MDS Service Platform Terms Of Use

Version: June 1, 2025

  1. Thank you for licensing MDS Service Platform and the add-on products and services You selected (referred to below as MDS “Service Platform” or the “Software”).The latest version of these terms, together with Your signed Service Platform agreement, are the Terms of Use (or “TOU”) that apply to You. “You” and “Your” refer to the customer who has executed the MDS Service Platform Agreement.

2.  License, Restrictions, Access and KYC

a. Limited License.

MDS licenses the Software for the business of property management, and grants You a non-exclusive, non-transferable (except as expressly permitted), revocable, non-sublicensable, limited license to access and use the Software for Your internal use, subject to Your acceptance of the latest TOU version. You may not use any superseded, outdated or uncorrected versions of the Software.

b. Limited License Restrictions.

In addition to the other restrictions set forth herein, You expressly agree not to do any of the following: (i) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (ii) work around technical limitations, or otherwise translate the Software, in whole or in part; (iii) create derivative works or improvements, whether or not patentable, of the Software or any portion thereof; (iv) transfer, lease, lend, assign, sublicense, distribute, publish, or otherwise make available the Software or any features or functionality to any other person or entity for any reason; (v) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software, including any copy thereof; or (vi) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Software. Furthermore, You shall not use the Software in any manner that violates (a) any intellectual property rights of any person or entity or (b) any applicable law or regulation. In the event You violate the scope of the license rights granted herein, in addition to any other remedy that may be available to MDS, Your license will terminate, and You must uninstall the Software from Your device(s).

c. Title.

Title to and ownership of the Software, including all improvements, updates and modifications thereto, and all related intellectual property rights, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary information, shall remain with MDS. Other than the limited license granted herein, You have no other rights with respect to the Software, whether by estoppel, implication or otherwise.

d. Updates.

MDS reserves the right to make modifications, updates and/or improvements to the Software at any time and without prior notice. All modifications, updates and/or improvements to the Software are subject to the terms and conditions of this Agreement. You agree that MDS may use the information You submit to MDS or through the Software, including without limitation, technical information about Your device, to provide services to You and to improve or support the Software. MDS reserves the right to modify, amend, or otherwise revise this Agreement from time to time. If You continue to use the Software following such posting, You are deemed to have agreed to such modifications, amendments or revisions.

e. Access to the MDS Cloud.

MDS will use commercially reasonable efforts to keep the MDS network, including servers owned, leased and maintained by MDS (sometimes called the “MDS Cloud”) up and running 24 hours per day, seven days per week, excluding downtime for maintenance, repairs, and other necessary activities. You are prohibited from willfully, knowingly, maliciously or negligently doing anything to directly or indirectly disrupt, damage, interfere with, or otherwise adversely impact the MDS Cloud including but not limited to, introducing, transmitting or disseminating, actively or passively, any viruses, corrupted files, malware, or any other harmful or malicious data, code or the like.

f. MDS’s Know-Your-Client/Customer Identification Program (“KYC” or “CIP”). Basic information about You or Your business is collected during the registration process. Depending on the additional features, products and services You license (such as tenant screening and payment processing), You may be required to provide certain additional information about You, Your business, an authorized representative of Your business, or anyone who own 25% or more of Your business or company (each a “Beneficial Owner”). This information is gathered and may be validated by MDS in order to comply with applicable Anti-Money Laundering (“AML”) and related policies. MDS’s compliance with AML and related policies, and Your compliance with the KYC process, are required. If the information You provide for KYC cannot be validated, or if You choose for any reason not to provide the information requested, You may be prohibited from licensing and using some features, products and services (such as tenant screening and payment processing).

3. Length of Your License (Term)

Initial Term, Subsequent Term and Final Term.

You have agreed to an Initial Term (and subsequent Terms) of one year. Your right to access the Software begins upon the execution of this Agreement (the “Effective Date”) and will continue for one year from the Effective Date (the “Initial Term”). If You continue to use the Software beyond the Initial Term, a new one-year term (a subsequent “Term”) will automatically begin, and if You continue to use the Software beyond a subsequent Term, another Term will begin unless either Party gives notice of its intention not to renew at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable.  The Term in which Your license ends is the Final Term.AT THE END OF YOUR FINAL TERM, YOUR LICENSE WILL EXPIRE AND ACCESS TO THE SOFTWARE AND YOUR DATA WILL IMMEDIATELY END WITHOUT FURTHER NOTICE. IF YOU DESIRE TO SAVE ANY DATA FOR ANY REASON, INCLUDING FOR ANY LEGAL OR REGULATORY REASON, YOU MUST DO SO BEFORE THE END OF YOUR FINAL TERM. IF YOU RELICENSE THE SOFTWARE WITHIN 45 CALENDAR DAYS AFTER CANCELLING OR TERMINATING UNDER THIS SECTION, YOU MAY BE ABLE TO RECOVER SOME (BUT NOT ALL) OF YOUR DATA, CONFIGURATIONS, AND SETTINGS, BUT MDS CANNOT GUARANTEE ANY SUCH RECOVERY. AT THE END OF SUCH 45 CALENDAR DAYS, ALL DATA RELATED TO YOUR USE OF THE SOFTWARE WILL BE DELETED, AND DATA THAT IS DELETED CANNOT BE RECOVERED. IT IS YOUR SOLE AND EXCLUSIVE RESPONSIBILITY, NOT MDS’S RESPONSIBILITY, TO SAVE ANY DATA THAT YOU MAY HAVE A LEGAL OR OTHER OBLIGATION TO PRESERVE.

4. Pricing, Minimums, and Billing

This information is in the Service Platform Agreement signed by You and MDS.MDS reserves the right to audit Your database at any time solely to confirm the scope of Your use of the Software relative to Your contractual license.

5. Right to Cancel or Terminate and Survival

a. Your Right To Terminate.

In the event that MDS breaches any of its obligations under this Agreement, and such breach is not cured within 30 days following receipt of written notice by You to MDS of such default, and You have not defaulted hereunder, You shall have the right to terminate this Agreement upon 30 days’ prior written notice to MDS.

b. MDS’s Right to Terminate.

MDS may terminate its Agreement with You if (i) You materially breach the TOU or any other agreement between You and MDS; (ii) You violate or threaten to violate legal or regulatory obligations; (iii) You use the software for any improper purpose whatsoever; (iv) You threaten or cause harm to MDS or a third party; (v) where termination is required by law; (vi) a dispute arises between You and others risks or causes MDS to incur legal fees and expenses, as determined by MDS in its sole discretion. If Your account is terminated under this section, MDS will make a reasonable effort to notify You in advance, but may take any action as required by law or contract, or that is otherwise reasonably appropriate under the circumstances, as determined by MDS in its sole discretion.

c. Failure to Pay.

If payment is not received or if for any reason Your payment is declined, returned, or otherwise cannot be processed, You will be notified by email at the email address on file for Your billing point of contact. If You receive such notice and believe it is incorrect, You MUST notify MDS of Your dispute in writing within 10 days from the date of the notice.IF YOU DO NOT BRING YOUR ACCOUNT CURRENT (OR, IF AFTER CONTACTING MDS AS REQUIRED BY THESE TOU, YOU AND MDS ARE UNABLE TO REACH A MUTUALLY AGREEABLE RESOLUTION), YOUR LICENSE WILL IMMEDIATELY TERMINATE AND ACCESS TO THE SOFTWARE AND YOUR DATA WILL IMMEDIATELY END WITHOUT FURTHER NOTICE 45 CALENDAR DAYS FROM THE DATE OF MDS’S NOTICE TO YOU. IF YOU DESIRE TO SAVE ANY DATA FOR ANY REASON, INCLUDING FOR ANY LEGAL OR REGULATORY REASON, YOU MUST DO SO BEFORE THE END OF SUCH 45 CALENDAR DAYS. AT THE END OF SUCH 45 CALENDAR DAYS, ALL DATA RELATED TO YOUR USE OF THE SOFTWARE WILL BE DELETED, AND DATA THAT IS DELETED CANNOT BE RECOVERED. IT IS YOUR SOLE AND EXCLUSIVE RESPONSIBILITY, NOT MDS’S, TO SAVE ANY DATA THAT YOU MAY HAVE A LEGAL OR OTHER OBLIGATION TO PRESERVE. IF YOU DO NOT SUBMIT A WRITTEN DISPUTE, IF YOU AND MDS ARE UNABLE TO REACH A MUTUALLY AGREEABLE RESOLUTION, OR IF YOUR ACCOUNT IS NOT BROUGHT INTO GOOD STANDING WITHIN 45 CALENDAR DAYS FROM THE DATE OF THE NOTICE, YOUR ACCESS TO MDS SERVICE PLATFORM WILL TERMINATE AND FOR SAFETY AND SECURITY REASONS ALL PROPERTY MANAGEMENT AND OTHER DATA RELATED TO YOUR USE OF THE SOFTWARE WILL BE PERMANENTLY DELETED. IF YOU WISH TO SAVE ANY DATA, YOU MUST DO SO BEFORE THE END OF SUCH 45 CALENDAR DAYS OR BY SUCH OTHER DEADLINE AS AGREED TO BY MDS IN ITS SOLE DISCRETION.The address for submitting a written payment dispute is:MDS Service Platform Attn: Accounts Receivabled. Survival. Your obligations under Sections 2, 3 and 4 of the TOU, any other obligations You have to protect information that does not belong to You, and Your obligation to pay as agreed continue through the end of the Final Term even if You stop using the Software or cancel or are terminated per the TOU.

6. Support and Training
 There are a variety of training and support options available to You.

  Customer Support. (a) MDS shall provide You with MDS Services support via telephone and e-mail according to the procedures outlined in subsection (b) below. Such support may be accessed:

(b) MDS shall endeavor to provide Customer with the support services outlined below.

Application Servicing Support
Software Maintenance Ongoing telephone support (up to 4 hours per month) to assist with topics on which the customer has already been trained. Calls regarding a single use case lasting longer than 15 minutes are considered training and are not included as part of Software Maintenance and Support.
Debugging Maintenance MDS shall use commercially reasonable efforts to repair reproducible non-critical defects in the MDS Services within 10 business days.   MDS shall use commercially reasonable efforts to repair reproducible critical defects in the MDS Services in 2 business days if such defect causes major failure of the system. A “major failure of the system” is defined as a failure of the entire system, or a critical function or component of the MDS Services, that renders the whole inoperable, substantially unusable, or that material affects Customer’s ability to utilize the MDS Services or perform critical business functions.

 

Backup MDS will backup Customer’s data at least every night after normal business hours. In the event of data needing to be restored, the newest data will be from the end of prior day, or from the most current version of available backup. MDS perform backups to a location that is different than where the server is located.

 

Training. 

MDS shall provide You with training/consultation in connection with the MDS Services, at Your election and in Your sole discretion, at the hourly rate, and per the number of hours, set forth in the Agreement. Such training/consultation shall solely include:

  • On-site training in minimum six (6) hour blocks
  • Telephone training in minimum of 15-minute blocks
  • Report creation
  • Customization of existing reports
  • Custom screen design
  • Custom programming
  • Check/deposit slip printing configuration and setup
  • Assistance in the configuration of any third-party periphery device or service

 

7. Authorized Users and Passwords

a. Authorized Users.

You agree that You will not allow anyone to log into the Software for any purpose that is inconsistent with or prohibited by the TOU. Only You or the individuals You have expressly authorized to manage properties on Your behalf are authorized to access and use the Software, subject to the TOU.


b. Passwords.

You will always observe good password security practices, including when using the Software. It is Your sole and exclusive responsibility to protect Your password(s). MDS will make a reasonable effort to work with You to restore a backup of data that is lost or corrupted because Your password was compromised or obtained and used by someone without authorization, but MDS shall not be liable to You or any third party for any data loss, corruption, password issues, or the like. You are responsible for maintaining adequate security and control of any and all User IDs, Passwords, hints, personal identification numbers (PINs), or any other codes that You use to access the Software (collectively, “Security Devices”). Do not discuss, compare, or share information about Your Security Devices unless You are willing to give them full use of Your money. Any loss or compromise of any Security Device and/or Your personal information may result in unauthorized access to Your Software by third parties. You are responsible for providing MDS with Your any changes to Your current email address and telephone number in order to receive any notices or alerts that MDS may send to You. MDS assumes no responsibility for any loss that You may sustain due to compromise of Your Security Devices due to no fault of MDS and/or Your failure to follow or act on any notices or alerts that MDS may send to You.

 

8. Data Ownership, Data Protection and Limitation of Liability

a. Data Ownership.

You warrant, acknowledge, and agree that You own, or have the right and authority to manage on behalf of a third-party, the properties You enter into the Service Platform. Data related to any properties You own or manage, including data related to Your residents or tenants, or resident or tenant prospects (collectively, “tenants”) that You or Your tenants have entered into the Software is hosted by MDS in the MDS Cloud at no additional cost to You, but this data does not belong to MDS. Subject to the TOU, You may copy, delete, and export this data at any time using the standard user functionality and reports available within the Software. YOU HEREBY WARRANT, ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE AND EXCLUSIVE RESPONSIBILITY TO PRESERVE ANY DATA THAT IS IMPORTANT TO YOU, OR THAT YOU HAVE A LEGAL OBLIGATION TO PRESERVE, INCLUDING IN CONNECTION WITH A SUBPOENA OR ANY OTHER LEGAL PROCEEDING; AND THAT YOU SHALL INDEMNITY AND HOLD MDS HARMLESS FOR THE DELETION OF ANY DATA BY YOU OR MDS, AS PERMITTED BY THE TOU, EVEN IF YOU ARE OR WERE UNDER AN OBLIGATION TO PRESERVE IT.

b. Data Protection.

MDS takes the protection of highly sensitive data in the MDS Cloud seriously and uses firewalls and other commercially reasonable technology generally used in the industry to prevent unauthorized third-party access to and the inadvertent loss of such hosted data. MDS uses commercially reasonable encryption technology generally used in the industry to protect highly sensitive tenant data that is being transmitted or that is stored or “at rest” in the MDS Cloud.

c. LIMITATION OF LIABILITY.

NOTWITHSTANDING THE FOREGOING, MDS SHALL NOT BE LIABLE TO YOU IF: (I) ITS USE OF FIREWALLS AND OTHER TECHNOLOGY FAILS TO PREVENT UNAUTHORIZED THIRD-PARTY ACCESS TO ANY DATA HOSTED IN THE MDS CLOUD; OR (II) ITS USE OF ENCRYPTION TECHNOLOGY FAILS TO PREVENT UNAUTHORIZED THIRD PARTIES FROM ACCESSING ANY DATA DURING TRANSMISSION OR THAT IS AT REST IN THE MDS CLOUD. NOTHING IN THE TOU SHALL CONSTITUTE A REPRESENTATION, GUARANTEE OR WARRANTY BY MDS THAT HOSTED DATA SHALL BE INACCESSIBLE TO UNAUTHORIZED THIRD PARTIES.

9. Confidentiality, Exceptions, Disclosure Obligations, and Returning Confidential Information

a. Protecting Confidential Information.

Confidential Information means the property and tenant data that You manage using the Software, and all MDS data including but not limited to all data and information that is patented, copyrighted, constitutes a trade secret, or any other information of any kind that belongs to MDS. You and MDS agree not to disclose the other’s Confidential Information to any unauthorized third party, except as described below or as expressly permitted by the TOU. Your Confidential Information is and shall always remain Yours, and MDS’s Confidential Information is and shall at times remain MDS’s, and except for the license expressly granted in the TOU, there is no other right, license or right granted, express or implied, to use or disclose the Confidential Information of one party by the other party.

b. Protection Exceptions.

Your and MDS’s obligation to protect the other’s Confidential Information does not apply if the information: (1) is by definition not confidential; (2) is no longer confidential (through no fault of the party that would like to disclose it); (3) was obtained by or already in the possession of the party that wants to disclose it, provided it was obtained properly and without violating the TOU or any prior existing obligation to keep it confidential; or (4) was independently developed (without having used, referred to, or relied on the other party’s Confidential Information) by the party that wants to disclose it.


c. MDS’s Obligation to Disclose.

From time to time, MDS may receive a legal request from a third party in the form of a subpoena, search warrant, or other legal process (a “Disclosure Demand”) that requires MDS to disclose certain Confidential Information that belongs to You and that is in MDS Cloud. When this happens, MDS will notify You that it has received the Disclosure Demand (unless MDS is legally prohibited from doing so, such as due to a grand jury proceeding or sealed search warrant, for example). If You receive a Disclosure Demand notice from MDS, You can either: (1) take no action; or (2) take steps, at Your own expense, to prevent MDS from complying with the Disclosure Demand. TAKING STEPS TO PREVENT MDS FROM COMPLYING WITH A DISCLOSURE DEMAND WILL LIKELY REQUIRE YOU TO TAKE PROMPT, APPROPRIATE LEGAL ACTION, WHICH MDS CANNOT AND SHALL NOT PROVIDE UNDER ANY CIRCUMSTANCES. If You take no action, or if the action You take is untimely or unsuccessful, MDS will comply with the Disclosure Demand as required.


d. Returning Confidential Information.

As noted elsewhere in the TOU, it is Your sole and exclusive responsibility to copy and retain any data related to any properties You own or manage that You have entered into the Software and that does not belong to MDS. MDS may permanently delete such data as set forth in the TOU, but MDS will not deliver this data to You. Upon termination or the end of Your Final Term, You have five (5) business days to return to MDS any MDS Confidential Information You may have in Your possession, custody or control, if any, in any form.

10. LIMITED WARRANTY, DISCLAIMERS, WAIVERS, REMEDIES, AND LIABILITY LIMITATIONS


a. Limited Software Warranty and Your Remedies for Breach.

MDS warrants that the Software does not infringe on or misappropriate any third-party proprietary information, trademark, copyright, patent rights, intellectual property rights, or trade secrets. Any damages for a breach of this Limited Software Warranty by MDS are strictly limited by the TOU. IF MDS BREACHES THIS LIMITED SOFTWARE WARRANTY TO YOU, MDS AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO MODIFY THE LICENSED PROGRAMS SO THEY CONFORM TO THIS WARRANTY. MDS WILL NOTIFY YOU IF IT IS NOT COMMERCIALLY REASONABLE FOR IT TO MAKE SUCH MODIFICATIONS, WILL IMMEDIATELY TERMINATE YOUR RIGHT TO ACCESS AND USE THE SOFTWARE WITHOUT ANY PAYMENT PENALTY, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY. IF UNDER THIS WARRANTY YOU DO NOT ACCEPT MDS’S MODIFICATIONS, YOU MUST NOTIFY MDS IN WRITING WITHIN 30 CALENDAR DAYS AND AT THE CONCLUSION OF THESE 30 DAYS YOUR RIGHT TO ACCESS AND USE THE SOFTWARE WILL TERMINATE WITHOUT ANY PAYMENT PENALTY, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.


b. WARRANTY DISCLAIMER.

THE SOFTWARE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. EXCEPT AS EXPRESSLY SET FORTH IN THE “LIMITED SOFTWARE WARRANTY,” MDS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. LICENSOR DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SOFTWARE WILL CONFORM TO ANY DESCRIPTION, MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, VIRUS-FREE, ERROR-FREE, FREE OF DEFECTS, THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SPEED OF THE SERVICES WILL BE SATISFACTORY TO YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS AGENTS, OR EMPLOYEES SHALL CREATE ANY WARRANTY, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.


c. INTERNET PERFORMANCE DISCLAIMER.

MDS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA VIA THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES OBTAINED BY YOU AND PROVIDED OR CONTROLLED BY THIRD PARTIES OVER WHICH MDS HAS NO CONTROL. AT TIMES, ACTIONS OR INACTIONS OF YOU AND SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT INTERNET PERFORMANCE. MDS WILL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY AND AVOID SUCH EVENTS OVER WHICH IT HAS EXCLUSIVE CONTROL BUT CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR DESPITE MDS’S BEST EFFORTS. ACCORDINGLY, MDS DISCLAIMS ANY LIABILITY RESULTING FROM OR RELATING TO INTERNET PERFORMANCE.


d. DAMAGES WAIVER.

MDS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES. IN ANY EVENT, THE AGGREGATE LIABILITY OF MDS UNDER THIS AGREEMENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM SHALL BE LIMITED TO THE AMOUNT PAID TO MDS BY YOU HEREUNDER FOR THE SPECIFIC PORTION OF THE SOFTWARE GIVING RISE TO SUCH CAUSE OF ACTION OR CLAIM IN THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH CAUSE OR ACTION OR CLAIM. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.


e. OTHER LIABILITY LIMITATIONS AND YOUR REMEDIES.

IN ADDITION TO (AND NOT IN PLACE OF) ALL OTHER LIMITATIONS SET FORTH IN THE TOU, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AGREE THAT MDS SHALL HAVE NO LIABILITY WHATSOEVER FOR CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH YOUR LICENSE AND USE OF THE SOFTWARE AND ANY ADDITIONAL FEATURES, PRODUCTS OR SERVICES, EXCEPT WHERE SUCH CLAIMS OR CAUSES OF ACTION WERE CAUSED SOLELY BY MDS AND WERE DUE TO MDS’S WILLFUL MISCONDUCT, AND IN SUCH AN EVENT MDS’S MAXIMUM LIABILITY TO YOU, REGARDLESS OF THE AMOUNT OF LOSS YOU MAY CLAIM OR HAVE SUFFERED, SHALL BE LIMITED TO A REFUND OF THE FEES YOU ACTUALLY PAID TO MDS IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE DATE YOU FIRST NOTIFY MDS OF YOUR CLAIM OR CAUSE OF ACTION, AND THIS REFUND IS YOUR SOLE AND EXCLUSIVE REMEDY UNDER THE TOU.


11. Disputes.

In the event of a dispute arising out of or related to the TOU or Your use of the Software, You and MDS will use commercially reasonable efforts, in good faith, to informally resolve the dispute. These efforts shall be confidential and protected under applicable law as compromise and settlement negotiations. If after 30 calendar days of good faith negotiations the Parties are unable to reach a mutually satisfactory resolution, then the Parties further agree that any unresolved controversy or claim arising out of or relating to this Agreement, or the interpretation, termination, validity, enforcement, or breach thereof, shall be resolved and determined by arbitration administered by the American Arbitration Association in accordance with its Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, that a claim seeking money damages of $5,000 or less may be brought in the small claims parts of the Suffolk County District Courts. Claims that proceed to arbitration shall be heard by a single arbitrator, unless the claim amount exceeds $500,000, in which case the dispute shall be heard by a panel of three arbitrators if all parties so agree; otherwise, there will be a single arbitrator. The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement; provided, however, that any Party may seek a status quo injunction in aid of arbitration in any federal or state court located in Suffolk County without waiving the right to arbitrate. The sole (or Chair) arbitrator shall have no less than 15 years’ experience in arbitrating the type of dispute presented. The venue and place of arbitration shall be Nassau County, New York. The arbitration shall be governed by the laws of the State of New York, without regard to conflicts of laws principles. The arbitrator(s) have jurisdiction to determine challenges to the validity of the arbitration agreement; if any portion of the arbitration agreement is determined to be invalid, the remainder will be severed and deemed valid. The arbitrator(s) may determine how the costs and expenses of the arbitration, including without limitation arbitrator compensation, shall be allocated between or among the Parties, and (s)he may award attorneys’ fees to the prevailing Party, in his or her discretion. The award of the arbitrator(s) shall be accompanied by a bare, standard award. Any arbitration proceeding hereunder shall be both private and confidential. Except as may be required by law, neither a Party nor an arbitrator nor counsel or other representative for a Party may disclose the existence, content, or results of any mediation or arbitration hereunder without the prior written consent of all Parties or except as required by law. Each Party consents to service of process in the commencement of any arbitration proceeding by overnight mail delivery service with an additional copy sent by first-class mail, postage pre-paid, to the parties’ respective addresses provided in this Agreement. The Parties agree that, in the event that a Party (the “Defaulting Party”) fails or  refuses to timely pay its required share of the deposits for arbitrator compensation or forum administrative charges (collectively, “Arbitration Costs”) which results in the suspension or termination of the arbitration proceedings, then the Defaulting Party shall be deemed to have irrevocably waived its right to arbitrate the dispute to which such Arbitration Costs relate. In such event, the other Party (the “Non-Defaulting Party”) shall have the right, at its sole discretion, to pursue the dispute in a court of competent jurisdiction, and the Defaulting Party shall be precluded from asserting the arbitration agreement as a bar to such litigation. The Defaulting Party shall be responsible for all reasonable costs and attorneys’ fees incurred by the Non-Defaulting Party in connection with enforcing this provision or pursuing the dispute in court.

12. Assignment.

The TOU and Your access to the Software cannot be assigned by You for any reason without the prior, express, written consent of MDS, which MDS may withhold in its sole discretion for any reason. Any attempted or purported assignment without the prior, express, written consent of MDS is void. The TOU are binding on and inure to the benefit of both You and MDS and our respective, authorized assigns, successors, and legal representatives.

13. Governing Law and Venue.

The TOU are governed and determined by the laws of the State of New York, without any regard to conflicts of laws rules or regulations. Any action or proceeding related to or arising out of the TOU shall be resolved only in a court of competent jurisdiction in the County of Suffolk, New York (or, if there is no court of competent jurisdiction in the County of Suffolk, New York, then the court of competent jurisdiction closest to the County of Suffolk, New York), and You and MDS expressly consent to the personal jurisdiction of such courts and waive any right to cause any action or proceeding to be brought or tried elsewhere.

14. Waiver.

If You or MDS waive any breach of the TOU by the other party, that waiver shall not be construed as a waiver of any subsequent breach of the same or similar nature, or any other breach of any kind.

15. Severability.

If a court or other body of competent jurisdiction determines that any part of the TOU is unenforceable, You and MDS expressly acknowledge and agree that all other parts of the TOU unaffected by that determination shall remain valid and enforceable.

16. License for Data.

In addition to the Software, MDS retains all ownership and intellectual property rights to all programs, services, documents, and materials developed and delivered by MDS under this Agreement. You retain all ownership and intellectual property rights in and to Your data that You or Your affiliates, customers, merchants, employees, officers, directors, agents, or contractors submit through the Software (collectively, “Data”).


17. Entire Agreement.

The TOU constitute the final, complete, and exclusive agreement between You and MDS pertaining to the subject matter in the TOU and expressly replace and supersede other prior understandings or agreements, if any, and in any form. You and MDS also acknowledge and agree that neither has been induced to enter into the TOU by or because of any representations, warranties, or otherwise that are not set forth in the TOU, as may be modified from time to time. You acknowledge that this Agreement applies only to Your use of the Software and does not replace any other agreements or terms and conditions that may be applicable to the services that You access through the use of the It is Your sole responsibility to comply with all other terms and conditions that may be applicable to such services.

 

18. Modifications and Variation of Terms.

You acknowledge and agree that: (a) the TOU and any additional terms of use that apply to the features, products and services You qualify for and license can only be modified by MDS; and that (b) some features, products and services (such as payment processing or tenant screening) are subject to terms of use written and required by third parties that cannot be modified. MDS is permitted to revise the terms and conditions of the TOU at any time as it sees fit, and by using the Software, You are expected to review such revised terms and conditions to ensure You understand all terms and conditions governing use of the Software and this Agreement.


19. Additional Products and Services

Additional Products and Services are available from both MDS and MDS product and service partners. MDS or MDS’s product and service partners may market and offer directly to Your tenants, and Your tenants may choose to license or receive directly from MDS or MDS’s product and service partners, certain Additional Products and Services including some that may not be listed here. You expressly acknowledge, agree, and grant MDS the right to market such products and services directly to Your tenants and, if licensed, to manage the provision of such Additional Products and Services by accessing and using Your tenants’ names, addresses, phone numbers, email addresses, and (for the purpose of determining whether a unit is vacant, occupied, or unavailable), lease data (such as move in date, move out date, lease from date, lease to date, etc.). For the avoidance of doubt, MDS does not and will not share among clients any confidential non-public lease rates (i.e., the actual rental unit price paid by a tenant) in connection with any Additional Products and Services MDS offers or may offer in the future. You also expressly acknowledge, agree, and grant MDS the right to market such Additional Products and Services by: (i) placing and maintaining advertising materials, (ii) sending text messages (including text messages sent via automatic telephone dialing system), e-mailing, sending U.S. mail, and by (iii) any other methods that comply with applicable consumer rules and regulations, and expressly warrant, acknowledge, and agree that MDS’s marketing and provision of such products and services shall not violate any other agreement, promise, or undertaking that You have with any third party.

20. Payment Processing Services.

a. Your Own Payment Processor:

Should You elect to utilize Your own third-party payment processor for transactions conducted through MDS’s Service Platform, Software, website and services, You hereby agree to comply fully with all applicable terms, conditions, rules, and policies imposed by Your chosen payment processor. MDS shall bear no responsibility or liability for any issues, disputes, or liabilities arising from or related to Your engagement with Your selected payment processor.

b. MDS’s Recommended Payment Processor:

In the event You choose to utilize a payment processor recommended or provided by MDS for transactions conducted through MDS’s Service Platform, Software, website and services, You expressly agree to (i) promptly execute any and all agreements, forms, or other documentation reasonably required by such recommended payment processor to establish and maintain an account or relationship for payment processing services, (ii) and fully comply with and adhere to all terms, conditions, rules, policies, and guidelines set forth by MDS’s recommended payment processor. You acknowledge that Your ability to use MDS’s Service Platform, Software, website, and services for transactions may be contingent upon Your acceptance of and adherence to such third-party payment processor’s terms. MDS shall not be liable for any acts, omissions, or failures of its recommended payment processor.

  1. Consent to Use Electronic Signatures and Communications.a. Consent.

    To the fully extent permitted by applicable laws, You consent to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all Services provided hereunder and in connection with Your relationship with MDS (collectively, “Communications”). Electronic Communications will be sent to the email address on Your profile on Your account. MDS may, and may request You to, execute Communications electronically. You agree that such electronically executed Communications will have the same legal effect as a signed physical document. By accepting and agreeing to this Agreement electronically, You represent that (i) You have read and understand this consent to use electronic signatures and to receive Communications electronically; (ii) You have the hardware and software necessary to receive and store electronic Communications; and (iii) Your consent will remain in effect until You withdraw Your consent as specified below. You must keep Your email address on Your account current and notify MDS of any change in Your email address by updating Your profile on Your account. You should print and save or electronically store a copy of all Communications that MDS sends to You electronically. You may also request paper copies of electronic Communications from MDS by contacting MDS as provided herein.

    b. Hardware and Software Requirements.

    In order to access, view, sign and retain electronic Communications provided by MDS, You must have (i) an up-to-date device (g., computer, tablet, or mobile phone) which has internet access; (ii) a current, compatible web browser, including the current or immediately preceding version of Chrome, Internet Explorer, Firefox, Safari and Edge; (iii) a valid email account; (iv) an operating system on the device capable of receiving, accessing and displaying Communications in electronic form via text-formatted email or gaining access to the Passport website using a supported browser, including any necessary software (e.g., Adobe to read PDF documents); (v) a device capable of storing and printing Communications, if You wish to store or print any Communications. You must take all actions necessary to avoid Communications from MDS being blocked or going into any spam folder.

    c. Right to Withdraw Consent.

    Your consent to receive Communications electronically will remain in effect until You withdraw it. You may withdraw Your consent to receive further Communications electronically at any time by contacting MDS as provided herein. If You revoke Your consent to receive Communications electronically, MDS reserves the right to close Your accounts. Such revocation will be effective after MDS has had a reasonable period of time to act on Your withdrawal request. Such revocation of consent to receive Communications electronically will not apply to any Communications that were sent before Your request to withdraw consent becomes effective.
    d. Changes    .

    MDS may, in its sole discretion, communicate with You in paper form. In addition, MDS reserves the right to discontinue the provision of electronic Communications or to terminate or change the terms and conditions on which it provides electronic Communications. Except as otherwise required by applicable law, MDS will notify You of any such termination or change by providing the updates on the Service Platform or delivering notice of such termination or change electronically.


    e. U.S. Federal Law    .

    You acknowledge and agree that the Services are subject to the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”), and that the E-SIGN Act will apply to validate Your ability to engage electronically in transactions related to the Services.