nhslive.ca Subscriber and User General Conditions

1. DEFINITIONS

1.1 In this Agreement, capitalized terms have the following meanings:

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.

"Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"Effective Date" means the date that You complete the Subscription Form.

"Malicious Code" means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Reports” means the reports delivered to You through the Services.

"Services" means the Our data analytics services that create Reports based on data for specific real estate projects, properties and general real estate information.

"Subscription Form" means the form You complete to sign up for Our Services.

“Term” has the meaning ascribed to it in Section 10.

“Users” means either a single user or multiple users that are entitled to access the Services, based on whether You subscribe for a single user or multi-user subscription in the Subscription Form.

"We", "Us", or "Our" means URBAN ANALYTICS INC., having an office at 2323 Quebec Street, Vancouver, BC, V5T 4S7.

"You" or "Your" means the company or other legal entity sent forth under the heading SUBSCRIBER in Our Subscription Form.


2. SERVICES

2.1 Provision of Services. We shall make the Services available to You through the Users pursuant to this Agreement during the Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.


3. SERVICE RESPONSIBILITIES

3.1 Our Responsibilities. We shall: (a) provide to You basic support for the Services at no additional charge; (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours’ notice wherever possible via the Services and which We shall schedule to the extent practicable during the weekend hours from 9 p.m. Pacific time on Saturday to 3 a.m. Pacific time Sunday, or (ii) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or other third party failures or delays (including but not limited to Internet or data service providers); and (c) provide the Services only in accordance with applicable laws and government regulations.

3.2 Your Responsibilities. You will prevent (a) unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use; and (b) use the Services and Reports only in accordance with this Agreement, and all applicable laws and government regulations. You will not (c) allow Users to share passwords with anyone, including other Users or anyone else in Your company, or allow anyone else to view the Services or the Reports; (d) provide access to more than the number of Users identified in the Subscription Form, if any, (e) sell, resell, rent or lease the Services; (f) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (g) use the Services to store or transmit Malicious Code; (h) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (i) attempt to gain unauthorized access to the Services or their related systems or networks. You are responsible for all use of the Services by your Users or by anyone using the Users’ login credentials to access the Services. You will prevent unauthorized use of the Services and will notify Us immediately of any such unauthorized use. You will ensure that your computer system is secure and employs a current anti-virus protection program. We disclaim any liability for damage to your computer system that may result from the use of the Services. You will, at all times, comply with all applicable laws when using the Services and the Reports.

3.3 Acknowledgement. Notwithstanding anything else contained in this Agreement (including in another Schedule), You acknowledge that Our provision of the Services and the Reports are dependent upon the supply of data and other services from third parties that are not controlled by Us, and that interruption or delay of the Services or the delivery of the Reports (whether in whole or in part) due solely to the acts or omissions of a third party will not constitute a breach of Our obligations under this Agreement.

3.4 Affiliate Use. If one of Your Affiliates agrees to be bound by the terms of this Agreement by executing and delivering to Us an affiliate addendum, then upon acceptance of the Affiliate’s executed addendum by Us, Your Affiliate shall also be eligible to obtain the Services from Us on the terms and conditions set forth herein, in which case the terms of such addendum shall also be incorporated herein.


4. FEES AND PAYMENT FOR SERVICES

4.1 Service Fees. You shall pay all fees for the Services. Fees are quoted and payable in Canadian dollars; fees are based on services purchased and not actual usage or perceived usefulness of the Services; and Services payment obligations are non-cancelable and Services fees paid are non-refundable. All fees for the Services are exclusive of all taxes applicable to the provision of the Services by Us.

4.2 Invoicing and Payment. For the single User Services, on the monthly anniversary of the Effective Date, We will charge either the credit card or your pre-authorized debit account, that You provided in the Subscription Form, for one-twelfth of the annual subscription fee. All financial processing fees related to the Services (including, without limitation, transaction fees, chargebacks, refund or credit charges, and transaction declined fees) are Your responsibility and any such fees charged to Us will be invoiced to You. For the multi-User Services, we will invoice you on the Effective Date on an annual basis.

4.3 Overdue Charges. If any fee payments are not received from You by the due date, then at Our discretion: (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (b) We may condition the provision of Services on (i) payment of all outstanding amounts; and/or (ii) payment terms shorter than those specified herein.

4.4 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our Services is 60 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full.

4.5 Payment Disputes. We shall not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.

4.6 Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.


5. PROPRIETARY RIGHTS

5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all right, title and interest in and to the Services and the Reports, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. The Services and the Reports are protected by intellectual property laws and are owned or licensed by Us.

5.2 Restrictions. You shall not (a) permit any third party to access the Services or the Reports; (b) create derivative works based on the Services or Reports; (c) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes; (d) reverse engineer the Services or any part thereof; or (e) access the Services in order to (i) build a competitive product or service to the Services or the Reports; or (ii) copy any features, functions or graphics of the Services or the Reports.

5.3 Ownership of Your Information. As between Us and You, You own all rights, title and interest in and to all Confidential Information (defined below) you provide to Us.

5.4 Suggestions. Notwithstanding the foregoing, you agree that We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services or the Reports any suggestions, enhancement requests, recommendations or other feedback provided by You or on your behalf relating to the operation of the Services or the Reports.


6. CONFIDENTIALITY

6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information shall include the Services and the Reports; and Confidential Information of each party shall include the terms and conditions of this Agreement as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party: (a) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.


7. WARRANTIES AND DISCLAIMERS

7.1 Our Warranties. We warrant that, subject to Section 3.3, the functionality of the Services will not be materially decreased during the Term. For any breach of such warranty, Your exclusive remedy shall be as provided in Section 10.2 (Termination for Cause) below.

7.2 Mutual Warranties. Each party represents and warrants that: (a) it has the legal power to enter into this Agreement; and (b) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

7.3 Your Warranties. You represent and warrant that You assume sole responsibility for: (a) determining that the Services and Reports meet Your business requirements; and (b) the results obtained from the Services and Reports.

7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

7.5 Exclusion Concerning Public Data. Notwithstanding anything else contained in this Agreement (including a Schedule), You acknowledge that to the extent the results of any Services are derived from data or other services from third party external sources (“Third Party Data”), We make no representation or warranty of any kind regarding Third Party Data, all of which is received by You “as-is”.


8. INDEMNIFICATION

8.1 Indemnification. You will indemnify, defend, and hold Us, our officers, employees, consultants and agents harmless from any and all actions, causes of action, claims, demands, costs, liabilities, expenses and damages arising out of or in connection with Your use of the Services, Your breach or alleged breach of this Agreement or arising out of any negligence or wilful misconduct by You.


9. LIMITATION OF LIABILITY

9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO US HEREUNDER IN THE 3 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES).

9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.


10. TERM AND TERMINATION

10.1 Term. The term of this Agreement will commence on the Effective Date and continue for one year, unless earlier terminated as provided herein (the “Initial Term”). For the single User subscription only, this Agreement shall automatically renew for the same period as the Initial Term upon the terms and conditions (a “Renewal Term”, and together with the Initial Term, the “Term”) at the end of the Initial Term or at the end of any applicable prior Renewal Term, as the case may be.

10.2 Termination for Cause. A party may terminate this Agreement for cause: (a) upon fifteen (15) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, in addition to any other right or remedy we may have under this Agreement or at law, we may terminate this Agreement or suspend Your access to the Services without prior notice for any reason whatsoever. Upon any undisputed termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all Services after the effective date of termination. Upon any termination for cause by Us, You shall pay for all Services previously performed and shall not receive a refund on any fees paid on an annual basis. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

10.3 Termination for Convenience. If You signed up for a single User subscription, You may terminate this Agreement for convenience upon thirty (30) days prior written notice to Us, provided that such notice may only be provided thirty (30) days (or more) in advance of the end of the Initial Term or the Renewal Term. If you signed up for a multi User subscription, You may terminate this Agreement for convenience upon thirty (30) days prior written notice to Us. Following the effective date of such termination: (a) We will not be obligated to continue performing any Services; (b) You will pay Us for all Services performed for the period prior to the effective date of termination; (c) You will not be entitled to a refund for any fees paid on an annual basis and (d) neither party will have any obligation or liability to the other for anticipated revenues or profits based upon this Agreement or for any costs or expenses incurred in anticipatory reliance upon this Agreement, on account of any termination of the Services.

10.4 Conclusion of Term. Following any termination or expiration of this Agreement: (a) each party will pay to the other all fees and other amounts payable in accordance with this Agreement; (b) except as arranged between the parties, We will destroy all of Your electronic data in our possession or under our control; and (c) each party will return any Confidential Information or property of the other party (other than that destroyed as provided above) within ten (10) days from the effective date of such termination.

10.5 Surviving Provisions. Sections 4 (Fees and Payment for Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.4 (Disclaimer), 9 (Limitation of Liability), 10 (Term and Termination) and 11 (General Provisions) shall survive any termination or expiration of this Agreement.


11. GENERAL PROVISIONS

11.1 Manner of Giving Notice. All notices, authorizations, and requests in connection with this Agreement will be deemed given: (a) three (3) days after they are deposited in the local mails, postage prepaid, certified or registered, return receipt requested; (b) one (1) day after they are sent by air express courier, charges prepaid; or (c) on the day of transmittal if sent by facsimile, in each case to the address set forth above or to such other address as the party to receive the notice or request so designates by written notice to the other.

11.2 Governing Law and Jurisdiction. Each party irrevocably agrees that this Agreement and all related matters shall be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein, without regard to any rules relating to conflict of laws. Each party agrees to submit to the exclusive jurisdiction of the Courts of British Columbia (Vancouver Registry) with respect to any dispute between them arising from or pertaining to this Agreement or the subject matter hereof.

11.3 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

11.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.5 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

11.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.


Addendum to nhslive.ca Subscriber and User General Conditions: Feedback Points

This Addendum is made as a part of and pursuant to the nhslive.ca Subscriber and User General Conditions (“General Conditions”) and sets out the terms on which We will offer a rewards program to Users of nhslive.ca (the “Program”). In the event of conflict between the General Conditions and this Addendum, the General Conditions will prevail, except as specified herein.

Definitions

All terms not defined herein will have the meaning set out in the General Conditions. Additionally, in this Addendum, the following terms have the noted meaning:

“Feedback” means specified User comments as received through nhslive.ca that are requested by Us from time to time;

“Feedback Points” means points allotted by Us to a User who provides Feedback;

Terms

1. Changes to this Addendum: We reserve the right to, at any time, with or without cause:

  • change the terms and conditions of this Addendum or the Program;
  • change the value of Feedback Points; or
  • deny or terminate your use of and/or access to the Services.

We will notify You of any changes to the Program or the Addendum by contacting You via email or by posting the changes to our website.

2. Feedback Content: You acknowledge and agree that any Feedback that You provide may be used publically, without attribution to You and that you assign (and agree to assign) ownership rights in Feedback to Us. Feedback will not be treated as Your Confidential Information. You represent and warrant that You have the right to assign ownership of the Feedback to Us and that the Feedback will comply with all applicable laws. You acknowledge that We may copy, reproduce, modify, amend and publicly display or otherwise use any Feedback in any format whatsoever throughout the world. To the extent applicable, You hereby waive and release any moral rights in the Feedback. This Section over-rides Section 5.4 in the General Terms.

3. Awarding Feedback Points: Feedback Points are awarded in Our sole discretion. We reserve the right to award no Feedback Points if the Feedback is, without limitation, inaccurate, misleading, inapplicable or insufficient in Our sole discretion. Feedback should expand User knowledge on nhslive.ca.

By participating in the Program, You agree to use best efforts to provide accurate and relevant Feedback. Upon receipt of adequate Feedback, We shall make Feedback Points available to You through your NHSLive Account within 14 days. We reserve the right to cancel any or all Feedback Points at any time for any reason. Examples where Feedback Points will not be awarded include (without limitation):

- Feedback that states ‘Your information is wrong’ without providing Us with correct information;

- an incorrect (wrong building) or unusable construction photo;

- outdated information (i.e. 2 month old construction photo, pricing or availability from 2 months ago, etc.); or

- inaccurate information (sales, pricing, etc.)

4. Redemption of Points; No Cash Value: Feedback Points may be redeemed at a value of 1 point for $1.00 and be redeemed solely for the gift cards available through Our third party gift card provider. We will advise You of options for gift cards when You choose to redeem your Feedback Points.

Feedback Points have no monetary value whatsoever and cannot form the basis of a monetary claim against Us and cannot be converted to cash. Feedback Points are personal and cannot be assigned, traded or otherwise transferred. Any assignment or transfer in violation of this Agreement is void and may, in Our sole discretion, result in the cancellation of Your subscription to the Services or the cancellation of some or all of Your Feedback Points, as the case may be.

5. Expiry: Any Feedback Points earned will expire at the end of the Term. You may renew Your subscription or redeem Your Feedback Points within 14 days after Your Term. If you do not renew Your subscription or redeem Your Feedback Points within 14 days after the Term, your Feedback Points may expire. If you use the Services within such 14 day period for any other reason other than to redeem Feedback Points or to renew your subscription, We reserve the right to terminate Your account and revoke Your Feedback Points.

6. Termination: Any Feedback Points earned will expire at the end of the Term. You may renew Your subscription or redeem Your Feedback Points within 14 days after Your Term. If you do not renew Your subscription or redeem Your Feedback Points within 14 days after the Term, your Feedback Points may expire. If you use the Services within such 14 day period for any other reason other than to redeem Feedback Points or to renew your subscription, We reserve the right to terminate Your account and revoke Your Feedback Points.