PETCLEAR ANIMAL INFORMATION REPORTING SERVICES AGREEMENT

PETCLEAR ‍ANIMAL INFORMATION REPORTING SERVICES AGREEMENT

This PETCLEAR ANIMAL INFORMATION REPORTING SERVICES AGREEMENT (the “Agreement”) includes this introduction and the Background and Terms below, and forms a legal agreement between Foxen Administration, LLC, a Delaware limited liability company (“Foxen”), and the property manager, or property manager and owner, as applicable, that execute the Engagement Order, which is incorporated into and made part of this Agreement by reference (“Property Manager”). Foxen and Property Manager are individually referred to as a “Party” and collectively as the “Parties.”

Background

Foxen provides a proprietary online platform and digital animal information reporting process known as “PetClear” to collect various disclosures from applicants and residents about their animals, their affirmations of industry-standard pet policies, and information and documents they are required to submit to their property managers. Foxen digitally submits such data to the applicants’ and residents’ properties managers who can utilize the data to verify they comply with the properties’ animal-related policies.

Property Manager operates one or more housing rental properties and wishes to engage Foxen to provide digital animal information reporting services.

Terms

The Parties agree as follows:

  • 1. TERM. This Agreement shall commence on the Effective Date as defined in the Engagement Order and shall continue as set out in the Engagement Order unless otherwise earlier terminated as described in this Agreement.  ‍
  • 2. Scope of Properties To Be Offered PetClear.  
    • 2.1. Properties.
      • 2.1.1. Foxen shall offer PetClear to applicants and tenants at those ­properties the Parties designate in writing (the “Property(ies)”). The Parties shall mutually agree in writing the date PetClear is to begin being offered to applicants and tenants at each such Property (the “PetClear Start Date(s)”) on a “Schedule of Properties,” which will be updated as Properties are added to or removed from the Program and provided to Property Manager on a monthly basis.
      • 2.1.2. To the extent Property Manager ceases to be manager of a particular Property, such Property may be removed from this Agreement upon at least 15 days’ advance written notice to Foxen. Property Manager must provide Foxen at least 30 days’ advance written notice of any properties that Property Manager intends to add to the Schedule of Properties. Foxen will not be obligated to provide PetClear at any new properties upon less than 30 days’ advance written notice.
    • 2.2. Residents. PetClear shall be made available to all applicants seeking to reside at a Property (“Applicants”) and all existing tenants at the Property (“Current Residents”) upon their respective lease renewals or upon adding an animal to their household, unless exempted as described in Section 3.9. and 3.10. below. Applicants and Current Residents are from time to time collectively referenced in this Agreements as “Residents.”‍
  • 3. PetClear Description; foxen obligations. The PetClear digital animal information reporting process shall consist of the following:
    • 3.1. Subject to Section 4 below, Foxen shall interface with Property Manager’s property management system (“PMS”) through certified Application Programming Interfaces (“APIs”) and intake from Property Manager the following information for all Residents that Property Manager desires be offered PetClear (the “Resident Information”):
      • 3.1.1. For all Applicants: first and last name; email address; application ID and, if applicable, lease ID; Property name; unit number; whether the individual is an Applicant or a Current Resident; and date the Applicant is scheduled to move into the Property.
      • 3.1.2. For all Current Residents: first and last name; email address; lease ID; Property name; unit number; whether the individual is an Applicant or a Current Resident; lease start and end dates; and dates the individual is scheduled to move into and out of their unit.
    • 3.2. Upon receipt of the Resident Information, Foxen shall email the Residents unique and secure links inviting them to complete PetClear by accessing Foxen’s online resident platform (the “Resident Portal”). The emails shall remind Residents that Property Manager requires the completion of PetClear prior to moving into the Property and, unless exempted or confirmed as having a service, assistance, or support animal as defined below, again at each lease renewal and any time they add an animal mid-lease.
    • 3.3. To proceed with PetClear, Residents first shall be required to create an account on the Resident Portal. Once the account is created, Foxen shall obtain the Resident’s authorization for Foxen to share the data and documentation Resident inputs (the “PetClear Data”) with Property Manager.
    • 3.4. Foxen shall obtain declarations from each Resident completing PetClear as to whether they plan to have an animal of any type in or associated with their rental unit. If the Resident intends to have or already has an animal, such Resident shall be required to input the claimed status of the animal, which the Parties agree shall be the following for purposes of PetClear and this Agreement:
      • 3.4.1. A “Service Animal” is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disability. Miniature horses also may qualify as service animals, provided the animal can reasonably be accommodated in the Resident’s unit. Other species of animal, whether wild or domestic, trained or untrained, are not service animals for purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability and do not include providing emotional support.
      • 3.4.2. A “Support Animal” is a trained or untrained animal support or assistance animal, other than a Service Animal, that does work, performs tasks, provides assistance, and/or provides therapeutic emotional support for individuals with disabilities.
      • 3.4.3. A “Pet” is an animal that is not a Service or Support Animal.‍
    • 3.5. No Animals Reported. For Residents who report they do not have an animal, Foxen shall obtain at minimum the following affirmations upon lease application and at each lease renewal:
      • 3.5.1. They do not have any pets or animals in their current or future unit, either indoors or outdoors.
      • 3.5.2. They must obtain prior written approval from their property to have any animal of any size or type, inside or outside, during their lease term and, further, if they add an animal and their property tentatively approves it, they must complete PetClear again.
      • 3.5.3. Having an unauthorized Pet or animal in their unit may result in eviction proceedings and/or financial penalties and misrepresenting their pet status could result in a non-disclosure penalty.
      • 3.5.4. Their property may have additional animal or pet policies beyond those outlined in PetClear, and it is their responsibility to review, understand, and comply with such policies throughout their lease term.
    • 3.6. Animals Reported; No Claims of Service or Support Animals. For Residents who report they have or will have a Pet at the Property, Foxen shall obtain at minimum the following affirmations, information, and documents via PetClear upon lease application and at each lease renewal:
      • 3.6.1. Pet type (e.g., dog, cat, other), name, breed, weight, sex; spayed/neutered status; whether the Pet is fully trained to live indoors; whether the Pet has received regular veterinary care, including vaccinations and routine checkups; if so, pertinent vaccine details and documentation; and images of the Pet.
      • 3.6.2. Whether the Pet has bit a person or another animal.
      • 3.6.3. Affirmation that Property Manager may have additional pet or animal policies beyond those outlined in PetClear, and it is Resident’s responsibility to review, understand, and comply with such policies throughout their lease term.
      • 3.6.4. Affirmation that Resident must complete PetClear for each animal in their household, and that additional fees, rent, or deposit may be required for each animal unless the animal is a Service or Support Animal.
      • 3.6.5. Affirmation that Pet-related damage refers to any property damage, either interior or exterior, that cannot be repaired using standard household cleaning products or routine yard maintenance.
    • 3.7. PetClear Fees for Residents with Pets.
      • 3.7.1. Property Manager acknowledges that Property Manager will pay Foxen a “PetClear Fee,” in the amount set out in the Engagement Order, for each Resident described in Section 3.6 who reports having a Pet.
      • 3.7.2. Notwithstanding the foregoing, no PetClear Fee shall be due from Property Manager when Residents (i) report they do not have an animal as described in Section 3.5; (ii) report having a Service or Support Animal and provide the required verification documents as described in Section 3.8;  (iii) report having a disability and both the disability and the disability-related need for a Service or Support Animal are readily apparent or otherwise known by the Property Manager; or (iv) report having a disability and object to making their reasonable accommodation request to Property Manager via PetClear as described in Section 3.9.
    • 3.8. Service or Support Animals Reported. Residents who report they have a Service or Support Animal shall be given the opportunity to input into PetClear the following information about their animal on a voluntary basis: weight; date of birth; sex; spayed/neutered status; veterinary clinic contact information; vaccine information and documentation; and animal images.
      Further, to complete PetClear, such Residents shall be required to provide at minimum the following affirmations, information, and documents:
      • 3.8.1. Animal type, breed, and name, and whether the animal is a Service Animal or a Support Animal.
      • 3.8.2. Affirmation that the animal is required because of a disability and, if a Service Animal, the disability-related task the animal has been trained to perform.
      • 3.8.3. Residents’ consent to the collection, use, and sharing of their sensitive health-related information with Property Manager and, if reporting a Support Animal, their identified medical provider in support of their request for an Animal accommodation.
      • 3.8.4. For Residents who report having a Support Animal only: (i) documentation from a qualified medical provider verifying that the Resident is disabled and has a disability-related need for a Support Animal; (ii) affirmation that the medical provider documentation was lawfully obtained from a licensed medical professional or physician and is intended to address the Resident’s genuine support needs for their disability; (iii) the medical provider’s contact information.
    • 3.9. Disabled Resident Objections or Exemption Requests. Residents who (i) report they have a Service Animal and claim their disability status is readily apparent or otherwise already known by their landlord or (ii) contend they have a disability and object to being required to use PetClear to make their reasonable accommodation request shall be offered an option to send a message to their Property Manager via Foxen requesting an exemption from the requirement to complete PetClear.
    • 3.10. One-Time Disability Status Verification Default. For any Resident who completes PetClear as described in Section 3.8. or who submits an exemption request or objection to Property Manager under Section 3.9., Foxen shall not prompt such Resident to complete PetClear at lease renewal unless Property Manager directs Foxen to do so in writing and subject to Section 4.5 below.
    • 3.11. Delivery of PetClear Data to Property Manager. Foxen shall encrypt and provide the PetClear Data to Property Manager's PMS via API for all Residents who complete PetClear as described in Sections 3.6. through 3.9. above.
    • 3.12. PetClear Data Maintained in Property Manager and Resident Portals.
      • 3.12.1 Throughout the Agreement Term, Foxen shall house the PetClear Data in the “Property Manager Portal,” a dedicated, digital workspace within the Foxen platform that allows Property Managers to manage Residents at their Properties, view outstanding and completed PetClear forms, and, if applicable, mark Residents exempt from having to complete PetClear. Foxen shall provide Property Manager an account to access the PetClear Data.
      • 3.12.2. In addition, Foxen shall make the PetClear Data accessible to each Resident who completes PetClear in their respective Resident Portal account throughout the Term; provided, however, that such accessibility may be limited by Property Manager’s requirement that Residents complete PetClear again upon adding an animal to their unit and upon lease renewal as described further in Section 4.4.
    • 3.13. Property Staff Training. Foxen shall provide training on PetClear to Property Manager staff and marketing materials for staff to provide to Residents.
    • 3.14. Excluded Responsibilities and Deliverables. Property Manager acknowledges that Foxen does not independently verify the accuracy of the PetClear Data submitted by Residents and PetClear does not include assessments or recommendations from Foxen relating to Service or Support Animal accommodation requests, which remain solely the responsibility of Property Manager.
    • 3.15. Performance Contingencies. Foxen shall be relieved from its performance obligations under this Agreement and Property Manager shall hold Foxen harmless against any claims of failure to fulfill the Agreement obligations to the extent Foxen’s performance is prevented or hindered by Property Manager’s or its agents’ failure to perform their responsibilities as described in Section 4, including but not limited to any restrictions with Property Manager’s PMS or ability to enforce the requirement for Residents to complete PetClear upon lease application or renewal.
    • 3.16. Resident Marketing. Property Manager acknowledges that Foxen and its affiliated entities may market other products and services to Residents who engage with PetClear and/or the Resident Portal. Any such marketing shall be governed by Foxen’s Privacy Policy, located at https://www.foxen.com/privacy-policy, which may be updated from time to time in Foxen’s discretion. Residents shall have the right to opt out of Foxen marketing upon written request and to amend or delete any portions of their personal information that Foxen maintains to the extent such information is not otherwise necessary for PetClear’s operation.
    • 3.17. PetClear Updates. Foxen may update any part of PetClear from time to time including adding, modifying, or removing features or functionality. Foxen shall provide Property Manager with reasonable notice if any such update materially decreases the overall functionality of PetClear.
  • 4. Property Manager’s Use of PetClear; PetClear Terms of Use.
    • 4.1. Exclusivity. During the Agreement Term, Property Manager shall use PetClear as its sole  digital animal information reporting platform for Residents residing at the Properties and shall not accept animal information reporting services from any other provider.
    • 4.2. Properties to Permit Animals. Property Manager shall not request to add a property that does not permit Pets to the Schedule of Properties or otherwise enroll Residents at such properties in PetClear.
    • 4.3. Access to Necessary Resident Information in PMS; Use Shall Not Violate Applicable Law.
      • 4.3.1. Property Manager shall timely provide through its PMS and APIs the data, information, and resources that Foxen deems necessary to accurately deliver the PetClear experience, including but not limited to the Resident Information described in Section 3.1 above, all of which is required except Residents’ unit numbers, lease dates, and dates scheduled for Property move in and out.
      • 4.3.2. Property Manager shall obtain and maintain any equipment and ancillary services needed to connect to, access, or otherwise use PetClear, including, but not limited to, modems, hardware, servers, software, operating systems, networking, and web servers. Property Manager also shall maintain the security of such equipment, Property Manager account, passwords (including but not limited to administrative and user passwords), and files.
      • 4.3.3. Property Manager represents and warrants to Foxen that Property Manager has the authority to provide Foxen access to the Resident Information and will provide accurate and complete information to Foxen, including promptly correcting any inaccuracies identified in the Resident Information maintained within its PMS and communicating such corrections to Foxen. Foxen shall not be responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by Property Manager.
      • 4.3.4. Property Manager shall utilize the PetClear Data and take any action in connection with this Agreement in a manner consistent with all applicable laws and regulations, including without limitation (i) laws or regulations of the United States Department of Commerce or the United States Department of Treasury Office of Foreign Assets Control and (ii) the Fair Housing Act and HUD regulations. Property Manager acknowledges that Foxen may prohibit Property Manager’s use of PetClear if Foxen concludes in its sole discretion that Property Manager is using PetClear in violation of any law or regulation or this Agreement.
      • 4.3.5. Property Manager shall notify Foxen at least sixty (60) days in advance of any change in its PMS vendor.
    • 4.4. Property Manager Enforcement of PetClear Requirement. Property Manager shall require the completion of PetClear for the following categories of Residents and events and agrees that such a requirement is a material term of this Agreement:
      • 4.4.1. All Applicants prior to move-in;
      • 4.4.2. All Current Residents annually upon lease renewal with the exception of those Residents described in Sections 3.8 and 3.9;
      • 4.4.3. All Residents when they add an animal to their households.
    • 4.5. Limited Exception to Property Manager Enforcement. Property Manager shall not require PetClear at lease renewal for Residents who have reported a Service or Support Animal and have either (i) received an exemption from Property Manager for the PetClear requirement or (ii) already completed PetClear for such animals, unless new circumstances lawfully permit Property Manager to request updated or additional documentation for the reasonable accommodation.
    • 4.6. Property Manager Communication of PetClear Requirement to Residents. Prior to Foxen initiating outreach to Residents inviting them to complete PetClear, Property Manager shall modify its digital leasing application to state that Applicants are required to complete PetClear or otherwise communicate to Residents the requirement to complete PetClear.
      In addition, Property Manager shall inform Residents they will be receiving emails from Foxen with instructions on how to complete PetClear and cooperate with Foxen to market the benefits to Residents of the PetClear process. Property Manager agrees to use only those written materials Foxen provides and to not make any changes to the materials without Foxen’s prior written approval.
  • 5. PetClear Fees Payable by Property Manager.
    • 5.1. In consideration of the digital animal information reporting services Foxen provides, Property Manager agrees to pay Foxen the PetClear Fee for each Resident who reports having a Pet through PetClear. The amount of the PetClear Fee shall be set out in the Engagement Order.
    • 5.2. To the extent that more than 33% of the combined Residents at Property Manager’s Properties submit Service Animal or Support Animal accommodation requests during a calendar quarter, Property Manager shall pay the standard PetClear Fee for each Service Animal or Support Animal application that exceeds such 33% threshold.
    • 5.3. Foxen will invoice Customer in arrears in an amount equal to the total PetClear Fee for the prior month.  A single invoice will be issued to Customer for all Properties.  Customer will pay the full invoice within 20 days after receipt. Foxen may suspend the digital animal information reporting services if Property Manager does not pay an invoice within 30 days of Foxen sending it to the Property Manager.  Foxen also may charge Property Manager interest at a rate of 5% per annum or the highest rate permissible by law, whichever is less, on any outstanding balance more than 30 days past due. 
  • 6. Termination.
    • 6.1. This Agreement may be mutually terminated by the written agreement of both Parties.
    • 6.2. Property Manager may terminate this Agreement (i) by providing written notice to Foxen at least sixty (60) days prior to the conclusion of the then current Term; (ii) by providing a thirty (30) days’ written notice to Foxen of a material breach of its obligations, which breach has not been cured to the reasonable satisfaction of Property Manager; or (iii) if required to do so by a regulatory body with authority over the Property Manager.
    • 6.3. Foxen may terminate this Agreement (i) by providing at least a forty-five (45) days’ written notice to Property Manager with the termination effective on the last date of the month that the 45-day period concludes; (ii) by providing a thirty (30) days’ written notice to the Property Manager of a material breach of its obligations, which breach has not been cured to the reasonable satisfaction of Foxen; or (iii) if required to do so by a regulatory body with authority over Foxen.
    • 6.4. Foxen’s obligations under this Agreement are contingent on its ability to connect with Property Manager’s PMS via API such that Foxen can extract Resident Information and deliver the PetClear Data via API. To the extent such PMS connection is not completed despite the Parties’ good faith cooperation and commercially reasonable efforts, either Party may terminate this Agreement immediately upon written notice.
    • 6.5. This Agreement will terminate automatically in the event either Party is adjudged bankrupt, becomes insolvent, makes an assignment for the benefit of the creditors, or is placed in the hands of a receiver or Trustee in bankruptcy.
    • 6.6. Upon Agreement expiration or termination, the Parties’ required performance shall cease except as otherwise provided in this Agreement. Property Manager shall remain obligated to pay any PetClear Fees incurred but not yet paid upon the date of termination.
    • 6.7. Property Manager shall promptly and, at the latest, prior to the date of Agreement termination, notify Residents that Foxen is no longer Property Manager’s required digital animal information reporting provider. Although not obligated to do so, Foxen reserves the right to directly notify enrolled Residents that it is no longer offering PetClear at the Property.
    • 6.8. Upon termination, Foxen may delete all PetClear Data from the Property Manager Portal at any time and will have no liability to Property Manager or any third party for any claims or causes of action that may arise from the termination of the PetClear Agreement or the related services.
  • 7. Ownership of PetClear; Foxen’s Intellectual Property Rights.
    Property Manager acknowledges and agrees that:
    • 7.1. Foxen is and will remain the sole and exclusive owner of all rights, title, and interests to any and all intellectual property rights in PetClear, including but not limited to all improvements, enhancements, or modifications to PetClear; all insights and inventions that Foxen derives from PetClear and/or the data that it receives from Property Manager; any software, documentation, or data related to the Services (“Software”); and in any other rights that may arise from the performance of this Agreement, including but not limited to, any copyrights, patents, programs, know-how, trade secrets, source code, proprietary applications, and all of Foxen’s Confidential Information (as defined in Section 8).
    • 7.2. Foxen shall have the right to collect, analyze, and use all data and other information it receives from Property Manager as a result of or otherwise relating to PetClear. Further, Foxen shall have the right during and after the Term (i) to use such information and data to improve and enhance PetClear and for other development, diagnostic, and corrective purposes in connection with PetClear; and (ii) to disclose such data in aggregate form.  
    • 7.3. Property Manager shall not directly or indirectly reverse engineer or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to PetClear or the Software; modify, translate, or create derivative works based on PetClear or the Software (except to the extent expressly permitted by Foxen); or use PetClear or the Software for the benefit of itself or a third party without the written consent of Foxen.
    • 7.4. No rights or licenses are granted except as expressly set forth in this Agreement.
  • 8. Data Security; Protection of Confidential and Proprietary Information.
    • 8.1. Definition of Confidential Information. 
      • 8.2.1. “Confidential Information” is any confidential and/or proprietary information of a Party, including but not limited to (1) the terms and conditions of this Agreement; (2) trade secrets, organizational and/or operational plans, strategies, methods, and/or practices, including but not limited to the PetClear proprietary online platform and digital animal information reporting process; (3) any other information relating to a Party or its business or organization that is not generally known to the public; (4) information that identifies a resident or other individual or can be used to identify or authenticate a resident or other individual (“Personal Information”) and (5) any information a receiving Party knows, or should be reasonably expected to know, is Confidential Information by its nature. regardless of the form in which the Confidential Information is communicated or maintained and that is disclosed before or after the Effective Date of the Agreement. 
      • 8.2.2. Confidential Information does not include: (1) information that is in the public domain as of the Effective Date or that later enters the public domain by publication or otherwise through no action or fault of another Party, provided the receiving Party can demonstrate in its records to have had the information rightfully in its possession on a non-confidential basis prior to disclosure of the information by the disclosing Party; (2) information known on a non-confidential basis to either Party prior to receipt from the other Party, from its own independent sources as evidenced by such Party’s written records; (3) information that any Party receives from any third party that is reasonably known by the receiving Party to have a legal right to transmit such information and to not keep such information confidential; (4) information independently developed by any Party’s employees or agents, provided that such Party can demonstrate that such employees or agents had no access to the Confidential Information; (5) resident information that Foxen aggregates, de-identifies, or anonymizes to improve and enhance the Services and for other development, diagnostic, and corrective purposes; and (6) information that is required to be disclosed under then-current governmental regulations; provided, however, that to the extent permitted by law, the receiving Party shall make reasonable efforts to provide prompt advance written notice of such court order or requirement (to the extent legally permissible) to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. 
      • 8.2.3. Security Controls.  Foxen shall implement appropriate technical and organizational security measures in relation to the processing of Personal Information, which shall ensure a level of security consistent with (1) the nature of the Personal Information to be protected, (2) the risks that are presented by the processing of Personal Information, and (3) applicable industry standards.  Such security measures shall address all systems, applications, equipment, software, and other technologies relating to or used in connection with the protection of Personal Information and comply with all applicable laws. At least annually, Foxen shall obtain a security controls review or audit performed by an independent third party based on recognized industry standards. Foxen will make results of such controls review or audit available to Property Manager upon request and will timely address any noted exceptions. Property Manager shall be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or possession. Property Manager further shall use only secure methods, according to accepted industry standards, when transferring or otherwise making available Personal Information to Foxen. 
    • 8.3. Security Event Procedures. Foxen maintains an incident response plan in accordance with accepted industry standards and shall implement the procedures required under such plan on the occurrence of an unauthorized access to or disclosure or acquisition of Personal Information belonging to Property Manager or its residents as a result of Foxen’s possession or control of such Personal Information (a “Security Event”). Foxen also shall promptly and as soon as reasonably practical: (i) notify Property Manager of the Security Event after Foxen becomes aware of it; (ii) provide Property Manager with such details as Property Manager reasonably requires regarding the nature of the Security Event, any investigations into the Security Event, the likely consequences of the Security Event, and any measures taken, or that Foxen recommends, to address the Security Event; (iii) take such steps it reasonably deems appropriate to contain and control the Security Event to prevent further unauthorized access to or misuse of the Personal Information; and (iv) continue to provide periodic updates relating to the investigation and resolution of the Security Event to Property Manager until it has been resolved. 
    • 8.4. Property Manager agrees that it shall not, except as this Agreement expressly permits:  (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (ii) copy or create derivative works or improvements of the Services or cause, or permit anything to be done, that may adversely affect Foxen’s intellectual property; (iii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Foxen’s systems, or Foxen's provision of services to any third party, in whole or in part; (iv) solicit, interfere with, entice, or endeavour to entice business from Foxen’s clients, canvass business from the clients, and/or act as a consultant to such clients and/or render service to any of Foxen’s clients contrary to the provisions of this Section 8. 
    • 8.5. The Parties agree that the terms of this Section 8 shall include and bind any associate, employee, officer, consultant, service provider, and advisor of the Parties and shall survive termination of this agreement for five (5) years.
  • 9. Relationship of the Parties. The relationship between the Parties is that of independent contractors. This Agreement does not establish a partnership, joint venture, or agency between the Parties, nor does it create any employer-employee relationship. Foxen shall have no authority to bind Property Manager, create any liability against Property Manager, or incur any obligations on Property Manager’s behalf in any way or for any purpose, except as expressly authorized in this Agreement, and Foxen shall not hold itself out as having any such authority.
  • 10. Property Manager Marketing Authorization. Property Manager authorizes Foxen to use its name and logo(s) in Foxen marketing materials about PetClear.  
  • 11. Limited Warranty.
    • 11.1. Foxen warrants it will provide PetClear and deliver the PetClear Data to Property Manager using reasonable care and skill in accordance with generally accepted industry standards for similar services. This limited warranty applies only to material non-conformities that are reproducible and reported in writing within thirty (30) business days of discovery.
    • 11.2. If Foxen determines in its sole discretion that a material breach of this warranty has occurred, its sole obligation and Property Manager’s exclusive remedy shall be, at Foxen’s option, to either re-perform the affected services at no additional cost or refund the portion of PetClear fees paid by Property Manager attributable to the affected service.
    • 11.3. PetClear may contain links to websites maintained by third parties. Foxen is not responsible for the content or privacy policies of third-party websites, and the existence of links to third party websites should not be considered an endorsement or recommendation of those websites or of any product or service offered on those websites or of any party that is associated with those websites.
    • 11.4. Property Manager acknowledges and agrees that it is solely responsible for keeping copies of all records and for verifying and reconciling any transaction details related to the use of PetClear. Foxen bears no responsibility for any loss, corruption, modification, or deletion of information or other data (“Data Loss”) Foxen provides to Property Manager through the use of PetClear. By using PetClear, Property Manager expressly releases Foxen from liability and holds Foxen harmless from any damages or claims arising from such Data Loss.
    • 11.5. EXCEPT AS EXPRESSLY SET FORTH ABOVE, FOXEN DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, ACCURACY OF DATA, OR THAT PETCLEAR WILL BE UNINTERRUPTED OR ERROR-FREE.
  • 12. Indemnification.
    • 12.1. Foxen. Foxen agrees to indemnify, defend, and hold harmless Property Manager and its respective owners, stockholders, members, managers, directors, and officers (“Property Manager Indemnitees”) from and against any third-party claims, demands, actions, suits, or proceedings (collectively, “Claims”) and associated liabilities, losses, damages, or reasonable costs and expenses, including reasonable attorneys’ fees, to the extent arising directly from Foxen’s material breach of this Agreement, or Foxen’s gross negligence or willful misconduct, in each case, provided that (i) Property Manager provides prompt written notice of any such Claim; (ii) Foxen has sole control of the defense and settlement, provided that any settlement includes a full release of the Property Manager Indemnitees and does not impose liability or restrictions on them; and (iii) Property Manager reasonably cooperates in the defense at Foxen’s cost. Further, to the extent a Security Event results from Foxen’s failure to comply with any of its obligations under this Agreement, Foxen shall reimburse Property Manager for actual reasonable costs incurred by Property Manager to provide any legally required notices or services to affected individuals.
    • 12.2. Property Manager. Property Manager agrees to indemnify, defend, and hold harmless Foxen, and its respective owners, stockholders, members, managers, directors, officers and affiliated entities from and against any third-party Claims and associated liabilities, losses, damages, or reasonable costs and expenses, including reasonable attorneys’ fees, to the extent arising directly from Property Manager’s material breach of this Agreement, or Property Manager’s gross negligence or willful misconduct, subject to the same notice, control, and cooperation provisions described above.
  • 13. Limitation of Liability.  Except for a Party’s gross negligence or willful misconduct or either Party’s breach of its confidentiality obligations under this Agreement, (a) each Party’s total cumulative liability shall not exceed the aggregate PetClear Fees paid by Property Manager to Foxen under this Agreement in the  twelve (12) months immediately preceding the event giving rise to the claim; and (b) neither Party nor their respective owners, stockholders, members, managers, directors, officers, or affiliates shall be held liable to the other Party for any indirect, incidental, special, consequential, exemplary, or punitive, damages, including lost profits, data, or business opportunities, arising out of or relating to this Agreement, whether based in contract, tort (including negligence), strict liability, or any other legal or equitable theory, even if such party was advised of the possibility of such damages. The foregoing limitations shall apply to all claims, including but not limited to indemnity obligations under Section 12, except to the extent such obligations arise from a Party’s gross negligence or willful misconduct. The Parties acknowledge that these limitations reflect a fair allocation of risk and are an essential element of the bargain between the Parties.
  • 14. Force Majeure. Neither Party shall be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, or generalized lack of availability of energy. This Section shall not include (a) financial distress nor the inability of either Party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a Party's financial inability to perform its Agreement obligations.
  • 15. No Assignment. This Agreement shall be binding upon the heirs and successors in interest of the Parties. A Party may not assign this Agreement without the express written consent of the other Party, with the exception that Foxen at its discretion may assign this Agreement to any affiliated entity that controls, is controlled by, or is under common ownership as Foxen. Any attempted assignment or other transfer in contravention of this Agreement shall be void and ineffectual and shall not bind any Party.
  • 16. Governing Law and Venue; CLASS ACTION WAIVER; No jury trial. This Agreement shall be governed by the laws of the State of Ohio. In the case of a dispute concerning this Agreement, the exclusive venue for the dispute shall lie with the federal and state courts in Franklin County, Ohio and each Party expressly consents to the jurisdiction and venue of such courts. The Parties agree that any claims must be brought individually, and not as a plaintiff, class member, or participant in any class or representative action or proceeding. Further, each Party knowingly and irrevocably waives the right to a jury trial for any action, proceeding, or counterclaim arising out of or related to this Agreement.
  • 17. No Waiver. A Party’s failure to insist upon the strict performance of any provision of this Agreement or to exercise any right or remedy will not constitute a waiver of any such breach or any subsequent breach or otherwise affect or alter this Agreement.
  • 18. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions nevertheless will continue in full force and effect without being impaired or invalidated in any way.
  • 19. Notices. All notices or other communications required or permitted by this Agreement must be provided in writing and sent to the other Party via overnight mail, facsimile, or electronic mail to the addresses set forth in the Engagement Order or such other address as either Party later may substitute by notice consistent with this Section 19. All such notices will be deemed provided as of the date of sending to the respective Party.
  • 20. Counterparts and Construction. This Agreement may be executed in several counterparts, each of which shall be an original but all of which will constitute one and the same instrument. The language used in this Agreement is the language approved by all Parties to express their mutual intent. No rule of strict construction shall be applied against any Party.
  • 21. Entire Agreement. This Agreement shall constitute the entire agreement between the Parties on the subject matter of this Agreement and supersede all prior or contemporaneous oral or written agreements, conditions, representations, and/or understandings between the Parties. This Agreement may be amended only by a written document that clearly sets forth the amendments and is signed by authorized representatives of both Parties. Each Party to this Agreement has the authority to enter into this Agreement.

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