SOFTWARE AS A SERVICE ADDENDUM
Section 1. PLATFORM
1.1 Access to Platform. The “Platform” means Partner’s proprietary SiteLynx platform or any replacement or successor system Partner provides to Client. Subject to Client’s compliance with the terms of the Agreement (including this Addendum), Partner shall provide Client access to the Platform during the term of the Agreement. Partner shall have the right to block any User’s access to the Platform, as Partner may, in its reasonable discretion, deem necessary to preserve the security and integrity of the Platform. “User” means a Client employee approved by Partner for access to the Platform. Client shall remain responsible for all acts and omissions of Users as if such acts and omissions were those of Client.
Section 2. CLIENT RESPONSIBILITIES
2.1 Privacy Policy. Client shall use the Platform, and shall cause all Users to use the Platform, in accordance with this Addendum and Partner’s Privacy Policy (the “Privacy Policy”) found on https://www.partneresi.com, as amended or supplemented from time to time. In the event of any conflict between the terms of this Addendum and the Privacy Policy, the terms of this Addendum shall control.
2.2 Computer Configuration. Client (and all Users) shall perform the responsibilities necessary for Client’s use of the Platform, including maintaining an interface which meets the following minimum specifications: (1) Microsoft Internet Explorer or Edge, Google Chrome, or Apple Safari current release or most recent prior release (official, not beta, releases only); and (2) Adobe Acrobat current release or most recent prior release (reader or standard version), if viewing PDF files is required. Client understands that the Platform is optimized for Google Chrome. Partner may modify this minimum configuration as may be required to accommodate future changes to the Platform. Any such modification may be notified to Users by email or through the Platform.
2.3 Login Credentials. Client is responsible for preventing the misuse or misappropriation of user IDs, passwords and other login credentials (collectively “Login Credentials”) issued to Client or any Users. Client shall maintain the confidentiality and security of its Login Credentials and shall only permit one User to use each set of Login Credentials; Client shall promptly notify Partner of any actual or suspected unauthorized use of the Platform. Client is solely responsible for any misuse or misappropriation of Login Credentials and any damages suffered by Partner or any other party as a result. If any User ceases to be employed at Client or if any User role ceases to require access to the Platform, Client shall promptly notify Partner in writing so that Partner can deactivate such User’s Login Credentials. Partner reserves the right to suspend or terminate any Login Credential which it reasonably determines may have been used for an unauthorized purpose. Partner shall promptly notify Customer in the event it suspends or terminates a Login Credential.
2.4 Client Data Warranty. Client represents and warrants that, at the time it provides any Client Data to Partner in connection with this Addendum and at all times during which such Client Data or any works derived from such Client Data reside in the Platform, it is the owner of all such Client Data and has full authority to have the Client Data maintained on the Platform. “Client Data” means all documents, files, information, images, trademarks, names, logos and other data whether in written, electronic or digital form, provided by Client to Partner in connection with the Platform. Client grants to Partner a non-exclusive, irrevocable, royalty-free license to access, use, copy and modify any trademarks, names and logos in the Client Data for the purpose of providing a custom-branded version of the Platform to Client.
Section 3. USE OF PLATFORM
3.1 Limited Right to Use. Subject to Client’s compliance with the terms of the Agreement (including this Addendum), Partner grants Client a personal, non‑exclusive, non‑transferable, and non‑sublicensable right to access and use the Platform.
3.2 Limits on Use of Platform. Client shall not, directly or indirectly, take any of the following actions, and shall prevent all of its Users from taking or attempting any of the following actions:
(a) creating or enabling the creation of derivative works, modifications, or adaptations of the Platform;
(b) disclosing or transmitting any data contained in the Platform to any person other than Partner;
(c) interfering with the proper operation of the Platform or the use of the Platform by third parties, or otherwise using the Platform (or granting access to others to use the Platform) other than as expressly permitted hereunder;
(d) decompiling, reverse engineering or disassembling the Platform or otherwise deriving or attempting to derive the source code of the Platform;
(e) sublicensing, renting, loaning, distributing or disclosing the Platform or any portion thereof to third parties;
(f) removing or modifying any proprietary marking or restrictive legends placed on the Platform;
(g) using any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the Platform;
(h) using the Platform to operate a service bureau or otherwise support the document scanning, storage, indexing, coding, and retention processes of third parties;
(i) transmitting, distributing, publishing or disseminating on or through the Platform (1) any information that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or racially, ethnically, or otherwise objectionable; (2) any unauthorized advertising, junk mail, spam, chain letters or any other form of solicitation; or (3) any information or content that infringes any patent, copyright, trademark, trade secret or other proprietary rights or any contractual rights of any party;
(j) accessing or using the Platform in order to create a competitive product or service; and/or
(k) using the Platform in violation of any applicable local, state, national or international law or regulation.
3.3 Orders. The Platform may include the ability for Customer to request additional Services by placing an “Order”. Any Order shall be governed by the terms of the Agreement. The scope of work, duration, and pricing estimates provided as a result of each Order are dependent on the accuracy of the data submitted by Customer and are subject to change at any time, including due to pre-visit questionnaires, unit observation and assessment, property observations, electrical wire observations, photographing and documentation, on-site interviews, and sampling. No scope of work, duration or pricing shall be binding on Partner until memorialized in writing by authorized representatives of both parties.
Section 4. OWNERSHIP RIGHTS
4.1 Platform Property of Partner. The Platform and Platform Materials are the exclusive property of Partner. “Platform Materials” means the Platform, its components, interfaces, any related equipment, user guide and any other documentation, materials and proprietary information provided by or on behalf of Partner in connection with the Platform. Partner shall retain all right and title to all proprietary rights in the Platform and Platform Materials, and to any other intellectual property owned or otherwise provided by Partner. Client shall have no right to use the Platform or Platform Materials for any purpose other than as set forth herein. Client shall not challenge, or assist any other person or entity in challenging, Partner’s right, title, and/or interest in the Platform or any Platform Materials.
4.2 Client Data Property of Client. All Client Data is and shall remain the exclusive property of Client. Partner shall not copy, scan, transfer, sell, disclose, license, alter or otherwise use the Client Data for any purpose other than to provide the Services or Platform or as otherwise set forth in the Agreement.
4.3 Third Party Service Providers. Client acknowledges and agrees that Partner may use third party service providers in its provision of the Platform, including for hosting services. Client Data may be stored on or hosted by third party servers. Partner has no control over the availability, accuracy or reliability of its third party service providers, disclaims all warranties, express or implied, in relation to such third party service providers, and has no responsibility or liability for the acts or omissions of such third party service providers.
Section 5. CONFIDENTIALITY
The use of confidential information shall be subject to the terms of the Agreement. Notwithstanding anything to the contrary in the Agreement, Partner may disclose any confidential information to its third party service providers who require access to the Confidential Information to provide services to Partner.
Section 6. TERM AND TERMINATION
6.1 Term. This Addendum shall commence on the last date of signature below, or the date the Platform is accessed by Client, and shall continue in full force and effect for so long as the Agreement is in effect or until earlier terminated in accordance with this Section.
6.2 Termination for Convenience. Either party may terminate this Addendum for any reason upon fifteen (15) days’ prior notice to the other party.
6.3 Termination for Breach. Either party may terminate this Addendum immediately in the event the other party has not cured a material breach of this Addendum within five (5) days of its receipt of the non-breaching party’s notice of such breach.
6.4 Effect of Termination. All rights granted by Partner under this Addendum shall cease upon the expiration or termination of this Addendum for any reason, and Client shall immediately cease any use of the Platform upon such termination. Partner may, at its option, delete or destroy all Client Data remaining on the Platform at any time thirty (30) days after the termination or expiration of this Addendum.
Section 7. LIMITATION OF LIABILITY
IN ADDITION TO AND NOT IN LIEU OF ANY LIMITATIONS OF LIABILITY IN THE AGREEMENT, IN NO EVENT WILL PARTNER BE LIABLE UNDER THIS ADDENDUM FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY LOSS OF INCOME, PROFITS OR DATA OR DIMINUTION OF VALUE, EVEN IF PARTNER HAS BEEN ADVISED OF, OR HAD REASON TO KNOW OF, THE POSSIBILITY OF SUCH DAMAGES. CLIENT AND PARTNER AGREE THAT PARTNER’S AGGREGATE LIABILITY TO THE CLIENT AND ALL THIRD PARTIES IN CONNECTION WITH THIS ADDENDUM SHALL BE LIMITED TO GENERAL MONEY DAMAGES NOT TO EXCEED TWENTY THOUSAND DOLLARS ($20,000.00) OR THE EXTENT OF PARTNER’S VALID AND COLLECTIBLE INSURANCE, WHICHEVER IS LESS. THIS LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION OR LEGAL THEORY PLED OR ASSERTED. THE PARTIES ACKNOWLEDGE THAT THEY HAVE CONSIDERED THE ALLOCATION OF RISK PRESENTED BY THE PROVISIONS OF THIS PARAGRAPH AND THAT THE ALLOCATION IS REASONABLE UNDER ALL FACTS AND CIRCUMSTANCES SURROUNDING THE AGREEMENT.
Section 8. REPRESENTATIONS AND WARRANTIES AND EXCLUSIVITY OF REMEDIES
8.1 WARRANTY DISCLAIMERS. IN ADDITION TO AND NOT IN LIEU OF ANY WARRANTY DISCLAIMERS IN THE AGREEMENT, PARTNER (AND ANY PARTNER ENTITY) SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING, TRADE USAGE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON‑INFRINGEMENT. THE PLATFORM MATERIALS ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTNER NOR ANY PARTNER ENTITY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE PLATFORM OR AS TO THE RESULTS TO BE ATTAINED FROM ACCESS TO OR USE OF THE PLATFORM. NEITHER PARTNER NOR ANY PARTNER ENTITY MAKES ANY WARRANTY OR REPRESENTATION THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED, SECURE, COMPLETE, ACCURATE OR ERROR‑FREE. CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY PARTNER WITH RESPECT TO THE PLATFORM EXCEPT FOR THOSE EXPRESSLY AND SPECIFICALLY SET FORTH IN THIS ADDENDUM.
8.2 Exclusivity of Remedies. To the maximum extent permitted by applicable law, in the event of a material error or omission by Partner related to the provision of the Platform, Client’s sole and exclusive remedy shall be to have Partner use commercially reasonable efforts to correct such error or omission. Client shall advise Partner in a reasonably detailed writing of such error or omission promptly after discovery thereof by Client. Partner shall have no obligation to correct such errors and omissions if a delay in Client’s reporting of such error or omission materially prejudices Partner’s ability to correct the error or omission, or results in other errors or omissions.
Section 9. GENERAL
9.1 Disputes and Arbitration. This Addendum shall be governed by, subject to, and construed in accordance with the laws of the state of California. Any controversy, claim or action arising out of, or related to, this Addendum, the breach thereof, or the coverage of this arbitration provision shall be settled by arbitration which shall be conducted in the state of California in accordance with the Commercial Arbitration rules of the American Arbitration Association as such rules shall be in effect on the date of delivery of demand for arbitration. The arbitration of such issues, including the determination of the amount of any damages suffered by either party hereto by reason of the acts or omissions of the other, shall be to the exclusion of any court of law except for enforcement of an arbitrated award. The decision of the arbitrators, or a majority of them, shall be final and binding on both parties and their respective successors and assigns. If the arbitrators determine that a party has initiated a recovery action on a basis inconsistent with the provisions of this Addendum, the initiating party shall, without exception, be assessed all costs incurred by the responding party. Except as identified above, each party shall pay the fees of its own attorneys, and the expenses of its witnesses and all other expenses connected with the presentation of its case. The costs of the arbitration, including the cost of the record or transcripts thereof, if any, administrative fees, fees of the arbitrators, and all other fees and cost shall be borne as determined by the arbitrators. Neither party shall initiate any claim or action against the other more than eighteen (18) months after termination or expiration of this Addendum.
9.2 Force Majeure. Partner shall not be liable for any failure or delay in the performance of any of its obligations if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third party vendors, Internet slow-downs or failures, computer hackers or other causes that are beyond a party’s reasonable control.
9.3 Control Restrictions. Any software, including the Platform, provided by Partner is subject to United States export controls. The Platform may not be downloaded or otherwise exported or re‑exported in violation of any such United States export controls. Client represents and warrants that it is not located in, affiliated with, under the control of, or a national or resident of any country subject to any United States export control list.
9.4 Entire Agreement. This Addendum and the Agreement constitute the entire Agreement of the parties with respect to the subject matter hereof and supersede any and all existing agreements relating to the subject matter hereof.
9.5 Counterparts. This Addendum may be executed in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
9.6 Independent Contractors. This Addendum shall create an independent contractor relationship between Partner and Client. Neither party shall have any authority to act in any way as a representative of the other, or to bind the other to any third party, except as specifically set forth herein, and the parties shall not be deemed to be partners, joint ventures or the like by virtue of the provisions hereof.
9.7 No Third Party Beneficiaries. This Addendum shall be binding upon and inure solely to the benefit of the parties. The parties intend that there shall be no third party beneficiaries under this Addendum, and that no person or entity, except the parties, shall have any rights or remedies under this Addendum, including the right to bring any action on account of its breach or in any relation to it whether in contract, in tort, or otherwise.
