Terms of Service

Welcome to eSupplySystems.com! The eSupplySystems.com website and any services of eSupply Systems, LLC (“Company”) available via this website (the “Site”) are provided subject to the terms set forth herein. Please read the following terms of service and disclaimers carefully and in their entirety before using the Site or any of the services provided through the Site.

By visiting the Site or subscribing for or using the Services, you acknowledge that you have read and understand, and agree to be bound by these Terms of Service. If you do not agree to our Terms of Service, you are not permitted to use the Site or any of the Services (as defined below). Some of the services provided on the Site are only available to you if you are a “Customer.” The term “Customer” means an individual or entity (a “Person”) who subscribes for the Services.

Company reserves the right to make changes at any time to the Site or these Terms of Service. Any modifications to the Terms of Service will be effective upon posting. Your continued use of the Site following the posting of any revised Terms of Service will constitute acceptance of the modified Terms of Service.


The Company offers a web-based platform (enhanced with budget controls and other purchasing intelligence tools) that administers, supervises, and manages the procurement of MRO (maintenance, repair, and operations) supplies (the “Products”) for multi-family and commercial properties (each type, a “Property”) through the Site (such services, together with any other services offered by the Company through the Site, are referred to as the “Services”). The Services include providing you with access to the Site, providing reports on purchasing, as well as customer support as needed during the term of your subscription, which will be one (1) year from the date you subscribe for the Services (the “Initial Term”) or other date as set forth in the purchase agreement (the “Purchase Agreement”) submitted by the Customer in connection with its subscription for the Services, and training for your team members with respect to access and utilization of the Site and the Services for a period of 4 weeks from the date you subscribe for the Services. Unless terminated in accordance with these Terms of Service, or unless the Customer or the Company notifies the other party at least sixty days prior to the expiration of the Initial Term, the Initial Term shall automatically be extended for a period of one year (a “Renewal Term” and, together with the Initial Term, the “Term”).

During the Term, Customer will provide (and will cause each Property Owner (as defined below) to provide) the Company with a list of Properties (the “Property List”) for which the Company shall provide its Services. The Customer will provide the initial Property List in the Customer’s Purchase Agreement delivered by the Customer in connection with its subscription for the Services. The Property List shall contain the name of each Property, number of units at such Property, name of the applicable Property Owner, address, phone number and fax number of the Property. Customer will notify the Company in writing within fifteen (15) days of any sale, disposition (or similar transaction or transfer) or change in management and/or ownership of any Property. Customer agrees and accepts responsibility for keeping all of its account information current, including address, payment information, telephone numbers, e-mail address and the Property List. Customer can update its information by sending a communication to Support@eSupplySystems.com.

Customer agrees that Customer shall not order, or permit anyone utilizing Customer’s account with the Company to order, and no Property or Customer will be entitled to receive Products or Services from the Company, unless the owner of the Property (the “Property Owner”) shall have consented to entering into such order and receiving such Products or Services and agreed to be bound by all obligations related thereto. Customer will be responsible for any failure to obtain the Property Owner’s consent or agreement to be bound with respect to any Product or Service.

Access to the Services is accomplished through the use of a user name and a password that Customer chooses upon registration. Customer is solely responsible for any authorized or unauthorized access to its account by any person. Customer agrees to bear all responsibility for the confidentiality of its password and all use or charges incurred from use of the Services with its password. Customer agrees to notify the Company promptly of any unauthorized use of its password and Customer will remain liable for any use of the Services until Customer notifies the Company. Customer agrees that it will not provide fraudulent information and that Customer is solely responsible for any information it provides to the Company, and accepts responsibility for all activities that occur under its account or password and for restricting access to its computer(s). Customer will comply with all laws applicable to its activities on the Site and with these Terms of Service.

Customer agrees that the purchase of any Product by a Property Owner through the Company shall be subject to the terms and conditions of the applicable purchase order submitted by the Customer (on behalf of the applicable Property Owner) through the Site, pursuant to which such Product is being purchased by such Customer (the “Purchase Order”). Customer acknowledges that Products purchased through the Site are manufactured, sold, distributed, and delivered by third parties (“Suppliers”) that are not owned, operated or controlled by the Company and that the Company only provides a portal between the Customer and the Suppliers. The Company makes no representations or warranties of any kind, express or implied, regarding any Products purchased, sold or received through the Site or from any Supplier, and the fact that the Company makes such Products available through the Site should not be construed as an endorsement of any Supplier or any Product. The purchase, sale and delivery of, and payment for, any Product shall be governed by the policies of the applicable Supplier and the Company shall have no liability or responsibility for any product defects, delivery failures or delays, warranties, guarantees or other matters with respect to any Product or the delivery thereof by any Supplier. All payments for Products purchased pursuant to a Purchase Order shall be made in accordance with the applicable Purchase Order and the payment terms of the applicable Supplier. In the event of any conflict between these Terms of Service and/or an applicable Purchase Order, these Terms of Service shall prevail.

All payments for the Services will be made by the applicable Property Owner to the Company. Customer will exercise its good faith efforts to ensure Property Owners’ timely payment of all invoices. The relevant Property Owner will pay the Company a fee for access to the Services in the amount stated in the Purchase Agreement for each unit located at the Properties set forth on the Property List. The Company may increase any such fees for the period of the Renewal Term by giving written notice to Customer at least sixty (60) days prior to the expiration of the Initial Term. Periodic service fees during partial billing periods shall be prorated in daily increments based upon a thirty (30)-day month.

Monthly invoices shall be e-mailed by the Company to the relevant Property Owner commencing upon the acceptance of a Purchase Agreement by the Company, and payment shall be due in full within thirty (30) days from the date set forth on the invoice. A statement reflecting unpaid invoices shall be e-mailed by the Company to the relevant Property Owner and the respective accountant for the Property Owner on a monthly basis.

In the event that any Property Owner fails to pay an invoice in full within thirty (30) days of the invoice date, (i) no additional Purchase Orders shall be filled until such invoice is paid in full; and (ii) the Company shall assess a minimum charge of one and a half percent (1.5%) of all amounts outstanding after forty-five (45) days from such invoice date, not to exceed eighteen percent 18% per year, which charge shall appear on all subsequent invoices until paid in full. Notwithstanding anything to the contrary set forth herein, in the event any account or unpaid amounts of a Property Owner becomes subject to collection or is collected in whole or in part through suit, arbitration, mediation or other proceeding of any nature, then there shall be added to any such accounts or unpaid amounts (including any interest) all reasonable costs and expenses of collection, including, without limitation, attorneys’ fees and disbursements.

Customer shall not disclose to any Person any information submitted or otherwise provided to it by the Company or any of its affiliates relating to, attributed to or in connection with the Services or these Terms of Service, including know-how, trade secrets, customer lists, costs, profits or margin information, markets, sales, pricing policies, operational methods, programming, software, intellectual property, supplier (or vendor) information and/or lists, inventory lists, accounting policies, financial terms, redemption analyses, plans for future development, data, drawings, product formulations, samples, processes or products and other information disclosed to Customer or known by it as a result of or through its relationship with the Company or its affiliates (the “Confidential Information”), except information that (a) is known to Customer prior to obtaining same from the Company or any of its affiliates; (b) is, at the time of disclosure to Customer in the public domain; or (c) is obtained by Customer from a third party who did not receive same, directly or indirectly, from the Company or its affiliates and is not under any obligation to maintain it as confidential. Customer shall not disclose Confidential Information to its members, shareholders, partners, managers, principals, agents, employees, officers or other representatives, as applicable, except to the extent such Persons have a need to know such confidential information and Customer, prior to disclosure certifies in writing that such Persons have previously agreed in writing, either (i) as a condition to employment, or (ii) to their affiliation with Customer or otherwise in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to Customer under these Terms of Service. Customer may disclose Confidential Information to the extent required to comply with an order or other requirement of a court of law or other governmental body having jurisdiction over Customer; provided, however, that the Company shall be promptly notified of such order or requirement and given a reasonable opportunity to intervene or consult with Customer. Customer will take all appropriate and necessary action to provide for the safekeeping of any Confidential Information and use its best efforts to prevent disclosure, in whole or in part, of the same to any third party without prior written permission of the Company. Customer shall immediately give notice to the Company of any unauthorized use or disclosure of Confidential Information. Customer covenants and agrees to assist the Company in remedying any such unauthorized use or disclosure.

Customer covenants and agrees that, during the Non-Solicitation Period (as defined below), it shall not, directly or indirectly, in its own capacity or through one or more affiliates: (i) solicit, encourage or otherwise aid any employee or subcontractor of the Company to leave the employ of or retention by the Company, for the purpose of becoming associated with any business with which Customer intends to be, or is then, associated; or (ii) solicit, encourage or otherwise induce any client, joint venturer or partner of the Company to terminate, reduce or refrain from renewing or extending its contractual relationship with the Company or any of its Affiliates. For purposes of this paragraph, “Non-Solicitation Period” shall mean the Term and eighteen (18) months following the last day thereof.

The Customer and the Company agree that irreparable damage would occur in the event that certain provisions of these Terms of Service were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each of the Customer and the Company will be entitled to specific performance of the provisions of these Terms of Service set forth under the Captions “Confidentiality” and “Non-Solicitation,” including an injunction or injunctions to prevent breaches of such provisions and to specifically enforce the terms and provisions of these Terms of Service, in addition to any other remedy to which such party is entitled at law or in equity. Each party hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate; and (b) any requirement under any law to post security as a prerequisite to obtaining equitable relief.

The Company may make public references and press releases in connection with the subscription by a Customer for the Services; provided, that, prior to any public reference or press release, the Company shall submit such documentation to the Customer for Customer’s approval, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary set forth herein, during the Term, Customer agrees that the Company shall have the right to use Customer’s trademarks, trade names and logos (“Customer Marks”), in press releases, product brochures and similar marketing materials, financial reports, prospectuses and on the Site, including a link from the Site to the home page of Customer’s website, indicating that Customer is a customer of the Company. Upon expiration of the Term, the Company shall no longer use any of the Customer Marks.

By subscribing for or otherwise purchasing the Services, Customer hereby designates and appoints the Company as its agent and the Company accepts such appointment as of the date Customer accepts these Terms of Service for the purposes of administration and management of the procurement of products or services for one or more of the Properties, including, but not limited to: (a) obtaining quotes and other information relating to products and services for one of more of the Properties; (b) obtaining data on Customer’s usage of products and/or services; (c) establishing new accounts with vendors; and (d) canceling in-active actives with vendors. Notwithstanding anything to the contrary set forth herein, the Company will have no right to advance funds on behalf of the Customer or enter into any contract or other agreement on the Customer’s behalf. These Terms of Service do not constitute an exclusive agency agreement, or contractual agreement between Customer and the Company, and Customer may enter into other agreements, sales contracts and/or purchase agreements with any desired entity.

The Site may include information regarding Company and its services, publications, presentations and directories proprietary to Company, and links to other Company-owned or third party websites. You may download, view, copy and print information, materials and any other aspect of this Site (i) solely for your personal, informational purposes; and (ii) provided that neither the materials, nor any proprietary notices or disclaimers therein, are modified or altered.

You agree that you will not interfere in any way with others’ use of or access to the Site and will not attempt to gain unauthorized access to the account or computer system of any other Site user. You further agree not to take any other action in connection with your use of the Site which violates any treaty, law or regulation and to fully comply with all applicable treaties, laws and regulations in your use of the Site.

You agree to access the Site through a web browser, and specifically agree not to use any third party applications to access the Site or any other page of the Site. You further agree that you will not use any robot, spider, other automatic device, manual process, application or data mining or extraction tool to access, monitor, copy or use the Site. You agree not to take any other action that imposes an unreasonable or disproportionately large load on the Site.

Except as expressly provided herein, you may not use, download, upload, reproduce, copy, duplicate, print, display, perform, republish, sell, license, post, transmit, disseminate, redeliver using “framing technology,” otherwise distribute, or commercially exploit the Site or any portion thereof or any information or content on the Site in any way, without the prior written permission of Company. In addition, you agree not to link to any page of the Site other than the home page located at www.esupplysystems.com.

Company reserves the right to investigate and take legal action against any illegal and/or unauthorized use of the Site, including, but not limited to: (i) unauthorized access to the Site through a third party application, robot, spider, automated device, or data mining or extraction tool or other unauthorized means; interference with the Site; (ii) action that imposes an unreasonable load on the Site; or (iii) any link to any page of the website other than the home page. Company’s decision not to pursue legal action for any violation of the Terms of Service shall not be construed as a waiver of these Terms of Service or Company’s legal rights.

The terms of the Company Privacy Policy are hereby incorporated as part of these Terms of Service.

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE, AND ANY INFORMATION, CONTENT, SERVICES AND MATERIALS CONTAINED IN, ACCESSED VIA, OR DESCRIBED ON THE SITE, IS AT YOUR OWN RISK, AND THAT ALL SUCH INFORMATION, CONTENT, SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, COMPANY MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, OPERATION AND USE OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS OR SERVICES ON OR ACCESSED VIA THE SITE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SITE IS ACCURATE, COMPLETE OR CURRENT, AND IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM YOUR RELIANCE ON ANY ASPECT OF THE SITE. FURTHER, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITE WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS.

IN NO EVENT SHALL COMPANY OR ITS AFFILIATES, OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF COMPANY OR ITS AFFILIATES (THE “COMPANY PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, INABILITY TO USE OR IMPROPER USE OF THE SITE OR ANY INFORMATION, CONTENT, MATERIALS OR SERVICES AVAILABLE THEREON (INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL OR REVENUE, BUSINESS INTERRUPTION, OR LOSS OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE.

CERTAIN STATE LAWS MAY NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, AND THUS, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS ABOVE MAY NOT APPLY TO YOU.

You agree to indemnify and hold the Company Parties harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees, disbursements and court costs) arising from or in connection with (i) use of the Site or any content, information, materials or services contained, displayed or available therein by you or any other person accessing the Site under any password, user ID or other access method assigned to you; (ii) your violation of these Terms of Service; or (iii) your violation of any rights of any third party.

The “eSupply Systems” word name and logo, “ESS eSupply Systems” name and mark, and the “cube comprised of the letter “E” and two letters “S” with the words “ESUPPLY SYSTEMS” and the words “PURCHASING Intelligence” appearing adjacent to the cube displayed on our Site are the proprietary service marks or trademarks of Company or its licensors (“Company Marks”). Company Marks may not be used in connection with any product or service that is not Company’s, in any manner that is likely to cause confusion among consumers, or to disparage or discredit Company. All other trademarks and service marks not owned by Company or its licensors that appear on this Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Company. You may not use, copy, modify or display any of the trademarks, service marks, names or logos appearing on the Site without the express written permission of the service mark owner or the trademark owner.

All content on this Site, including, but not limited to: (i) works of authorship, publications, presentations, directories, design, text, graphics, photos, logos, button icons, images and data compilations; (ii) any improvements or modifications to such content; (iii) any derivative works based thereon; and (iv) the collection, arrangement and assembly of all content on this Site are the property of Company or its licensors and are protected by United States and international copyright and other intellectual property laws.

Nothing in these Terms of Service shall be deemed to grant to you or any other user any license or right in or to any copyright, trademark, trade secret or other proprietary right of Company or any other person.

You acknowledge that, from time to time, Company may provide links to the websites of third parties. Company is not responsible for the content of any linked site which is not owned by Company, or any link contained in a linked site. The display of any link to a third party website does not imply endorsement by Company of the linked site or any information or content therein.

IN NO EVENT WILL COMPANY BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY ADVERTISEMENT DISPLAYED ON THE SITE, OR ANY PRODUCTS, SERVICES OR OTHER MATERIALS RELATING TO ANY SUCH ADVERTISEMENT, ANY LINKED THIRD PARTY SITE, OR ANY LINK CONTAINED IN A LINKED SITE.

Except where otherwise expressly provided by Company, all comments or feedback that is solicited by or provided to Company regarding your experiences with, preferences for, opinion of or suggestions regarding this Site (collectively, “Feedback”) shall be considered non confidential and Company’s property. By submitting such Feedback to Company, you agree that you assign to Company, without charge, all worldwide rights, title and interest, including copyrights and other intellectual property rights, in and to such Feedback, and that Company shall be free to use such Feedback in any manner or media whatsoever, on an unrestricted basis and without any attribution, compensation or royalties to you.

Company does not endorse, support, sanction, encourage, verify, or agree with the comments, opinions, or statements of third parties displayed on or transmitted via the Site (“Third Party Content”). Any Third Party Content placed on the Site are the views and responsibility of those who post the statements, and do not necessarily represent the views of Company.

At any time, without notice to you, and for any or no reason, Company may modify or discontinue the Site. Company shall in no way be held liable for any consequence which results from Company’s decision to modify or discontinue providing the Site.

Company may prohibit you from using or accessing the Site for any or no reason, at any time, in its sole discretion, without notice to you.

The laws of the State of New York will govern these Terms of Service, without giving effect to any principles of conflicts of laws. You agree that any action arising out of the Terms of Service or your use of the Site shall be brought in state or federal court in the New York county, New York, and you consent to the jurisdiction of such courts.

You may not assign or otherwise transfer these Terms of Service or any rights or obligations hereunder. Company’s failure to act on any breach of any provision hereof shall not be construed as a waiver of the enforcement of any provision unless Company agrees to such waiver in writing.

If any portion of these Terms of Service is deemed unlawful, void or unenforceable, that portion will be deemed severable and will not affect the validity or enforceability of the remaining provisions. These Terms of Service set forth the entire understanding between you and Company with respect to the subject matter hereof and supersede any prior or contemporaneous communications, representations, or agreements, whether oral or written, between you and Company with respect to such subject matter.

If you have any questions relating to these Terms of Service, the Site or Company, please contact: Support@eSupplySystems.com

Company respects the intellectual property rights of others. If you believe that any content on this Site may infringe your copyrights or other intellectual property rights, please provide Company the written information specified below. Please note that this procedure is exclusively for notifying Company that your intellectual property rights have been infringed:

• an electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property interest;
• a description of the intellectual property right that you claim has been infringed;
• a description of where the material that you claim is infringing is located on the Site;
• your address, telephone number, and e-mail address;
• a statement by you that you have a good faith belief that the disputed use is not authorized by the intellectual property owner, its agent, or the law; and
• a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the intellectual property owner or authorized to act on the intellectual property owner’s behalf.

Company’s agent for notice of claims of copyright infringement or other intellectual property infringement on the Site can be reached as follows:

eSupply Systems, LLC
700 West IH-10
Suite 130
San Antonio, TX 78230
Phone: 210.979.6670
Fax: 210.979.6680
e-mail: Support@eSupplySystems.com

Except as otherwise set forth in these Terms of Service, any controversy, claim or dispute arising between or among the Parties arising out of or relating to these Terms of Service or any breach thereof, including, without limitation, any dispute concerning the scope of this arbitration clause, may, at the election of both parties, within fourteen (14) days of any request therefor by a party, be resolved as set forth below. Any party may seek injunctive relief, without the need to post a bond, pending the completion of arbitration under these Terms of Service. In the event that a dispute arises relating to these Terms of Service, the Parties agree to meet to resolve their disputes in good faith. If, after good faith negotiations, the dispute is not resolved, any party may demand arbitration by notifying the American Arbitration Association (“AAA”) in writing. The notification will state with specificity the nature of the dispute and the amount of any claims. Arbitration shall be in accordance with the commercial arbitration rules of the AAA. Judgment upon the award rendered by the arbitrator as set forth herein may be entered in any court having jurisdiction thereof. Any such arbitration proceeding shall be conducted by a panel of three (3) arbitrators, one (1) to be chosen by the party initiating the dispute, one (1) to be chosen by the opposing party, and the third by the other two (2) so chosen. If either Party refuses or neglects to appoint an arbitrator within thirty (30) days after the receipt of written notice from the other party requesting it to do so, such arbitrator shall be named forthwith by the Arbitration Committee of the AAA (the “Arbitration Committee”). If the two arbitrators fail to agree in the selection of a third arbitrator within thirty (30) days of their appointment, the Arbitration Committee shall forthwith appoint the third arbitrator. Arbitrators shall be persons familiar with the Company’s business and neither in a business relationship with nor under the control of any party or any of their respective affiliates. The judgment of the arbitration panel shall be final and binding on the parties. Each party shall bear its own costs related to such arbitration and shall jointly and equally share the costs of the arbitration panel. The place of arbitration shall be San Antonio, Texas unless otherwise mutually agreed to by the parties involved in the dispute. The prevailing party in any such arbitration shall be entitled to recover all reasonable costs, expenses and attorneys’ fees incurred in anticipation of and in connection with any such proceeding. The losing party in any such proceeding shall be responsible for all costs of the AAA and arbitrators in connection with such proceeding.

Customer represents and warrants to the Company as follows:

(a) Customer is duly organized and in good standing under the laws of the state of its formation and it is duly qualified to do business with respect to each jurisdiction in which the business conducted hereunder requires such qualification, except where the failure to so qualify would not have a material adverse effect on its assets or on its business, operations or condition, financial or otherwise;

(b) Customer has full authority to enter into the agreement constituted by Customer’s acceptance of these Terms of Service and to perform its obligations hereunder in accordance with the terms hereof (and, solely with respect to Customer, has the authority to bind each Property Owner of any Property managed by Customer to such Property Owner’s obligations hereunder);

(c) the acceptance of these Terms of Service and the consummation of the transactions contemplated hereby does not and will not result in a breach, violation or default or give rise to an event which, with the giving of notice or after the passage of time, or both, would result in a breach, violation or default of any of the terms or provisions of any indenture, agreement, judgment, decree or other instrument or restriction to which it is a party or by which it may be bound or affected;

(d) (i)the acceptance of these Terms of Service and the consummation of the transactions contemplated hereby have been duly authorized, and all requisite action has been taken, and no further authorization or approval, whether of or by any governmental bodies or otherwise (including any Property Owner) will be necessary in order to enable it to enter into and perform the same; and (ii) these Terms of Service constitute a valid and binding obligation enforceable against Customer in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally;

(e) Customer and (if applicable) its employees, subcontractors or representatives, have all licenses and permits necessary to conduct its business and fulfill its obligations hereunder; and

(f) Customer has reviewed these Terms of Service thoroughly, has had the opportunity to consult with its attorneys and other advisors prior to signing, and its agreement to these Terms of Service is knowing, willing and voluntary.