COMMUNITYPRO® PORTAL SOFTWARE AS A SERVICE (SAAS)

TERMS AND CONDITIONS

These COMMUNITYPRO® PORTAL SOFTWARE AS A SERVICES (SAAS) TERMS AND CONDITIONS (“Portal Terms”) set forth the terms and conditions under which Sentry Management, Inc., (“Sentry Management” or “Agent”) grants access to and use of the CommunityPro® portal (“the Portal”) to associations and authorized end users. References to “We,” “our,” “us” or “Sentry” refer to Sentry Management, Inc., our affiliated companies, the Portal and related Services. References to “You” or “your” means and refers to you and your status as a visitor to or user of the Portal and related Services.

PLEASE CAREFULLY REVIEW THESE TERMS AND CONDITIONS, AS WELL AS THE TERMS OF USE FOR OUR WEBSITE HTTPS://WWW.SENTRYMGT.COM/ AND OUR PRIVACY POLICY AVAILABLE AT SENTRY MANAGEMENT, INC. PRIVACY POLICY – HOA MANAGEMENT HTTPS://WWW.SENTRYMGT.COM/NT COMPANY (SENTRYMGT.COM) BEFORE USING OR ACCESSING THE COMMUNITYPRO® PORTAL. THESE PORTAL TERMS ARE INCORPORATED BY REFERENCE INTO THE TERMS OF USE. THE WEB TERMS (AS DEFINED BELOW) AND THESE PORTAL TERMS APPLY TO ANY USE OF OR ACCESS TO THE PORTAL. THESE PORTAL TERMS CONTAIN IMPORTANT INFORMATION AND TERMS AND CONDITIONS REGARDING YOUR USE OF AND ACCESS TO THE PORTAL, YOUR OBLIGATIONS, LEGAL RIGHTS AND REMEDIES, AS WELL AS VARIOUS LIMITATIONS AND EXCLUSIONS.

PLEASE READ THE ENTIRETY OF THESE PORTAL TERMS BEFORE USING OR ACCESSING THE PORTAL. IF YOU DO NOT AGREE TO BE BOUND BY THESE PORTAL TERMS AND OUR WEB TERMS, PLEASE DO NOT USE OR ACCESS THE PORTAL OR SERVICES MADE AVAILABLE THROUGH THE PORTAL. BY BROWSING, SUBMITTING INFORMATION TO, ACCESSING MATERIALS OR INFORMATION ON THE PORTAL, REGISTERING FOR AN ACCOUNT OR OTHERWISE USING THE PORTAL AND SERVICES PROVIDED THROUGH THE PORTAL, YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY AND COMPLY WITH THESE PORTAL TERMS AND OUR WEB TERMS.

From time to time, we may update these Portal Terms. For significant changes to these Portal Terms, we will notify you by indicating at the bottom of the Portal Terms when these Portal Terms were most recently updated or by other means of notification.  As such, we encourage you to please review the Portal Terms that are displayed in the Portal on the date you use the Portal or related Services. Your continued use or access of the Portal and any related Services indicates your acceptance of all of the provisions of the applicable Portal Terms.

1.  PORTAL. Sentry Management provides and makes available for access and use a proprietary property management software system through a software as a service deployment (“SaaS System”), with the SaaS System offered under the title, CommunityPro® Portal for use by homeowner associations (“Association(s)”), its board members, residents, third party professionals and vendors associated with licensed Associations.  Sentry Management and Associations enter into Management Service Agreements (“Management Agreement(s)”) through which Sentry Management grants to Association a certain limited, non-exclusive license and right to access and use the Portal and make the Portal Available to authorized End Users and related Services. The Portal Terms are provided to supplement the Management Agreement, specifically related to the terms and conditions for use of the Portal.  In the event that an Association or End Users receive access to the Portal without a Management Agreement being in place, these Portal Terms govern all such access and use of the Portal by Association and End Users.

2.  DEFINITIONS.  The following definitions are provided as such terms are used in these Portal Terms.

2.1.  “Authorization Form” means and refers to a separate written authorization form provided by an Association to Agent, identifying the level of access and use of the Portal, that Association desires to grant to individual Community Web Admin Users and Vendor Users accessing the Portal on behalf of or at the request of an Association.

2.2.  “Board Member Users” means and includes board members of Association that are authorized to access the Portal, under the supervision and control of Association.

2.3.  “Claim” means any claim, suit, action, arbitration, mediation, administrative proceeding, demand or cause of action.

2.4.  “Community Web Admin User” or “CWA” means and includes individual(s) selected to serve as Community web admin’s for the Association, who are authorized to access the Portal, under the supervision and control of Association and are also subject to agreement with and compliance with the terms and condition set forth in the CommunityPro Portal® User Authorization Form.

2.5.  “End Users” means and includes: (i) Board Member Users; (ii) Homeowner Users; (iii) Community Web Admin Users (iv) Vendor Users; and (v) Employee Users; that are authorized to use and access the Portal on behalf of an Association(s) or Agent, on a password-controlled basis, and only during and within the applicable scope of: (a) their employment, or engagement with an Association(s) or Agent; or (b) as owners or residents, while owning or residing within Associations.

2.6.  “Employee Users” means and includes employees of Agent, that are authorized by Agent to access the Portal.

2.7.  “Homeowner Users” means and includes homeowners that own property in Association’s community (or such homeowners authorized agent) that are authorized to access the Portal.

2.8.  “Law” means all applicable federal, state and local laws, regulations, rules, ordinances and other decrees of any governmental authority.

2.9.  “Loss” means any death, bodily injury, property damage, invasion of privacy, damages, exemplary damages, consequential damages, lost profits, award, fine, penalty, forfeiture, judgment, reasonable attorney’s fees, expert witness fees, costs, expenses, liability, loss or harm of any kind and  through all stages of any Third Party Claim or other claim relating thereto.

2.10.  “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.

2.11.  “Personal Identifiable Information” or “PII” any information that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, biometric records, name, personal address or email address, or personal telephone numbers, and any other information relating to an identified or identifiable individual.

2.12.  “Personal Information” means any information provided by an End User that does or can identify a specific individual such as PII, employment information, educational information, business telephone number and financial information.

2.13.  “Services” means the Portal, Website, and all software, features and functionality provided therein and related services provided by Agent therewith.

2.14.  “Third Party Claim” means any Claim, allegation or action brought, made or initiated by any third party.

2.15.  “User Data and Information” means and includes information related to End Users or third-parties that may be provided by End Users, third parties or collected from publicly available information and uploaded into our the Portal, which may include Personal Information.

2.16.  “Vendor Users” means and includes third party vendors, professionals or other individuals or entities that access the Portal on behalf of, or at the request of an Association or Agent.

2.17.  “Website” means the website at https://www.sentrymgt.com/Communitypro-portal/ or at such other URL which provides general information about the Services or access to the Portal.

2.18.  “Web Terms” means the Terms of Use and Privacy Policy of Agent set forth on the Website, which may be updated from time to time by Agent. In the event any of the terms and conditions set forth in the Web Terms are inconsistent with any of the terms and conditions of these Portal Terms, the terms and conditions of these Portal Terms shall take precedence and be controlling as between Agent and Association.

3.  ACCESS TO THE PORTAL AND THE SERVICES.

3.1.  Acknowledgement and Agreement. By executing the Management Agreement or by accessing or using the Portal and related Services identified herein or otherwise provided or made available to Association or End User by Agent, Association and End Users each acknowledge and agree to be bound by these Portal Terms as well as Agent’s Web Terms which are hereby incorporated by reference. To the extent use by an Association or End User is pursuant to the Management Agreement, these Portal Terms are incorporated by reference into and made a part of the Management Agreement.

3.2.  End User Portal Account Access. Association or Agent may authorize End Users to access or use the Portal subject to the terms and conditions of these Portal Terms, all Web Terms, any EULAs and applicable terms of a Management Agreement (when applicable) and/or Authorization Form (when applicable). Each End User must meet the definition of an End User at all times of access and use of the applicable portions of the Portal and related Services, and each End User must agree to the terms and conditions of an End User License Agreement (“EULA”) as required by Agent as a condition of and prior to becoming an End User or accessing the Portal or related Services. All use of the Portal and related Services by End Users will be governed by the applicable EULA terms, these Portal Terms and the Web Terms. Association shall be responsible for and liable to Agent for Board Room Users, Community Web Admin Users and Vendor Users (accessing the Portal on behalf of or at the request of an Association) acts, omissions and compliance with the terms and conditions of these Portal Terms and applicable EULA during all use or access to the Portal and related Services.  Board Room Users and Community Web Admin Users shall be permitted to access the Board Room CommunityPro® Portal subject to agreeing to and pursuant to the EULA. Homeowner Users shall be permitted to access the Homeowners CommunityPro® Portal subject to agreeing to and pursuant to the EULA. Vendor Users may also be permitted to access the Portal on behalf of certain Associations, with all such access and use subject to agreeing to and pursuant to the EULA. Community Web Admin Users and Vendor Users (accessing the Portal on behalf of or at the request of an Association) will only be provided access to the Portal in accordance with the terms and conditions set forth in the applicable Authorization Form.

3.3.  Availability of Portal and related Services. Agent will use commercially reasonable efforts to make the functionality of the Portal and related Services available to Association and End Users except for during scheduled or necessary downtime and other timeframes of unavailability, but the Portal and related Services are being provided without specific warranties or guarantees as to uptime, performance, functionality, accuracy or availability for use. Association and End Users each agree to use and access the Portal and related Services with this understanding.  Association and End Users agree to assume all risk for use and access to the Portal and related Services. Agent reserves the right to support only current versions of the Portal. Agent’s provision of the Portal and any available support or maintenance shall be contingent on Association’s and End Users full cooperation with Agent and Association supplying all information, data, consents and access to Association’s systems and data as necessary for Agent to integrate or adapt its Services.

4.  LICENSE TO ACCESS THE PORTAL.

4.1.  License Grant by Agent.

4.1.1. License to Association. Agent grants to Association for and during the applicable Term, a non-transferable, revocable, non-sublicensable, non-exclusive, license to the following rights (rights collectively, the “Association License”): (i) to access and use, and permit End Users to access and use, the Portal, Materials and related Services accessed or provided through the Portal (in accordance with the Portal Terms, Web Terms and EULA); and (ii) to upload, and permit End Users to upload User Data and Information related to Association and End Users (in accordance with the Web Terms and EULA). .

4.1.2. License to End User. Agent grants to End User for and during the Term, a non-transferable, revocable, non-sublicensable, non-exclusive, license to the following rights (rights collectively, the “End User License”): (i) to access and use, the Portal, Materials and related Services provided therein (in accordance with the Portal Terms, Web Terms and EULA); and (ii) to upload User Data and Information related to Association and End Users as authorized for an End User, an Association or transaction (in accordance with the Web Terms and EULA). .

4.1.3. The term “License” shall apply individually to either the Association License or End User License as applicable or collectively to both the Association License and End User License.

4.2.  Reservation of Rights; Reversion.  All rights owned or held by Agent and/or its third party licensors, which are not expressly granted under the License are reserved in their entirety to Agent, its successors, assigns, and its third party licensors. All rights in and to the Portal and all related Services are and shall remain with Agent. Nothing in these Portal Terms shall operate, or be construed, to convey any interest, of any kind whatsoever in, or relating to, the Portal or Services. Agent reserves the right to suspend Association’s access to and use of the Portal if Association fails to comply with any of the terms and conditions of these Portal Terms. Upon the expiration or earlier termination of the Management Agreement, the License shall automatically and immediately terminate and all rights under the License shall automatically and immediately revert in their entirety to Agent.

5.  SUPPORT AND MAINTENANCE.

5.1.  Support. Agent will provide general support for questions pertaining to the Portal, Monday-Friday from 8:30am to 5 pm EST, except for holidays. Association may contact communitycare@sentrymgt.com for customer service requests related to the Portal. Any other support will be provided at the discretion of Agent.

5.2.  Maintenance. Association and all End Users, each understand and agree that Agent shall have no obligation to maintain, repair or upgrade the Portal unless otherwise agreed in a separate written agreement with an Association. Agent may, in its sole discretion use reasonable efforts to maintain or improve the Portal. Agent shall endeavor to carry out maintenance of the Services in a manner which does not unduly burden Association or End Users, but shall have the right to perform maintenance, including any ancillary troubleshooting, updating, repair or testing of the Portal at any time and in a manner as Agent, in its sole discretion, may elect. Association and all End Users each acknowledge, and agree, that such activities may temporarily limit the functionality of the Services, or may render the Portal wholly or partially unavailable or inoperable. Except in the event of emergency or unusual circumstances, Agent will endeavor to conclude such activities expeditiously and to provide prior notice to Association of any planned unavailability, inoperability or material limitation of the Portal. Association and End User agree that they have no damages or remedies for the unavailability, function or performance of the Portal.

6.  OBLIGATIONS OF ASSOCIATION.

6.1.  Accounts and Passwords.  An End User account and password shall be required to access the Portal. Each End User shall have a personal, non-transferable, password. End User accounts or passwords shall not be shared or used by more than one individual person. Homeowners that authorize individuals to access and use their account or password as the home owner’s agent, shall be liable for all actions taken by any such authorized agent while using the Homeowner User’s account or password. Passwords and user accounts are subject to revocation, termination or suspension by Agent without advance notice for any lawful reason.

6.2.  Supervision and Conduct of End Users.  Association shall exercise such lawful supervision and control over its Board Room Users, Community Web Admin Users and Vendor Users (accessing the Portal on behalf of or at the request of an Association) as may be required to assure compliance with the terms and conditions of these Portal Terms. Association shall be solely and exclusively responsible for all acts and omissions of all Board Room Users, Community Web Admin Users and Vendor Users authorized to access the Portal by Association and for any Loss or Third Party Claim which results directly or indirectly from any act or omission of any such Board Room Users, Community Web Admin Users or Vendor Users or other use which is unlawful or not in compliance with any of the terms and conditions of these Portal Terms or any applicable Web Terms.  In the event Association becomes aware of any such unlawful, or non-compliant act or omission, Association shall promptly revoke or suspend the password of that Board Room User, Community Web Admin User or Vendor User and take any other steps reasonably necessary to terminate such unlawful or noncompliant access and use.

6.3.  Certain Additional Restrictions. Unless, and solely to the extent, these Portal Terms may otherwise expressly permit, Association and End User shall not, and shall not purport to authorize, knowingly induce, or knowingly permit, any End User or third party to:

6.3.1. modify, tamper with, adapt, translate, enhance or prepare derivative works or improvements of the Portal, content, materials or any portions thereof;

6.3.2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available to any person or entity, the Portal, including the content, materials or any portions thereof, including by framing, mirroring, re-transmission, emulating, time-sharing, service bureau, software as a service (SaaS), cloud based service, or in by or through any other manner, mode, medium or means whatsoever;

6.3.3. reverse engineer, disassemble, decompile, decode, or decrypt, the Portal, including content, materials or any portions thereof, or attempt to derive or gain access to the source code or executable code of the Portal, including the content, materials or any portions thereof;

6.3.4. intentionally bypass, breach, disable or defeat any security feature, technological safeguard or protection used in, or in connection with the Portal, including the content, materials or any portions thereof;

6.3.5. remove, alter, obscure, translate, combine, supplement or otherwise change any portion of any: screen display; trademark; warning; disclaimer; copyright notice or other notice of proprietary rights or ownership; serial number; version or release number; or any other text, graphics, symbols, notices, trademarks or service marks or serial numbers which may be present in, or may be displayed by or in connection with use of any the Portal, including the content, materials or any portions thereof;

6.3.6. access, use, or permit any End User to access or use, the Portal, including the content, materials or any portions thereof, in any manner, or for any use or purpose, that violates any applicable law or these Portal Terms, or that infringes any Intellectual Property right of Agent, any third party provider or any other person or entity;

6.3.7. rely on the Portal, including the content, materials or any portions thereof, for or in connection with any hazardous, mission critical or safety-critical uses, applications, or activities any other use, application or activity in which the use, misuse, unavailability, delay, error, defect or failure would pose a significant risk of death, bodily injury or property damage to any person;

6.3.8. access, use, or permit any End User or other user to access or use, the Portal, including the content, materials or any portions thereof outside the scope of the License or in violation of these Portal Terms; or

6.3.9. at any time, use, develop, distribute, or aid others in developing any software or service which is substantially functionally similar to, the Portal, including the content, materials or any portions thereof and/or which infringes any Intellectual Property rights of Agent.

7.  OWNERSHIP AND DATA.

7.1.  Ownership of User Data and Information.  Association or the applicable End User or third-party, is and shall remain the sole and exclusive owner of all worldwide right, title and interest in and to the User Data and Information. Agent is provided a User Data and Information License to User Data and Information hereunder for the purpose of providing the Services, including a license to store, record, transmit, maintain, and display User Data and Information necessary to providing the Services. Association shall be solely responsible for the accuracy of any and all User Data and Information. Association shall be solely responsible for ensuring that all User Data and Information uploaded to the Portal, is accurate, timely, correct, contains no errors or omissions and is not misleading in any manner.

7.2.  Limited License to User Data and Information.  Subject to all terms and conditions of these Portal Terms, Association and each applicable End User grants to Agent, its successors and assigns, for and during the Term, a revocable, fully-paid up, royalty-free, transferrable, non-exclusive right and license to process, display and use the applicable User Data and Information (“User Data and Information License”): (i) to provide the Portal and Services to Association and End Users; (ii) to provide and display the User Data and Information to other users accessing or using the Portal; (iii) as necessary to monitor and improve the Portal and Services (including the development of new features and functionality); (iv) as may be reasonably appropriate or  necessary to enable Association to access and use the Portal; (v) to enable Agent to provide the Services or fulfill any obligation of Agent under these Portal Terms; and (vi) to process, store and archive User Data and Information in accordance with these Portal Terms.

7.3.  Reversion of Rights in User Data and Information.  Upon any termination or expiration of the relevant Management Agreement, or termination of rights for an Association or End User to use or access the Portal or related Services, the User Data and Information License shall terminate. Upon termination or expiration of a Management Agreement Agent shall have the right to transfer the User Data and Information at the request of, or on behalf of the Association to a new or replacement association. Agent shall also have the right to maintain and store an inactive copy of the User Data and Information as may be required to comply with Agent’s record retention policies and other legal requirements, as well as for archival purposes.

7.4.  Ownership of Other Data.  With the sole exception of User Data and Information and Personal Information, as between Association and Agent, any and all other data and information associated with the Portal is and shall remain at all times owned solely and exclusively by Agent, its successors, assigns and/or third party licensors of Agent.

7.5.  Security and Other Risks.  Agent shall exercise commercially reasonable due care to maintain the security of the Portal. Association acknowledges that its entry into these Portal Terms, use of the Portal and other exercises of the License are voluntary and are undertaken with Association’ full knowledge and awareness such activities by their nature necessarily entail risks of security breaches, unavailability, loss or corruption of data, and other inherent risks associated with computer software, websites, communications via the Internet, electronic communications and processing, which whether foreseeable or unforeseeable, cannot be avoided by the exercise of commercially reasonable due care on the part of Agent.

8.  INTERLLECTUAL PROPERTY AND CONFIDENTIALITY.

8.1.  Intellectual Property.  “Intellectual Property” means: (i) (i) all works of authorship, including without limitation, all literary works, pictorial, graphic and sculptural works, architectural works, software, works of visual art, and any other work that may be the subject matter of copyright protection and all worldwide registrations thereof (“Copyrights”); (ii) any trademarks, service marks, brand names, trade dress, trade names, designs and any other word, symbol, device, product configuration, slogan or any combination thereof used to distinguish or identify goods or services that may be the subject matter of trademark protection, including all worldwide applications and registrations therefore and associated goodwill (“Trademarks”); (iii) any patents, invention disclosures or inventions, including all methods, business methods, processes, machines, manufactures, systems and compositions of matter, designs and any other inventions that may be the subject matter of patent protection, and all worldwide statutory or other legal protection obtained or obtainable therein and all other published and granted patents and pending applications and provisionals, reissues, divisionals, renewals, extensions, continuations, and continuations-in-part, design patents and industrial design registrations (“Patents”); (iv) all domain names, URLs, websites, and all data, content, “look and feel”, operating and underlying code or software of all websites; (v) all trade secrets, proprietary information, data, and knowledge and experience of a technical, commercial or administrative nature, including all proprietary information, know-how, information processes, operating, maintenance and other manuals, data and databases, computer programs, including all documentation, design specifications, and flowcharts, operational and other plans, schematics and drawings, customer data and lists, advertising (“Know-how”), marketing and product concepts and campaigns and other valuable or proprietary information or data; (vi) all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States, or any other state, country or jurisdiction; and (vii) all worldwide statutory protection obtained or obtainable thereon on all of the preceding; all rights to enforce, enjoin or sue, any claims, judgments, causes of action or other legal and equitable rights and remedies arising out of or related to any infringement, misappropriation or violation of any of the foregoing; and all right, title and interest to claim royalties, residuals, damages and other remuneration for use of any of the foregoing rights.

8.2.  Agent Intellectual Property.  Agent shall own and retain exclusive ownership of all right, title and interest in and to all Agent Intellectual Property. “Agent Intellectual Property” shall mean and include: (i) the Portal, the Website and all related proprietary Services provided by Agent (including without limit all software, templates, object code, source code, middleware, APIs, interfaces, connectors, software layers, shims, work flows, engines, flow charts, documentation), modifications, updates, and upgrades; and (ii) all related Intellectual Property rights, and derivative works thereof; (iii) any Improvement to any of the foregoing; and (vi) any Intellectual Property created by Agent in the provision of Services in these Portal Terms.

8.3.  Ownership of Intellectual Property.  To the extent that Agent, Association or any End User, in the course of providing, using or accessing the Portal or Services improves, invents, authors or creates new or derivative works that in any way arise from, relate to, embody or otherwise are derived from the Agent Intellectual Property (“Improvements”), the Parties agree that such Improvements shall be owned by Agent. To the extent that such Improvements qualify as a work for hire under the U.S. Copyright law, the Parties agree that such Improvements and all intellectual property will be a work made for hire under the copyright law for Agent and owned by Agent, and to the extent that such Improvements do not qualify as works made for hire, Association agrees to assign and does hereby assign to Agent all worldwide right, title and interest in and to Intellectual Property in such Improvements to Agent. Agent will be free to make, have made, use, offer for sale, sell, modify, translate, and import Services and products utilizing the Improvements and Intellectual Property assigned to Agent.

8.4.  Equitable Relief.  The Parties agree that a material breach of the License of these Portal Terms, including breach of Agent’s Intellectual Property rights or unauthorized use or access to the Portal, Materials or related Services, would cause irreparable injury to Agent for which monetary damages would not be an adequate remedy, and therefore Agent shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law.

9.  REPRESENTATIONS AND WARRANTIES.

9.1.  Association and End User Representations and Warranties.  Association and End Users, each individually represent and warrant that: (a) its use of the Portal and Services, including any User Data and Information provided by Association or End User for use with the Portal and Services or handling by Agent, shall: (i) comply with any applicable law or regulation, (ii) not cause a breach of any agreement with or rights of any third party (including without limitation the rules of any social network platform or any data subject rights) and (iii) not unreasonably interfere with use of Portal and Services offered by the Agent to third parties; (b) its use and access of the Portal and related Services is only for lawful purposes and in accordance with the Portal Terms; and (c) it shall use the Portal and Services strictly in accordance with these Portal Terms and other written instructions (e.g., Web Terms, EULA, Authorization Forms, and Management Agreement terms) provided by Agent. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Agent will have the right to suspend immediately any of the Portal and Services to prevent harm to Agent or its business. If practicable, Agent will provide notice and opportunity to cure. Once cured, in Agent’s reasonable discretion, Agent will use reasonable efforts to promptly restore the Portal and Services.

9.2.  Agent Representations and Warranties.  Agent represents and warrants that to the best of Agent’s knowledge, Agent is authorized, or has the right to provide the use of and access to the Portal for the specifically permitted uses under these Portal Terms.

10.  DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.2, ASSOCIATION AND END USER ACCEPT THAT THE PORTAL AND SERVICES ARE BEING PROVIDED “AS IS” AND “AS AVAILABLE,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, NON-INVASION OF PRIVACY, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (I) AGENT HAS NO OBLIGATION TO INDEMNIFY OR DEFEND ASSOCIATION OR END USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY OR INVASION OF PRIVACY; (II) AGENT DOES NOT REPRESENT OR WARRANT THAT THE PORTAL OR SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR OR COMPLY WITH ALL APPLICABLE LAWS; AND (III) AGENT DOES NOT REPRESENT OR WARRANT THAT THE PORTAL OR SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT ANY DATA WILL REMAIN PRIVATE OR SECURE. AGENT MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCTS, MATERIALS, DATA OR SERVICES.

11.   LIMITATION OF LIABILITY. IN NO EVENT WILL AGENT BE LIABLE TO ASSOCIATION OR END USER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. THE LIABILITIES LIMITED BY THIS SECTION 11 APPLY TO LIABILITY FOR NEGLIGENCE REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE EVEN IF AGENT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE, AND EVEN IF ASSOCIATION OR END USERS’ REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 11, AGENT’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. AGENT’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY ASSOCIATION OR END USER TO AGENT SPECIFICALLY AS A PORTAL LICENSE FEE TO ACCESS THE PORTAL DURING THE SIX-MONTH PERIOD PRIOR TO THE CLAIM, IF ANY, BUT SUCH PORTAL LICENSE FEE SHALL NOT INCLUDE ANY FEES PAID ON THE MANAGEMENT AGREEMENT FOR ANY SERVICES OTHER THAN AN EXPRESS PORTAL LICENSE FEE.

12.  INDEMNIFICATION.  Association and End user(s), each individually agree, as applicable, to indemnify, defend and hold harmless Agent, its permitted successors and permitted assigns and Agent officers, members, directors, shareholders, managing agents and employees, (each a “Agent Indemnitee“) from and against Losses incurred by any Agent Indemnitee in connection with any Third Party Claim solely to the extent that such Third Party Claim alleges, or that such Losses are based on, or arise directly or indirectly from, any actual or alleged: (i) Infringement of any alleged third party Intellectual Property arising from or relating to Association or End User’s data, User Data and Information, submissions or information uploaded or provided into the Portal or download and use without authorization of information, Materials or data, or any acts by or on behalf of Association or any End Users, including without limit unauthorized use or access to the Portal, including Third Party Products, or breach of the License or use of the Portal or Services in any altered form or manner beyond the Terms of the License; (ii) Access or use of the Portal, outside the scope of the License or otherwise not in compliance with Agreement; (iii) Association or End Users’ breach of the License or terms of these Portal Terms; (iv) Breach or infringement of Agent’s Intellectual Property rights; (v) Error, defect, inaccuracy, incompleteness, or other condition of User Data and Information; (vi) Association or End Users’ gross negligence or willful acts; or (vii) vicarious liability of Agent, or any of its officers, directors, shareholders, managing agents or employees, for any act or omission of Association, or any End User.

13.  TERM AND TERMINATION.

13.1.  Term.  Unless terminated earlier and subject to the survival provisions expressly set forth in these Portal Terms, these Portal Terms shall be in effect for so long as the Management Agreement is in effect, or End User continues to access and use the Portal.

13.2.  Termination For convenience.  Agent shall have the right to terminate these Portal Terms for convenience at any time, by providing Association or End User written notice as applicable.

13.3.  Termination by Mutual Agreement.  The Parties may voluntarily terminate these Portal Terms at any time by mutual agreement pursuant to an express written agreement to terminate signed by both Parties. Such termination shall be automatically and immediately effective as of the date such agreement is signed by whichever of the Parties is last to sign.

13.4.  Termination or Suspension by Agent for Cause.  Agent shall have the right to terminate these Portal Terms, or suspend Association’s Association License and/or any applicable End User License in Agent’s discretion, if Association or any End User breaches any material term or obligations of these Portal Terms, the Web Terms or Management Agreement, including without limit, the licensed rights or Agent’s Intellectual Property rights and Association fails to cure such breach within thirty (30) days after written notice thereof.

13.5.  Termination of the Management Agreement.  In the event of any termination or expiration of a Management Agreement for an Association, all Licenses for use of the Portal held by or on behalf of the Association and all affected End Users shall immediately terminate without the requirement of any further action or notice by Agent.

13.6.  Effect of Termination.  Upon termination Association and each End User shall immediately cease, all exercise of the rights under the License and access and use of the Portal and shall cause all of its End Users to immediately cease all access and use of the Portal and Agent shall have the right to immediately terminate without notice any access or use of the Portal by Association and its End Users.

14.  EXPORT REGULATION. The Services may contain software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any law or regulation, including the U.S. Export Administration Act and its associated regulations (“Controlled Technology“). Association shall not, and shall not knowingly cause, induce or permit, anyone to, export, re-export or release, directly or indirectly, any such Controlled Technology to any country, jurisdiction, person or entity to which the export, re-export or release of Controlled Technology: (i) is prohibited by applicable Law or regulation; or (ii) without first obtaining the advance express written consent of Agent and completion all other legally required undertakings including obtaining all necessary export licenses and other governmental approvals. Agent shall have the right to deny or withhold its consent under this subsection in Agent’s sole discretion and for any reason or no reason.

15.  GENERAL TERMS AND CONDITIONS.

15.1.  Entire Agreement and Modification.  The express written terms and conditions of these Portal Terms (including all Web Terms, Authorization Forms and EULAS (as updated from time-to-time by Agent referenced in these Portal Terms, each of which are hereby incorporated into these Portal Terms by reference), constitute the sole, exclusive, complete and final agreement and understanding of the parties with respect to the subject matter of these Portal Terms and may not be waived, modified or rescinded, in whole or in part, except pursuant to a writing signed by duly authorized representatives of both parties. Any other prior and/or contemporaneous conversations, negotiations, understandings, agreements, expectations, promises, representations, covenants and warranties concerning the subject matter hereof are cancelled and superseded by these Portal Terms.

15.2.  Conflict of Terms.  Except as otherwise provided in these Portal Terms, if any provision contained in these Portal Terms conflicts with any provision in the Management Agreement, the provision contained in these Portal Terms shall govern and control.

15.3.  Governing Law, Venue, and Jurisdiction. This Agreement shall be governed by the laws of the State of Florida, without regard to its conflicts of laws principles. Neither the United Nations Convention on the International Sale of Goods nor the Uniform Computer Information Transactions Act shall have any application to these Portal Terms. Any suit, action or proceeding with respect to these Portal Terms shall be brought in the courts of Seminole County, Florida or in the U.S. District Court for the Middle District of Florida, and the Parties hereby consent to the assertion of personal jurisdiction by those courts for the purpose of any suit, action or proceeding relating to these Portal Terms or any of the subject matter of these Portal Terms.

15.4.  Compliance with Laws.  In exercising its rights under these Portal Terms, and carrying out its duties under these Portal Terms, each party shall comply with all applicable laws.  In the event either party at any time becomes aware of any facts or circumstances which involve, or appear reasonably likely to involve, any criminal conduct or imminent threat of criminal conduct by any party or any End User, each party shall have the right to notify law enforcement authorities and to cooperate fully with, but shall have no obligation to do so.

15.5.  Severability.  If any provision of these Portal Terms, or any portion thereof, is held to be invalid, unlawful or unenforceable, such provision shall be severable from the remainder of these Portal Terms and shall be deemed stricken. The parties, or any tribunal of competent jurisdiction, shall substitute for the stricken provision a valid and enforceable provision that preserves the original intent and economic positions of the parties and the remaining provisions of these Portal Terms will remain in full force and effect. If any provision of these Portal Terms is invalid, illegal or unenforceable in a given jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Portal Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify these Portal Terms so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

15.6.  Non-Waiver.  Notwithstanding the foregoing or any other provision of these Portal Terms, the waiver by either party of any default or breach of these Portal Terms shall not constitute a waiver of any subsequent default or breach, irrespective of its nature.

 

Last updated: December 20, 2023