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OUT OF OR CONNECTED WITH THIS AGREEMENT,
<br />YARDI'S MAXIMUM LIABILITY TO CLIENT, REGARD-
<br />LESS OF THE AMOUNT OF LOSS CLIENT MAY HAVE
<br />SUFFERED, SHALL NOT EXCEED THE PEES PAID BY
<br />CLIENT TO MARDi PURSUANT TO THiS AGREEMENT
<br />WITHIN THE YEAR PRIOR TO THE EVENT GIVING RISE
<br />TO THE LIABILITY.
<br />12. Ownership.
<br />a. Yardt's Ownership. Client agrees that, as between
<br />Yardi and Client, Yard! is and shall remain the sole and ex-
<br />clusive owner of all right, title and Interest in and to the Lk
<br />censed Programs, Deliverables, Site, and Licensed Pro-
<br />grams Documentation, and to all intellectual property rights
<br />In the foregoing. The only rights Client obtains in the Li-
<br />censed Programs and Licensed Programs Documentation
<br />are the licenses granted to Client in this Agreement.
<br />b. Client's Ownership. Yards agrees that, as between
<br />Yardi and Client, Client Is and shall remain the sole and
<br />exclusive owner of all right, title and Interest In and to Client
<br />Data, subject to the License granted to Yard! for Client Data
<br />use In section B(a) (Client Data Storage).
<br />13. tndamntfication.
<br />a. Indemnity. Yardi agrees to defend, Indemnify and
<br />hold Client harmless from and against any third party claims,
<br />actions or demands alleging that Client's Use of the Li-
<br />censed Programs, Licensed Programs Documentation, and
<br />Deliverables in accordance with this Agreement's terms
<br />Infringes on a third party's proprietary Information, trade-
<br />mark, copyright, patent rights or intellectual property rights,
<br />or misappropriates a third party's trade secrets.
<br />b. Indemnity Conditions. Yardi's defense and indem-
<br />nification obligation per this section 13(b) (Indemnity Con&
<br />tions) is conditioned upon the following: (1) Client providing
<br />Yardi with prompt written notice of any claim for which in-
<br />demnification is sought; (I!) Yardi having sate control of the
<br />defense and settlement of such claim, provided, however,
<br />that Client shall have the right to have any suit or proceeding
<br />monitored by counsel of Ctlent's choice and at Its expense:
<br />and (111) Client's reasonable cooperation with Yardl in the
<br />defense and settlement of the claim.
<br />c. injunction. If the Licensed Programs become the
<br />subject of a patent, trademark, copyright, or trade secret
<br />misappropriation or infringement claim, and such claim re-
<br />sults — or is reasonably likely to result — in an injunction
<br />against Client's continued Use of the Licensed Programs,
<br />Yardl will (1) replace or modify the Licensed Programs to
<br />avoid the misappropdationAnfringement claim, (it) secure
<br />Client's right to continue Use of the Licensed Programs, or
<br />(III) if neither (1) or (i!) is commercially practicable, either party
<br />may terminate this Agreement upon written notice to the
<br />other party.
<br />14. Programming S rvlces.
<br />a. Programming Services. Yard! provides program-
<br />ming services including, without limitation, database custo-
<br />mizations, user Interface customizations, database reports,
<br />database scripts and other programming services (collective-
<br />ly, "Programming Services ").
<br />gramming Services, If Initially ordered, are set forth In Sche-
<br />dule A. Client will otherwise initiate Programming Service
<br />requests by providing written notice of the desired services
<br />to Yardl, and Yard! will advise Client of Yardi's availability
<br />and schedule for performing the Programming Services,
<br />Programming Services are subject to Client's written accep-
<br />tance of: (1) Yardi's schedule for meeting Client's Program-
<br />ming Service request, and (11) Yardi's Fees for such Pro-
<br />gramming Services.
<br />c. Deliverables License. Subject to Client's full pay-
<br />ment of all Undisputed Fees related to Programming ServIG
<br />es, Yardl grants to Client a non - exclusive, non transferable
<br />(except as expressly provided In this Agreement), limited
<br />license for Client's Designated Users to Use the Deliverables
<br />in connection with their Use of the Licensed Programs.
<br />15. Assignment.
<br />a. Assignment Limitation. Except for the exceptions
<br />specified In section 15(b) (the "Permitted Exceptions "),
<br />Client shall not (either directly or Indirectly) assign, sell, con-
<br />vey, pledge, or otherwise transfer this Agreement without
<br />first obtaining Yardi's express written consent, which Yardl
<br />shall not unreasonably withhold. Except for the Permitted
<br />Exceptions, any attempted assignment made without Yardl's
<br />prior express written consent is void and a material breach of
<br />this Agreement,
<br />b. Permitted Exceptions. Subject to the conditions
<br />precedent set forth in this section 15(b) (Permitted Excep-
<br />tions), Client may assign the Licensed Programs without
<br />Yardi's prior consent and upon notice: (I) to a wholly owned
<br />subsidiary, or (fr) in connection with any merger, acquisition,
<br />or reorganization involving Client. Any assignment Is subject
<br />to the following conditions: (A) Client, or Clients successor,
<br />continuing in the same type of business that Client was con-
<br />ducting at the time of this Agreement's execution, and (B)
<br />Client or Client's successor providing to Yardl a written ratifi-
<br />cation and assumption of this Agreement (in a form reason-
<br />ably satisfactory to Yardl) concurrent with the assignment.
<br />16.9ut12ur ffiq.
<br />a. Server Location. Yard! reserves the right to locate
<br />the servers and other equipment needed to provide the ser-
<br />vices contemplated by this Agreement either at its facilities
<br />or at the facilities of Independent service providers. Yardi
<br />may change the location of the servers and other equipment
<br />needed to provide the services under this Agreement at any
<br />time during this Agreement's term; provided that any such
<br />change of location shall not affect Yardi's obligations under
<br />this Agreement and shall not interrupt Client's access to the
<br />Site, Client Data and the Licensed Programs.
<br />17. Mediation.
<br />a. Mediation Request, Condition Precedent. In the
<br />event of a dispute arising out of or related to this Agreement
<br />which the parties are unable to resolve through direct nego-
<br />tiation, either party may serve upon the other at its principal
<br />piece of business a request for mediation, Neither party may
<br />file an action against the other In any court, or Initiate any
<br />other legal proceeding, unless and unfit the party seeking to
<br />do so has first requested a mediation hearing and made a
<br />good faith effort to complete the mediation process provided
<br />In this Agreement,
<br />b. Programming Services r The Fees for Pro -
<br />Yardi Client
<br />Confi ential
<br />iSa e of Preparation: July 23, 2009 7:22 AM
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