Circuit Living Terms and Conditions
1. Term and Termination.
A. This Agreement shall commence on the date set forth above and shall continue for one (1) year (the “Initial Term”). If neither party gives notice of its intent not to renew in accordance with this paragraph, the terms of this Agreement will renew automatically upon the expiration of the Initial Term or any Renewal Term (as defined below), at Circuit Living’s then-current fees applicable to the Services under this Agreement, from effective date of expiration of such Initial Term or Renewal Term (as applicable) (each, an “Expiration Date”) for an additional one-year period from such Expiration Date (each, a “Renewal Term” and, collectively with the Initial Term, the “Term”). Either party may give the other party written notice of its intent to cancel with 30-day notice for any reason.
B. Either party may immediately terminate this Agreement or Exhibit A under this Agreement for cause, in the event of a material breach of this Agreement by the other Party which is not cured within thirty (30) days after receipt of written notice in reasonable detail of the breach.
2. Pricing & Terms of Service.
Owner further agrees that it will make no warranties or representations about any Circuit Living products and services (including without limitation the Services) other than those specifically authorized by Circuit Living in writing in advance.
A. Owner will pay Circuit Living each month for Services provided under this Agreement based on the fee schedule provided in the applicable Exhibit A. All amounts paid are non-refundable All amounts paid are non-refundable.
B. If Owner uses Event Services, Owner will pay Circuit Living an agreed each month that will be used for Event Services only. Owner is not obligated to use the Event Services budget on a monthly basis and may aggregate to use in a future period. All amounts paid are non-refundable, however, and may only be used towards Event Services. Circuit Living may not exceed the budget set forth by Owner without written permission by Owner. If Owner agrees to go over the budget for Event Services that complies with Section 13 of this Agreement, Owner will pay Circuit Living in accordance with Section 2C of this Agreement. Circuit Living agrees that there are no additional fees for its services outside of the budget set forth.
C. In accordance with the schedule specified in the applicable Exhibit A, Circuit Living will send Owner an invoice containing the amount due to Circuit Living by Owner for the Services rendered under this Agreement (“Invoice”) and Owner shall pay to Circuit Living upon receipt. A late charge equal to the lesser of 1.5% of the overdue balance or the highest amount permitted by applicable law will be assessed and added to the Invoice for each month or portion of a month that payment for any portion of the amount due stated in the Invoice is later than 30 days.
D. Unless otherwise specified in the applicable Exhibit A, Circuit Living does not provide design services for private labeling of Circuit Living Services. Should the Owner desire to private label any of Circuit Living’s goods, products, Services or intellectual property, Owner is responsible for any and all costs associated with such private labeling. For the avoidance of doubt, Owner’s private labeling product is subject to the agreement of the parties in the applicable Exhibit A.
E. Unless otherwise provided in the applicable Exhibit A, Circuit Living may promote its Services and operate publicly utilizing Circuit Living’s own branding with respect to Owner’s residents and/or tenants. Should Owner desire to revise such practice, the cost of any private labeling redesign of how Circuit Living is marketed will be paid exclusively by Owner, and is subject to the agreement of the parties in the applicable Exhibit A.
F. Circuit Living has the right to back bill Owner for purchased items by Circuit Living for Resident Events. A Resident Event shall be defined an event where a group of residents are invited to community event. All items purchased must be in accordance within the budget the Owner set for the particular event and/or month. Resident Event budgets can be confirmed in accordance with Section 13 of this Agreement.
3. Property Access.
Circuit Living shall be permitted to conduct its business the Owner’s location and given access to and permitted to use any of Owner’s premises, amenities and space at no charge.
4. Marketing.
Owner shall provide Circuit Living the following marketing support:
A. Send communications regarding Circuit Living’s Services to Owner’s residents/tenants at least once per month; and
B. Permit the display of Circuit Living business cards and other Circuit Living marketing material in Owner’s resident/tenant welcome packets.
5. Preferred Provider.
Owner shall ensure that its property refer Circuit Living to residents/tenants inquiring about any Services listed in Exhibit A to the exclusion of any other providers of similar products or services.
6. Sub-Agency.
Circuit Living may use independent contractors or agents to assist in its performance of this Agreement. It is understood that such independent contractors or agents (“Sub Agents”) provided, shall act individually and not as an employee for Circuit Living. Sub Agents shall abide by all rules set forth in this Agreement, and Owner shall notify Circuit Living of any breach or suspected breach of any obligation covered under this Agreement. For the purposes of this section, the term Sub Agent shall include any person or entity not employed by Circuit Living, to which it delegates the work required or permitted under this Agreement.
7. Independent Contractors. The relationship created by this Agreement shall be that of the independent contractor and not of employer and employee or partners. As independent contractors, the parties shall not have or hold themselves out as having, the power or authority to bind or create liability for the other by their intentional or negligent acts. Owner shall be solely responsible for and shall pay all its expenses incurred in connection with the performance of its duties under this Agreement and shall not be entitled to receive any fringe benefits or other benefits of any kind provided by Circuit Living to its employees. Circuit Living shall be solely responsible for the payment of all applicable commissions to Sub-Agents and of all taxes (including estimated taxes) payable with respect to commissions earned by Sub Agents pursuant to this Agreement.
8. Confidentiality; Ownership.
(A) Confidential Information.
Owner and Circuit Living agree to keep strictly confidential at all times all non-public business information which may be provided or made available to the other party in the course of the performance of this Agreement that a reasonable person would understand under the circumstances to be confidential, proprietary or competitively sensitive (“Confidential Information”). Confidential Information, includes, but is not limited to, the terms and conditions of this Agreement, business and marketing plans, prices, Services and related product specifications, software, mobile applications, algorithms, sales data and the like, as well as confidential specifications, drawings, sketches, data or technical business information for both parties. Any names or lists identifying Sub-Agents or potential Sub-Agents of Circuit Living are the Confidential Information of Circuit Living and the exclusive property of Circuit Living, are to be used by Owner solely in the performance of its obligations and duties hereunder, and all copies of its Confidential Information are to be returned to Circuit Living upon the termination of this Agreement.
(a) Non-Disclosure; Non-Use.
The parties agree not to reveal, divulge, make known, sell, exchange, lease or in any other way disclose any Confidential Information to any third party. Each party hereby agrees, on behalf of itself, its employees, agents, Sub-Agents, or representatives not to directly or indirectly utilize any Confidential Information except to the extent necessary to perform its obligations and exercise its rights under this Agreement. Both parties acknowledge the competitive and commercial value and confidential and proprietary nature of the Confidential Information and the irreparable damage that could result to either party if any part of the information were disclosed to any third party, without prior written permission.
(b) Survival.
The parties agree that this Section 8 shall survive the cancellation, expiration or termination of this Agreement.
(c) The provisions of this paragraph are intended to be in addition to, and not a substitute for, any rights under applicable law relating to trade secrets and proprietary information.
(d) In connection with this Agreement, Circuit Living may Process certain data (whether through the Services or otherwise) solely on behalf of Owner (“Owner Data”). Owner will be solely responsible for the accuracy and completeness of the Owner Data. Owner represents, warrants, and covenants that:
(i) it has (and will have) Processed, collected, and disclosed all Owner Data in compliance with applicable law and provided any notice and obtained all consents and rights required by the applicable law to enable Circuit Living to lawfully Process Owner Data as permitted by this Agreement;
(ii) it has (and will continue to have) full right and authority to make the Owner Data available to Circuit Living under this Agreement; and
(iii) Circuit Living’s Processing of the Owner Data in accordance with this Agreement or Owner’s instructions does and will not infringe upon or violate any applicable law or any rights of any third party. “Process” (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including without limitation collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
(e) Notwithstanding any other provision to the contrary, the receiving party may disclose to potential acquirers, potential and existing lenders, and/or potential and existing investors the existence, terms and subject matter of this Agreement (including any Exhibit A hereunder), provided that such third parties are advised by the receiving party of the confidentiality requirements of this Agreement and are bound by an obligation of confidentiality to the receiving party that serves to protect such information on terms no less restrictive than those contained in this Agreement.
(f) Notwithstanding any other provision in this Agreement to the contrary, Circuit Living may collect, analyze and anonymize data, statistics or other information obtained through the provision, use and performance of various aspects of the Services (collectively, “Analytics”) and aggregate such data, statistics or other information with data, statistics or other information obtained from other sources, and may use such Analytics for lawful business purposes, including improvement of the Services, as long as in doing so Circuit Living does not re-identify, or attempt to re-identify, any of the Analytics or otherwise link or associate Analytics with any information relating to (i) Owner, or (ii) an identified or identifiable natural person.
(g) The parties expressly acknowledge and agree that any breach or threatened breach of this Section 8 by the receiving party may cause immediate and irreparable harm to the disclosing party that may not be adequately compensated by damages. Each party therefore agrees that in the event of such breach or threatened breach of this Section 8 by the receiving party, and in addition to any remedies available at law, the disclosing party shall have the right to seek equitable and injunctive relief, without the need to post bond, in any court of competent jurisdiction, with respect to such a breach or threatened breach.
(B) Reservation of Rights.
Nothing in this Agreement shall constitute a transfer of any proprietary right by Circuit Living to Owner. The Services may be protected by patent, copyright, trade secret, and other intellectual property laws. As between the parties, Circuit Living owns and retains all right, title and interest in and to the intellectual property rights in and to the Services (including any data and/or analytics made available through the Services) and any enhancements, modifications or derivative works thereof. As between the parties,
(i) each party retains ownership in and to its Confidential Information (as hereinafter defined) and
(ii) Circuit Living exclusively owns all right, title and interest in and to the Services and any derivative works and work product conceived, originated, or prepared in connection with the Services. All rights not specifically granted to Owner in this Agreement are retained by Circuit Living. Owner acknowledges the proprietary rights of Circuit Living and its licensors in the Services and that Circuit Living retains all right, title and interest in and to the Services.
(C) Affirmative Covenants.
Owner shall:
(i) ensure Owner’s end users, residents, tenants, officers, directors employees, contractors, representatives, agents and affiliates (collectively, “Representatives”) comply with this Agreement;
(ii) take all necessary steps to prevent unauthorized access to or use of the Services,
(iii) notify Circuit Living immediately of any such unauthorized access or use;
(iv) comply with all applicable federal, state, local, municipal, domestic, foreign, and international laws, rules and regulations;
(v) use the Services in compliance with all applicable industry standards;
(vi) use the Services only for Owner’s own internal business purposes and solely in accordance with the terms of this Agreement; and
(vii) use the Services solely in accordance with Circuit Living’s instructions.
(D) Restrictive Covenants.
Owner shall not, and Owner will cause Owner’s Representatives to not:
(i) alter, change, modify, adapt, translate, or make derivative works of the Services;
(ii) use the Services in a manner that, or provide any direction to Circuit Living that, violates any applicable law;
(iii) transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system, data, or Personal Data;
(iv) transfer, resell, license, sublicense or otherwise make the Services (or any data or information accessible through the Services) available to any third party, except as expressly described in this Agreement;
(v) use the Services for timesharing, rental, outsourcing, or a service bureau operation;
(vi) attempt to gain, or assist others with attempting to gain unauthorized access to Circuit Living’s network, systems or the Services;
(vii) decipher, decompile, disassemble, or reverse engineer the Services or assist or encourage any third party to do so;
(viii) engage in any activity that violates the rights of others or that interferes with or disrupts the Services; or
(ix) upload any file containing any back door, time bomb, Trojan horse, worm, virus or similar malicious code.
9. Non-Solicitation.
While this Agreement remains effective and for two (2) years thereafter, Owner and any associated personnel or agents shall not, and agree that they will not, directly or indirectly, hire, engage, or solicit any Circuit Living employee, contractor, subcontractor, Sub-Agent, or vendor who provided services on behalf of the Circuit Living during the Term of this Agreement or encourage any such person or entity to leave such employment, contractor, subcontractor or Sub-Agent, or vendor relationship.
10. Indemnification.
Each party (“Indemnifying Party”) shall indemnify, defend and hold the other party harmless from and against all losses, costs, claims, expenses, liabilities and damages of any kind, including reasonable attorneys’ fees, in each case arising out of a third party claim and arising out of breach of this Agreement by the Indemnifying Party or the Indemnifying Party’s or its employees’, agents’, Sub-Agents’ or contractors’ gross negligence or willful misconduct. However, the provisions of this paragraph shall not be construed to reduce or eliminate any remedies that the parties may have against each other for breach of any contractual obligation.
11. Force Majeure.
Except with respect to Owner’s payment obligations under this Agreement, in no event shall either party be liable for any failure of performance if such failure of performance is caused by or the result of causes beyond the reasonable control of such party, including, but not limited to, cable dig-up or cut by a third party; acts of God, fire, flood, explosion, or other catastrophes; epidemics, pandemics, quarantines, or other health emergencies; any law, order, regulation, action or request of a Federal, state or local governmental authority or of any civil or military authority; national emergencies; unavailability of rights-of-way or materials; or strikes, lock-outs or other labor difficulties.
12. Assignment.
Except as otherwise permitted by this Agreement, neither party may assign this Agreement or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other party, which shall not be unreasonably withheld. Any attempted assignment without such prior written consent shall be void. Notwithstanding the foregoing, Circuit Living may assign all or part of this Agreement immediately without the prior written consent of the Owner
(i) to any entity that controls, is controlled by, or is in common control with Circuit Living,
(ii) to any successor-in-interest to Circuit Living or in connection with a merger, sale of substantially all of its assets, acquisition, or other change of control with respect to Circuit Living or any division of its business, or
(iii) if necessary to satisfy the rules, regulations, and/or orders of any federal, state, or local governmental agency or body. Owner acknowledges and agrees that non-compliance with the terms of this Section 12 shall constitute a material breach of this Agreement.
13. Notices.
All notices under this Agreement shall be in writing and shall be given by e-mail to the email address set forth on the signature page to this Agreement (as such email addresses may be updated by either party from time to time via written notice to other party), and shall be deemed given 24 hours after an email is sent without bounceback.
14. Modification of Agreement.
This Agreement, including its Schedule(s), may only be amended, modified, or supplemented by a separate written document duly executed by authorized representatives of both parties.
15. Waiver.
No term or provision of this Agreement shall be waived, and no breach or default excused unless such waiver or excuse is in writing and signed by the party to which it is attributed. No consent by a party to, or waiver of, a breach or default, by the other, whether expressed or implied, shall constitute a consent to or waiver of any subsequent breach or default.
16. Partial Invalidity.
If any provision of this Agreement shall be held to be invalid or unenforceable, the validity or enforceability of the remaining provisions shall not in any way be affected or impaired thereby, but rather this Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of this Agreement, the parties shall promptly attempt to negotiate a substitute, therefore.
17. Governing Law and Venue.
This Agreement shall be construed and governed in accordance with the internal laws of Illinois, without the application of any principles of conflicts of law. With respect to any legal action, each party irrevocably submits to the exclusive jurisdiction of the state courts located in Cook County, Illinois or the federal courts of the Northern District of Illinois; and hereby further irrevocably and unconditionally agrees not to plead or claim that any such action in such court has been brought in an inconvenient forum or to raise any similar defense or objection.
18. Survival. Any obligations of the parties relating to monies owed, as well as any provisions of this Agreement relating to confidentiality, intellectual property, indemnification, limitation of liability, term and termination, disclaimer, non-solicitation, interference with Circuit Living’s relationship with its customers, and commencement of legal proceedings shall survive any termination of this Agreement.
19. Entire Agreement. The assent of the parties to this Agreement as of the date set forth at the beginning is established by the following signatures of their duly authorized representatives.
20. Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, OWNER’S BREACH OF ITS PAYMENT OBLIGATIONS OR SECTIONS 8(A)(d), 8(C), or 8(D), OR VIOLATION OF CIRCUIT LIVING’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR:
(A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR LOST DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR
(B) ANY DAMAGES, COSTS, OR LIABILITIES IN AGGREGATE IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY OWNER TO CIRCUIT LIVING UNDER THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO WHICH SUCH DAMAGES, COSTS, OR LIABILITIES AROSE.
21. Disclaimer.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, CIRCUIT LIVING MAKES NO WARRANTY, (EXPRESS, IMPLIED OR STATUTORY) AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALL SERVICES PROVIDED BY CIRCUIT LIVING ARE PERFORMED AND PROVIDED ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. CIRCUIT LIVING DOES NOT WARRANT THAT THE SERVICES, OR THE FUNCTIONALITY OR WORK PRODUCT THEREOF, WILL MEET OWNER’S REQUIREMENTS OR THAT THE SERVICES, OR THE FUNCTIONALITY OR WORK PRODUCT THEREOF, WILL BE UNINTERRUPTED, ERROR-FREE, OR WITHOUT DELAY.