The fine print
Last modified: August 2010
These Service Terms & Conditions are agreed to by ActiveBuilding, LLC (“ActiveBuilding”, “us”, “we”) and the Client identified in a Service Order Form (“SOF”), and govern ActiveBuilding’s provision of and Client’s use of the ActiveBuilding Online System for Building Management and Community (the “Online System”). By using the Online System, Client agrees to abide by these Terms and Conditions.
ActiveBuilding reserves the right to modify these Terms from time to time. If we modify these Terms, we will indicate that we have done so on our homepage. Continued use of the Online System constitutes Client’s acceptance of any modified Terms.
1.
Definitions 1.1. “Affiliate” - any legal entity that owns, is owned by, or is commonly owned with a party, where “own” means having more than 50% ownership or the right to direct the management of the entity.
1.2. “Client Content” - any proprietary materials provided by Client for incorporation by ActiveBuilding into the Online System or other product or services to be provided by ActiveBuilding, including without limitation, Property photographs, information relating to each End User, the Property and documentation required for ActiveBuilding to successfully perform the Services under this Agreement, copies of by-laws, house rules and regulations and the Property declaration.
1.3. “Effective Date” - the date the SOF is executed by Client.
1.4. “End User(s)” – all persons permitted to use the Online System, including lessees, subtenants and occupants of units in the Property, all employees of Client, and members of Property Management.
1.5. “Online System” – the ActiveBuilding Online System for Building Management and Community online forum for the exchange of information by End Users, third party vendors, Clients and ActiveBuilding.
1.6. “Property” or “Properties” - the building location(s) designated by Client in the SOF.
1.7. “Services” – those design, development, customization, deployment, and training services, to be performed by ActiveBuilding for Client.
2.
Term; Payments2.1.
Effective Date; Customer Termination. This Agreement shall become effective on the Effective Date and shall continue until terminated (the “Term”). Customer may terminate this Agreement at any time upon 30 days’ notice to ActiveBuilding. Customer will not receive a refund of any prepaid fees.
2.2.
Payment Terms. ActiveBuilding shall invoice Client monthly in advance for the Online System. All amounts set forth on the invoice shall be due within thirty (30) days from Client’s receipt of the invoice. If ActiveBuilding performs any Services for Client at a fee, ActiveBuilding shall invoice the cost for such Services in accordance with the terms of the applicable SOF. Customer is responsible for paying all local, state, federal or foreign taxes, levies or duties of any nature.
2.3.
Late Payments. If Client fails to pay any fees within thirty (30) days from the date due, ActiveBuilding may levy late charges of the lesser of one percent (1%) per month or the maximum allowable under applicable law. In addition, failure of Client to fully pay any undisputed fees within forty-five (45) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services or provision of the Online System by ActiveBuilding. Any such suspension does not relieve Client from paying past due fees plus interest. In the event of collection enforcement, Client shall be liable for any costs associated with such collection, including legal costs, attorneys’ fees, court costs and collection agency fees.
2.4.
Termination for Cause. Either party may terminate this Agreement immediately in the event that: (a) the other party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within thirty (30) days of receipt of notice specifying the breach; or (b) the other party (i) institutes bankruptcy or similar proceedings, or files for a stay of proceedings or similar relief, (ii) has bankruptcy similar proceedings instituted against it, and such proceedings are not stayed or dismissed within thirty (30) days; or (iii) makes an assignment of property or assets for the benefit of its creditors. Upon any such termination of this Agreement under this Section, Client shall pay all unpaid and outstanding fees through the effective date of termination.
3.
System Setup3.1.
Set Up. After receipt by ActiveBuilding of all amounts due upon execution of this Agreement and all necessary Client Content, ActiveBuilding shall commence performing the Services. ActiveBuilding shall use commercially reasonable efforts to develop and launch the Online System in accordance with the milestones and schedules set out in the SOF.
3.2. Client Review. ActiveBuilding shall deliver the Online System, customized for use with the Property in accordance with the SOF, for Client’s review prior to making the Online System available for use by End Users.
3.3.
Acceptance. After ActiveBuilding’s delivery thereof, Client shall review the Online System for conformity with the SOF. Client shall advise ActiveBuilding in writing of any alleged non-conformity or its need for additional testing time of the Online System within ten (10) business days after delivery. If Client notifies ActiveBuilding of a nonconformity, ActiveBuilding will promptly repair such nonconformity. In the event Client does not notify ActiveBuilding of any non-conformity or need for additional testing within such ten (10) business day period, or if Client approves the Online System, then ActiveBuilding shall make the Online System available for use by End Users.
4.
Licenses; Vested Rights; Services4.1.
Limited License. In consideration of Client’s performance of the obligations under this Agreement, including Client’s payment obligations, ActiveBuilding grants Client a limited, non-transferable, non-exclusive, revocable license, for the Term, to adapt, publish, display, distribute and use the Online System solely for use by Client and End Users, so long as Client has met all payments and other obligations stated herein.
4.2.
License Restrictions. Client may not, and shall require that End Users shall not, reverse engineer, decompile, or disassemble the Online System or any part thereof, or copy any concepts, ideas or techniques demonstrated by the use thereof, or attempt to do any of the foregoing. The provisions of this paragraph will survive any termination or expiration of this Agreement. Client will have no right to sell, lease, or sublicense, or otherwise make the Online System available to any third party other than End Users, without the express written consent of ActiveBuilding.
4.3.
Use by Affiliates. If Client wishes to permit its Affiliates to use the Online System, and ActiveBuilding approves such use, Client and such Affiliate shall execute ActiveBuilding’s standard authorization form. Client shall remain solely liable for such Affiliates’ (and their End Users’) acts, omissions and usage of the Online System.
4.4.
Ownership. ActiveBuilding reserves all rights, title and interest in and to the Online System or any deliverable provided to Client pursuant to this Agreement (the "ActiveBuilding Proprietary Materials"). Client acknowledges that the ActiveBuilding Proprietary Materials, all enhancements, corrections and modifications thereto, all intellectual property rights protecting or pertaining to any aspect thereof, and all goodwill associated therewith, are and shall remain the sole and exclusive property of ActiveBuilding and, where applicable, ActiveBuilding's licensors. This Agreement does not convey title or ownership to Client or any other third party, but instead gives Client only the limited rights set forth in this Section 4.
4.5.
Availability. Subject to the terms and conditions of this Agreement, ActiveBuilding shall use its commercially reasonable efforts to make the Online System available for use by End Users twenty-four (24) hours a day, seven (7) days a week throughout the Term. Client acknowledges that from time to time the Online System may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades by ActiveBuilding or third party service providers ("Scheduled Downtime"); malfunctions and errors; and causes beyond the control of ActiveBuilding or which are not reasonably foreseeable by ActiveBuilding, including the interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively "Downtime"). ActiveBuilding shall use commercially reasonable efforts to, and to cause third party service providers utilized in connection with the provisioning of Services hereunder to, minimize any disruption, inaccessibility and/or inoperability of the Services in connection with either Downtime or Scheduled Downtime.
4.6.
Advertising. Client understands that, as part of the Services ActiveBuilding may include on the Online System and in emails generated through the Online System advertising and promotion materials of ActiveBuilding and third parties. All such advertising materials shall be subject to the prior approval of Client, which may be withheld at any time for any reason. Both parties agree that such advertising and promotional materials shall not contain any profane or offensive materials.
4.7.
Cooperation. The parties acknowledge that cooperation and teamwork are essential to the success of the Services. Both parties agree to work together and respond promptly to the other party in order to report progress and to identify, track and resolve problems, issues and questions.
4.8.
Project Managers. Each party shall appoint a project manager who shall be the primary representative of the party in relation to administration and other matters relative to the Services. Each party may rely on the authority of the other party's project manager to represent its respective company, provided that neither project manager shall have the authority to amend or modify this Agreement or the express terms of any order.
4.9.
Third Party Services. Client acknowledges that the Online System contains information about third parties or links to other web sites belonging to third parties (“Third Party Services”). Third Party Services are not investigated, monitored or checked for accuracy, appropriateness, or completeness by ActiveBuilding, and ActiveBuilding is not responsible for the delivery, provision or any other activities related to the Third Party Services.
5.
Modification of Services
5.1.
Client Requests. If Client shall, at any time during the Term, require any additions to or changes in the scope of the Online System or any other services described in the SOF then the parties shall discuss in good faith such additional Services and ActiveBuilding additional compensation therefor.
5.2.
ActiveBuilding Modifications. ActiveBuilding reserves the right to modify or terminate any or all portions of the Online System with or without cause at any time and effective immediately (provided that ActiveBuilding will not change the Online System in a way that materially changes its functionality or performance). ActiveBuilding shall not be liable to Client, any End Users or any third party for termination. Should Client object to any modifications to the Online System or become dissatisfied with the Online System in any way, Client’s only recourse is to terminate its use of the Online System.
6.
Client Obligations6.1.
Client Content. Client agrees to provide ActiveBuilding with all necessary Client Content relating to the Property, its staff members and residents which shall be intended to be published on the Online System. Such Client Content shall be delivered to ActiveBuilding in form and on media as set out in the Agreement or as shall otherwise be instructed upon by ActiveBuilding. Failure to timely deliver any content may result in delays in the publication of such content on the Online System.
6.2.
Content Ownership. Client shall procure for ActiveBuilding, at no cost to ActiveBuilding, a limited, non-transferable, revocable license for the Term, to modify, use, or create derivate works of the Client Content, as necessary to use and display the same on and in connection with the Online System. All rights, title and interest in and to any Client Content is and will remain with Client and its licensors, and except as expressly provided herein, ActiveBuilding shall have no rights, title, or interest in or to the Client Content. Client will, at its own expense, protect, indemnify, defend and hold ActiveBuilding, its Affiliates, employees, members, officers, directors, agents and representatives harmless from and against any claims, proceedings, loss and damages, cost and expense (including reasonable attorneys’ fees) arising from or relating to Client’s provision of Client Content to ActiveBuilding. Client shall not be obligated to indemnify ActiveBuilding in the event that any such claim arose from ActiveBuilding’s modification of the Client Content, if the Client Content itself would not have caused such claim.
6.3.
Usage Restrictions. Client shall not, and shall ensure that its End Users shall not, use the Online System:
• in a manner that is illegal under or otherwise violates any local, state, national or international law or would constitute, encourage or provide instructions for a criminal offense (including, without limitation, the CAN-SPAM Act);
• to violate the rights of any party (including without limitation rights of privacy and publicity);
• to post content that is obscene, lewd, lascivious, violent, or otherwise objectionable;
• in a manner that victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
• to display material that exploits children, or otherwise exploits children under 18 years of age;
• in a manner that is unsolicited or unauthorized, including advertising, solicitations, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
• to display private information of a third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
• in a way that, in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Online System, or which may expose ActiveBuilding or its users to any harm or liability of any type.
ActiveBuilding does not control and is not responsible for what users contribute to the Online System and is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content that may be distributed through the Online System. ActiveBuilding is not responsible for the conduct, whether online or offline, of any user of the Online System.
7. Warranties and Disclaimers
7.1. ActiveBuilding Warranties. ActiveBuilding warrants that during the term, the Online System will operate substantially in accordance with the provisions of Section 4.5. If, during the Term, Client notifies ActiveBuilding of any material non-conformity with respect to the Online System, ActiveBuilding’s sole obligation under such warranty and Client’s sole remedy shall be for ActiveBuilding to use commercially reasonable efforts to promptly remedy such non-conformity.
7.2. Disclaimer. EXCEPT AS SET FORTH IN SECTION 7.1, THE ONLINE SYSTEM AND SERVICES, ARE PROVIDED ON AN "AS IS" BASIS, AND CLIENT'S AND EACH END USER’S USE OF THE ONLINE SYSTEM AND SERVICES ARE AT THEIR OWN RISK. ACTIVEBUILDING DOES NOT WARRANT THAT THE ONLINE SYSTEMOR THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. ACTIVEBUILDING DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE ONLINE SYSTEM OR OTHER PORTIONS OF THE INTERNET. SUCH FLOW IS DEPENDENT UPON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES AND CLIENT ACKNOWLEDGES AND AGREES THAT INTERNET SERVICES ARE BEYOND THE CONTROL OF ACTIVEBUILDING.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND THE EXHIBITS ATTACHED HERETO, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. ACTIVEBUILDING DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, FOR THE ONLINE SYSTEM AND THE ACTIVEBUILDING ONLINE COMMUNITY SERVICE.
7.3. Warranties to Client Only. ANY WARRANTY OR OBLIGATION Of ACTIVEBUILDING HEREUNDER SHALL EXTEND ONLY TO CLIENT AND NOT TO ANY END USER, BUILDING PERSONNEL, OR OTHER THIRD PARTY.
7.4. No Warranties for Third Party Services or Equipment. ActiveBuilding does not guarantee the quality of services rendered by vendors listed on the Online System. ActiveBuilding may provide certain third party equipment to Clients as part of the Online System. Such equipment is provided as-is, with no warranties from ActiveBuilding. ActiveBuilding will not be liable to Client or any end user, building personnel or other third party for any losses, damages, costs or expenses arising out of or related to such third party services or equipment.
8. Indemnification
8.1. Client Indemnity. CLIENT AGREES TO PROTECT, INDEMNIFY, DEFEND, SAVE AND HOLD HARMLESS ACTIVEBUILDING, ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, REPRESENTATIVES AND AGENTS ARISING FROM ANY CLAIM OR DAMAGE ASSERTED AGAINST ACTIVEBUILDING BY THIRD PARTIES, INCLUDING END USERS, WHICH ARISE OUT OF OR ARE CONNECTED WITH THE CLIENTS OR ANY END USERS’ USE OF THE ONLINE SYSTEM AND/OR THE ACTIVEBUILDING ONLINE SYSTEM, WHETHER OR NOT THE CAUSE OR OUTCOME OF SUCH DISPUTE IS THE SUBJECT OF THIS AGREEMENT AND FROM ANY CLAIM, LIABILITY OR OTHERWISE BY ANY END USER, ASSOCIATED WITH THE CLIENT CONTENT PROVIDED TO ACTIVEBUILDING.
8.2. ActiveBuilding Indemnity
8.2.1. ActiveBuilding agrees to defend and indemnify Client against any third party claim of infringement or misappropriation alleging that the Online System or the Services infringe upon or misappropriate a United States patent, copyright or trademark (an "Infringement Claim"). Without prejudice to such indemnity obligations, ActiveBuilding may, at its sole discretion, and option: (a) obtain the right of continued use of such service or the Online System or any Services being the subject matter of the Infringement Claim; (b) replace or modify same to avoid such Infringement Claim; or (c) terminate this Agreement by notifying Client in writing and refunding to Client the fees paid to ActiveBuilding in the immediately preceding twelve (12) month period.
8.2.2. ActiveBuilding will not defend or indemnify Client if any Infringement Claim (a) is asserted by a parent, subsidiary or Affiliate of Client, (b) results from Client’s design or requirement for alteration or modification to any Online System , to the extent that such Infringement Claim would not have been caused but for such alteration or modification, (c) results from use of the Online System in combination with any non-ActiveBuilding service or product to the extent that such Infringement Claim would not have been caused but for such combination, or (d) is based in whole or in part upon any Client Content, to the extent that such Infringement Claim would not have been brought but for such Client Content.
8.2.3. The indemnification obligations of ActiveBuilding hereunder are dependent upon Client: (a) giving ActiveBuilding prompt written notice of such Infringement Claim, (b) permitting ActiveBuilding to defend or settle the Infringement Claim, (c) not at any time admitting liability in respect of the whole or any part of the Infringement Claim or agreeing to settle or dispose of the Infringement Claim, and (d) providing all reasonable assistance to ActiveBuilding in defending or settling the Infringement Claim.
8.2.4. This Section 8.2 states the entire liability of ActiveBuilding and Client’s sole and exclusive remedies for any Infringement Claim.
9. Force Majeure
ActiveBuilding shall be excused from performance hereunder for the period of time and to the extent that ActiveBuilding is prevented from performing the Services, in whole or in part, as a result of delays caused by Client, an act of God, war, civil disturbance, court order, labor dispute, third party non-performance or other cause beyond ActiveBuilding's reasonable control, including failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment and such non-performance due to the force majeure event alone shall not be a default or a ground for termination.
10. Limitation of Liability
UNLESS FURTHER LIMITED ELSEWHERE IN THIS AGREEMENT AND EXCEPT WITH RESPECT TO ACTIVEBUILDING’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.2 ABOVE, THE ENTIRE LIABILITY OF ACTIVEBUILDING AND CLIENT'S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATING TO OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY ACTIVEBUILDING FROM CLIENT IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES, AND THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, OR LOST DATA ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF EITHER PARTY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so some of the above limitations may not apply to Client.
THE PARTIES ACKNOWLEDGE THAT ACTIVEBUILDING HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
11. Notices
All notices required by this Agreement to be given to Client shall be sent to the address provided on the SOF.
All notices to be given to ActiveBuilding will be sent to:
ActiveBuilding, LLC 2101 9th Ave Ste 208 Seattle WA 98121
All notices required under this Agreement will be sent by certified or registered mail, confirmed facsimile or e-mail with confirmed read receipt. ActiveBuilding may send out general notices to all customers via e-mail or other electronic communication.
12. Dispute Resolution
In the event of any dispute or controversy between the parties hereto of any kind or nature, upon the written request of either party, each of the parties will appoint a designated officer whose task it will be to meet for the purpose of resolving such dispute or controversy or to negotiate for an adjustment to such provision of this Agreement. Such officers will discuss the dispute or controversy and negotiate in good faith in an effort to resolve the dispute or controversy or renegotiate the applicable section or provision without the necessity of any formal proceeding relating thereto. No formal proceedings for the judicial resolution of such dispute or controversy may be commenced until either or both of the designated officers conclude in good faith that amicable resolution through continued negotiation of the matter in issue is not likely to occur.
13. Arbitration
In the event that the parties are not able to resolve a dispute or controversy in accordance with the provisions above, either party may demand arbitration in writing, stating the nature of the controversy. The arbitration shall be conducted in accordance with the Commercial Arbitration Rule of the American Arbitration Association as then in effect, in King County, Washington, and shall be held before a single arbitrator. Discovery proceedings shall be kept to a reasonable minimum, and all discovery disputes shall be resolved by the arbitrator. Each party shall bear its own arbitration costs and expenses, except that the prevailing party in the arbitration shall be entitled to reimbursement of its reasonable attorneys’ fees, and the parties shall use all reasonable efforts to keep arbitration costs to a minimum.
Other than those matters involving injunctive relief as a remedy, or any action necessary to enforce the award of the arbitrators, the parties agree the provisions of this Section are a complete defense to any suit, action or other proceeding instituted in any court or before any administrative tribunal with respect to any dispute or controversy arising out of or in connection with this Agreement. The provisions of this Section will survive termination of this Agreement. Nothing in this Section prevents the parties from exercising their rights to terminate this Agreement as specified in this Agreement.
14. End User Privacy
ActiveBuilding agrees that all written information communicated to it by Client or any End User containing personal or private data relating to End Users (including but not limited to the names, email address, and apartment addresses, of any and all End users) ("End User Private Data") shall be treated as confidential information and used only for the purposes of providing the Online System, and that no such End User Private Information shall be disclosed to outside parties by ActiveBuilding without the prior written consent of Client. ActiveBuilding agrees to take reasonable precautions to prevent the disclosure to outside parties of any End User Private Data, unless required to do so by law enforcement authorities or by a court of law of competent authority. Nothing herein is intended to limit ActiveBuilding's right to identify that Client is a customer of ActiveBuilding. ActiveBuilding may utilize all information obtained pursuant to this Agreement or in connection with the Online System or Services provided hereunder for statistical and comparative purposes, provided it is not disclosed to any third party in any manner which could reasonably identify Client or End Users.
15. Other Provisions
15.1. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1 (Definitions), 2.2 (Payment Terms), 4.4 (Ownership), 6.2 (Content Ownership), 7 (Warranties and Disclaimers), 8 (Indemnification), 10 (Limitation of Liability), 11 (Notices), 12 (Dispute Resolution), 13 (Arbitration) and 15 (Other Provisions).
15.2. No Waiver. Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.
15.3. Governing Law. This Agreement will be governed by the laws of the State of Washington, without giving effect to its conflict of laws principles.
15.4. Entire Agreement. This Agreement, including the SOF, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior proposals and agreements, both written and oral and all other written and oral communications between the parties.
15.5. No Assignment. ActiveBuilding may not assign its rights nor delegate its obligations under this Agreement to one or more third parties without Client's consent. ActiveBuilding may subcontract any services described in this Agreement to third parties selected by ActiveBuilding, provided that ActiveBuilding remains liable as stated in this Agreement. Client will not assign or transfer its rights or obligations under this Agreement without prior written consent of ActiveBuilding, which consent will not be unreasonably withheld. Any assignment or transfer prohibited by this provision will be void.
15.6. Severability. Each paragraph and provision of this Agreement is severable and, if one or more paragraphs or provisions are declared invalid, the remaining provisions of this Agreement will remain in full force and effect.
15.7. Authorization. Each party hereto separately represents and warrants to the other party hereto that it has full corporate power and authority to enter into this Agreement and that the execution and delivery of this Agreement and the carrying out of the transactions contemplated by it have been duly and validly authorized by all necessary corporate action and do not violate any provision of its charter, certificate of incorporation or by laws.
15.8. Independent Parties. ActiveBuilding, in furnishing the Online System and Services to Client, is acting only as an independent contractor. Except where this Agreement expressly provides otherwise, ActiveBuilding does not undertake by this Agreement or otherwise to perform any obligation of Client, whether regulatory or contractual, or to assume any responsibility for Client's business or operations.
15.9. Acknowledgement by Client. By using the Online System, Client acknowledges that it has read and UNDERSTANDS this Agreement (including the SOF and all attached exhibits, schedules and amendments) and are not entering into this Agreement on the basis of any representations not expressly set forth herein.