BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A SUBSCRIPTION BUTTON INDICATING YOUR ACCEPTANCE, OR BY EXECUTING THIS AGREEMENT OR A SUBSCRIPTION FORM THAT REFERENCES THIS AGREEMENT, YOU, THE CUSTOMER, AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.
This Master Subscription Agreement (“Agreement), is effective as of the date you click to accept the terms of this Agreement or otherwise enter into a Subscription Form (the Effective Date”) and is made and entered into by and between Extenteam Inc. (“Provider”), a Florida Corporation, and you the “Customer.” Extenteam Inc. and the Customer may be referred to herein individually as a “Party” and collectively as the “Parties.” The Parties agree as follows:
This Agreement is subject to revision by Provider. If Provider makes any substantial changes to the Agreement, it will notify Customer in accordance with Section XIV.G. below. Any changes to this Agreement by Provider will be effective upon the earlier of thirty (30) calendar days following Provider’s dispatch of an email notice to Customer or upon Customer’s continued use of the Services. In the event that the email address that Customer provided is invalid, or not capable of delivering Provider’s email with the updated terms of this Agreement, then such email will nonetheless constitute effective notice of the changes. Continued use of Provider’s Services following notice of such changes shall indicate Customer’s agreement to be bound by the terms and conditions of such changes.
I. Services. Provider shall provide Customer with the guest communication and related services (the “Services”) as selected by Customer at checkout on Provider’s website at https://www.extenteam.com/tailwind/ or as otherwise subscribed to by Customer (the “Subscription Form”).
II. Payments. Customer shall pay Provider as follows:
A. Shared Services Fees
Customer will pay Provider the fees specified in the Subscription Form
Customer authorizes Provider to effect payment of all sums due under this Agreement by automatically charging Customer’s credit card (and Customer’s back-up credit card, as applicable) provided to Provider during the sign-up process. This authorization will remain effective until termination of this Agreement and Customer’s full and final payment of all obligations due under this Agreement. Customer agrees to provide all needed authorizations promptly and when requested by Provider with the understanding that fees may increase in the case, for example, of new product selection, increase in number of units in Customer’s portfolio, according to Provider’s then current rates, or over time.
C. Automatic Debit
As an alternative to credit card payment, Customer authorizes Provider to obtain payment on all sums due under this Agreement by initiating electronic debit entries, through the Automated Clearing House (ACH) settlement process. The authorization will remain in full force and effect until termination of this Agreement and the full and final payment of all obligations of Customer due under this Agreement.
D. Payment Term and Billing Cycle
Unless otherwise set forth in the Subscription Form, payment is due monthly in advance of any initial or renewal term. All fees paid hereunder are non-cancellable and non-refundable. Customer is responsible for all banking, credit card processing, currency conversion, foreign, and other related fees. Customer is responsible for paying all taxes, if any, associated with its purchases hereunder (excluding taxes based on Provider’s net income or property). All dollar ($) amounts specified in this Agreement are United States dollar amounts.
E. Overdue Payments
To the extent permitted by law, returned and non-sufficient funds payments will accrue a late fee of $100 per month or 2% of the unpaid amount per month, whichever is higher.
III. Term and Termination
The initial term of this Agreement will commence on the date that the Customer clicks to accept the Subscription Form, is effective for one month and will automatically renew for successive one-month terms unless either Party gives a written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the then-current term. For example, if notice of non-renewal is given on March 19, then the term will expire on April 30.
B. Termination for Cause
Either Party may terminate this Agreement upon a material breach of the other Party, if such breach remains uncured for ten (10) days following written notice of such breach to the breaching Party. If a Provider breach is due to the actions of a particular team member, then Provider may cure the breach by substituting a replacement team member. The Provider may terminate this Agreement without notice if (a) any fees or expenses remain unpaid by Customer ten (10) days after they are due or (b) Customer institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency.
C. Effect of Termination
Upon termination for any reason, Customer shall pay all fees and expenses accrued as of the termination date. Termination for any reason by Customer other than for cause shall not relieve Customer of its obligation to pay future amounts due Provider.
D. Suspension of Services
1) Customer may request a pause in Services for up to Sixty (60) consecutive days during a calendar year. Customer must give Provider thirty (30) days prior written notice of this request and the request is subject to Provider’s approval. During any approved pause in Services, a monthly fee applies as set forth in the Subscription Form. Customer’s owner landing site(s), phone number(s), and CRM will remain live while all Provider managed Services will cease.
2. Provider may immediately suspend Services to Customer in the event: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that: Customer has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement. This paragraph does not limit any of Provider’s other rights or remedies.
IV. Customer Responsibilities
Customer understands and agrees that Provider must rely on Customer to provide certain information, credentials to certain software and resources to provide the Services. During the term of this Agreement, Customer will appoint one individual to be Provider’s primary point of contact (“Representative”) for Customer. Customer agrees to work closely with Provider and to provide timely responses to Provider’s requests for information. Customer shall have sole responsibility for ensuring the accuracy of all information provided to Provider and warrants and represents to Provider that Customer’s employees assisting in the execution of this Agreement have the necessary skills, authority, and professionalism. Customer’s Representative, employees, and agents shall maintain a professional and respectful demeanor while interacting with Provider, its employees, and agents. Customer agrees to conform to the responsibilities included in this paragraph (“Customer Responsibilities”) and any Subscription Form and understands and agrees that failure to do so will be considered a material breach of this Agreement under Section III (“Term and Termination”). Customer represents and warrants that it is authorized under its agreements with its vendors, employees, customers, and service providers and has obtained all necessary consents, including but not limited to any needed consents under applicable privacy laws, in order for Provider to provide the Services contemplated by this Agreement and to access the systems and resources of Customer. Customer represents and warrants that it takes reasonable security measures to protect its systems from unauthorized access and that it is responsible for working with Provider during the onboarding process to ensure that Provider’s security practices are acceptable to Customer and consistent with Customer’s practices.
V. Limitation of Liability
THE PROVIDER AND PROVIDER’S AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS OR SERVICE PROVIDERS’ LIABILITY TO THE CUSTOMER UNDER OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES AND SHALL IN NO EVENT EXCEED THE AMOUNTS PAID BY THE CUSTOMER TO THE PROVIDER FOR THE THREE (3) CALENDAR MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, AND IN NO EVENT SHALL THE PROVIDER AND PROVIDER’S AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS OR SERVICE PROVIDERS’ BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR GOODWILL) RELATED TO THIS AGREEMENT AND/OR SERVICES, OR ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING CONTRACT, WARRANTY, TORT, STRICT LIABILITY, INDEMNITY OR NEGLIGENCE, EVEN IF THE PROVIDER HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
VI. Disclaimer of Warranties
EXCEPT AS SET FORTH HEREIN, THE PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT SOFTWARE IS PROVIDED, THE PROVIDER DOES NOT WARRANT THAT THE OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE.
VII. Confidentiality. Each Party acknowledges that by reason of its relationship to the other Party under this Agreement it may have access to certain information and materials concerning the other Party’s business, plans, customers, code, and products that are confidential and of substantial value to such Party (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties.
A. Nondisclosure and Non-Use. Each Party agrees to take reasonable efforts to maintain all Confidential Information received from the other, both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, except that such Confidential Information may be disclosed to a Party’s employees, contractors, vendors and agents who have a need to know or otherwise access such Confidential Information in connection with the Services and who are bound by confidentiality and other obligations sufficient to protect Confidential Information in accordance with the terms of this Agreement. Each Party further agrees to use the Confidential Information only for the purpose of performing this Agreement. No Confidential Information shall be deemed confidential unless it is (1) marked as confidential if given in writing, (2) if given orally, identified as confidential orally prior to disclosure, or (3) information which by its nature or the nature of the circumstances surrounding disclosure should reasonably be understood to be confidential.
B. Exclusions. The Parties’ obligations under the paragraph above shall not apply to Confidential Information which: (i) is or becomes a matter of public knowledge through no fault of or action by the receiving Party; (ii) was rightfully in the receiving Party’s possession prior to disclosure by the disclosing Party; (iii) subsequent to disclosure, is rightfully obtained by the receiving Party from a third party who is lawfully in possession of such Confidential Information without restriction; (iv) is disclosed by a Provider team member in the course of providing the Services (e.g., dealing with Customer’s customers and counterparties) and which the team member believes to be in compliance with Customer’s policies and practices, or, its express or reasonably implied instructions; or (v) is required to be disclosed by applicable law or legal process. Whenever requested by a disclosing Party, a receiving Party shall immediately return to the disclosing Party all manifestations of the Confidential Information or, at the disclosing Party’s option, shall destroy all such Confidential Information as the disclosing Party may designate (excluding this Agreement). The receiving Party’s obligation of confidentiality shall survive this Agreement for a period of three (3) years from the date of its termination and thereafter shall terminate and be of no further force or effect. Nothing herein shall prohibit a Party from complying with a lawful and binding order of any court, administrative agency or other governmental entity relating to Confidential Information. Upon termination of this Agreement and the request of a Party, the other Party shall return or destroy the requesting Party’s Confidential Information.
VIII. Customer Content and Data
A. Customer Content
Customer hereby grants Provider a non-exclusive, royalty free, worldwide, non-transferable, limited license, revocable at will by Customer, to copy and use all content, material, and information provided by Customer, including but not limited to Customer logos, trademarks, service marks, and material subject to copyright (“Customer Content”) solely in connection with the Services to be performed by Provider under this Agreement. Customer represents and warrants that the Customer Content is owned by Customer, or that Customer has permission from the rightful owner to use the material or content and that such does not infringe upon any intellectual property right or other third-party rights.
B. Customer Data
All data, records, and reports directly collected by Customer and made available to Provider for purposes of Provider providing the Services (“Customer Data”), whether in existence at the Effective Date hereof or collected thereafter, shall be the exclusive property of Customer, except for Resultant Data and Work Product, as described below. Customer’s furnishing of Customer Data, or access thereto, shall not grant any express or implied interest in or license to Provider relating to such Customer Data other than as is necessary to perform and provide the Services to Customer. Upon request by Customer at any time and without regard to the default status of the Parties under the Agreement, Provider shall promptly deliver to Customer the Customer Data in electronic format. Notwithstanding the preceding, Customer grants Provider a perpetual, irrevocable, worldwide, sub-licensable, royalty-free, and transferable right and license to (i) collect and analyze anonymized data and related information about the provision, use, and performance of the Services and Customer Data (including Personal Information contained within Customer Data) and to combine it with data from other customers into a new aggregated dataset, and (ii) use such anonymized usage data and related information as a component of such new aggregated dataset, for the creation of internal benchmarking, statistical, research and analyses, reports and studies. “Anonymized” means the removal of any personal identifiers to render any personal data from being related to an identified or identifiable natural person and any information reasonably likely to identify a company or other business entity, including any customer of Provider. Such anonymized usage data is “Resultant Data.”
C. License and Use of the Work Product. All works, materials, products and modifications, and data (including data collected from public records, list brokers, online travel agencies, appending services, and vacation rental permit data), Resultant Data, developed, collected, compiled, prepared, or paid for by Provider under this Agreement (“Work Product”) shall be the sole and exclusive property of Provider.
During the term of this Agreement and for a period of one (1) year following termination of this Agreement for any reason, the Parties shall not, directly or indirectly, hire, contract, engage, or retain any of the other Party’s employees, contractors, consultants, vendors, or team members, the identity of which the Party became aware during the performance of this Agreement, without the express written consent of the other Party.
X. Independent Contractors
Each Party hereto is an independent contractor and neither Party is, nor shall be considered to be, the other’s team member, distributor, partner, fiduciary, joint venture, or co-owner. Neither Party shall act or represent itself, directly or by implication, in any such capacity or in any manner assume or create any obligation on behalf of, or in the name of, the other, provided such restrictions shall not prohibit team members from performing Services for Customers that are within the scope of their responsibilities.
XI. Representations and Warranties
Customer represents, warrants and covenants to Provider that (a) it is an entity validly existing pursuant to the laws of the state in which it is organized and has the full power and authority to carry out the terms of this Agreement, (b) the person executing this Agreement by virtue of clicking to accept the Subscription Form, for example, is duly authorized to so execute the same and that this Agreement will be valid and binding on Customer in accordance with its terms, (c) the execution, delivery and performance of this Agreement will not violate any other Agreement or instrument to which such Customer is a party.
Provider may assign, transfer or delegate any of its rights or obligations to subcontractors to ensure that the terms of this Agreement are met, provided that Provider remains responsible for the Services. Neither Party may assign this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the preceding, either Party may assign or transfer this Agreement, in whole or in part, without consent of the other Party (a) in connection with the acquisition or purchase of substantially all of its assets or stock, or (b) to subsidiary, parent or a company under common control with that Party.
XIII. Mutual Indemnification
Customer agrees to indemnify, defend and hold harmless, Provider and Provider’s directors, officers, employees and contractor team members with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, made by any third party due to or arising out of (a) Customer Data, (b) actions taken at the actual or implied request or direction of Customer including performance of this Agreement, (c) Customer’s use of Provider’s work product, (d) Customer’s breach of its representations and warranties or its obligations under this Agreement, or (e) Customer’s violation of the rights of a third party.
Provider agrees to indemnify, defend and hold harmless, Customer and Customer’s directors, officers, employees with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, made by any third party due to or arising out Provider’s breach of its representations and warranties in this Agreement, a claim that Provider’s Services infringe or misappropriate the intellectual property rights of any third party, and its intentional misconduct or fraud.
A. Governing Law
This Agreement, including exhibits and all matters relating thereto shall be governed by, and construed in accordance with, the laws of the State of Florida. Any action based on or arising out of this Agreement shall be brought and maintained exclusively in Miami Dade County, Florida. Each of the parties hereby expressly and irrevocably submits to the jurisdiction of in Miami Dade County, Florida for the purposes of any such action and expressly and irrevocably waives, to the fullest extent permitted by law, any objection which it may have or hereafter may have to the laying of venue of any such action brought in any such court and any claim that any such action has been brought in an inconvenient forum.
B. Compliance with Law
Customer is solely responsible for ensuring that the Services, Customer’s use, and Providers’ provision thereof to and on behalf of Customer and Customer’s business comply with all applicable federal, state, local, and foreign statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of Customer’s business or the Services and that Customer has filed, obtained, maintained or submitted all necessary licenses, reports, documents, forms, notices, applications, records, submissions and supplements or amendments required by law.
C. Independent Contractors
The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, partner, or joint venturer of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party.
If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect.
E. Entire Agreement
The terms of this Agreement (including the Subscription Form and any addendum and amendments to the Subscription Form and updates to the Agreement by Provider) supersede all other agreements, sales presentations, emails, and other communications, either oral or in writing, between the Parties regarding the subject matter hereto.
F. Force Majeure
Except for the payment of money, neither Party shall be liable for any delays or non-performance resulting from circumstances or causes beyond its reasonable control that make performance impossible or substantially and unreasonably impractical, including, fire, typhoons, natural disasters, epidemic or other casualty, act of God, war or other violence or any law, order or requirement of any governmental agency or authority.
Notices under this Agreement must be in writing and will be deemed delivered as of the email transmission date, the date received at a Party’s physical address, or the date on the courier confirmation of delivery. Notices to Provider must be sent to the [email protected] and 333 SE 2nd Ave Suite 2000, Miami, FL 33131. Notices to Customer must be sent to the postal address and/or email address identified on the Subscription Form. Customer is responsible for providing Provider with its most current email and postal address.
Provider may publicize, at Provider’s sole expense, the fact that it has established a relationship with Customer, in such format (which may include Customer’s name and logo in which case Customer grants Provider a limited use license for this purpose), in such publications, and at such times as Provider deems appropriate. Such publication will be consistent with Provider’s customary marking practices but without publicizing Confidential Information of Customer.
Notwithstanding anything in this Agreement to the contrary, the provisions herein shall survive any expiration or termination of this Agreement that expressly or by their nature extend beyond and survive the expiration of this Agreement.
This Agreement along with any amendments may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same document. Any executed counterpart may be delivered by via electronic means, including but not limited to facsimile, e-mail in portable document format (.pdf), DocuSign or DropBox Sign electronic signature system and such electronic signatures shall have the same legal effect as manual signatures. Any amendments to the Subscription Form must be in writing and signed by both Parties.
The failure of either Party to exercise any right, or the waiver by either Party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
L. Additional Services
Provider may make certain additional services available as it may develop from time to time to Customer which may be subject to additional terms and conditions. Without limiting the terms of this Agreement, if Customer subscribes to one or more of such additional services then it agrees to be bound to such additional terms.