End User License Agreement for
ActiveBuilding, Community RewardsTM, Smart Building and Migo®
This End User License Agreement (this “EULA”) contains the basic terms and conditions that govern your access to and use of the following software applications and related offerings that are provided by RealPage, Inc. or one of its subsidiaries (the party providing a software application or other offering is referred to herein as “RealPage”): the ActiveBuilding Resident Portal, website and user interfaces (“ActiveBuilding”); Modern Message’s Community RewardsTM website and mobile application and the services made available therein (“Community Rewards”); the products, software, services, applications and web portals provided by Stratis IoT, Inc. d/b/a RealPage Smart Building (the “Smart Building Services”); and the websites, applications, services and related offerings from RealPage Home Sharing, Inc. d/b/a Migo® (the “Migo Platform,” and together with ActiveBuilding, Community Rewards and the Smart Building Services, collectively, the “Products”). Please read this EULA carefully before accessing, downloading or using a Product. By accessing, downloading or using a Product you expressly acknowledge and agree to the following terms and conditions.
Please be advised that this EULA contains provisions, including a Dispute Resolution Agreement (see section below, titled “Dispute Resolution Agreement—Arbitration and Class Action Waiver”), that govern how claims you and RealPage 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) only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
This EULA includes the following sections:
GENERAL TERMS AND CONDITIONS – These terms apply to your access to and use of all Products.
PRODUCT‐SPECIFIC TERMS AND CONDITIONS – These terms apply to your access to and use of specific Products, as described in this section.
In the event of a conflict between the provisions of the General Terms and Conditions and a provision contained in the Product Specific Terms and Conditions governing a particular Product, the Product Specific Terms and Conditions will govern with respect to such Product.
GENERAL TERMS AND CONDITIONS
- Modification of the EULA. RealPage may modify this EULA at any time without notice to you. The date provided at the top of this page indicates the most recent update to this EULA. We recommend that you review this EULA periodically for any changes. If we materially modify this EULA, we will make reasonable efforts to notify you of the change (through a pop‐up or similar notification). Regardless of notification, your continued access to or use of a Product will constitute your acceptance of the revised legally‐binding EULA.
Restrictions. You may not (without limitation):
- Damage, disable, overburden, or impair a Product (or any server or networks connected to a Product);
- Transfer, sublicense, lease, lend, rent or otherwise distribute a Product or any features or functionality of a Product to any third party;
- Archive, copy, modify, disassemble, decompile, manipulate or reverse engineer any portion of a Product;
- Use a Product in a way that violates any law, statute, ordinance or regulation;
- Use a Product in association with any defamatory, illegal, libelous, infringing, obscene, pornographic, sexual, violent, exploitative, harassing, invasive of privacy or publicity rights, threatening, deceptive, fraudulent, indecent or otherwise objectionable materials;
- Remove or alter any trademark, logo, copyright, watermark, metadata or other proprietary notices in or on a Product;
- Represent that you own any portion of a Product;
- Introduce any viruses, trojan horses, worms, logic bombs or other material that is malicious or technologically harmful;
- Use any robot, spider or other automatic device, process or means to access a Product for any purpose, including monitoring or copying any of the material on a Product;
- Use any device, software, or routine that interferes with the proper working of a Product or otherwise attempt to interfere with the proper working of a Product;
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of a Product, a server on which a Product is stored, or any server, computer or database connected to a Product;
- Remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting a Product; or
- Make use of a Product other than as intended and expressly permitted under this EULA, or in a manner that is competitive with RealPage or its affiliates.
- Intellectual Property. Each Product (including without limitation the software, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code) was created, compiled, prepared, selected, developed and arranged by RealPage through the expenditure of substantial time, effort and resources. It is the property of RealPage, its affiliates and its and their licensors, and is protected by (as applicable) copyright, trademark, patent, trade secret, trade dress, moral rights and other intellectual property laws and treaties. You have no ownership interest (in whole or in part) in any Product and no proprietary interest or right of title is transferred to you under this EULA or by your access to or use of a Product whether by implication, estoppel, or otherwise. RealPage, our logo, and any other product or service name or slogan contained in each Product constitute trademarks of RealPage and our suppliers or licensors and may not be used without our prior written permission or the written permission of the applicable trademark owner. All other trademarks, product names and company names or logos used in conjunction with each Product are the property of their respective owners. Our reference to their products, services, processes or other information, by trade name, trademark or otherwise does not constitute or imply any endorsement, sponsorship or recommendation by us unless we specifically state otherwise.
- Open Source Software. Any open source software that accompanies a Product is provided to you under the terms of the applicable open source license agreement accompanying such open source software or in the open source licenses file accompanying the software. This EULA does not govern, and ReaPage disclaims any liability associated with, any such open source software.
- Third‐Party Materials. The Products may display, include, or make available third‐party content or provide links to third‐party websites or services, including through third‐party advertising (“Third‐Party Materials”). You acknowledge and agree that RealPage is not responsible for Third‐Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. RealPage does not assume and will not have any liability or responsibility to you or any other person or entity for any Third‐Party Materials. Third‐Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
User Content. If you upload or post any content to a Product (such as images, video, audio or text)
(collectively, “User Content”), you represent and warrant that (i) you own all right, title and interest in and
to the User Content, or possess sufficient rights to grant the licenses set forth herein; (ii) RealPage will not
need to obtain licenses or other legal permission from, or pay any royalties or other compensation to, any
third party with respect to the User Content; (iii) the User Content does not infringe any third party’s
rights, including intellectual property and privacy rights; (iv) the User Content is accurate and not
misleading; (v) the User Content does not contain material that is inappropriate, indecent, obscene,
pornographic, hateful, tortious, defamatory, slanderous or libelous; (vi) the User Content does not contain
content that is, or may be reasonably considered to be, hate speech, or promotes bigotry or racism
against any group or individual, or promotes discrimination based on race, gender, religion, nationality,
disability, sexual orientation, age or other legally protected class; (vii) the User Content complies with this
EULA and all applicable laws; (viii) you will not impersonate any person or misrepresent you identity or
affiliation with any person or organization or give the impression that the User Content comes from or is
endorsed by RealPage or any third party, if this is not the case; (ix) the User Content does not involve
commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or
advertising. RealPage reserves the right to remove (or demand that you remove) any User Content that
RealPage determines (in our sole discretion) is in violation of any of the foregoing.
By uploading or posting User Content to a Product you grant RealPage and its affiliated entities a worldwide, non‐exclusive, perpetual, irrevocable, royalty‐free right and license to use, reproduce, modify, adapt, tag, publish, translate, create derivative works from, distribute, perform and display such User Content for (i) the support, provision, operation, maintenance and enhancement of such Product and (ii) any other purposes expressly authorized by you.
Phone Settings and Uninstall Procedures. To install a Product, you may be required to change some of
your mobile device settings. By installing a Product, you consent to such changes which may include,
without limitation, the following:
- Permitting software updates to the Product when a new version is released; and
- Receiving notifications from the Product.
RealPage may from time to time in its sole discretion develop and provide Product updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that RealPage has no obligation to provide any Updates or to continue to provide or enable any features or functionality. Based on your mobile device settings, when your mobile device is connected to the internet either a Product may automatically download and install all available Updates; or you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the applicable Product or portions thereof may not properly operate should you fail to do so.
- WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS EULA, EACH PRODUCT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS “WITH ALL FAULTS” AND WITHOUT ANY PROMISES OR WARRANTIES (EXPRESS OR IMPLIED). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REALPAGE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO US), MERCHANTABILITY, ERROR‐FREE NATURE, TITLE, QUALITY, NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. REALPAGE EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION, SERVICES OR FEATURES AVAILABLE THROUGH A PRODUCT, OR THE QUALITY OR CONSISTENCY OF A PRODUCT. THIS WARRANTY DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS (OR THOSE CONTAINED IN THE PRODUCT SPECIFIC TERMS) MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL REALPAGE, ITS AFFILIATES, THE OWNER OF
THE PROPERTY WHERE YOU USE A PRODUCT, THE OWNER’S PROPERTY MANAGER, THEIR AFFILIATES, OR
ANY OF OUR OR THEIR RESPECTIVE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE
FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR
ANY LOSS OF PROFITS, REVENUES OR BUSINESS REPUTATION, WHETHER BASED IN CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER AT LAW OR IN EQUITY, ARISING OUT OF OR IN
ANY WAY CONNECTED WITH YOUR ACCESS TO OR USE OF ANY PRODUCT OR ANY RELATED PRODUCTS OR
SERVICES, EVEN IF REALPAGE IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT
WILL THE AGGREGATE LIABILITY OF REALPAGE, OUR AFFILIATES, THE OWNER OF THE PROPERTY, ITS
PROPERTY MANAGER, THEIR AFFILIATES, OR OUR OR THEIR RESPECTIVE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, AND
WHETHER AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY CONNECTED YOUR ACCESS TO OR USE
OF A PARTICULAR PRODUCT OR ANY RELATED PRODUCTS OR SERVICES, EXCEED YOUR ACTUAL,
PROVABLE DIRECT DAMAGES, CAPPED AT THE GREATER OF (A) THE AMOUNT YOU PAID TO HAVE ACCESS
TO THE APPLICABLE PRODUCT DURING THE 12 MONTHS PRECEDING THE DATE ON WHICH SUCH CLAIM
AROSE; OR (B) $1,000.
Some U.S. states and foreign countries do not permit the exclusion or limitation of implied warranties or liability for certain categories of damages. Therefore, some or all of the limitations in this EULA may not apply to you to the extent they are prohibited or superseded by such state or foreign provisions. The foregoing limitations of liability will apply even if the limited remedies herein fail of their essential purpose.
- Term and Termination. This EULA is effective with respect to a particular Product as of the earliest date that you do any of the following: create an account in connection with such Product, accept this EULA online, or access such Product. RealPage may terminate support of a Product and this EULA, or limit or terminate your access to a Product, at any time for any reason. You may terminate this EULA with respect to a particular Product by uninstalling such Product, terminating your account, and discontinuing your access to and use of the Product, as applicable.
- Indemnification. You agree to indemnify and hold harmless RealPage, our affiliates, the owner of the property, its property manager, their affiliates, and any of our or their respective directors, officers, employees, and agents from and against any and all claims and liabilities (including reasonable attorneys’ fees) that may arise from (i) your access to or use of a Product or your use of information obtained from a Product; (ii) your failure to comply with any of the terms or conditions of this EULA; or (iii) your failure to comply with local, state, federal or international laws applicable to your use of a Product. RealPage reserves the right to assume the exclusive defense and control of any such matter, and you agree to cooperate with any reasonable requests for assistance with such defense.
- Copyright Infringement. It is RealPage’s policy to respond to claims of intellectual property infringement. We will promptly investigate notices of alleged infringement and will take appropriate actions required under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA") and other applicable intellectual property laws. To notify us about any claim of copyright infringement, please click on the "DMCA Notice" link provided at the bottom of the website and follow the instructions provided at that link. If you have any issues finding or accessing that link, please email us at DMCA@realpage.com.
- Jurisdiction and Law. You agree that any claim, action, or proceeding arising under this EULA will be governed by and construed in accordance with the laws of the State of Texas applicable to contracts to be wholly performed therein. Any action based on or alleging a breach of this EULA that is not subject to Section 21 (Dispute Resolution), or for entry of any judgment relating to an arbitration award issued pursuant to Section 21 (Dispute Resolution) must be brought in a state or federal court located in Dallas County, Texas. You agree to submit to the personal jurisdiction of such courts.
- Notices. Any notice to RealPage under this EULA must be in writing and delivered in person, by nationally recognized express courier or by certified mail to: RealPage, Inc., 2201 Lakeside Blvd., Richardson, TX 75082, ATTN: Legal Department. RealPage may give notice to you by means of a general notice within a Product or to any email address of yours on record with RealPage. Such notice will be deemed given on the same day if delivered in person, or on the next business day if delivered by express courier or certified mail or 12 hours after sending (if sent by email).
- Severability. If any provision of this EULA is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of the EULA will continue in full force and effect.
- Waiver. The only way a party may waive any of its rights under this EULA is through a specific written waiver by its authorized representative. No waiver of one provision shall be interpreted as a waiver of any other provision of this EULA.
- Survival. The provisions of this EULA relating to (i) any license restrictions; (ii) warranty disclaimer, (iii) limitation of liability, (iii) indemnification, (iv) ownership of intellectual property, (v) entire agreement and (vi) any other provision which by its nature is intended to survive, will survive the termination or expiration of this EULA.
- Assignment. You may not assign or delegate to any third party any of your respective rights or obligations under this EULA.
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of God; act of war, hostility or sabotage; pandemic or epidemic; electrical, internet or telecommunications outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party.
- Third‐Party Beneficiaries. You acknowledge and agree that the owner of the property where you use a Product, and such owner’s property manager, their respective affiliates, and their licensors, directors, officers, employees and agents are intended third‐party beneficiaries of this EULA relating to any exculpatory clauses, indemnities, or limitations of liability that benefit RealPage.
- Entire Agreement. This EULA incorporates the entire understanding of the parties concerning the subject matter contained herein. No party is relying on any warranties, representations, promises or inducements not expressly stated in this EULA. Notwithstanding the foregoing, you acknowledge that third party terms and fees may apply to the use and operation of your mobile device in connection with your use of a Product, such as your carrier’s terms of service, and fees for phone service, data access, or messaging capabilities, and that you are solely responsible for complying with such terms and payment of any and all such fees.
Dispute Resolution Agreement—Arbitration and Class Action Waiver. In consideration for the mutual
promises to arbitrate Claims (defined below), for your access to and use of a Product and any services
provided by RealPage, and for other valuable consideration, you agree to the specific provisions set forth
in this section (the “Dispute Resolution Agreement”). In doing so, you acknowledge that this is a legally
binding agreement between you and RealPage, as defined below:
- As the term is used in this Dispute Resolution Agreement, “RealPage” refers to RealPage, Inc. and its parents, subsidiaries, affiliates, employees, agents, officers, directors, shareholders, predecessors, successors and assigns.
- As the term is used in this Dispute Resolution Agreement, “Claim(s)” refer to all claims and controversies,
whether based on past, present, or future events, between you and RealPage arising out of, or pertaining
in any way to a Product and related services (including, without limitation, your access to and use of such
Product and related services). The Claims include, without limitation:
- Those that, in the absence of this Dispute Resolution Agreement, 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, defamation claims, and state and federal statutory claims under any provision of law regulating the Internet and access to and use of smart device technology; and
- Disputes relating to the formation, interpretation, applicability, scope or enforceability of this EULA.
- AGREEMENT TO ARBITRATE CLAIMS: YOU AND REALPAGE AGREE THAT 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 THIS EULA 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 THIS EULA, INCLUDING CLAIMS THAT THE EULA IS VOID OR VOIDABLE.
- CLASS ACTION WAIVER: YOU AND REALPAGE EXPRESSLY AGREE THAT ALL ARBITRATIONS PURSUANT TO THIS EULA WILL BE LIMITED TO INDIVIDUAL, NOT REPRESENTATIVE CLAIMS. YOU AND REALPAGE EXPRESSLY WAIVE ANY ABILITY TO BRING A CLASS OR REPRESENTATIVE ACTION PERTAINING TO A CLAIM IN ARBITRATION OR TO SEEK RELIEF ON BEHALF OF A CLASS IN ARBITRATION. YOU AND REALPAGE ALSO EXPRESSLY WAIVE ANY RIGHT TO BRING A CLASS OR REPRESENTATIVE ACTION IN COURT OR TO PARTICIPATE OR OBTAIN BENEFITS IN A CLASS OR REPRESENTATIVE ACTION SOMEONE ELSE BRINGS IN COURT. You and RealPage acknowledge that this class action waiver is integral to this Dispute Resolution Agreement. If a court or arbitrator determines that this class action waiver is invalid or unenforceable, you and RealPage agree that the Dispute Resolution Agreement will not apply, and any Claim shall be resolved in court. That is, you and RealPage agree that this class action waiver cannot be severed from this Dispute Resolution Agreement. Both parties’ express intention is not to proceed with any Claim by way of class arbitration.
- JURY AND COURT WAIVER: BY AGREEING TO ARBITRATION, YOU AND REALPAGE ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS.
- Applicable Law: You and RealPage agree that, notwithstanding any other choice of law provision, this Dispute Resolution Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq.
- OPT‐OUT: IF YOU DO NOT WANT THIS DISPUTE RESOLUTION AGREEMENT TO APPLY, YOU MAY OPT‐OUT OF IT BY SENDING TO REALPAGE, ATTN: CHIEF LEGAL OFFICER, AN OPT‐OUT NOTICE E‐MAIL TITLED “RESIDENT APPLICATIONS – EULA – ARBITRATION OPT‐OUT” TO ARBITRATIONOPTOUT@REALPAGE.COM WITHIN FOURTEEN (14) DAYS AFTER YOUR FIRST USE OR DOWNLOAD OF A PRODUCT. THIS E‐MAIL OPT‐ OUT NOTICE MUST INCLUDE: (A) YOUR NAME AND ADDRESS; (B) THE NAME OF THE PROPERTY AT ISSUE; (C) THE DATE YOU FIRST DOWNLOADED THE APP; AND (D) A STATEMENT THAT YOU ARE OPTING OUT OF THE DISPUTE RESOLUTION AGREEMENT.
- Procedure for Initiating Arbitration: You and RealPage agree that JAMS shall conduct any arbitration initiated pursuant to this Dispute Resolution Agreement. To initiate arbitration, you may contact JAMS at 1‐800‐352‐JAMS or www.jamsadr.com. A demand for arbitration form can also be found at https://www.jamsadr.com/submit. If you file an arbitration claim against RealPage, you are responsible for paying $250 of JAMS’ fees. RealPage agrees to pay the remainder of JAMS’ fees, if any, on your behalf. Arbitration shall be held in the state where the property at issue is located.
- Small Claims: Notwithstanding the provisions above, this Dispute Resolution Agreement does not preclude you or RealPage from seeking remedies in any applicable small claims court, provided the remedies sought are within the scope of the applicable small claims court’s jurisdiction.
- Arbitration Rules: You and RealPage agree that the arbitration will be administered pursuant to the JAMS Comprehensive Arbitration Rules and Procedures, as well as the JAMS Policy on Consumer Arbitrations Pursuant to Pre‐Dispute Clauses Minimum Standards of Procedural Fairness, in effect at the time of the arbitration. The arbitrator will decide the substance of all claims in accordance with applicable law and will honor all proper claims of privilege recognized by law. The arbitrator will not have the power to award damages or relief not authorized by law.
- Notice Regarding Apple®. If you are using a Product that is a mobile application on an iOS product, you acknowledge and agree to the following with respect to such Product: This EULA is between you and RealPage only, not with Apple, and Apple is not responsible for the Product and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Product. In the event of any failure of the Product to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Product to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Product. Apple is not responsible for addressing any claims by you or any third party relating to the Product or your possession and/or use of the Product, including, but not limited to: (i) product liability claims; (ii) any claim that the Product fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that your possession and use of the Product infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Product. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If RealPage provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version shall prevail.
PRODUCT‐SPECIFIC TERMS AND CONDITIONS
- Description. ActiveBuilding includes a resident portal, website and mobile application (collectively, the “ActiveBuilding Service”) that allows residents to manage various apartment community amenities and services and access tools and applications for social engagement among the community residents.
Registration and Account Security. To register for and access the ActiveBuilding Service, you may be asked to
provide certain account registration details and personal information. You agree that all information you
You acknowledge that your account is personal to you and agree not to provide any other person with access to the ActiveBuilding Service using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to, or use of, your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. We reserve the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this EULA.
Additional Permissions and Restrictions Governing ActiveBuilding. RealPage grants you limited, conditioned
and revocable permission to access and use the ActiveBuilding Service in accordance with this EULA. Without
limiting the restrictions set forth in the General Terms and Conditions, you also agree not to use the
- To harm or attempt to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
- To send, knowingly receive, upload, download, use or re‐use any material that does not comply with the provisions of the General Terms and Conditions applicable to User Content;
- To transmit, or procure the sending of, any advertising or promotional material [without our prior written consent], including any "junk mail," "chain letter" or "spam" or any other similar solicitation;
- To impersonate or attempt to impersonate RealPage, a RealPage employee, another user, or any other person or entity (including, without limitation, by using e‐mail addresses or user names associated with any of the foregoing); or
- To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the ActiveBuilding Service, or which, as determined by us, may harm RealPage or users of the ActiveBuilding Service or expose them to liability.
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials;
- You may store files that are automatically cached by your Web browser for display enhancement purposes;
- You may print or download one copy of a reasonable number of pages of the ActiveBuilding Service for your own personal, non‐commercial use and not for further reproduction, publication or distribution;
- If RealPage provides desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non‐commercial use, provided you agree to be bound by the applicable end user license agreement for such applications; and
- If RealPage provides social media features with certain content, you may take such actions as are enabled by such features.
- Modify copies of any materials from the site;
- Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text; or
- Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the ActiveBuilding Service.
SMS Text Alerts and Notifications.
We offer you the ability to enroll your mobile phone number in our Short
Messaging Service text message service (the "SMS Service") for purposes of receiving messages from your
apartment community management staff.
Enrollment and Consent
By providing your mobile phone number(s) and opting in to the SMS Service:
- You authorize RealPage and your apartment community management staff to send text messages to the mobile phone number(s) included in your ActiveBuilding Service profile.
- You acknowledge and agree that your completion of the online registration process constitutes your written, express consent to enroll your mobile phone number(s) in the SMS Service.
- You confirm that you are the owner or subscriber of the mobile phone number(s) and authorized to enroll them in the SMS Service.
You may cancel your enrollment in the SMS Service at any time by:
- Removing your mobile phone number(s) from the SMS Service registration;
- Sending an SMS Service opt‐out request email to email@example.com; or
- Texting "STOP" in reply to any text message received from the SMS Service.
The SMS Service relies upon third party wireless service provider networks to deliver text messages. RealPage is not liable for the availability (or lack thereof) of wireless network coverage or the failure of the wireless networks to deliver a text message. RealPage disclaims any responsibility for any wireless service used to access the SMS alerts. RealPage SMS alerts are available to users based in the United States. You understand and acknowledge that SMS alerts are not intended to be accessed from outside of the United States.
Limitation of Liability. Notwithstanding anything to the contrary in the General Terms and Conditions, with
respect to your access and use of ActiveBuilding, the following limitation of liability applies to your access and use of the ActiveBuilding Service:
IN NO EVENT WILL REALPAGE, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE ACTIVEBUILDING SERVICE, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE ACTIVEBUILDING SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE ACTIVEBUILDING SERVICE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- License Grant. Subject to the terms of this EULA, RealPage grants you a limited, non‐exclusive, and non‐ transferable license to: (1) download, install, and use the Community Rewards mobile application (the "Community Rewards App") for your personal, non‐commercial use on a mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Community Rewards App’s documentation; and (2) access and use via website or mobile device the services offered in connection with a Community Rewards account, including community engagement and rewards programs (the "Community Rewards Services") in accordance with this EULA.
Rewards Points Program. Please note the Community Rewards points program may be subject to additional
terms and conditions which will be presented to you on the platform. If you are a Resident of a Community
that offers Modern Message’s Community Rewards platform, you have the opportunity to acquire reward
points. A “Community” refers to an owner or operator of a residential complex that has subscribed to any of
our services. A “Resident” refers to a person who is a leaseholder at a Community that has an account with us
and uses the Community Rewards Services.
Residents do not have any legal right to any points in their accounts until such points are redeemed for rewards. Until redemption, reward points may be forfeited upon occurrence of any of the following events
- Resident’s breach of this EULA or any other agreement in connection with the Community Rewards Services;
- Resident ceasing to be a resident of a Community;
- Community terminating its relationship with RealPage;
- RealPage terminating its relationship with the Community, or with the Resident; or
- RealPage discontinuing any of the Community Rewards Services and/or the points portion of any of the Community Rewards Services, at its sole discretion.
- After redeeming points for a rewards card, you will receive an email with instruction on how to claim your reward card. You shall have sixty (60) days from receipt of that email to claim your reward card. If you fail to claim your reward card during that sixty (60) day period you forfeit your right to the reward card.
- Use and restrictions of use for the applicable rewards card shall be subject to limitations by their respective issuers.
- Certain rewards cards that redeem may be subject to applicable processing fees, including but not limited to shipping and handling fees. The fees may be subtracted from the available funds on the card.
- RealPage is not and shall not be responsible for reward card(s) that are lost or stolen and will not reissue reward card(s) that are lost or stolen.
- Product Pricing and Descriptions. RealPage partners with various vendors to connect you to a wide variety of products on which to use your rewards points. All order processing and fulfillment is provided through our vendor partners. While we attempt to provide accurate descriptions of products on the Community Rewards Services, we do not warrant, however, that the descriptions are accurate, complete, reliable, current or error‐ free. If a product is not as described, your sole remedy is to return the item, as specified in the return terms. Additionally, we strive to provide accurate pricing and inventory information regarding the products available on the Community Rewards Services. We cannot, however, insure against pricing and inventory errors. The receipt of an order number or an email order confirmation does not constitute the acceptance of an order or a confirmation of an offer to sell. We reserve the right to correct any error, inaccuracy, or omission (including after an order has been submitted). If an error occurs or we need to correct an order, we will notify you by email.
- Geographic Restrictions. The Community Rewards Services are based in the state of Texas in the United States and provided for access and use only by persons located in the United States or Canada. You acknowledge that you may not be able to access all or some of the Community Rewards Services outside of the United States or Canada and that access thereto may not be legal by certain persons or in certain countries. If you access the Community Rewards Services from outside the United States or Canada, you are responsible for compliance with local laws.
- Your Comments and Concerns. All feedback, comments, requests for technical support, and other communications relating to the Community Rewards Services should be directed to firstname.lastname@example.org.
- Using the Services. You understand and acknowledge that the Smart Building Services enable you and your guests, other residents and their guests, property staff, and vendors to more efficiently perform a number of tasks, including remotely controlling certain smart devices (such as certain types of locks, thermostats and lighting), submitting service requests, enabling property access for visitors, and more. Certain of the Smart Building Services, such as our mobile applications and web portal (collectively, the “Smart Building Apps”), require you to create and maintain an account. To create an account, you must (i) be at least 18 years of age or acting under the supervision of a parent or legal guardian who has agreed to be bound by the terms of this EULA on your behalf; and (ii) provide (and subsequently maintain) accurate and up‐to‐date requested information. Subject to the restrictions in this EULA, you grant us the right to use this information you provide for the purpose of delivering the Smart Building Services.
- Limited License. Subject to your ongoing compliance with this EULA and all applicable laws, rules and regulations, RealPage grants you a limited, revocable, non‐exclusive, non‐sublicensable, non‐transferable, non‐assignable license to (i) access and use the Smart Building Services made available to you; and (ii) install and use the executable form of the Smart Building Apps solely for your personal use on a device owned or controlled by you.
- Additional Warranty Disclaimer. YOU HAVE CHOSEN TO LIVE IN A COMMUNITY THAT MAKES THE SMART BUILDING SERVICES AVAILABLE TO ITS RESIDENTS. YOU HAVE FURTHER CHOSEN TO ACCESS AND USE THE SMART BUILDING SERVICES FOR PURPOSES OF CONVENIENCE AND NOT AS A REQUIREMENT TO PERFORM ANY OF THE FUNCTIONS AT THE COMMUNITY, WHICH YOU ACKNOWLEDGE AND AGREE CAN BE PERFORMED MANUALLY WITHOUT USING THE SMART BUILDING SERVICES. BECAUSE OF THIS, YOUR ACCESS TO AND USE OF THE SMART BUILDING SERVICES IS YOUR OWN CHOICE AND SOLELY AT YOUR OWN RISK.
Services. The Migo Platform enables multifamily property owners (“Owners”) and their residents (each a
“Resident”) to monetize their respective rental units(s) (each a “Unit”) for Home Sharing purposes (defined as
the use of a Unit for non‐commercial, residential rentals of less than 30 consecutive days). The services
provided through the Migo Platform generally fall into two categories: (i) self‐ service and (ii) full‐service.
These services can generally be categorized as follows (collectively, the “Migo Services”):
- Resident Self‐Service. This Migo Service enables Residents in a subscribed property to use the Migo Platform to manage all aspects necessary to facilitate the listing and booking of their Unit for Home Sharing purposes through an Airbnb® listing.
- Resident Full‐Service. This Migo Service enables Residents in a subscribed property to use the Migo Platform to authorize RealPage to manage all aspects necessary to facilitate the listing and booking of each such Resident’s Unit for Home Sharing purposes through an Airbnb listing. Residents enrolled in Resident Full‐Service remain responsible for (i) providing necessary marketing collateral to enable RealPage to create, manage and update the listing; (ii) notifying RealPage when the Unit will be vacant and available for Home Sharing; and (iii) managing any permitting and tax issues relating to the listing.
- Limited License. Subject to your compliance with this Agreement, including payment of all fees, RealPage grants you a limited, revocable, non‐exclusive, non‐sublicensable, non‐transferable, non‐assignable license to (i) install, access and use the Migo Platform solely for your own business use on devices owned or controlled by you; and (ii) access and use the Migo Services made available through the Migo Platform solely in accordance with the terms of this EULA and any supplemental terms applicable to any such Migo Service. RealPage reserves all rights in the Migo Platform and the Migo Services not expressly granted to you in this Agreement.
- Migo Account. You must register an account, using accurate information, to access and use the Migo Platform. Registration is only permitted for legal entities, partnerships and natural persons who are 18 years or older. You must provide accurate, current, and complete information during registration and keep your account information up‐to‐date. You may not register more than one account or transfer your account to any other person or entity. You are responsible for maintaining the confidentiality and security of your account credentials and may not disclose your credentials to any third party. You are responsible and liable for activities conducted through your account and must immediately notify RealPage if you suspect that your credentials have been lost, stolen or misused, or that your account is otherwise compromised.
- Migo Services Fee. In exchange for your access to the Migo Platform and receipt of any Migo Services, you agree to pay the applicable non‐refundable fee(s) to Migo (the “Migo Services Fee”) as listed in the fee schedule available at https://www.migo.com/fees (the “Fee Schedule”) and incorporated herein by this reference. We reserve the right to revise the Migo Services Fees at any time by updating the Fee Schedule—with the revised fee(s) taking effect 30 days after such update. Fee changes will not affect bookings made prior to the effective date of the fee change. If you disagree with a fee change you may terminate this Agreement at any time in accordance with this EULA.
Payment Process. Depending on the nature of the Migo Service, RealPage will be entitled to payment of
the applicable Migo Services Fee in accordance with the following process:
Resident Self‐Service. For Resident Self‐Service bookings at a property, you hereby authorize Migo to collect payment through one of the following methods (as mutually agreed upon by the parties in writing).
- Directly debit from Owner’s designated account the Migo Services Fees owed in connection with each such booking that has commenced at Owner’s property. Migo will submit a monthly statement to Owner confirming the amount of Migo Services Fees debited during each month. In the event any direct debit is returned for insufficient funds, Owner agrees to pay to Migo, upon demand in immediately available funds, all amounts and expenses due and owing—including without limitation any costs incurred by Migo to collect such amounts; or
- Submit a monthly invoice to the applicable Owner (or its designee, such as the property manager acting on behalf of the Owner) detailing the Migo Services Fees owed in connection with such bookings. Each invoice will detail only those bookings for stays that commenced at the Owner’s property during the preceding month. Owner will pay the invoiced amount to Migo within 30 days after receipt of the invoice. Migo reserves the right to charge interest on any invoiced amounts that are past due at a rate equal to the lesser of 1.5% per month or the greatest amount permitted by applicable law, calculated from the due date.
- Resident Full-Service. For Resident Full‐Service bookings at your Unit(s), you hereby authorize and appoint RealPage, and RealPage hereby agrees to serve, as your limited payment collection agent solely for the purpose of receiving and processing payments on your behalf in connection with such bookings. For any such booking, you understand that Airbnb (after deducting its applicable hosting fee pursuant to the terms between Airbnb and you) will remit to a RealPage operating account the remaining portion of the booking subtotal paid by your guest(s). You hereby authorize RealPage to (1) retain the applicable Migo Services Fee(s) relating to such booking in accordance with the terms of the Fee Schedule; (2) remit to the appropriate taxing authority(ies) any Taxes owed relating to such booking; and (3) distribute to you the remaining portion of such booking subtotal. RealPage will initiate such distribution(s) within 30 days after receipt of the corresponding funds from Airbnb and will be liable solely for distribution of funds based on amounts actually received from Airbnb. Upon RealPage’s request, you agree to provide RealPage with all necessary bank account routing and related information and grant RealPage permission to credit amounts due to your bank account. This paragraph states the entirety of RealPage’s duties as your agent for receipt of payment, and no other duties shall be implied by RealPage’s undertaking to act in that capacity. This paragraph does not limit in any way RealPage’s rights against you or any funds held by RealPage, including any right of set‐off or security interest in such funds.
- No Chargebacks. You agree that upon the initiation of a guest’s stay at your Unit, the corresponding Migo Services Fee for such booking becomes due, is non‐refundable, and is not subject to chargeback for any reason whatsoever.
- Resident Self‐Service. For Resident Self‐Service bookings at a property, you hereby authorize Migo to collect payment through one of the following methods (as mutually agreed upon by the parties in writing).
Third‐Party Services. Without limiting the provisions of the General Terms and Conditions applicable to Third‐
Party Services, you further acknowledge and agree that although Migo attempts to provide accurate
descriptions and pricing relating to Third‐Party Services, including without limitation Airbnb, Spruce®, Luggage
Hero® and Price Labs®, Migo does not warrant that the descriptions and pricing are accurate, complete,
reliable, current or error‐free, and you should confirm any such information with the applicable third‐party
- Airbnb Exclusivity. You acknowledge and agree that the online community marketplace made available by Airbnb at www.airbnb.com (the “Airbnb Platform”) will be the exclusive platform used for advertising your Unit(s) for Home Sharing purposes via integration with the Migo Platform (for clarity, this restriction does not apply to any business conducted through the RealPage Renter Engagement Suite or an Owner setting aside vacant model Units or furnished Units that are not distributed publicly and only available as a reservable amenity to existing residents). You further acknowledge and agree that any issues (including, without limitation, any guest‐related issues) arising from your listing(s) on the Airbnb Platform will be subject to and governed by the terms and conditions between you and Airbnb, and you agree that RealPage is not responsible for, or liable for, any such issues. If you fail to comply with the foregoing exclusivity requirement, RealPage reserves the right to immediately suspend or terminate your access to the Migo Platform and to cease providing Migo Services to you.
Mutual Representations and Warranties. Each of you and RealPage represents and warrants to the other
- its negotiation, entry and performance of this EULA will not violate, conflict with, interfere with, result in a breach of, or constitute a default under, any other agreement to which it is a party or any applicable law;
- it has all necessary power and authority to enter into this EULA, and to carry out its obligations hereunder;
- it will comply with all applicable laws, rules and regulations in its performance of this EULA.
Your Representations and Warranties. You represent and warrant that you will comply with each of the
following requirements relating to any Units you enroll in the Migo Platform:
- any information you provide to RealPage and/or to any guest relating to a Unit will be accurate and up‐to‐ date;
- your Unit(s) will maintain high‐speed Wi‐Fi connectivity that is easily accessed by your guests;
- you will be reasonably available to communicate with RealPage and your guests during any Home Sharing stay at your Unit(s);
- you will ensure that your Unit is clean and “Guest‐ready” prior to each guest check‐in;
- you will provide Unit access information to each guest reasonably in advance of such guest’s scheduled check‐in time;
- you will not enter your Unit during the term of a guest’s stay without obtaining prior written permission from such guest (using the Airbnb messaging feature);
- you will not tamper with or otherwise disable any noise detection devices installed in your Unit(s);
- you will not de‐link or disconnect your Airbnb account from the Migo Platform;
- you will not exceed the number of Home Sharing nights permitted for your Unit, as established by your community; and
- you will maintain any permits or other Local Requirements (defined below) necessary to engage in Home Sharing of your Unit.
- Compliance with Applicable Laws and Local Requirements. Your access to and use of the Migo Platform and Migo Services must comply with all applicable laws, rules and regulations. Depending on where you live, your access to and use of the Migo Platform and Migo Services may be subject to certain state and local laws, rules and regulations specific to short term rentals (“Local Requirements”). These may include, without limitation, relating to taxation, licensing and permitting, and are subject to change from time‐to‐time. RealPage is not responsible for ensuring, and does not represent or warrant that your use of the Migo Platform and Migo Services will comply with Local Requirements. You are solely responsible for ensuring that you comply with, and you agree to fully comply with, any such Local Requirements and any other laws applicable to your access to and use of the Migo Platform and Migo Services. Notwithstanding the foregoing, RealPage reserves the right to limit the availability of the Migo Platform and the provision of any Migo Services as necessary to comply with any laws applicable to the Migo Platform and Migo Services as determined by RealPage in its sole discretion.
- Suggestions. If you provide any suggestion, comment, idea, improvement or other feedback relating to the Migo Services to RealPage, then you hereby grant RealPage a perpetual, irrevocable, worldwide, royalty‐free, fully‐paid‐up, non‐exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made such input for any lawful purpose, without credit or compensation to you.
- Termination; Suspension. Notwithstanding the termination provisions contained in the General Terms and Conditions, RealPage will provide at least 30 days’ advance written notice to you before terminating this EULA with respect to the Migo Platform, unless you breach this EULA with respect to the Migo Platform or RealPage reasonably believes that such termination is necessary to protect RealPage or its affiliates, in which case RealPage may terminate this EULA with respect to the Migo Platform immediately and without notice. RealPage may also elect to suspend your access to the Migo Platform at any time and without notice if you breach this EULA with respect to the Migo Platform or RealPage reasonably believes that such termination is necessary to protect RealPage or its affiliates. You may terminate this EULA with respect to the Migo Platform at any time by requesting in writing that your account by deactivated from the Migo Platform.
- Indemnification. Without limiting your indemnification obligations contained in the General Terms and Conditions, You agree to indemnify and hold harmless RealPage, its affiliates, and their respective directors, officers, employees, and agents from and against any and all claims and liabilities (including reasonable attorneys’ fees) that may arise from (i) the condition of your Unit(s); (ii) the actions of your Home Sharing guests; (iii) any Third‐Party Services; or (iv) your failure to comply with Local Requirements or other local, state, federal or international laws applicable to your use of the Migo Platform. RealPage reserves the right to assume the exclusive defense and control of any such matter, and you agree to cooperate with any reasonable requests for assistance with such defense.
Communications. You consent to receiving communications, which may include phone calls or SMS text
messages, from or on behalf of RealPage, including without limitation recurring communications relating to
your account and the Migo Services, as well as recurring advertising and marketing communications. You
understand and agree that you may receive communications generated by automatic telephone dialing
systems and/or prerecorded messages sent by or on behalf of RealPage. Standard message and data rates may
apply. You certify, warrant and represent that you are the subscriber or non‐subscriber customary user of the
telephone number you provide to RealPage, and further certify, warrant and represent that any other
subscribers or customary users of that telephone number have authorized you to consent on their behalf to
receive messages, including but not limited autodialed and/or prerecorded messages. Your agreement to
receive these messages is not a condition of receiving the Migo Services.
If you do not wish to receive phone calls or SMS text messages, you may opt out of such messages by updating your communication preferences in your account, or by replying “STOP” from the mobile device receiving the messages. If you prefer not to receive emails from RealPage about offers and promotions, please unsubscribe via the unsubscribe link in an email. We will endeavor to comply with your request as soon as reasonably practicable. Please note that if you opt‐out as described above, we will not be able to remove personal information about you from the databases of third parties with which we have already disclosed personal information as of the date that we implement your opt‐out request. If you wish to cease receiving marketing‐ related e‐mails from third parties, please contact such third parties directly or utilize any opt‐out mechanisms set forth in their respective privacy policies or marketing‐related emails.