Last Updated: 1/30/2024
CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING SERVICES AGREEMENT (THE “AGREEMENT”) BEFORE EXECUTING A QUOTATION (A “QUOTE”) OR A STATEMENT OF WORK (“SOW”) WITH ADAPTIVE REAL ESTATE, INC., A DELAWARE CORPORATION (“ADAPTIVE”) THAT REFERENCES THIS AGREEMENT. THIS AGREEMENT,TOGETHER WITH THE APPLICABLE QUOTE(S) AND/OR SOW(S), COLLECTIVELY SETS FOR THE TERMS AND CONDITIONS THAT APPLY TO THE SERVICES (AS DEFINED BELOW) PROVIDED BY ADAPTIVE.
BY EXECUTING A QUOTE OR SOW, THE CUSTOMER IDENTIFIED IN SUCH QUOTE OR SOW (“CUSTOMER”) AGREES TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
IF THE INDIVIDUAL SIGNING THE QUOTE OR SOW IS ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT. ADAPTIVE AND CUSTOMER MAY BE REFERRED TO HEREIN INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.
The is effective as of the first date that a Quote or SOW is mutually executed (the “Effective Date”) by Adaptive and Customer.
1.1 General. Commencing on the Effective Date, Adaptive will provide each of the services set forth on any mutually executed Quote or SOW that references this Agreement (each, a “Service” and collectively, the “Services”) during the Term, unless a Service is earlier terminated or extended in accordance with this Agreement. If the Services involve access to Customer’s account(s) on any third party services, then Customer will be responsible for providing Adaptive with all necessary access and permission to such account(s) as may be required for Adaptive to perform the Services. For the avoidance of doubt, Adaptive has the right to subcontract performance of the Services to third parties, and references to Adaptive’s performance of Services herein include performance by such third parties contracted to do services on Adaptive’s behalf or any other person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with Adaptive. Customer may terminate any Service upon thirty (30) days prior written notice to Adaptive. Following termination of a Service, Adaptive will no longer be obligated to provide that Service, but this Agreement will continue in full force and effect.
1.2 Customer Assistance. If, in order to provide the Services, Adaptive reasonably requires the assistance or involvement of Customer’s resources or personnel, Customer will make such additional resources or personnel available to Adaptive for the purpose of performing the Services at no cost to Customer. In order to enable the provision of the Services, Customer shall grant permission to Adaptive, at no cost to Adaptive, to access to Customer’s data, books and records that are necessary to fulfill Adaptive’s obligations under this Agreement.
2.1 Fees. All fees to be charged by Adaptive to Customer for Services (“Services Fees”) will be as set forth in the applicable Quote or SOW. Adaptive shall invoice Customer monthly for any Services Fees pursuant to the Quote or SOW, and Customer shall pay Adaptive for the documented and undisputed Services Fees, plus any federal, state, municipal, or other U.S. or foreign taxes, duties, excises, tariffs, fees, assessments or levies imposed on the performance or delivery of Services (excluding for the avoidance of doubt income taxes imposed on Adaptive) in accordance with the terms and conditions of this Agreement.
2.2 Invoicing and Payment. Customer shall pay all amounts due under each invoice submitted by Adaptive to Customer in U.S. Dollars no later than fifteen (15) days following receipt of such invoice (or such earlier period that may be mutually agreed between the Parties).
3.1 Ownership. Neither Party will gain, by virtue of this Agreement, any rights of ownership of any of the other Party’s intellectual property rights. For clarity, however, if Adaptive creates, develops or reduces to practice any documents, works of authorship, inventions, materials, software, technology or ideas in connection with its performance of the Services, Adaptive will retain all rights, title and interest in and to the same. Notwithstanding any other term of this Agreement, Adaptive will be free to use on a perpetual basis any and all knowledge, know-how, insights, extracts and other information arising in the course of its performance of the Services for its general business purposes.
3.2 Customer Materials. Customer will deliver or make available to Adaptive any materials reasonably necessary for Adaptive to perform the Services. Customer hereby grants Adaptive a worldwide, nonexclusive, royalty-free, fully paid up, nontransferable, non-sublicensable (except to independent contractors performing hereunder on Adaptive’s behalf) right and license to any intellectual property rights of Customer as reasonably necessary and in order to perform the Services for Customer.
Subject to the licenses and other rights granted to it in this Agreement, Adaptive will exercise reasonable efforts to maintain the confidentiality of non-public information submitted to it and marked as “confidential”. However, Adaptive may disclose any such information to its attorneys, accountants, and other representatives on a need-to-know basis for the purpose of evaluating, performing and enforcing its obligations and rights under this Agreement.
5.1 Disclaimer of Warranties. THE SERVICES ARE BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED (ORAL OR WRITTEN), INCLUDING AS TO IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET ENJOYMENT OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND ADAPTIVE HEREBY EXPRESSLY DISCLAIMS ALL SUCH GUARANTEES, REPRESENTATIONS AND WARRANTIES HEREUNDER WITH RESPECT TO THE ENTIRE SUBJECT MATTER OF THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ADAPTIVE EXPRESSLY DISCLAIMS ALL GUARANTEES, REPRESENTATIONS AND WARRANTIES, RESPONSIBILITIES AND LIABILITIES FOR (A) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY, OR RELIABILITY OF THE SERVICES; (B) ANY HARM TO COMPUTER SYSTEMS, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM THE ACCESS TO OR USE OF THE SERVICES; (C) THE DELETION OF, OR THE FAILURE TO STORE OR TRANSMIT, ANY MATERIALS OR INFORMATION PRODUCED OR MAINTAINED BY THE SERVICES; AND (D) WHETHER THE SERVICES WILL MEET REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS.
5.2 No Tax, Legal or Accounting Advice. Adaptive is not a licensed accountant or financial or legal advisor, and does not provide tax, legal or accounting advice. If Customer requests that Adaptive make any changes to Customer’s books and records, including changes to accounting codes, then Customer will be solely responsible for all legal, tax, reporting, or accounting consequences that result from such changes. The Services should not be construed as, and the results of the Services should not be relied on for, tax, legal or accounting advice. Customer is responsible for consulting its own tax, legal and accounting advisors in connection with the Services and verifying the results thereof.
5.3 Limitation on Liability. IN NO EVENT WILL ADAPTIVE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, COSTS OR FEES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR COST SAVINGS, BUSINESS INTERRUPTION DAMAGES OR DIMINUTION IN VALUE. IN NO EVENT WILL ADAPTIVE’S CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE LESSER OF $500 OR THE TOTAL AMOUNT OF SERVICE FEES ACTUALLY PAID BY CUSTOMER TO ADAPTIVE UNDER THIS AGREEMENT.
6.1 Term. This Agreement will be in effect for a period beginning on the Effective Date and continuing until terminated in accordance with Section 6.2 below (the “Term”).
6.2 Termination. This Agreement may be terminated for convenience by either Party upon 30 days written notice. In the event that either Party materially breaches any of its obligations under this Agreement, the Party who has not breached this Agreement (the “Non-Breaching Party”) shall give written notice to the other Party (the “Breaching Party”) describing such breach, and including sufficient detail to enable the Breaching Party to identify and cure such breach, to the extent a cure is possible. If such breach shall have continued without cure (if such breach is capable of cure) for a period of 10 days after receipt by the Breaching Party of an initial written notice from the Non-Breaching Party describing such breach, the Non-Breaching Party may terminate this Agreement immediately in a signed writing delivered to the Breaching Party; provided, however, a Non-Breaching Party may not terminate this Agreement due to a breach by the Breaching Party if such breach is directly attributable to a breach of this Agreement by the Non-Breaching Party.
6.3 Effect of Termination. Upon termination of this Agreement for any reason, all rights and obligations of the Parties under this Agreement will cease and be of no further force or effect, except that Sections 3, 5, 6, and 7 will survive termination or expiration of this Agreement.
7.1 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by commercial messenger or overnight or same-day courier service of national reputation (including U.S. Postal Service overnight delivery), sent via electronic mail, or sent via facsimile (with acknowledgment of complete transmission) to Customer at the address set forth in the Quote or SOW and to Adaptive at the following address (or at such other address for a Party as shall be specified by like notice); provided, however, that notices sent by mail will not be deemed given until received:
if to Adaptive:
Adaptive Real Estate, Inc.
WeWork c/o Adaptive Real Estate
222 Broadway 22nd Floor
New York, NY 10038
7.2 Entire Agreement; Assignment. This Agreement, together with any mutually executed Quote(s) and/or SOW(s), and the documents and instruments and other agreements among the Parties hereto referenced herein: (a) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings both written and oral, among the Parties with respect to the subject matter hereof, (b) are not intended to confer upon any other person any rights or remedies hereunder, and (c) shall not be assigned by operation of law or otherwise without the consent of the Parties hereto, other than by a Party in connection with such Party’s change of control, provided that any such assignment by a Party in connection with its change of control shall not relieve such Party of its obligations contained herein or therein. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
7.3 Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
7.4 Other Remedies; Specific Performance. Except as expressly set forth herein, any and all remedies herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise of any one remedy will not preclude the exercise of any other remedy and nothing in this Agreement shall be deemed a waiver by any Party of any right to specific performance or injunctive relief. The Parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at law or in equity.
7.5 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, regardless of any conflicts of laws principles. Each of the Parties irrevocably consents to the exclusive jurisdiction and venue of any court within the State of California in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein, agrees that process may be served upon them in any manner authorized by the laws of the State of California, and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue and such process.
7.6 Rules of Construction. The Parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document.
7.7 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
7.8 Force Majeure. Neither Party will have any responsibility or liability for any damages, costs, losses or expenses arising out of any delay, inability to perform or interruption of its performance of its obligations (or portion thereof) under this Agreement due to any acts or omissions of the other Party, or for events beyond its reasonable control, including, without limitation, acts of God, actions or requests of a governmental authority, war, terrorism, embargo, riot, civil commotion, insurrection or other civil unrest, fire, explosion, flood, earthquake or other natural disaster, strike or other labor disturbances, lack of or shortage of power, breakdown or malfunctions of equipment or software programs, or any other cause beyond such Party’s reasonable control.
7.9 Agreement Updates. When changes are made to the terms of this Agreement, Adaptive will make a new copy of this Agreement available online, and Adaptive will also update the “Last Updated” date at the top of this Agreement. Unless otherwise stated in such update, any changes to this Agreement will only be applicable to any Quote(s) or SOW(s) executed by Customer after the date that such changes are posted online or otherwise provided to Customer, whichever occurs first. Except as described in this Section 7.9 above, all changes or amendments to this Agreement must be in writing and executed by both Parties to be valid.
7.10 Relationship of the Parties. Each of the Parties will, for all purposes, be considered independent contractors with respect to each other and will not be considered an employee, employer, agent, principal, partner or joint venturer of the other.