Master Subscription Agreement

1.1. Provision of the Services. HomeRun IQ will provide Client with the Services. Except as otherwise agreed to by HomeRun IQ in writing (such as on HomeRun IQ’s web portal, or in purchase quote or order – collectively, all of the foregoing, shall be referred to herein as an “Order Form”), the Services are provided on a subscription basis for a term designated by HomeRun IQ in/on the Order Form. Notwithstanding the foregoing, to the extent professional services are set forth on an Order Form or otherwise agreed to in writing, they will be charged at HomeRun IQ’s then-current rate(s).

1.2. Provision of the Services. Client may access and use the Services solely for its own benefit with respect to real estate reserves, capital asset management and related capabilities, and only in accordance with the terms and conditions of this Agreement, the end user technical documentation provided by HomeRun IQ (“Documentation”) and any scope of use restrictions designated in the applicable Order Form.  “Permitted User” means an individual who is authorized by Client to use and access Services. Permitted Users may include service firms and consultants and their staff, property management and their staff, Association board members, and each of the Association unit Homeowners. Associations represent various housing ownership models and Common Interest Developments, including, but not limited to Cooperatives, Tenancy In Common, Homeowners Associations, Planned Developments, etc. Permitted Users can be changed via a mechanism authorized by HomeRun IQ. If Client is given passwords to access the Services on HomeRun IQ’s systems, Client shall use reasonable efforts to ensure that all Permitted Users keep user ID and password information strictly confidential to the assigned user and not share such information with any other person.

1.3. Providers. Client may permit its independent providers (including vendors contractors, agents and consultants) who are not competitors of HomeRun IQ (“Providers”) to serve as Permitted Users, provided Client remains responsible for compliance by each such Provider with all of the terms and conditions of this Agreement and any such use of the Services by such Provider is for the sole benefit of Client. Use of the Services by Providers and Client in the aggregate must be within the restrictions in the applicable Order Form.

1.4. General Restrictions. Client shall use reasonable efforts to not: (a) rent, lease, copy, provide access to or sublicense any part of the Services to a third party (except as authorized by Section 1.3); (b) use any part of the Services to help develop any other product or services, or to provide any product or service to any third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to any part of the Services (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law – and then only upon advance notice to HomeRun IQ); (d) modify or create derivatives of any part of the Services; (e) remove or obscure any proprietary or other notices contained in any part of the Services (including any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.  All of the foregoing restrictions will also apply to the Documentation.

1.5. Service Availability. HomeRun IQ will use reasonable efforts consistent with prevailing industry standards to make the Services available with a Monthly Uptime Percentage of at least 99%. “Monthly Uptime Percentage” is calculated by subtracting from 100% the minutes during the calendar month in which Services are “Unavailable”. Services are “Unavailable” if an environment responds to internet traffic with an unexpected error condition. Unplanned down times are counted as “Unavailable”. Planned down times (such as scheduled system maintenance) and all third-party issues, including but not limited to unplanned Microsoft Azure downtime and issues on the Client side, are excluded from “Unavailable”.

2.1. Generally.  “Client Data” means all data and other information loaded by Client into the Services. Client shall use reasonable efforts to ensure that Client’s use of Services and all Client Data is at all times compliant in all reasonable respects with Client’s privacy policies and all applicable local, state, federal and international law, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data.  Client is solely responsible for the accuracy, content and legality of all Client Data.  Client represents and warrants to HomeRun IQ that the Client Data is accurate in material respects, that Client has sufficient rights in the Client Data to grant the rights granted to HomeRun IQ in Section 2.2 below and that the Client Data does not infringe or otherwise violate the rights of any third party. To the extent the data becomes inaccurate – Client will use reasonable efforts to update it with the Services.

2.2. Rights in Client Data. As between the parties, Client shall retain all right, title and interest (including any and all intellectual property rights) in and to the Client Data as provided to HomeRun IQ.  Subject to the terms of this Agreement, Client hereby grants to HomeRun IQ a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Client Data solely to the extent necessary to provide the Services solely to Client.   In addition, HomeRun IQ shall have a perpetual, irrevocable, sublicensable, transferrable, royalty-free, fully paid-up, worldwide right and license to use, reproduce, display and distribute Client Data to the extent it is in an aggregated and/or anonymized form that does not identify Client or any other specific persons.

2.3. Uploads of Client Data. Client shall be responsible for providing all Client Data to HomeRun IQ and shall provide, to the extent reasonably possible, such Client Data in a format consistent with the technical compatibility requirements set forth in the applicable Service Description (or as otherwise specified by HomeRun IQ) (“Technical Requirements”).  Errors in loading Client Data onto HomeRun IQ systems due to defective media, erroneous data or failure to meet Technical Requirements may be rejected by the Services or may be referred back to Client for resolution and HomeRun IQ shall have no responsibility for any related impact on the applicable service, except to the extent such impact is caused by the acts or omissions of HomeRun IQ or any of its officers, directors, employees or agents.

2.4. Encryption. HomeRun IQ shall ensure that strong encryption and hashing algorithms will be applied to all data at rest and data in transit. A minimum of TLS v1.2 will be used for any data transmitted over the internet.

2.5. Network Security Scanning. Vulnerability Scanning and Penetration Testing must be conducted on all public-facing systems (IaaS, PaaS, Azure Functions). Vulnerability Scans must be conducted by HomeRun IQ at least once per month, and Penetration Testing must be conducted as least once per year. All scans and tests shall minimally evaluate the network-layer and application-layer. Live customer systems must use non-destructive testing methodology. External dev/test system may use destructive testing, ensuring that no live Client Data is at risk.

2.6. Data Breach. HomeRun IQ shall promptly and without unreasonable delay notify Client upon learning of an actual or suspected unauthorized access to, or disclosure or use of, any data collected, hosted or transmitted by HomeRun IQ in performance of Services (“Data Breach”). HomeRun IQ shall use its best efforts to cure such Data Breach within 14 days after the official notice of the Data Breach. If such Data Breach is not cured within such 14-day period, Client may immediately terminate this Agreement.

3.1. Indemnification by HomeRun IQ. HomeRun IQ will defend Client against claim, demand, suit or proceeding made or brought against Client by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Client”), and will indemnify Client from any damages, reasonable attorney fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved by HomeRun IQ in writing of a Claim Against Client, provided Client (a) promptly gives HomeRun IQ written notice of the Claim Against Client, (b) gives HomeRun IQ sole control of the defense and settlement of the Claim Against Client (except that HomeRun IQ may not settle any Claim Against Client unless it unconditionally releases Client of all liability), and (c) gives HomeRun IQ all reasonable assistance, at HomeRun IQ’s expense. If HomeRun IQ receives information about an infringement or misappropriation claim related to the Services, HomeRun IQ may in its discretion and at no cost to Client (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching HomeRun IQ’s warranties under “Limited Warranty” below, (ii) obtain a license for Client’s continued use of the Services in accordance with this Agreement, or (iii) terminate Client’s subscriptions for the Services upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply (1) to any modification, combination or development of the Services that is not performed by HomeRun IQ, including in the use of any application programming interface (API); (2) if a Claim Against Client arises from Services under an Order Form for which there is no charge; or (3) if a Claim Against Client arises from Client Data, Non-HomeRun IQ products, or Client’s breach of this Agreement, the Documentation or applicable Order Forms.

3.2. Indemnification by Client. Client will defend HomeRun IQ against any claim, demand, suit or proceeding made or brought against HomeRun IQ by a third party arising from or related to (a) Client’s use of the Services in an unlawful manner or violation of the Agreement or the Terms of Service; or (b) a third party alleging that any Client Data or Client’s use of Client Data with the Services infringes or misappropriates such third party’s intellectual property rights (a “Claim Against HomeRun IQ”), and will indemnify HomeRun IQ from any damages, attorney fees and costs finally awarded against HomeRun IQ as a result of, or for any amounts paid by HomeRun IQ under a settlement approved by Client in writing of, a Claim Against HomeRun IQ, provided HomeRun IQ (a) promptly gives Client written notice of the Claim Against HomeRun IQ, (b) gives Client sole control of the defense and settlement of the Claim Against HomeRun IQ (except that Client may not settle any Claim Against HomeRun IQ unless it unconditionally releases HomeRun IQ of all liability), and (c) gives Client all reasonable assistance, at Client’s expense. The above defense and indemnification obligations do not apply if a Claim Against HomeRun IQ arises from HomeRun IQ’s breach of this Agreement, the Documentation or applicable Order Forms.

3.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

Client acknowledges that no intellectual property rights are assigned or transferred to Client hereunder. Client is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder. In the event Client provides HomeRun IQ with any suggestions, ideas, improvements or other feedback with respect to any aspect of any of the foregoing (“Feedback”), Client shall and hereby does grant HomeRun IQ  (and its successors and assigns) a non-exclusive, perpetual, irrevocable, sublicensable, transferable, royalty-free, fully paid-up, worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback for any purpose.

5.1. Subscription Term and Renewals. Unless otherwise terminated as set forth below, the Order Form will have the initial subscription term set forth thereon. Thereafter, each subsequent Order Form will automatically renew for successive renewal terms of equal length to the initial subscription term, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current subscription term. If no initial subscription term is specified on an Order Form, the initial term is one (1) year.

5.2. Fees and Payment. Unless otherwise specified in an Order Form, all fees are as set forth in the applicable Order Form and shall be paid by Client monthly in advance (payable in USD within thirty (30) days from the date of HomeRun IQ’s invoice). HomeRun IQ may adjust the fees charged to Client hereunder on written notice delivered to Client at least sixty (60) days prior to the end of the then-current term (and such fees will take effect beginning on the next term). Except as expressly set forth in Section 6 (Term & Termination) and Section 7 (Limited Warranty), all fees are non-cancellable and nonrefundable. Client is required to pay any sales, use, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of HomeRun IQ. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection).

5.3. Suspension of Service. If Client’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, HomeRun IQ reserves the right to suspend Client’s access to the Services without liability to Client until such amounts are paid in full.

6.1. Term. This Agreement is effective as of the Effective Date and will terminate as set forth below.

6.2. Termination. Either party may terminate this Agreement with or without cause on thirty days’ written notice to the other party if there are no Order Forms in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within fifteen (15) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

6.3. Effect of Termination. Upon any expiration or termination of this Agreement, (i) Client shall immediately cease any and all use of and access to Services and (ii) each party will return to the other party (or destroy) such other party’s Confidential Information (subject to Section 6.4 below). Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

6.4. Client Data. HomeRun shall keep all Client Data confidential during and after the term of the Agreement. During the thirty (30) days period immediately following expiration or termination of this Agreement, HomeRun IQ will provide Client with access to the Client Data for download in an accessible format, for example comma-separated value (CSV). Personally Identifying Information will be removed from or anonymized within Client Data retained by HomeRun IQ. Notwithstanding anything herein to the contrary, HomeRun IQ may retain any Client Data as it deems advisable solely to the extent required by applicable laws or regulations.

6.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.4 (General Restrictions), 3.1 (Indemnification by HomeRun IQ), 3.2 (Indemnification by Client), 4 (Ownership), 5.2 (Fees and Payment), 6 (Term and Termination), 7.2 (Warranty Disclaimer), 9 (Limitation on Liability), 10 (Confidential Information) and 12 (General Terms).

7.1. Limited Warranty. HomeRun IQ warrants, for Client’s benefit only, that during the term of the applicable Order Form the Services, as defined in 1.1 Provision of the Services, that HomeRun IQ will make reasonable efforts consistent with prevailing industry standards to operate in substantial conformity with the applicable Documentation per Section 1.5 Service Availability HomeRun IQ does not warrant that Client’s use of the Services will be uninterrupted or error-free, nor does HomeRun IQ warrant that it will review the Client Data for accuracy. HomeRun IQ’s sole liability (and Client’s sole and exclusive remedy) for any breach of this warranty shall be, in HomeRun IQ’s sole discretion and at no charge to Client, to use reasonable efforts consistent with prevailing industry standards to provide Client with an error correction or work-around that corrects the reported non-conformity, or if HomeRun IQ determines such remedies to be impracticable, to allow Client to terminate the Agreement and receive a refund of any fees Client has pre-paid for use of the Services for the then-unexpired portion of the Subscription Term.The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Client makes a claim within one (1) year of the date on which the condition giving rise to the claim Client became or should have become aware of the or (ii) if the error was caused by Client, Client Data or misuse, unauthorized modifications or third-party hardware, software or services. Notwithstanding the foregoing, this Section 7.1 will not apply to any Services provided on a no-charge, trial or evaluation basis.

7.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7, ALL SERVICES, PROFESSIONAL SERVICES, AND ANY HOMERUN IQ ADVICE AND INFORMATION, ARE PROVIDED “AS IS”. NEITHER HOMERUN IQ NOR ITS PROVIDERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOMERUN IQ SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF HOMERUN IQ.CLIENT ACKNOWLEDGES AND AGREES THAT ANY MARKET DATA AND INFORMATION PROVIDED TO CLIENT, ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OF A PARTICULAR PURPOSE. HOMERUN IQ OBTAINS INFORMATION AND DATA FROM SOURCES BELIEVED TO BE RELIABLE – BUT DOES NOT GUARANTEE AS TO SUCH DATA OR INFORMATION’S ACCURACY OF COMPLETENESS. IN NO EVENT SHALL HOMERUN IQ OR ITS AFFILIATES BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR THE ACCURACY, TIMELINESS, OR COMPLETENESS OF ANY SUCH DATA OR INFORMATION OR FOR ANY DECISION MADE OR TAKEN CLIENT IN RELIANCE UPON SUCH DATA OR INFORMATION. IN NO EVENT SHALL HOMERUN IQ OR ITS AFFILIATED ENTITIES BE LIABLE FOR ANY SPECIAL INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF ANY SUCH DATA OR INFORMATION.CLIENT ALSO ACKNOWLEDGES THAT HOMERUN IQ IS NOT A TAX ADVISOR. CLIENT SHOULD CONSULT ITS OWN ACCOUNTANT.

During the Subscription Term, HomeRun IQ will provide Client with email and on-line support in accordance with HomeRun IQ’s standard support practices and procedures.  Reasonable efforts consistent with prevailing industry standards commensurate to the support issue will be offered to remedy issues not already stated in Section 1.5 Service Availability.

9.1. NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH DAMAGES ARE FORESEEABLE, (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CLIENT TO HOMERUN IQ DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE US $1,000.00) OR (III) IN THE CASE OF HOMERUN IQ’S LIABILITY, THE COST OR PROCUREMENT OF SUBSTITUTE TECHNOLOGY, ADVICE OR SERVICES. THE AFOREMENTIONED LIMITATIONS OF LIABILITY SHALL NOT APPLY TO DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

9.2. The parties agree that the limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

Each party agrees that all business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure.  Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.  The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).  The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

Client agrees that HomeRun IQ may use Client’s name and logo on HomeRun IQ’s web site and in HomeRun IQ promotional materials (e.g., presentations, ads, data sheets, and press releases) – as part of a general list of customers.

12.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

12.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

12.3. Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The parties agree that, prior to filing any claim with any court with jurisdiction, they will mediate any dispute hereunder. The parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California.

12.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

12.5. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. Notwithstanding the foregoing, notices for Client’s failure to pay may be provided via email and are deemed delivered twenty-four (24) hours after sending.

12.6. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

12.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be executed in counterparts – and by electronic means.

12.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, pandemic, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

12.9. Subcontractors. HomeRun IQ may use the services of subcontractors for performance of services under this Agreement, provided that HomeRun IQ remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Services as required under this Agreement.

12.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.