This Master Services Agreement (the "Agreement") is made by and between A&C Enterprises, LLC, an Arizona limited liability company ("Provider") and the customer ("Customer") identified in an Order Form ("Order Form") that references this Agreement and is executed by Provider and Customer. By executing an Order Form that references this Agreement, Customer accepts this Agreement and agrees to the terms and conditions set forth herein.
The effective date of this Agreement (the "Effective Date") is the earliest date of any Order Form Customer executes with Provider.
This Agreement shall remain in full force and effect during the entire period during which Provider is delivering services to Customer. Any reference to this Agreement shall be deemed to include all applicable exhibits, schedules, addenda, supplements and set-up forms utilized to provide services.
Provider will provide Customer’s residents with access to the Henri Resident Portal (the "Software"), accessed through a website and mobile application (jointly, the "Site"), allowing the residents ("Residents") residing in Customer’s community or communities identified in an Order Form (the "Communities")to utilize certain enabled features which Customer selects for its Communities and for which it pays, which may include features such as paying rent, requesting maintenance service, managing package deliveries and pick-ups, reserving amenities within the a Community, scheduling Community classes and activities and communicating with other Residents and Community employees. Provider’s provision of access to the Software through the Site shall be referred to herein as the "Services".
Subject to the terms of this Agreement, any Order Form, the Terms of Use ("TOU") posted on the Site and Customer’s performance of its obligations under this Agreement, Provider hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable license for the Term (as hereinafter defined) to use the Software and the Site to provide the Software and Site to Residents. Customer agrees to use each of the Software and the Site only for its intended purpose and for no other purpose. Customer further agrees that it will not, and will cause its Residents not to, use the Software or the Site in any way that would violate any Federal, state or local law or ordinance or that would violate any international law or regulation (including, but not limited to, any laws regarding the export of data or software to and from the United States or other countries.) Customer further agrees that it will not use the Services to, and will cause its Residents not to: (i) send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set out in the TOU; (ii), transmit, or procure the sending of, any advertising or promotional material without Provider’s prior written consent, including any "junk mail", "chain letter" or "spam" or any other similar solicitation; (iii) impersonate or attempt to impersonate Provider, a Provider employee, another user, or any other person or entity (including, without limitation, by using e-mail addresses or user names associated with any of the foregoing); (iv) copy, modify, distribute and/or transfer by any means, display, sublicense, rent, reverse engineer, decompile or dissemble the Software, the Site or any other material or contents contained on the Site; or (v) engage in any other conduct that could interfere with another user’s use of the Software or Site, or which, as determined by Provider in its sole discretion, may harm Provider or users of the Software or Site or expose them to liability.
Except as explicitly set forth above, nothing contained in this Agreement is intended to or shall transfer to Customer any license, right, title or interest in the Software or the Site. All rights of Provider not expressly granted to Customer in this Agreement shall be, and hereby are, reserved to Provider and are the sole and exclusive property of Provider. The license provided herein shall automatically expire at the end of the Term or upon earlier cancellation of this Agreement.
This Agreement will be effective as of the Effective Date, and will remain in effect for one year, unless earlier terminated as otherwise provided in this Agreement (the "Initial Term"). This Agreement will automatically be renewed beyond the Initial Term for additional one-year terms (each, a "Renewal Term") unless either party provides the other party with written notice of termination at least 30 days prior to the expiration of a term. The Initial Term and any Renewal Term shall together be referred to as the "Term".
Customer agrees to pay to Provider for the Services in the amounts set forth in each Order Form. Except as otherwise set forth in the Order Form, all fees and chargers shall be paid in U.S. Dollars. All fees are due on the payment date(s) specified in the Order Form. If and to the extent the Order Form does not specify the due date for particular fees or charges hereunder, all such amounts shall be due within 30 days after the date of Provider’s invoice to Customer. Customer is responsible for applicable sales tax and any other use taxes, plus a 1.5% service charge per month if any account is over 30 days late in payment, plus any collection costs incurred. Claims for billing errors must be made in writing to Provider within 30 days after the date of invoice, after which time such alleged errors will be deemed waived by Customer. In addition, Customer’s failure to pay in full any fees for the Services on the dates they are due shall be deemed a material breach of this Agreement entitling Provider to suspend the Services, terminate access to the Software and Site and terminate this Agreement immediately.
Unless otherwise agreed to in writing by the parties, all fees will be paid by direct debit of an account designated by Customer. Prior to the Effective Date, Customer will give Provider any account information and approvals required to set up and authorize the debit of such account. If the funds in such account are insufficient to cover all fees then due, Provider may assess an additional 2% penalty, immediately send a paper invoice and charge Customer for all fees associated with such paper invoices. If Customer requests the delivery of a paper invoice via U.S. Mail and requires the ability to pay such invoices via paper check or purchase order, an additional invoice fee will apply as set forth in the Order Form. All fees set forth in this Agreement may be increased by Provider not more than once per year by a percentage determined by Provider, with the minimum annual increase being equal to the year over year percent change in the Consumer Price Index for all Urban consumers ("CPI-U"), U.S. City Average.
By using the Services, Customer shall be deemed to have consented to and agreed to be bound by the TOU which can be found at www.henrihome.com. This Agreement, any Order Form and the TOU shall govern the rights and responsibilities of the parties. By using the Services and/or executing any Order Form, Customer acknowledges and agrees that it has read, understands and agrees to be bound by this Agreement, any Order Form and the TOU.
Provider may amend or change the TOU from time to time, in its sole discretion, by providing Customer with written notice by either electronic mail or regular mail or by posting the updated terms on the Site. Users are encouraged to regularly access and review the TOU. Customer’s continued use of the Services after changes have been made to the TOU shall conclusively be deemed as Customer’s agreement to such changes.
In the event that the TOU are in conflict with this Agreement, the terms and conditions set forth in this Agreement shall be deemed to control.
The Software, the Site and all related materials and methodologies, trade secrets, trademarks, trade names, confidential and proprietary information, processes, content, features and functionality (including but not limited to all information, text, displays, images, video and audio, and the design, selection and arrangement thereof), and any modifications, enhancements, improvements and derivative works thereof (collectively, the "IP"), are the sole and exclusive property of Provider. Provider owns all right, title and interest in and to the IP, which is protected by Federal, state, local and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. Any and all derivative works of the IP shall be the sole and exclusive property of Provider, free of any claim of ownership by Customer, and Customer hereby assigns all right, title and interest therein to Provider.
The Henri name and logo, and all related names, logos, product and service names, designs and slogans (the "Protected Marks") are trademarks of Provider or its affiliates or licensors. Customer shall not use the Protected Marks without the prior written consent of Provider. All other names, logos, product and service names, designs and slogans on the Site are the trademarks of their respective owners.
Upon expiration or termination of this Agreement for any reason, Customer shall return or destroy any copies of the IP in its possession, custody or control.
"Customer Content" means any materials or information provided by Customer for inclusion or incorporation into the Site, including but not limited to any trade or service marks, images, photographs, illustrations, floor plans, graphics, audio clips, video clips or text. Customer will deliver the Customer Content to Provider in an electronic file format specified and accessible by Provider or as otherwise agreed upon by the parties. Any services required to convert or input Customer Content may result in an additional charge to Customer, and Customer agrees that it is responsible for any such charge.
Customer assumes sole responsibility for: (i) obtaining all licenses and authorizations necessary for hypertext links to third party websites: (ii) obtaining all licenses and authorizations necessary to use trademarks, trade names, service marks or any other content of third parties: (iii) the accuracy of the Customer Content; and (iv) ensuring that the Customer Content does not infringe upon or violate any right, title or interest of any third party. Customer agrees that it will provide Customer Content that does not contain any materials which are obscene, threatening, malicious, which infringe upon or violate any applicable law, regulation or any proprietary, contract, tort, moral, privacy or other third party right, or which otherwise exposes Provider to civil or criminal liability. Provider reserves the right, in its sole discretion, to reject any Customer Content that does not satisfy the foregoing requirements or which Provider deems as objectionable.
Customer assumes full responsibility and legal liability for any and all Customer Content and for the accuracy, completeness and legality of the Customer Content. Customer represents and warrants that it owns or has adequate licenses or other permissions to use all Customer Content and that Customer has obtained all necessary consents, permissions, releases, waivers and rights necessary for Customer and Provider to use the Customer Content for the purposes of this Agreement, including but not limited to publishing the Customer Content on the Site.
Customer Content will remain the sole and exclusive property of Customer. Customer hereby grants to Provider a non-exclusive, worldwide, royalty-free license for the Term to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display and otherwise use Customer Content as necessary to render the Services to Customer under this Agreement.
The Software or Site may contain message boards, chat rooms, personal profiles, forums, bulletin boards, social media integration, and other interactive features (collectively, "Interactive Services") that allow Residents and other users to post, submit, publish, display or transmit to other users or other persons content or materials (collectively, "User Contributions") on or through the Software or Site.
While Provider will advise Residents and other users that as a term and condition of their use of the Interactive Services, User Contributions must comply with certain Content Standards set forth in the TOU, Provider has no obligation to review, edit, censor, monitor or control any User Contributions including, without limitation, messages, information, data, commentary, documents, photographs, images, drawings, downloads, uploads or input from, with, by or to Residents or other users. Provider is not responsible for monitoring or controlling access to the Software or Site. Customer shall cause all User Contributions of Residents to comply with Content Standards set forth in the TOU, and Customer is responsible for all User Contributions made by Residents. All contact information and personal information provided by Residents shall be exclusively Customer’s, and Provider shall be permitted to use such information to the extent necessary to provide the Services. Customer shall implement and maintain reasonable security procedures and practices appropriate to protect such information from unauthorized access, destruction, use, modification or disclosure and in compliance with applicable law.
During the term of this Agreement, Provider and Customer may disclose to one another certain confidential and/or proprietary information. "Confidential Information" means all software, information, documents, data, drawings, specifications, trade secrets, object codes, source codes, technical processes and formulas, product designs, sales, cost, pricing and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data, the Software, the Site, the terms of this Agreement and any Order Form and any other proprietary information (including proprietary information of third parties) supplied to Customer. "Confidential Information" will not include information that the receiving party can demonstrate is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party, was known to the receiving party as of the time of its disclosure or is independently developed by the receiving party. Except as provided for in this Agreement, each party will not make any disclosure of the other party’s Confidential Information to anyone other than its employees who have a need to know in connection with its performance of this Agreement. Each party will notify such employees of its confidentiality obligations with respect to the Confidential Information and will require such employees to comply with these obligations. The confidentiality obligations of each party and its employees will survive the expiration or termination of this Agreement.
Customer represents and warrants to Provider that: (i) Customer has the power and authority to enter into this Agreement; (ii) Customer has received all requisite power, authority, authorizations and permissions to conduct its business and to enter into and perform its obligations under this Agreement; (iii) Customer is in compliance with all applicable laws, regulations, statues and ordinances; (iv) the person executing this Agreement and any Order Form on behalf of Customer has the authority to execute such documents on behalf of Customer; and (v) this Agreement constitutes the valid and legally binding agreement of Customer enforceable against Customer in accordance with its terms.
Customer acknowledges and agrees that its use of the Services, Software and Site may enable Residents to make rental payments, request maintenance services that will require access to Residents’ suites, request package acceptance, allow guest access to suites, provide access to social media, schedule and reserve space in classes or programs offered by a Community and reserve or manage other amenities of a Community. Customer acknowledges and agrees that Provider is a conduit through which Residents’ requests pass, thereby facilitating rental payments and other actions by the transmission of information to Customer. Customer further acknowledges and agrees that Provider is not the author or creator of any request or payment and that Provider has no responsibility or legal liability to Customer, Residents or any third party as a result of any consequence that occurs from the transmission of information using Provider’s Services, Software and/or Site. Customer acknowledges and agrees that Provider has no legal responsibility for any misapplied, declined, misappropriated or lost rental payments, lost or misplaced packages, inappropriate and/or illegal conduct of Community employees and/or third parties who have gained access to Residents’ suites using the Services, the Software or the Site or any other inappropriate conduct which is related to use of the Services, the Software or the Site.
Access to and use of the Services, the Software and the Site may be temporarily down, inaccessible or deactivated due to maintenance, upgrades, equipment failure, power failure, and/or other scheduled or unscheduled downtimes or interruptions, and Provider shall not be liable to Customer or any third party for any such circumstances. Provider will use commercially reasonable efforts to ensure that maintenance and downtime occur during non-peak hours and that, when possible, advance notice is given. Provider will use commercially reasonable efforts to ensure that the Software performs in accordance with industry standards.
CUSTOMER ACKNOWLEDGES THAT ITS USE OF THE SERVICES, THE SOFTWARE AND THE SITE IS AT ITS OWN RISK AND THAT THE SERVICES ARE BEING PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. NEITHER PROVIDER NOR ANY OF ITS AGENTS, EMPLOYEES OR REPRESENTATIVES MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES, THE SOFTWARE OR THE SITE, ANY INFORMATION CONTAINED ON THE SITE OR TRANSMITTED BY USE OF THE SERVICES AND/OR SOFTWARE. WITHOUT LIMITING THE FOREGOING, NEITHER PROVIDER NOR ANY OF ITS AGENTS, EMPLOYEES OR REPRESENTATIVES REPRESENTS OR WARRANTS THAT THE SERVICES, THE SOFTWARE OR THE SITE OR THEIR CONTENTS OR ANY INFORMATION TRANSMITTED OR OBTAINED THROUGH THEM IS ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED OR THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES OR ANY ACTION TAKEN ON THE SITE OR BY USING THE SOFTWARE WILL OTHERWISE MEET CUSTOMER OR RESIDENTS’ NEEDS OR EXPECTATIONS.
PROVIDER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY AND EVERY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, COURSE OF PERFORMANCE, USE OF TRADE OR NON-INFRINGEMENT.
The foregoing disclaimer does not affect any warranties which cannot be excluded or limited under applicable law.
No employee, agent, representative or affiliate of Provider has authority to bind Provider to any oral representations or warranty concerning the Services, the Software or the Site. Any representation or warranty not expressly contained in this Agreement is not authorized and is unenforceable. Any description of the Services, the Software or the Site contained within written promotional materials or on the Site is for the sole purpose of identifying the Services, the Software and the Site and any such description is not part of the basis of the bargain and does not constitute a warranty that the Services, the Software or the Site shall conform to those descriptions. No affirmation of fact or promise made by Provider on the Site or otherwise shall constitute a warranty that the Software will conform to the affirmation or promise.
IN NO EVENT WILL PROVIDER, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, MEMBERS, OFFICERS OR MANAGERS BE LIABILE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S OR RESIDENTS’ USE OF OR INABILITY TO USE THE SERVICES, SOFTWARE OR SITE, ANY SERVICES LINKED TO THEM, ANY CONTENT ON THE SITE, IN THE SOFTWARE OR IN THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES, THE SITE AND/OR THE SOFTWARE, INCLUDING ANY DIRECT OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL OR LOSS OF DATA. PROVIDER’S LIABILITY TO CUSTOMER FOR ANY BREACH OF THIS AGREEMENT AND UPON ANY CAUSE OF ACTION WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR SERVICES UNDER THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INFRINGEMENT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, MISPREPRESENTATION AND ANY AND EVERY OTHER TORT, BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORSEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
If a party to this Agreement defaults in performing any material obligations required under the Agreement, the other "non-defaulting" party may give written notice of its intention to terminate the Agreement describing in reasonable detail the default. If the party in default fails to remedy such material default within 30 days (seven days for a payment default) following such written notice or if such default is not capable of cure within such 30-day period, or if the party in default fails to commence cure procedures within such 30 day period, then the non-defaulting party may, in addition to all other remedies available at law or in equity, terminate this Agreement.
Notwithstanding the foregoing: (i) Provider may terminate this Agreement at any time and for any reason by providing at least 30 days’ advance written notice of termination to Customer; (ii) if Customer sells or ceases to manage a Community, Customer may terminate this Agreement with respect to such Community only upon 30 days’ advance written notice to Provider stating that the Community has been sold or its management contract has been terminated; provided, that for purposes of this Section 16(ii), the sale or transfer of a Community to a parent, subsidiary, affiliate or any other person or entity in which Customer has a substantial or controlling interest shall not enable Customer to terminate this Agreement as to that Community; and provided further that if an Order Form provides that Customer is entitled to a volume discount based upon the number of Communities, such discount may be lost as a result of the removal of one or more Communities pursuant to this Section 16(ii); and (iii) either party may terminate this Agreement immediately by providing written notice to the other party in the event such party (a) files or has filed against it a petition for reorganization or liquidation under the U.S. Bankruptcy Code or corresponding laws or procedures of any applicable jurisdiction; (b) files or has filed against it any other procedure concerning bankruptcy, insolvency, dissolution, cessation of operations or reorganization of indebtedness; (c) voluntarily or involuntarily assigns assets for the benefit of creditors; (d) has appointed a receiver, keeper, liquidator or custodian of whatever sort or description, for all or a substantial portion of its assets; or (d) terminates, dissolves or ceases to continue all or substantially all of its business affairs.
Upon any termination or expiration of this Agreement, Customer will immediately pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.
Provider may use Customer’s name and aggregate data and statistics (including, but not limited to, the percentage of Residents/payers using the Software and Site) to promote Provider and the Services in all media and to provide Services pursuant to the terms of this Agreement. With Customer’s prior consent, Provider may obtain testimonials regarding the Services from Customer’s employees and Residents and use photographs, other images and marks of Customer in the promotion and marketing of itself and the Services.
Customer agrees to defend, indemnify and hold harmless Provider, its affiliates, licensors third party providers, payment processors, subcontractors and service providers, and its and their respective members, officers, directors, employees, contractors, agents, attorneys, licensors, suppliers, subsidiaries, successors and assigns from and against any claims, liabilities, damages, suits, proceedings, actions, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to: (i) Customer’s breach of or misrepresentation in this Agreement, any Order Form or the TOU; (ii) Customer’s and Residents’ use of the Services, the Software and the Site; (iii) all Posts and User Contributions; (iv)any use of the Services, the Software or the Site other than as expressly authorized in this Agreement and the TOU; (v) ownership, infringement or use of the Customer Content; and (vi) any claim by a third party with respect to the foregoing items (i) through (v).
Provider provides payment processing services to qualifying property managers and property owners through a service called HenriPay. Customer may include HenriPay as part of the Services if Provider and Customer agree to its inclusion on an Order Form, in which case the fees due to Provider in connection with the HenriPay service will be set forth on the Order Form. If Customer and Provider agree that Customer will utilize HenriPay, Customer will broker and refer certain Residents to use HenriPay to process their payments to Customer. In such event, Customer appoints provider as Customer’s agent to (i) collect payments from all payers who sign up for the HenriHome.com service and (ii) credit your account(s) provided to Provider, less any transaction fees or other applicable fees, every month the HenriPay service is provided. In addition, Customer acknowledges and agrees to the following:
Customer agrees and authorizes Provider to utilize the services of a third party payment processor or facilitator to provide the Services, including in connection with HenriPay, and agrees that Provider may subcontract any aspect of providing the Services or HenriPay to a third party.
Customer authorizes Provider to act as an agent on its behalf to process payments from its Residents via Automated Clearing House ("ACH") and/or credit card processing to any bank account provided to Provider in the name of the Customer.
Provider is not responsible for any nonpayment of rent, non-sufficient funds, chargebacks, or any other nonpayment issue as a result of the financial situation of a Resident. In the event that a credit issued by Provider on behalf of a Resident comes back returned by the account holder’s bank or credit card company for fraudulent activity, insufficient funds, chargeback dispute, or any returned item, Customer agrees that the credit for the returned item issued will be reversed from original deposit account by the account holder’s bank or credit card company. In this event, Customer certifies that the funds will be available for reversal and Customer will be liable in the event that the funds are not available.
Customer authorizes Provider to create a Merchant ID account to process VISA, MasterCard, Discover, and American Express (when applicable) credit card payments for Customer. Customer will only be responsible for fees with Provider as stated on the Henri Payment Processing Agreement.
Customer authorizes Provider to act as an agent to manage and collect VISA, MasterCard, Discover, and American Express (when applicable) credit card payments through the Merchant ID for Customer. All payments will be credited to Customer’s existing bank account(s) on file with Provider. Transactions processed via this Merchant ID will be exclusively for Customer.
In the event a chargeback or returned item processes after the termination date of this Agreement, Customer certifies that the funds will be available for reversal and Customer will be liable in the event that the funds are not available.
Provider is not a rent collection agency, but rather a service provider that provides an online method for the Customer to conduct its normal rent collection business. Customer is responsible for ensuring all property bank account and routing numbers are correct for each Resident using HenriPay. Customer is also responsible for all NSF or chargeback fees or penalties as a result of an online payment from any Resident of any Community. Provider is not responsible for deposits made to incorrect accounts as a result of negligence on the part of the Customer. Customer is responsible to ensure the receipt of funds for all transactions and for the collection of funds for all returned transactions.
Provider and its personnel, in performance of this Agreement, are acting as independent contractors and not employees or agents of Customer. The parties acknowledge and agree that no joint venture is intended or created by this Agreement. Each party shall be solely and entirely responsible for its acts and for the acts of its agents, employees, servants and subcontractors during the performance of this Agreement. Each party shall be solely responsible with respect to the compensation payable to its agents, employees, servants and subcontractors and neither party shall have responsibility to the other with respect to the same. Neither party shall have the authority to bind the other. Each party shall be solely responsible for all taxes of every kind and nature with respect to its own business activities and the other party shall have no responsibility with respect to the same. Each party agrees to file all required tax forms as to its own business activities and agents or employees.
Except for the payment of fees by Customer, if the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, terrorist threat or attack, or unavailability of data to be supplied by third party, that party will be excused from such to the extent that it is prevented, hindered, or delayed such causes.
This Agreement will be governed in all respects by the laws of the State of Arizona without regard to its conflict of law provisions, and Customer and Provider agree that the sole venue and jurisdiction for disputes arising from this Agreement will be the appropriate state or federal court located in the County of Maricopa, Arizona, and Customer and Provider hereby submit to the jurisdiction of such courts and waive any and all objections to the exercise of jurisdiction by such courts and to venue in such courts.
ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ORDER FORM, THE TOU OR THE SERVICES, SOFTWARE OR SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM SHALL BE PERMANENTLY BARRED AND SHALL BE DEEMED WAIVED.
No waiver by Provider of any term or condition set forth in this Agreement or the TOU shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition and any failure of Provider to assert a right or provision under this Agreement of the TOU shall not constitute a waiver of such right or provision.
Neither party shall assign, without prior written consent, which shall not be unreasonably withheld, this Agreement or its rights, duties or obligations hereunder to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so will be deemed ineffective and a material breach of this Agreement. Notwithstanding the foregoing, Provider may assign this Agreement, in whole or in part, upon the sale of all or substantially all of the assets, business or ownership interests of Provider.
Provider may give notice by means of a general notice on the Site, electronic mail to Customer’s email address on record in Provider’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Provider’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). User may give notice to Provider (such notice shall be deemed given when received by Provider) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Provider addressed to A&C Enterprises LLC, Attn: Alana Millstein, 15230 N 75th St., Suite 1030, Scottsdale, AZ 85260; or by electronic mail to [email protected].
No provision of this Agreement or the TOU provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement will remain enforceable.
This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The exchange of copies of this Agreement or signature pages by electronic transmission shall constitute effective execution and delivery of this Agreement, and shall be deemed originals for all purposes.
This Agreement shall not be construed more strictly against Provider or Customer by virtue of its having been prepared by that party or its attorney, it being recognized and agreed that both Provider and Customer participated in the preparation and negotiation of this Agreement.
Provider and Customer agree that this Agreement, the TOU, any Order Form and any supplements, exhibits, schedules or addenda attached hereto contain the complete understanding and agreement between them and that any representations not contained herein are of no force or effect, having been superseded by this Agreement. Provider and Customer further agree that this Agreement cannot be changed, modified or superseded except in writing executed by Provider and Customer; provided, however, that Provider may make amendments to the Agreement from time to time in its discretion by posting updates on Henrihome.com/master-services-agreement, and that Provider shall use commercially reasonable efforts to notify Customer of any updates at renewal or extension of the Agreement, and by such renewal or extension, Customer agrees to the Agreement, as amended. Alterations, modifications, or other changes to the Agreement shall not be handwritten. The section and paragraph headings herein have been inserted solely for convenience of reference and in no way define, limit or describe the scope or substance of any provision of the Agreement.