EFFECTIVE DATE: 18 September 2020
LAST UPDATED: 18 September 2020
The following terms of service are applicable to all landlords and property managers with under 1000 units serving as data contributors. These terms can only be superseded by a fully executed saas agreement between Esusu Financial Inc. and the entity in consideration.
DESCRIPTION OF SERVICES
Esusu is a secure, encrypted data processing and storage platform based in the cloud that interfaces with property management systems via certified APIs. The system retrieves tenant rental payment information for transformation and submission to credit bureaus on a monthly basis. Landlords interact with the system via a secure dashboard interface hosted in the cloud. File submissions to Equifax, TransUnion and Experian are undertaken via secure file transfer protocol to separate web portals controlled by each bureau.
SAAS SERVICES AND SUPPORT
1. Subject to the terms of this Agreement, Esusu Financial Inc. (“Company”) will use commercially reasonable efforts to provide Data Contributor the Services.
2. The Initial Service Term of this agreement shall extend from the Effective Date to the End Date, both of which are noted on the Order Form signed by Data Contributor and Company.
RESTRICTIONS AND RESPONSIBILITIES
1. Data Contributor will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time-sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2. Further, Data Contributor may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3. Data Contributor represents, covenants, and warrants that Data Contributor will use the Services only in compliance with all applicable laws and regulations. Data Contributor hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Data Contributor’s use of Services. Although Company has no obligation to monitor Data Contributor’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
4. Data Contributor shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Data Contributor shall also be responsible for maintaining the security of the Equipment, Data Contributor account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Data Contributor account or the Equipment with or without Data Contributor’s knowledge or consent.
CONFIDENTIALITY AND PROPRIETARY RIGHTS
1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Data Contributor includes non-public data provided by Data Contributor to Company to enable the provision of the Services (“Data Contributor Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
2. Company shall own all right, title and interest in and to the raw data captured via the service platform. Company shall own all right, title and interest in and to all insights and inventions derived from the raw data by Company. Data Contributor shall have the right to access and view raw data either by written request, or via the reporting dashboard provided. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Data Contributor Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
1. Data Contributor will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Data Contributor (which may be sent by email). If Data Contributor believes that Company has billed Data Contributor incorrectly, Data Contributor must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
2. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice (in which mailing may occur via email). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Data Contributor shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
3. Data Contributor and Company will renegotiate contract pricing terms prior to any contract renewal taking effect. Data Contributor and Company will endeavor to start pricing discussions within 60 days of the Service Term End Date.
TERM AND TERMINATION
1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
2. If Data Contributor elects to cancel this agreement within 14 business days from the contract’s Effective Date, then Data Contributor shall be entitled to a full refund less any processing costs incurred by Esusu during the cancelation period. Data Contributor’s notice of intention to cancel must be received by Esusu via email within the above mentioned 14 business day window.
3. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Data Contributor will pay in full for the Services up to and including the last day of the contracted Service Term. Upon any termination, Company will make all raw Data Contributor Data available to Data Contributor for electronic retrieval for a period of ninety (90) days. The Company however, is not mandated to provide any insights and inventions derived from the Data Contributor’s raw data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and company disclaims all warranties, express or implied, including, but not limited to, applied warranties of merchantability and fitness for a particular purpose and non-infringement.
LIMITATION OF LIABILITY
Notwithstanding anything to the contrary, except for bodily injury of a person, Company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond Company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Data Contributor to Company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not Company has been advised of the possibility of such damages.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Data Contributor except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Data Contributor does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.
CREDIT BUREAU ADDENDUMS
Data Contributor agrees to sign all necessary addendums requested by the Credit Bureaus to facilitate the reporting of Data Contributor’s rental data.
DATA SUBMISSION AND DISPUTE RESOLUTION REQUIREMENTS
Esusu reports data to credit bureaus in Metro 2® Format.
If API integration between Data Contributor’s system and Esusu’s system will not be undertaken, then Esusu will provide Data Contributor with a template that outlines the data fields that must be reported for each tenant on a monthly basis. Data Contributor may export or enter tenant payment data into Excel and provide these files to Esusu on a monthly basis via a secure Dropbox folder, or may enter data directly into the Esusu Property Manager Portal.
Esusu reserves the right to request a signed copy of Data Contributor’s lease agreement with each tenant for whom rental data will be furnished and reported. Lease agreements will only be requested so that Esusu can validate the accuracy and completeness of the data being reported to it by Data Contributor. Data Contributor agrees to submit tenant payment data to Esusu by the middle of each month for the duration of this contract. For avoidance of doubt, payment data needs to be submitted to Esusu by the following dates: January 15th, February 15th, March 15th, April 15th, May 15th, June 15th, July 15th, August 15th, September 15th, October 15th, November 15th and December 15th.
Esusu will confirm receipt of submitted data via email and follow up via phone if errors or anomalies are detected during the Company’s quality control review.
Tenant Dispute Resolution
If a tenant disputes the accuracy or completeness of rental data reported to any credit bureau via Esusu, Data Contributor must promptly instruct the tenant to file a complaint using the contact details below:
Subject to the terms hereof, Company will provide Data Contributor with reasonable technical support services. Details regarding these support services are noted below.
Company will provide Technical Support to Landlord via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern Standard Time, with the exclusion of Federal Holidays (“Support Hours”).
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within two (2) business days or 72 hours, whichever is shorter.