Vantaca Terms of Service

2. Intellectual Property Rights.
           2.1. System, Software and Services. Vantaca retains all right, title and interest in and to its Services, its System and the Software. Apart from its limited right and license to utilize the System as part of the Services, the Customer is not acquiring any right or license to the System or the Software as a result of this Agreement. The Customer acknowledges that Vantaca’s Intellectual Property Rights in the Software include both a copyright interest as well as a trade secret interest in the secret features, functions, operations, methodologies, capacities, and method of action of the Software, all of which are maintained in secrecy and confidentiality by Vantaca. 
            2.2. Network Security. Vantaca has implemented and will continue to implement commercially reasonable security measures to prevent unauthorized access to computer hardware and other equipment and/or  software owned and used by Vantaca or its third-party service providers to deliver the Services. The System  may permit Authorized Users to disable certain security measures. Vantaca strongly encourages Customer to ensure that its Authorized Users keep all security measures fully engaged. Customer shall be solely responsible for the security of Customer’s computer and networking systems used to access the Services and shall be solely responsible for all acts and omissions of its Authorized Users. Customer must use reasonable efforts to prevent unauthorized access to the System and notify Vantaca promptly of any breach of security affecting the System.   
           2.3. Restrictions. Customer may not, and may not allow any third party to: (i) attempt to disassemble, reverse  engineer, reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means or disclose any of the foregoing, (ii) use the Software or any Vantaca Confidential Information in any way to create any software that performs functions that are the same as, or similar to, those performed by the Software, (iii) provide, rent, lease, lend, or use the Software for timesharing, subscription, or service bureau purposes; (iv) sublicense, transfer or assign any of the rights or licenses granted under this Agreement. Customer shall not: (x) use the Software for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law; or (y)transmit Customer content over, or use Customer content in connection with, the Software, in any manner that infringes upon or misappropriates the Intellectual Property Rights of any third party.   
  
3. Duration and Termination.
           3.1. Duration. This Agreement begins on the date of the first Order and continues until the latter of (a) the termination date indicated in the first Order, (b) the first anniversary of the Activation Date (if there is no termination date indicated in the first order), or (c) until terminated in accordance with its terms. This Agreement will automatically renew for successive 12-month renewal periods (each, a “Renewal Period”) unless either party gives written notice of non-renewal at least ninety (90) days prior to the initial termination date or the expiration of the then-current Renewal Period.    
           3.2. Voluntary Termination. Either party may terminate this Agreement by giving written notice to the other party that it has breached a material term of this Agreement or any other agreement between the parties if such breach remains uncured ninety (90) days after the date of such notice (with such notice identifying and  describing the alleged material breach).   
           3.3. Termination for Insolvency. Either party may terminate this Agreement should the other party: (1) admit in writing its inability to pay its debts generally as they become due; (2) make a general assignment for the benefit of creditors; (3) institute proceedings to be adjudicated in a voluntary bankruptcy, or consent to the filing of a petition of bankruptcy against it; (4) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (5) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (6) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party's property or providing for the liquidation of such party's property or business affairs.   
           3.4. Effects of Termination. Upon any termination of this Agreement (a) Customer must pay Vantaca any amounts then due, (b) Customer must cease to access and use of the Services, and (c) the parties’ obligations under the Agreement will cease except for those obligations that are expressly intended to survive such termination as provided in Section 8.   
  
4. Fees and Payment.
           4.1. Fees. Customer will pay Vantaca the fees indicated in each applicable Order. Vantaca may change the applicable fees no more than once each year after the first anniversary of the Activation Date. Unless otherwise agreed in writing, Customer must provide ACH account details and authorize Vantaca to withdraw fees invoiced at the beginning of each month. Vantaca fees do not include any applicable sales, use, revenue, excise, or other taxes (“Taxes”) imposed by any taxing authority with respect to the services or any software provided hereunder (excluding any tax on Vantaca’s net income).  All such taxes will be added to the Vantaca invoices for the fees as separate charges to be paid by Customer. Amounts not paid when due will bear interest at the rate of 18% per annum until paid in full. In the event of a failed or returned ACH or check, Customer agrees to pay a fee per occurrence of  $35.00, or such other amount as may be the maximum amount permitted by applicable law. Customer will reimburse Vantaca for its costs and expenses of collection including reasonable attorneys’ fees if Vantaca retains an attorney to collect amounts due.   
           4.2. Travel Expenses. Customer shall reimburse Vantaca for actual business-related Travel Expenses (including, as applicable, food, lodging and other incidental expenses incurred by Vantaca) for Services that require travel; provided that Vantaca obtains Customer’s prior written approval to incur such expenses.   
  
5. Liability and Risk Management.
           5.1. Insurance. Each of Customer and Vantaca must maintain commercially reasonable property and liability insurance in respect of their actions and obligations under this Agreement.   
           5.2. Limited Warranty. Vantaca will provide the Services in a proficient and professional manner in accordance with this Agreement. EXCEPT FOR THE FOREGOING LIMITED WARRANTY VANTACA IS PROVIDING THE SERVICES “AS IS.” VANTACA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT THE SYSTEM AND THE SERVICES ARE NOT ERROR-FREE AND CANNOT GUARANTEE THE CONTINUOUS SECURITY AND INTEGRITY OF DATA.   
           5.3. Limitation on Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE ANY DELIVERABLE OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES, EVEN IF SUCH PARTY HAS BEEN NOTIFIED IN ADVANCE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHER THEORY OF LAW OR EQUITY.   
           5.4. Maximum Liability. IN NO EVENT WILL VANTACA’S AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE FEES RECEIVED BY VANTACA UNDER THIS AGREEMENT DURING THE PERIOD OF SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.   

 7. Confidential Information.
           7.1. Prior Agreements Superseded. This Section expressly supersedes any prior confidentiality agreement or non-disclosure agreement between the Parties unless otherwise expressly agreed in writing.    
           7.2. Confidential Information. Each Party (the party receiving the Confidential Information is hereby referred to as the “Recipient”) may not use, other than in connection with the provision or receipt of the Services, or disclose to anyone, other than officers, employees or representatives of the Recipient with a need to know for purposes of this Agreement and who are subject to confidentiality obligations consistent with the terms of this Agreement (“Representatives”), any Confidential Information disclosed to the Recipient by the other Party (the party disclosing Confidential Information is hereby referred to as the “Discloser”). The Recipient shall safeguard disclosure of such Confidential Information to the same extent as with the Recipient’s own Confidential Information, using at least the industry standard of reasonable care. Upon termination of expiration of this Agreement, or earlier upon request of the Discloser, the Recipient shall promptly return to the Discloser or destroy the Discloser’s Confidential Information in its possession or under its control.   
          7.3. Exclusions. The confidentiality obligations of this Section shall not apply to any such information that: (a) is or becomes publicly known without any fault of or participation by the Recipient or its Representatives, (b) was in Recipient's possession prior to the time it was received from Discloser or came into Recipient's possession thereafter, in each case lawfully obtained from a source other than Discloser or its Representatives and not subject to any obligation of confidentiality or restriction on use, or (c) is independently developed by the Recipient without reference to the Discloser's Confidential Information. It shall not be a violation of this Section for Recipient to disclose any Confidential Information to the extent it is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Recipient shall, unless prohibited by law, notify the Discloser of the requirement of disclosure before making such disclosure and shall comply with any protective order or other limitation on disclosure obtained by the Discloser.   
           7.4. Equitable Relief. Any use or disclosure of the Discloser's Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Discloser irreparable damage for which remedies other than injunctive relief may be inadequate, and both Parties agree that the Discloser may request injunctive or other equitable relief seeking to restrain such use or disclosure.   
           7.5. Duration. The provisions of this Section will survive the termination or expiration of this Agreement for any  reason for a period of five years, except that with respect to any Confidential Information that constitutes a trade secret under applicable laws, with respect to which these provisions will survive for so long as such information retains its status as a trade secret under such law.   

  
11. Miscellaneous.
           11.1 Compliance with Laws. Each party must comply with all applicable laws in connection with its acts and obligations under this Agreement.   
           11.2. Assignment. This Agreement will inure to the benefit of the parties and their respective successors and assigns, provided, however, that Vantaca may assign this Agreement to any entity that purchases all or substantially all of its assets.
           11.3. Governing Law. This Agreement will be construed in accordance with the laws of the State of North Carolina excluding its principles of conflict of laws. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law.  Venue for any legal claims shall be in the courts of general jurisdiction of New Hanover County, North Carolina or the Eastern District of North Carolina.  
           11.4. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument. Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. This Agreement constitutes the entire agreement between the parties related to the subject matter hereof and supersedes any prior or contemporaneous agreement between the parties relating to the subject matter hereof.   
           11.5. Publicity. Vantaca may list Customer as a customer and use Customer’s logo on Vantaca’s website, on publicly available customer lists, and in media releases.   
           11.6. Independent Contractors. Each of Vantaca and Customer is an independent contractor of the other and neither party may bind the other to any contract or other obligation.
           11.7. Modifications. Vantaca may modify these Terms from time to time and any such modification will be effective when posted to Vantaca’s website. Customer’s continued use of the Software and the Services will indicate acceptance of the modifications.  
           11.8. Notices. Any notice required or permitted in connection with this Agreement must be (a) delivered to Vantaca in writing by overnight delivery or U.S. certified mail, return receipt requested and (b) delivered to the Customer via the Customer email address maintained by the Customer in Vantaca’s customer relationship management system.  

   
1. Services.
           a. Overview. The Services will permit Customer’s authorized users (each, an “Authorized User”) to access and use the Vantaca Property Management System (the “System”) in order to collect, retain, utilize and process information relating to properties (each, a “Property”) that are managed by Customer.   
           b. Authorized Users. The Customer is responsible for administering the login names and passwords for its Authorized Users. The Customer is responsible for any loss of integrity resulting from lost or misplaced login names and passwords for its Authorized Users. The Order will contain per-user pricing based on the number of Authorized Users. Vantaca will calculate the actual number of  Authorized Users within each subordinate category and will invoice the Customer as applicable each month based on such count and the pricing in the Order.    
           c. User Categories. “Primary Users” are those Authorized Users capable of performing all of the applicable functions in the System. “Secondary Users” are those Authorized Users that are capable of performing only a limited number of system-maintained roles in the System. “Other Users” are any Authorized Users that are not Primary Users and Secondary Users.   
           d. The System and the Portal. The System enables Primary Users to perform a variety of functions relating to homeowners and other residents (each, a “Resident”) in an applicable Property. In addition, the System also creates an online portal (each, a “Portal”) that provides functions appropriate for Residents in a particular Property to interact with the management of the Property and, where applicable, with the community association or other governing board (as applicable, the “Board”). Primary Users may, through the System, assign login names and passwords to users of the Portal, who must be either Residents of the applicable Property or members of the Board of the applicable Property.    
           e. Activation. Vantaca will make the System and the Portals available in an inactive environment on a date agreed to by the parties, but in no event later than sixty (60) days prior to the Activation Date. Vantaca may delay the Activation Date, in Vantaca’s sole discretion, based on Customer’s preparedness and data retrieval status.