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should be regarded as confidential.
<br />b. Nondisclosure and Nonuse Obligations. Each
<br />party (the "Receiving Party") agrees that it will not use,
<br />disseminate, or in any way disclose any Confidential Infor-
<br />mation of the other party (the "D(sclosing Party "), to any
<br />third party, except that the Receiving Party may use the
<br />Disclosing Party's Confidential Information to the extent
<br />necessary to perform Its obligations under this Agreement.
<br />The Receiving Party agrees that it will treat all Confidential
<br />Information with the same degree of care as the Receiving
<br />Party accords its own Confidential Information, but In no
<br />event less than reasonable care. The Receiving Party
<br />agrees that it shall disclose Confidential information only to
<br />those of its employees and contractors who need to know
<br />such Information, and the Receiving Party certifies that such
<br />employees and contractors have previously agreed, either
<br />as a condition to employment or in order to obtain the Confl-
<br />dentlal information, to be bound by terms and conditions
<br />applicable to the Receiving Party under this Agreement. The
<br />Receiving Party shall immediately give notice to the Disclos-
<br />ing Party of any unauthorized use or disclosure -of -the Dis-
<br />closing Party's Confidential Information. The Receiving Party
<br />agrees to assist the Disclosing Party In remedying any such
<br />unauthorized Use or disclosure of Disclosing Party's Confl-
<br />dentlai Information.
<br />c. Exclusions from Nondisclosure and Nonuao Ob-
<br />ligations. The Receiving Party's obligations per section 9(b)
<br />(Nondisclosure and Nonuse Obligations) shall not apply to
<br />Confidential Information that the Receiving Party can docu-
<br />ment: (t) was (through no fault of the Receiving Party) public
<br />domain at or subsequent to the time the Disclosing Party
<br />disclosed the Information to the Receiving Party, (I!) was
<br />rightfully In the Receiving Party's possession free of any
<br />confidentiality obligation at or subsequent to the time the
<br />Disclosing Party disclosed It to the Receiving Party, or
<br />(ill) was developed by the Receiving Party's employees or
<br />agents independent of, and without reference to, any Infor-
<br />mation communicated to the Receiving Party by the Disclos-
<br />ing Party. A Confidential Information disclosure by the Re-
<br />ceiving Party either (A) in response to an enforceable order
<br />by a court or other governmental body, (B) as otherwise
<br />required by law, or (C) necessary to establish the rights of
<br />either party under this Agreement, shatl not be a breach of
<br />this Agreement by the Receiving Party or a waiver of confi-
<br />dentiality for other purposes: provided, however, the Receiv-
<br />ing Party shatl provide prompt prior written notice of any
<br />such Confidential information disclosure to the Disclosing
<br />Party (to the extent allowed by applicable law) to enable the
<br />Disclosing Party to seek a protective order or otherwise pre-
<br />vent such disclosure.
<br />d. Ownership and Return of Confidential Informa
<br />tion and Other Materials. The Disclosing Party's Conflden-
<br />tial Information is and shall remain the Disclosing Party's
<br />property, and this Agreement does not grant or imply any
<br />license or other rights to the Disclosing Party's Confidential
<br />Information except as expressly set forth In this Agreement.
<br />Within 5 business days after the Disclosing Party's request,
<br />the Receiving Party will promptly either (at the Disclosing
<br />Party's election) destroy or deliver to the Disclosing Party all
<br />Confidential Information and materials furnished to the Re-
<br />ceiving Party, and the Receiving Party agrees to provide a
<br />written officer's certification of thairirJ Party's com-
<br />1��_
<br />Date of Pre
<br />pliance with the foregoing obligation.
<br />e. Third Party information Disclosure, The Disclosing
<br />Party shall not communicate any Information to the Recely-
<br />Ing Party in violation of the proprietary rights of any third
<br />party.
<br />10. Warranties.
<br />a. Limited Warranty. Yard! warrants that the Licensed
<br />Programs will perform substantially as specified In the Li-
<br />censed Programs Documentation, Yards does not warrant
<br />that the Licensed Programs will meet Client's requirements
<br />and expectations.
<br />b. Remedy for Limited Warranty Broach. If Yard!
<br />breaches the warranty set forth In section 10(a) (Limited
<br />Warranty), Yardl agrees to use commercially reasonable
<br />efforts to modify the Licensed Programs so that they con-
<br />form to that warranty. If such modification Is not commercial-
<br />ly reasonable, then Yard! will notify Client and Client may
<br />terminate this Agreement in the event Client terminates this
<br />Agreement per this section 10(b) (Remedy for Limited War-
<br />ranty Breach), Yardi will refund to Client, on a pro -rata basis,
<br />the annual Fees paid by Client to Yards within the year prior
<br />to the effective date of Client's termination. THE FORE-
<br />GOING REMEDY IS CLIENT'S SOLE REMEDY IN THE
<br />EVENT OF A BREACH OF THE WARRANTY SET FORTH
<br />IN SECTION 10(a) (Limited Warranty).
<br />c. Warranty Disclaimer. EXCEPT AS EXPRESSLY
<br />SET FORTH IN THIS AGREEMENT, AND T4 THE FUL-
<br />LEST EXTENT ALLOWED UNDER APPLICABLE LAW,
<br />YARDI DISCLAIMS ALL EXPRESS, IMPLIED AND STA-
<br />TUTORY WARRANTIES WITH REGARD TO THE LI-
<br />CENSED PROGAMS INCLUDING, BUT NOT LIMITED TO,
<br />THE IMPLIED WARRANTIES OF MERCHANTABILITY
<br />AND FITNESS FOR A PARTICULAR PURPOSE.
<br />d. Internet Performance Disclaimer. Yard! does not
<br />and cannot control the flow of data via the Internet. Such
<br />flow depends in large part on the performance of Internet
<br />services provided or controlled by third parties. At times,
<br />actions or inactions of such third parties can impair or disrupt
<br />the Internet. Ya rdi will use commercially reasonable efforts to
<br />remedy and avoid such events, but cannot guarantee that
<br />such events will not occur. Accordingly, Yard! disclaims any
<br />liability resulting from or relating to such events.
<br />11. PAMage Limitations
<br />a. Damage Waiver. REGARDLESS OF ANY OTHER
<br />PROVISION IN THIS AGREEMENT, AND TO THE FUL-
<br />LEST EXTENT ALLOWED BY APPLICABLE LAW, YARDI
<br />DISCLAIMS ALL OBLIGATIONS AND LIABILITIES FOR
<br />SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNI-
<br />TIVE AND CONSEQUENTIAL DAMAGES, ATTORNEYS'
<br />AND EXPERTS' FEES, AND COURT COSTS (EVEN IF
<br />YARDI HAS BEEN ADVISED OF THE POSSIBILITY OF
<br />THESE DAMAGES), ARISING FROM OR IN CONNEC-
<br />TION WITH THIS AGREEMENT.
<br />b. Liability Limit. IN ADDITION TO THE LIMITA-
<br />TIONS OTHERWISE SET FORTH IN THIS AGREEMENT,
<br />AND TO THE FULLEST EXTENT ALLOWED BY APPLI-
<br />CABLE LAW, CLIENT AGREES THAT iN THE EVENT OF
<br />ANY CLAIM OR CAUSE OF ACTION BY CLIENT ARISING
<br />Yardi _ � Cli
<br />Con t1 entlal
<br />paration: July 23, 2009
<br />ent
<br />7:22 AM
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