Terms of Use

This EU Data Processing Agreement (“DPA”) forms part of the Kigo Terms of Service between Client and Kigo (“Agreement”) and applies to the extent that Kigo processes Personal Data on behalf of Client when providing services under the Agreement. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement.

1. DEFINITIONS

1.1 “Data Controller” means an entity that determines the purposes and means of the processing of Personal Data.

1.2 “Data Processor” means an entity that processes Personal Data on behalf of a Data Controller.

1.3 “Data Protection Laws” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.

1.4 “EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”); and (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”).

1.5 “EU Model Clauses” means the standard contractual clauses for Data Processors as approved by the European Commission pursuant to Decision C (2010)593, as they may be amended or replaced from time to time.

1.6 “Personal Data” means any information relating to an identified or identifiable natural person regulated by the Directive, the General Data Protection Regulation and local data protection laws applicable within a specific EU Member Country.

1.7 “Personal Data Breach” means a breach of security of the Services leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data.

1.8 “Sub-processor” means any Data Processor engaged by Kigo or any Kigo Party that processes Personal Data pursuant to the Agreement. Sub-processors may include third parties or any member of Kigo’s group of companies.

2. SCOPE OF THIS DPA

2.1 Scope of DPA. This DPA applies to the extent that: (i) Kigo processes Personal Data on behalf of Client in the course of licensing services to Client; and (ii) the Agreement expressly incorporates this DPA by reference.

3. ROLES AND SCOPE OF PROCESSING

3.1 Role of the Parties: As between Kigo and Client, Client is the Data Controller of the Personal Data and Kigo shall process Personal Data only as a Data Processor (or sub-processor) acting on behalf of Client.

3.2 Client Processing of Personal Data: Client will (i) comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Personal Data and any processing instructions it issues to Kigo; and (ii) provide notice and will obtain all consents and rights necessary for Kigo to process Personal Data pursuant to the Agreement and this DPA.

3.3 Kigo Processing of Personal Data: As a Data Processor, Kigo will process Personal Data only for the purpose of providing the services and in accordance with Client’s lawful documented instructions as set forth in the Agreement and this DPA. In particular, Client’s instructions with regard to the nature and purposes of the processing are set out at Annex A, which forms a part of this DPA. Processing outside the scope of these instructions (if any) will require prior written agreement between the parties (each acting reasonably) including agreement over any additional fees (if any) Client may be required to pay to Kigo for carrying out such instructions. For the avoidance of doubt, Kigo shall be entitled to treat any instruction provided by Client to Kigo pursuant to this DPA as an instruction of Client.

4. SUBPROCESSING

4.1 Sub-processors. Kigo may engage Sub-processors to process Personal Data under the Agreement. Kigo shall enter into contractual terms with any such Sub-processor that obligates the Sub-processor to protect the Personal Data in a manner that is substantially similar to the standards set forth in this DPA. Kigo shall be responsible for any breaches of this DPA by Kigo to the extent caused by such Sub-processors. Kigo shall provide a list of Sub-processors that it currently engages to support the provision of the Services upon written request by Client and/or Client.

4.2 Changes to Sub-processors: Notwithstanding Client’s general initial consent to Sub-processors pursuant to Section 4.1 above, Kigo agrees: (a) to provide at least thirty (30) days’ prior notice to Client of the engagement of any new Sub-processor; and (b) where Client, within ten (10) calendar days of receiving such notice objects to a new Sub-processor on reasonable data protection grounds, then the parties will discuss such concerns in good faith with a view to achieving resolution.

5. SECURITY MEASURES AND DATA BREACH RESPONSE

5.1 Security Measures: Kigo will implement and maintain appropriate technical and organizational security measures to protect against Personal Data Breaches and to preserve the security and confidentiality of Personal Data processed by Kigo on behalf of Client in the provision of the services (“Security Measures”).

5.2 Updates to Security Measures: The Security Measures are subject to technical progress and development. Kigo may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the services purchased by the Client.

5.3 Personnel. Kigo shall ensure that any person authorized by Kigo to process Personal Data is subject to an obligation of confidentiality.

5.4 Data Breach Response: Upon becoming aware of a Personal Data Breach, Kigo will notify Client for Client without undue delay and will provide information relating to the Personal Data Breach as reasonably requested by Client and/or Client. Kigo will take the mitigation steps required by the Agreement to address the Personal Data Breach.

6. AUDIT REPORTS

6.1 Audit Reports. Kigo audits its compliance against data protection and information security standards on a regular basis. Kigo shall conduct such audits using its internal audit team or with third party auditors engaged by Kigo. Upon Client’s request, and subject to obligations of confidentiality, Kigo will provide to Client and/or Client a summary of its most recent relevant audit report (“Report”) to permit Client and/or Client to verify Kigo’s compliance with this DPA. The Report is Kigo’s Confidential Information, and Client and Client will protect the Report in accordance with the confidentiality provisions of the Agreement or as otherwise agreed between Kigo and Client. Kigo will respond in a timely manner to Client’s or Client’s reasonable written enquiries related to data protection. The provision of the Report by Kigo shall fulfil any audit cooperation responsibilities that may apply to Kigo under Data Protection Laws.

7. DATA TRANSFERS & EXPORTS

7.1 Data Transfers. Kigo may transfer and process Personal Data to and in other locations around the world, including the United States, where Kigo and/or its Sub-processors maintain data processing operations as necessary to provide the Services and as required by applicable law. All international transfers and processing of Personal Data will at all times be subject to the requirements of this Section 7, and Kigo will continue to protect Personal Data to no less a standard than is required by the laws of the country from which the Personal Data is transferred.

7.2 Data Transfers from the EEA and Switzerland: If Client is located in the European Economic Area (“EEA”) or Switzerland, Kigo may process Personal Data outside of those territories in a country that is not recognized by the European Commission or the Swiss Federal Data Protection Authority as providing an adequate level of protection for Personal Data. For transfers of Personal Data to Kigo for processing by Kigo in a jurisdiction other than a jurisdiction in the EU, the EEA, or the European Commission-approved countries providing ‘adequate’ data protection, Kigo agrees it will (a) provide at least the same level of privacy protection for EU Personal Data as required under the U.S.-EU and U.S.-Swiss Privacy Shield frameworks; or (b) if such frameworks are subsequently invalidated, the EU Model SCCs in Annex B shall immediately take effect and be deemed executed and incorporated into this DPA.

8. DELETION OF DATA

8.1 Deletion of Data: Following expiration or termination of the Agreement, Kigo shall delete or return to Client (or if Client directs, Client) all Personal Data in Kigo’s possession, as provided in the Agreement except to the extent Kigo is required by applicable law to retain some or all of the Personal Data (in which case Kigo shall implement reasonable measures to isolate the Personal Data from any further processing).

9. COOPERATION

9.1 Data Protection Requests. To the extent that Client and/or Client is unable to access the relevant Personal Data through the use of account management tools provided as part of the Services, Kigo shall cooperate with Client and/or Client at Client’s expense to permit Client and/or Client to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement, including requests from individuals seeking to exercise their rights under EU Data Protection Law. If any such request is made directly to Kigo, Kigo shall not respond to such communication directly without Client’s and/or Client’s prior authorization, unless legally compelled to do so. If Kigo is required to respond to such a request, Kigo will promptly notify Client and provide Client and/or Client with a copy of the request, unless legally prohibited from doing so.

9.2 Legal Disclosure Requests. If Kigo is required to disclose any Personal Data in response to a subpoena, court order, warrant, audit or agency action, Kigo will promptly notify the Client and provide Client and/or Client with a copy of the demand, unless legally prohibited from doing so.

9.3 DPIAs and Prior Consultations. To the extent Kigo is required under EU Data Protection Laws, Kigo will at Client’s expense provide reasonably requested information regarding the Services to enable the Client and/or Client to carry out data protection impact assessments and prior consultations with data protection authorities as required by law.

10. GENERAL

10.1 Relationship with Agreement. Any claims brought under this DPA shall be subject to the terms and conditions of the Agreement, including but not limited to the exclusions and limitations set forth in the Agreement. Any claims against Kigo or any of the Kigo Parties under this DPA shall be brought solely against the entity that is a party to the Agreement giving rise to such claim. In no event shall any party limit its liability under the Agreement with respect to any individual’s data protection rights under this DPA or pursuant to applicable law.

10.2 Conflicts. In the event of any conflict between this DPA and any privacy-related provisions in the Agreement, the terms of this DPA shall prevail.

ANNEX A: DETAILS OF THE PROCESSING

Description of Customer:

The entity identified as “Client” in Agreement. The Client (acting for and on behalf of a Client and/or in its capacity as a Client) shall be transferring Personal Data to Kigo in connection with the Services (described below).

Nature of Services provided by Kigo:

Kigo provides property management software solutions and related services (referred to as “Services” in the Agreement) which process Personal Data upon the instruction of the Customer in accordance with the terms of the Agreement.

Type(s) of Personal Data processed:

Kigo may process the following types of Personal Data in connection with the Services:

• Identification and contact data (name, address, title, contact details),
• Financial information (credit card details, account details, payment information)
• Employment details (employer, job title, geographic location, area of responsibility)
• IT information (IP addresses, usage data, cookies data, location data)

Special categories of data (if applicable): Not applicable.

Categories of Data Subjects:

• Employees, agents, advisors, freelancers of Client and/or Client (who are natural persons)
• End-users authorized by Client and/or Client to use the Services
• Third party residents or tenants of Sites owned by Client

Nature of Processing Operations:

The objective of Processing of Personal Data by Kigo is the performance of the Services pursuant to the Agreement.

ANNEX B: STANDARD CONTRACTUAL CLAUSES

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, Kigo and Client, each a “party”; together “the parties”, HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Background

The data exporter has entered into a data processing addendum (“DPA”) with the data importer. Pursuant to the terms of the DPA, it is contemplated that services provided by the data importer will involve the transfer of personal data to data importer. Data importer is located in a country not ensuring an adequate level of data protection. To ensure compliance with Directive 95/46/EC and applicable data protection law, the controller agrees to the provision of such Services, including the processing of personal data incidental thereto, subject to the data importer’s execution of, and compliance with, the terms of these Clauses.

Clause 1

Definitions

For the purposes of the Clauses:

(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; [If these Clauses are governed by a law which extends the protection of data protection laws to corporate persons, the words “except that, if these Clauses govern a transfer of data relating to identified or identifiable corporate (as well as natural) persons, the definition of “personal data” is expanded to include those data” are added.]

(b) ‘the data exporter’ means the controller who transfers the personal data;

(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words “and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC” are deleted.]

(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;

(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;

(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;

(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

(e) that it will ensure compliance with the security measures;

(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC; [If these Clauses are not governed by the law of a Member State, the words “within the meaning of Directive 95/46/EC” are deleted.]

(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

(j) that it will ensure compliance with Clause 4(a) to (i).

Clause 5

Obligations of the data importer

The data importer agrees and warrants:

(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;

(d) that it will promptly notify the data exporter about:

• (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
• (ii) any accidental or unauthorised access, and
• (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;

(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;

(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;

(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.

Clause 6

Liability

1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.

2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.

3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

• (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
• (b) to refer the dispute to the courts in the Member State in which the data exporter is established.

2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing Law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.

Clause 11

Subprocessing

1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.

2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.

3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.

2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Last updated: April 1, 2019

The following Kigo Terms of Service govern Client’s subscription to the Kigo Services (including, without limitation, the Kigo Marketplace Bundle and/or VAS services (collectively, “Kigo Services”) as selected through the execution of a Kigo Purchase Order (the “Purchase Order” or “Order Form”). As used herein, “You” means the party identified in an executed Order Form. The Agreement consisting of the Order Form and these Terms of Services will be effective as of the date set forth on the Order Form (the “Effective Date”). Please read these Terms of Service carefully before executing an Order Form or using any Kigo Services. By executing an Order Form or installing, accessing or using the Kigo Services, Client accepts these Terms of Service (including any terms incorporated by reference herein), and agrees and acknowledges as follows:

1. LICENSE TO USE THE KIGO SERVICES

The Kigo Services are protected by United States (“U.S.”) and international copyright laws, international treaty provisions and applicable law. Kigo hereby grants to You a non-exclusive, non-transferable, limited license to use the Kigo Services and related user documentation on the terms and conditions set forth herein. The Kigo Services are licensed only for Your use. You may use the Kigo Services only in accordance with the applicable documentation and to perform the functions for which they are designated and for the purpose authorized by these Terms of Service.

2. SUBSCRIPTION

The Kigo Services are licensed on a subscription basis pursuant to the terms and conditions incorporated herein. We may provide updates to the Kigo Services on a periodic basis, and any such updates will replace the prior version of the Kigo Services. Each version of the Kigo Services may operate differently and may have different, more, or fewer features than prior versions. You shall not permit the use of any version of the Kigo Services by any other person nor shall You use the Kigo Services at any time after the license expires. Each update will be deemed to be part of the Kigo Services and shall be governed by these Terms of Service.

3. OWNERSHIP OF KIGO SERVICES, DATA AND CONTENT

Kigo is the exclusive owner of the Kigo Services and Your use of the Kigo Services does not provide You any right or interest in any of Kigo’s intellectual property, including but not limited to common designs, layouts, content, program code, scripts, database structures, proprietary strategies and processes, and other intellectual property of Kigo with the exception of user-uploaded content and data. Graphic designs or content created by Kigo specifically for You as part of Kigo’s professional service offering belong to You and can be used in other contexts; all other design elements (including customizable website templates) are the sole property of Kigo.

4. NO REVERSE ENGINEERING

You acknowledge that the Kigo Services and their structure, organization, and source code constitute valuable trade secrets of Kigo. Accordingly, You agree not to (a) modify, adapt, alter, translate, or create derivative works from the Kigo Services; (b) sublicense, lease, rent, loan, or otherwise permit a third party to use the Kigo Services; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Kigo Services; or (d) otherwise use the Kigo Services except as expressly allowed in these Terms of Service. You shall cooperate and make Your facilities, information, data and equipment available to Kigo in a timely manner when helpful for completion of customer specific implementation or troubleshooting.

5. CERTAIN RESTRICTIONS

Unless expressly and specifically permitted to do so under the terms of the Agreement, and then only in the exact manner specified, You may not (i) permit third parties to use the Kigo Services; (ii) remove or alter any trademark, service mark, logo, copyright, or other proprietary notices in or on the Kigo Services; (iii) place on any portion of the Kigo Services materials that are illegal, obscene, dangerous or libelous, or that violate, infringe or misappropriate any copyright, trademark, patent, trade secret, or other statutory or common law intellectual property right (Kigo reserves the right, but does not assume the obligation, to remove from any portion of the Kigo Services any content or materials that violate the provisions of these Terms of Service); (iv) access the Kigo Services if you are a direct competitor of Kigo, except with Kigo’s express written consent; or (v) access the Kigo Services for purposes of monitoring its availability, performance, or functionality, or any other benchmarking or competitive purpose. You agree not to use the Kigo Services, or any information obtained through the Kigo Services, for any unlawful or unauthorized purpose. You agree that Kigo has no obligation to retain any of Your content, data or material after the expiration or termination of the applicable Agreement and that such content, data or material may be irretrievably deleted after such expiration or termination.

You agree not to publicly criticize, ridicule, disparage or defame Kigo or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image (including, but not limited to, any statements made via websites, blogs, postings to the internet, or emails and whether or not they are made anonymously or through the use of a pseudonym). You agree to provide full cooperation and assistance in assisting Kigo to investigate such statements if Kigo reasonably believes that You are the source of the statements.

You agree not to register domain names that are derivatives of or deceptively similar to Kigo or its trademarks or that have the purpose or effect of criticizing, ridiculing, disparaging, or defaming Kigo, and its products, services, policies, directors, officers, shareholders, or employees.

6. AUTHORSHIP MARK AND CLIENT REFERENCES

You agree that Kigo can place a reasonably sized and positioned logo and/or text link on website pages and emails included in the Kigo Services, including on publicly accessible pages of Your website. You also agree that Kigo may reference its relationship with You for marketing purposes.

7.PAYMENT

You or the person designated as the billing contact for Your Kigo account (“Billing Contact”), must provide Kigo with a valid credit card in order to activate Your account. You and/or Billing Contact may authorize Kigo to automatically charge a credit card for all services (including any VAS) that You (and/or Your representatives) request, whether through an Order Form, online through the Kigo Services, or otherwise. Alternatively, You and/or Billing Contact can arrange for pre-payment of at least six months’ estimated charges and pay by ACH bank wire or credit card. Upon receiving notice that Your balance has reached $500 or less, You and/or Billing Contact must send another pre-payment equal to or greater than the first pre-payment. The 10% “credit” for making a pre-pay is only applicable to the initial pre-payment and prepaid amounts are not refundable. Failure to either send additional funds or switch to the credit card option and pay any past due amounts could result in suspension of Your services. You and/or Billing Contact will receive a receipt for all payments processed against the credit card or account by email and/or fax. If paying by credit card, Billing Contact agrees to keep credit card information updated, and to provide Kigo with a new valid account number if the old card is deactivated or does not have sufficient credit available to pay Your fees. Kigo reserves the right to place Your account on hold, suspend Your access to the Kigo Services and/or terminate the applicable Agreement or other services if You are overdue in paying Kigo any amounts due for Kigo Services access or other services You request. If You wish to dispute any fee that Kigo has charged to Billing Contact’s credit card, You agree to discuss such dispute with Kigo and work towards a resolution. You expressly agree not to dispute fees with Your issuing credit card company, which could result in a “chargeback” to Kigo. Declined, refused and/or returned payments may result in a $50.00 service charge payable immediately. Billing Contact and payment information must be kept current at all times and changes provided to Kigo within 30 days of such changes. Notice should be sent to [email protected].

8. CUSTOMER CONTENT

Kigo has the right to store and/or transmit information You provide through the Kigo Services and You agree to indemnify and hold Kigo harmless from and against any and all claims or causes of action that may arise with respect to such information. You are solely responsible for obtaining any and all necessary consents and clearances required to lawfully make use of any and all intellectual property rights through the Kigo Services, including without limitation clearances and consents with respect to Your domain name(s). You agree that all information submitted to, stored or distributed by You in connection with the Kigo Services (i) shall not be false, inaccurate, fraudulent or misleading; (ii) shall not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (iii) shall not violate any law, statute, ordinance or regulation; (iv) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (v) shall not contain sexually explicit, obscene, or pornographic content; (vi) shall not contain speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise); (vii) shall not contain graphic violence; (viii) shall not express statements or positions regarding politically sensitive or controversial issues (e.g., euthanasia, abortion, capital punishment), or contain other political content (e.g., lobbyists, PAC sites, political campaigns); (ix) shall not contain any viruses, trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any Kigo Services, data or personal information; and (x) shall not create liability for Kigo or cause it to lose (in whole or in part) customers or the services of service providers or other suppliers. Kigo reserves the right to monitor and limit or deny access to automated processes (bots) that harvest online content without explicit permission from Kigo, regardless of whether such content is owned by You, Kigo, or third parties. Kigo strongly recommends that You, with the help of an attorney, create Your own set of terms and privacy policy and other agreements applicable to Your business and Your jurisdiction. To comply with the law, be aware that terms and policies must be tailored to Your business and applicable jurisdiction. If You choose to use generic “document templates” provided by Us, You agree that (a) You are aware that Kigo is not a law firm or lawyer, does not provide legal advice, and has made no investigation if, and makes no representation or warranty as to whether, such materials are applicable to or suitable for Your business or jurisdiction or are in compliance with applicable laws, and (b) You are voluntarily and knowingly choosing not to accept our recommendation that You seek Your own legal advice regarding terms and privacy policy that are applicable to Your business, jurisdiction and applicable laws. You waive any and all claims and causes of action against Kigo, and agree to indemnify and hold Kigo harmless from any and all results, losses, liabilities, claims, damages, judgments, costs or expenses (including attorneys’ fees) arising with respect thereto or resulting therefrom.

9. USE OF KIGO SERVICES

You hereby agree as follows: (i) You shall not use the Kigo Services for “spamming,” as determined by Kigo in its reasonable discretion; (ii) You shall keep secure any identification, password and other confidential information relating to Your site and shall notify Kigo immediately of any known or suspected unauthorized use of Your site or breach of security, including loss, theft or unauthorized disclosure of passwords or other security information; (iii) You shall not use the Kigo Services for any unlawful purpose; (iv) You shall not engage in any other conduct that restricts or inhibits any other person from using or enjoying the Kigo Services, or which, in the judgment of Kigo, exposes Kigo, or any of its customers or suppliers to any liability or detriment of any type; and (vi) You shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Kigo Services, and You shall be responsible for all charges related thereto. The Kigo Services allow You to send emails to people with whom You have an existing business relationship. All emails sent must comply with applicable laws and contain an opt-out link and full address information. Unless explicitly authorized by Kigo, You are not allowed to send more than two thousand five hundred (2,500) emails per month through the Kigo Services.

10. SECURITY

You agree to use Your best efforts to prevent access to the Kigo Services through login and password by anyone other than Yourself, including but not limited to keeping such information strictly confidential, notifying Kigo immediately if You discover loss of such information or access thereto by another party not under Your control and supervision, and by using a login and password not easily guessed by a third party. Although Kigo will not be liable for Your losses caused by any unauthorized use of Your account, You may be liable for the losses of others due to such unauthorized use.

11. INTERNATIONAL CUSTOMERS

You may not access, download, use or export the Kigo Services, or the content provided on or through the Kigo Services, in violation of U.S. export laws or regulations, or in violation of any other applicable laws or regulations. You agree to comply with all applicable foreign and domestic export laws, restrictions and regulations, and to not directly or indirectly provide or otherwise make available any services or products of Kigo in violation of any such restrictions, laws or regulations. As applicable, you shall obtain and bear all expenses related to any necessary licenses, authorizations, and/or exemptions with respect to your own use of the services of Kigo outside the U.S. Neither the services or products of Kigo nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, into any country subject to U.S. trade sanctions (Supplement No. 1 to Part 740, Export Administration Regulations, Country Group E:1), to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions. By agreeing to these Terms of Service, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. You further agree to provide Us such information as We may request from time to time to confirm compliance with the foregoing and, without limiting any other rights We may have hereunder, You agree that Your rights to access the Kigo Services may be suspended or terminated at any time pending receipt of information satisfactory to Kigo to confirm compliance with the foregoing and all applicable laws.

12. LINKS AND THIRD PARTY SERVICES

The Kigo Services may include links to third party service providers and integration resources. When You engage such third party providers, You authorize Kigo to transmit to such providers information about You and your properties that is stored in the Kigo Services as requested by such third party providers. You acknowledge and agree that Kigo (i) is not responsible for the availability of such external sites or resources and (ii) is not responsible or liable for any content, advertising, products, services or other materials made available by such third parties or through such sites or resources, even if such third party is identified as a Kigo “portal partner,” “preferred partner” or any similar designation, or if such third party’s services have been “certified” as being compatible with the Kigo Services. You further acknowledge and agree that Kigo shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, advertising, products or services made available by such third parties or through any such site or resource.

13. KIGOPAY PAYMENT SERVICES

For U.S. based Kigo Marketplace Bundle Clients processing payments using KigoPay, the following terms are incorporated by reference and govern such Client’s use of the KigoPay services: KigoPay Domestic Terms. For Canada based Kigo Marketplace Bundle Clients processing payments using KigoPay, the following terms are incorporated by reference and govern such Client’s use of the KigoPay services: KigoPay Canada Terms. For non-U.S. and non-Canada Kigo Marketplace Bundle Clients processing payments using KigoPay, the following terms are incorporated by reference and govern such Client’s use of the KigoPay services: KigoPay International Terms. For Marketplace Bundle Clients processing payments using Acapture, the following terms are incorporated by reference and govern such Client’s use of the KigoPay services: Acapture Payor Terms.

14. PRIVACY

The Kigo Privacy Policy governs the collection, use, and disclosure of data within the Kigo Services and is incorporated by reference herein.

15. EUROPEAN UNION DATA TRANSFERS

Data processed on behalf of Clients located within the European Union is subject to the Kigo Data Processing Agreement and the supplemental privacy requirements set forth in the RealPage Privacy Shield Statement.

Data processed on behalf of Clients located within the European Union is subject to the supplemental privacy requirements set forth in the RealPage Privacy Shield Statement.

16. MODIFICATIONS TO TERMS AND POLICIES

Kigo reserves the right to modify these Terms of Service, the foregoing policies, and the other terms and conditions set forth on any Kigo Service or website, without prior notice, at any time and from time to time. Any such modification is effective upon the posting of same by Kigo on its website. Kigo also may notify You of any modifications by email or other correspondence to Your designated contact address. Kigo recommends that You review these Terms of Service periodically for any changes that may have been made. Your continued use of the Kigo Services or websites subsequent to any such changes means that You agree to be bound by those changes. The most current version of these Terms of Service and such polices supersedes all previous versions.

17. DISCLAIMERS

THE KIGO SERVICES AND ALL INFORMATION PROVIDED BY KIGO IN CONNECTION WITH THE KIGO SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY OTHER WARRANTY, CONDITION, GUARANTY, OR REPRESENTATION, WHETHER ORAL OR IN WRITING, AND YOU ACCEPT THE KIGO SERVICES, AS GENERALLY PROVIDED OR AS CUSTOMIZED FOR YOUR USE, AT YOUR OWN RISK. KIGO’S SYSTEM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KIGO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

18. LIMITATION OF LIABILITY

IN NO EVENT SHALL KIGO OR ANY OF ITS AFFILIATED OR RELATED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE KIGO SERVICES, THIS AGREEMENT OR THE PARTIES’ ACTIVITIES HEREUNDER, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND EVEN IF KIGO IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT LIABILITY IS ASSESSED AGAINST KIGO OR ANY OF ITS AFFILIATED OR RELATED PARTIES, THE AGGREGATE LIABILITY OF SUCH PARTIES SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THE KIGO SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE THAT THE EVENT GIVING RISE TO SUCH ACTION OCCURRED.

19. RELATIONSHIP

Kigo’s relationship with You shall be that of an independent contractor and nothing in these Terms of Service shall be construed to create a partnership, joint venture, or employer-employee relationship. You shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to the license to or use of the Kigo Services. Kigo may subcontract or otherwise delegate its obligations under these Terms of Service without Your consent and in Kigo’s sole discretion.

20. CONFIDENTIALITY

“Confidential Information” means non-public, confidential or proprietary information created or acquired by Kigo or its Affiliates, including, without limitation, business plans, partnership/affiliation arrangements, client lists, financing arrangements, technical data, marketing plans, software, source codes, programming techniques, ranking techniques, sources of services and goods, costs, profits, methods of obtaining new clients, payments and pay structure, login and passwords, tracking codes, competitive analyzes, personnel information, and financial data. Confidential Information does not include information that (i) is or becomes generally available to the public other than as a result of disclosure by You or anyone to whom You transmit the information, (ii) becomes available to You on a non-confidential basis from a source other than Kigo who, to Your knowledge, is not bound by a confidentiality agreement with Kigo, (iii) was rightfully known to You or in Your possession without restriction prior to the date of disclosure by Kigo, or (iv) is independently developed by You without benefit of or reference to the Confidential Information. You agree not to publish, disclose, copy, disseminate or in any manner utilize Confidential Information, in Your business or otherwise, for any purpose other than as contemplated herein unless compelled to do so by subpoena or compliance with other applicable law, prompt prior notice of which will be given to Kigo. However, You may disclose the Confidential Information to any of Your Affiliates who have a legitimate need to use the Confidential Information under these Terms of Service, provided You shall remain liable for such Affiliate’s use of the Confidential Information and compliance with these Terms of Service. You shall use commercially reasonable efforts to protect and prevent disclosure of the Confidential Information.

21. CONSENT TO RECEIVE ELECTRONIC RECORDS

By using the Kigo Services, You signify Your express consent to receive information from Kigo in electronic format. You will need a computer with browser, email and Internet access to receive such electronic records, and You also may need Adobe Acrobat Reader, available for free at www.adobe.com. Electronic records may include terms and conditions, agreements, privacy policies, and other items that You should print and retain for Your records.

22. INDEMNIFICATION

You hereby agree to indemnify and hold Kigo and its Affiliates and related parties, and their respective officers, directors, employees and agents harmless from and against any damages, losses, liabilities, judgments, costs or expenses (including reasonable attorneys’ fees and costs) arising out of any claim made by a third party relating to Your use of the Kigo Services or any breach or violation of these Terms of Service or the applicable Agreement.

23. ASSIGNMENT

The right to access the Kigo Services is personal to You and You may not transfer by assignment, sublicense, or any other method the service or the right to access or use the Kigo Services to any other person or entity. Any attempt by You to transfer Your rights or obligations under these Terms of Service or any applicable Agreement without obtaining the prior written consent of Kigo (including, without limitation, by operation of law or through Your change of ownership) shall be null and void. You agree that Kigo may assign its rights and/or delegate its obligations under these Terms of Service or any applicable Agreement to any third party, including its Affiliate, in Kigo’s sole discretion and without notice.

24. WAIVER

Kigo’s failure to act with respect to a breach by You or others of these Terms of Service or any applicable Agreement does not waive Kigo’s right to act with respect to subsequent or similar breaches.

25. REPRESENTATION

YOU HEREBY REPRESENT TO KIGO THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE AUTHORIZED TO AGREE TO AND ENTER INTO THESE TERMS OF SERVICE, AND ANY APPLICABLE AGREEMENT. YOU ARE ALSO REPRESENTING THAT YOU ARE ENTERING INTO THESE TERMS OF SERVICE AND ANY APPLICABLE AGREEMENT ON YOUR OWN BEHALF, HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO SUCH TERMS AND AGREEMENT, AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH HEREIN. AT ANY TIME UPON REQUEST BY KIGO, YOU AGREE TO SIGN A NON-ELECTRONIC VERSION OF THESE TERMS OF SERVICE AND ANY APPLICABLE AGREEMENT AND ANY OTHER AGREEMENTS OR STATEMENTS REASONABLY NECESSARY FOR KIGO TO PROVIDE AND ACCOUNT FOR THE KIGO SERVICES.

26. GOVERNING LAW

The Kigo Services (excluding third party linked sites) are controlled by Kigo from its offices within the State of Texas. It can be accessed from all 50 states in the United States as well as from other countries around the world to the extent permitted by site. As each of these places has laws that may differ from the laws of the State of Texas, by accessing the Kigo Services, both You and Kigo agree that the statues and laws of the State of Texas shall apply to any actions or claims arising out of or in relation to these Terms of Service or Your use of the Kigo Services, without regard to conflicts of laws principles thereof. You and Kigo also agree and hereby submit to the exclusive personal jurisdiction of and venue in the State of Texas and agree that any claim with respect to these Terms of Service or the subject matter hereof or activities hereunder shall be filed only in the courts of the Dallas County, Texas, and agree that any legal proceedings shall be conducted in English. Kigo makes no representation that the Kigo Services or any materials on our various websites are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is prohibited. These Terms of Service shall not be governed by the United Nations Convention on Contracts for the Sale of Goods. You agree not to engage in any class action claim against Kigo.

27. FORCE MAJEURE

Neither party will be deemed in breach of these Terms of Service to the extent that performance of its obligations are delayed or prevented by reasons of force majeure, such as riots, acts of terrorism, fire, flood, earthquake, acts of government and the like, provided that such party gives the other party written notice thereof promptly and uses its best efforts to continue to perform its obligations.

28. ENTIRE AGREEMENT

These Terms of Service (including any terms incorporated by reference herein), together with any applicable Order Form, comprise the entire agreement between You and Kigo and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between You and Kigo regarding the subject matter contained herein. Any purported oral or written modification to these Terms of Service that is not expressly contained in the currently posted Terms of Service shall be null and void unless memorialized in a writing signed by both You and Kigo. Notwithstanding the foregoing, nothing contained in this section shall prohibit or limit Kigo from modifying these Terms of Service, with such modifications effective upon the posting of same by Kigo on its website.

29. DEFINITIONS

The following definitions have the meanings assigned to them whenever capitalized throughout these Online Order Terms. Other capitalized terms in these Online Order Terms have the meanings assigned to them in the Order Form. “Affiliates” shall mean a person or entity, directly or indirectly controlled by, controlling, or under common control with another person or entity. “Authorized User” shall mean any staff or contractor employed by Client, property owners with properties managed by Client and vendors with which Client has a formalized business arrangement. “Booking Data” shall mean information regarding all current and future reservations related to a property. “Client Data” shall mean Personal Data that Kigo processes on Client’s behalf in the course of Client’s use of the Kigo Services, including Personal Data relating to customers of Client, property owners with properties managed by Client, and vendors with which Client has a formalized business relationship. “Kigo App” shall mean the web-based control panel used to manage Client’s Kigo Services. “Kigo Partner” shall mean a company that has entered into an agreement with Kigo to offer services to Kigo Customers. “Kigo Preferred Partner” shall mean a company that has entered into a preferred agreement with Kigo to offer services to Kigo Customers. “Per Booked Night Fee” shall mean the recurring fee per reservation night indicated on an Order Form that corresponds to a reservation during the applicable month that is associated with Property Information in the Kigo Services. Reservations without guest charges are excluded. “Property Data” shall mean full descriptive information for each rental Unit that Client wishes to include in the Kigo Services, including but not limited to the property name, description, location, amenities, calendar, rates, photos and other appropriate information. “Property Information” shall mean Property Data and Booking Data. “Property Sharing” shall mean the ability for one Kigo Client to market and make reservations of another Kigo Client’s Units. Property Sharing requires agreement of both Kigo Client parties, and the availability of suitable properties is not guaranteed by Kigo. Special Per Booked Night Fees apply to shared property reservations. “Unit” is a rental unit entered into the Kigo Services by You.

30. PROPERTY INFORMATION

Client will use the Kigo Services as its primary property management software. Client agrees to provide Kigo with complete and accurate Property Information regarding Units managed through the Kigo Services, including information regarding guest charges and payments made via the Kigo Services, as well as any other descriptive information related to such Units, in a mutually agreeable electronic data transmission format or through manual data entry performed by Client through the Kigo Services. Client represents and warrants that this Property Information shall be true, complete and accurate and that Client has the authority to provide the information to Kigo.

31. HOSTING PLATFORM

Client understands and agrees that: (i) the Kigo software, services, web services and websites comprise a web-based property management system and an online platform through which Client may create listings for accommodations offered for rent by Client or its customers, and through which prospective renters may gather information about such accommodations and their availability and enter into rental or other business transactions with Client or its customers; (ii) Kigo is not a real estate broker, agent, insurer, or booking agent; (iii) Kigo is not a party to any rental or other agreement between Client (or its customer) and a guest who rents a Unit or engages in any other transaction with Client (or its customer); and (iv) Kigo shall not have any authority to accept or reject a rental application or other offer to contract with Client or its customer; such authority rests solely with the Client or its customer.

32. KIGO PARTNER RELATIONSHIPS

If Client chooses to activate any services provided by a Kigo Preferred Partner or Kigo Partner, Client grants the explicit right for Kigo and the Kigo Preferred Partner or Kigo Partner to share Property Information and other Client information, including but not limited to customer and reservation data and Client Data for operational, billing and auditing purposes. See Section 14 above for additional terms regarding links to, and services provided by, third party providers.

33. KIGO APIs

If Client chooses to integrate using a Kigo application programming interface (“API”), Client acknowledges and agrees that such integration requires Client resources experienced in the implementation and operation of APIs. Client will be solely responsible for any development required to integrate any Kigo API with Client’s systems and/or applications. If Client requires Kigo technical consulting services, then Kigo will provide such services on a time and materials basis at Kigo’s then-current standard consulting rate. In such event, the parties will execute a mutually acceptable written statement of work to identify the scope of work to be performed, the rate to be charged, and any other appropriate terms and conditions. The Kigo APIs may be accessed and used by Client solely to develop interfaces (as applicable) to view booking and property information, and to access third party channel-centric pricing and availability data, booking rules, booking engine, and to make and secure a reservation—all in a manner and form in accordance with the Agreement and otherwise acceptable to Kigo. Client will not modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the Kigo APIs. Client will not use the Kigo APIs for any purpose that is unlawful or prohibited by the Agreement, or to undertake or facilitate any other activity that infringes the intellectual property or other rights of Kigo, its Affiliates, its other clients, or any other third party. All portions of the Kigo APIs, and any modifications, improvements or enhancements to the Kigo APIs, are and will remain at all times the sole and exclusive property of Kigo, and Client will have no right, title or interest therein, except for the license rights expressly provided in the Agreement.

34. INVOICING AND BILLING

Kigo shall bill Client the fees in the manner set forth in the Order Form. A late charge equal to the lesser of 1½% per month or the highest rate allowed by applicable law will be assessed on unpaid amounts over thirty (30) days past due.

VALUE-ADDED SERVICES

In addition to the above terms, these Value-Added Service (“VAS”) Terms will form part of the Terms of Service applicable to the purchase of the following VAS’s:

KIGO CONTACT CENTER

The following terms apply to the Kigo Contact Center Services:

1. Kigo Contact Center Services: The Kigo Contact Center Services will be provided in accordance with certain “Product Specifications.” The most current version of the Product Specifications may be found at www.kigo.net/contactcenter, the terms of which are incorporated herein by this reference. Kigo may change the Product Specifications or discontinue or revise any and all aspects of the Kigo Contact Center Services or any of the functionality of such services at its sole discretion from time to time during the term of the Services Agreement; provided however, Kigo shall not change the Product Specifications or discontinue the Kigo Contact Center Services or any of the functionality of such services in a manner that would modify or remove material functionality of such Services without prior written notice to Client, unless prior notice is not reasonably practicable in order to permit Kigo to comply with any laws or third-party licensing requirement. In the case of a conflict between these Terms of Service and the Product Specifications, the terms of the Product Specifications shall prevail.

2. Client Obligations: Client shall be responsible for testing and confirming the accuracy and functionality of all phone numbers and e-mail addresses assigned to Client by Kigo prior to using them in its listings. In addition, Client shall cooperate fully with Kigo and its agents and provide all assistance as reasonably necessary for Kigo to perform the Kigo Contact Center Services, including, without limitation, providing prompt access to Client’s personnel, equipment, systems and other information and resources reasonably required by Kigo to perform the Kigo Contact Center Services.

3. Recording of Telephone Conversations:

• Calls between Kigo and Prospective Renters: Kigo will disclose to all incoming callers that the call may be recorded.

• Calls between Client Employees and Prospective Renters or Other Parties: The recording of telephone conversations is subject to regulation under certain state and federal laws. Depending upon applicable law, Client may be required to obtain consent from Client personnel in order to lawfully record incoming or outbound telephone calls at the Client’s offices. With respect to incoming and outbound telephone calls at Client’s offices, Client bears sole responsibility for procuring all required consents. Client should consult with its own legal counsel for all issues concerning the recording of telephone conversations. Client hereby agrees to notify any present and future employee whose duties include answering telephone calls that his/her conversations may be recorded and reviewed. Client represents to Kigo that it shall notify all affected employees that their phone calls may be recorded and, at Kigo’s request, shall either (1) provide to Kigo evidence of Client policies requiring that such employees be notified of the fact that certain conversations may be recorded; or (2) present to Kigo signed acknowledgements by its employees and agents that they are aware that certain conversations may be recorded. Client acknowledges that these representations and obligations are essential to the ability and a condition precedent to the obligation of Kigo to provide certain call recording services.

KIGO REVENUE MANAGEMENT

Kigo Revenue Management will be provided in accordance with the Product Specifications available at http://kigo.net/revenue-management.

KIGO GUEST APP

Kigo Guest App will be provided in accordance with the Product Specifications available at http://kigo.net/guest-app.

KIGO API

Kigo API will be provided in accordance with the Product Specifications available at http://kigo.net/api.

1. Kigo Core API: provides open access ability to view accurate Booking and Property Information.

2. Kigo Channel API: provides ability to access Booking Data, third party channel-centric pricing and availability data, booking rules, booking engine, and optionality to make and secure a reservation.

KIGO PLATINUM PRODUCT SUPPORT

Kigo Platinum Product Support will be provided in accordance with the Product Specifications at http://kigo.net/platinum-product-support.

-product-support.