Collect Property Rent Payments Online ǀ Manager Terms

INNERCIRCUIT SERVICES TERMS

PROPERTY MANAGER

TERMS OF USE

This Innercircuit Service Terms are effective between the said “management company” and Innercircuit, Inc., a California corporation, with its principal place of business at 1350 Bayshore Highway Suite 730, Burlingame, CA 94010

WHEREAS, Innercircuit provides services in the field of web development, maintenance and hosting, and facilitation of online rental payments by tenants; and

WHEREAS, Management Company is engaged with Innercircuit to provide such services;

NOW, THEREFORE, in consideration of the mutual obligations undertaken herein, the parties, each intending to be legally bound, hereby agree as follows:

1. Services.

1.1 Services. As of the Effective Date, (executed with signature of sales contract) Innercircuit shall provide Management Company with the services for accepting payment online and supporting a web portal (the “Community Site”) for Management Company and tenants.

1.2 Use. Throughout the term of the Agreement, Management Company, such other persons as agreed to by Innercircuit and Management Company and current tenants (collectively, “Subscribers”) will be granted access to the Community Site. Each Subscriber shall create a profile on the portal that shall include his username and password which he will use to gain access to the Community Site.

1.3 Rent Payment Module. Innercircuit shall facilitate the payment of rent online by creating a module that Subscribers may access to cause an electronic debit of a Subscriber’s designated bank account for the amount of rent or other amounts owed to Management Company and an electronic credit of such amounts to an account or accounts designated by Management Company. Each Subscriber using the online rent payment function shall provide sufficient information to identify his bank by name, ABA routing number, telephone number and physical address, and designate his bank account number to be used in initiating debits to such account and such other information as may reasonably be required in order to accommodate online rent payments. All information provided by Subscribers pursuant to this section shall be collectively referred to hereinafter as “Subscriber Information.” Management Company shall complete and deliver to Innercircuit, on a form provided by Innercircuit (the “New Merchant Form”), sufficient information and instructions to permit Innercircuit (or Processor) to initiate credits or debits, including, without limitation, an authorization form which will, among other things, identify the bank account(s) to which payments shall be credited, authorize Innercircuit (or Processor) to initiate credits and debits to such account(s) and otherwise provide information reasonably necessary (collectively, “Management Account Information”). Management Company and Subscribers may add and delete accounts and otherwise modify Management Account Information or Subscriber Information, by delivering updated information to Innercircuit. Any such additions, deletions or changes shall be effective upon Innercircuit’s acceptance and processing of the same. Electronic payments may be made through the Automated Clearing House (“ACH”) Network and such transactions are subject to the rules set by the National Automated Clearing House Association. Management Company and Subscribers shall be bound by all rules, regulations and statutes governing ACH transactions. Innercircuit shall provide the online facilities to accomplish these transactions and shall not, at any time, have possession of or control over any funds being electronically debited from Subscribers’ bank accounts or credited to the account(s) of Management Company. Innercircuit’s obligation and responsibility shall be limited to developing and maintaining the Community Site and Software that enables online transactions of this type and arranging for Processor to effect the transactions. Management Company acknowledges that Innercircuit may from time to time establish, modify, amend, supplement or rescind rules and regulations regarding its services (including, without limitation, deadlines on any business day by which Innercircuit must receive instructions to have them processed on that business day, and stop payment, overdraft and other such rules), and to which Management Company and each Subscriber shall be bound. Under like terms and conditions, Innercircuit, Inc. will offer a mechanism for Subscribers and Property Managers to utilize by payment through credit card. Said Management Company and Subscriber shall be bound by the same terms and conditions that provide for electronic payments made through the “ACH” network.

Said terms and conditions that provide for electronic online rent pay through an ACH network as set forth herein above shall equally apply to any credit card payment and said Management Company and each Subscriber shall be bound by the same terms and conditions as set forth herein above for electronic online rent pay through the automated clearing house (ACH) network.

By entering into this agreement, the Management Company and Subscriber will be requesting a monthly electronic debit from (or credit to) Subscriber’s account. In accordance with such request, each Subscriber will make an electronic transfer via the automatic clearing house (ACH) system from said Subscriber’s account in the amount specified in the agreement. Said Subscriber agrees that such request constitutes Subscriber’s authorization for such transfers.

Credit card charge policy: Once any charge has been processed to said Subscriber’s credit card account, said Subscriber shall not request its credit card company to reverse the charge or charge it back to said Property Management Company. If Subscriber has a legitimate basis to request a credit for a charge previously processed against its credit card account, said Subscriber shall request a credit from said Management Company by written notice and resolve the same directly with said Management Company. Any reverse charges which cause the credit card company to impose a charge-back cost against said Management Company, shall be reimposed by said Management Company upon said Subscriber. Such cost may exceed the cost of the reverse item or charge-back.

Under either circumstances, utilizing electronic online rent pay through ACH or credit card charge, Management Company agrees and understands that at no time shall Innercircuit, Inc. be directly responsible to either Management Company or said Subscriber with regard to the rent payment module. Each Subscriber using the online rent payment function shall provide sufficient information to identify his bank by name, ABA routing number, telephone number and physical address, and designate his bank account number to be used in initiating debits to such account and such other information as may reasonably be required in order to accommodate online rent payments. EACH SUBSCRIBER IS RESPONSIBLE FOR PROVIDING ACCURATE INFORMATION AND FOR UPDATING THEIR OWN BANK INFORMATION. Electronic payments may be made through the Automated Clearing House (“ACH”) Network and such transactions are subject to the rules and terms of use set by the National Automated Clearing House Association.

1.4 User License. At Innercircuit’s election, Innercircuit will require Subscribers who access the Community Site to enter into an end-user license agreement to protect Innercircuit’s proprietary rights in and to the Software. Management Company will cooperate with Innercircuit to require Subscribers to agree to the Management Company Privacy Policy and Terms of Use as set forth in the new tenant account form (Privacy Policy”).

1.5 No Responsibility for Unauthorized Use. Innercircuit will not inquire regarding any Subscriber’s password. Innercircuit shall be authorized to act on instructions received under a proper access code and password, and shall not be responsible for verifying any transaction or event processed through the Community Site as long as the proper access code and password are used. All risks associated with disclosure to, or misuse or discovery of any access code or password by others shall be borne by the Subscribers. Innercircuit shall be entitled to rely on all information contained in Management Account Information and Subscriber Information, and Innercircuit shall not have any liability to Management Company or Subscribers for errors resulting from such reliance. Innercircuit shall not be liable for any transaction cancellations or stop payments initiated by any Subscriber, or for any failure of payment due to insufficient funds, overdrafts, chargebacks or other matters. Any security procedures established by Innercircuit are for verifying authenticity of the user and not for detecting error. Innercircuit shall not have any responsibility or liability for the actions of Subscribers on the Community Site or for any errors or failures resulting from any malfunction outside of Innercircuit’s control, including, without limitation, power interruption, delay due to high volumes of Internet traffic, breach of security (other than systems under Innercircuit’s control), message or transfer interruption in transit, or any virus or other computer problem arising in connection with the use of the Community Site.

1.6 Technical and Customer Support. Innercircuit will provide Management Company with technical and customer support as specified in Exhibit A.

2. Content and Privacy Policy. Throughout the term of the Agreement, Management Company will provide Innercircuit with relevant information necessary for Innercircuit to provide the Services, including, without limitation, text, graphics, property information and the trademarks of Management Company (collectively, the “Management Company Content“). Subject to the terms and conditions of this Agreement, Management Company grants to Innercircuit a limited license to reproduce, modify and publicly display the Management Company Content solely as necessary to provide the Services and create the Community Site. Management Company will retain all right and title to the Management Company Content, including all proprietary and intellectual property rights therein. This license will immediately terminate upon the expiration or termination of this Agreement.
3. Confidential Information. Both parties shall keep the terms of this Agreement confidential. Innercircuit acknowledges that in rendering the Services hereunder, Innercircuit may learn, acquire, gather or develop secret and confidential information and data concerning Management Company, the Communities, and/or the Subscribers, including, without limitation, Subscriber Information, business, plans, Management Company Account Information, Management Company Content, programs, employees and operations of, or belonging to Management Company, other companies with whom Management Company has a business relationship, and/or the Communities, and additional information and data will be made available to Innercircuit or be developed or acquired by Innercircuit as a result of its performance of the Services (collectively, the “Confidential Information“). Innercircuit further acknowledges that Management Company is in the business of owning, operating, managing, selling or acquiring properties and that information and data related thereto is protected hereby and included within the definition of “Confidential Information.” Innercircuit shall not use such Confidential Information except as expressly permitted by this Agreement. Confidential Information excludes information that is: (i) in the public domain, (ii) already known to a party as evidenced by contemporaneous documentation, (iii) hereafter furnished to a party by a third party not subject to any restriction on disclosure, or (iv) disclosed pursuant to any law or the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Innercircuit shall provide prompt notice thereof to Management Company and shall use its reasonable best efforts to cooperate with any efforts by Management Company to obtain a protective order or otherwise prevent public disclosure of such Confidential Information.

4a 30 day trial period: The parties agree that in reference to the first 30 day trial period that the following terms and conditions shall apply .In all other respects the terms of said Innercircuit Service Agreement shall remain in full force and effect.

During said 30 day trial period, said Property Management Company will refer to the terms listed in the signed “Sales Agreement/Proposal”.

However, should said property management company and Innercircuit go forward in contract after said 30 day trial period then said property management company understands and agrees to be responsibility for all monthly fees and/or set up fees including those incurred during said 30 day trial period pursuant to the terms of this agreement and as set forth in the “Sales Agreement/Proposal”.

Said property management company understands and agrees that the terms and conditions of Paragraph #4b “Termination” shall automatically apply and be binding on all parties unless said property management company gives not less than 30 days written notice to Innercircuit( email and or fax) of said property management companies intention to terminate said contract at the end of the trial period,

4.b Termination. This Agreement shall be effective for the entire term of the “Sales Agreement” terms. Neither party may unilaterally terminate the terms and conditions of this agreement without the express written consent of the other party. Unless written notice is provided to the contrary by either party 60 days prior to the expiration of the initial term of this Agreement, i.e., 60 days prior to one year from the effective date or any extension term as agreed to by the parties, this agreement shall automatically be renewed for additional one year term under these same terms and conditions

In the event said Management Company wishes to terminate said agreement, prior to the expiration date as set forth herein, and based on the terms and conditions as set forth hereinabove, said Management Company shall pay to Innercircuit a percent of the fees lost by Innercircuit for said term remaining on said contract and said payment shall be based upon the prior history of payments made by said Management Company to Innercircuit in the prior one year term. In addition, should said Management Company wish to terminate said agreement prior to the expiration date of said agreement as set forth hereinabove , thereby causing a loss of income to Innercircuit, said Management Company shall be liable for liquated damages of three times the loss of revenue based on the above formula..

Upon the termination or expiration of this Agreement: (i) Said Management Company shall immediately account for and pay for all service fees and other fees due and owing to Innercircuit, Inc. pursuant to this Agreement . (ii) Innercircuit will cease providing Services and may, in its sole discretion, delete any content of Management’s website or any other data or information Management Company has furnished to Innercircuit (iii) Sections 3, 6, -11,12,13 and 14 shall survive the termination of this Agreement.

5. Ownership.

(a) Rights in Intellectual Property. Innercircuit will own and retain all of its respective right, title and interest in and to any and all intellectual property embodied in or associated with the design and delivery of the Services, including, but not limited to, content, such as software, graphics, start-up information and materials, designs, methods, architecture, materials, publications, business plans and other tangible intellectual property-based assets and proprietary rights of any kind whether in machine readable, printed or other form and including, without limitation, all revisions, enhancements, technical know-how, patents, copyrights, trademarks, moral rights and trade secrets.

(b) No Implied Licenses. Except as expressly stated in this Agreement, the parties will have no rights of any kind in or to any of each other’s intellectual property. There are no implied licenses under this Agreement, and any rights not expressly granted under this Agreement are reserved by the respective party.

6. Payment. Management Company shall pay to Innercircuit in a timely fashion and in accordance with the schedules agreed to in the “Sales Agreement”. Innercircuit reserves the express right and Management Company so acknowledges, subject to not less than 60 days’ notice to Management Company (see Paragraph 10 infra), to increase the fee charged to Management Company.

7. Mutual Indemnification. Each party to this agreement shall indemnify and hold harmless each others officers, directors, shareholders, employees, partners, members, managers, subsidiaries, affiliates, landlords, agents, attorneys, successors, assigns, contractors, subcontractors and their respective authorized representatives, servants and employees, from and against any and all THIRD PARTY LOSSES, CLAIMS, EXPENSES, AWARDS, DEMANDS, DAMAGES, LIABILITY AND ANY COSTS RELATED THERETO (INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES, COURT COSTS, COSTS OF APPEAL AND EXPERT WITNESS FEES) OR arising out of or in connection with a party’s (i) breach of any warranty, representation or covenant in this Agreement, (ii) violation of any Laws, or (iii) negligence or misconduct.

8. Limitations on Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY PROPERTY DAMAGE, LOST PROFITS, BODILY INJURY, LOST DATA, BUSINESS INTERRUPTION OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ACTS OF GOD, LOSS OF POWER, OR THE LIKE. UNDER NO CIRCUMSTANCES SHALL Innercircuit, Inc. BE LIABLE TO ANY SUBSCRIBER OR YOUR MANAGEMENT COMPANY OR USER OF THE SITE FOR ANY PROPERTY DAMAGE, LOSS OF PROFITS, BODILY INJURY, LOST DATA, BUSINESS INTERRUPTION, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM ANY SUBSCRIBER’S USE OF OR INABILITY TO USE, THIS SITE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF YOUR MANAGEMENT COMPANY AND/OR SUBSCRIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. EXCLUSIVITY. Now therefore, in consideration of the mutual obligations undertaken herein, the parties each intending to be legally bound, hereby agreed as follows:

1. During the term of the Innercircuit, Inc. Service Agreement and in its entirety while said Agreement remains in full force and effect, the parties agree that the services provided by Innercircuit, Inc. shall be an exclusive contract and all ACH payments and transactions shall be exclusively conducted by Innercircuit, Inc. on behalf of said client, i.e., Management Company

In all other aspects, the terms and conditions of said Innercircuit, Inc. Service Agreement previously entered into between the parties, including said Exhibits, shall remain in full force and effect.

10. Independent Contractor. The relationship between the parties is that of independent contractor, and nothing contained in this Agreement shall make either a partner, agent, employee, joint venture, dealer or franchisee of the other.
NOTHING CONTAINED IN THIS AGREEMENT SHALL ALLOW EITHER PARTY TO CONTRACT ON BEHALF OF THE OTHER PARTY
11. Notices. All notices that either party may be required or desire to give to the other party under this Agreement shall be in writing and shall be given by personal service, facsimile, E-mail, registered mail or certified mail (or its equivalent), or overnight courier to the other party, at its address or facsimile number set forth below, or such other address or facsimile number as may be substituted by notice given as provided herein. Mailed notices and notices by overnight courier shall be deemed to be given upon actual receipt by the party to be notified. Notices delivered by facsimile or E-mail shall be confirmed in writing by overnight courier and shall be given upon actual receipt by the party to be notified.

12. Mediation. Except as provided herein, no civil action with respect to any dispute, claim or controversy arising out of or relating to this Agreement may be commenced until the matter has been submitted to JAMS at its San Francisco Dispute Resolution Center for mediation. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in scheduling the mediation proceedings.

The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. Either party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable relief, neither party may commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 45 days after the date of filing the written request for mediation, whichever occurs first. The provisions of this Clause may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered.

13 Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

14. General. Neither party shall assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other. All exhibits attached hereto are incorporated into this Agreement by reference, as if fully set forth. This is the entire agreement between the parties relating to the subject matter hereof and may only be modified in writing signed by both parties. The terms of this Agreement cannot be varied, waived or amended by except by a writing executed by an authorized representative of each party. Innercircuit shall comply in all respects with U.S. and foreign export and re-export laws and regulations applicable to the technology and documentation provided hereunder. This Agreement shall be governed by and construed in accordance with the laws of the State of California. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In any action to enforce any obligation under this Agreement, Property Management Company agrees that jurisdiction for such action shall be in the State of California and that the prevailing party shall be entitled to all of its reasonable costs, attorney’s fees and expenses in accordance with the same.

This Agreement is executed and in full affect with a signed “Sales Agreement”.

Choice of Law: These terms and conditions shall be governed by and construed in accordance with the laws of the State of California.

Legal Fees: In the event of any dispute arising out of or related to this Innercircuit, Inc. Services Agreement or any of its terms or conditions, the prevailing party shall be entitled to recover its reasonable attorney’s fees, court costs and collection expenses in addition to any other recovery.

Nothing contained in this Agreement shall be deemed or construed to create a co-partnership or joint venture between or among the parties hereto.

Rent Payment Module:

The terms and conditions set forth in the body of this Agreement as identified under the paragraph “Rent Payment Module, paragraph 1.3, are incorporated herein and set forth as thought the same were more fully set forth herein in terms of services provided.

Owner e-Billing & Owner Funds Transfer (if applicable)

Innercircuit’s Owner e-Billing & Owner Funds Transfer enables property managers to both collect payments from owners and disperse funds to owners online. Under like terms and conditions, Innercircuit, Inc., at the request of Management Company, will provide to the extent available credit card payment as set forth in paragraph 1.3.

Resident & Manager Community Web Portal

Innercircuit’s Resident & Manager Community Web Portal enables tenants to place maintenance requests, start or join community clubs and get community information online. The Web Portal also allows property managers the ability to receive and respond to tenant requests online, send mass email announcements and provide announcements to tenants.

EXHIBIT A

Technical and Customer Support

Technical Support – Innercircuit will assist Management Company, its employees, agents and contractors with technical problems or errors on an as-needed basis five (5) days a week during the hours of 8 am and 6 pm (PST or PDT, as applicable) via telephone and/or email. Management Company shall use commercially reasonable efforts to notify Innercircuit of any failure, error or other malfunction of any part of the Services within forty-eight (48) hours of identification of such occurrence.

Customer Support – Innercircuit will offer telephone or e-mail support for Management Company residents from Monday through Friday 8 am to 6 pm (PST or PDT, as applicable).

Innercircuit shall upon annual renewal of your contract increase the hosting/technology fee by 3% annually upon the renewal of your annual contract. This is due to Innercircuit’s overhead costs and hosting fee imposed by the banking host.

Payment of All Fees

On or about the 15^th day of the first month of service, Innercircuit, Inc. will provide an invoice to Management Company for payment of all fees owed.

EXHIBIT B

Should Property Management Company desire for Innercircuit, Inc. to take on additional units not described herein above in the Sales Agreement/Proposal, Property Management Company will sign an addendum agreeing to the same terms and conditions as set forth herein. In the event any additional units are added at the request and agreement of Innercircuit, Inc. and the Management Company, and an addendum has not been executed, Management Company agrees that the terms and conditions set forth in this Innercircuit, Inc. Services Agreement shall be binding in full on any additional units added that are not included in the Sales Agreement/Proposal.

Specifically, to wit: Any additional units that Innercircuit, Inc. has asked to provide services to said Management Company, Management Company expressly agrees to be bound by the same terms and conditions as set forth herein in the event an addendum has not been executed.