Terms of Service
Last updated: June 15, 2023
Welcome to ELUX Communities! Please carefully review these Terms of Service (these “Terms of Service”), as they contain important information about your legal rights, remedies and obligations. When these Terms of Service mention “ELUX Services LLC”, “ELUX”, “ELUX Communities”, “ELUX Homes”, “we”, “us”, or “our”, it refers to ELUX Services LLC. By subscribing to or using any of our Services (as defined below), you agree to comply with and be bound by these Terms of Service. Any terms contained in your order form will supersede these Terms of Service.
These Terms of Service constitute a legally binding agreement between you and us and govern your access to and use of the Services. Your access to and use of the Services are also governed by (i) the terms set forth in your order form and online sign-up flows, (ii) the Value+ Terms, (iii) the Tenant Screening Terms, (iv) the Payments Terms, (v) the Website Terms, and (vi) any other policies applicable to your use of the Services that we make available, each of which is incorporated by reference into these Terms of Service.
SCOPE OF SERVICES
We offer a hosted suite of property management software services, which include our core property management software solution (“APM”), our PLUS property management software solution (“APM PLUS”), and additional value-added services to which you may subscribe (the “Value+ Services” and together with APM and APM PLUS, the “Services”). To subscribe to a Service, you must sign an order form or complete the online sign-up flow, which identifies the Service to which you have subscribed, additional subscription terms, and the fees payable for such Service. By subscribing to the Services, you may access and use the Services to manage and account for the real property units that you assign to the Services (collectively, the “Units” and each a “Unit”). We reserve the right to (a) modify the Services (or any part thereof) from time to time, and we are not liable to you or to any third party for any modification of the Services, and (b) assess your Unit count at regular intervals and invoice you appropriately.
1.1. INTENDED USE
The Services are designed and intended to be used for property management purposes in the United States. Your use of the Services for any other purpose or in any other manner is at your own risk.
1.2. NO LEGAL ADVICE
The Services contain features and tools designed to assist you in the operation of your business and are capable of being used to comply with certain of your regulatory or other legal obligations. Notwithstanding the foregoing, we do not make any representations or warranties that your use of the Services will satisfy or ensure compliance with any legal obligations or laws, rules, or regulations. ELUX Services LLC does not provide legal advice and is not engaged in the practice of law. We encourage you to consult with your legal counsel before utilizing any of the Services that may have legal ramifications.
1.3. EXPANDING THE SERVICES
You may subscribe to additional Services (including any new Value+ Services we make available from time to time), increase or decrease the number of Units, or add additional databases by executing an order form or completing an additional online sign-up flow. All new Services are subject to these Terms of Service.
1.4. MIGRATION OF DATA
Promptly following your initial subscription to the Services, we will coordinate and work with you to migrate certain of your data into the Services. You will be responsible for providing data in a format deemed acceptable to us and will provide materials and reasonable assistance for the migration of your data. You represent and warrant that you are the rightful owner of your data and have the requisite authority to perform the migration of such data. You will retain all right, title and interest in and to your data. If the migration of your data and materials is not completed on the scheduled date we mutually agreed upon on two or more occasions, we reserve the right to charge you for additional Implementation Fees at our sole discretion. In the event that another migration of data is necessary as a result of a change of, for example, your business name, a change in your tax identification number, a change in your business structure or any other similar reasons (a “Re-Migration”), we will charge an additional one-time non-refundable Onboarding Fee for setting up a new database and/or migrating the data within the existing database. We will help determine the optimal plan for Re-Migration based upon the individual situation and the non-refundable Onboarding Fees associated with such Re-Migration will be due and payable by you on the date of invoice.
1.5. SET-UP AND CONFIGURATION
You are solely responsible for determining the appropriate set-up and configuration of the Services. In the event you request we provide assistance in the set-up or configuration of the Services, without in any way limiting Section 8.2, we make no representations or warranties with respect to any changes we may make or work we may perform on your behalf and at your request.
MODIFICATION OF THESE TERMS OF SERVICE
We work constantly to improve our Services with updates, new features, and new services. And we may need to change these Terms of Service from time to time to accurately reflect our Services and practices. If we do, those revised Terms of Service will supersede prior versions. Unless we say otherwise, changes will be effective upon the “Last Updated” date located at the top of this page. We agree that changes cannot be retroactive. We will provide you advance notice of any material changes to these Terms of Service, including those pertaining to the addition of a new service. For any other changes, we will publish the revised Terms of Service and update the “Last Updated” date above. We hope that you will continue to use our Services, but if any changes materially impact you or your business and you object to such changes, you may terminate your subscription to the Services according to the terms herein. Your continued use of the Services after we modify these Terms of Service constitutes your acceptance of any revisions.
We will use commercially reasonable efforts to provide complimentary technical support services to you and your authorized users of the Services. Our standard support is available Monday through Friday from 8:00 a.m. – 8:00 p.m. Eastern Time, excluding major holidays, which include Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas, and New Year’s Day. You may contact customer support by emailing us at [email protected].
We will make available remote, live or recorded training sessions to you and your authorized users, as well as provide tutorials, which are accessible via the Help Articles and Training Sessions sections of our website at no additional charge.
YOUR RIGHTS AND RESTRICTIONS
5.1 AUTHORIZATION TO USE THE SERVICES
Subject to (i) your timely payment of all fees set forth in the order form or online sign-up flow and (ii) your compliance with these Terms of Service, we authorize you to use (and permit your authorized users to use) the Services to which you have subscribed.
5.2 AUTHORIZED USERS
You (i) are responsible for your authorized users’ compliance with these Terms of Service, and (ii) will use commercially reasonable efforts to prevent unauthorized access to or use of the Services. If the authorized status of a user changes, it is your responsibility to promptly remove such user’s access to the Services. Third parties are not permitted to access or use the Services or any application programming interface we may make available to you without our prior consent. We reserve the right to disable or delete access to the Services and any application programming interface for any of your authorized users to enforce these Terms of Service or otherwise protect our interests.
5.3 YOUR RESPONSIBILITIES; USE OF THE SERVICES IN COMPLIANCE WITH LAWS
The Services contain various features, tools and workflows that assist you in the conduct of your business. We do not make any representations or warranties that your use of the Service will satisfy or ensure compliance with any legal obligations or applicable laws, rules, or regulations. For example, you may be able to use the Services to, among other things, text, email, and accept and make payments. Such activities can be highly regulated, and while we assist you in carrying out such activities, you are solely responsible for ensuring compliance with all applicable laws and regulations including, without limitation, the Fair Credit Reporting Act, Equal Credit Opportunity Act, the Fair Housing Act, Title VII of the Civil Rights Act of 1964, the Telephone Consumer Protection Act of 1991, and utility billing practices. You are responsible for all activities that occur under your account or by your authorized users. Without limiting the foregoing, you will (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data that you submit to the Services; (ii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services and notify us immediately of any unauthorized use or security breach; (iii) comply with all applicable local, state, federal, and foreign laws (including laws regarding privacy and protection of personal or consumer information) in using the Services; and (iv) obtain and maintain all computer hardware, software and communications equipment needed to access the Services in connection with your use of the Services.
5.4 YOUR RESTRICTIONS
You may not, and you will ensure your authorized users do not, (i) disassemble, reverse engineer, decompile or otherwise attempt to decipher any code in connection with the Services, or modify, adapt, create derivative works based upon, or translate the Services; (ii) license, sublicense, sell, rent, assign, distribute, time share transfer, lease, loan, resell for profit, distribute, or otherwise commercially exploit, grant rights in or make the Services or any content offered therein available to any third party; (iii) use the Services except as expressly authorized under these Terms of Service or in violation of any applicable laws; (iv) engage in any illegal or deceptive trade practices with respect to the Services; (v) circumvent or disable any security or other technical features or measures of the Services or any other aspect of the software or, in any manner, attempt to gain unauthorized access to the Services or its related computer systems or networks; (vi) use the Services to transmit infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, or to store or transmit material in violation of third-party privacy rights; (vii) use the Services to store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs or to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (viii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (ix) use any robot, spider, or other automated device, process or means to access, retrieve, scrape or index any portion of the Services; (x) reformat or frame any portion of the Services; or (xi) make available or otherwise provide all or any portion of the Services, our Confidential Information (as defined below), or any application programming interface we make available to you to any of our direct or indirect competitors.
Although we have no obligation to monitor your use of the Services, we may do so at our discretion and may prohibit any use of the Services we believe may be in violation of these Terms of Service or applicable laws and regulations.
5.5 RESERVATION OF RIGHTS
No other rights are granted except as expressly stated in these Terms of Service, and nothing herein conveys any rights or ownership or license in, or to, the Services or any underlying software or intellectual property. We own all rights, title and interest, including all intellectual property rights, in and to the Services and the underlying software, and any and all updates, upgrades, modifications, enhancements, improvements or derivative works thereof.
- TERM AND TERMINATION
Each Service will be for the term set forth on the order form or in the online sign-up flow you complete. Unless we discontinue a Service or you provide us with notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term, such Service will automatically renew for the same period as its initial term.
WRITTEN NOTICE OF NON-RENEWAL MUST BE SUBMITTED:
via email to:
or via USPS or courier to:
1101 Brickell Ave
South Tower 8th FLoor
Miami, FL 33131
Either party may terminate any subscription to Services (i) if the other party breaches any of its obligations under these Terms of Service and such breach is not cured within thirty (30) days of receipt of notice from the non-breaching party, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. Notwithstanding the foregoing, we may immediately terminate your subscription to the Services if: (a) you materially breach of these Terms of Service, as determined by us in our sole and absolute discretion; (b) we reasonably believe that you are associated with conduct that is illegal, fraudulent, or that could otherwise cause a real risk of harm to us or others (whether financial, legal, business or reputational harm); or (c) upon the request of any of our financial service providers. Upon termination of your subscription, you will immediately discontinue all use of the Services, cease to represent that you are a user of the Services, and destroy all our Confidential Information (as defined in Section 9 below) in your possession. Neither party will be liable for any damages resulting from a valid termination of any subscription(s) to Services; provided, however, that termination will not affect any claim arising prior thereto.
6.3 HANDLING OF YOUR DATA IN THE EVENT OF TERMINATION
You agree that following expiration or termination of any of your subscriptions to the Services, we may immediately deactivate the affected Services and that, following a reasonable period, we may delete your account and data. However, in the event that the Services are terminated by us, we will grant you temporary, limited access to the Services, not to exceed thirty (30) days, for the sole purpose of permitting you to retrieve your proprietary data, provided that you have paid in full all undisputed amounts owed to us. You further agree that we will not be liable to you or to any third party for any termination of your access to the Services or deletion of your data, provided that we are in compliance with the terms of this Section 6.3.
6.4. TERMINATION FOR CONVENIENCE; EARLY TERMINATION FEE
You may terminate your subscription to the Services for convenience at any time by providing thirty (30) days’ prior written notice to us; provided, however, that if you terminate your subscription prior to the end of its term under this Section 6.4, then you will pay to us an early termination fee equal to fifty percent (50%) of the Service Fees (as defined below) payable for the remaining period of your subscription, calculated on a pro rata basis (the “Early Termination Fee”). In the event you subscribe to but do not use the Services, we may, in our sole discretion, choose to treat the non-use as a termination for convenience under this section. You hereby expressly acknowledge and agree that we shall have the right to charge the Early Termination Fee to the payment method associated with your account. You will not be entitled to a refund of any pre-paid amounts under any circumstances.
7.1 SERVICE FEES
You will pay certain non-refundable fees for the Services in the amount set forth on the order form or in the online sign-up flow (the “Service Fees”) and according to the billing frequency stated therein. Service Fees are due and payable on the date of invoice. We may increase Service Fees from time to time by providing you with no less than thirty (30) days advance notice; provided, however, the Service Fees for any Service subject to a fixed term, will only be increased at the time of renewal of your subscription to such Service. Service Fees are non-refundable if you terminate your subscription early.
7.2 ONBOARDING FEES
You will pay certain non-refundable fees for onboarding and data migration in the amount set forth on the order form or in the online sign-up flow (the “Onboarding Fees”). The Onboarding Fees are due and payable by you on the date of invoice. Onboarding Fees are non-refundable unless we fail to complete the onboarding for reasons other than your failure to provide us with the requested data or other information or assistance required to complete such onboarding.
7.3 ADDITIONAL FEES
You may incur certain other non-refundable fees or charges for your use of the Services in addition to those fees set forth on the order form or in the online sign-up flow (the “Additional Fees”). Any Additional Fees will be set forth on the order form or in the online sign-up flow for such Service. Such additional fees may include, without limitation, monthly minimum amounts for certain Services, as set forth in your order form or in the online sign-up flow. We may increase monthly minimum amounts from time to time by providing you with no less than thirty (30) days advance notice.
7.4 LATE PAYMENTS
You acknowledge that your failure to pay any Service Fees or Additional Fees when due may result in suspension or termination of your subscription to the Service. If you fail to pay any of the fees or charges due hereunder, ELUX Services LLC reserves the right to, among other things, engage an attorney or a collections agency to collect the delinquent fees and charges. You agree to pay all fees and costs incurred by ELUX Services LLC in connection with the collection of such delinquent amounts, including without limitation, any and all court and related costs, attorneys’ and/or collections agencies’ fees plus interest in an amount equal to the lesser of 1.0% per month or the maximum rate permitted by applicable law.
You are responsible for all sales tax, use tax, value added taxes, withholding taxes and any other similar taxes and charges of any kind imposed by federal, state or local governmental entities on the transactions contemplated by these Terms of Service. When we have the legal obligation to pay or collect taxes for which you are responsible pursuant to this Section, the appropriate amount will be invoiced to and paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMER
8.1 REPRESENTATIONS AND WARRANTIES
You represent and warrant that (i) you have all necessary authority to enter into and perform your obligations under these Terms of Service without the consent of any third party or breach of any contract or agreement with any third party; and (ii) you will use the Services only for lawful purposes in accordance with these Terms of Service.
8.2 DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SOFTWARE OR THE SERVICES WILL MEET ALL OF YOUR REQUIREMENTS OR THAT THE USE OF THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SOFTWARE AND SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS AND YOUR USE OF SOFTWARE AND SERVICES IS AT YOUR OWN RISK. WE HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS, RULES OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO ANY FEDERAL OR STATE STATUTES OR REGULATIONS THAT MAY BE APPLICABLE TO YOU. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW.
IF YOU ARE DISSATISFIED WITH THE SERVICES OR THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP USING THE SERVICES. NOTWITHSTANDING THE FORGOING, NOTHING IN THIS SECTION (SECTION 8.2) SHALL BE CONSTRUED TO LIMIT OR DEPRIVE EITHER PARTY OF A REMEDY THAT IS OTHERWISE EXPRESSLY PROVIDED FOR UNDER THESE TERMS OF SERVICE.
THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT BETWEEN THE PARTIES CONTAINED IN THESE TERMS OF SERVICE.
- CONFIDENTIAL INFORMATION
You agree to ensure that your authorized users keep all passwords and other access information to the Services in strict confidence.
Each party agrees that its violation of this Section 9 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies. This Section 9 will survive termination or expiration of your subscription to the Services.
10.1 OUR INDEMNIFICATION
We agree to defend, indemnify, and hold you harmless from and against all claims brought or threatened against you by a third party alleging that a provision of the Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, trademark or patent (“Infringement Claim”). If your use of the Services has become, or in our opinion is likely to become, the subject of any Infringement Claim, we may, at our option and expense: (i) procure for you the right to continue using the Services as set forth herein; (ii) modify the Services to make them non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate your subscription to the Services and refund you any unused prepaid Service Fees. This Section 10.1 states your exclusive remedy for any claim by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, trademark or patent. The indemnification obligations in this Section will survive termination or expiration of your subscription to the Services.
We have no liability or obligation with respect to any costs or damages claimed under Section 10.1 if the Infringement Claim arises out of or is in any manner attributable to (i) any modification of any Services by you (or any of your authorized users), or (ii) use of Services in combination with services and products not provided by ELUX Services LLC if such infringement would have been avoided without such modification or combination, or (iii) our compliance with your designs or instructions (each an “Excluded Claim”).
10.3 YOUR INDEMNIFICATION
You agree to defend, indemnify, and hold us and all our affiliates, employees, officers, directors, contractors, agents, licensors, successors and assigns (collectively, the “ELUX Services LLC Parties”) harmless from any and all claims, judgments, awards, demands, suits, proceedings, investigations, damages, costs, expenses, losses, and any other liabilities (including reasonable attorneys’ fees, court costs and expenses) (collectively, “Costs”) arising out of or relating to (i) your use of the Services in violation of these Terms of Service, (ii) an Excluded Claim, (iii) any actual or alleged breach by you of any representation, warranty, covenant or obligation under these Terms of Service, or (iv) your gross negligence or willful misconduct. Your indemnification obligations under this Section 10.3 will survive any termination or expiration of your subscription to the Services.
10.4 CONDITIONS OF INDEMNIFICATION
The indemnification obligations under this Section 10 above are conditioned upon (i) the indemnified party notifying the indemnifying party promptly in writing upon knowledge of any claim for which it may be entitled to indemnification hereunder; (ii) to the extent applicable, the indemnified party ceasing use of the claimed infringing Services upon receipt of notice of an Infringement Claim; (iii) the indemnified party permitting indemnifying party to have the sole right to control the defense and settlement of any such claim (provided that the indemnifying party may not settle any claim without the indemnified party’s consent unless the settlement unconditionally releases the indemnified party from all liability); (iv) the indemnified party providing reasonable assistance to the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; (v) the indemnified party not entering into any settlement agreement or otherwise settling any such claim without indemnifying party’s express prior written consent or request (except as set forth in (iii) above); and (vi) the indemnified party complying with any settlement or court order made in connection with the claim (e.g., related to the future use of any infringing materials). For clarity, the indemnified party may participate in the defense or settlement of a claim with counsel of its own choice and at its own expense.
- LIMITATION ON LIABILITY
EXCEPT IN CONNECTION WITH EITHER PARTY’S (I) INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT, (II) YOUR PAYMENT OBLIGATIONS PURSUANT TO SECTION 7 (FEES), (III) BREACH OF SECTION 5.3 (YOUR RESPONSIBILITIES), (IV) BREACH OF SECTION 5.4 (YOUR RESTRICTIONS), OR (V) BREACH OF SECTION 12 (DATA PROTECTION), EACH OF OUR LIABILITY UNDER THESE TERMS OF SERVICE WILL BE LIMITED AS FOLLOWS:
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE IS LIMITED TO THE SUM OF THE AMOUNTS PAID BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE RESPONSIBLE FOR LOST PROFITS, REVENUES, DATA, FINANCIAL LOSSES,OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THESE TERMS OF SERVICE. IN ALL CASES NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU, IN WHICH CASE OUR LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
- DATA PROTECTION
12.1. YOUR OBLIGATIONS
You will comply with all applicable privacy, data protection, anti-spam and other laws, rules, regulations and guidelines relating to protection, collection, use and distribution of Personal Information (as defined below). If required by applicable data protection legislation or other law or regulation, you will inform third parties that you are providing their Personal Information to us for processing and will ensure that any required third parties have given their consent to such disclosure and processing. “Personal Information” means any information that identifies, relates to, describes, or can be reasonably associated with or traced to, directly or indirectly, a individual or household, including an individual’s name, address, telephone number, e-mail address, credit card information, social security number or other similar specific factual information, regardless of the media on which such information is stored (e.g., on paper or electronically).
12.2. SERVICE PROVIDER CERTIFICATION
This Section 12.2 applies only where, and to the extent that, ELUX Services LLC processes Personal Information that is subject to the California Consumer Privacy Act (“CCPA”) on your behalf as a service provider (as defined in the CCPA) in the course of providing the Services. ELUX Services LLC shall not (i) sell (as defined in the CCPA) any Personal Information; (ii) retain, use, or disclose any Personal Information for any purpose other than for the specific purpose of performing the Services, including retaining, using, or disclosing any Personal Information for a commercial purpose (as defined in the CCPA) other than for such specific purpose; or (iii) retain, use, or disclose any Personal Information outside of the direct business relationship between ELUX Services LLC and you. ELUX Services LLC certifies that it understands and will comply with the restrictions set out in this Section 12.2.
- OWNERSHIP DISPUTES
Ownership of a database associated with the Services is sometimes disputed between one or more parties. While we will have no obligation to do so, we reserve the right, at any time and in our sole discretion, with or without notice to you, to determine rightful database ownership and to transfer a database to the rightful owner. If we can’t reasonably determine the rightful owner, we reserve the right to suspend access to a database until the disputing parties reach a resolution. We also may request joint instructions or certain documentation from the disputing parties, such as a government-issued photo ID, a credit card invoice or a business license, to help determine the rightful owner.
- CUSTOMER INTERACTIONS
14.1 CUSTOMER RESEARCH
We frequently engage with our customers, and may engage with our customers’ customers or other third parties related to our customers, to understand how they interact with our Services and how to better develop our Services to meet their collective and ever-evolving needs. While transparency and candor are key to that process, you acknowledge and agree that you will not improperly use or disclose to us any confidential information or trade secrets of any third parties, and will not breach any obligation of confidentiality that you may have to any third party. You further acknowledge and agree that no jointly owned intellectual property shall be created as a consequence of our customer or third party engagement process or practices, and that ELUX Services LLC owns all right, title and interest in and to its intellectual property.
14.2 OWNERSHIP OF FEEDBACK
You and your authorized users may from time to time provide suggestions, comments, ideas or other feedback (“Feedback”) to us with respect to the Services. You agree that we are free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
14.3 SERVICES TO YOUR CUSTOMERS
Certain of our Services, such as our Online Portal, may make available to your tenants, homeowners, or other customers certain services and products, such as renters insurance. You acknowledge and agree that we make available, through licensed subsidiaries and otherwise, such services and products to your customers. Furthermore, any information that we make available to you about renters insurance is for informational purposes only and is not a solicitation or offer. You acknowledge and agree that renters insurance is offered by ELUX Services LLC is not a licensed insurance producer. Any questions regarding and requests to purchase renters insurance should be directed only to ELUX Services LLC management team.
- THIRD PARTY PRODUCTS AND SERVICES
15.1 THIRD PARTY PRODUCTS AND SERVICES
The Services and our website may contain links to or integrations with products, services, and websites provided by third parties, which may include our affiliates or subsidiaries. You may choose to use such third-party products or services in connection with the Services, including Third-Party Applications (see Section 15.2, (AppFolio Stack Marketplace)), however, your receipt or use of any third-party products, services or Third-Party Applications, and the third parties’ use or access to any of your data, is subject to a separate agreement between you and the third-party provider. Once you enable or use third party products, services, or Third-Party Applications in connection with the Services, you consent to us allowing that third party provider to access or use your data as required for the interoperation of their products and services with the Services. Such access and use by third-party providers may include transmitting, transferring, deleting, or modifying your data, or storing your data on systems belonging to that third-party provider and their vendors. You acknowledge and agree that this access and use of your data by a third-party provider is subject to the applicable agreement between you and that third party provider. ELUX Services LLC makes no guarantee that any third-party products, services, or Third-Party Applications will work properly with the Services or that third party products, services, or Third-Party Applications will continue to work with the Services as they change over time.
15.2 APPFOLIO STACK MARKETPLACE
We provide a variety of integrations with third-party products and services and the Services through our AppFolio Stack Marketplace (“Third-Party Applications”). Third-Party Applications are not ELUX Services LLC Services and remain subject to their own applicable third-party providers’ terms. We may enable interoperation of the Services with Third-Party Applications as set forth in Section 15.1 above (Third-Party Products and Services). We may, at any time, remove any Third-Party Applications from the AppFolio Stack Marketplace and the third-party providers may also update, modify, or remove their own applications at any time.
15.3 DISCLAIMER OF LIABILITY
ELUX Services LLC has no liability or responsibility whatsoever for any third-party provider’s websites, products, services, or Third-Party Applications, including their accuracy, reliability, availability, security, data handling, data processing, completeness, usefulness, or quality, even if ELUX Services LLC has reviewed, certified, or approved the product, service, or Third-Party Application for use in connection with the Services. Use of third-party websites, products, services, or Third-Party Applications is at your sole discretion and risk, and you are solely responsible for your decision to permit any third-party provider to use or access your data. The third-party provider is solely responsible for ensuring that any information submitted through their websites, products, services, or Third-Party Applications to the Services is accurate, complete, and correct. ELUX Services LLC is not responsible for the standards or business practices of any third-party provider and WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY WEBSITES, PRODUCTS, SERVICES, AND THIRD PARTY APPLICATIONS (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.
- GENERAL PROVISIONS
16.1 INDEPENDENT PARTIES
No joint venture, partnership, agency or employment relationship exists between you and AppFolio. You are solely responsible for managing your employees and for any and all compensation, taxes, benefits and liabilities to your employees and any of your other representatives or service providers.
You will not assign or transfer the Services or any of your rights and/or obligations under these Terms of Service without our prior written consent. We may without restriction assign or transfer our rights and/or obligation hereunder, at our sole discretion. Subject to the foregoing, these Terms of Service will bind to the parties’ respective successors and assigns.
16.3 FORCE MAJEURE
No failure, delay or default in performance of any obligation of a party will constitute an event of default or breach of these Terms of Service to the extent that such failure to perform, delay or default arises out of a cause that is beyond the control and without negligence of such party, including (but not limited to) natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; a local exchange carrier’s activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; failures of telecommunications providers or internet service providers; and failures of third party suppliers, service providers or vendors. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
16.4 APPLICABLE LAW
These Terms of Service and any dispute arising out of or relating to the Services and/or these Terms of Service will be interpreted in accordance with the laws of the State of California, without regard to conflict-of-law provisions. All disputes arising out of or related to these Terms of Service shall be subject to the exclusive jurisdiction and venue of the California state courts located in Santa Barbara, California and federal courts of the Central District of California (unless we both agree to some other location). We each hereby expressly consent to the personal and exclusive jurisdiction of such courts.
You agree that we will provide notices, statements and other messages to you in the following ways: (i) within the Service, or (ii) to the contact information you last provided us (e.g., e-mail, mobile number, physical address, etc.). You agree to keep your contact information up to date.
16.6 NO WAIVER; CUMULATIVE REMEDIES
Either party’s failure to enforce any right or provision under these Terms of Service will not constitute a waiver of that right or provision. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service are in addition to (and not exclusive of) any other remedies permitted at law or in equity.
If any provision of these Terms of Service is deemed invalid, then that provision will be limited or eliminated by the court to the minimum extent necessary, and the remaining provisions of these Terms of Service will remain in full force and effect.
16.8 ENTIRE AGREEMENT
These Terms of Service and (i) the terms you agree to set forth in order forms and online sign-up flows, (ii) the ELUX Services LLC Value+ Terms, (iii) the ELUX Services LLC Tenant Screening Terms, (iv) the ELUX Services LLC Payments Terms, (v) the ELUX Services LLC Website Terms, and (vi) any other policies applicable to your use of the Services that we make available to you (each of which is incorporated by reference into these Terms of Service) constitute the sole and entire agreement between you and us, and supersede all prior and contemporaneous oral or written understandings or agreements with ELUX Services LLC with respect to the Services. You acknowledge and agree that your agreement to these Terms of Service is not contingent upon the delivery of any future functionality or features not specified herein or in an order form or in the online sign-up flow, as applicable, or dependent upon any oral or written, public or private comments made by us with respect to future functionality or features for the Services. In the event of any conflict between the provisions in these Terms of Service and any order form (including, addenda thereto) or online sign-up flow, the terms of such order form or online sign-up flow will prevail.
Both parties agree to comply with applicable US export and import laws and regulations. You will not permit your users to access or use the Services in violation of any U.S. export embargo, prohibition, or restriction.
16.10 COPYRIGHT POLICY
AppFolio respects the intellectual property rights of others and asks that everyone utilizing the Services do the same. Anyone who believes that their work has been reproduced on the Services in a way that constitutes copyright infringement may notify us here.
- VALUE+ TERMS
Last Updated: October 5, 2022
If you subscribe to APM or APM PLUS, you have the ability to also subscribe to or use Value+ Services. Your use of all Value+ Services are governed by the Terms of Service. In addition, use of certain additional Value+ Services are also governed by the terms and conditions, as set forth below (the “Value+ Terms”). Capitalized terms used but not otherwise defined below shall have the meaning given in the Terms of Service. The Value+ Terms and Terms of Service are intended to be read and work together; however, in the event of any irreconcilable conflict between the Value+ Terms and the Terms of Service, the Value+ Terms shall prevail. If you do not subscribe to a Value+ Service, the Value+ Terms for that Service do not apply and shall not be enforced.
- SELF-GUIDED SHOWINGS
1.1 SELF-GUIDED SHOWINGS SERVICE
Our self-guided showing service allows prospective tenants to self-tour your properties (the “Self-Showing Service”). The Self-Showing Service is enabled from within ELUX Services LLC Property Manager, but is primarily furnished by one or more third party service providers (each, a “Self-Showing Service Provider”).
1.2 SELF-SHOWING SERVICE PROVIDER AGREEMENT
Before utilizing the Self-Showing Service, you must accept the relevant Self-Showing Service Provider terms of service (the “Self-Showing Service Provider Terms”), which constitute a legally binding contract directly between you and the Self-Showing Service Provider that governs your use of the Self-Showing Service.
To use the Self-Showing Service, you must purchase a digital lockbox and/or other necessary hardware, software, and/or other products or services from an ELUX Services LLC-supported Self-Showing Service Provider, pay the applicable fee to the relevant Self-Showing Service Provider and assign the digital lockbox (and/or other necessary hardware, software, or other products or services) to a unit advertised online through ELUX Services LLC Property Manager.
1.4 ROLE OF ELUX Services LLC
In the event that you choose to participate in the Self-Showing Service, you acknowledge and agree that (a) the Self-Showing Service is provided solely by the relevant Self-Showing Service Provider and is subject to the Self-Showing Service Provider Terms, and (b) the Services serve only as a conduit for the relevant Self-Showing Service Provider to offer the Self-Showing Service through the Services.
1.5 YOUR RESPONSIBILITY
You understand and acknowledge that we have no responsibility or liability with respect to (a) verification of persons who use the Self-Showing Service to gain access to your properties, (b) any use or abuse of the Self-Showing Service, (c) improper entry to a property, and/or (d) any malfunction of your digital lockbox.
- FOLIOGUARD™ SMART ENSURE
2.1 FOLIOGUARD™ SMART ENSURE
As part of the Services, we provide a legal liability to landlord software (“Smart Ensure”) as a tool to help you manage your liability insurance programs at your properties. This software program is not an insurance policy or insurance product. You understand and agree that we are only providing you a tool to help you more efficiently manage your insurance program at your properties, and that you are ultimately responsible for compliance with your policies and relevant laws and regulations.
Separate from Smart Ensure, we make available legal liability to landlord insurance (“LLLI”) by an A+ AM Best rated insurer through our business partner, Stern Risk Partners, LLC, a licensed insurance broker (“Broker”). If you elect to purchase LLLI from the Broker and agree to pay the applicable periodic premiums (“Premiums”), a commercial policy (“Policy”) will be issued to you by the insurance company through the Broker, which will extend coverage to reported residential dwelling units where your tenants reside (“Resident Units”). The Broker will provide you with the complete Policy upon completion of their on-line insurance application and their binding coverage. Any information that we make available to you about LLLI is for informational purposes only and is not a solicitation or offer. All services from the Broker and insurance company are their own. Once you reach the Broker, we are not involved and have no control over the Policy or Policies involved. You acknowledge and agree that LLLI is offered by the Broker and not through ELUX Services LLC. Any questions you have regarding and requests to purchase LLLI should be directed to the Broker. Once issued, you may administer your Policy through Smart Ensure.
You may use Smart Ensure to enroll Resident Units to your Policy (“Enrolled Units”). Resident Units not reported through Smart Ensure may not be covered by the Policy.
Further, Smart Ensure’s auto enroll feature will automatically enroll your Resident Units into your Policy that do not have proof of renters insurance coverage in AppFolio’s software, and un-enroll Enrolled Units that provide such proof. You certify that you are in compliance with these FolioGuard™ Smart Ensure terms in order for the proper functioning of this tool. You are responsible for the correct reporting of Resident Units to become Enrolled Units.
Per the Policy, coverage is limited to Enrolled Units. The Policy provides specific coverage for property damage to an Enrolled Unit by the occupying tenant (“Resident”) and is intended to satisfy the minimum liability insurance requirements of your residential lease agreement (“Lease”). You hereby expressly agree to not: (a) represent LLLI as a form of renters insurance or a suitable substitute for renters insurance, or as property insurance or a suitable substitute for property insurance, nor (b) misrepresent it in any other way. LLLI does not provide coverage for Resident contents or liability arising from bodily injury nor does it provide property damage coverage to property of anyone other than you. The Resident is not an insured or additional insured under LLLI. It is your responsibility to understand and refer to your Policy for coverage details, limitations, and exclusions.
You are the named insured (“Named Insured”) on the Policy and are responsible for payment of all Premiums associated with the Policy. You agree to pay the Premiums set forth in your Policy. There are no refunds for Premiums even if you elect to terminate your Policy early. You agree to maintain an electronic payment authorization with us and understand it will be used to facilitate your payment of the Premiums in full each month, regardless of your ability to recover fees from your Residents. You understand and agree that your payment of the Premiums will be due on the first of each month for all Enrolled Units during the preceding month and that overdue Premiums may result in cancellation by the insurance company of your Policy and no coverage. If you fail to pay the Premiums, the Broker and insurance company reserve the right to engage a collections agency to collect unpaid Premiums and you agree to pay all costs incurred in connection with the collection of past due amounts, including, without limitation, reasonable attorneys’ and collections agencies’ fees plus interest in an amount equal to the lesser of 1.0% per month or the maximum rate permitted by applicable law.
If you elect to charge a monthly Smart Ensure fee, such fee must be reasonable, as determined by us, the Broker, or insurance company in our sole discretion. You agree to clearly disclose any such fee that you may charge to your Resident(s). You will not charge one-off fees. Failure to abide by this requirement may result in cancellation by the insurance company of your Policy and/or we may terminate your access to Smart Ensure.
2.7 RECOVERABLE EXPENSES
You will not charge any fees to your Resident to recover the costs of your liability insurance program unless: (a) you have a signed Lease with the Resident that discloses (i) all minimum insurance requirements, and (ii) that coverage will be purchased by you upon Resident’s failure to provide evidence of minimum required insurance; and (b) you have allowed the Resident an opportunity, at Lease execution, to provide evidence that they have met such minimum insurance requirements. You will only enroll Resident Units into the LLLI in the event that the Resident has not provided evidence of minimum required insurance as required by your Lease. You will not enroll Resident Units into the LLLI if you know that the Resident has their own insurance meeting the minimum insurance requirement of your Lease. You will immediately cancel coverage for any Enrolled Unit upon receipt of evidence of Resident insurance meeting the minimum insurance requirement of your Lease. You understand your Policy may be canceled by the insurance company if you have not taken reasonable measures to meet this requirement, and/or we may terminate your access to Smart Ensure.
2.8 ADVERSE SELECTION
You will take reasonable measures to roll out LLLI to all eligible Resident Units not having insurance meeting the minimum insurance requirement of the Lease; without consideration to individual Residents. You acknowledge that your Policy may be canceled by the insurance company, or your access to Smart Ensure may be canceled by us, if you have not taken reasonable measures to meet this commitment.
2.9 ACCURATE INFORMATION
If you elect to apply for LLLI, you are responsible for electronically completing and submitting to the Broker an initial written application for consideration in their underwriting LLLI. We are not involved in this underwriting process and do not make a decision on your eligibility to obtain LLLI. You acknowledge that the Broker and insurance company may rely upon the validity, accuracy, and completeness of the information provided by you in your application for LLLI. Subsequent to the initial set-up of Smart Ensure to report LLLI, we may from time to time request that you provide updated information and supporting documentation to us (such as property complex names, addresses), which you will use best efforts to deliver to us within three (3) business days following our request. Failure by you to provide valid, complete, and accurate information and supporting documentation requested within a timely manner may result in cancellation of your Policy by the insurance company, and no coverage.
2.10 CONCEALMENT OR FRAUD
ELUX Services LLC will not provide access to Smart Ensure for reporting units to LLLI and the insurance company will not provide coverage under the Policy when you have: (a) intentionally concealed or misrepresented any material fact or circumstance, (b) engaged in fraudulent conduct, or (c) made false statements relating to any claim or the insurance coverage provided under the Policy.
2.11 RESIDENT NOTICE
It is your responsibility to communicate details of LLLI, including types and level of coverage provided under the Policy, to Residents occupying Enrolled Units. You do not need to provide Residents with any formal or customized certificates of insurance. A generic notice of insurance or statement of disclosure is available from the Broker in electronic and/or paper format summarizing relevant coverage terms under your Policy.
2.12 CONFLICT BETWEEN TERMS OF SERVICE AND POLICY
These Value+ Terms do not modify or amend in any way the terms of the Policy.
2.13 TERMINATION AND NON-COMPLIANCE
We may, at our sole discretion, restrict or remove your access to the LLI Software for violation of these Value+ Terms, or any related policies or guidelines.
- PREMIUM LEADS SERVICE
3.1 PREMIUM LEADS
Our leads service allows you to post your vacant listings to numerous listing sites and receive leads back via our guest card system, which records the web-submitted and telephone-submitted leads for your review (“Premium Leads”).
3.2 LEAD INFORMATION
All information you enter into Premium Leads (“Lead Information”) is solely your responsibility. We do not review or approve any Lead Information. You grant us a non-exclusive, worldwide, royalty-free right to publish, distribute, use, reproduce, and modify Lead Information. We reserve the right to modify, delete, omit, terminate or delay any Lead Information for violating these Value+ Terms.
3.3 VERIFIED LEADS
You will be charged for each Verified Lead. As used herein, “Verified Lead” means an individual that inquires about a property listing via (i) mobile application or web form, if such application or form results in you receiving three (3) or more of the following pieces of information, (a) individual’s name, (b) individual’s email, (c) individual’s’ phone, and (d) message; or (ii) telephone call or voicemail the duration of which is fifteen (15) seconds or longer. Notwithstanding the foregoing, once you are charged for a Verified Lead, you will not be charged for a subsequent Verified Lead by the same individual for the same property listing for a period of thirty (30) days following the date of the original Verified Lead.
3.4 REPRESENTATIONS AND WARRANTIES
In connection with your use of Premium Leads, you represent and warrant: (a) each property listed is an actual property that you own, manage, or have authorization to represent as a realtor or locator, (b) each listing includes a working phone number of the owner, agent or manager who can show the property to prospective renters, (c) the actual and accurate street address of each property is listed in the “Street Address” field, (d) the monthly rent amount listed for each unit equals at least the average monthly rent for the term of the lease, (e) the availability listed for each property is accurate as of the time each property is updated, (f) each property’s “Official Property Name” field only contains the true legal name of a property, not any form of property description, listing title, or marketing text, (g) each property’s “Nearest Intersection” field only contains two street names representing an intersection reasonably close to the property and does not contain any form of property description, listing title, or marketing text, and (h) you will not charge a fee to renters to view a rental list or charge a fee to view a property.
3.5 TELEPHONE RECORDING
You acknowledge and agree that when using the telephone call tracking feature in Premium Leads, the phone calls you receive may be recorded and made available for our review and to verify the validity of telephone leads.
3.6 PARTNER WEBSITES AND SERVICES
You acknowledge that we will share your listings with partner websites. When you update (or delete) your listing, we will update (or remove) your listing details in the data feeds to the partner websites. You understand that we do not own or manage any of the partner websites, and we have no responsibility for the actions or inactions of any other website, including causing a partner website to remove a listing.
- MAINTENANCE CONTACT CENTER AND SMART MAINTENANCE
4.1 MAINTENANCE SERVICES
If you subscribe to our Maintenance Contact Center or Smart Maintenance services (“Maintenance Services”) we will monitor telephonic, SMS message, and online maintenance requests from your tenants and arrange for service requests to be sent to your designated technicians.
Our Maintenance Services obligations are limited to receiving and responding to telephonic, SMS message, and online maintenance requests and for transmitting service requests to designated technicians. We are not responsible for any delayed response, work performed, or harm caused to persons or property by a dispatched technician. You are solely responsible for updating the contact information of all designated technicians.
We will notify you when a service request is dispatched to a technician. You are solely responsible for any subsequent correspondence or actions that may be required after initial service request dispatch.
4.4. AUTHORIZATION TO ACCEPT FEES
You acknowledge and agree that we are permitted to accept on your or your tenant’s, homeowner’s or owner’s behalf any and all fees required to initiate a service request (an “Initiation Fee”). You further acknowledge and agree that we will have no liability to you or your tenants, homeowners or owners for any Initiation Fee and you shall indemnify us upon demand for any Initiation Fee we may incur or be held responsible for.
- TENANT DEBT COLLECTIONS
5.1 THIRD PARTY COLLECTIONS SERVICE
You may elect to utilize a nationwide contingency-based tenant debt collection service provided directly by Hunter Warfield, Inc. (“Hunter Warfield”), a nationally licensed collections agency (the “Tenant Debt Collections Service”). The Tenant Debt Collections Service enables you to electronically submit past due tenant debt from the Services directly to Hunter Warfield for collections, and is available only for debts incurred under a residential lease (specifically, excluding HUD/Federally Assisted Accounts, commercial leases, HOA fees, and leases of active military personnel called to duty).
5.2 COLLECTIONS SERVICE AGREEMENT
Before utilizing the Tenant Debt Collections Service, you must first enter into a separate written agreement with Hunter Warfield (the “Collections Service Agreement”).
5.3 ROLE OF APPFOLIO
You acknowledge and agree that (a) the Tenant Debt Collections Service is performed solely by Hunter Warfield subject to the terms and conditions of the Collections Service Agreement, and (b) the Services are only a conduit for the submittal of past due tenant debt to Hunter Warfield and are in no way, either directly or indirectly, involved in or responsible for the debt collection process.
5.4 YOUR RESPONSIBILITY
You are solely responsible for tenant information and documentation stored in the Services and for its accuracy and completeness at the time past due tenant debt is submitted to Hunter Warfield.
- ARTIFICIAL INTELLIGENCE LEASING ASSISTANT (LISA)
6.1 COMMUNICATIONS WITH THIRD PARTIES
You are solely responsible for the accuracy, completeness, and compliance with laws of the communications and representations made to individuals by the artificial intelligence leasing assistant (“AI Assistant”) on your behalf. You acknowledge that you are solely liable for any harm that arises from those communications and representations.
The AI Assistant may be configured in different ways. Some configurations may have legal implications. For instance, obtaining or failing to obtain express consent to receive SMS messages from the AI Assistant may have implications under the Telephone Consumer Protection Act of 1991 and certain state laws. We encourage you to consult with your legal advisers on the configuration of the AI Assistant. You are solely liable for any failure to comply with applicable laws in connection with the elections you make in the configuration of the AI Assistant.
- MAILING SERVICE
7.1 MAILING SERVICE
Our mailing service is a self sign-up service which allows you to automate and receive a variety of mailers through a fully integrated solution within AppFolio (the “Mailing Service”).
All information you enter into the Mailing Service (“Mailers”) is solely your responsibility. We do not review or approve any Mailers or the content therein. You grant us a non-exclusive, worldwide, royalty-free right to publish, distribute, use, and reproduce Mailers in order to provide the Mailing Service.
7.3 PRODUCTION AND FEES
You understand and agree that upon submission to the Mailing Service, Mailers are considered final and are immediately processed for production and cannot be canceled, edited, or re-routed. You are responsible for all fees and applicable taxes, which are subject to change upon notice, for each Mailer submitted to the Mailing Service and any other features within AppFolio which utilizes the Mailing Service (such as bulk violations and delinquencies).
Once Mailers are transferred from the Mailing Service to the United States Postal Service (“USPS”), USPS is responsible for all timing, tracking, and delivery of the Mailers. All questions or disputes related to non-delivery, mis-delivery, or late delivery of Mailers must be addressed with USPS directly. USPS may adjust addresses or the final destination of Mailers pursuant to USPS’s internal processing and system requirements. You acknowledge and agree that ELUX Services LLC is not responsible for USPS’s actions or any delivery delays or failures.
- SECURITY DEPOSIT ALTERNATIVE SERVICE
8.1 SECURITY DEPOSIT ALTERNATIVE SERVICE
As part of the Services, you may choose to enable the security deposit alternative service provided by third party provider Obligo, Inc. (“Obligo”). Obligo’s security deposit alternative service provides you the ability to offer your tenants an alternative to paying a traditional security deposit at the time of move-in (“SDA Service”). Your use of the SDA Service is subject to the terms as set forth in Section 15 of the ELUX Services LLC Property Manager Terms Of Service (Third Party Products and Services) contained herein. To enable your use of the SDA Service, you must accept the relevant Obligo terms of services (“Obligo Terms”). You understand that the SDA Service is not an insurance offering.
8.2 ROLE OF APPFOLIO
In the event that you choose to enable the SDA Service, you acknowledge and agree that the Services serve only as a conduit for your access to the SDA Service. While you may manage and access components of the SDA Service from the Services, your access and use remains subject to the terms contained in the Obligo Terms. We are not a party to the Obligo Terms nor any other agreement between you, your tenants and Obligo, and we expressly disclaim all liability with respect to such agreements. We do not control and are not affiliates with Obligo, and have no responsibility or liability for any action or failure to act by Obligo.
8.3 YOUR RESPONSIBILITY
You understand and acknowledge that (a) we have no responsibility or liability with respect to any use or abuse of the SDA Service, (b) we do not provide the SDA Services and are not responsible for any security deposit amount, fee, or other sums connected to your use of the SDA Service, (c) we have no liability or obligations in the case of any data breach or otherwise compromised data as a result of your relationship with Obligo, (d) your sole recourse in such case of a data breach or other similar event will be against Obligo.
We may, in our sole discretion, suspend, cease providing and/or terminate your ability to access any of the Value+ Services the subject of these Value+ Terms at any time for any reason.
In addition to your indemnification obligations in the Terms of Service, you agree to defend, indemnify, and hold the ELUX Services LLC Parties harmless from any and all Costs arising out of or relating to your or your tenant’s or homeowner’s use of any of the Value+ Services the subject of these Value+ Terms.
III. TENANT SCREENING TERMS
Last Updated: July 21, 2022
If you subscribe to APM or APM PLUS, then you may elect to apply for our online tenant screening services (the “Screening Services”). Your use of the Screening Services is governed by the Terms of Service and the terms and conditions set forth below (the “Screening Terms”). Capitalized terms used but not otherwise defined below shall have the meaning given in the Terms of Service. The Screening Terms and Terms of Service are intended to be read and work together; however, in the event of any irreconcilable conflict between the Screening Terms and the Terms of Service, the Screening Terms shall prevail. If you do not apply for Screening Services, the Screening Terms do not apply and shall not be enforced.
- USE OF THE SCREENING SERVICES
1.1 PURPOSE; COMPLIANCE
You may use the Screening Services solely to screen prospective tenants (“Applicants”) for the purposes of making informed decisions about their suitability as a tenant. Your use of the Screening Services is subject to your compliance with these Screening Terms. In the event you fail to comply with these Screening Terms, as determined in our sole discretion, we may terminate your access to the Screening Services in whole or in part.
1.2 AUTHORIZED USE
Subject to your compliance with these Screening Terms and payment of all fees for the Screening Services, you are hereby authorized to request and use the criminal, eviction, employment, income, and/or credit information (collectively, the “Information”) of your Applicants solely to enable you to make informed decisions in the tenant screening process (“Permissible Purpose”). You certify and warrant that you will request and use the Information solely on Applicants and solely for the Permissible Purpose, and for no other purpose. In the event that you violate these Screening Terms or any related policies or guidelines, we reserve the right to restrict or terminate your access to the Screening Services.
1.3 END USER CERTIFICATION
1.3.1 Certification. You certify that you are an end-user of the Information (including, without limitation, the credit information) and that you will not resell, rent, lease, sublicense, deliver, display, distribute or otherwise transfer such Information to any third party, except as expressly required by applicable laws. You shall receive and maintain all Information in strict confidence and shall: (a) request the Information pursuant to the procedures prescribed by us; (b) request and use the Information solely for a certified one-time use for the Permissible Purpose; (c) not disclose the Information to any third party except, if required by applicable laws, to the subject of the Information in connection with an adverse action based on the Information; and (d) comply with all applicable laws, rules, regulations and guidelines in your use of the Information.
1.3.2 California Certification. You also certify that, under the Investigative Consumer Reporting Agencies Act (“ICRAA”), California Civil Code Sections 1786 et seq., and the Consumer Credit Reporting Agencies Act (“CCRAA”), California Civil Code Sections 1785.1 et seq., if you are located in the State of California, and/or your request for and/or use of the Information pertains to a California resident, you will do the following: (a) request and use the Information solely for a permissible purpose identified under California Civil Code Sections 1785.11 and 1786.12; (b) as required by California Civil Code Section 1786.16(a)(3), notify the Applicant in writing that an investigative consumer report and/or consumer credit report will be made regarding the Applicant’s character, general reputation, personal characteristics and mode of living, which shall include the name and address of the investigative consumer reporting agency that will prepare the report, as well as a summary of the provisions of California Civil Code Section 1786.22, no later than three days after the date on which the Information was first requested; (c) provide the Applicant a means by which he/she may indicate on a written form, by means of a box to check, that the Applicant wishes to receive a copy of any investigative consumer report and/or consumer credit report that is prepared as set out in California Civil Code Section 1786.16(b)(1); and (d) comply with California Civil Code Sections 1785.20 and 1786.40 if the taking of adverse action is a consideration, which shall include, but may not be limited to, advising the Applicant against whom an adverse action has been taken that the adverse action was based in whole or in part upon information contained in an investigative consumer report and/or consumer credit report, informing the Applicant in writing of the name, address, and telephone number of the investigative consumer reporting agency or consumer reporting agency, and provide the Applicant of a written notice of his/her rights under the ICRAA and the CCRAA.
You agree and warrant that the Information will not be used in violation of any applicable federal, state or local laws, rules, regulations or guidelines, including but not limited to the Fair Credit Reporting Act 15 U.S.C. 1681 et seq. (“FCRA”), Equal Credit Opportunity Act, the Fair Housing Act, Title VII of the Civil Rights Act of 1964 and any state or local law equivalent of such laws. You accept full responsibility for complying with all such laws and for using the Information you receive in a legally acceptable fashion. It shall be your sole responsibility to ensure that you are in full compliance with applicable laws and all of our policies and procedures before requesting or using any Information, and you understand that a failure to do so may subject you to civil or criminal liability. You acknowledge that you will be receiving credit information of the Applicants from one or more national credit bureaus (a “National Credit Bureau”). Being the recipient of consumer information, you are required to comply with the provisions of the FCRA and certify that you have received, read and understand the Obligations of Users under the FCRA and shall comply with the FCRA Requirements listed below.
1.5 APPLICANT CONSENT
You will obtain permission in writing from each Applicant before using the Screening Service to obtain any Information of such Applicant. You will collect separate permission in writing from each Applicant for each screening report which is run using the Screening Services that contain the Information (“Screening Report”). Each written permission is to be used one time only. If you wish to run an additional Screening Report on an Applicant, you must obtain an additional separate written permission. You will retain consent forms and any adverse action notices in your records in accordance with applicable laws. Further, you agree to provide copies of any and all of the foregoing materials to us upon our request.
1.6 INFORMATION SECURITY
You agree to have reasonable procedures for the fair and equitable use of the Information and to secure against unauthorized access, use, disclosure and loss. You agree to take reasonable security measures to protect the security and dissemination of the Information including, without limitation, restricting terminal access, utilizing passwords to restrict access to terminal devices, and securing access to, dissemination and destruction of electronic and hard copy reports. Without limiting the foregoing, you represent and warrant that you shall comply with the Access Security Requirements, listed below, as amended from time to time. You shall implement security breach notification procedures in accordance with applicable laws. In the event of a security breach, you shall immediately notify us in writing and comply with our compliance requirements and those of the National Credit Bureaus and under any applicable laws.
1.7 NO WARRANTIES
You understand that we obtain the Information reported through the Screening Service from various third party sources “AS IS,” and therefore are providing the information to you “AS IS.” You further agree that we cannot and will not, for the fee charged for the Screening Service, be an insurer or guarantor of the accuracy or reliability of the Information. You release us, our employees, our third party information providers, agents and independent contractors from liability for any loss or expense suffered as a result of any inaccuracy in the Information.
1.8 CERTAIN LIMITATION OF SCREENING SERVICES
Without limiting any part of Section 1.7 (No Warranties), you acknowledge and agree to the following express limitations of the Screening Services:
1.8.1. A part of the Screening Services are a search of United States databases of landlord-tenant and criminal records (“Public Records”). In certain situations, the availability of Public Records is limited by our compliance with federal, state, and local regulations and laws, as well as industry guidelines and best practices. We will not report or provide Public Records when not permitted by law, or contrary to industry guidelines and best practices as determined by us in our sole discretion.
1.8.2 We report Public Records with only a seven (7) year look back period.
1.8.3 There are certain courts and jurisdictions where Public Records are not made available through electronic means or certain Public Records are subject to additional costs. In such circumstances, we may not obtain such Public Records and report them to you.
1.8.4 We apply certain matching and filtering rules to Public Records before disclosing such Public Records on our Screening Reports. These rules include a requirement for certain information to be present and matched; the type and amount of information varies depending on the circumstances. At times, including where a name is identified by us as a “common name,” we require certain specific data to be present and matched before a Public Record can be reported on a Screening Report. This additional data and matching requirement is intended to help ensure Public Records are attributed to the correct individual. In cases where certain specific data is not available to meet our matching and filtering rules, the applicable Public Record will not be reported on Screening Reports.
1.9 NO LEGAL OPINION
We do not guarantee your compliance with all applicable laws in your use of the Information, and do not provide legal or other compliance related opinions upon which you may rely in connection with your use of the Information. You understand that any conversation or communication with our employees or representatives regarding searches, verifications or other services offered by us are not to be considered a legal opinion regarding such use. You agree that you will consult with your own legal or other counsel regarding the use of the Information, including but not limited to, the legality of using or relying on the Information.
All rental decisions will be made by you. You acknowledge and agree that we only apply your policies to the Information and provide preliminary recommendations as to actions concerning an Applicant. You further acknowledge and agree that all decisions whether or not to accept a particular Applicant, as well as the length of and terms of any rental, will be made by you. You are also solely responsible for setting your policies in line with federal, state and local laws and rules, and are solely responsible for reviewing the contents of any Screening Report provided and the Information contained therein before making a decision on an Applicant. We shall have no liability to you or any other person or entity for any acceptance of, or the failure to accept, an Applicant, or the terms of any such acceptance, regardless of whether or not your decision was based on recommendations, reports or other information provided to you by us.
1.11 RIGHT TO INSPECT
We may inspect your offices and records to verify qualification and compliance under these Screening Terms and applicable laws. In addition, you agree to supply any qualifying documents requested by us including, without limitation, documents to verify ownership of rental units and business and professional licenses. You agree to cooperate fully and unconditionally with us in any periodic reviews, audits or investigations of your compliance with the obligations under these Screening Terms and applicable laws.
1.12 DEATH MASTER FILE
1.12.1 Access to the Death Master File (“DMF”) as issued by the Social Security Administration requires an entity to have a legitimate fraud prevention interest or a legitimate business purpose pursuant to a law, governmental rule regulation, or fiduciary duty, as such business purposes are interpreted under 15 C.F.R § 1110.102(a)(1).
1.12.2 The National Technical Information Service has issued the Interim Final Rule for temporary certification permitting access to the DMF. Pursuant to section 203 of the Bipartisan Budget Act of 2013 and 15 C.F.R SS 1110.102, access to the DMF is restricted to only those entities that have a legitimate fraud prevention interest or a legitimate business purpose pursuant to a law, governmental rule regulation, or fiduciary duty, as such business purposes are interpreted under 15 C.F.R §1110.102(a)(1). As our screening reports may contain information from the DMF, we would like to remind you of your continued obligation to restrict your use of deceased flags or other indicia within any of our screening reports to legitimate fraud prevention or business purposes in compliance with applicable laws, rules, and regulations and consistent with your applicable FCRA (15 U.S.C. §1681 et seq) or Gramm-Leach-Bliley Act (15 U.S.C. §6801 et seq) use. Your continued use of the Screening Services affirms your commitment to comply with these Screening Terms and all applicable laws.
1.12.3 You acknowledge you will not take any adverse action against any consumer without further investigation to verify the information from the deceased flags or any other indicia within one of our screening reports.
1.12.4 Furthermore, you agree to notify ELUX Services LLCs Consumer Relations ([email protected]) should you observe any DMF information on one of our screening reports.
1.13 CERTIFICATION OF INFORMATION SECURITY PROGRAM
You certify that you shall implement and maintain a comprehensive information security program written in one or more readily accessible parts and that contains administrative, technical, and physical safeguards that are appropriate to your size and complexity, the nature and scope of your activities, and the sensitivity of the information provided to you by us; and that such safeguards shall include the elements set forth in 16 C.F.R. § 314.4 and shall be reasonably designed to (i) ensure the security and confidentiality of the information provided by us, (ii) protect against any anticipated threats or hazards to the security or integrity of such information, and (iii) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any consumer.
- FCRA REQUIREMENTS
2.1 FAMILIARITY WITH FCRA
The FCRA applies to you as a user of consumer information. We suggest that you and your employees become familiar with the following sections in particular: § 604. Permissible Purposes of Reports; § 607. Compliance Procedures; § 615. Requirement on users of consumer reports; § 616. Civil liability for willful noncompliance; § 617. Civil liability for negligent noncompliance; § 619. Obtaining information under false pretenses; § 621. Administrative Enforcement; § 623. Responsibilities of Furnishers of Information to Consumer Reporting Agencies; § 628. Disposal of Records. Each of these sections is of direct consequence to users who obtain reports on consumers.
2.1.1 As directed by the law, consumer reports may be issued only if they are to be used for extending credit, review or collection of an account, employment purposes, underwriting insurance or in connection with some other legitimate business transaction such as in investment, partnership, etc.
2.1.2 You certify that you have read the “Notice of Users of Consumer Reports, Obligations of Users” and that you have received a copy of the consumer rights summary as prescribed by the Consumer Financial Protection Bureau (“CFPB”) under § 609 of the FCRA.
2.1.3 You certify that under your FCRA duties outlined in Section 2.1, you will not take adverse action against a consumer based in whole or in part upon Information in a Screening Report without providing to the consumer to whom the Information relates an FCRA compliant adverse action letter, along with a written description of the consumer’s rights as prescribed by the CFPB.
2.1.4 We strongly endorse the letter and spirit of the FCRA. We believe that this law and similar state laws recognize and preserve the delicate balance between the rights of the consumer and the legitimate needs of commerce.
2.1.5 In addition to the FCRA, other federal and state laws addressing such topics as computer crime and unauthorized access to protected databases have also been enacted. As a user of consumer reports, we expect that you and your staff will comply with all relevant federal statutes and the statutes and regulations of the states in which you operate.
2.2 ACCESS SECURITY REQUIREMENTS
2.2.1 We must work together to protect the privacy and information of consumers. The following information security measures are designed to reduce unauthorized access to consumer information. It is your responsibility to implement these controls. If you do not understand these requirements or need assistance, it is your responsibility to employ an outside service provider to assist you. We reserve the right to make changes to these Access Security Requirements without notification. The information provided herewith provides minimum baselines for information security. The term “Authorized User(s)” means you, and your employees that you have authorized to view and utilize the Screening Services, and with respect to the access and use of Screening Reports, have been trained on your obligations under this agreement, and with relevant federal and state laws.
2.2.2 In accessing ELUX Services LLC’s Screening Services, you agree to follow these security requirements. These requirements are applicable to all systems and devices used to access, transmit, process, or store the Information:
2.2.3 Implement Strong Access Control Measures, including as follows:
(a) Do not provide your AppFolio user names/identifiers (user IDs) or user passwords to anyone. No one from AppFolio will ever contact you and request your password.
(b) Proprietary or third party system access software must authenticate Authorized Users before accessing the Information. Additionally, such systems should have AppFolio password(s) hidden.
(c) Ensure that passwords are not transmitted, displayed or stored in clear text.
(d) Authorized Users must change their AppFolio password immediately when: (i) any system access software is replaced by another system access software or is no longer used; (ii) the hardware on which the software resides is upgraded, changed or disposed of; or (iii) any suspicion exists of their password being disclosed to an unauthorized party.
(e) Protect Authorized Users’ AppFolio password(s) so that only key personnel know this sensitive information. Unauthorized personnel should not have knowledge of these password(s). User IDs and passwords shall only be assigned to Authorized Users based on least privilege necessary to perform job responsibilities.
(f) Create a separate, unique user ID for each user to enable individual authentication and accountability for access to AppFolio. Each Authorized User of the system access software must also have a unique login password.
(g) Ensure that Authorized User IDs are not shared, posted or otherwise divulged in any manner.
(h) Keep Authorized User passwords confidential.
(i) Develop strong passwords that are: (i) not easily guessable (i.e. your name or company name, repeating numbers and letters or consecutive numbers and letters); (ii) contain a minimum of eight (8) alpha/numeric characters for standard user accounts; and (iii) for interactive sessions (i.e. non system-to-system) ensure that passwords are changed periodically (every 90 days is recommended).
(j) Implement password protected screensavers with a maximum fifteen (15) minute timeout to protect unattended workstations. Systems should be manually locked before being left unattended.
(k) Active logins to credit Information systems must be configured with a thirty (30) minute inactive session timeout.
(l) Restrict the number of Authorized Users who have access to consumer information and ensure that only Authorized Users have access to Screening Reports and Information. Ensure that Authorized Users have a business need to access such information and understand these requirements to access such information are only for the permissible purposes listed in the permissible purpose information section of these Screening Terms.
(m) Authorized Users must NOT install Peer-to-Peer file sharing software on systems used to access, transmit or store consumer data.
(n) Ensure that you and your employees do not access your own Screening Reports or those reports of any family member(s) or friend(s). Screening Reports on any person may only be accessed for the purposes of prospective tenant screening, and not for any other means (employment background checks may not be run). Unauthorized access to Screening Reports may subject the user to civil and criminal liability under the FCRA punishable by fines and imprisonment.
(o) Implement a process to terminate access rights immediately for Authorized Users when those Authorized Users are terminated or when they have a change in their job tasks and no longer require access to the Information.
(p) Implement a process to perform periodic user account reviews to validate whether access is needed as well as the privileges assigned.
(q) Implement a process to periodically review user activities and account usage, ensure the user activities are consistent with the individual job responsibility, business need, and in line with contractual obligations.
(r) Implement physical security controls to prevent unauthorized entry to your facility and access to systems used to obtain consumer information. Ensure that access is controlled with badge readers, other systems, or devices including authorized lock and key.
2.3 MAINTAIN A VULNERABILITY MANAGEMENT PROGRAM
2.3.1 Keep operating system(s), firewalls, routers, servers, personal computers (laptop and desktop) and all other systems current with appropriate system patches and updates.
2.3.2 Configure infrastructure such as firewalls, routers, servers, mobile devices, personal computers (laptops and desktops), and similar components to industry best security practices, including disabling unnecessary services or features, removing or changing default passwords, IDs and sample files/programs, and enabling the most secure configuration features to avoid unnecessary risks.
2.3.3 Implement and follow current best security practices for computer virus detection scanning services and procedures:
(a) Use, implement and maintain a current, commercially available computer virus detection/scanning product on all computers, systems and networks, if applicable anti-virus technology exists. Anti-virus software deployed must be able to detect, remove, and protect against all known types of malicious software such as viruses, worms, spyware, adware, Trojans, and root-kits.
(b) Ensure that all anti-virus software is current, actively running, and generating audit logs; ensure that anti-virus software is enabled for automatic updates and performs scans on a regular basis.
(c) If you suspect an actual or potential virus, immediately cease accessing the system and do not resume the inquiry process until the virus has been eliminated.
2.4 PROTECT DATA
2.4.1 Develop and follow procedures to ensure that Information is protected throughout its entire information lifecycle (from creation, transformation, use, storage and secure destruction) regardless of the media used to store the Information (i.e., tape, disk, paper, etc.)
2.4.2 All Information is classified as confidential and must be secured to this requirement at a minimum.
2.4.3 Procedures for transmission, disclosure, storage, destruction and any other information modalities or media should address all aspects of the lifecycle of the Information. Information should not be stored on non-company owned assets such as personal computer hard drives, or portable and/or removable data storage equipment or media.
2.4.4 Encrypt all Information when stored or transferred on any system, including but not limited to laptops, mobile devices, personal computers, servers and databases using strong encryption such as AES256 or above. Do not ship hardware or software between your locations, or to third parties, without first deleting all Authorized User passwords and IDs, and any Information.
2.4.5 Information must not be stored locally on mobile devices.
2.4.6 When using mobile devices to access Information, ensure that such devices are protected via device pass-code.
2.4.7 Applications utilized to access Information via mobile devices must protect Information while in transmission such as SSL protection and/or use of VPN, etc.
2.4.8 Only open email attachments and links from trusted sources and after verifying legitimacy.
2.4.9 When no longer in use, ensure that hard-copy materials containing Information are crosscut shredded, incinerated, or pulped such that there is reasonable assurance the hard-copy materials cannot be reconstructed.
2.4.10 When no longer in use, electronic media containing Information is rendered unrecoverable via a secure wipe program in accordance with industry-accepted standards for secure deletion, or otherwise physically destroying the media (for example, degaussing).
2.5 MAINTAIN AN INFORMATION SECURITY POLICY
2.5.1 Develop and follow a security plan to protect the confidentiality and integrity of Information as required under the GLB Safeguard Rule.
2.5.2 Suitable to complexity and size of the organization, establish and publish information security and acceptable user policies identifying user responsibilities and addressing requirements in line with this document and applicable laws and regulations.
2.5.3 Establish processes and procedures for responding to security violations, unusual or suspicious events and similar incidents to limit damage or unauthorized access to information assets and to permit identification and prosecution of violators. If you believe Information may have been compromised, immediately notify ELUX Services LLC within twenty-four (24) hours.
2.5.4 The FACTA Disposal Rules requires that you implement appropriate measures to dispose of any sensitive information related to consumer reports and records that will protect against unauthorized access or use of that Information.
2.5.5 Implement and maintain ongoing mandatory security training and awareness sessions for all staff to underscore the importance of security within your organization.
2.5.6 When using third party service providers (e.g. application service providers) to access, transmit, store or process Information, ensure that service provider is compliant with a third party assessment program.
2.6 BUILD AND MAINTAIN A SECURE NETWORK
2.6.1 Protect Internet connections with dedicated, industry-recognized firewalls that are configured and managed using industry best security practices.
2.6.2 Internal private Internet Protocol (IP) addresses must not be publicly accessible or natively routed to the Internet. Network address translation (NAT) technology should be used.
2.6.3 Administrative access to firewalls and servers must be performed through a secure internal wired connection only.
2.6.4 Any stand-alone computers that directly access the Internet must have a desktop firewall deployed that is installed and configured to block unnecessary/unused ports, services and network traffic.
2.6.5 Change vendor defaults.
2.6.6 For wireless networks connected to or used for accessing or transmission of Information, ensure that networks are configured and firmware on wireless devices updated to support strong encryption (for example, IEEE 802.11i) for authentication and transmission over wireless networks.
2.7 REGULARLY MONITOR AND TEST NETWORKS
2.7.1 Perform regular tests on Information systems (port scanning, virus scanning, vulnerability scanning). Ensure that issues identified via testing are remediated according to the issue severity (e.g. fix critical issues immediately, high severity in 15 days, etc.).
2.7.2 Ensure that audit trails are enabled and active for systems and applications used to access, store, process, or transmit Information; establish a process for linking all access to such systems and applications. Ensure that security policies and procedures are in place to review security logs on a daily or weekly basis and that follow-up to exceptions is required. Maintain audit trail history for at least three (3) months.
2.7.3 Use current best practices to protect your telecommunications systems and any computer system or network device(s) you use to provide services hereunder to access ELUX Services LLC systems and networks. These controls should be selected and implemented to reduce the risk of infiltration, hacking, access penetration or exposure to an unauthorized third party by: (a) protecting against intrusions; (b) securing the computer systems and network devices; and (c) and protecting against intrusions of operating systems or software.
2.8 MOBILE AND CLOUD TECHNOLOGY
2.8.1 Storing Information on mobile devices is prohibited.
2.8.2 Mobile applications development must follow industry known secure software development standard practices such as OWASP and OWASP Mobile Security Project adhering to common controls and addressing top risks.
2.8.3 Mobile applications development processes must follow secure software assessment methodology which includes appropriate application security testing (for example: static, dynamic analysis, penetration testing) and ensuring vulnerabilities are remediated.
2.8.4 Mobility solution server/system should be hardened in accordance with industry and vendor best practices such as Center for Internet Security (CIS) benchmarks, NIS, NSA, DISA and/or other.
2.8.5 Mobile applications and data shall be hosted on devices through a secure container separate from any personal applications and data. See details below. Under no circumstances is the Information to be exchanged between secured and unsecured applications on the mobile device.
2.8.6 When using cloud providers to access, transmit, store, or process Information, ensure that: (a) appropriate due diligence is conducted to maintain compliance with applicable laws and regulations and contractual obligations, and (b) cloud providers must have gone through independent audits and are compliant with one or more of the following standards, or a current equivalent: (i) ISO 27001, (ii) PCI DSS, (iii) EI3PA, (iv) SSAE 18 – SOC 2 or SOC 3, Type 2, (v) FISMA, and (vi) CAI / CCM assessment.
2.9.1 We may from time to time audit the security mechanisms you maintain to safeguard access to Information, Information systems and electronic communications. Audits may include examination of systems security and associated administrative practices.
2.9.2 In cases where you are accessing Information and Information systems via third-party software, you agree to make available to ELUX Services LLC, upon request, audit trail information and management reports generated by the third party software, regarding individual Authorized Users.
2.9.3 You shall be responsible for and ensure that third party software, which accesses Information and/or Information systems, is secure, and protects this third party software against unauthorized modification, copy and placement on systems which have not been authorized for its use.
2.9.4 You shall conduct software development (for software which accesses Information and/or Information systems; this applies to both in-house or outsourced software development) based on the following requirements:
(a) Software development must follow industry known secure software development standard practices such as OWASP adhering to common controls and addressing top risks.
(b) Software development processes must follow secure software assessment methodology which includes appropriate application security testing (for example: static, dynamic analysis, penetration testing) and ensuring vulnerabilities are remediated.
(c) Software solution server/system should be hardened in accordance with industry and vendor best practices such as Center for Internet Security (CIS) benchmarks, NIS, NSA, DISA and/or other.
2.9.5 Reasonable access to audit trail reports of systems utilized to access systems shall be made available to ELUX Services LLC upon request, for example during breach investigation or while performing audits.
2.9.6 Data requests from you to ELUX Services LLC must include the IP address of the device from which the request originated, where applicable.
2.9.7 You shall report actual security violations or incidents that impact Information to ELUX Services LLC within twenty-four (24) hours. You agree to provide notice to ELUX Services LLC of any confirmed security breach that may involve Information related to the contractual relationship, to the extent required under and in compliance with applicable law. Telephone notification is preferred at 866.648.1536 or email to [email protected].
2.9.8 You acknowledge and agree that you (a) have received a copy of these requirements, (b) have read and understand your obligations described in the requirements, (c) will communicate the contents of the applicable requirements contained herein, and any subsequent updates hereto, to all Authorized Users and (d) will abide by the provisions of these requirements when accessing the Information.
2.9.9 You understand that your access to the Information is monitored and audited by ELUX Services LLC, without further notice.
2.9.10 You acknowledge and agree that you are responsible for all activities of your Authorized Users, and for ensuring that mechanisms to access Information are secure and in compliance with these Screening Terms.
2.9.11 When using third-party service providers to access, transmit, or store Information, additional documentation may be required by ELUX Services LLC.
2.9.12 ELUX Services LLC acknowledges that not all of these Access Security Requirements may apply in all circumstances.
2.10 EXPERIAN SPECIFIC SECURITY REQUIREMENTS
The following security requirements represent the minimum-security requirements acceptable to Experian, ELUX Services LLC’s provider of credit reports, RentBureau, and Experian Income Verification reports, and are intended to ensure that you have appropriate controls in place to protect information and systems, including any Experian information that you receive, process, transfer, transmit, store, deliver, and/or otherwise access. These security requirements are only required for Experian Information and are largely encompassed by the security requirements in this Section – FCRA Requirements. It is your responsibility to implement and comply with these Experian specific security requirements.
“Experian Information” means Experian highly sensitive information including, by way of example and not limitation, data, databases, application software, software documentation, supporting process documents, operation process and procedures documentation, test plans, test cases, test scenarios, cyber incident reports, consumer information, financial records, employee records, and information about potential acquisitions, and such other information that is similar in nature or as mutually agreed in writing, the disclosure, alteration or destruction of which would cause serious damage to Experian’s reputation, valuation, and/or provide a competitive disadvantage to Experian.
“Resource” means all of your devices, including but not limited to laptops, PCs, routers, servers, and other computer systems that store, process, transfer, transmit, deliver, or otherwise access the Experian Information.
2.10.2 You shall have industry standard information security policies and procedures in place, such as ISO 27002 and/or the standards within this section, which is aligned to Experian’s information security policy.
2.10.3 Resources (including physical, on premise or cloud hosted infrastructure) will be kept current with appropriate security specific system patches. You will perform regular penetration tests to further assess the security of systems and resources. You will use end-point computer malware detection/scanning services and procedures.
2.10.4 Logging mechanisms will be in place sufficient to identify security incidents, establish individual accountability, and reconstruct events. Audit logs will be retained in a protected state (i.e., encrypted, or locked) with a process for periodic review.
2.10.5 You will use security measures, including anti-virus software, to protect communications systems and network devices to reduce the risk of infiltration, hacking, access penetration by, or exposure to, an unauthorized third-party.
2.10.6 You will use security measures, including encryption, to protect Experian Information in storage and in transit to reduce the risk of exposure to unauthorized parties.
2.10.7 All remote access connections to your internal networks and/or computer systems will require authorisation with access control at the point of entry using multi-factor authentication. Such access will use secure channels, such as a Virtual Private Network (VPN).
2.10.8 Processes and procedures will be established for responding to security violations and unusual or suspicious events and incidents. You will report actual or suspected security violations or incidents that may affect Experian to Experian within twenty-four (24) hours of your confirmation of such violation or incident.
2.10.9 Each user of any Resource will have a uniquely assigned user ID to enable individual authentication and accountability. Access to privileged accounts will be restricted to those people who administer the Resource and individual accountability will be maintained. All default passwords (such as those from hardware or software vendors) will be changed immediately upon receipt.
2.10.10 All passwords will remain confidential and use ‘strong’ passwords that expire after a maximum of 90 calendar days. Accounts will automatically lockout after five (5) consecutive failed login attempts.
2.10.11 You shall require all your personnel to participate in information security training and awareness sessions at least annually and establish proof of learning for all personnel.
2.10.12 You shall be subject to remote and/or onsite assessments of your information security controls and compliance with these Security Requirements.
2.11 RECORD RETENTION
2.11.1 The Federal Equal Credit Opportunities Act (“ECOA”) states that a creditor must preserve all written or recorded information connected with an application for 25 months. In keeping with the ECOA, ELUX Services LLC requires that you retain the credit application and, if applicable, a purchase agreement for a period of not less than 25 months. When conducting an investigation, particularly following a breach or a consumer complaint that your company impermissibly accessed their credit report, ELUX Services LLC will contact you and will request a copy of the original application signed by the consumer or, if applicable, a copy of the sales contract.
2.11.2 Under Section 621(a)(2)(A) of the FCRA, any person that violates any of the provisions of the FCRA may be liable for a civil penalty of not more than $3,500 per violation.
- ADDITIONAL TERMS RELATING TO FICO SCORES
3.1 In the event we make available to you (which we may elect to do in our sole discretion), certain credit scoring services known as “Experian/Fair Isaac Model” the terms in this Section 3 shall apply.
3.2 We purchase Experian/Fair Isaac Model for resale of the Scores and reason codes to you as an end-user of the information. Experian/Fair Isaac Model is an application of a risk model developed by Fair Isaac Corporation (“Experian/Fair Isaac”) which employs a proprietary algorithm and which, when applied to credit information relating to individuals with whom you have a credit relationship or with whom you contemplate entering into a credit relationship will result in a numerical score (“Score” or, collectively, “Scores”); the purpose of the models being to rank said individuals in order of the risk of unsatisfactory payment.
3.3 AppFolio is reselling the Scores and reason codes to you subject to your strict compliance with the following provisions and payment of all applicable fees:
3.3.1 You warrant that you have a “permissible purpose” to obtain the information derived from the Experian/Fair Isaac Model under the FCRA, as it may be amended from time to time, and any similar applicable state fair credit reporting statute.
3.3.2 You shall limit your use of Scores and reason codes solely to use in your own business with no right to transfer or otherwise sell, license, sublicense or distribute said Scores or reason codes to third parties.
3.3.3 You agree that you will not publicly disseminate any results of the validations or other reports derived from the Scores without each of Experian’s or Fair Isaac’s express written permission. You agree to maintain internal procedures to minimize the risk of unauthorized disclosure and agree that such Scores and reason codes will be held in strict confidence and disclosed only to those of your employees with a “need to know” and to no other person.
3.3.4 Notwithstanding any contrary provision of these Screening Terms, you may disclose the Scores to credit applicants, when accompanied by the corresponding reason codes, in the context of bona fide lending transactions and decisions only.
3.3.5 You shall comply with all applicable laws and regulations in using the Scores and reason codes purchased from AppFolio, including, without limitation, the ECOA, Regulation B, and/or the FCRA, and you agree that the Scores will not be used for adverse action as defined by the ECOA or Regulation B, unless adverse action reason codes have been delivered to you along with the Scores.
3.3.6 You, your employees, agents or subcontractors are prohibited from using the trademarks, service marks, logos, names, or any other proprietary designations, whether registered or unregistered, of Experian Information Solutions, Inc. or Fair Isaac Corporation, or the affiliates of either of them, or of any other party involved in the provision of the Experian/Fair Isaac Model without such entity’s prior written consent.
3.3.7 Nothing contained in these Screening Terms shall be deemed to grant you any license, sublicense, copyright interest, proprietary rights, or other claim against or interest in any computer programs utilized by ELUX Services LLC, AppFolio, Experian and/or Fair Isaac or any third party involved in the delivery of the scoring services hereunder. You acknowledge that the Experian/Fair Isaac Model and its associated intellectual property rights in its output are the property of Fair Isaac. You may not attempt, in any manner, directly or indirectly, to discover or reverse engineer any confidential and proprietary criteria developed or used by Experian/Fair Isaac in performing the Experian/Fair Isaac Model.
3.3.8 By providing Scores to you under these Screening Terms, ELUX Services LLC grants to you a limited license to use information contained in reports generated by the Experian/Fair Isaac Model solely in your own business with no right to sublicense or otherwise sell or distribute said information to third parties. Before directing AppFolio to deliver Scores to any third party, you agree to enter into a contract with such third party that (1) limits use of the Scores by the third party only to the use permitted to you, and (2) identifies Experian and Fair Isaac as express third-party beneficiaries of such contract.
3.3.9 You hereby release and hold harmless ELUX Services LLC, Fair Isaac and/or Experian and their respective officers, directors, employees, agents, sister or affiliated companies, and any third-party contractors or suppliers of ELUX Services LLC, Fair Isaac or Experian from liability for any damages, losses, costs or expenses, whether direct or indirect, suffered or incurred by you resulting from any failure of the Scores to accurately predict that a consumer will repay their existing or future credit obligations satisfactorily.
3.3.10 The aggregate liability of Experian/Fair Isaac to you is limited to the lesser of the fees paid by ELUX Services LLC to Experian/Fair Isaac for the Experian/Fair Isaac Model resold to you during the six (6) month period immediately preceding your claim, or the fees paid by you to ELUX Services LLC under the resale contract during said six (6) month period, and excluding any liability of Experian/Fair Isaac for incidental, indirect, special or consequential damages of any kind.
3.3.11 You agree to indemnify, defend, and hold each of ELUX Services LLC, Experian and Fair Isaac harmless from and against any and all claims, suits, proceedings, investigations, damages, losses, expenses, costs, and any and all other liabilities (including reasonable attorneys’ fees and court costs and expenses) arising out of or resulting from any nonperformance by you of any obligations to be performed by you under these additional terms and conditions, provided that ELUX Services LLC and/or Experian/Fair Isaac have given you prompt notice of, and the opportunity and the authority (but not the duty) to, defend or settle any such claim. You shall not agree to any settlement without the prior written consent of ELUX Services LLC, Experian and Fair Isaac.
3.3.12 You acknowledge that the Scores result from the joint efforts of Experian and Fair Isaac. You further acknowledge that each Experian and Fair Isaac have a proprietary interest in said Scores and agree that either Experian or the Fair Isaac may enforce those rights against you as third party beneficiaries of these additional terms and conditions as they may desire.
- ADDITIONAL TERMS RELATED TO VANTAGESCORE CREDIT SCORE
4.1 In the event we make available to you (which we may elect to do in our sole discretion), certain credit scoring services known as “VantageScore Credit Score” the terms in this Section 4 shall apply. We purchase the VantageScore Credit Score for resale to you as an end-user of the information. The VantageScore Credit Score interprets credit information relating to individuals with whom you have a credit relationship or with whom you contemplate entering into a credit relationship, to better inform your decisions in that relationship.
4.2 AppFolio is reselling the VantageScore Credit Score and reason codes to you subject to your strict compliance with the following provisions and payment of all applicable fees:
4.2.1 You warrant that you have a “permissible purpose” to obtain the information derived from the VantageScore Credit Score under the FCRA, as it may be amended from time to time, and any similar applicable state fair credit reporting statute.
4.2.2 You shall limit your use of VantageScore Credit Score and reason codes solely to use in your own business with no right to transfer or otherwise sell, license, copy, reuse, disclose, sublicense or distribute said VantageScore Credit Score or reason codes to third parties. You shall not use the VantageScore Credit Score for model development or model calibration.
4.2.3 You agree that you will not publicly disseminate any results of the validations or other reports derived from the VantageScore Credit Score without Experian’s express written permission. You agree to maintain internal procedures to minimize the risk of unauthorized disclosure and agree that such VantageScore Credit Score and reason codes will be held in strict confidence and disclosed only to those of your employees with a “need to know” and to no other person.
4.2.4 Notwithstanding any contrary provision of these Screening Terms, you may disclose the VantageScore Credit Scores to credit applicants who are the subject of the VantageScore Credit Score, when accompanied by the corresponding reason codes; to government regulatory agencies when approved in writing by Experian; or as required by law.
4.2.5 You shall comply with all applicable laws and regulations in using the VantageScore Credit Scores and reason codes purchased from AppFolio, including, without limitation, the ECOA, Regulation B, and/or the FCRA, and you agree that the VantageScore Credit Scores will not be used for adverse action as defined by the ECOA or Regulation B, unless adverse action reason codes have been delivered to you along with the VantageScore Credit Scores.
4.2.6 You, your employees, agents or subcontractors are prohibited from using the trademarks, service marks, logos, names, or any other proprietary designations for VantageScore Credit Scores and VantageScore credit scoring models, whether registered or unregistered, of VantageScore Solutions, LLC, or the affiliates of either of them, or of any other party involved in the provision of the VantageScore Credit Scores without such entity’s prior written consent.
4.2.7 Nothing contained in these Screening Terms shall be deemed to grant you any license, sublicense, copyright interest, proprietary rights, or other claim against or interest in any computer programs utilized by ELUX Services LLC and/or Experian or any third party involved in the delivery of the scoring services hereunder. You acknowledge that the VantageScore Credit Scores and its associated intellectual property rights in its output are the property of VantageScore Solutions, LLC and Experian Information Solutions, Inc. You may not attempt, in any manner, directly or indirectly, to discover or reverse engineer any confidential and proprietary criteria developed or used by Experian in performing the VantageScore Credit Scores.
4.2.8 You agree to indemnify, defend, and hold each of ELUX Services LLC, Appfolio, and Experian harmless from and against any and all claims, suits, proceedings, investigations, damages, losses, expenses, costs, and any and all other liabilities (including reasonable attorneys’ fees and court costs and expenses) arising out of or resulting from any nonperformance by you of any obligations to be performed by you under these additional terms and conditions, provided that ELUX Services LLC, AppFolio and/or Experian have given you prompt notice of, and the opportunity and the authority (but not the duty) to, defend or settle any such claim. You shall not agree to any settlement without the prior written consent of ELUX Services LLC, AppFolio and Experian.
- ADDITIONAL TERMS RELATED TO INCOME VERIFICATION SERVICES
5.1 AppFolio’s Income Verification Service (IVS) reports are purchased from outside vendors for resale to you as the end-user of that information. In the event we make available to you (which we may elect to do in our sole discretion) income verification reports provided by Experian, through Finicity, and/or Work Number®, a service provided by Equifax Workforce Solutions LLC (a provider of Equifax Verification Solutions)(“EVS”), the terms in this Section 5 shall apply.
5.2 Experian Verification Reports (defined herein)
Experian, through Finicity, interprets Account Data relating to Applicants with whom you contemplate entering into a leasing agreement with and produces a Verification Report; the purpose of the Verification Report being to identify Applicant’s income streams, their frequency, and estimated annual income.
As used herein this Section 5.2 of the Screening Terms.
“Account Data” means data and other information collected using the Consumer Credentials from the Provider Services, which may include medical information (such as payment information related to the rendering of medical or healthcare services) and employment information (such as deposit information from an employer), for the creation of one or more Verification Reports, and any derivatives or modifications thereof, which can be provided in the format agreed to by Experian. Account Data (and all derivatives thereof, including the Verification Reports, as applicable) shall constitute the confidential information of Experian subject, at all times, to obligations of confidential treatment under the Agreement, and shall not be shared by you with, or accessed by, an affiliate, or any other third party, except as expressly provided herein.
“User Interface” means the user interface that will be used for the collection of Account Data by Finicity.
“Consumer Credentials” means the Applicant’s log-in credentials or other access information to the Provider Services that Finicity will use with the Applicant’s consent and at the Applicant’s direction for its access to the Provider Services for the purpose of collecting the Account Data and creating the Verification Reports and delivering the same to you.
“Finicity” means Finicity Corporation, the originating consumer reporting agency and provider of certain services related to the provision of the Account Data and Verification Reports. Finicity is an independent contractor of Experian, the ultimate provider of these services.
“Provider Services” means the online services or information that may be available to Applicants by providers, such as online banking, online payment, online investment account download, online bill pay, online trading and other account information made available by provider(s).
“Verification Report” is a report that identifies income streams, and estimates annual income of an individual Applicant, and identifies frequency of deposits and account owner based solely on the Account Data.
5.2.2 You agree the delivery of the Verification Report is contingent on:
(a) The collection of the Consumer Credentials through the User Interface;
(b) Applicant’s explicit consent for the (i) collection of the Consumer Credentials through the User Interface (on behalf of, and explicitly naming, Finicity); (ii) provision of the Consumer Credentials to Finicity through the User Interface; and (iii) retention and use of the Consumer Credentials, one-time (or more, as may be necessary for Finicity to comply with its obligations under applicable law), by Finicity; all of which shall be performed in order for Finicity to use the Consumer Credentials to access the Provider Services, and collect and aggregate the Account Data to: (x) deliver the Account Data to ELUX Services LLC, AppFolio, you, and other third parties to create the applicable Verification Reports, and deliver the same to ELUX Services LLC, AppFolio, you, and to other third parties, and (y) deliver the Account Data to Experian for use in accordance with all applicable laws, rules and regulations; and Finicity’s ability to access the Provider Services for the purpose of collecting and providing the Account Data, and to create and deliver each Verification Report.
5.2.3 You agree that Experian is not responsible for the provision of any Verification Report for any Applicant that does not provide his or her consent, Consumer Credentials, or required Applicant uploaded documentation, as applicable. In addition, Experian is not responsible for the inclusion of data from any Provider Services into any Verification Report if a provider of the Provider Services does not permit Finicity access to the Provider Services in order for Finicity to access, collect and use the Account Data for use as contemplated herein. You agree to provide ELUX Services LLC with your applicable permissible purpose code for each Verification Report you retrieve.
5.2.4 AppFolio is reselling the Verification Reports to you subject to your strict compliance with the following provisions and payment of all applicable fees:
(a) You may not be a reseller of the income verification services or Verification Report, or directly or indirectly charge a consumer any costs or fees, or accept any other payment or valuable consideration from a consumer, for prequalification or any information derived therefrom, including, without limitation, by offering the income verification services as the sole additional feature of a higher-priced service offering or as an incentive to or bundled with a fee-based offering.
(b) You may not use, or permit your respective employees, agents and subcontractors to use, the trademarks, service marks, logos, names or any other proprietary designations of Experian, whether registered or unregistered, without prior written consent from Experian. Experian reserves the right to review your press releases and other collateral, as needed, in order to limit the use of Experian’s name.
(c) You shall not advertise, represent, claim or infer that you can (a) remove accurate but negative information from the Applicant’s credit report or (b) help the Applicant restore a credit report or improve or enhance the consumer’s credit score, record, history or rating. You shall avoid the following terms: clear your credit, fix your credit, advice on correcting your credit, clean up your credit, repair your credit, guidance on how to correct your credit report, help to improve your score, etc.
(d) You agree that the income verification service (including all Verification Reports and Account Data) shall not be used, disclosed, transmitted, or accessed in any way outside the United States or its territories.
5.3 EVS The Work Number® (defined herein)
EVS’s The Work Number® is a service used to verify certain tenant screening related information provided by current and prior employers, including employment and income information (“EVS Tenant Screening Information”). You will be charged for the EVS Tenant Screening Information by AppFolio. Access to EVS Tenant Screening Information will only be available to you while you are an active customer of AppFolio, and continue to meet applicable credentialing requirements, Screening Terms, and the Terms of Services.
5.3.1 You will not disclose EVS Tenant Screening Information to the subject of the EVS Tenant Screening Information except as permitted or required by law, but will refer the subject to us. You will indemnify and hold us and our agents and service providers (including without limitation, Equifax Workforce Solutions LLC (a provider of Equifax Verification Solutions), a Missouri corporation (“EVS”)) harmless on account of any expense or damage arising or resulting from the publishing or other disclosure of EVS Tenant Screening Information by you, your employees or agents contrary to the Screening Terms, Terms of Service, or applicable law.
5.3.2 You will comply with all applicable laws, statutes and regulations regarding the EVS Tenant Screening Information. Where applicable, you will comply with Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. Sec. 6801 et seq. (“GLB”) and the implementing regulations issued thereunder and any other applicable statutes or federal laws, you will not use or disclose any of the EVS Tenant Screening Information other than in accordance with Section 6802(c) or with one of the General Exceptions of Section 6802(e) of the GLB and applicable regulations and all other Privacy Laws.
5.3.3 If we and/or EVS reasonably believe that you have violated Section 2 of the Screening Terms, we and/or EVS may, in addition to any other remedy authorized by the Terms of Service, with reasonable advance written notice to you, and at our and/or EVS’s sole expense, conduct, or have a third party conduct on its behalf, an audit of your network security systems, facilities, practices and procedures to the extent we reasonably deem necessary, including an on-site inspection, to evaluate your compliance with the data security requirements contained therein.
5.3.4 We and/or EVS may periodically conduct audits of you from time to time, during normal business hours, at all locations containing relevant records with ten (10) days prior notice regarding your compliance with the FCRA and other certifications in this Agreement. Audits will be conducted by email whenever possible and will require you to provide DocuSign documentation as to permissible use of particular EVS Tenant Screening Information. You shall (i) fully cooperate with and in such an audit, and (ii) promptly correct any discrepancy revealed by such audit. In addition, we will be required to provide EVS documentation indicating that we validated your legitimacy prior to the use of the EVS Tenant Screening Information, and we will also provide a copy of your agreement to use the EVS Tenant Screening Information. You give consent to us and EVS to conduct such audits and agree that any failure to cooperate fully and promptly in the conduct of any audit, or your material breach of these terms, constitute grounds for immediate suspension or termination of this service. If we terminate your access to the EVS Tenant Screening Information due to the conditions in the preceding sentence, you (i) unconditionally release and agree to hold us and EVS harmless and indemnify us and EVS from and against any and all liabilities of whatever kind or nature that may arise from or relate to such termination, and (ii) covenant you will not assert any claim or cause of action of any kind or nature against us or EVS in connection with such termination.
5.3.5 You acknowledge and agree that the EVS Tenant Screening Information described herein may be modified by EVS. Should EVS modify the EVS Tenant Screening Information, we will provide such revised terms of service to you, which will supersede prior versions. All modifications will be governed by the Terms of Service Section 2 – Modification of these Terms of Services.
- PAYMENTS TERMS
Last Updated: February 15, 2022
If you subscribe to APM or APM PLUS, then you may elect to apply for our payments services, as more fully described below (the “Payments Services”). If you apply for the Payments Services, you are responsible for completing and submitting an initial written application and supporting documentation about your business and financial status. We will rely upon the validity, accuracy and completeness of the information in your application and supporting documentation in determining, in our sole discretion, (i) if you meet our then-current underwriting criteria; and (ii) the credit and account processing standards and limits that will apply to your use of the Payments Services.
If your application is approved, your use of the Payments Services is governed by the Terms of Service, the terms and conditions set forth below (the “Payments Terms”), and the policies and guidelines we make available to you from time to time. Capitalized terms used but not otherwise defined below shall have the meaning given in the Terms of Service. The Payments Terms and Terms of Service are intended to be read and work together; however, in the event of any irreconcilable conflict between the Payments Terms and the Terms of Service, the Payments Terms shall prevail.
Subsequent to your initial acceptance and provision of the Payments Services, we may from time to time request you to provide updated information and supporting documentation to confirm your then-current business and financial status, which you shall deliver to us within three (3) business days of our request. Any failure to provide such information and supporting documentation within a timely manner or failure to satisfy our then-current underwriting criteria (as determined in our sole discretion) will be deemed a material breach of the Payments Terms and result in the termination of your right to use the Payments Services.
- CARD PAYMENT SERVICES
We will require you to provide information to verify your identity as a condition of providing you with access to the credit and debit card payment processing services (the “Card Services”). Such information may include a government-issued identification, such as a passport or driver’s license, a business license, your employer identification number (EIN), a valid U.S. credit card, a verified U.S. bank account, or other financial or personal information. We may make, directly or through third parties, any inquiries we consider necessary to validate information that you provide to us. We may also ask for permission to inspect your business location. If you refuse any of these requests or provide inaccurate, untrue, or incomplete information, we may suspend or terminate your use of the Card Services in our sole discretion. By accepting the Payments Terms, you specifically authorize us to request identity verifying information about you from third parties, including a consumer report that contains your name and address. You agree that we are permitted to contact and share information about you and your AppFolio account with Wells Fargo Bank (“Bank”), who serves as the sponsoring bank in connection with the Card Services, and other financial institutions. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the service, (c) to create and update our/and or their customer records about you and to assist us and/or them in better serving you, and (d) to conduct our risk management process.
1.2 ACCEPTABLE CARDS
The Card Services allow you to accept payments initiated with eligible credit and debit cards bearing the trademarks of Mastercard International Incorporated (“Mastercard”), DFS Services LLC (“DFS”) and Visa U.S.A., Inc. (“Visa” and together with Mastercard and DFS, the “Card Brands”). We may remove or add cards that are accepted via the Card Services at any time without prior notice.
1.3 OUR LIMITED ROLE
In connection with the Card Services, we merely collect and relay information and do not receive, take possession or custody of, or otherwise hold any funds on behalf of any third parties. We are a registered Independent Sales Organization of Bank.
1.4 APPOINTMENT OF BANK AND APPFOLIO AS YOUR AGENT
By accepting the Payments Terms, you hereby appoint Bank and AppFolio as your agent in connection with the Card Services for the limited purpose of processing amounts received (“Payments”) from users paying via the Card Services (“Payors”) on your behalf as payment for goods and/or services provided by you and transmitting such Payments to you. The foregoing agency appointment will remain in full force and effect while you use the Card Services. You agree that receipt of Payors’ Payments by AppFolio or Bank in connection with the Card Services pursuant to the Payments Terms constitutes receipt of Payments by you and therefore satisfies Payors’ respective payment obligations to you as if the Payors paid you directly, even if Payors’ Payments are never transmitted to you. Accordingly, you agree not to seek Payments from Payors in the event that you do not receive Payors’ Payments in connection with the Card Services.
If you use the Card Services to accept Payments owed to other individuals or entities for which you provide property management services (“Payees”), you represent and warrant that you have all requisite power, authorization, and authority to, among other things, (a) appoint AppFolio and Bank as each Payee’s agent for the limited purpose of processing Payors’ Payments on behalf of each Payee as payment for goods and/or services provided by the Payee and transmitting such Payments to you or the Payee; and (b) agree, on behalf of each Payee, that receipt of Payors’ Payments by AppFolio or Bank on the Payee’s behalf constitutes receipt of Payors’ Payments by the Payee and satisfies Payors’ respective payment obligations to the Payee as if the Payors paid the Payee directly, even if Payors’ Payments are never transmitted to you or the Payee.
Notwithstanding the foregoing, and for clarity, where a Payor itself disputes a payment previously made and prevails (i.e., a chargeback is permitted), you agree we do not have any obligation to take further action for you, unless otherwise required by applicable law or Card Brand Rules (as defined below).
1.5 RESTRICTED USE
You may use the Card Services only in accordance with, and subject to, the Payments Terms. You must comply with all applicable laws, rules, and regulations (“Applicable Law”), including, but not limited to, those applicable to your use of the Card Services. You may not act as a payment intermediary, aggregator or service bureau or otherwise resell the Card Services or use the Card Services to handle, process or transmit funds for any third party, except as expressly permitted by the Payments Terms. You also may not use the Card Services to process cash advances.
1.6 PROHIBITED TRANSACTIONS
You acknowledge and agree that you will not use the Card Services to accept Payments in connection with the following businesses or business activities (collectively, “Prohibited Transactions”), which we may revise from time to time: (i) adult products or services, such as adult book stores, video stores, toys; adult websites and content; adult entertainment (misc.); any products on the Internet containing graphic or nude content; audio (phone sex and adult phone conversations); companion/escort services; dating services (sexually-oriented); fetish products; illegal activity (e.g., child pornography, bestiality); massage parlors (sexually-oriented); membership, clubs, subscriptions; prostitution; gentleman’s clubs, topless bars, and strip clubs; and video (web-based sexually oriented video), (ii) airlines, (iii) bail bonds, (iv) bankruptcy lawyers, (v) bidding fee auctions (a/k/a penny auctions), (vi) business/investment opportunities operating as “get-rich-quick schemes” (e.g., real estate purchase with no money down), (vii) businesses physically located outside the U.S. (off shore acquiring), (viii) businesses selling age or legally restricted products or services (e.g., sale of alcohol) (ix) cell phones/pagers (billing for services only), (x) centralized reservation services, (xi) chain letters, (xii) charities without 501(c)(3) or equivalent status, (xiii) collection agencies or firms involved in recovering/collecting past due receivables, (xiv) counterfeit goods/replicas (e.g., knock-offs, imitations, bootlegs), (xv) credit repair/restoration or card protection (including identity theft protection), (xvi) cruiselines, (xvii) data pass (merchants up-selling or cross-selling products of other merchants and then sharing the cardholder data with the third party or receiving cardholder data from third parties), (xviii) debt consolidation and mortgage reduction/consulting services, (xix) decryption and descrambler products including mod chips, (xx) door-to-door sales, (xxi) drug paraphernalia, (xxii) embassy, foreign consulate, or other foreign government, (xxiii) essay mills/paper mills (i.e., ghost writing services that sell essays, term papers, etc. with the intent that the purchasers will submit documentation as their own), (xxiv) extended warranties, (xxv) fake references and other services/products that foster deception (including fake IDs and government documents), (xxvi) file sharing services, (xxvii) fortune tellers, (xxviii) gambling involving: legal gambling where the cardholder is not present when the bet is made, lotteries, illegal gambling, including Internet gambling, sports forecasting or odds making, (xxix) government grants, (xxx) illegal drugs, substances designed to mimic illegal drugs, and/or other psychoactive products (e.g., K2, salvia divinorum, nitrate inhalers, bath salts, synthetic cannabis, herbal smoking blends, herbal incense, and HCG/HGH-like substances), (xxxi) illegal products/services or any service providing peripheral support of illegal activities, (xxxii) jammers or devices that are designed to block, jam or interfere with cellular and personal communication devices/signals, (xxxiii) mail order spouse and international match-making services, (xxxiv) marijuana, marijuana products, marijuana services and marijuana-related businesses (excluding hemp), (xxxv) medical benefit packages, (xxxvi) membership/subscriptions in excess of one year (i.e., two year, three year, lifetime, etc.) (xxxvii) merchants engaged in activity prohibited by a Card Brand, (xxxviii) merchants engaged in any form of deceptive marketing practices, including, but not limited to: hidden disclosure, bogus claims and endorsements, pre-checked opt out boxes, refund/cancellation avoidance, and poorly disclosed negative options, (xxxix) merchants offering substantial rebates or special incentives (e.g., free gift, prize, sweepstakes, or contest) as an inducement to purchase products/services, (xl) merchants that have ransom-like or extortion-like basis for their business model (e.g., mug shot removal), (xli) merchants utilizing tactics to evade Card Brand excessive chargeback monitoring programs, (xlii) money service businesses, including: provider or seller of prepaid access/stored value, including both open-loop and closed-loop (closed-loop prepaid access includes gift cards, phone cards, subway cards, college campus cards, game cards and other limited-use prepaid access devices when the value can exceed $2,000) exceeding $2,000; money transmitters; wire transfer; quasi-cash; cash advances (by non-financial institutions); currency exchange or dealer; issuer/seller/redeemer of money orders or traveler’s checks; and check cashers, (xliii) multi-level marketing or pyramid schemes, (xliv) negative response marketing techniques by any type of merchant (i.e., customer is automatically charged if he/she does not return the merchandise at the end of a free trial period), (xlv) nutraceuticals (e.g., acai berry or health-related teas or drinks), (xlvi) payday loans and unsecure loan/lines originating from non-FDIC insured banks, (xlvii) prescription drug sales, (xlviii) products/services that promote hate, violence, harassment or abuse, (xlix) pseudo-pharmaceuticals (e.g., weight-loss, anti-aging, muscle-building, sexual-stimulant supplements, colon cleansers, and detox products), (l) security brokers, (li) shipping/forwarding brokers, (lii) social media “click farms” (i.e., the sale of clicks/likes/reviews/endorsements on social media sites), (liii) telemarketing companies involved with the following methods of operations: offering a free gift, prize, or sweepstakes/contest entry as an inducement to purchase their product or service; inbound telemarketing companies that receive calls as the result of post cards or similar mailings (as opposed to catalog or media advertising); or selling products/services as an agent for a third party, (liv) third-party payment processors/aggregators/payment service companies (e.g., bill pay service, crowd funding, peer-to-peer payments, digital wallets, commissary accounts) falling outside of Card Brand-approved requirements (Payment Facilitators), (lv) timeshare, (lvi) tobacco products (including cigarettes), (lvii) virtual currency that can be monetized, re-sold or converted to physical/digital goods/services or otherwise exit the virtual world, (lviii) weapons, ammunitions, and firearm parts, Internet/MOTO, (lix) animal and wildlife products classified as endangered or protected, (lx) bearer share entities, (lxi) shell banks, or (lxii) hate groups.
1.7 APPLICABLE CARD BRAND RULES
The Card Brands require that you comply with their applicable bylaws, rules, and regulations (“Card Brand Rules”), which are available at:
The Card Brands have the right to amend the Card Brand Rules. We may be required to change the Payments Terms in connection with amendments to the Card Brand Rules.
For clarity, please note that the Card Brand Rules may prohibit you from, among other things as set forth in the respective links above, (a) assessing a surcharge for the use of a card in connection with any transaction, and/or (b) dispensing cash on any card transaction.
1.8 ACCOUNT DEPOSITS
Subject to the payout schedule below and the Payments Terms, and once your designated bank account(s) (“Bank Account”) information is verified, Payments actually received by Bank for transactions submitted through the Card Services (less any applicable fees) will be deposited in your Bank Account. Funds for any given transaction will not be deposited until the transaction is deemed complete. Availability of funds deposited in your Bank Account will be determined by the financial institution that holds your Bank Account. You are responsible for monitoring your transactions and ensuring that payments to you in connection with the Card Services are correct. You must notify us of any errors in payments made to you within thirty (30) days of the error first appearing on your electronic transaction history. Failure to notify us of such an error will be deemed a waiver of any right to amounts owed to you.
1.9 STANDARD PAYOUT SCHEDULE
Once you validate your Bank Account, a transfer of funds will automatically be initiated to your Bank Account at the end of every business day, if and to the extent you are owed amounts hereunder. Payouts to your Bank Account will normally register within 3-4 business days of when the transaction is initiated.
1.10 AVAILABILITY OF FUNDS
Should we need to conduct an investigation or resolve any pending dispute related to your AppFolio database and/or your Bank Account, payout may be deferred or access to your funds may be restricted while we conduct such investigation and for up to 3 business days after. Payout may also be deferred or access to your funds may also be restricted as required by Applicable Law, court order, or Card Brand Rule or if otherwise requested by law enforcement or a governmental entity.
1.11 YOUR ACCOUNT HISTORY
When a payment is made to your Bank Account, we will update your AppFolio database and provide you a transaction confirmation. The confirmation will serve as your receipt. Summaries of your account activity, including monthly statements, are available through your AppFolio database. Except as required by Applicable Law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Bank Account and your use of the Card Services and (b) reconciling all transactional information that is associated with your Bank Account. If you believe that there is an error or unauthorized transaction activity is associated with your Bank Account, you must contact us immediately.
At any time and from time to time, payments to you may be suspended or delayed and/or we may designate an amount of funds that must be maintained in your Bank Account or in a separate reserve account to secure the performance of your payment obligations for the Card Services (the “Reserve”). We may require a Reserve for any reason, including without limitation, if you have a high rate of chargebacks (as defined below), refunds, or other indications of performance problems related to your use of the Card Services. The Reserve will be in an amount as reasonably determined by us to cover anticipated chargebacks, returns, unshipped merchandise and/or unfulfilled products or services or credit risk based on your processing history or such amount designated by Bank. The Reserve may be raised, reduced or removed at any time by us, in our sole discretion, based on your payment history, a credit review or otherwise as we or Bank may determine or require. If you do not have sufficient funds in your Reserve, the Reserve may be funded from any funding source associated with your AppFolio database, including, but not limited to, any funds (a) deposited by you, (b) due to you under the Payments Terms, or (c) available in your bank account or other payment instrument registered with us. You grant us a security interest in and lien on any and all funds held in any Reserve and also authorize us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under the Payments Terms, including, without limitation, for any reversals of deposits or transfers made to your Bank Account. You will execute any additional documentation required for us to perfect our security interest in any funds in the Reserve. This security interest will survive for as long as we hold funds in your Reserve.
1.13 REFUNDS AND RETURNS
By accepting payment card transactions through the Card Services, you agree to process returns of, and provide refunds and adjustments for, your services to your customers through your Bank Account in accordance with the Payments Terms, the Card Brand Rules and Applicable Law. The Card Brand Rules require you to: (a) maintain a fair return, cancellation or adjustment policy; (b) disclose your return or cancellation policy to customers at the time of purchase, (c) not give cash refunds to a customer in connection with a card transaction, unless required by law, and (d) not accept cash or any other item of value for preparing a card transaction refund. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original transaction data except by the exact amount required to reimburse the customer for postage that the customer paid to return merchandise. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the cardholder, you may still receive a chargeback relating to such transactions.
1.14 YOUR LIABILITY FOR CHARGEBACKS
The amount of a transaction may be reversed from or charged back to your Bank Account (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Card Brand, Bank, or a Payor’s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the Payments Terms.
1.15 OUR COLLECTION RIGHTS FOR CHARGEBACKS
For any transaction that results in a Chargeback, the Chargeback amount may be withheld in a Reserve. We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by the Card Brand or Bank from your Bank Account (including, without limitation, any Reserve), any proceeds due to you, or other payment instrument registered with us. If you have pending Chargebacks, payouts may be delayed to your Bank Account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, the amount of the potential Chargeback may be withheld from payments otherwise due to you under the Payments Terms until such time that: (a) a Chargeback is assessed due to a Payor’s complaint, in which case we will retain the funds; (b) the period of time under Applicable Law by which the Payor may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including, without limitation, attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all account deficit balances unpaid by you.
1.16 EXCESSIVE CHARGEBACKS
If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your AppFolio database, including, without limitation, by (a) establishing new processing fees, (b) creating a reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending your use of the Card Services.
1.17 CONTESTING CHARGEBACKS
You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Card Services. Towards that end, you permit us to share information about a Chargeback with the Payor, the Payor’s financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We may also share such information with other parties as permitted by Applicable Law or Card Brand Rules. If we decide, in our sole discretion, to contest a Chargeback, we may request additional transaction related information from you. Examples of when we may determine not to contest a Chargeback include (but are not limited to) instances where (i) there is insufficient or incomplete evidence to make a defense, or (ii) the Card Brand Rules preempt a fight. If the Chargeback is contested successfully, we will release the reserved funds to your Bank Account. If a Chargeback dispute is not resolved in your favor by the Card Brand or issuing bank or we choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in the Payments Terms. You acknowledge that Chargebacks are a risk associated with accepting payment by credit card. You further acknowledge that your failure to assist us in a timely manner where we choose to investigate and/or contest a Chargeback transaction, including, but not limited to, by providing necessary documentation within two (2) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.
1.18 OUR SET-OFF RIGHTS
To the extent permitted by law, we may set off against the amount of any obligation you owe us under the Payments Terms, including, without limitation, any Chargebacks. All fees will be charged at the time we process a transaction and are deducted first from the transferred or collected funds and thereafter from.
1.19 OUR PROCESSING ERRORS
We will attempt to rectify processing errors that you notify us of or that we discover. If the error resulted in your receipt of less than the correct amount to which you were entitled, your Bank Account will be credited for the difference. If the error results in your receipt of more than the correct amount to which you were entitled, the extra funds will be debited from your Bank Account. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
1.20 ACCESS TO CARDHOLDER DATA AND CARD DATA SECURITY
If and to the extent you get access to Cardholder Data (as defined below), you shall at all times be compliant with the Payment Card Industry Data Security Standards (PCI DSS) and Applicable Law and shall certify such compliance in accordance with the Card Brand Rules or when asked by ELUX Services LLC or AppFolio to do so. You shall also use only PCI-compliant service providers in connection with the storage or transmission of a cardholder’s account number, expiration date, and CVV2 (collectively, the “Cardholder Data”). You must not store CVV2 data at any time. If you receive Cardholder Data in connection with the Card Services, you shall not (i) use the Cardholder Data for any purpose other than for the Card Services, (ii) use the Cardholder Data for any purpose that you know or should know to be fraudulent or in violation of any Card Brand Rules, or (iii) sell, purchase, provide or exchange in any manner or disclose Cardholder Data to anyone other than the Card Brands or in response to a government request.
1.21 COMMERCIAL ENTITY USER AGREEMENT
This Commercial Entity User Agreement (“Commercial Entity Agreement” or “CEA”) is applicable to you if you use the Payments Services to process more than $1,000,000 through any one of Visa, Mastercard, Discover, JCB or Diners Club (the “Cards”) in a 12 month period.
YOU HAVE AGREED TO THE PAYMENTS TERMS, WHICH SET FORTH REQUIREMENTS REGARDING THE CARD SERVICES AND ARE INCORPORATED INTO THIS CEA BY REFERENCE.
BY ACCEPTING THE PAYMENTS TERMS, YOU CONSENT TO BE BOUND BY THIS CEA, WHICH CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND WELLS FARGO BANK, N.A. (“WELLS FARGO”) TO GOVERN THE AUTHORIZATION AND SETTLEMENT OF TRANSACTIONS CONDUCTED BETWEEN YOU AND YOUR CUSTOMERS USING THE CARDS THROUGH THE CARD SERVICES.
Any rights not expressly granted herein are reserved by Wells Fargo. Wells Fargo may terminate provision of credit and debit card processing services provided by Wells Fargo to AppFolio and you in connection with payments made to you through the Card Services and enforce any of the provisions of these Payments Terms that relate to the credit and debit card processing services provided by Wells Fargo. This CEA replaces any other CEA you may have already agreed to with AppFolio and Wells Fargo.
1.21.1 Purpose. When your customer pays you through the Card Services, he/she has the option of paying you through a funding source offered by AppFolio, including the Cards. Since you may be the recipient of a payment through a Card issued by the Card Brands, the Card Brands require that you enter into a direct contractual relationship with a bank who is a member of the Card Brands. By entering into this CEA, you are fulfilling the Card Brands’ rule of entering into a direct contractual relationship with a member bank, and you are agreeing to comply with the Card Brand Rules as they pertain to the Card payments you receive through the AppFolio Services.
1.21.2 Card Brand Rules. You agree to comply with all Card Brand Rules as may be applicable to you from time to time. You acknowledge that the Card Brands have established guidelines, merchant monitoring programs and reports to track merchant activity, such as excessive credits and chargebacks, and increased deposit activity. In the event you breach any Card Brand Rule, you may be subject to: (i) incremental chargebacks and/or fees; (ii) settlement delay or withholding; (iii) termination of your AppFolio user agreement and this CEA; or (iv) audit and imposition of fines. You agree to follow all requirements of this CEA in connection with each Card transaction and to comply with all applicable Card Brand Rules.
Without limiting the generality of the foregoing, you shall comply with the following requirements and restrictions:
(a) Deposit Transactions. You agree to accept Card payments through the Card Services only for bona fide transactions between you and your customer for your services or goods. You shall not submit a transaction for the refinance or transfer of an existing obligation that was uncollectible. You acknowledge that, for Card payments, AppFolio may obtain an authorization for transaction amounts prior to completing the transaction. You shall not request or use a cardholder’s information for any purpose other than to support payment for your services or goods.
(b) Minimum or Maximum Thresholds. You agree that you shall not set maximum transaction amounts or impose surcharges as a condition of honoring Card payments. Any minimum transaction amount must not be greater than $10 and can only be applied to cards issued in the United States or United States Territories.
(c) No Surcharges; Taxes. You may not add tax to any transaction unless so permitted by Applicable Law and, in such case, only if included in the transaction amount and not collected separately.
(d) Card Brands’ Marks. You are authorized to use the appropriate Card Brands’ logos or marks on your promotional materials and website (as applicable) only to indicate that Cards are accepted as funding sources for your transactions.
(e) Cash Advances. You shall not disburse or advance any cash to your customers (except as authorized by the Card Brands) or to yourself or any of your representatives, agents, or employees in connection with a transaction, nor shall you accept payment for effecting credits or issuing refunds to your customers.
(f) Discrimination. You agree that you shall not engage in any acceptance practice that discriminates against or discourages the use of Cards in favor of any other card brand.
(g) Access to Cardholder Data and Card Data Security. If and to the extent you get access to Cardholder Data, you shall at all times be compliant with PCI DSS and Applicable Law and shall certify such compliance in accordance with the Card Brand Rules or when asked by AppFolio to do so. You shall also use only PCI-compliant service providers in connection with the storage or transmission of Cardholder Data. You must not store CVV2 data at any time. If you receive Cardholder Data in connection with the Card Services, you shall not (i) use the Cardholder Data for any purpose other than to support Card payments for your services, (ii) use the Cardholder Data for any purpose that you know or should know to be fraudulent or in violation of any Card Brand Rules, (iii) sell, purchase, provide or exchange in any manner or disclose Cardholder Data to anyone other than Wells Fargo or Card Brands (as applicable) or in response to a government request.
(h) AppFolio Customer Identification. You agree to prominently and unequivocally inform your customers of your identity at all points of interaction. You must include the address of your permanent establishment at such points of interaction.
(i) Chargebacks. You shall use all reasonable methods to resolve disputes with your customers. Should a chargeback dispute occur, you shall promptly comply with all requests for information from AppFolio or Wells Fargo. You shall not attempt to recharge a customer for an item that has been charged back, unless the customer has authorized such actions.
(j) Refund Policy. Refund Policy. If you limit refund/exchange terms or other specific conditions for transactions, your policy must be clearly provided to your customers prior to the transaction, as part of the confirmation process, and in accordance with Applicable Law. Proper disclosure would include wording that is prominently displayed and states “NO REFUND” or something substantially similar and includes any special terms, including those required by Applicable Law. You acknowledge that qualifying your refund or exchange terms does not completely eliminate your liability for a refund because consumer protection laws and Card Brand Rules frequently allow the cardholder to still dispute these items.
(l) Limited Acceptance. Pursuant to the Card Brand Rules, you understand that you are allowed to limit your acceptance to either (i) only accept Non-PIN Debit transactions; or (ii) only accept Card transactions; however, by using the Card Services you are electing full acceptance.
(m) Recurring Transactions. If you permit recurring transactions, you must (i) obtain your customer’s consent to periodically charge the customer on a recurring basis for the services or goods purchased; (ii) retain this permission for the duration of the recurring services or goods and in accordance with any Applicable Laws, Card Brand Rules or other applicable rules, and provide it upon request to AppFolio, Wells Fargo or your customer’s Card issuing bank; and (iii) retain written documentation specifying the frequency of the recurring charge, the duration of time during which such charges may be made and the amount or range of amounts that may be charged. You must not submit any recurring transaction after receiving: (i) a cancellation notice from your customer (so long as such notice was timely provided, as determined in accordance with Applicable Law and Card Brand Rules); or (ii) notice from AppFolio, Wells Fargo or any Card Brand that the Card is not to be honored. In your transaction data, you should include an electronic indicator that the transaction is a recurring transaction.
1.21.3 Payment Instructions. You authorize and instruct Wells Fargo to allow AppFolio to direct all amounts due to you for credit or debit card processing through Wells Fargo. AppFolio will serve as your agent for purposes of directing your proceeds from credit and debit card-funded processing services.
1.21.4 Term and Termination. This CEA is effective upon the date you electronically agreed to or accepted the Payments Terms or otherwise agreed to this CEA (by “click-through” or otherwise), and shall remain effective so long as you use the Card Services. This CEA will terminate automatically upon any termination or expiration of your subscription to the Card Services, provided that those terms which by their nature are intended to survive termination (including indemnification obligations and limitations of liability) shall survive. This CEA may be terminated by Wells Fargo, at any time, based on (i) a breach of any of your obligations under this CEA or the Payments Terms or (ii) the termination of the payment processing relationship between AppFolio and Wells Fargo. Notwithstanding the above, Wells Fargo and/or AppFolio, at its sole discretion, may terminate this CEA at any time for any reason.
1.21.5 Indemnification. In addition to your indemnification obligations set forth in the Terms of Service, you agree to indemnify and hold AppFolio and Wells Fargo harmless from and against all losses, liabilities, damages and expenses resulting from and/or arising out of: (a) any breach of any warranty, covenant or agreement or any misrepresentation by you under this CEA; (b) your or your employees’ negligence or willful misconduct in connection with Card-funded transactions or otherwise arising from your provision of services to customers paying for such services through the Cards; (c) any third-party indemnification(s) AppFolio and/or Wells Fargo is obligated to make as a result of your actions (including indemnification of any Card Brand or your customer’s Card issuing bank); or (d) failure to comply with Applicable Law or Card Brand Rules.
1.21.6 Warranty Disclaimer. WELLS FARGO DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE OF THE SERVICES PROVIDED UNDER THIS CEA TO THE EXTENT PERMITTED BY LAW.
1.21.7 Limitation of Liability. Notwithstanding anything in this CEA to the contrary, in no event shall the parties hereunder, or their affiliates or any of their respective directors, officers, employees, agents or subcontractors, be liable under any theory of tort, contract, or strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, or exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. Notwithstanding anything in this CEA to the contrary, in no event shall Wells Fargo be liable or responsible for any delays or errors in Wells Fargo’s performance of the services caused by Wells Fargo’s service providers or other parties or events outside of Wells Fargo’s reasonable control, including AppFolio. Notwithstanding anything in this CEA to the contrary, AppFolio’s and Wells Fargo’s cumulative liability for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (including those arising out of or related to this CEA) and regardless of the form of action or legal theory and whether or not arising in contract or tort shall not exceed the fees paid to Wells Fargo under this CEA (net of Card Brand fees, third-party fees, interchange, assessments, penalties and fines) for the six (6) months prior to the time the liability arose, such amount not to exceed ten thousand dollars ($10,000).
The foregoing sentence shall not exclude or limit any liability of any party for death or personal injury caused by negligence or fraud, deceit or fraudulent misrepresentation, howsoever caused.
1.21.8 Governing Law; Arbitration. This CEA shall be governed by and construed in accordance with the laws of the State of California. Any dispute with respect to this CEA between you and Wells Fargo, including a dispute as to the validity or existence of this CEA and/or this clause, shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association. Venue for any such arbitration shall be Santa Barbara County, California.
1.21.9 Assignment; Amendments. This CEA may only be assigned in connection with a permitted assignment under the Payments Terms. Wells Fargo may assign its rights under this CEA without your consent. This CEA may be amended by you only upon mutual written agreement with Wells Fargo. Wells Fargo may amend this CEA at any time via AppFolio posting a revised version on the AppFolio website(s). The revised version will be effective at the time AppFolio posts it. In addition, if the revised version includes a substantial change, to the extent required by Applicable Law, Wells Fargo will provide you with 30 days’ prior notice of such change via AppFolio posting a notice on the AppFolio website(s). After such a notice is posted, you will be considered as having expressly consented to all changes to the CEA if you continue to use the Card Services. For the purpose of this CEA, a “substantial change” will be any change that involves a reduction to your rights or increases your responsibilities.
1.21.10 Waiver. The failure of a party to assert any of its rights under this CEA, including the right to terminate this CEA in the event of a breach or default by the other party, will not be deemed to constitute a waiver by that party of its right to enforce each and every provision of this CEA in accordance with its terms.
1.21.11 Relationship Between the Parties. No agency, partnership, joint venture or employment relationship is created between AppFolio’s customer and Wells Fargo by way of this CEA. In the performance of their respective obligations hereunder, the parties are, and will be, independent contractors. Except to the extent that AppFolio has been appointed as an agent of its customer, no party will bind, or attempt to bind, the other party to any contract or the performance of any obligation, and no party will represent to any third party that it has any right to enter into any binding obligation on the other party’s behalf.
1.21.12 Severability. Whenever possible, each provision of this CEA will be interpreted in such a manner as to be effective and valid under Applicable Law, but if any provision hereof will be prohibited by or determined to be invalid by a court of competent jurisdiction, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this CEA.
- ECHECK (ACH) PAYMENT SERVICES
2.1 ECHECK (ACH) SERVICES
2.1.1 Online Receivables
If you subscribe to the Payments Services, you may elect to apply for inbound eCheck (ACH) payment services for online receivables (“Receivables eCheck Services”). If we approve your application, we will make the Receivables eCheck Services available to you.
2.1.2 Online Payables
If you subscribe to the Payment Services, you may elect to apply for outbound eCheck (ACH) payment services for online payables (“Payables eCheck Services”, and, together with Receivables eCheck Services, the “ACH Services”). If we approve your application, we will make the Payables eCheck Services available to you.
Use of our Payables eCheck Services are subject to the terms of this Section 2 of the Payment Terms and that certain JHA Money Center, Inc. Online Payables eCheck Processing Services Agreement (the “eCheck Agreement”), which you executed during the online payments sign-up flow. If you require a copy of your eCheck Agreement, please contact Appfolio directly at [email protected]
As used in this Section 2 of the Payments Terms:
“ACH Transaction” means an electronic payment transaction originated by you or your Customer and processed through the ACH Network in the Federal Reserve System.
“Authorized Account” means the bank account or accounts as designated by you in your written application for ACH Services and/or additional bank accounts subsequently designated by you and communicated to us in writing.
“Customer” means, for purposes of this Section 2, your tenant or homeowner who submits a payment to you by means of an ACH Transaction.
“Entry” means a transaction submitted by you to us for processing by the ACH Services and further defined in the NACHA Rules.
“JHA” means Jack Henry & Associates, Inc., acting through either its (i) Profit Stars Division, our third-party payment processor for Receivables eCheck Services; or (ii) JHA Money Center, Inc. Division, our third-party payment processor for Payables eCheck Services, as applicable.
“NACHA” means the National Automated Clearing House Association.
“NACHA Rules” means the then-current rules, regulations and procedural guidelines published by NACHA and/or all regional payment alliances associated with NACHA.
“Originating Depository Financial Institution” or “ODFI” means the financial institution that receives the Entry from JHA and transmits the Entry to its ACH operator for transmittal to a Receiving Depository Financial Institution for debit or credit to your or your Customer’s account, as these terms are further defined in the NACHA Rules.
“Receiving Depository Financial Institution or RDFI” means a financial institution qualified to receive ACH Entries.
“Reject/Return” means the return of an original Entry that either could not be posted or was not able to be identified by the RDFI.
“Settlement Account” means a commercial demand deposit bank account which you have established for JHA’s access and use to settle financial payment transactions processed by JHA under the Payments Terms.
2.3 TRANSMITTAL OF ENTRIES; TIMING
You hereby authorize us to initiate ACH credits and debits and adjustments to the Authorized Account(s). This authorization will remain in effect after termination of the Payments Terms until all of your obligations to us and/or JHA have been paid in full. Confirmation from us of a credit or debit ACH transaction does not constitute a warranty that you will be paid for the transaction.
ACH files received by the processing deadline (imposed by the ODFI and the ACH operator) will be transmitted that day to the Federal Reserve Bank for settlement on the effective Entry day. Files received after the deadline will be transmitted to the Federal Reserve Bank on the next Banking Day as defined in the NACHA Rules. Notwithstanding the foregoing, delivery of funds may take up to five (5) business days to allow Reject/Return codes from the RDFI and the occurrence of Reject or Return codes due to your (or your Customers’) use of the ACH Services may result in delayed processing timelines as determined by AppFolio in its sole discretion.
2.4 EXPOSURE LIMITS
We reserve the right to cease providing you the ACH Services if we (in our sole discretion) determine that your use of the ACH Services results in an unacceptable volume of Rejects or Returns. Additionally, we reserve the right to determine adjustment of fees or potential reserves or terminate your right to use the ACH Services if we (in our sole discretion) determine that other factors may affect the risk of fraud or your instability.
2.5 RECOUPMENT AND SET-OFF
You shall immediately reimburse us and JHA, via a wire transfer, for any returns or shortfalls that occur in your Settlement Account. JHA reserves the right to delay the availability of funds for deposit without prior written notice to you if, in its sole discretion, JHA deems itself at financial or relative risk for any and all ACH Services performed under the Payments Terms.
You hereby acknowledge and agree that JHA shall have a right of setoff against: (i) any amounts JHA would otherwise be obligated to deposit into your account and (ii) any other amounts JHA may owe you under the Payments Terms.
2.6 REPRESENTATIONS AND WARRANTIES
2.6.1 We represent and warrant to you that the ACH Services will be performed consistent with ACH transaction processing industry standards and in accordance with the NACHA Rules and Applicable Laws. In the event that you discover an error in the ACH Services that has been caused by us or JHA, and you notify us of the existence and details of the error within 30 days of the posting of the transaction, we shall use commercially reasonable efforts to correct the error within a reasonable time.
EXCEPT FOR THE FOREGOING WARRANTY, WE MAKE NO OTHER WARRANTIES FOR THE ACH SERVICES AND DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE ACH SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
We do not guarantee the completeness or accuracy of the information provided from a third-party database. We shall have no liability to you for any invalid Customer information provided by you or Entries returned unpaid.
2.6.2 You represent and warrant to us that:
(a) all Entries submitted to us for processing will comply with Applicable Laws and the NACHA Rules;
(b) in connection with all activities covered by the Payments Terms, you will comply with (i) all NACHA Rules and (ii) all Applicable Laws, including, but not limited to, the Federal Fair Credit Reporting Act, Regulation E, Regulation CC, Articles 4 and 4A of the Uniform Commercial Code, the Electronic Fund Transfer Act and the sanctions programs administered by the Office of Foreign Assets Control (OFAC);
(c) all information you provide in your initial application and supporting documentation, and in all subsequent updates thereto, will be valid, complete, accurate and up-to-date when given;
(d) the individual(s) who sign and submit the application for the ACH Services, and all future updates to the application and supporting documentation, will have the legal authority to make and bind you to the agreements, warranties and commitments stated in the Payments Terms and the application submitted on your behalf;
(e) you have verified or will verify the accuracy of transactions processed or payments collected via the ACH Services;
(f) you have secured all necessary permissions, consents, licenses, waivers and releases for the processing of the ACH Services and each part thereof; and
(g) you will not generate transactions that violate any Applicable Law.
2.7 EXCLUDED SERVICES
It is our policy not to provide the ACH Services to any person or organization whose use of the ACH Services involves or pertains to any activity which is illegal under Applicable Law or involves an activity or business with which we decline to accept and conduct business generally (“Excluded Activity or Activities”). As such, you warrant that you will not use the ACH Services to conduct any of the Excluded Activities, which include but are not limited to the following: (a) check advance, check cashers or money services businesses (MSBs), (b) credit repair services, debt consolidation and forgiveness programs, (c) government grant or will-writing kits, (d) internet gambling or accepting payments in connection with internet gambling, (e) internet pharmaceutical sales, (f) internet tobacco or firearms sales, (g) magazine subscriptions, (h) organizations residing outside of North America or U.S. Territories, (i) outbound telemarketing, (j) payday, subprime loan business or predatory consumer lending businesses, (k) pornography or other sexually-oriented business, (l) prepaid vacation/timeshare solicitation services, (m) psychic or horoscope consultation services, (n) sweepstakes, (o) bank drafts, remotely created checks or electronically created payment orders, (p) international ACH transactions (IAT), (q) shell banks, (r) used car dealerships exporting cars, (s) foreign businesses importing cars, (t) title loan businesses, (u) embassy/foreign consulate/foreign mission accounts, (v) cannabis products, (w) crowdfunding, (x) consumer debt collection agencies, (y) cryptocurrency businesses, and (z) any other activity which we deem, in our sole discretion, to adversely reflect on our reputation.
You acknowledge that we reserve the right to reject any proposed Authorized Account or to refuse to process a transaction in connection with the use of the ACH Services in conjunction with any Excluded Activity, as determined in our sole discretion.
- CHECK SCANNING SERVICES
3.1 CHECK SCANNING SERVICES
If you subscribe to the Payments Services, you may elect to apply for check scanning services (“Check Scanning Services”). If we approve your application, we shall make the Check Scanning Services available to you.
As used herein in this Section 3 of the Payments Terms:
“Authorized Account” means the bank account or accounts designated by you in your written application for Check Scanning Services and/or additional bank accounts subsequently designated by you and communicated to us in writing.
“Bank of First Deposit” means the financial institution that originates a transaction on behalf of its customers.
“Check 21 Rules” means the rules and regulations pertaining to Transactions, including but not limited to the Check Clearing for the 21st Century Act or Check 21 Act.
“JHA” means Jack Henry & Associates, Inc., acting through its Profit Stars Division, our third-party payment processor for Check Scanning Services.
“Reject/Return” means any item, which cannot be processed and is being returned by the paying bank to the Bank of First Deposit for correction or re-initiation.
“Settlement Account” means a commercial demand deposit bank account which you have established for JHA’s access and use to settle financial payment transactions processed by JHA under the Payments Terms.
“Transaction” means a Check 21 debit transaction, including any data for such transaction.
3.3 TRANSMITTAL OF ENTRIES; TIMING
You hereby authorize us to initiate debits and adjustments to the Authorized Account(s). This authorization will remain in effect after termination of the Payments Terms until all of your obligations to us and/or JHA have been paid in full. Confirmation from us of a Transaction does not constitute a warranty that you will be paid for the Transaction. Neither AppFolio nor JHA shall be liable for any delay by the Federal Reserve System or paying bank in processing any Transaction that you originate or for the failure of any other parties to any Transaction to process or debit the Transaction.
3.4 EXPOSURE LIMITS
We reserve the right to cease providing you the Check Scanning Services if we (in our sole discretion) determine that your use of the Check Scanning Services results in an unacceptable volume of Rejects or Returns. Additionally, we reserve the right to determine adjustment of fees or potential reserves or terminate your right to use the Check Scanning Service if we (in our sole discretion) determine that other factors may affect the risk of fraud or your instability.
3.5 RECOUPMENT AND SET-OFF
You shall immediately reimburse us and JHA for any returns or shortfalls that occur in your Settlement Account. JHA reserves the right to delay the availability of funds for deposit without prior written notice to you if, in its sole discretion, JHA deems itself at financial or relative risk for any and all Check Scanning Services performed under the Payments Terms.
You hereby acknowledge and agree that JHA shall have a right of setoff against: (i) any amounts JHA would otherwise be obligated to deposit into your account and (ii) any other amounts JHA may owe you under the Payments Terms.
3.6 REPRESENTATIONS AND WARRANTIES
3.6.1 We represent and warrant to you that the Check Scanning Services will be performed consistent with applicable transaction processing industry standards and in accordance with Check21 Rules and Applicable Laws. In the event that you discover an error in the Check Scanning Services that has been caused by us or JHA, and you notify us of the existence and details of the error within 30 days of the posting of the transaction, we shall use commercially reasonable efforts to correct the error within a reasonable time.
EXCEPT FOR THE FOREGOING WARRANTY, WE MAKE NO OTHER WARRANTIES FOR THE CHECK SCANNING SERVICES AND DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE CHECK SCANNING SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
We do not guarantee the completeness or accuracy of the information provided from a third-party database.
3.6.2 You represent and warrant to us that:
(a) each Transaction will be accurate, timely, and authorized by the party whose account will be debited, and will otherwise comply with the Check21 Rules;
(b) in connection with all activities covered by the Payments Terms, you will comply with (i) all then-current Check21 Rules, and (ii) all Applicable Laws, including, but not limited to, the Electronic Fund Transfer Act, Regulation E, and Article 4A of the Uniform Commercial Code;
(c) each Transaction will be for the sum which, on the settlement date with respect to such Transaction, is owed to you from the party whose account will be debited;
(d) you will not use the Check Scanning Services to deposit any original paper check more than once;
(e) all checks processed using the Check Scanning Services will conform to the requirements of the Payments Terms and your deposit agreement with your bank; and
(f) you will review and validate the accuracy and completeness of the check data being captured by the Check Scanning Services, including, but not limited to, the amount of the check and the legibility of the check image generated.
3.7 SECURITY PROCEDURES
You must use the Check Scanning Services with operating systems which are either certified by JHA to operate with the Check Scanning Services or meet the minimum technical operating environment requirements published by JHA. You shall retain all original checks in a locked and secure environment until a completed Transaction is confirmed (which typically occurs in two weeks or less) after which time you shall shred original checks.
- BILL PAY SERVICES
4.1 BILL PAY SERVICES
If you receive Payments Services, you may elect to electronically submit check and invoice data to Jack Henry & Associates, Inc., acting through its Profit Stars Division (“JHA”), for check printing and mailing in connection with the payment of your bills or invoices (the “Bill Pay Services”). JHA will (a) format and laser print checks based on the data you submit utilizing laser MICR printers, (b) insert those checks into envelopes, and (c) deposit those checks with the U.S. Postal Service for standard mailing. Checks will be drawn on those bank accounts provided by you and which have been underwritten and credentialed as part of the Payments Services. Checks will bear the routing and account number of the associated financial institution. Undeliverable checks will be returned to your address. AppFolio and JHA shall have no responsibility with respect to returned items, and neither AppFolio nor JHA warrant or in any way guarantee payment to the proposed recipient of the funds.
4.2 REPRESENTATIONS AND WARRANTIES
We represent and warrant to you that the Bill Pay Services will be performed in a commercially reasonable manner. In the event that you discover an error in the Bill Pay Services that has been caused by us or JHA, and you notify us of the existence and details of the error within 30 days of the posting of the transaction, we shall use commercially reasonable efforts to correct the error within a reasonable time.
EXCEPT FOR THE FOREGOING WARRANTY, NEITHER WE NOR JHA MAKES ANY OTHER WARRANTIES FOR THE BILL PAY SERVICES AND WE HEREBY EXPRESSLY DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE BILL PAY SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
We shall have no liability to you for any invalid information provided by you or for any returned items.
You further warrant, represent and covenant to us that (a) you have verified or will verify the accuracy of information sent via the Bill Pay Services, (b) you have secured all the necessary permissions, consents, licenses, waivers and releases for the processing of the Bill Pay Services and each part thereof, and (c) you will not generate transactions that violate Applicable Law or applicable rules.
- CASH TRANSACTION PAYMENT SERVICES
5.1 CASH TRANSACTION PAYMENT SERVICES
If you subscribe to the Payments Services, you may elect to enable cash transaction payment services (“Cash Transaction Payment Services”). The Cash Transaction Payment Services are made available to you pursuant to an agreement between us and our third-party service provider, PayNearMe MT, Inc. (“PayNearMe”). PayNearMe is an intended third-party beneficiary of this Section 6 of the Payment Terms.
In connection with your use of the Cash Transaction Payment Services, you agree that: (a) PayNearMe, its payment locations, and we are authorized to receive cash payments on your behalf (i.e., act as agents for the limited purpose of receiving payments); (b) PayNearMe will remit payments to you, less commissions as well as any applicable transaction taxes that are obliged to be withheld and remitted to authorities; (c) we may share information with PayNearMe as may be necessary, in our sole discretion, to enable PayNearMe to perform the Cash Transaction Payment Services; (d) receipt of funds by a payment location on your behalf from any person using the Cash Transaction Payment Services (a “User”) is deemed receipt of funds by you and will satisfy the obligations owed to you in the amount of the applicable payment by the User, even if PayNearMe fails to remit such funds to you (i.e., the User is not at risk of having to pay twice); (e) your recourse for any non-remittance of funds received by PayNearMe on behalf of third parties on your behalf is against us; (f) the receipt issued by the payment location will identify you as the recipient of the payment and may identify us as well; (g) you have no, and will not assert any, claim for payment against any User after User’s payment at any payment location and you will not allow or take any action that is adverse to User in connection with such payment; (h) either we or PayNearMe can elect to terminate the Cash Transaction Payment Services or suspend the initiation of new payment transactions at its sole discretion, until such time as the suspending party agrees to resume processing; (i) you will not use any payment location names, marks or logos; and (j) you will not engage in or aid and abet any fraud, theft, abuse, and/or illegality in the use of the Cash Transaction Payment Services and will cooperate with PayNearMe and us in any investigation into such activities, including without limitation, by immediately responding to requests for information concerning payments or transactions.
- TERM AND TERMINATION
The term of the Payments Terms shall be conterminous with your subscription to the Payments Services.
6.2 EARLY TERMINATION
Notwithstanding anything to the contrary herein, we may terminate or suspend the Payments Terms and your access to the Payments Services, in whole or in part, prior to the expiration of the term in the event of any of the following:
6.2.1. You breach the Payments Terms and, if such breach is capable of cure, fail to cure within five (5) days of notification of breach.
6.2.2. You become insolvent, enter into reorganization or bankruptcy, make a general assignment for the benefit of creditors, admit in writing your inability to pay debts as they mature, or suffer or permit the appointment of a receiver, any of which in our judgment impairs your ability to perform your responsibilities under the Payments Terms.
6.2.3. There is a deterioration or other materially negative change in your business or financial status or structure that increases the financial risk to us or our service providers in providing you the Payments Services.
6.2.4. There is a change in Applicable Laws, NACHA Rules (as defined in Section 2.2), Check 21 Rules (as defined in Section 3.2), Card Brand Rules, or our third-party agreements that restricts or prohibits us from providing the Payments Services or increases our cost in providing the Payments Services.
6.2.5 You utilize the Payments Services in conjunction with an Excluded Activity or Prohibited Transaction or in violation of Applicable Law or Card Brand Rules.
6.2.6. For any other reason expressly identified in the Payments Terms or our policies and procedures made available to you.
In the event we terminate the Payments Terms prior to the expiration of its term, we will provide you with notice of such termination, and termination will become effective on your receipt of notice.
- LIMITATIONS OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL WE, JHA, THE ODFI, THE BANK OF FIRST DEPOSIT, BANK, PAYNEARME, OR ANY OF OUR OR THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY, IN WHICH CASE LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OUR, JHA’S, THE ODFI’S, THE BANK OF FIRST DEPOSIT’S, AND BANK’S CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATED TO THE PAYMENTS SERVICES AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY AND WHETHER OR NOT ARISING IN CONTRACT OR TORT SHALL NOT EXCEED THE FEES PAID BY YOU TO US FOR PAYMENTS SERVICES DELIVERED UNDER THE PAYMENTS TERMS FOR THE THREE (3) MONTHS PRIOR TO THE TIME THE LIABILITY AROSE, SUCH AMOUNT NOT TO EXCEED FIFTY THOUSAND DOLLARS ($50,000).
In addition to your indemnification obligations in the Terms of Service, you will indemnify, defend and hold harmless the AppFolio Parties, JHA, the ODFI, the Bank of First Deposit, and Bank from and against Costs, incurred by the AppFolio Parties, JHA, the ODFI, the Bank of First Deposit, and/or Bank arising out of (i) your breach of the Payments Terms (including any of your representations, warranties, covenants or obligations under the Payments Terms), the NACHA Rules, the Check 21 Rules, the Card Brand Rules, or Applicable Laws; (ii) in connection with the ACH Services, return of an Entry due to incorrect or incomplete data or information provided by you in the submission of the Entry to us, a closed Customer account, or insufficient funds in the Customer account, (iii) in connection with the Check Scanning Services, Check21 debit transactions processed by JHA, (iv) fraudulent activity, wrongful or unauthorized use of the Payments Services, or submission of fraudulent or illegal entries by you or a third party who has gained access to the Payments Services through the use of your Services account, (v) your use of the Payments Services pursuant to the Payments Terms or any of your acts, omissions, cardholder disputes and other cardholder customer service-related issues caused by you, (vi) your business or your clients, and (vii) any sales transactions submitted by you under the Payments Terms.
- INFORMATION REPORTING
Internal Revenue Service (“IRS”) and State regulations require that AppFolio file Form 1099-K to report payment volume information for customers that meet certain Federal and/or State thresholds in a calendar year. You acknowledge and agree that if you use AppFolio Payment Services to collect funds and you meet such thresholds in a calendar year, AppFolio will send you a Form 1099-K. The total number of transactions and total dollar amount of transactions are reported based on the Taxpayer Identification Number (“TIN”) you provide to AppFolio when you apply for AppFolio Payment Services. You agree to keep us updated, by promptly submitting a support request, with any changes to your contact information (e.g., physical address, e-mail, phone number, etc.), legal name, and/or TIN so that we can report accurate information to the IRS.
- SECURITY PROCEDURES; CONFIDENTIALITY
You agree to comply with the procedures established by us for security as are communicated to you either orally or in writing, including the confidentiality provisions of the Terms of Service, and will contact us immediately if you have reason to believe that confidentiality has been or is likely to be breached.
- USE OF SERVICE; NON-COMPLIANCE
Notwithstanding any contrary provision in the Payments Terms, the Payments Services are to be utilized solely by property management companies located and operating in the United States to facilitate payments for property management purposes. Consumer transactions, including payroll processing, are expressly prohibited. Non-compliance with the Payments Terms could result in you being assessed noncompliance fines and/or cessation of your access to the Payments Services in whole or in part. We reserve the right to refuse to process any transaction or transactions that we deem, in our sole discretion, to violate the Payments Terms.
- APPFOLIO WEBSITE TERMS
Last Updated: February 15, 2022
If you have subscribed to the Services, you may also subscribe to AppFolio Website Services (the “Website Services”). The order form that you have completed identifies the Website Services to which you have subscribed, the subscription term, and the fees payable by you to us for the Website Services. The following additional terms of service apply specifically to the Website Services and are hereby incorporated by reference into the Terms of Service. Capitalized terms used but not otherwise defined below shall have the meaning given in the Terms of Service. In the event of any conflict between the terms below and the Terms of Service, the terms below shall prevail. If you do not subscribe to the Website Services, the Website Terms do not apply and shall not be enforced.
- WEBSITE HOSTING SERVICES
If you subscribe to the Website Services, we will host your website on our private servers (the “Website Hosting Services”). You will be required to use our nameservers to configure your primary domain’s DNS settings. As part of the Website Hosting Services, we will be responsible for the initial setup and registration or transfer of one domain name if we decide, in our sole discretion, that registration or transfer is necessary to enable the Website Hosting Services. If more than one domain name must be registered or transferred, additional fees may apply. You are responsible for providing materials and reasonable assistance as identified by us for the registration and/or transfer of domain name(s). We will maintain current domain registration as long as you are subscribed to the Website Hosting Services and have paid all applicable fees. As part of the set-up process, we will give you an opportunity to modify the current content of your existing website, if any. We will interact with your current hosting company only if necessary and authorized by you and will not be responsible for any costs incurred to obtain files or other transfer-related costs, all of which shall be your responsibility.
- WEBSITE DESIGN SERVICES; CONTENT FOR WEBSITE
In addition to the Website Hosting Services, we agree to provide website design services (the “Website Design Services”). We will provide our proprietary design templates for use in connection with your website, together with a limited selection of alternative text, images and colors; provided, however, you remain solely responsible for (i) the selection of the design template, (ii) all data and content on your website, including without limitation all content you upload in conjunction with the Website Services (the “Content”) and (iii) the overall look and feel of your website. We will not provide custom design or photography services. You agree not to hire a third party to modify the design template, and you hereby expressly agree to use us to make any changes to the design template and/or Content. You acknowledge and agree that we are and will remain the sole and exclusive owner of the proprietary design templates offered as part of the Website Design Service and you have no right, title or interest in the design templates except the limited right to use the template you select for as long as you use the Website Hosting Services.
- HANDLING OF YOUR CONTENT AND DOMAIN UPON TERMINATION
Upon termination of the Website Services, our sole obligation is to retain your Content in the format maintained by us in the production environment (test or draft versions of Content will not be retained) for thirty (30) days after termination (the “Content Retention Period”). Upon written request during the Content Retention Period, we will provide your Content to you as follows: company logo file(s), image files, and text. Content exports shall not include our proprietary design templates or themes, or any customized elements. If your domain name was originally purchased by us, or you transferred your domain name ownership to us, we agree to work with you in good faith to transfer your domain name to you, and will use commercially reasonable efforts to do so. At the end of the Content Retention Period, if you have not worked with us to transfer your domain, we will relinquish control of your domain name and release it back to the TLD Registry. We will not pay any renewal or other domain name-related fees or costs after termination of the Website Services.
- INTEGRATION SERVICES
You may request that we integrate all available Services into your website. For clarity, we will not be responsible for integrating your website with any third party products or services. Links to third party services may be made available to you upon request.
- YOUR WEBSITE CONTENT
You grant us a nonexclusive, worldwide and royalty-free license for the term of the Agreement to (i) edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, publicly perform, publicly display, and otherwise use all of your Content, and (ii) make archival or back-up copies of the Content, as necessary for the purpose of rendering and operating the Website Services for you pursuant to this Agreement. Except for rights expressly granted under this Agreement, we do not acquire any right, title or interest in or to the Content, all of which shall remain solely with you.
5.2 OUR RIGHTS
We may temporarily disable or suspend all or any aspect of the Website Services if you fail to pay the fees due for your subscription or otherwise breach this Agreement. Further, we may restrict or remove from our servers any Content that either (i) violates this Agreement or any related policies or guidelines, or (ii) is otherwise objectionable or potentially infringing on any third party’s rights or that potentially violates any law, as determined in our sole discretion. These rights of action, however, do not obligate us to monitor or exert editorial control over your Content or any other aspect of your website(s). If we take corrective action because of any possible violation, we will not refund to you any fees paid by you in advance of the corrective action.
5.3 DATA PROTECTION, SECURITY AND PRIVACY LAWS
5.4 ADDITIONAL REPRESENTATIONS AND WARRANTIES
You warrant, represent and covenant to us that (i) you have verified the accuracy of materials distributed or made available for distribution via the Website Services, including any and all Content, descriptive claims, warranties, guarantees, nature of business and address where business is conducted and such information and materials are not fraudulent or misleading and do not violate any applicable laws, rules, regulations or guidelines; (ii) you are the owner or valid licensee of the Content and have secured all necessary permissions, consents, licenses, waivers and release for the use of the Content and each part thereof, and (iii) use, publication and display of the Content does not, and will not, infringe or violate any rights of any third party (including any intellectual property rights) or violate any applicable laws, rules, regulations or guidelines and there are no pending or threatened claims alleging any such infringement or violation.
6.1 WEBSITE FEES
The non-refundable one-time Website Services set-up fee and monthly fee per website are as set forth on the order form or in the online sign-up flow and are due and payable on your next regular billing date following delivery by us of a fully functional website for your review (a “Preview Site”). Website monthly fees may be increased from time to time. No refunds of fees you have paid will be given even if you elect to terminate your subscription early.
6.2 PAST DUE AMOUNTS
If you fail to pay the fees due and payable for the Website Services, we reserve all of its rights, including without limitation the right to engage a collections agency to collect the fees, and you shall pay all costs incurred by us in connection with the collection of past due amounts, including without limitation reasonable attorneys’ and collections agencies’ fees plus interest in an amount equal to the lesser of 1.0% per month or the maximum rate permitted by applicable law.
Unless otherwise expressly stated in your order form and/or online sign-up flow, the Website Services term shall be month to month, terminable by either party upon 30 days’ written notice to the other party.
- ENCRYPTION; SSL CERTIFICATES
We currently secure each website purchased as part of the Website Services with SSL certificates, which may result in SSL-related errors or warnings for site visitors who use an older browser or out-of-date browser version. Upon termination of the Website Services, any SSL certificate protection will terminate as well. Finally, in order to participate in the Website Services, you agree to be, and hereby are, bound by the Let’s Encrypt Subscriber Agreement, which can be found at https://letsencrypt.org/repository.