PROPERTY GAUGE LEGAL TERMS

 

These Legal Terms are incorporated by reference into every Property Gauge Subscription Agreement. References to “Client” mean the party identified in the applicable Subscription Agreement.

 

Definitions.

  1. “Door/Doors” is defined as a unique rental unit/ the number of unique rental units identified in the Pricing Proposal for which the Client is authorized to use the Subscription Services for related property management activities.
  2. “Pricing Proposal” means the agreed-upon cost proposal for the products and services agreed to by both parties.
  3. “SaaS Fees” means the fees for the SaaS Services identified in the Pricing Proposal.
  4. “SaaS Services” means Software as a Service consisting of system administration, system management, and system monitoring activities that Property Gauge performs for the Property Gauge Software Products and includes the right to access and use the Property Gauge Software, receive maintenance and support on the Property Gauge Software.
  5. “Third Party Products” means the third-party software and services, if any, identified in the pricing proposal.

 

 

Limited Warranty.

For the purposes of this Agreement, a “Defect” is defined as a failure of the Property Gauge Software Products to substantially conform to the then-current Property Gauge User Guides and the functional descriptions of the Property Gauge Software Products in Property Gauge’s written proposal to the Client. In the event of a conflict between the afore-mentioned documents, the then-current Property Gauge User Guides will control. A Property Gauge Software Product is “Defective” if it contains a Defect. For as long as a current Agreement is in place, Property Gauge warrants that the Property Gauge Software Products will not contain Defects. If the Property Gauge Software Products do not perform as warranted, Property Gauge will use reasonable efforts, consistent with industry standards, to cure the defect per Property Gauge’s then-current support call process.

 

 

Implementation.

Implementation includes Software setup and training. Software setup and implementation will begin once the implementation fees have been received.

 

Maintenance Services Terms, Conditions, Limitations, and Exclusions.

For as long as a current Agreement is in effect, Property Gauge shall:

  1. Professionally and skillfully, perform its obligations following Property Gauge’s then-current support call process to conform the Property Gauge Software Product to the applicable warranty under this Agreement. If Client modifies the Property Gauge Software Products without Property Gauge’s prior written consent, Property Gauge’s obligations to provide maintenance services on and warrant the Property Gauge Software Products shall be void. Property Gauge reserves the right to suspend maintenance services if Client fails to pay undisputed SaaS Fees within fifteen (15) calendar days of the due date. Property Gauge will reinstate maintenance services upon the Client’s payment of the overdue SaaS Fees.
  2. Provide the Client with all releases Property Gauge makes to the Property Gauge Software Products. Client acknowledges and agrees that a new release of the Property Gauge Software Products is for implementation in the Property Gauge Software Products as they exist without Client customization or modification, and that Property Gauge reserves the right to cease supporting a prior release of the Property Gauge Software Products once Property Gauge has made a new release of the Property Gauge Software Products available to Client.
  • SaaS Fees do not include implementation of the Property Gauge Software Products, onsite support, application design, other consulting services, support of an operating system or hardware, and support outside Property Gauge’s normal business hours.

 

Disclaimer.

The rights, remedies, and warranties outlined in this agreement are exclusive and in place of all other rights, remedies, and warranties expressed, implied, or statutory, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and system integration, which are hereby disclaimed by Property Gauge.

 

 

No Assignment.

The client may not assign its rights and responsibilities under this Agreement without Property Gauge’s prior written permission, not to be unreasonably withheld.

 

 

Hosting.

For as long as Client pays Software as a Service Fees to Property Gauge, Property Gauge shall host at Property Gauge’s data center and make available to Client the Property Gauge Software as a Service Products listed in the Pricing Proposal, except as otherwise noted in this Agreement. Hosting Services will be provided in accordance with the Service Level Agreement.

 

SERVICE LEVEL AGREEMENT

 

Agreement Overview

  1. This Service Level Agreement (“SLA”) operates in conjunction with and does not supersede or replace any part of, the Agreement between Property Gauge and Client. The SLA is effective as of the Effective Date of the Agreement.
  2. This SLA outlines the information technology service levels that Property Gauge will provide to the Client to ensure the availability of the application services that the Client has requested Property Gauge to provide.

 

Definitions

  1. “Attainment” The percentage of time a service is available during a billing cycle, with percentages rounded to the nearest whole number.
  2. “Client Error Incident” Any service unavailability resulting from a Client’s applications, content, or equipment, or the acts or omissions of any of Client’s service users or Client’s third-party providers over whom Property Gauge exercises no control. Client Error including, but not limited to, downtime or inaccessibility of the data source(s) (Third Party Products).
  3. “Defect” Any failure of the licensed software that is recognized as a “defect” under the Agreement through which the Client licenses the Property Gauge software.
  4. “Downtime” The minutes during which the software products outlined in the Agreement are not available for any type of Client use. Downtime does not include those instances in which only a Defect is present.
  5. “Force Majeure” An event beyond the reasonable control of Property Gauge, including governmental action, war, riot or civil commotion, fire, natural disaster, or any other cause which could not with reasonable diligence be foreseen, controlled, or prevented by the party.
  6. “Service Availability” The total number of minutes in a billing cycle that a given service is capable of receiving, processing, and responding to requests, excluding maintenance windows, Client Error Incidents, and Force Majeure

 

Service Availability

The Service Availability of Property Gauge’s applications is intended to be 24/7/365 (excluding maintenance windows). Property Gauge sets Service Availability goals and measures whether it has met those goals by tracking Attainment.

 

Client Responsibilities

  1. Whenever a Client experiences Downtime, that Client must make a support call according to the procedures outlined in the Support Call Process. The Client will receive a Support Incident Number.
  2. To track attainment, the Client must document, in writing, all Downtime that it has experienced during a billing cycle. The Client must deliver such documentation to Property Gauge within 15 days of a billing cycle’s end.
  3. The documentation the Client provides must evidence the Downtime clearly and convincingly. It must include, for example, the support incident number(s) and the date, time, and duration of the Downtime(s).

 

Property Gauge Responsibilities

  1. When Property Gauge’s support team receives a call from a Client that a Downtime has occurred or is occurring, Property Gauge will work with the Client to identify the cause of the Downtime (including whether it may be the result of a Client Error Incident or Force Majeure). Property Gauge will also work with the Client to resume normal operations.
  2. Upon timely receipt of a Client’s Downtime report, outlined above in Section 3, Property Gauge will compare that report to Property Gauge’s own outage logs and support tickets to confirm that a Downtime for which Property Gauge was responsible indeed occurred.
  3. Property Gauge will respond to a Client’s Downtime report(s) within 15 days of receipt. To the extent Property Gauge has confirmed Downtime for which Property Gauge is responsible, Property Gauge will provide Client with the relief set forth below.

Client Relief

  1. When a Service Availability goal is not met due to confirmed Downtime, Property Gauge will provide the affected Client with relief that corresponds to the percentage amount by which that goal was not achieved, as outlined in the Client Relief Schedule below.
  2. Notwithstanding the above, the total amount of all relief that would be due under this SLA will not exceed 5% of the fee for any one billing cycle. Issuing such credit does not relieve Property Gauge of its obligations under the Agreement to correct the problem which created the service interruption. A correction may occur in the billing cycle following the service interruption. In that circumstance, if service levels do not meet the corresponding goal for that later billing cycle, the Client’s credits will be doubled.
  3. Every billing cycle, Property Gauge will compare confirmed Downtime to Service Availability. In the event actual Attainment does not meet the targeted Attainment, the following Client relief will apply:
  4. Client Relief Schedule:

 

Targeted Attainment

Actual Attainment

Client Relief

100%

98-99%

Remedial action will be taken

100%

95-97%

4% credit of fee for affected billing cycle will be posted to next billing cycle

100%

<95%

5% credit of fee for affected billing cycle will be posted to next billing cycle

 

  1. A Client may request a report from Property Gauge that documents the preceding billing cycle’s Service Availability, Downtime, any remedial actions that have been/will be taken, and any credits that may be issued.

 

Applicability

The commitments outlined in this SLA do not apply during maintenance windows, scheduled downtime, Client Error Incidents, and Force Majeure.

 

Maintenance

Property Gauge performs maintenance during limited windows that are historically known to be reliably low-traffic times. If and when maintenance is predicted to occur during periods of higher traffic, Property Gauge will provide advance notice of those windows and will coordinate to the greatest extent possible with the Client.

 

Force Majeure

The Client will not hold Property Gauge responsible for meeting service levels outlined in this SLA to the extent that any failure to do so is caused by Force Majeure. In the event of Force Majeure, Property Gauge will file with the Client a signed request that said failure be excused. That writing will at least include the essential details and circumstances supporting Property Gauge’s request for relief according to this Section. The Client will not unreasonably withhold its acceptance of such a request.