5 - AGREEMENT WITH YARDI_2020-02-04

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EXHIBIT 2 of firewalls and other technology generally used in the trade fails to prevent unauthorized third party access to Client Data; or (B) its use of encryption technology generally used in the trade fails to prevent unauthorized third party access to Client Data transmis- sions. Nothing In this section 8(b) (Limited Liability for Unauthorized Client Data Access) shall constitute a representation or warranty by Yardi that Client Data storage or transmission will be inaccessi- ble to unauthorized third parties. 9. Confidentiality. a. Confidential Information Definition. "Confidential Infor- mation" means all technical and non -technical information includ- ing: (I) Client Data, (ii) patent, copyright, trade secret, and other proprietary information; (i€€) inventions, know-how, processes, or al- gorithms; (iv) software programs, software source documents, ob- ject code, source code, database dictionaries, network diagrams, UML diagrams, Licensed Programs, Licensed Programs Docu- mentation, Licensed Programs schema, Licensed Programs func- tions, Licensed Programs user interface screens, SSIS, data ware- house schema, cube specifications and configuration, the reports generated by the Licensed Programs, Yardi Cloud specifications and configuration, Yardi Cloud hardware specifications and config- uration, and Yardi Cloud Services; (v) development, design details and specifications; (vi) a party's financial Information; (vii) customer lists, business forecasts, sales and marketing plans and infor- mation; (viii) the prices offered or paid per this Agreement for Yardi's products and services; (ix) SSAE18 audit reports and PCI DSS attestations of compliance and any information related to SSAE18 audit reports and/or PCI DSS attestations of compliance; (x) this Agreement's terms; and (A) any other Information disclosed by a party, or to which a party is exposed because of this Agree- ment, that the disclosing party Identifies as confidential at the time of disclosure or which — by its nature - reasonably should be re- garded as confidential. b. Nondisclosure and Nonuse Obligations. Each party (the "Receiving Party") agrees that it will not disseminate, distribute, expose, or in any way disclose any Confidential Information of the other party (the "Disclosing Party") to any third party. The Receiv- ing Party may use the Disclosing Parry's Confidential Information to the extent necessary to perform its obligations under this Agree- ment. The Receiving Parry's employees and Contractors may use Confidential Information only for the specific business purpose for which it was made available and not for any other purpose. The Receiving Party's employees and Contractors may not use Confi- dential Information in any way that may compete with Disclosing Party. The Receiving Party may not disclose Confidential Infor- mation to its employees and Contractors for the purpose of ena- bling any such employees or Contractors to service, maintain, or modify the Licensed Programs. The Receiving Party agrees that it will treat all Confidential Information with the same degree of care as the Receiving Party accords its own Confidential Information, but in no event less than reasonable care. The Receiving Party agrees that it shall disclose Confidential Information only to those of its employees and Contractors who need to know such infor- mation, and the Receiving Party certifies that such employees and Contractors have previously agreed, either as a condition to em- ployment or in order to obtain the Confidential Information, to be bound by terms and conditions applicable to the Receiving Party under this Agreement. The Receiving Party shall immediately give notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party's Confidential Information. The Receiving Party agrees to assist the Disclosing Party in remedying any such unauthorized use or disclosure of Disclosing Parry's Confidential Information. c. Exclusions from Nondisclosure and Nonuse Obliga- tions. The Receiving Party's obligations per section 9(b) (Nondis- closure and Nonuse Obligations) shall not apply to Confidential In- formation that the Receiving Party can document: (i) was (through no fault of the Receiving Party) In the public domain at or subse- quent to the time the Disclosing Party disclosed the information to the Receiving Party; (ii) was rightfully in the Receiving Party's pos- session free of any confidentiality obligation at or subsequent to the time the Disclosing Party disclosed It to the Receiving Party; or (ill) was developed by the Receiving Party's employees or agents Independent of, and without reference to, any Information commu- nicated to the Receiving Party by the Disclosing Party. A Confiden- tial Information disclosure by the Receiving Party either. (A) in re- sponse to an enforceable order by a court or other governmental body; (B) as otherwise required by law; or (C) necessary to estab- lish the rights of either party under this Agreement, shall not be a breach of this Agreement by the Receiving Party or a waiver of confidentiality for other purposes; provided, however, the Rece€v- Ing Party shall provide prompt prior written notice of any such Con- fidential Information disclosure to the Disclosing Party (to the extent allowed by applicable law) to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. d. Ownership and Return of Confidential Information. The Disclosing Party's Confidential Information is and shall remain the Disclosing Party's property, and this Agreement does not grant or Imply any license or other rights to the Disclosing Party's Confiden- tial Information except as expressly set forth in this Agreement. Within 5 business days after the Disclosing Party's request, the Re- ceiving Party will promptly either (at the Disclosing Party's election) destroy or deliver to the Disclosing Party all Confidential Infor- mation fumished to the Receiving Party, and the Receiving Party agrees to provide a written officer's certification of the Receiving Party's compliance with the foregoing obligation. e. Third Party Information Disclosure. The Disclosing Party shall not communicate any information to the Receiving Party in violation of the proprietary rights of any third party. 10. Warranties. a. Limited Software Warranty. Yardi warrants that the Li- censed Programs will perform substantially as specified in the Li- censed Programs Documentation. Yardi does not warrant that the Licensed Programs will meet Client's requirements and expecta- tions. b. Remedy for Limited Software Warranty Breach. If Yardi breaches the warranty set forth in section 10(a) (Limited Software Warranty), Yana€ agrees to use commercially reasonable efforts to modify the Licensed Programs so that the Licensed Programs con- form to that warranty. If such modification is not commercially rea- sonable, then Yardi will notify Client and Client may terminate this Agreement. In the event Client terminates this Agreement per this section 10(b) (Remedy for Limited Software Warranty Breach), Yardi will refund to Client, on a pro-rata basis, the annual Fees paid by Client to Yardi within the year prior to the effective date of CII- anl's termination. THE FOREGOING REMEDY IS CLIENT'S SOLE REMEDY IN THE EVENT OF A BREACH OF THE WARRANTY SET FORTH IN SECTION 10(a) (Limited Software Warranty). c. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, YARDI DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH REGARD TO THE LICENSED PROGRAMS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MER- CHANTABILITY AND FITNESS FOR A PARTICULAR PUR- POSE. d. Internet Performance Disclaimer. Yards does not and cannot control the flow of data via the Inlemet. Such flow depends In large part on the performance of Internet services provided or controlled by third parties. At times, actions or Inactions of such Page 4 of 11 Confidential Preparation Date: January 6, 2020 5:03 PM 5-35