualified third party.
5. ADDITIONAL REQUIREMENTS. Certain aspects of the Buildium Services may be subject to additional requirements, guidelines, other technical and non-technical specifications, or other rules or policies or additional terms of use or service established by Buildium in addition to those set forth in these Buildium Terms (the “Buildium Requirements”). Any such Buildium Requirements will be posted in appropriate locations on the Sites and by this reference are incorporated into this Agreement. In the event of a conflict between the Buildium Requirements and these Terms, the Buildium Requirements shall take precedence.
In some cases, Providers may impose their own additional requirements in connection with Provider Services facilitated through the Site, including those which are rent-related. Any such requirements are imposed solely by the Providers; are the sole and exclusive responsibility of the Providers imposing them; are wholly unrelated to any Buildium Requirements; and Buildium has no responsibility or liability of any kind for such requirements imposed by Providers.
6. ACCOUNT REGISTRATION AND USE. In the event you agree to terms with the acceptance of an invitation by the owner or property manager of your building, or their agents, (the “Property Manager”) and/or register to create a password-protected account, self-register, or submit information as part of the rental application (“Your Account”), you may have access to use certain features of the Site or the Buildium or Provider Services including any ability to, lease agreements, rental terms, postings, messages, text, voice commands, images, photos, files, video, and other information, materials or documents, if any (collectively, “Information and Material”).
Under certain limited circumstances, your Property Manager and their agents (who are authorized by Buildium to have access to the Provider Services) may access your Account (solely with your permission), to assist you with certain Account activities at your direction. Such activities may include populating Account information, and setting up payment functionality within your Account. If you have any questions about such access, or observe any unauthorized Account changes or activity, please contact Buildium as soon as possible.
7. YOUR ACCOUNT. You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form and other methods in which you provide information; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. Buildium reserves the right to delete your Account and refuse any and all current or future use of the Sites (or any portion thereof), without notice, if Buildium becomes aware of any discrepancies relating to information submitted in connection with your Account. You are responsible for maintaining the confidentiality of your password and for any activities performed through your Account. You agree to: (i) immediately notify Buildium of any unauthorized use or breach of security relating to your Account or password, (ii) immediately change your password if you become aware that your Account has been compromised, (iii) ensure that you fully exit (i.e., log out) from your Account at the end of each session. You will only allow your Property Manager to access the Provider Services portion of your Account made available by Buildium and will not disclose your password to anyone. You further agree not to use any other user’s password on the Site or attempt to gain access to the account of any other user, unless legally authorized to do so by Buildium or such user. BUILDIUM IS NOT LIABLE FOR ANY LOSSES OR DAMAGES ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION.
8. PRIVACY POLICY. Buildium has adopted a Privacy Policy that you should refer to in order to fully understand how we use and collect information. You consent to the collection, use, sharing and transfer of your personally identifiable information as outlined at https://www.buildium.com/privacy-policy/.
9. THIRD-PARTY COMMUNICATIONS. Although Buildium provides a platform that allows access to certain Provider Services through which users may communicate with various other Providers, advertisers, or other persons or entities (collectively, “Third-Party Communications”), Buildium is not involved in such Third-Party Communications and is not responsible or liable under any circumstances for the content of any Third-Party Communications. The content of such Third-Party Communications are determined solely by the applicable third parties. Buildium is solely responsible for its own communications, independent of any third parties. You acknowledge and agree that you will address any issues or concerns about Third-Party Communications with the responsible third party.
10. RENTER SCREENING. As part of the Buildium Services, Users may be permitted to submit information through the Sites for the purpose of conducting a background check or screening on behalf of a Property Manager or owner (a “Screening”). Information that you submit through the Sites for the purpose of such Screening shall be treated in accordance with the Privacy Policy. Your submission of the information requested for a Screening shall constitute your consent to the Screening process. Screenings also may be governed by other Buildium Requirements as may be disclosed to you in connection with the Screening. You acknowledge that you will address any issues or concerns with any Screenings, including the results of any Screenings, by contacting the appropriate Property Manager or owner, or as otherwise permitted under the Buildium Requirements applicable to the Screening or as otherwise required by law. Buildium shall not become involved in Screening-related issues except where the issue is solely attributable to a malfunction or error occurring on the Sites or in connection with the Buildium Services, or as otherwise specified in the Buildium Requirements applicable to the Screening, or as otherwise required by law.
11. PAYMENTS. Except as expressly provided below, any payments you submit through the Sites, including rental deposits, rental payments, application fee, or any other services or transactions, are for third-party services and not for Buildium Services. The total payment amounts required for those transactions are determined solely by you and the applicable third party, and not by Buildium. You acknowledge that you will address any discrepancies, issues or concerns with such payments by contacting such third party directly, and not Buildium. Buildium is not responsible for any such issues except to the extent solely attributable to a malfunction or error occurring on the Sites or in connection with the Buildium Services. Notwithstanding the foregoing, you may use certain Buildium Services or Provider Services that require payment of a fee (e.g., screening services or lease execution fees) charged by Buildium or a third party. In such circumstances, Buildium or the applicable third party may collect these fees directly from you as provided on the Sites. You acknowledge these fees are subject to change and that the Buildium Services or Provider Services may require your consent to additional terms relating to such payments (e.g., relating to refunds (if any), billing arrangements and any consequences of failing to make timely payments). Application fees are non-refundable, even if an application is denied, except to the extent otherwise required by applicable law. You must comply with all such terms in relation to such payments by you.
12. PAYMENTS-RELATED COMMUNICATIONS. Buildium may provide you with certain payments-related communications, including, without limitation, billing notices such as e-billing statements, account notifications, and reminders in advance of certain payment due dates known to Buildium (e.g., a rent payment). By creating an Account and/or otherwise accessing the Sites or Buildium Services, you expressly acknowledge and agree that Buildium may send such communications to you via your designated communication mechanism (including, without limitation, via email) at any time, and you consent to such process. Accordingly, you agree that Buildium may send any such communications to you between the hours of 9:00 p.m. and 8:00 a.m., or at any other time during the day.
13. RENTAL AGREEMENTS OR APPLICATIONS. Any rental agreements, including applications, that you enter into through the Sites (including but not limited to those agreements for which you electronically sign a lease or rental agreement) are for services provided by a Provider or other third party, and not Buildium. Although Buildium provides the Sites as a platform for Provider Services through which users may execute rental agreements and enter into binding contracts with third parties, Buildium is not involved in, is not liable for, and is not a party to any such transactions. The terms of such transactions are determined solely by you and the applicable third party with whom you are entering into said transaction, and not by Buildium. You will address any issues or concerns with such agreements exclusively with the applicable third party. Buildium shall not be involved in any issues relating to such agreements except where the issue is solely attributable to a malfunction or error occurring on the Sites or in connection with the Buildium Services. If you use the electronic signature functionality made available through the Sites, you acknowledge and agree that you have carefully reviewed any corresponding disclosures relating to such use and will not electronically execute any such documents with the required consent. You will rely on your own legal counsel to determine the sufficiency and enforceability of your electronic signature, and that Buildium makes no warranty or other representation with respect to the sufficiency of your electronic signature under any applicable laws or regulations.
14. RENTERS’ INSURANCE OR OTHER OFFERINGS. Buildium may change the Buildium Services that it offers through the Sites at any time, or the Provider Services that are made accessible through the Sites. Such changes may include adding additional offerings, including additional functionality, or reducing the same. For example, Renters’ insurance may be offered, as either a Buildium Service or a Provider Service, as further denoted on the Sites.
15. INTERACTIVE AREAS. Buildium may provide areas of the Sites that allow for User interaction, including bulletin boards, chat areas, forums, blogs, instant messaging, frequently asked questions, or other message and communications features (the “Interactive Areas”) for posting user feedback, comments, messages or other input (“Comments”). You acknowledge that all Interactive Areas are public, and not private, and that any Comments you post to an Interactive Area may be read by others. Buildium has no obligation to monitor or protect such Comments. Buildium recommends that you do not post or otherwise disseminate any confidential, sensitive or personally identifiable information in the Interactive Areas. Additionally, you agree to post only Comments that are proper, lawful, and related to the particular discussion or the Interactive Area itself. Without limitation, you may not post Comments or engage in any other activity on the Site that:
a. defames, threatens, abuses or otherwise violates the legal rights of others;
b. is harmful to children, profane, obscene, indecent or racially or ethnically offensive;
c. infringes other’s rights to intellectual property, publicity, or privacy;
d. collects or stores personal information about other Site users;
e. contains advertisements, promotions, commercial solicitations, contests or surveys (unless you have our written consent to do so);
f. contains, transmits or disseminates spam, chain letters, or information intended to assist in the placement of a bet or wager;
g. contains, transmits or disseminates viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another’s computer, the Sites, or any software, hardware or other related equipment;
h. disrupts or otherwise interferes with the Sites or the networks or servers used by Buildium;
i. impersonates any person or entity or misrepresent your connection or affiliation with a person or entity;
or
j. constitutes illegal activity.
You understand and acknowledge that, subject and pursuant to the licenses set forth hereunder, Buildium may display your Comments on the Sites and use them for other marketing and business activities. In addition, Buildium reserves the right (but not the obligation) in its sole discretion to reject use of Comments, delete Comments from the Sites for any reason, and edit Comments for both content and format. Buildium further reserves the right to terminate your access to the Sites or to any Interactive Area at any time without notice for any reason whatsoever. Buildium does not endorse or control the Comments or information found in any Interactive Area and, therefore, Buildium specifically disclaims any liability with regard to the Interactive Areas and any actions resulting from your participation in them.
16. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS. The Sites may include links to third-party websites or services (“Third-Party Services”) solely as a convenience to users. Buildium does not endorse, and expressly disclaims any representations or warranties relating to, any such Third-Party Services or the information, material, products or services accessible through the Third-Party Services. You access and use Third-Party Services (including, without limitation, any information, material, products and services available through such Third-Party Services) solely at your own risk. Further, you agree to comply with the governing terms applicable to such Third-Party Services.
17. USER RESTRICTIONS. You may not: (i) modify, disassemble, decompile or reverse engineer the Sites; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Sites to any third party or use the Sites to provide time sharing or similar services for any third party; (iii) make any copies of the Sites; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Sites, features that prevent or restrict use or copying of any content accessible through the Sites, or features that enforce limitations on use of the Sites; or (v) delete the copyright and other proprietary rights notices on the Sites.
18. VIOLATIONS; TERMINATION. You agree that Buildium may terminate your use of the Sites or any portion thereof at any time without notice, including if you violate the terms of this Agreement. You agree that Buildium will not be liable to you or any third-party for any such termination. Buildium does not permit copyright infringing activities on the Sites, and reserves the right to terminate access to the Sites, and remove all content submitted by any persons who are found to be infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Sites and may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Buildium may have at law or in equity.
19. DISCLAIMERS; NO WARRANTIES. THE SITES ARE MADE AVAILABLE “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. BUILDIUM, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. BUILDIUM AND ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES OR THE SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
20. INDEMNIFICATION; HOLD HARMLESS. You agree to indemnify, defend, and hold Buildium (and its affiliated companies, contractors, employees, director, officers, agents, suppliers, licensors and partners) harmless from and against any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, brought by a third party arising out of or related to (i) your use or misuse of the Sites; (ii) any violation of the rights of any other person or entity by you; or (iii) any breach or violation by you of this Agreement. Buildium reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
21. LIMITATION OF LIABILITY AND DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL BUILDIUM (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS OR SUPPLIERS) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF BUILDIUM OR A BUILDIUM AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BUILDIUM (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, SUPPLIERS, THIRD-PARTY PARTNERS, LICENSORS OR SUPPLIERS) BE LIABLE TO YOU IN THE AGGREGATE FOR ANY DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY OR OTHERWISE) IN EXCESS OF FIFTY U.S. DOLLARS ($50).
YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 21 WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. APPLICABLE LAW IN YOUR STATE MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BUILDIUM’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.
22. BENEFIT OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT BUILDIUM HAS MADE AVAILABLE THE SITES AND BUILDIUM SERVICES IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH ABOVE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND BUILDIUM, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND BUILDIUM. BUILDIUM WOULD NOT BE ABLE TO PROVIDE THE SITES OR BUILDIUM SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
23. MISCELLANEOUS.
a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Texas, without giving effect to any principles of conflicts of law.
b. Jurisdiction. Except as set forth in Schedule A below, you agree that any action at law or in equity arising out of or relating to this Agreement or the Site shall be filed only in the state or federal courts in and for Dallas County, Texas and you hereby consent and submit exclusively to the personal jurisdiction of such courts for the purposes of litigating any such action. Nothing in this Agreement shall prevent Buildium from seeking injunctive relief in a court of competent jurisdiction.
c. Severability, Waiver. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
d. Notices. Buildium may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings on the Site.
e. Assignment. This Agreement (including the Guidelines), and any rights and licenses granted hereunder, may not be transferred or assigned by you. Buildium may at any time, for any reason and without restriction, transfer or assign this Agreement and the obligations contained in this Agreement to a third party. You hereby acknowledge and agree that if another company acquires Buildium or substantially all of our assets (by sale, merger, or otherwise), that transaction may include a sale or transfer of your Personal Information as defined by our Privacy Policy and you agree to such transfer without further action or confirmation.
f. Survival. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification, as well as any other provisions which by their nature are intended to survive expiration or termination of this Agreement, do and hereby survive any expiration or termination of this Agreement or any termination of your use of access to the Sites.
g. Headings; Entire Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof. The word “including” means “including without limitation.” This Agreement is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both you and Buildium, or by a change to this Agreement or the Guidelines.
h. Claims. YOU AND BUILDIUM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
24. NOTICE. Unless otherwise specified herein, any notice sent by you to Buildium under this Agreement must be sent to the following: Buildium, LLC, 2201 Lakeside Blvd., Richardson, TX 75082, Attn: Legal. If sent by email, it must be sent to: [email protected].
SCHEDULE A
DISPUTE RESOLUTION TERMS
(ARBITRATION AGREEMENT; CLASS AND COLLECTIVE ACTION WAIVER; AND JURY TRIAL WAIVER)
PLEASE READ THESE TERMS CAREFULLY, THEY AFFECT YOUR LEGAL RIGHTS. These Terms provide for resolution of most disputes and claims through individual arbitration (or group arbitration of “Common Issues” in “Mass Claims,” as these terms are defined below). Clicking “I accept” or accessing or using the online applications/leasing system/network/services provided by RealPage (as defined below) constitutes acceptance of these Dispute Resolution Terms (“Terms”) and is a binding agreement between the user (“User” or “You”) and RealPage.
THESE TERMS CONSTITUTE AN ARBITRATION AGREEMENT, CLASS AND COLLECTIVE ACTION WAIVER, AND JURY TRIAL WAIVER. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT. YOU HAVE AN OPPORTUNITY TO OPT OUT OF THESE TERMS AS SET FORTH BELOW.
In the event there is any conflict or inconsistency between these Terms and any other terms of use that appear on any other RealPage affiliated website, these Terms will govern as between You and RealPage relating to the subject matter of these Terms.
1. RealPage defined: “RealPage” refers to RealPage, Inc., RP On-Site LLC, Buildium, LLC, Stratis IoT, Inc., RealPage Payments Services LLC, DepositIQ and RentersIQ Insurance Agency, LLC, NovelPay, LLC, Modern Message Inc., Chirp Systems, Inc., RealPage Utility Management Inc., RealPage Payment Processing Services, Inc., Knock, Inc., ActiveBuilding, LLC or Propertyware LLC, as applicable, and each of their respective past, present, and future parents, subsidiaries, affiliate corporations or other business entities, members, officers, directors, stockholders, employees, agents, servants, representatives, contractors, insurers, vendors, suppliers, attorneys, and assigns, whether named herein or not.
2. Claims covered by these Terms: At either party’s election, any disputes, claims, controversies, or disagreements, whether based on past, present, or future events, between You and RealPage relating to, arising out of, or pertaining in any way to Your relationship with RealPage or to RealPage’s property owner, operator or manager customers (“Claims”) will be resolved through binding arbitration in accordance with these Terms. “Claims” should be interpreted broadly and include, but are not limited to, issues involving: lease applications, verification services, and/or tenant screening reports prepared, reviewed, or used in connection with Your rental housing or application(s) for housing; property management software, products, or services RealPage provides directly to You or to any properties that have a relationship with You; and any other services RealPage provides directly to You or to any properties that have a relationship with You. “Claims” include, but are not limited to:
• Those that, in the absence of these Terms, would have been heard in a court of competent jurisdiction under applicable state or federal law;
• Claims under any legal or equitable theory of liability, including claims for breach of any contract or covenant, whether express or implied, common law claims, tort claims, statutory claims, fraud/misrepresentation claims, data usage and privacy claims, information security claims, defamation claims, Fair Credit Reporting Act claims, Fair Housing Act claims, debt collection or licensing claims, and state and federal statutory claims under any provision of law regulating property management software, background checks, credit checks, consumer reports, investigative consumer reports, identify/income verifications, or analogous reports or checks; and
• Disputes relating to the formation, interpretation, applicability, validity, scope or enforceability of these Terms, including issues that relate to the arbitrability of any Claims.
3. Mandatory Pre-Dispute Resolution Process. You and RealPage agree to work together in an effort to informally resolve any Claims between us. The party initiating or raising the Claim (the “Claimant”) must send the other party (the “Responder”) a written notice of the Claims (a “Claim Notice”) that includes all of the following information: (1) information sufficient to identify any transaction and account at issue; (2) contact information of the Claimant (including name, address, telephone number, and email address); and (3) a detailed description of the nature and basis of the Claims and the relief sought, including a calculation for the relief sought. The Claim Notice must be personally signed by the Claimant and Claimant’s counsel, if represented (“Claimant Counsel”). If You are the Claimant, You must send the Claim Notice by email to [email protected] or by mail or hand delivery to RealPage, Inc., 2201 Lakeside Boulevard, Richardson, Texas 75082, Attention: Chief Legal Officer. If RealPage is the Claimant, RealPage must send the Claim Notice to the most recent contact information it has for You. For a period of 60 days after receipt of a completed Claim Notice (which can be extended by agreement of the parties) (the “Informal Resolution Period”), You and RealPage agree to negotiate in good faith in an effort to informally resolve the Claims on an individual basis. The Responder may request an online or telephone settlement conference to aid in the resolution of the Claims. If such a conference is requested, You and a RealPage representative will personally attend (with counsel, if represented). The conference will be scheduled for a mutually convenient time, which may be outside of the Informal Resolution Period. Completion of this Mandatory Pre-Dispute Resolution Process (“Process”) is a condition precedent to initiating a Claim in arbitration (or any other forum, if wrongly filed outside of arbitration). If the sufficiency of a notice or compliance with this Process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party’s election, and no arbitration shall be initiated or pursued, and no arbitration fee shall be due, until the court rules and all available appeals are resolved. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with this Process in arbitration. All applicable limitations periods (including statutes of limitations) will be tolled from the date of receipt of a completed Claim Notice through the conclusion of the Process and until the Claimant is permitted to initiate and pursue an arbitration. You or RealPage may commence arbitration only if the Claims are not resolved through the Process.
By signing the Claim Notice, You or RealPage certify that any facts set forth in the Claim Notice are true and not misleading. By signing a Claim Notice, Claimant Counsel certifies that Claimant Counsel has made a reasonable review of the facts set forth in the Claim Notice and believes them to be true and not misleading. In addition, Claimant Counsel must certify whether or not Claimant Counsel knows or has good reason to believe that your Claims will be “Mass Claims” (as defined below). If so, or if it is later determined that the Claims are Mass Claims, the Mass Claims will be subject to the further pre-filing requirements applicable to Mass Claims set forth in Section 11.
4. AGREEMENT TO ARBITRATE CLAIMS: YOU AND REALPAGE AGREE THAT, AT THE OPTION OF EITHER PARTY, ANY AND ALL CLAIMS SHALL BE RESOLVED EXCLUSIVELY IN BINDING ARBITRATION RATHER THAN LITIGATION IN COURT. YOU AND REALPAGE FURTHER AGREE THAT ANY SUCH CLAIMS RELATING TO THE FORMATION, INTERPRETATION, APPLICABILITY, SCOPE, OR ENFORCEABILITY OF THESE TERMS SHALL BE DECIDED BY THE ARBITRATOR, NOT A COURT. THE ARBITRATOR, AND NOT ANY FEDERAL, STATE OR LOCAL COURT OR AGENCY, SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY CLAIM RELATING TO THE FORMATION, INTERPRETATION, APPLICABILITY, SCOPE, OR ENFORCEABILITY OF THESE TERMS, INCLUDING CLAIMS THAT THESE TERMS ARE VOID OR VOIDABLE.
5. CLASS/COLLECTIVE ACTION WAIVER: EXCEPT AS EXPRESSLY PROVIDED OTHERWISE BELOW REGARDING “MASS CLAIMS,” TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, YOU AND REALPAGE EXPRESSLY AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. THIS INCLUDES ANY RIGHT OR ABILITY TO BRING, TO PARTICIPATE IN, OR TO SEEK RELIEF THROUGH ANY CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. You and RealPage acknowledge that this class action waiver is integral to these Terms. If a court or arbitrator determines that this class action waiver is invalid or unenforceable as to Claims asserted on a class basis, You and RealPage agree that these Terms will not apply, and any such Claims shall be resolved in court. That is, despite any language in these Terms to the contrary, You and RealPage agree that this class action waiver cannot be severed from these Terms. Both parties’ express intention is not to proceed with any Claims by way of class arbitration. Notwithstanding the foregoing, You and RealPage retain the right to participate in a class-wide settlement.
6. JURY AND COURT WAIVER: TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, YOU AND REALPAGE ARE WAIVING THE RIGHT TO HAVE A JURY TRIAL FOR ANY AND ALL CLAIMS.
7. Applicable Law: You and RealPage agree that, notwithstanding any other choice of law provision, these Terms evidence a transaction in interstate commerce and that these Terms will be interpreted, governed, and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), and federal arbitration law, and not state arbitration law.
8. OPT-OUT RIGHT: IF YOU DO NOT WANT TO BE BOUND BY THE AGREEMENT TO ARBITRATE CLAIMS CONTAINED IN THESE TERMS, YOU MAY OPT-OUT OF IT BY SENDING TO REALPAGE, ATTN: CHIEF LEGAL OFFICER, AN OPT-OUT NOTICE E-MAIL TO [email protected] WITHIN THIRTY (30) DAYS AFTER THE DATE YOU ARE PRESENTED WITH THESE TERMS FOR THE FIRST TIME. TO BE EFFECTIVE, YOUR OPT-OUT NOTICE MUST INCLUDE: (A) YOUR NAME AND ADDRESS; (B) THE NAME OF THE PROPERTY THAT PRESENTED YOU WITH THESE TERMS, IF APPLICABLE; (C) THE DATE YOU APPLIED FOR HOUSING WITH THE PROPERTY, IF APPLICABLE; (D) THE NAME OF THE REALPAGE PRODUCT OR SERVICE THAT YOU USED, IF APPLICABLE; AND (E) A CLEAR STATEMENT THAT YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE CONTAINED IN THESE TERMS. IF YOU OPT OUT OF THE AGREEMENT TO ARBITRATE, ALL OTHER PARTS OF THESE TERMS WILL CONTINUE TO APPLY TO YOU.
9. Arbitration Procedures. Any arbitration under these Terms shall be administered by National Arbitration and Mediation (“NAM”) and heard by a single, neutral arbitrator. Except as modified by these Terms, NAM shall administer the arbitration in accordance with its rules applicable to the nature of the Claims, including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable (“NAM Rules”). The NAM Rules and fee information are available at www.namadr.com. If NAM is unable or unwilling to administer the arbitration consistent with these Terms, the parties shall agree on an alternative arbitration provider or arbitrator that will do so. If the parties cannot agree, they shall petition a court of competent jurisdiction to appoint an alternate administrator or arbitrator that will do so. A Claimant seeking to initiate arbitration must provide the Responder with the demand for arbitration as specified in the NAM Rules and these Terms. You may obtain a form to initiate arbitration at www.namadr.com or by contacting NAM. If You are initiating arbitration, You shall serve the demand on RealPage by email to [email protected] or by certified mail or hand delivery to RealPage, Inc., 2201 Lakeside Boulevard, Richardson, Texas 75082, Attention: Chief Legal Officer. If RealPage is initiating arbitration, RealPage shall serve the arbitration demand at the email address or mailing address RealPage has on file for You. An arbitration demand must be accompanied by a certification of compliance with the Process and be personally signed by the party initiating arbitration (and counsel, if represented). By submitting an arbitration demand, the initiating party and counsel represent that, as in court, they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including that the claims and relief sought are neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented parties and their counsel. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claim. The arbitrator must apply substantive law and comply with the FAA. The arbitrator must honor statutes of limitation and privilege rights. As to punitive damages, the arbitrator must honor constitutional standards that apply in court. To the fullest extent permitted by applicable law, You and RealPage agree that each may bring Claims against the other only in Your or RealPage’s individual capacity and not as a plaintiff or class member in any purported class, collective, consolidated, private attorney general, or representative proceeding. Further, unless both You and RealPage agree otherwise and except as expressly provided below regarding Mass Claims, an arbitrator may not consolidate more than one person’s Claims and may not otherwise preside over any form of class, collective, consolidated, private attorney general, or representative proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized injunctive or declaratory relief and class, collective, consolidated, private attorney general, or representative proceedings are finally found to be unenforceable with respect to a particular Claim for public injunctive relief, then such Claim will be decided by a court of competent jurisdiction, after all other Claims and requests for relief are arbitrated. The arbitrator shall issue a reasoned written decision sufficient to explain essential findings and conclusions. Judgment on any arbitration award may be entered in any court of competent jurisdiction, except an award that has been satisfied may not be entered. An award shall have no preclusive or precedential effect in any other arbitration or proceeding in which You are not a named party.
Except where the arbitrator determines that the circumstances require otherwise, the arbitrator must: (a) conduct document-only arbitrations, without oral argument or an in-person hearing; (b) allow the parties to introduce any needed testimony through excerpts from recorded depositions of party witnesses or declarations; (c) for Mass Claims, allow each side to introduce prior recorded live testimony from other arbitrations involving the Claimants in such Mass Claims (the “Mass Claimants”); (d) limit Mass Claimants from obtaining new and duplicative discovery from RealPage by, among other things, allowing discovery obtained from RealPage in any arbitration of a Mass Claim to be used by all of the Mass Claimants in any other arbitration or lawsuit between a Mass Claimant and RealPage; (e) conduct any necessary hearing virtually or by conference call; (f) hold any in-person hearing at a place reasonably convenient to You and RealPage; (g) follow expedited procedures; and (h) honor the Mass Claim provisions of these Terms, as set forth in Section 11 below. Where possible, an arbitrator appointed by NAM or a court (a “Process Arbitrator”) shall decide procedural issues relevant to Mass Claims.
Notwithstanding any language in these Terms to the contrary, at any time after the Claimant gives a Claim Notice (including before any arbitration begins) or serves an arbitration demand, either party may make a written offer to settle the Claim. If the settlement offer is rejected, but the arbitrator’s award is no better to the rejecting party, then that party must bear its own post-offer legal and arbitration fees and costs. Also, the rejecting party must pay the other party all reasonable arbitration fees and costs that the other party incurs after the settlement offer. But, You will not be liable for any of RealPage’s arbitration fees and costs that exceed the amount You would otherwise receive in the arbitration.
10. Arbitration Costs. Payment of arbitration fees will be governed by the NAM Rules and fee schedule. You and RealPage agree that the parties have a shared interest in reducing the costs and increasing the efficiency associated with arbitration. Therefore, You and RealPage agree that the parties (and counsel, if represented) will work together in good faith to ensure that arbitration remains economical and cost-effective for both You and RealPage.
11. Special Provisions for Mass Claims. “Mass Claims” are Claims where the Mass Claimants are represented by the same counsel and/or counsel working together (“Mass Claims Counsel”); and the Mass Claimants or Mass Claims Counsel give Claim Notices for at least 25 Mass Claimants within 180 days of the first such Claim Notice. A Claimant who hires Mass Claims Counsel and gives a Claim Notice after this 180-day period is still a “Mass Claimant” asserting “Mass Claims.” Such Mass Claimant is subject to this Section 11 to the same extent as Mass Claimants who give their Claim Notices within the initial 180-day period. Disputes over whether Claims Notices trigger this Section 11 will be decided by NAM, a Process Arbitrator or a court—not by individual arbitrators in separate arbitrations.
In some cases, Mass Claims may make individual arbitrations impractical or too costly. Section 11 addresses this problem. It seeks to resolve Mass Claims as fairly and quickly as possible, at low cost. Section 11 applies to all Mass Claims despite any language in these Terms to the contrary.
a. If You or Claimant Counsel know or have good reason to believe that there are or will be Mass Claims, You may not file any Mass Claim in a lawsuit or arbitration except per this Section 11. If you do, you will be liable for the administrator’s filing fees, RealPage’s costs of enforcing this Section 11, and other damages caused by your breach.
b. At any time, either RealPage or the Mass Claimants (the two “Sides”) may require that the administrator appoint a Process Arbitrator to decide any scheduling, discovery or other process issues the two Sides cannot resolve through discussion. Decisions of the Process Arbitrator are not subject to appeal.
c. You may not file any Mass Claim in court or an arbitration until 240 days after the first delivery of a Claim Notice by a Mass Claimant or, if earlier, until Mass Claims Counsel certifies in writing that the Informal Resolution Period has ended for all or substantially all the Mass Claims.
d. Once this no-filing period ends, each Side will select up to 10 Mass Claims for individual arbitrations under these Terms (“Initial Arbitrations”). This will help the two Sides test the strength of the Mass Claims.
e. Soon after all Initial Arbitrations have ended (or sooner if both Sides agree), both Sides will engage in a single mediation of all remaining Mass Claims. For any mediation, RealPage will pay the mediator fees, provided RealPage agrees that the projected fees are reasonable. If the two Sides cannot agree on a mediator within 30 days, the administrator, a Process Arbitrator or a court will appoint the mediator. Both Sides must cooperate to schedule a mediation soon after the mediator is appointed.
f. If the two Sides do not settle all Mass Claims within 30 days after the end of the mediation, either Side (the “Elector”) may give a written notice to the other Side (the “Receiver”) within 60 days after the end of the mediation (a “Group Election”). The Group Election must state that, in the Elector’s view, the Claims of the remaining Mass Claimants (the “Remaining Claimants”) include common issues of law or fact (“Common Issues”) best resolved through arbitrations between groups of Mass Claimants (“Qualifying Groups”) and RealPage (“Group Arbitrations”).
i If either Side makes a Group Election, the Elector and Receiver must try in good faith to agree: (A) whether Group Arbitrations are warranted; (B) if so, how many Remaining Claimants, not more than 25, should be in each Qualifying Group; and (C) how Mass Claimants should be assigned to Qualifying Groups. If the two Sides cannot agree on the above matters in this Section 11f.i within 30 days, a Process Arbitrator will decide.
ii Before the Remaining Claimants start a Group Arbitration, the two Sides will ask NAM how much it will charge for Group Arbitrations. Neither Side shall start a Group Arbitration before 30 days have run from NAM giving final price data for Group Arbitrations. During this period, either Side may give written notice to the other Side (a “NAM Rejection Notice”) that it elects for arbitrators to conduct all Group Arbitrations without help from NAM. In such event, the two Sides will try to agree on arbitrators to conduct such Group Arbitrations. If they cannot agree, arbitrators will be selected and appointed by the American Arbitration Association (“AAA”) pursuant to its List and Appointment process. AAA fees will be borne by the two Sides 50/50 unless AAA determines that fairness considerations mandate that RealPage bear a higher percentage of such fees. Once an arbitrator has been selected and retained for a Group Arbitration, such arbitrator will start and conduct such Group Arbitration per this Clause and such further procedures as such arbitrator shall adopt, with the presumption in favor of applying procedures based on the NAM Rules, even though NAM will not be managing the Group Arbitration.
iii No arbitrator in a Group Arbitration may decide any class Claim or any Claim for a public injunction.
iv The arbitrator in each Group Arbitration will decide who will bear the arbitrator’s fees and charges, without regard to NAM rules that would otherwise apply. But, except where the Terms expressly provide to the contrary, RealPage will bear at least 50% of such fees and charges.
v If neither Side makes a timely Group Election, or if any of Your Claims cannot be resolved in a Group Arbitration for some other reason, each Side will be deemed to have certified and agreed that individual issues predominate over Common Issues of the Mass Claimants for all Your unresolved Claims and that Your unresolved Claims are best resolved through individual (not class action) lawsuits. In such event, You may bring an individual lawsuit against RealPage to resolve any unresolved Claims, but You may not bring an arbitration against RealPage. RealPage may still elect to require an individual arbitration of any Claims if You try to assert in court any Claims on a class or representative basis in contravention of the class action waiver.
g. Absent Your and RealPage’s written consent, no person may serve as arbitrator for more than one Initial Arbitration, Group Arbitration and/or Further Arbitration involving the Mass Claimants.
h. You agree that Mass Claims Counsel will act for You and all Mass Claimants.
i. You may not file any lawsuit or arbitration, other than an Initial Arbitration or Group Arbitration, until at least 90 days have run after the end of the mediation. The statute of limitations on any Claim you bring will not run from the time you file a proper Claim Notice until you are first allowed to start a lawsuit or arbitration.
While this Section 11 is designed to resolve Mass Claims fairly, quickly and efficiently, You understand that your Claim may not be selected for an Initial Arbitration or resolved in a Group Arbitration. You further understand that, in some cases, resolution of any Mass Claims you assert may be delayed by this Section 11.
12. Governing Law. Except as to the FAA referenced above, these Terms and all related matters, regardless of Your location, are solely governed by and construed under the laws of the State of Texas, without regard to conflicts of law principles.
13. Small Claims: Notwithstanding the provisions above, these Terms do not preclude You or RealPage from seeking remedies in any applicable small claims court on an individual (non-class) basis. However, if an appeal is allowed under the applicable small claims rules, You or RealPage may demand arbitration of any appeal of a small claims decision. In the event of an appeal, the parties agree the small claims judgment will be void and any proceedings in arbitration will be without regard to the decision in small claims court.
14. Severability, No Waiver, and Survival. Except as otherwise provided herein, if any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. RealPage’s failure to exercise or enforce any right or provision in these Terms or insist upon compliance with any term or condition of these Terms shall not constitute a waiver of that right or provision or any other rights or provisions included within the Terms or excuse similar subsequent failure to perform any such term or condition by You.
15. Confidentiality. You and RealPage agree to keep confidential all aspects of each arbitration under these Terms, any confidential information produced in the arbitration and any arbitration award or decision. But, either party may disclose such information to the extent needed to pursue the arbitration, to appeal or confirm any award or to get professional services. Any court filing to appeal or confirm an award must be made under seal. At either party’s request, the arbitrator shall enter an order protecting confidential information.
16. Changing Terms. You and RealPage may agree in writing to change any of these Terms at any time, before or after a dispute arises. Also, RealPage may waive any rights or amend these Terms at any time without providing written notice or obtaining your consent, solely to give you more rights and/or less duties.
