ADMINISTRATION AND DATA RELEASE AGREEMENT
This Administration and Data Release Agreement ("Agreement") is entered into by 1st Financial Funding & Investment Corporation ("Company"), and the data provider indicated below at the signature line ("Data Provider" or "Client"). Data Provider operates one or more residential real estate properties as rental properties with one or more rental units ("Property" or "Properties") made available to one or more individuals who execute a rental or lease agreement with Data Provider ("Renter" or "Renters").
Company and Data Provider agree as follows:
- Setup and Add Property.
- Client may add a Property to OpenProperty at any time during the term of this Agreement by using OpenProperty.com or by sending a written request to Company.
- If a Property is added to OpenProperty, then Client shall report on all the rental units for which it owns, handles leasing, and/or manages (the "Units") within that Property.
- Client may add general information about a Property listed on OpenProperty, such as street address, web address if any exists, property images, list of rental units, and any other items typical to OpenProperty ("Client Information"). The Company may add, omit, and otherwise manage property images for a Property at its sole discretion. Client shall be responsible for reviewing and updating the Client Information.
- Remove Property. Client may remove a Property from OpenProperty at any time during the Term of this Agreement only by mailing a written notice to Company to remove the Property and including the reason. Within sixty (60) days of Company's receipt of such notice, Company shall (i) remove such Property profile in whole or part such that it is consistent with other Properties not enrolled on OpenProperty, and (ii) follow its then current procedures for making available Data about Renters in Units of the Property that was deleted from OpenProperty.
- Data Contribution. By the signatures set forth below, the parties agree that Data Provider will, as set forth herein, contribute Data, as defined herein, to Company. Data Provider agrees to make available to Company new Data at least monthly, to the extent there was any new Data in the preceding month. Data Provider hereby appoints Company to report Data to a consumer reporting agency as defined under the Fair Credit Reporting Act, as amended (15 U.S.C. §1681 et. seq.). Data shall be provided in the form and manner specified by Company and in accordance with the FCRA. Data Provider shall provide Data which is accurate to the best of its knowledge and shall promptly update and correct all known inaccurate information. At Company's request, Data Provider will promptly verify the accuracy of the Data provided to Company. Data Provider will promptly provide Company with emailed and/or written notice if any information is disputed by a consumer. Data Provider shall bear the expense of preparing and delivering Data Provider's Data to Company. Company will, at its expense, incorporate Data Provider's Data into its reporting system. Once Data is incorporated into Company's reporting system, Data will become Company's exclusive property. Data Provider acknowledges receipt of a notice of its obligations pursuant to Section 623 of the FCRA. Data Provider warrants to Company that Data Provider has the full legal right to provide the Data to Company for Company's use under the terms of this Agreement, and that no such use by Company will infringe any patent, copyright, or other right of any third person.
- Data. The term "Data" as used in this Agreement means the following with respect to lease entered into by a Renter: Client Information; unit number and unit type; information identifying Renter(s) and any domestic pet(s); rental dates including renewals; rent amount; rent payment history; the dollar amount of the deposit considered under applicable state law to be the security deposit; the dollar amounts and reasons for any deductions made to the security deposit or that would have been made to the security deposit if the amount of the security deposit were larger than the amount of such deductions; and if the security deposit were insufficient to cover the relevant charges, the status of collecting from the Renter.
- Company Use. Company may use Data Provider's Data for any purpose consistent with applicable federal, state and local laws, rules and regulations; provided, however, a Renter Report, as defined in Section 6 herein, shall not be created unless Company has received the prior written consent of the Renter specified on the Renter Report. After Company has obtained such prior written consent, Company may provide the Renter Report to other consumer reporting agencies.
- Reports. The provisions below shall apply to the Data Provider's receipt and use of the Renter Reports and Landlord Reports from Company. A "Renter Report" is an automated evaluation report in the format determined by the Company, using Data about a Renter submitted by Client and Data about a Renter submitted by other operators of one or more residential real estate properties. A Renter Report may include, but is not limited to: information identifying Renter(s) and any domestic pet(s), rental dates, rent amount(s), dollar amount(s) of security deposit(s), dollar amount(s) and reason(s) for any security deposit charge(s), payment history, collections status if applicable, and a proprietary grade or other classification. A "Landlord Report" is an automated evaluation report in the format determined by the Company, using the Data submitted by the Data Provider which report may include, but is not limited to: unit type, rent amount(s), the dollar amounts of security deposits, the reasons and amounts of charges to security deposits, the speed with which security deposit information is reported to OpenProperty, information on renewals and/or occupancy periods, and a proprietary grade established after a minimum number of records for such landlord.
- Data Provider shall use a Renter Report only for its internal use.
- Landlord Reports are publicly available. Data Provider's use of its own Landlord Report(s) is not restricted; provided it complies with applicable law. Landlord Reports pertaining to third parties other than the Data Provider are solely for Data Provider's internal use and shall not be utilized in any public fashion by Data Provider.
- Data Provider shall comply with all federal, state and local laws, rules regulations and decisions applicable to Data Provider's collection and provision to Company of the Data Provider's data and Data Provider's use of Renter Reports and Landlord Reports pursuant to this Agreement.
- Company reserves the right to revise the terms or conditions under this Agreement, any terms applicable to the Renter Report and Landlord Report itself (including without limitation the right to withdraw or restrict Data) to meet any requirement imposed by federal, state, or local law, rule regulation, or to address matters concerning privacy and confidentially, upon reasonable notice to Data Provider before such revision or amendment becomes effective.
- Data Provider will pay Company the amount for Renter Reports and Landlord Reports determined in accordance with Exhibit A of this Agreement. DATA PROVIDER AGREES THAT COMPANY'S TOTAL LIABILITY FOR ANY OR ALL OF DATA PROVIDER'S LOSSES OR INJURIES FROM COMPANY'ï¿½ï¿½S ACTS OR OMISSION HEREUNDER, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NOT EXCEED THE AMOUNT PAID BY DATA PROVIDER TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE ALLEGED BREACH BY COMPANY. DATA PROVIDER COVENANTS THAT DATA PROVIDER WILL NOT SUE COMPANY FOR ANY AMOUNT GREATER THAN SUCH AMOUNT.
- Renter Reports and Landlord Reports do not constitute legal advice, and Data Provider retains the sole responsibility for the reporting of accurate and complete information of Data Provider's Data to Company in accordance to applicable law, including without limitation Section 623 of the FCRA.
- Any implementation of corrective actions suggested by the Renter Reports and Landlord Reports shall be at the sole discretion of Data Provider, and Data Provider shall be solely responsible for determining whether the corrective actions suggested by the reports will meet Data Provider's legal requirements and business needs.
- Company is not a guarantor of the Renter Reports and Landlord Reports and shall assume no responsibility or liability for the strategies implemented or the results achieved by Data Provider.
- Disclaimers of Warranties and Consequential Damages. COMPANY MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO RENTER REPORTS AND LANDLORD REPORTS OR ANY COMPANY DATA OR OTHER INFORMATION IT PROVIDES.
- Marketing. Company will not cause Renters to be marketed to based on Data provided by Client. Notwithstanding the aforementioned, Company may market to Renters with Client permission and/or if the Renter connects with, or provides such consent to, Company directly or indirectly by emailing Company; calling Company; or visiting OpenProperty.com or another webpage, ad, or social media account managed by or on behalf of Company.
- Indemnity. Data Provider shall indemnify and hold Company and its successors, assigns, directors, officers, employees and agents from and against any and all claims, losses, costs, damages and expenses (including reasonable attorney's fees) arising out of or related to Data Provider's material breach of this Agreement or willful misconduct or gross negligence in performing any of its obligations under the Agreement. Company shall provide Client with prompt notice of any claims or of any lawsuit regarding claims and the opportunity, at Client's option and expense, to defend the claims or lawsuit.
- Term. This Agreement shall continue in force without any fixed date of termination, but either Company or Data Provider may terminate this Agreement upon sixty (60) days prior written notice to the other. If Data Provider elects to terminate, included within such notice must be an indication of the reason: due to change of ownership, due to change of management, or another reason that is specified or simply listed as "other". If Company believes that Data Provider has breached a material obligation contained in this Agreement, Company may terminate this Agreement immediately by providing Data Provider notice of termination.
- Waiver. Either party may at any time waive compliance by the other with any covenant or condition contained in this Agreement, but only by written instrument signed by the party waiving such compliance. No such waiver, however, shall be deemed to constitute the waiver of any such covenant or condition in any other circumstance or the waiver of any other covenant or condition.
- Excusable Delays. Neither party shall be liable for any delay or failure in its performance under this Agreement if and to the extent that such delay or failure is caused by events beyond the reasonable control of the party including, without limitation, acts of God or public enemies, labor disputes, equipment malfunctions, computer downtime, software defects, material or component shortages, supplier failures, embargoes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, earthquakes, flood, epidemics, riots and strikes. If there is any delay caused by any act or omission of one party but such delay would have occurred in any event due to any act or omission of the other party, then neither party may recover any monetary or other damages from the other arising out of or relating in any way to such delay and both parties shall be excused from any failure to perform any of its obligations because of such delay and during the period of such delay.
- Assignment. Neither party may assign its rights or obligations under this Agreement without the other party's written consent. Notwithstanding the foregoing, Company may, without Client's consent, assign the Agreement to any majority or wholly owned subsidiary of Company, any parent of Company, or any majority or wholly owned subsidiary of Company's parent. The rights and obligations under this Agreement shall bind and benefit any successors and assigns of the parties.
- Severability. This Agreement shall be deemed to be severable and, if any provision is determined to be void or unenforceable, that provision will be deemed severed and the remainder of the Agreement will remain in effect.
- Amendment. This Agreement supersedes any prior or contemporaneous oral or written agreements or representations. It may be modified only a written amendment executed by both parties.
- Law. Both parties acknowledge that this Agreement shall be governed by and interpreted in accordance with the laws of the State of New York.
- Survival. The provisions of Sections 5, 6, 7, and 8 in addition to any other provisions of this Agreement that would normally survive termination, shall survive termination of this Agreement for any reason.
- Authority to Sign. Each party represents that (i) the person signing this Agreement has all right, power and authority to sign this Agreement on behalf of such party; (ii) it has full power and authority and all necessary authorizations to comply with the terms of this Agreement and to perform its obligations hereunder.
- Effective Date. This Agreement is effective beginning on the earlier of the date below or the date on which the first payment is received per Exhibit A (the "Effective Date").
In consideration of the services performed by Company, Client shall pay Company:
- First 12 months from the Effective Date: $25 per month.
- Each month after the first 12 months: The greater of (A) $25 per month and (B) the sum of $49 for each multifamily Property and $0.50 for each single-family (1-4 unit) Property Client has enrolled in OpenProperty plus $50 for each property management system with which Client has Company integrate. This pricing is subject to increases to account for inflation. For the avoidance of doubt, consider this example for year 2 pricing: Client enrolls 10 multifamily communities and has Rent Manager integration with OpenProperty, the monthly charge would be $49 x 10 + $50 = $540.