Use of the Solution
As part of the applicable Solution subscribed to by Customer (as further described on the Work Order), Livly hereby grants Customer, for the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable right to access and use the applicable Solution in accordance with the terms and conditions of this Agreement, solely for Customer’s internal use by Customer’s authorized users and Residents.
The Solution shall not be used for any purpose other than as expressly authorized by this Agreement. In particular, but without limitation, Customer agrees that it will not (a) use the Solution for purposes of benchmarking or reverse-engineering; (b) compromise the integrity or performance of the Solution or of any system, network or data used to operate the Solution; (c) circumvent, disable or disrupt any technical measures that Livly uses to administer, protect, or operate the Solution; (d) develop a competing product or service based upon the Solution or any part thereof; or (e) use the Solution for any purpose that is deceptive, fraudulent, obscene, defamatory, threatening, harassing, tortious or unlawful. Nothing in this Agreement shall be deemed to grant Customer, either directly or by implication, estoppel, or otherwise, any license or rights other than those expressly granted in this Agreement. Customer does not acquire any other rights or ownership interests. Livly reserves all rights not expressly granted to Customer under this Agreement.
If Customer is an agency of the U.S. Federal government (the “Government”), or a prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other arrangement with the Government, Customer hereby acknowledges that the software included in any Solution (“Software”) and any related technical data or documentation (“Documentation”) shall be deemed to be “commercial computer software” pursuant to FAR Section 12.212, DFAR Section 227.7202, or such other acquisition regulations as may be applicable to this procurement. Any use, modification, reproduction, release, performance, display, disclosure or transfer of the Software, the Documentation or technical data shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
Customer shall only provide credentials to Authorized Users who are authorized, pursuant to this Agreement, to use the Solution on behalf of Customer, including any Property Managers of the Buildings, and Customer shall be responsible for ensuring the security of all such credentials. Customer shall immediately notify Livly of any actual or suspected compromise of any credential or any other potential unauthorized access to the Solution and shall provide Livly with all reasonable cooperation to mitigate such unauthorized access.
Customer shall pay to Livly all fees, if any, set forth in the Work Order. Unless expressly provided otherwise in the Work Order, all fees are non-refundable and non-cancelable. Customer shall pay any amounts owed to Livly on the date specified or 30 days after the date on which the Solution was provided by Livly (if no date is specified). Livly may suspend the provision of the Solution until payment has been made in full. Customer shall pay to Livly interest on any amount payable to Livly hereunder which is not paid promptly and when due at a rate equal to the lower of (i) 6% per annum or (ii) the maximum rate of interest allowable under applicable law. All costs of collection (including reasonable attorney fees) shall be paid by Customer. Customer shall pay all import duties, levies or imposts, and all sales, use, value added, property, or other taxes of any nature, assessed upon or with respect to any products or services provided to Customer by Livly, excluding United States taxes based on Livly's net income. In the event that Livly is required at any time to pay any such tax, fee, duty or charge, Customer shall promptly reimburse Livly therefor.
Livly will submit invoices via email to the email address indicated here by Customer. Livly does not have the ability to upload invoices to payment processing portals. Unless otherwise stated, recurring subscription invoicing shall begin on the first day of the first full month following the completion of onboarding. In the event services are terminated, unused whole months of pre-paid recurring fees will be refunded to customer within 60 days of termination. Onboarding and white label fees shall be invoiced at the execution of Agreements. Onboarding fees may be re-charged with integration changes or property requires rebuilding due to Customer updates
The party receiving (the “Recipient”) Confidential Information (as defined below) shall, by all appropriate means, protect the confidentiality of the Confidential Information of the other party (the “Discloser”); but in no event shall the Recipient use a lesser standard of care with respect to Confidential Information than it does with respect to Recipient’s own most sensitive confidential information. Recipient shall hold the Confidential Information of Discloser in trust and confidence and shall not copy Discloser’s Confidential Information or disclose such information to third parties. Recipient shall not use the Discloser’s Confidential Information for any purpose other than the performance of its duties under this Agreement. Recipient shall cooperate with Discloser in investigating and resolving any suspected breach of confidentiality.
Recipient may disclose Discloser’s Confidential Information, on a need-to-know basis, to Recipient’s auditors, attorneys or governmental authorities exercising a supervisory, examination or regulatory function in relation to Recipient. All Confidential Information shall be returned by the Recipient to the Discloser when it is no longer needed or at the termination of this Agreement, whichever comes first. The parties’ confidentiality obligations shall continue for a period of five years after termination of this Agreement. The term “Confidential Information” means any information that (i) is not generally known or available to others in the trade or (ii) the disclosing party designates in writing as confidential.
Customer hereby designates the Customer Data as Confidential Information. Livly hereby designates the Solution, the Software, the Documentation and any other information disclosed in the course of providing the Solution as Confidential Information.
The parties’ confidentiality obligations shall not apply to information which (i) is in the possession of the Recipient prior to the disclosure by the Discloser, (ii) becomes known to the general public through no act or omission of the Recipient, (iii) is lawfully disclosed to the Recipient by a third party, or (iv) the Recipient develops independently without use of any Confidential Information. If Recipient is required by a court or governmental agency to disclose Confidential Information of Discloser, Recipient shall immediately inform Discloser in writing of the order or request for such disclosure and shall take commercially reasonable steps to maintain confidentiality of the Confidential Information.
Livly may prepare and retain an aggregated dataset (“Aggregated Dataset”) that may be partially derived from data generated by use of the Solution by Customer, its Authorized Users and the Residents. Livly may use the Aggregated Dataset for any lawful purpose, such as statistical analysis, research, predictive analytics, profiling, targeted advertising, or data mining. In order to qualify as an “Aggregated Dataset,” the data must be stripped of any personally identifiable information and any Confidential Information of Authorized Users, Customer, and Residents.
Term and Termination
The “Initial Term” of this Agreement commences as of the date the Agreement is signed and, unless terminated as set forth below, will continue in effect for twelve (12) months. This Agreement will automatically renew for unlimited, additional successive twelve (12) month terms (each, a “Renewal Term” and, collectively, together with the Initial Term, the “Term”) unless terminated as set forth below.
In the event that either party (the “Breaching Party”) materially breaches any of its duties or obligations this Agreement and does not substantially cure such breach within 30 days after being given written notice specifying the breach, then the other party (the “Non-Breaching Party”) may terminate this Agreement upon written notice thereof to the Breaching Party. Notwithstanding the foregoing, either party may terminate this Agreement upon thirty (30) days’ written notice. Said notice shall be deemed effective on the first day of the following billing cycle. Customer shall have full use of services throughout that period. Termination of this Agreement shall not limit either party from pursuing any other remedies available to it. Any right or obligation of the parties in this Agreement that, by its nature, should survive termination of this Agreement, will survive any termination of this Agreement.
THE PLATFORM, THE SERVICES, THE SOLUTION(S), THE DOCUMENTATION AND THE SOFTWARE ARE BEING PROVIDED “AS IS” AND LIVLY HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LIVLY MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, THE SERVICES, THE SOLUTION(S), THE DOCUMENTATION OR THE SOFTWARE WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE ACCURATE OR ERROR-FREE.
Limitation of Liability
IN NO EVENT SHALL LIVLY’S CUMULATIVE LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM, THE SERVICES, THE SOLUTION(S), THE DOCUMENTATION, THE SOFTWARE OR THIS AGREEMENT, EXCEED THE AMOUNT OF ANY FEES PAID OR DUE TO LIVLY BY CUSTOMER FOR THE APPLICABLE SOLUTION(S) DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR TORT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM, THE SERVICES, THE SOLUTION(S), THE DOCUMENTATION, THE SOFTWARE OR THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings or agreements with respect to such subject matter. This Agreement may be modified only by a writing that is duly executed by both parties. This Agreement is to be governed by, construed and enforced according to the laws of the State of Illinois. The parties agree that all disputes and proceedings in connection with this Agreement shall be heard exclusively by state and federal courts located in the City of Chicago, Illinois.
Customer may not assign this Agreement without the prior written consent of Livly. This Agreement shall be binding upon and inure to the benefit of the parties and their respective administrators, successors and assigns. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. The parties desire that this Agreement be construed fairly, according to their terms, in plain English, without constructive presumptions against the drafting party. The Agreement may be executed by electronic means and in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. If any provision or part of a provision in this Agreement is held to be illegal, invalid, or unenforceable, then the remainder of the provision will be enforced so as to effect the intention of the parties, and the validity and enforceability of all other provisions in this Agreement will not be affected or impaired.
The parties acknowledge and agree that they are dealing with each other as independent contractors, and nothing in this Agreement may be construed as creating or constituting an employee-employer relationship, a partnership, a joint venture, a franchise, or an agency relationship. Neither party may bind the other party without a signed written consent from such other party, and employees and agents of one party are not for any purpose employees or agents of the other. This Agreement is made for the benefit of Livly and Customer only, and the Agreement is not for the benefit of, and was not created for the benefit of, any third parties. All notices, requests and other communications called for by this Agreement must be deemed to have been given immediately if made by email to the other party at the addresses set forth below or to such other addresses as either party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the party to which notice is provided.
CUSTOMER & LIVLY OBLIGATIONS
Promotional Services - Customer will provide digital and in-person services sufficient to introduce the available Solutions to Residents and to promote each Building as an official “Powered by Livly” building. Customer and Livly will work together, in good faith, to determine a promotional program that adequately supports Livly’s efforts in providing the available Solutions and facilitating the Services. Customer agrees to Livly representing an approved Customer logo or trademark on its marketing website.
Operational Services - Customer will also provide the following operational support: (i) name and contact information of the Customer liaison (the “Livly Champion”). The Livly Champion is the Customer personnel responsible for working alongside Livly to effectively onboard buildings and ensure continued project success through the lifetime of the engagement. Customer shall contact Livly in the event of a change to the Livly Champion within 30 days of the change; (ii) adequate support from the Livly Champion to assist Livly in providing the available Solutions and facilitating the Services; (iii) adequate access to all applicable entryway doors to each Building; (iv) access to the relevant property management system, software, and hardware that Livly may need to provide the Solution or perform its obligations; and (v) such other support as reasonably necessary for Livly to provide or facilitate the Services.
Promotional Services – In order to provide the available Solutions and facilitate the Services, Livly will need to reasonably market the available Solutions and Services to the Residents. Such marketing may occur via email or other methods, such as push notification. Livly will need to continue marketing the available Solutions and Services to Residents who have signed up for the applicable Solution(s) on an on-going basis. Such on-going marketing may occur via emails, doorhangers, modal windows or other dialog boxes, events, push notifications, collateral, and mailers.
Operational Services – Livly will maintain the security of the Platform and the Solutions. Livly will also be responsible for the cost of integration, administration, and management of the Platform with Customer’s existing system, network and software/hardware as long as each is supported by Livly as of the date of any applicable order. However, Livly shall not be obligated to provide or integrate with any hardware to the extent it is not permitted to do so by the manufacturer or developer of such hardware.
Base Web Training Services – Livly will provide standard remote training services to the applicable employees and agents of Customer in order to educate them in connection with the Platform and the applicable Solution(s). Livly will also provide access to online resources for training materials, including documentation and videos.
Additional Training Services – Upon Customer’s request, Livly will provide training services beyond the “Base Web Training Services” (i.e. in-person training), to applicable employees and agents of Customer. Such additional training services shall be at the Customer’s cost.
LIVLY CONNECT ADDITIONAL TERMS & CONDITIONS
Livly shall provide Customer with detailed minimum technical requirements for the features selected in the Purchase Order as part of the implement implementation process. Customer shall provide Livly a minimum of three (3) business days’ notice of any material modifications to Customer’s hardware or non-Livly software. In the event, Livly notifies Customer that the proposed modifications will impact the functionality of the Solution in a manner that Livly cannot support, and Customer decides to implement such modifications, Livly shall have no responsibility for any interruption or loss of functionality or be deemed to have breached this Agreement.
Customer shall provide Livly with access as necessary for Livly to perform its obligations under this Agreement, including to the Buildings and all units, rooms, and facilities located therein (collectively, the “Units”), the Property Managers, the Residents, and all applicable software and/or hardware.
Third-Party Products and Services
The solution may (i) inter-operate with certain software or hardware products of third parties (such third parties, “Third Parties,” and such products “Third Party Products”) and (ii) aggregate or utilize the services of Third Parties(such services, “Third Party Services”). Livly makes no warranty and assumes no liability with respect to any such Third Party Products or Third-Party Services, except and to the extent Livly requires that Customer use such Third Party Products or Third Party Services in order to use the Solution. Third-Party Products and Third Party Services shall be conspicuously identified as such so that Customer shall be aware of the use of such and can review the applicable terms and conditions imposed by the applicable Third Parties. Customer’s use of Third Party Products and Third Party Services shall be subject to the terms and conditions, if any, imposed by the applicable third parties.
Livly shall be responsible for supporting only the software developed by Livly, which includes mobile applications, gateway service, and the Livly access backend. Livly is under no obligation to support issues with hardware, Third Party access control software, networking, or any other Third PartyProducts or Third Party Services.
Indemnification by Customer
Customer shall defend, indemnify, and hold harmless Livly and its subsidiaries, affiliates, and their shareholders, directors, officers, members, employees, agents, successors, permitted assigns, and representatives (collectively, the “Livly Indemnitee”) from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, awards, penalties, fines, interests, costs, fees, and expenses (including reasonable attorneys’ fees), including without limitation, the cost of enforcing any right to indemnification here under and the cost of pursuing any insurance providers, arising out of, resulting or relating to any third party claim against any Livly Indemnitee arising out of, or resulting from Customer’s (a) use of the Solution or any Customer Data, (b) breach of this Agreement, including, without limitation, any failure to comply with any of its obligations under this Agreement or (c)Customer’s (or any Authorized User’s) failure to comply with applicable law.
Independent Allocations of Risk
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY LIVLY TO THE CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
Neither party shall be liable for any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, pandemics, acts of God, war, riot, civil disturbance, acts of any civil or military authority, judicial action, terrorist act, fire, flood, earthquake, strike, failure or delays in delivery of vendors and suppliers, interruption or failure of telecommunication or digital transmission links, Internet disruptions, breakdown in facilities, power failure or other unforeseen circumstances outside the reasonable control of the parties. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.