Terms and Conditions
COMMON AREA LLC
GENERAL TERMS AND CONDITIONS
1. Applicability.
(a) These terms and conditions for services (these “Terms”) govern the provision of services by Common Area LLC, a Pennsylvania limited liability company (“CommonArea”) and are incorporated by reference into each (i) Agreement (each a “Management Agreement”) between CommonArea and and any company that manages (as applicable, a “Management Company”) any community association or homeowner association (each, an “Association”), and (ii) each Agreement between CommonArea and a financial institution (each, a “Financial Institution Agreement. The counter-party to any Financial Institution Agreement is hereinafter referred to as a “Financial Institution” and any Financial Institution or Management Company can be referred to as a “User”.
(b) The applicable Management Agreement or Financial Institution Agreement with the User (as applicable, the “User Agreement”) and these Terms comprise the entire agreement between the User and CommonArea, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the User Agreement, these Terms shall govern, unless the User Agreement expressly states that the terms and conditions of the User Agreement shall control.
(c) Each User Agreement permits the User to access the CommonArea Platform (the “CommonArea Platform”).
2. CommonArea Services. CommonArea shall provide access to the CommonArea Platform as described in the User Agreement (the “Services”) in accordance with these Terms. Information provided when using the Services is not intended for distribution to or use by any person or entity other than User, or in any jurisdiction or country where such distribution or use would be contrary to law or regulations or which would subject CommonArea to any registration requirement within such jurisdiction or country. If a User accesses the services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent locals laws are available.
3. User's Obligations. User shall:
(a) promptly provide to CommonArea any direction, information, approvals, authorizations, documemtation or decisions that are reasonably necessary for CommonArea to perform Services in accordance with the requirements of this Agreement; and
(b) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services.
4. User's Acts or Omissions. If CommonArea's performance of its obligations under this Agreement is prevented or delayed by any act or omission of User or its agents, subcontractors, consultants, or employees, CommonArea shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by User, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) In consideration of the provision of the Services by CommonArea and the rights granted to User under this Agreement, User shall pay the fees set forth in the User Agreement.
(b) User shall pay all invoiced amounts due to CommonArea within thirty (30) days from the date of CommonArea's invoice. User shall make all payments hereunder in US dollars by wire transfer or other form of immediately available funds.
(c) In the event payments are not received by CommonArea fifteen (15) days after becoming due, CommonArea may:
(i) charge interest on any such unpaid amounts at a rate of two percent (2%) per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
(ii) suspend performance for all Services until payment has been made in full.
6. Taxes. User shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by User hereunder.
7. Intellectual Property.
(a) All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks and service marks (whether or not registered), trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are contained in the CommonArea Platform except for any Confidential Information of User or User materials shall be owned by CommonArea. CommonArea hereby grants User a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable User to make reasonable use of the Deliverables and the Services.
(b) Either party may provide the other with copies of any brochures, newsletters, advertising, or other written material of any kind or description (collectively, “Marketing Material”) for the other party to use in connection with this Agreement. To the extent any such Marketing Materials contains any trademarks, tradenames, domain names, slogans or logos of the party providing such Marketing Materials (as applicable, the “Marks”) such party hereby grants to the other a right and license to use the Marks in connection with its efforts under this Agreement. Each party will comply with any trademark usage guidelines provided by the other in connection with use of the Marks.
8. Confidential Information.
(a) Each Party (as applicable, a “Discloser”) acknowledges that it may disclose its Confidential Information to the other Party (as applicable, a “Recipient”) during the term of this Agreement. Each Party, as a Recipient, agrees that it shall use commercially reasonable efforts, which shall include, at a minimum, the actions it takes to protect its own Confidential Information, to prevent the duplication or disclosure of Discloser’s Confidential Information. Except as expressly permitted by this Agreement, a Recipient must hold and protect Discloser’s Confidential Information in strict confidence, must use Discloser’s Confidential Information only as needed to render performance, or to exercise rights and remedies, under this Agreement. A Recipient may not disclose Discloser’s Confidential Information to any third party without the prior written consent of Discloser. Each Recipient agrees that it will use Discloser’s Confidential Information solely as permitted by this Agreement and that it will not, except as required by applicable law, disclose any of Discloser’s Confidential Information to any of Recipient’s affiliates, directors, officers or employees, or to any third party, except on a “need to know” basis to perform such Party’s obligations hereunder, who shall each agree to comply with the confidentiality provisions of this Agreement. The Discloser will retain exclusive ownership of its Confidential Information with the right to demand return or proof of destruction of Confidential Information from the Recipient at any time.
(b) A Recipient may disclose Discloser’s Confidential Information in response to a request for disclosure by a court or another governmental authority, including pursuant to a subpoena, court order, or audit-related request by a taxing authority, if Recipient: (i) promptly notifies Discloser of the terms and the circumstances of that request, (ii) consults with Discloser and reasonably cooperates with Discloser’s requests to resist or narrow that request, (iii) furnishes only information that, according to written advice of its legal counsel, Recipient is legally compelled to disclose, and (iv) provides reasonable assistance to allow Discloser to attempt to obtain an order or other reliable assurance that confidential treatment will be accorded the information disclosed.
(c) “Confidential Information” means any proprietary, confidential or non-public information of a Party including, but not limited to, the services, business and/or activity, the financial information provided pursuant to User Agreement, data reports, customer lists, any associations that are managed by User (and their non-public information), any trade secrets (as defined by the Uniform Trade Secrets Act and/or any other applicable state statutes), the terms and conditions of the User Agreement, or other information that is marked as confidential or is treated as confidential or secret by the Party and is the subject of efforts by Discloser that are reasonable under the circumstances to maintain its secrecy. Any personally identifiable information of Discloser’s customers or any associations that are managed by User that Discloser discloses to Recipient will be treated as “Confidential Information” of Discloser. Confidential Information shall not include information (a) already lawfully known to or independently developed by Recipient without use of Discloser’s Confidential Information, (b) generally known to the public (other than as a result of a breach by Recipient of this Agreement), or (c) lawfully obtained from any third party without any obligation of confidentiality.
9. Privacy Policy. The CommonArea cares Privacy Policy (available at https://commonareafinancial.com/privacy-policy/) (the “Privacy Policy”) will apply to any data collected by CommonArea pursuant to this Agreement and the User hereby consents to CommonArea’s collection, maintenance, use and transfer of its data as provided in the Privacy Policy and this Agreement.
10. Representation and Warranties. Each party represents and warrants that it
(a) has the requisite power and authority to enter into and perform its obligations under this Agreement, that the person executing this Agreement (the “Representative”), and the User Agreement, on behalf of each party has the capacity and authority to enter into an agreement similar to this Agreement on behalf of User. CommonArea may require User to provide additional information or documentation demonstrating the Representative’s authority.
(b) will not violate any applicable law or regulation in the performance of its obligations and duties hereunder.
(c) Has the right to grant or otherwise permit the use of any Marks provided hereunder and in connection with this Agreement.
11. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a) ABOVE, COMMONAREA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
12. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMMONAREA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13. Indemnification.
(a) Each party (as applicable, the “Indemnitor”) agrees to indemnify, defend, and hold harmless the other party (as applicable, the “Indemnitee”) and its officers, directors, managers, employees, agents, successors, and assigns from and against any and all losses, liabilities, damages, penalties, judgments, and claims and all related costs and expenses (including attorneys’ fees) arising from any claim or allegation made by the other party or any third party to the effect that (i) the Indemnitor’s intellectual property, products, or services infringes the intellectual property of a third party, (ii) the Indemnitor’s acts, omissions, products, services, torts, or other wrongdoing have created a cause of action in favor of the third party, or (iii) the Indemnitor has breached a contractual duty owed to the third party or each other under this Agreement.
(b) The rights to indemnification set forth in Section 13(a) are subject to the Indemnitee promptly notifying the Indemnitor in writing of any matter the Indemnitee claims creates grounds for indemnification and Indemnitee must cooperate in all reasonable respects with the Indemnitor and its attorneys in the investigation, trial, defense, and settlement of such claim and any appeal arising therefrom. The Indemnitee may participate in such investigation, trial, defense, and settlement of such claim and any appeal arising therefrom, through its attorneys or otherwise, at its own cost and expense. The Indemnitor may not settle any claim subject to indemnification without the consent of the Indemnitee, which consent will not be unreasonably withheld, unless the settlement includes an unconditional general release of the Indemnitee.
14. Term; Termination.
(a) The term of this Agreement begins on the Agreement Date set forth in the User Agreement and continues in force for the period set forth therein (the “Initial Term”). At the end of the Initial Term, the Agreement will automatically renew for successors one-year periods, unless either party provides written notice of non-renewal at least ninety (90) days prior to the end of the then current term (each a “Renewal Term,” and collectively, the “Term”). Upon any expiration or termination of this Agreement, the Parties’ rights, licenses, and obligations under this Agreement will cease except that the provisions of this Agreement that are intended to survive the expiration or termination of this Agreement will survive.
(b) In addition to any remedies that may be provided under this Agreement, either party may terminate this Agreement with immediate effect upon written notice to the other party, if the other party:
(i) fails to pay any amount when due under this Agreement;
(ii) has not otherwise materially performed or complied with any of the terms of this Agreement, in whole or in part; or
(iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
15. Waiver. No waiver by CommonArea of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by CommonArea. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16. Assignment. Neither party shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section is null and void. No prohibited assignment or delegation relieves the assigning party of any of its obligations under this Agreement. Both parties agree that an assignment or transfer of its rights and obligations under this Agreement to any successor company or entity that acquires all or substantially all of the assigning party’s assets, or into which the assigning party is merged, shall not constitute an assignment. This Agreement shall be binding upon and inure to the benefit of each party and its successors and permitted assigns.
17. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. No Partnership. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party, nor any of their employees, if any, shall be or shall be deemed to be an employee or legal member of the other for any purpose whatsoever.
19. Governing Law; Venue. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the state and federal courts sitting in the Eastern District of Pennsylvania, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
20. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the User Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
21. Press Release. Neither party may make any press release or public announcement of this Agreement except with the prior written consent of the other party.
22. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
23. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law; Venue, and Survival.
24. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party; provided, however, that in the event these terms contain any typographical errors, inaccuracies, or omissions, CommonArea reserves the right to correct any such errors, inaccuracies, or omissions without prior notice. No course of dealing between the Parties will be deemed effective to modify, amend or waive any provision of this Agreement or any rights or obligations of any Party hereunder.
25. Costs. Each party hereto shall pay and be responsible for their own costs and expenses incurred or arising in connection with their own performance hereunder. Notwithstanding the foregoing, however, in the event any claim, action, litigation, lawsuit, or other legal proceeding is filed or brought by a party to enforce the terms of this Agreement against the other party, the prevailing party in any such claim, action, litigation, lawsuit, or other legal proceeding shall be entitled to recover its reasonable attorneys’ fees and costs in connection therewith.
26. Counterparts. This Agreement and the User Agreement may be executed in two (2) or more counterparts, each of which shall be deemed and original but all of which together shall constitute on and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. Federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.