General
Thank you for visiting the Ginkgo website, ginkgo.city (“Site”). The Site, and our products and services (collectively with the Site, the “Services”), are provided by Citiesense Inc. dba Ginkgo, located at 335 Madison Avenue, 4th Floor, New York, New York 10017, United States.
SOFTWARE-AS-A-SERVICE (“SaaS”) TERMS AND CONDITIONS
1. Definitions.
“Agreement” means these Subscription Terms and Conditions, any Order Form(s) between the Customer and Ginkgo, and exhibits, schedules or other documentation incorporated therein.
“Ginkgo” means Citiesense Inc. DBA Ginkgo
“Confidential Information” means any information, maintained in confidence by the disclosing party, communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and any information that by its form, nature, content or mode of transmission a reasonable recipient would understand to be confidential or proprietary. Notwithstanding anything to the contrary, the Deliverables and related documentation and the Service are Confidential Information of Ginkgo.
“Customer” means any customer identified in an Order Form with Ginkgo.
“Customer Data” means all electronic data or information provided by Customer to the Service.
“Deliverables” means any software, data, products, services and deliverables provided hereunder and/or via http://www.ginkgo.city.
“Order Form” means the order form or quote for Services entered into between Ginkgo and the Customer, including any exhibits or schedules thereto.
“Primary Contact” means Customer’s primary technical contact with Ginkgo in connection with the Service.
“Privacy Policy” means the Ginkgo’s website Privacy Policy located at http://www.ginkgo.city/privacy, as amended from time to time, which are incorporated herein by reference.
“Service(s)” means provision of the real estate information services, public forum services, and/or data management services through the Ginkgo website (the "Site", located at http://www.ginkgo.city).
“Terms and Conditions” means Ginkgo’s website Terms and Conditions located at http://www.ginkgo.city/terms, as amended from time to time, which are incorporated herein by reference.
“Users” means the individuals who are authorized to access and use the Service and who have been provided user identifications and passwords by Customer (or by Ginkgo at Customer's request). Users may be Customer employees, Customer third party consultants, contractors or agents, which third parties may access and use the Service solely for the benefit of Customer’s internal business purposes in accordance with the provisions of this Agreement, and subject to the Terms and Conditions and Privacy Policy.
“Virus” (i) any computer code designed to disrupt, disable, harm, or otherwise impede the operation of the Service, including Customer’s access to the Service and processing of data using the Service, or the operation of any associated system or network, or (ii) any other similar harmful, malicious, or hidden procedures, routines, or mechanisms that would cause the Service to malfunction or to damage or corrupt data, storage media programs, equipment or communications, or otherwise interfere with operations.
2. Provision of Service.
(a) This Agreement shall (i) be effective as of the effective date identified in the applicable Order Form, (ii) remain effective through the term and any subsequent renewal periods identified in the applicable Order Form, and (iii) expire as of the end of the applicable term and any subsequent renewal periods, except as otherwise set forth herein.
(b) Ginkgo will provide the Service to Customer in accordance with the terms of this Agreement. Ginkgo grants Customer a non-transferable and nonexclusive right to access and use the Service for the sole purpose of supporting the internal operations of Customer’s business and to process Customer’s own data.
(c) The following procedures will apply to the Service: (i) Ginkgo will send an email to Customer's Primary Contact setting forth the information necessary for initial use of the Service. Customer shall provide the information requested in such email to Ginkgo. (ii) Ginkgo will provide Service status and maintenance notifications by email to Customer's Primary Contact. (iii) Customer will notify Ginkgo via email at [email protected] with respect to any issues related to the Service.
(d) From time to time, additional functionality may be offered by Ginkgo with respect to the Service at an additional fee. Such additional functionality will be offered and agreed under a separate agreement between the parties. Customer hereby agrees that Customer’s purchase of the Service pursuant to this Agreement is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Ginkgo regarding future functionality or features.
(e) The Service may be accessed and used solely by a User whose identification and password may not be shared, accessed or used by any other person, company or entity. Unless otherwise specified in the applicable Order Form between the Customer and Ginkgo, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
3. Limitations and Processes.
(a) Third-party interfaces, software, hardware or other services which are associated with, or otherwise available through the Service shall be accessed and used by Customer and Users in their sole discretion. Ginkgo shall have no responsibility or liability with respect to Customer’s or any Users' access to or use of any such items or for any act or omission of any such third party provider.
(b) Ginkgo’s performance under this Agreement shall be excused as a result of Customer’s (i) failure to comply with its obligations as set forth herein; (ii) failure to provide Ginkgo with information reasonably deemed by Ginkgo to be necessary to assist Ginkgo in its performance under this Agreement; or (iii) delay, prevention or interference with Ginkgo’s performance under this Agreement.
(c) During normal business hours and no more than twice per year, on reasonable advance notice describing the purpose and scope of the request and in a manner that does not unreasonably interfere with Customer’s business operations, Ginkgo or a Ginkgo-designated third-party may audit Customer’s use of and access to the Service to verify Customer’s compliance with this Agreement.
4. Customer Responsibilities.
(a) Customer will provide Ginkgo with the contact details for its Primary Contact on the effective date of this Agreement, and will notify Ginkgo of any changes as necessary on an ongoing basis. Customer is responsible for having the hardware and software adequate for use of the Service.
(b) Customer is responsible for all activities that occur in, or are related to, User accounts and for Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Service, and shall notify Ginkgo promptly of any unauthorized access or use; and (iii) comply with all applicable local, state, federal and territorial laws and regulations (“Laws”) in accessing and using the Service.
(c) Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable Laws; (iii) send or store infringing, obscene, threatening, or otherwise unlawful material that is harmful to children or violates third party privacy rights; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained in the Deliverables; (v) use the Service to store or transmit any Viruses, (vi) attempt to gain unauthorized access to the Service or its related system or networks, or (vii) monitor the availability, performance or functionality of the Services, or access the Services for any other benchmarking or competitive purposes.
(d) Customer is responsible for its compliance with all applicable data protection and privacy protection Laws. Customer represents to Ginkgo that: (i) it will provide only that personal data that it is authorized to provide to Ginkgo, and will do so lawfully in compliance with applicable Laws, (ii) Ginkgo or its subcontractors may process such data for the purposes described in this Agreement, and (iii) Ginkgo may disclose such data to its subcontractors for this purpose.
(e) Customer shall pay on demand all of Ginkgo’s reasonable attorney fees and other costs incurred by Ginkgo to collect any fees or charges due Ginkgo under this Agreement.
(f) Customer shall not access the Services, and Ginkgo may immediately terminate this Agreement, if Ginkgo determines, in its reasonable discretion, that Customer is a competitor of Ginkgo.
(g) Customer agrees to be bound by and shall cause each User to be bound by the Terms and Conditions and Privacy Policy.
5. Fees and Payment.
(a) Customer will pay Ginkgo the fees set forth in the Order Form for setup of User access to the Deliverables, use of the Service and any other services or products described therein.
(b) Payment obligations are non-cancellable and fees paid are non-refundable. If Customer's account is thirty (30) days or more overdue, Ginkgo may suspend the Service upon at least two (2) business days’ notice to Customer without liability until any such amounts are paid in full, in addition to any of its other rights or remedies.
(c) The fees and pricing agreed upon between the Customer and Ginkgo in the Order Form(s) assume that the Customer’s labor force will remain substantially the same size during the term of this Agreement. Therefore, if (i) Customer’s labor force experiences a material increase after the effective date of this Agreement, whether by acquisition, merger, consolidation, organic growth by hiring, or otherwise, and (ii) such Customer has purchased an unlimited User Service, Ginkgo may at its option terminate such Agreement and may offer the Service to the Customer on a per user basis at the rate indicated in its price list at that time.
(d) The Customer must notify Ginkgo about any billing problems or discrepancies within 90 days after charges first appear on their Account statement. If it is not brought to Ginkgo's attention within 90 days, Customer agrees to waive its right to dispute such problems or discrepancies.
(e) The parties hereby agree that this Section 5 shall supersede the Payment Terms contained in the Terms and Conditions.
6. Customer Data.
(a) As between Ginkgo and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data provided that Ginkgo may compile, aggregate, analyze, process and utilize any data submitted hereunder or via the Services to publish reports analyzing, commenting on or otherwise utilizing such data. Such reports will publish such data on an anonymous basis, and will not identify Customer without its prior written consent. Customer hereby grants Ginkgo a limited, non-revocable, non-transferrable license to use such Customer Data as set forth herein. Customer Data is Confidential Information of Customer. Recovery of any Customer Data deleted by Customer shall be Customer’s responsibility.
(b) Subject to Ginkgo’s responsibilities set forth in Section 7, Ginkgo will not be responsible for any unauthorized access to or alteration, theft or destruction of Customer Data through accident, fraudulent means or devices, or any other method.
7. Confidentiality; Privacy.
(a) In the course of performance under this Agreement, one party (the “Disclosing Party”) may disclose, deliver or permit access by the other party (the “Receiving Party”) to its Confidential Information. The Receiving Party shall hold the Disclosing Party’s Confidential Information in strictest confidence and shall not disclose or provide such Confidential Information to any third party except as expressly provided in this Section and Section 6. The Receiving Party shall not make any use of the Confidential Information except such limited uses as are required or permitted under this Agreement, and shall cause its employees, agents, financial advisors, attorneys, and Users to maintain such Confidential Information in complete confidence, and shall disseminate such Confidential Information only on a need to know basis. Except as otherwise set forth in this Agreement, including without limitation Section 6, upon expiration or termination of this Agreement, or at any time upon the Disclosing Party’s request, the Receiving Party shall promptly return or, at the Disclosing Party’s option, destroy, all of the Disclosing Party’s Confidential Information, and all copies of and other materials containing such Confidential Information. The Receiving Party shall have no obligation under this Section 7 with respect to any Confidential Information that the Receiving Party can demonstrate by reasonable written evidence: (i) was already known to it at the time of its receipt without restriction on its disclosure; (ii) is or becomes generally available to the public other than by breach of this Agreement; (iii) is independently obtained from a third party whose disclosure to the Receiving Party does not violate a duty of confidentiality; (iv) is independently developed without use or reference to any of the Disclosing Party’s Confidential Information. If the Receiving Party is required by a court or other body of competent jurisdiction to disclose the Confidential Information, the Receiving Party may disclose only so much Confidential Information as is legally required, and the Receiving Party will promptly notify such compelled disclosure to the Disclosing Party if permitted by Law to do so.
(b) In the event of a breach of this Section 7, the Disclosing Party may not have an adequate remedy at Law. The Disclosing Party may seek temporary and/or permanent injunctions, specific performance or any other form of equitable relief. For the Deliverables, the Service and any other trade secrets, the obligations of this Section 7 shall continue for so long as the information remains a trade secret, and for all other Confidential Information, the obligations shall extend for five (5) years from the expiration or termination of this Agreement.
8. Proprietary Rights.
Ginkgo and its licensors (if any) shall retain all right, title, copyright, patent, trademark, trade secret and all other proprietary interests to the Deliverables, the Service and to all Ginkgo intellectual property and any enhancements, modifications or derivatives of any of the foregoing. Customer may not distribute, promote, or otherwise use any information or materials relating to the Deliverables or the Service for any external use without Ginkgo’s prior written consent or as otherwise specifically permitted in this Agreement. No copyright, patent, trademark, trade secret or other right of intellectual property not expressly granted under this Agreement is exchanged between the parties. Subject to Customer’s ownership of the Customer Data, Ginkgo retains all rights to any related work product delivered under this Agreement and Customer acknowledges and agrees that it obtains no rights to such work product. Customer shall not: (i) modify, copy or create derivative works based on the Deliverables or the Service; (ii) frame or mirror any content forming part of the Deliverables or the Service, other than on Customer's own intranets or otherwise for its own internal business purposes in accordance with this Agreement; (iii) reverse engineer the Deliverables or the Service; or (iv) access or use the Deliverables or the Service to build a competitive product or service, or copy any ideas, features, functions or graphics of the Deliverables or the Service. Ginkgo shall own any and all rights to, and may use or incorporate into the Service, any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service. Customer agrees to assign to Ginkgo any right title and interest to such suggestions, enhancement requests, recommendations or other feedback.
9. Representations and Warranties.
(a) Each party represents and warrants to the other that it has the power and authority to enter into and perform its obligations under this Agreement.
(b) Ginkgo represents and warrants to Customer that: (i) it owns or otherwise has sufficient rights in the Deliverables to grant to Customer the rights to access and use the Service granted in this Agreement, and (ii) it has taken commercially reasonable steps to test the Service for Viruses.
(c) Ginkgo DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS WILL BE CORRECTED OR THAT THE DELIVERABLES WILL RUN ERROR FREE OR UNINTERRUPTED. EXCEPT AS EXPRESSLY SET FORTH ABOVE, TO THE EXTENT PERMITTED BY LAW, NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED THIRD-PARTY WARRANTIES OR IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY Ginkgo AND Ginkgo MAKES NO WARRANTIES WITH RESPECT TO ANY HARDWARE EQUIPMENT OR THIRD-PARTY SOFTWARE THAT Ginkgo MAY USE TO PROVIDE THE SERVICE OR CUSTOMER MAY USE TO ACCESS THE SERVICE.
(d) Customer represents and warrants to Ginkgo that: (i) Customer has the right to transmit to Ginkgo, and receive from Ginkgo, all data, material and records, including the Customer Data, that Customer provides to Ginkgo and that are required to enable Ginkgo to perform the Service and any other of its obligations under this Agreement; and (ii) it will use reasonable commercial efforts to prevent the inclusion of Viruses while it and its Users access the Service.
10. Limitation of Liability.
(a) Except for death or personal injury and Ginkgo’s indemnity obligations in Section 11, Ginkgo's liability for direct damages, loss or liability for any cause, and regardless of the form, of action will be limited to the total amount of fees payable by Customer under this Agreement over the six (6) months prior to the date that the action arose.
(b) THE REMEDIES PROVIDED IN THE AGREEMENT TO CUSTOMER ARE THE CUSTOMER’S EXCLUSIVE REMEDIES. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS IN SECTION 11, IN NO EVENT SHALL Ginkgo BE LIABLE TO THE CUSTOMER OR ANY OTHER PARTY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR UNFORESEEABLE LOSS, DAMAGE OR EXPENSE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OR CORRUPTION OF DATA, HOWEVER ARISING, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED.
11. Indemnification.
(a) Ginkgo agrees to defend and indemnify Customer from and against, or at its option settle, any third- party claims (each a “Claim”) that the Service or the Deliverables alone and not in combination with any other product or program infringes any third-party intellectual property rights. Ginkgo may, at its option and at its own cost, procure for Customer the right to continue to use the Service; repair, modify or replace the Service or Deliverables so that it is no longer infringing; or provide a pro rata refund of the fees paid based on the then- current term. Ginkgo shall have no liability under this Section if the allegation of infringement is a result of: (i) a modification of the Deliverables by anyone other than Ginkgo, (ii) the Customer or any User not using the Service in accordance with the Terms and Condition, Privacy Policy or user guide or directions provided by Ginkgo, (iii) or a work product that was produced at Customer’s specific direction. THE FOREGOING STATES Ginkgo’S ENTIRE LIABILITY AND OBLIGATIONS REGARDING CLAIMS OF INFRINGEMENT, AND THE EXCLUSIVE REMEDY AVAILABLE TO CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS.
(b) Customer agrees to defend and indemnify Ginkgo from and against, or at its option settle, all Claims made or brought against Ginkgo: (i) arising out of Customer’s use of the Service; (ii) alleging that the Customer Data, Customer’s materials or records, or Customer's use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; or (iii) alleging that Ginkgo’s use of the Customer Data as contemplated in this Agreement is not authorized.
(c) A party’s indemnification obligation is contingent upon: (i) the indemnified party providing prompt notice to the indemnifying party of any such Claim and assistance in its defense; (ii) the indemnifying party’s sole right to control the defense or settlement of any such Claim, except that any settlement requiring a payment or admission of liability on the part of the indemnified party is subject to the indemnified party’s prior approval, not to be unreasonably withheld or delayed; and (iii) that the indemnified party shall not take any action or omit to take action that hinders the defense or settlement process, as reasonably directed by the indemnifying party.
12. Termination. Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach of this Agreement, and such breach remains uncured at the expiration of such period after which written notice is given to the breaching party; or (ii) subject to any applicable mandatory Law, if bankruptcy or receivership proceedings are initiated by or against a party.
13. Waiver of Jury Trial. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM RELATING TO THIS AGREEMENT.
14. Choice of Law. The Agreement shall be construed and governed in accordance with the laws of the State of New York (excluding its conflict of laws provisions).
15. Arbitration.
(a) All disputes, claims, or controversies arising out of or relating to this Agreement that are not resolved by mutual agreement shall only be resolved by binding arbitration to be conducted before the American Arbitration Association, or its successor; provided that Ginkgo may elect, in its sole discretion, to satisfy or resolve disputes, claims, or controversies arising from Customer’s nonpayment of any amounts due hereunder by any means, including by seeking relief in a court of competent jurisdiction. Unless otherwise agreed by the parties, arbitration will be held in New York, New York before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by before the American Arbitration Association, and will be conducted in accordance with the rules and regulations promulgated by before the American Arbitration Association unless specifically modified in this Agreement. The arbitrator shall issue a decision in writing, stating reasons therefor, including both findings of fact and conclusions of law, and may award any remedy available at law or in equity (consistent with the terms of this Agreement). The arbitrator shall have no power to amend or supplement this Agreement or to fail to follow applicable law. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory damages set forth in this Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded hereunder, and each party hereby irrevocably waives any claim to such damages. The parties covenant and agree that they will participate in the arbitration in good faith. Each party shall bear its own fees, costs and expenses of the arbitration and its own legal expenses, attorneys' fees and costs of all experts and witnesses. Unless the award provides otherwise, the fees and expenses of the arbitration procedures, including the fees of the arbitrator, shall be shared equally by the parties. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys' fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. Any award rendered pursuant to such arbitration shall be final, conclusive and binding upon the parties, and any judgment thereon may be entered and enforced in any court of competent jurisdiction.
(b) The parties hereby agree that this Section 15 shall supersede any arbitration, dispute resolution or other similar provisions contained in the Terms and Conditions.
16. Miscellaneous.
(a) Customer may not assign this Agreement, the use of the Service or any other of its rights and obligations under this Agreement without Ginkgo’s prior written consent. This Agreement shall be binding on the parties and their respective successors and assigns. Ginkgo shall have the unrestricted right to (i) assign all of its rights and obligations under this Agreement, and (ii) subcontract all or part of its performance under this Agreement.
(b) Customer shall not export or use the Service in violation of applicable Laws.
(c) The Services, other technology that Ginkgo makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
(d) Neither party is an agent or contractor of the other, and this Agreement does not confer or delegate upon a party any discretionary authority or control on behalf of the other party.
(e) Each party shall be excused from performance of its obligations under this Agreement for any period and to the extent that it is prevented from performing such obligations, in whole or in part, as a result of delays caused by circumstances beyond its reasonable control, including an act of God, severe weather, hurricane, earthquake, flood, war, civil disturbance or civil commotion, terrorism, court order, or any other cause over which such party does not have control, including internet or communication problems (including an internet service provider’s or hosting facility’s failures or delays involving hardware, software or power systems not within Ginkgo's possession or reasonable control), third-party hardware or software errors, Viruses or similar harmful programs or data, or unauthorized access or theft (any of the foregoing, a "Force Majeure Event").
(f) All documents referenced in this Agreement, including the Order Form(s), are a part of this Agreement. All other prior or contemporaneous agreements, proposals, purchase orders, representations and other understandings, whether oral or written, related to the Service are superseded by this Agreement. No alteration or modification of this Agreement will be valid unless made in a writing signed by the parties.
(g) There shall be no third-party beneficiaries to this Agreement.
(h) All notices required or permitted under this Agreement hereunder shall be delivered to the other party either personally, or by telefax, email, certified or registered mail (return receipt requested), or overnight courier. If delivered personally, notice shall be effective when delivered; if delivered by telefax or email, notice shall be effective upon electronic confirmation; and if delivered by mail or overnight courier, notice shall be effective upon confirmation of delivery.
(i) The section headings in this Agreement are for informational purposes only and shall not affect the interpretation of any provision of this Agreement. When used in this Agreement, “including” and word(s) of similar import mean “including without limitation.”
(j) If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, it shall be deemed severed from this Agreement and shall not affect in any respect the remainder of this Agreement.
(k) Sections 5, 6, 7, 8, 9, 10 and 11 and Customer’s obligation to pay any outstanding fees due shall survive expiration or termination of this Agreement.
