Whale Master Services Agreement
This Master Services Agreement, together with all exhibits attached hereto, (the "Agreement") is effective as of {todaysDate} (the "Effective Date") by and between {companyName} (the "Landlord") of the properties listed and described in Exhibit A attached hereto and incorporated herein (the "Property") and Build Whale, Inc., a Delaware corporation (the "Whale"). For purposes of this Agreement, Landlord and Whale may be referred to individually as a “Party” and collectively as the “Parties”.
WHEREAS, Whale has developed a proprietary software as a service platform that streamlines the collection, management and disbursement of security deposits, while providing Tenants (defined below) with investment products (the “Whale Platform”);
WHEREAS, Landlord is the landlord of certain tenants at the Property ("Tenants") that have executed a lease agreement with Landlord (each such agreement a "Lease Agreement");
WHEREAS, the Whale Platform enables (a) Tenants to open, own and control security deposits in a Whale Deposit Account (with funds locked for the benefit of Landlord) (“Whale Deposit”), and (b) Landlord to establish a separate, alternative custody structure under which security deposit funds currently held by Landlord for existing Lease Agreements are transferred to Whale for management in a Whale Agent Account (“Whale Base” and collectively with Whale Deposit and the Whale Platform, the “Whale Products”); and
WHEREAS, Landlord agrees to market and promote the Whale Product to its Tenants and Landlord desires to engage Whale to manage and remit any applicable Deposit Assets (as defined below) with respect to damages inflicted upon the Property by Tenants.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions.
1.1 “Broker” means Alpaca Securities LLC, or another brokerage specified by Whale from time to time.
1.2 “Deposit Control Agreement” means a Security Account Control Agreement by and among the applicable Tenant, Landlord, Whale, and Broker that is substantially similar to the attached in Exhibit B.
1.3 “Final Accounting” means the itemized statement of any deductions from a security deposit prepared by Landlord at the conclusion of the applicable Lease Agreement in accordance with applicable law, together with any amount due back to the Tenant.
1.4 “Sub-Account” means a separate, identifiable ledger position within the Whale Agent Account established for a single Lease Agreement and attributed to the Tenant or Tenants who are signatories to that Lease Agreement.
1.5 “Transferred Deposits” means the security deposit balances identified in a Transfer Schedule that Landlord transfers to Whale.
1.6 “Whale Agent Account” means an FDIC-insured trust account, opened and maintained in Whale’s name at a U.S. bank chosen by Whale, in which Whale Agent Managed Deposits are held.
1.7 “Whale Agent Managed Deposit” means a security deposit, originally collected and held by Landlord under an existing Lease Agreement, that has been transferred to Whale and is held by Whale in a Sub-Account within a Whale Agent Account.
1.8 “Whale Deposit Account” means a renter-owned FDIC-insured high-yield trust account for the purpose of segregating deposit assets related to the lease agreement that can be locked for the benefit of the Landlord until they release the deposit, less any deductions, at move-out.
2. Whale Deposit.
2.1 Whale Deposit Services. Whale will perform the following services for Landlord with respect to each Whale Deposit Account:
(a) Open a Whale Deposit Account at Broker for each Tenant that agrees to the Deposit Control Agreement the purpose of segregating deposit assets (such assets, the “Deposit Assets”) on a Tenant by Tenant basis;
(b) Whale will maintain and have certain access and/or authority with respect to each such Whale Deposit Account in accordance with applicable law or the Deposit Account Control Agreements.
(c) Except with respect to the Landlord Responsibilities (as defined in Section 4), Whale will be responsible for handling all aspects of the collection, holding, and returning of Deposit Assets in the applicable Whale Deposit Account in compliance with applicable laws and regulations;
(d) Whale will ensure the Deposit Assets do not exceed the legal limit, hold funds in an account type that complies with all applicable laws, pay the appropriate amount of interest to Tenant, and return funds to the Tenant before the legal deadline; provided, that, Landlord provides Whale with the finalized move-out charge at least 24 hours prior to the applicable legal deadline;
(e) Hold and maintain the Deposit Assets in cash so the full Deposit Assets are guaranteed to the Landlord for any move-out charges due; and
(f) Upon written request by the Landlord under this Agreement and the Deposit Control Agreement, remit any Deposit Assets to the Landlord from the Whale Deposit Account in the ordinary course of business in accordance with the terms of the Lease Agreement and this Agreement.
2.2 Access to Account. Each Whale Deposit Account will be in an interest-bearing FDIC-insured trust savings account, segregated from other investments, and locked in order to protect the principal balance. The Landlord may withdraw funds from each Whale Deposit they are party to without Whale’s prior written consent in accordance with the terms of that certain Deposit Control Agreement and the applicable Lease Agreement.
3. Whale Base.
3.1 Whale Base Services. Whale will perform the following services for Landlord with respect to each Whale Agent Managed Deposit:
(a) Open and maintain the Whale Agent Account at an FDIC-insured U.S. bank;
(b) Establish a Sub-Account for each Lease Agreement and attribute the Sub-Account to the Tenant or Tenants who are signatories to that Lease Agreement, including any Lease Agreement with multiple Tenant signatories;
(c) Accept and credit Transferred Deposits to the appropriate Sub-Accounts upon receipt from Landlord;
(d) Hold the funds in each Sub-Account segregated from Whale’s operating funds and from any other funds held by Whale for its own account, and ensure Whale Agent Managed Deposits are not commingled with such funds;
(e) Hold and maintain the funds in each Sub-Account in cash so the full balance of each Sub-Account is available to satisfy any move-out charges due to Landlord and any return obligation owed to the applicable Tenant or Tenants;
(f) Be responsible for handling all aspects of the holding, management, and return of Whale Agent Managed Deposits in compliance with applicable laws and regulations governing the custody and return of residential security deposits, including any account-type, segregation, recordkeeping, notice, and return-deadline requirements applicable in the jurisdiction in which the Property is located, with the exception of the Landlord Responsibilities (as set forth in Section 4 below);
(g) Pay no less than the minimum interest required by applicable law to the party entitled to such interest under applicable law. The actual rate of interest paid by Whale may vary from time to time, provided that the rate paid shall at all times equal or exceed the applicable legal minimum;
(h) Generate and send IRS Form 1099s for Tenants as required for any interest accrued while the funds are held by Whale.
(i) Maintain accurate, complete, and readily accessible electronic records for each Sub-Account, including the name(s) of the Tenant(s), unit address, Lease ID, principal balance, interest accrued, and any debits or credits;
(j) Upon Landlord’s delivery of the Final Accounting in accordance with Section 4 and the applicable Lease Agreement, return the funds in the applicable Sub-Account, less any authorized deductions remitted to Landlord per the Final Accounting, to the applicable Tenant or Tenants in accordance with the Final Accounting and applicable law, provided that Landlord has delivered the Final Accounting at least 24 hours prior to the applicable legal deadline; and
(k) Not release any portion of a Whale Agent Managed Deposit, whether to Landlord or to any Tenant, prior to receiving the Final Accounting from Landlord for the applicable Lease Agreement, except as required by applicable law or court order.
(l) If required, handle any escheatment according to applicable state law.
3.2 Multiple Tenants. Where a Sub-Account is attributed to more than one Tenant, Whale shall administer the Sub-Account based on the instructions provided in the Final Accounting and applicable law, and shall not require unanimous Tenant consent for return of funds in the absence of a contrary requirement of applicable law.
3.3 Limited Agent. Whale acts as Landlord’s agent solely for the limited purpose of receiving, holding, managing, and returning Whale Agent Managed Deposits in accordance with this Agreement and applicable law.
4. Landlord Responsibilities.
4.1 Landlord acknowledges that Whale’s provision of the Whale Products is dependent on Landlord providing all reasonably required cooperation (including the prompt provision of access to Landlord’s systems, personnel, cooperation and materials as reasonably required), and Landlord will provide all such cooperation in a diligent and timely manner.
4.2 With respect to each Whale Deposit Account and/or each Whale Agent Account, Landlord shall (1) conduct any required move-in inspection and provide notice of the current condition of the property to the Tenants, (2) complete the Final Accounting in accordance with applicable law and the applicable Lease Agreement, (3) send the finalized move-out statement to the Tenants as required by law, (4) deliver the Final Accounting to Whale at least 24 hours prior to the applicable legal deadline for return of the security deposit and (5) any other responsibilities not explicitly listed in Sections 2 or 3. Whale’s obligation to return the Whale Agent Managed Deposit is conditioned upon Landlord’s timely delivery of the Final Accounting in accordance with this Section 4.2.
4.3 For each Whale Agent Managed Deposit, Landlord shall deliver to Whale, in a format reasonably acceptable to Whale, a transfer schedule (the “Transfer Schedule”) identifying, at a minimum: (1) Tenant name(s); (2) unit address; (3) Lease ID; (4) property name or property ID; and (5) the principal amount of the deposit being transferred.
4.4 For each Whale Agent Managed Deposit, Landlord shall transfer the funds identified in the Transfer Schedule to the Whale Agent Account in accordance with the wire or ACH instructions provided by Whale. Whale’s holding of such funds shall be in its capacity as Landlord’s limited agent under Section 3.3 and shall not be deemed an asset of Whale for any purpose. The total amount of funds transferred must equal the aggregate sum of the principal amounts and accrued interest identified in the corresponding Transfer Schedule.
4.5 Deliver IRS Form 1099s to Tenants as required for any interest accrued while the funds are held by Landlord.
4.6 Sections 4.1 through 4.5 are referred to collectively as “Landlord Responsibilities”.
5. Insurance.
5.1 Insurance. Whale will maintain the following insurance policies with minimum coverage limits no less than those specified below:
(a) Professional liability and errors and omissions insurance ($5,000,000 per incident, $5,000,000 aggregate)
(b) Director and officers insurance ($1,000,000 per incident, $1,000,000 aggregate)
(c) Cyber liability insurance ($5,000,000 per incident, $5,000,000 aggregate)
(d) Workers’ compensation fulfilling statutory requirements and employers’ liability insurance ($1,000,000 per incident, $1,000,000 aggregate)
(e) Employment practices insurance ($1,000,000 per incident, $1,000,000 aggregate)
(f) Crime insurance ($2,000,000 per incident, $2,000,000 aggregate)
5.2 Waiver of Subrogation. All property damage insurance policies required hereunder shall contain language whereby the insurance carrier thereunder waives any right of subrogation it may have with respect to the Landlord, Manager, or Whale.
5.3 Proof of Insurance. Upon request, Whale will provide Certificates of Insurance showing current coverage levels and current carrier ratings.
5.4 Primary Coverage. The insurance hereunder shall be primary and non-contributory to any insurance carried by the Landlords.
5.5 Certificates of Insurance. Whale shall provide Landlord with certificates of insurance evidencing all coverage required hereunder upon execution of this Agreement and no later than 30 days prior to the expiration of the term of the insurance policies.
6. Record Keeping.
6.1 Books of Accounts. Whale shall maintain adequate and separate books and records for the Whale Deposits with the entries supported by sufficient documentation to ascertain their accuracy with respect to each Whale Deposit and Whale Agent Managed Deposit. Whale shall maintain such books and records at Whale's office as set forth in Section 9. Whale shall bear the losses arising from the fraud or gross negligence of Whale any of its employees or agents, including, without limitation, the following: (a) theft of assets by Whale's employees, principals, or officers or those individuals associated or affiliated with Whale or (b) overpayment or duplicate payment of Whale Deposit to the Broker arising from either fraud or gross negligence, unless such Whale Deposit is subsequently received by the Landlord within 30 days of such overpayment or duplicate payment.
6.2 Tax Information. Whale shall provide the Landlord with sufficient information so that the Landlord can prepare its income tax returns on the cash method of accounting or, if requested, with appropriate adjustment to convert the information to an accrual basis.
7. Audits.
7.1 The Landlord and its representatives may, at its expense and upon delivery of reasonable prior written notice, examine all books, records and files maintained that are related to any applicable Whale Deposit by Whale or Whale Agent Managed Deposit during business hours and in such a manner as does not unreasonably interfere with Whale’s business operations; provided, that, Landlord may only perform such audit once in any twelve (12) month period, provided, further, that, Landlord may perform an additional such audit during such time period if the initial audit reveals any material defects in internal controls or errors in record keeping. Should the Landlord discover defects in internal controls or errors in record keeping, Whale shall undertake reasonably appropriate diligence to correct such discrepancies either upon discovery or within a reasonable period of time. Whale shall inform the Landlord in writing of the action taken to correct any audit discrepancies.
7.2 Regulator Cooperation. Whale shall, at Landlord’s expense, reasonably cooperate with Landlord in responding to any inquiry, investigation, audit, or inspection by any governmental or regulatory authority related to Whale’s services. Such cooperation shall include, but not be limited to:
(a) Providing timely access to relevant records, data, and documentation requested by the regulator;
(b) Making appropriate personnel available for interviews or meetings as required by the regulatory authority; and
(c) Coordinating with Landlord on the drafting of formal responses to ensure accuracy and consistency, provided that Whale shall not be required to disclose its own trade secrets or proprietary information unless mandated by law.
8. Termination.
8.1 Termination for Cause. The term of this Agreement shall begin on the Effective Date and shall continue until otherwise terminated in accordance with this Agreement (the “Term”). At any time during the Term, either Party may terminate this Agreement immediately by providing a written notice to the other Party if that other Party has breached any of its material obligations and has not fully cured the breach within thirty (30) days after it has been given an initial written notice specifying the breach.
8.2 Final Accounting. Within 45 days after termination of this Agreement, Whale shall deliver to the Landlord the following: (a) a final accounting, setting forth the applicable Whale Deposit and/or Whale Agent Managed Deposit to the Landlord as of the date of termination, and (b) transfer to any account indicated by the Landlord with respect to any applicable Whale Deposit and/or Whale Agent Managed Deposit held by the Whale.
8.3 Effect of Termination. Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Whale to perform services hereunder will immediately terminate and each party will return or destroy all copies or other embodiments of the other party’s confidential information. Upon any termination of the Agreement (and upon any transfer of ownership or control by Landlord of a Property covered by this Agreement), Whale will use commercially reasonable efforts to support the transition of any Whale Deposits and/or Whale Agent Managed Deposits relating to such Property or Properties as more fully described in the Deposit Control Agreement or Transfer Schedule, as applicable. These activities include, but are not limited to, the following:
Communicating to renters their deposit is being sent back to their Landlord but their interest earned will remain in their Whale account
Sharing a detailed report (as a CSV) of all deposits currently held (renter name, unit address, amount held, lease ID, etc.)
Transferring all deposits currently held by Whale for the Landlord back to the Landlord to a bank account of the Landlord’s choosing
Assisting in answering questions from renters and the Landlord during the transition
Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 8, 9, 10, 11, 13, 14 and 16 will survive.
9. Notices.
All notices under this Agreement will be in writing and sent to the addresses set forth in this Agreement and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
To Whale at: Build Whale, Inc. 332 S Michigan Ave - Suite #121-2234 - Chicago, IL 60604
To the Landlord: {companyName} {companyAddress}
Email: {signerEmail}
10. Confidentiality.
Each Party agrees that it will use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder. However, either Party may disclose Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving Party will provide the disclosing party with prior written notification thereof, will provide the disclosing Party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither Party will disclose the terms of this Agreement to any third party, except that either Party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 10, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. For purposes of this Agreement, “Confidential Information” means any information disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving Party; (b) was properly known to receiving Party, without restriction, prior to disclosure by the disclosing Party; (c) was properly disclosed to receiving Party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
11. Feedback.
Landlord may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Whale with respect to the Whale Products. Whale will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Landlord hereby grants Whale a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (i) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (ii) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
12. Data Protection, Security and Privacy.
Whale will comply with the Data Protection, Security, and Privacy requirements set forth in Exhibit C.
13. Representations and Warranties and Disclaimers.
13.1 Representations and Warranties. Each party represents and warrants to the other party that (i) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (ii) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
13.2 Compliance with Laws and Other Matters. Each party will comply with all applicable local, state and federal laws (collectively "Laws") in connection with the performance of its obligations hereunder. Whale may implement such procedures with respect to the Whale Deposit Account or Whale Agent Account as Whale may deem advisable for the efficient and economic management and operation thereof. Each party will immediately notify the other party in writing if such party becomes aware of any actual or potential non-compliance by such party with SEC rules or regulations, any security deposit law or regulation in any jurisdiction in which the Properties are located, or if any regulatory authority, court, or other governmental body questions or challenges the compliance of the Whale Deposit and/or Whale Agent Managed Deposit structure.
13.3 Landlord’s Representations. Landlord represents and warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Whale to use the same as contemplated hereunder.
13.4 Indemnification by Whale. To the fullest extent permitted by law, Whale will defend Landlord and its respective officers, directors, agents, and employees (“Landlord Indemnified Parties”) against any third party claims, allegations, or legal actions ( “Claims”), and indemnify and hold harmless such Landlord Indemnified Parties from related damages, losses (including penalties, fines, interest or other monetary sanctions, if applicable and reasonable attorney’s fees), whether direct or indirect, (“Losses”) arising from or related to any allegation that Whale’s performance of its obligations hereunder with respect to any Whale Deposit and/or any Whale Agent Managed Deposit does not comply with applicable laws or regulations, excluding any Claims or Losses to the extent that such non-compliance is based on Landlord directly or indirectly collecting a security deposit with respect to a Lease Agreement in addition to amounts collected hereunder and under the Deposit Control Agreement or any failure by Landlord to comply with applicable laws and regulations or a breach by Landlord of this Agreement. Notwithstanding the foregoing, Whale’s defense and indemnification obligation will not apply to Claims or Losses to the extent arising from Landlord’s negligence, willful misconduct or violation of applicable laws or regulations.
13.5 Indemnification by Customer. To the fullest extent permitted by law, Landlord will defend, Whale and its respective officers, directors, agents, and employees (“Whale Indemnified Parties”) against any Claims, and indemnify and hold harmless such Whale Indemnified Parties from any Losses arising from or related to Whale’s authorized use of the Services Data, or Landlord’s breach of any agreement with a Tenant.
13.6 Indemnification Procedure. If a Landlord Indemnified Party or a Whale Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 13.4 or Section 13.5, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
13.7 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE WHALE PRODUCTS ARE PROVIDED ON AN “AS-IS” BASIS AND WHALE DISCLAIMS ANY AND ALL WARRANTIES. WHALE DOES NOT WARRANT THAT THE RESULTS GENERATED BY THE WHALE PRODUCTS ARE ACCURATE OR WILL LEAD TO ANY PARTICULAR OUTCOME, AND WHALE EXPRESSLY DISCLAIMS ALL LIABILITY WITH RESPECT TO SUCH RESULTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
14. Limitations on Liability.
14.1 Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
14.2 General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED [FIVE THOUSAND DOLLARS]. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
14.3 Exceptions. THE DISCLAIMERS, LIMITATIONS AND EXCLUSIONS IN SECTIONS 14.1 AND/OR 14.2 WILL NOT APPLY TO EITHER PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION, AMOUNTS EITHER PARTY IS REQUIRED TO INDEMNIFY THE OTHER OR ONE PARTY’S INFRINGEMENT UPON, OR VIOLATION OF, THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
15. Independent Contractors.
Whale may employ employees and/or independent contractors to enable Whale to provide the services under this Agreement. All matters pertaining to the supervision of such employees and independent contractors shall be the responsibility of Whale. Whale shall act solely in the capacity of an independent contractor in relation to the Landlord. Nothing in this Agreement shall cause Whale and the Landlord to be a principal-agent, joint venturers or partners of each other, and neither shall have the power to bind, obligate, control or direct the other party, except as expressly provided in this Agreement. The parties shall operate independently of each other, and make decisions without one party exercising any control or authority over the other. Nothing in this Agreement shall imply any fiduciary duties between the parties. This Agreement shall not deprive or otherwise affect the right of the parties to this Agreement to own, invest in, manage or operate, or to conduct business activities that compete with the business of the Property.
16. Miscellaneous.
Neither Party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other Party’s prior written consent; provided however, that either Party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either Party otherwise than in accordance with this Section will be null and void. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event"). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party will give the other Party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in New York, New York and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
[End of Document]
IN WITNESS WHEREOF the parties hereby execute this Agreement to be effective as of the date set forth above.
Build Whale, Inc.
{signatureJamie}
Name: Arthur J. Petraglia
Title: Founder & CEO
{companyName}
By: {signatureLandlord}
Name: {companyName}
EXHIBIT A
LEGAL DESCRIPTION
All properties owned or operated by the Landlord are included in and covered by this agreement. Properties may be enabled or disabled for Whale at any time at the discretion of the Landlord. This can be done by emailing support@gowhale.com or changing configuration settings in Whale’s admin tool. The Landlord reserves the right to add or remove properties any time without penalty or prior notice. No property can be enabled for Whale without the Landlord explicitly launching the property in Whale Admin after completing all the required configuration steps and granting Whale access to the property via our integration.
EXHIBIT B
SECURITY ACCOUNT AND CONTROL AGREEMENT
EXHIBIT C
DATA PROTECTION, SECURITY, AND PRIVACY REQUIREMENTS
1. Definitions.
1.1 "Customer Data" means any and all type of information, facts, figures, statistics, details, information, insights, automations, metadata, and any other data of any kind regarding or pertaining to Landlord ("Customer"), the Customer-owned properties wherein the residential units covered by this Agreement are contained ("Properties"), or the Tenants, including, without limitation: (i) data that is transmitted, stored, retrieved, or processed by Customer, a Tenant, or Whale in, to, or through the Services (as defined below); (ii) data provided to Whale by Customer at its direction in connection with this Agreement, (ii) data made available to, or otherwise obtained by, Whale through the Services; and (iii) data made available to, or otherwise obtained by, Whale in the course of providing the Services.
1.2 "Documentation" means any user guide, help information, and other documentation and information regarding the Services that is delivered by Whale to Customer in electronic or other form, including any updates, modifications, or upgrades provided by Whale from time to time; provided, however, if any updates, modifications, or upgrades require Customer to follow updated instructions, Customer shall have 45 days from receipt of any new Documentation from Whale to begin compliance.
1.3 "Tenant Data" means any or all information in any way regarding or pertaining to any Tenant, including any such information (i) provided to Whale by Customer or at its direction in connection with this Agreement or the Property at which the Tenant resides, (ii) provided to Whale by any Tenant or at its direction in connection with this Agreement or the Property at which the Tenant resides, or (iii) made available to, or otherwise obtained by, Whale during the course of Whale's performance under this Agreement. Tenant Data includes any information that (a) identifies or can be used to identify or locate an individual (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers), (b) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, answers to security questions and other personal identifiers), (c) can be used to access or control any assets, accounts, credit, funds, payments or other transfers of value by or on behalf of any individual, or (d) records any action or election of any individual and is collected by, or transmitted to, Whale through the "Services".
1.4 "Services" means collectively, the Whale Products, and all software applications, databases, modules, source code, development tools, libraries, and utilities that UDP uses, creates, and/or maintains in order to provide the Services set forth in the Order Form to Customer. The Services includes any change, improvement, extension, or other new version thereof that is developed or otherwise made available to Customer.
1.5 "Services Data" means Tenant Data and Customer Data, collectively.
1.6 "Data Subject" means an identified or identifiable natural person.
1.7 "Processing" (including "Processed" and similar terms) means any operation or set of operations which is performed on Services Data or on sets of Services Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
1.8 "Authorized Employees" means Whale's employees who have a need to know or otherwise access Services Data to enable Whale to perform its obligations under the Agreement.
1.9 "Security Breach" means the actual unauthorized access, disclosure or acquisition of Services Data in Whale’s possession or control. Security Breach includes, without limitation, any physical trespass on computing systems, intrusion/hacking, or theft of any information storage device or printed materials containing Services Data.
1.10 "Supervisory Authority" means a public authority which regulates Applicable Laws (as defined below) in any jurisdiction in which the Whale provides goods or services.
2. Data Collection; Usage, Data Security.
2.1 Data Ownership. Customer owns all right, title, and interest in and to the Services Data, including all intellectual property rights therein, and Whale hereby disclaims any interest the Services Data.
2.2 Data Usage. Customer hereby grants to Whale during the Term of this Agreement the right to use Services Data in order to perform the Services and for no other purpose whatsoever. Whale's right to use such information terminates concurrent with Whale's right to provide Services. Whale shall hold, and cause all Non-Employees to hold, Services Data, including, without limitation, all Services Data, and any information derived from such data or the Services, in strictest confidence, and Whale may disclose such data only to Authorized Employees solely for purposes of performing the Services contemplated under this Agreement ("Confidential Information"). Whale may not transfer Services Data to any location outside the U.S. unless agreed to in writing by Customer. Only duly Authorized Employees or non-employees, including contractors or sub-contractors, are permitted to access Services Data, and only to fulfill the obligations of this Agreement. Whale shall not distribute, repurpose, sell, or share Services Data (i) across other applications, environments, or business units of Whale, or (ii) to third parties.
2.3 Restrictions. Customer will not (and will not to allow any third party to): (i) access the Services for any benchmarking, penetration testing, or competitive purposes without Whale's express written consent; (ii) encumber, rent, market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit or make the Services available to any third party, except to a third party that manages Customer's computing environment or asset portfolio; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Services, or any of their components; (iv) use or allow the transmission, transfer, export, re-export, or other transfer of any product, technology, or information Customer obtains or learns of pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (v) use the Services other than in accordance with this Agreement and in compliance with all applicable current or future local, state, and federal laws, rules, regulations, orders, writs, ordinances, requirements, restrictions, and codes, and future modifications thereto, including all applicable federal, state, local privacy and data protection laws and export laws (collectively, "Applicable Laws").
2.4 Data Security. Whale shall, taking into account those matters which are required to be considered under Applicable Laws, take, implement, and maintain security measures ("Data Security Standards"), which shall include industry-standard administrative, technical, and physical safeguards, to protect Confidential Information and Services Data from any Security Breach and to prevent any unauthorized control or monitoring of the Services by any person or entity other than Customer. Such Data Security Standards shall also include administrative permissions, access controls, server security, encryption, and other means, where appropriate. At a minimum, such Data Security Standards shall include: (i) limiting access to Confidential Information and Services Data to Authorized Employees, (ii) securing business facilities, data centers, paper files, servers, back-up systems, and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability, (iii) implementing network, device application, database, and platform security, (iv) securing information transmission, storage, and disposal, (v) implementing authentication and access controls within media, applications, operating systems, and equipment, (vi) encrypting Services Data stored on any mobile media, (vii) encrypting Services Data in transit, (viii) strictly segregating Services Data from Whale's information or information of Whale's other customers so that Services Data is not commingled with any other types of information; (ix) implementing appropriate personnel security and integrity procedures and practices, including, but not limited to, conducting background checks consistent with Applicable Laws, and (x) providing appropriate privacy and information security training to Whale's employees. In addition, Whale shall diligently work toward obtaining SOC 2 Type I and SOC 2 Type II data privacy certifications as soon a reasonably practicable following the effective date of the Agreement, and Whale shall provide notice to Customer upon receipt of either such certification. Should Whale fail to obtain, or otherwise stop pursuing, either its SOC 2 Type I certification or SOC 2 Type II certification, Whale shall promptly notify Customer of same. At any time, upon 30 days' prior notice but not more than once per any 12-month period, Customer shall have the right (at its sole cost) to conduct, and Whale shall facilitate, an audit with respect to Whale's encryption, collection, transmittal, and storage of information obtained by Whale through the Services or otherwise in connection with this Agreement; provided, that, such audit is conducted in a way designed to not unreasonably interfere with the operation of Whale’s business. Whale agrees that Customer shall have the right to periodically evaluate, validate and monitor, through its security questionnaire process and requests for additional information ("Periodic Security Evaluations"), that the Services, system configurations, and processes, including that of Whale's Non-Employees, are in compliance with this Agreement.
2.5 Data Storage. The Whale data center and disaster recovery site that contain Confidential Information must be located in the continental United States. Whale shall ensure that any facilities in which Confidential Information is processed, including Whale's data center and disaster recovery site, shall remain compliant with SOC 2 Type II subject to Section 2.3 above, or with a similar successor standard that may be in effect from time to time, for the Term and will provide Customer, upon request, with a copy of its SOC 2 Type II attestation and a bridge letter that covers the period after the date of the applicable SOC 2 Type II report date.
2.6 Usage of Services Data in Compliance with Applicable Laws. Whale covenants, represents, and warrants that its collection, access, use, storage, disposal, and disclosure of Services Data and that of its Non-Employees, will comply with Applicable Laws and regulations pertaining to privacy and data security, and the collection, Processing, disclosure, and storage of such Services Data.
2.7 Data Security Breach. In the event of a Security Breach, Whale shall notify Customer of the Security Breach as soon reasonably practical (and, in no event later than 24 hours upon becoming aware of such Security Breach) and use commercially reasonable efforts to resolve the Security Breach and remediate the effects of the breach in conformity with all Applicable Laws. Subject to the terms and conditions of the Agreement, Whale's remediation obligations may include, at Whale's sole cost and expense: (i) the conduct of a forensic investigation into the cause and scope of the breach; (ii) any regulatory fines and penalties arising from the breach; (iii) the provision of required notifications to affected individuals and regulators; (iv) twelve (12) months of credit monitoring and identity protection services for affected individuals; and (v) reasonable public relations and crisis communications services related to the breach. Customer agrees to notify Whale immediately of any unauthorized use of the Services and/or any unauthorized use or disclosure of any Services Data.
2.8 PCI DSS Compliance. To the extent Whale or its Non-Employees collect or handle information printed on the front or back of a debit, credit, or other payment card ("Cardholder Data") in connection with its Services, Whale and its Non-Employees shall comply with Payment Card Industry Data Security Standard ("PCI DSS") requirements for Cardholder Data, as prescribed by the PCI Security Standards Council from time to time.
2.9 Return/Destruction of Services Data. Upon expiration or earlier termination of this Agreement for any reason, Whale, with respect to Services Data received from Customer, or created, maintained, or received by Whale on behalf of Customer, shall return and destroy remaining Services Data maintained in any form as follows. Within 30 days of such expiration or earlier termination of this Agreement, Whale shall: (a) deliver to Customer a flat file, in a format reasonably acceptable to Customer, with all Services Data; and (b) ensure that all encryption keys for and copies of Services Data maintained in any form in Whale's possession (and that of its employees, agents, and Non-Employees) is permanently destroyed.
3. Data Privacy.
3.1 In relation to any Tenant Data or any Confidential Information of Customer's and its employees, contractors, agents, invitees, or Tenants Processed hereunder, Whale shall act only on the instructions of Customer in Processing any such data and information.
3.2 Whale shall not use Services Data in connection with unsolicited or solicited direct marketing or offers.
3.3 Whale shall ensure that it has appropriate consents and/or notices in place to enable Customer to receive the products and Services under this Agreement. This includes but is not limited to when Services Data is being transferred outside of the jurisdiction in which it is collected.
3.4 Whale shall take reasonable steps to verify the reliability of any persons authorized by Whale to Process any Services Data, and it shall ensure that all such persons are subject to binding agreements with Whale which contain substantially similar data protection provisions as those set forth herein.
3.5 Whale shall provide reasonable support to Customer in complying with any legally mandated request for access to or correction or deletion of any Services Data by any Services Data Subject or access or demand made by any court or Supervisory Authority, and where such request or demand is submitted to Whale, promptly notify Customer of it; and take any actions reasonably requested by Customer so that any such request is redirected directly to Customer. Whale shall not, without the prior written consent of Customer, respond to such request or demand, including a request or demand by a Supervisory Authority, unless Whale is required to do so under Applicable Laws.
3.6 Whale shall provide reasonable assistance to Customer to assist Customer's obligation to respond to requests by any Data Subject exercising rights under Applicable Laws.
3.7 Whale shall provide reasonable assistance to Customer in connection with Customer's compliance with any other Customer obligations under Applicable Laws in connection with this Agreement, including the circulation by Customer of data protection notices to Data Subjects, and Customer's privacy policy as updated from time to time.
3.8 Whale shall make available to Customer all information necessary to demonstrate compliance with these data protection obligations.
4. California Consumer Privacy.
4.1 Definitions. Except as otherwise defined in this Agreement, all capitalized terms in this Section 4 will have the meanings given to them under the California Consumer Privacy Act of 2018 and regulations promulgated thereunder (as amended, supplemented, or replaced, the "CCPA").
4.2 Information. Customer and its representatives may disclose limited Personal Information to Whale, from time to time ("Customer-supplied Information"). Whale may also have or obtain Personal Information, other than Customer-supplied Information ("Other Information"). All Customer-supplied Information is disclosed solely for purposes of maintaining or servicing accounts, providing customer service, maintaining quality and safety of services, processing or fulfilling orders, and protecting against malicious, deceptive, fraudulent, or illegal activity, as specified in this Agreement, and Whale shall not retain, use, or disclose Customer-supplied Information for any other purpose. Whale shall not Sell Customer-supplied Information or use Customer-supplied Information for any Commercial Purpose. Whale certifies that it understands the restrictions in this Section 4 and will comply with them.
4.3 Compliance. Whale shall: (i) fully comply with the CCPA with respect to Customer-supplied Information and Other Information; (ii) implement and maintain reasonable security procedures and practices to protect Customer-supplied Information and Other Information; (iii) promptly and timely comply with Customer requests with respect to Customer-supplied Information (e.g., disclosure, deletion, opt-out) that are communicated to Whale by Customer; and (iv) indemnify, defend, and hold harmless Customer, its management companies, and their respective shareholders, members, partners, managers, affiliates, directors, employees, and agents against any civil or enforcement action arising, or alleged to arise from, Whale's failure to comply with the requirements of this Section 4.
5. Equitable Relief.
Whale acknowledges that any breach of its covenants or obligations set forth in this Exhibit C may cause Customer irreparable harm for which monetary damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, Customer is entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which Customer may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
EXHIBIT D
SERVICE LEVEL AGREEMENT (SLAs)
Service Availability
We’re committed to providing a reliable, secure experience. Our goal is to ensure the platform is available for your team and renters whenever they need it.
Uptime SLA: 99.9%
Last 12 Months: 100%
Customer Support
We not only support your on-site team but also serve as an extension of your team, helping answer questions renters have about the deposit process.
Response Time SLA: 99% of responses within 3 business hours
Last 30 Days: 100% of responses < 2.5 hours (74% of responses w/in 15 min)
Business hours = 9am-9pm EST, 7 days/week
Deposit Processing Speed
Whale strives to request deposits as quickly as possible once a lease meets your invite criteria and return them as soon as possible after you complete the move-out.
Deposit Request SLA: 99% within 2 hours of trigger
Last 12 Months: 99.8%
Deposit Return SLA: 99.9% within 2 hours of receiving final accounting
Last 12 Months: 100%