Terms & Conditions

PROPHAIC PRODUCT

Provision of prophAic Product.

prophAic provides a proprietary, cloud-based adaptive data preparation platform (the “prophAic Product”) designed to enable customers to aggregate, compare, compile, govern, and export data from multiple sources into a new report (each a “Property Report”) for use with the assessment, evaluation, and valuation of residential real estate properties. prophAic may also offer training and API support services (“Professional Services”) related to the prophAic Product. The prophAic Product is provided on a subscription basis for a set term designated on the applicable Order Form (each, a “Subscription Term”). Customer will purchase and prophAic will provide the prophAic Product and related Professional Services (if any) as specified in the applicable Order Form.

Access to prophAic Product.

Customer may access and use the prophAic Product solely for its own benefit and in accordance with the terms and conditions of this Agreement, the end user technical documentation provided with the prophAic Product (“Documentation”), and any seat, data usage or other scope of use restrictions designated in the applicable Order Form. Use of and access to the prophAic Product is permitted only for the number of personnel of Customer specified in the applicable Order Form (“Permitted Users”). If Customer is given passwords to access the prophAic Product on prophAic’s systems or any “white-label” version or system offered to deliver or display the prophAic Product or any Property Report, Customer shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual named persons and may not be shared. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords, and shall immediately notify prophAic if any Permitted User who has access to a user ID is no longer an employee or contractor of Customer.

Permitted Users.

Customer may permit its independent contractors and consultants who are not competitors of prophAic (“Contractors”) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor with all of the terms and conditions of this Agreement.

Permitted User Requirements. Each Permitted User must meet all of the following requirements:

be one of the following: (i) the Customer, (ii) an employee or contract appraiser of the Customer, or (iii) if the Customer is a registered real estate brokerage under its jurisdiction’s laws or regulations, a broker or dedicated and registered real estate salesperson of the Customer; and
be a member of the local real estate board for each area/region in which they are displaying listings to their clients, with a valid and authorized VOW (Virtual Office Website) agreement (a “VOW Agreement”) with each applicable local real estate board.

Each Permitted User, and the Customer on behalf of each Permitted User, represents and warrants that all times during the Subscription Period each Permitted User meets the requirements set out above in this Section 1.4, including that they are at all times in compliance with each applicable VOW Agreement. The Customer and each Permitted User have a positive obligation hereunder to notify prophAic immediately if at any time the Customer or any Permitted User no longer meets the requirements set out above in this Section 1.4, and any such person shall immediately cease all access and use of the prophAic Product and Property Reports.

prophAic may in its sole discretion, whether at the commencement of this Agreement, any time during the Subscription Term, or during any subsequent period of potential liability for prophAic, request and review proof from the Customer and each Permitted User that they each are, and at all relevant times have been, in compliance with the requirements set out above in this Section 1.4. prophAic reserves the right to withhold or prohibit access to the prophAic Product to any person until prophAic is satisfied that such person meets all of the requirements set out in this Agreement.

Use of the prophAic Product by Permitted Users in the aggregate must be within the restrictions specified in the applicable Order Form.

General Restrictions on Use.

Customer and Permitted Users shall not (and shall not permit any third party to): (a) rent, lease, copy, provide access to or sublicense the prophAic Product to a third party; (b) use the prophAic Product or any Property Report for any purposes other than the intended use specified on the applicable Order Form; (c) use the prophAic Product to provide, or incorporate the prophAic Product into any product or service provided to, a third party; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the prophAic Product, except to the extent expressly permitted by applicable law (and then only upon advance notice to prophAic); (e) modify the prophAic Product or any Documentation, or create any derivative work from any of the foregoing, except for modifications or customizations specifically permitted by prophAic as a feature of the prophAic Product (for example, to remove a comparable property from a Property Report); (f) remove or obscure any proprietary or other notices contained in the prophAic Product (including any reports or data printed or exported from the prophAic Product); (g) publicly disseminate information regarding the performance of the prophAic Product; or (h) access the prophAic Product if Customer is a direct competitor of prophAic, except with prophAic’s prior written consent. Each Customer and Permitted User acknowledges that any breach of this Section 1.5 would cause irreparable harm to prophAic, and each Customer and Permitted User hereby agrees (i) to be and remain liable to prophAic for any losses or damages suffered by prophAic as a result of the breach of this Section 1.5, and (ii) that in addition to any other remedy or relief, prophAic shall be entitled to enforce the terms of this Section 1.5 by injunction upon application to a court of competent jurisdiction without proof of actual damages.

Property Reports.

Customer and Permitted Users shall not (and shall not permit any third party to) provide prophAic Product Property Reports to any person other than: (a) the Customer, (b) other Permitted Users of the Customer, (c) real estate purchasers or sellers for which the Permitted User is providing appraisal services, or services in relation to the trade of real estate (“Real Estate Clients”). Customer and Permitted Users shall only be permitted to produce and distribute Property Reports for their own individual Real Estate Clients, and the Customer and Permitted User are not permitted to produce or distribute Property Reports for the use or benefit of any other employee, salesperson or client of the Customer or any other Permitted User. For greater certainty, a salesperson or administrative person that is a Permitted User of the Customer shall not produce or provide Property Reports for the Real Estate Clients of other salespersons affiliated with the Customer.

Unpaid Subscriptions (Trial Period).

If specified in the applicable Order Form, Customer may receive a free trial or evaluation subscription to access and use the prophAic Product without charge for the period specified in the Order Form and in accordance with the terms and conditions of this Agreement (an “Unpaid Subscription”). Customer’s right to access and use the prophAic Product under any Unpaid Subscription may be subject to additional limitations and restrictions as determined by prophAic in its sole discretion (e.g., limits on data usage or restrictions on product features). prophAic has the right to terminate any Unpaid Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PROPHAIC WILL HAVE NO WARRANTY, SERVICE LEVEL, INDEMNITY, OR SUPPORT OBLIGATIONS WITH RESPECT TO UNPAID SUBSCRIPTIONS. If Customer wishes to use the prophAic Product beyond the specified free trial period, then Customer must pay applicable fees to upgrade to a paid Subscription and all of the terms and conditions in this Agreement will apply to such purchase and to Customer’s use of the prophAic Product. In the event Customer does not upgrade to a paid Subscription following the trial period specified in the Order Form, Customer acknowledges that:

it shall have no further access to the Customer Data input into the prophAic Product, and that prophAic may delete any such data as may have been stored by prophAic at the time;
it shall immediately cease all use of the prophAic Product; and
it shall be obligated to destroy and delete all Property Reports and other data or information obtained from the prophAic Product.

CUSTOMER DATA
Definitions.

“Real Property Information” means information about a residential real property, such as location, listing or sale prices, size, room descriptions, or other real property characteristics.

“Customer Data” means any personally identifying information relating to a Real Estate Client (e.g. client names) that is input by or on behalf of Customer or any Permitted User into the prophAic Product and any data sets Customer creates using the prophAic Product, but does not include Real Property Information input by or on behalf of Customer or any Permitted User into the prophAic Product or any other information that alone or in aggregated or anonymized form would not personally identify and Real Estate Client.

Rights in Customer Data and Real Property Information.

As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to, and responsibility for, the Customer Data as provided to prophAic. Subject to the terms of this Agreement, Customer hereby grants to prophAic a right to use, copy, store, and transmit Customer Data solely to the extent necessary to allow prophAic to provide the prophAic Product to Customer. Customer hereby grants to prophAic a right to use any uploaded information or data that is not Customer Data in its sole discretion for the benefit and improvement of the prophAic Product, prophAic, and its other customers or suppliers.

Storage of Customer Data.

prophAic does not provide an archiving service, and does not provide any representation or assurance that it will store copies of Customer Data or any Property Reports related to Customer Data or generated by Permitted Users. prophAic expressly disclaims any implied obligations with respect to storage of Customer Data.

Uploading Real Property Information.

Each Permitted User, and the Customer on behalf of each Permitted User, represents and warrants that all Real Property Information input or uploaded to the prophAic Product or platform will be accurate to the best of the Permitted User and Customer’s knowledge.

Customer Obligations.

In General. Customer shall ensure that Customer and each Permitted User’s use of the prophAic Product and all Customer Data and Real property Information is at all times compliant with Customer’s privacy policies, and VOW Agreement that the Customer or its Permitted Users are a party to, and all applicable local, state/provincial, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer and each applicable Permitted User is solely responsible for the accuracy, content and legality of all Customer Data and Real Property Information uploaded by the Customer or applicable Permitted User. Customer represents and warrants to prophAic that Customer and each applicable Permitted User has sufficient rights in the Customer Data to grant the rights granted to prophAic in Section 2.2 above and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.
No Sensitive Personal Information Allowed. In addition, Customer and each Permitted User specifically agree not to use the prophAic Product to upload or input any Sensitive Personal Information for the purposes of generating Property Reports. “Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data; (ii) patient, medical or other protected health information regulated by any law or regulation; or (iii) any other information deemed to be “personal data” for which any privacy or personal information restrictions or obligations may apply to prophAic under any law or regulation. prophAic shall have no liability under this Agreement for Sensitive Personal Information uploaded or transferred to prophAic by Customer or any Permitted User, notwithstanding anything to the contrary herein.

Indemnification by Customer.

Customer shall indemnify, defend and hold harmless prophAic from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data or breach or alleged breach of Section 2.5 (Customer Obligations), (b) any service or product offered by Customer in connection with or related to the prophAic Product, including to Real Estate Clients, (c) any breach by the Customer or any Permitted User of Section 1.4 or any use of the prophAic Product or Property Report by a person that does not meet the requirements set out in Section 1.4 or (d) any claim by any Real Estate Client against prophAic in relation to the prophAic Product or any Property Report or the Real Estate Client’s reliance thereon. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of prophAic at Customer’s expense.

OWNERSHIP
prophAic Technology. This is a subscription agreement for access to and use of the prophAic Product. Customer acknowledges that it is obtaining only a limited right to the prophAic Product and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that prophAic or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the prophAic Product, Documentation, Professional Services deliverables and any and all related and underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “prophAic Technology”). Except as expressly set forth in this Agreement, no rights in any prophAic Technology are granted to Customer. Further, Customer acknowledges that the prophAic Product is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the prophAic Product.

Feedback.

ustomer, from time to time, may submit comments, questions, compliments or suggestions or other feedback relating to prophAic’s products or services to prophAic (“Feedback”). prophAic may freely use Feedback in connection with any of its products or services, and may use anonymized Feedback for the purposes of promotion or website/media content (such as complements or testimonials), and prophAic may attribute a Customer or Permitted User’s name to such Feedback where specifically authorized by such person.

Aggregated Anonymous Data.

Notwithstanding anything to the contrary herein, Customer agrees that prophAic may obtain and aggregate technical and other data about Customer’s use of the prophAic Product that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”), and prophAic may use the Aggregated Anonymous Data to improve, support and operate the prophAic Product and otherwise for any business purpose during and after the term of this Agreement. For clarity, Section 3.3 does not give prophAic the right to identify Customer as the source of any Aggregated Anonymous Data.

SUBSCRIPTION TERM, FEES & PAYMENT
Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for additional one (1) year periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.

Fees and Payment.

All fees are as set forth in the applicable Order Form and shall be paid by Customer in Canadian dollars within thirty (30) days of invoice, unless otherwise specified in the applicable Order Form.
In the event of any early termination of this Agreement by the Customer other than as permitted by Section 5.2, or in the event of any early termination of this Agreement by prophAic as permitted by Section 5.2, then all fees applicable to the remainder of the Subscription Term, including all future monthly or annual charges for the Subscription Term, shall be accelerated and become immediately due and payable.
Except as expressly set forth in Section 6 (Limited Warranty) and Section 10 (Indemnification), all fees are non-refundable. prophAic reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term.
Customer is required to pay any sales, GST/HST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of prophAic.
Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
If it is determined at any time during or after the Subscription Term that access to the prophAic Product was granted to any person other than the specified and limited number of Permitted Users authorized under this agreement and any Order Form, then the Customer shall immediately become liable for an additional per user monthly or annual fee for each such non-permitted user, which additional fee shall apply to the full length of the Subscription Term.

Suspension of Service.

If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), prophAic reserves the right to suspend Customer’s access to the prophAic Product (and any related services) without liability to Customer until such amounts are paid in full.

TERM AND TERMINATION
Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms set out in each Order Form. If, after the termination of this Agreement, prophAic and Customer enter into a new Order Form, then this Agreement shall be automatically revived for the Subscription Term set out therein.

Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). In addition, prophAic may terminate this Agreement immediately if at any time it is discovered that:

the Customer or any Permitted User has provided access to the prophAic Product to any person other than the specified and limited number Permitted Users authorized under this agreement and any Order Form,
the Customer or any Permitted User is in breach of any of the restriction(s) set out herein in relation to the protection and non-disclosure of Confidential Information, or product use (including but not limited to the restrictions set out in Section 1.5 and 1.6;
any Permitted User no longer meets the requirements set out in Section 1.4 and the Customer does not immediately take all reasonable steps to notify prophAic and remove such Permitted User from having any access to the prophAic Product or Property Reports; or
any local real estate board of which the Customer or any Permitted User is a member either (i) terminates or does not approve its VOW Agreement with the Customer or its Permitted Users, or (ii) demands that prophAic no longer provide the prophAic Product or Property Reports to the Customer or it Permitted Users, whether by reason of discipline of the Customer or its Permitted Users or otherwise.

Effect of Termination. Upon any expiration or termination of this Agreement, Customer and each Permitted User shall immediately cease any and all use of and access to the prophAic Product (including any and all related prophAic Technology) and delete (or, at prophAic’s request, return) any and all copies of the Documentation, any prophAic passwords or access codes and any other prophAic Confidential Information that is in its possession or that is displayed or located on its website or promotional material (including social media). Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports and data sets exported from the prophAic Product prior to termination. Customer acknowledges that following termination it shall have no further access to any Customer Data input into the prophAic Product, and that prophAic may delete any such data as may have been stored by prophAic at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.5 (General Restrictions), 1.6 (Property Reports), 2.3 (Storage of Customer Data), 2.6 (Indemnification by Customer), 3 (Ownership), 4.2 (Fees and Payment), 5 (Term and Termination), 6.2 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10 (Indemnification), 11 (Confidential Information) and 13 (General Terms).

LIMITED WARRANTY
Limited Warranty. prophAic warrants, for Customer’s benefit only, that the prophAic Product will operate in substantial conformity with the applicable Documentation. prophAic’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for prophAic to use commercially reasonable efforts to correct the reported non-conformity, or if prophAic determines such remedy to be impracticable then either party may terminate the applicable Subscription Term and Customer shall receive as its sole remedy a refund of any fees Customer has pre-paid for use of the prophAic Product for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 6.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to Unpaid Subscriptions or other services or items provided on a no-charge or evaluation basis.

Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, THE PROPHAIC PRODUCT AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER PROPHAIC NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY OF INFORMATION PROVIDED IN PROPERTY REPORTS, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. PROPHAIC DOES NOT WARRANT THAT CUSTOMER’S USE OF THE PROPHAIC PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES PROPHAIC WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. PROPHAIC SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF PROPHAIC. PROPHAIC FURTHER ASSUMES NO LIABILITY FOR ANY CUSTOMER DATA THAT IS NOT PROPERLY TRANSMITTED, RECEIVED OR STORED BY ANY PARTY OTHER THAN PROPHAIC. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

SUPPORT.

During the applicable Subscription Term, Customer shall receive technical support by email communication by sending inquiries to info@prophaic.com. prophAic shall use commercially reasonable efforts to respond during normal business hours to Customer inquiries.

PROFESSIONAL SERVICES.

prophAic shall provide the Professional Services (if any) purchased in the applicable Order Form. The scope of Professional Services shall be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer shall pay prophAic at the per-hour rates set forth in the SOW (or, if not specified, at prophAic’s then-standard rates) for any excess services. Customer will reimburse prophAic for reasonable travel and lodging expenses as incurred. Customer may use anything delivered as part of the Professional Services in support of authorized use of the prophAic Product and subject to the terms regarding Customer’s rights to use the prophAic Product set forth in Section 1.2 (Access to prophAic Product) and the applicable SOW, but prophAic shall retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by prophAic (or its agents).

LIMITATION OF REMEDIES AND DAMAGES

Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, PROPHAIC’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO PROPHAIC DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.

Excluded Claims. “Excluded Claims” means any claim arising from (a) a Customer or Permitted User’s breach of Section 1.5 (General Restrictions) or Section 2 (Customer Data) or (b) a party’s breach of its obligations in Section 11 (Confidential Information).
Nature of Claims and Failure of Essential Purpose. The parties agree that the limitations specified in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

INDEMNIFICATION.

prophAic shall defend Customer from and against any claim by a third party alleging that the prophAic Product when used as authorized under this Agreement infringes a patent, copyright or trademark, and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by prophAic (including reasonable attorneys’ fees) resulting from such claim, provided that prophAic shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for prophAic to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the prophAic Product is (or in prophAic’s opinion is likely to be) limited or prohibited, if required by settlement or if prophAic determines such actions are reasonably necessary to avoid material liability, prophAic may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the prophAic Product; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by prophAic. The foregoing indemnification obligation of prophAic shall not apply: (1) if the prophAic Product is modified by any party other than prophAic, but solely to the extent the alleged infringement is caused by such modification; (2) if the prophAic Product is combined with products or processes not specified in the Documentation or provided by prophAic, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the prophAic Product; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within the prophAic Product; or (5) if Customer settles or makes any admissions with respect to a claim without prophAic’s prior written consent. THIS SECTION 10 SETS FORTH PROPHAIC’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

CONFIDENTIAL INFORMATION.

Except as otherwise specified in this Agreement, each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) (other than Real Property Information provided to prophAic by a Customer or Permitted User), constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any prophAic Technology, performance information relating to the prophAic Product, Property Reports, and the terms and conditions of this Agreement and each Order Form (including all pricing set out therein) shall be deemed Confidential Information of prophAic without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 11. For certainty, the Customer or Permitted User may disclose Property Reports to Real Estate Clients subject to the terms and restrictions set out in this Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

PUBLICITY.

prophAic may use Customer’s name, logo and marks to identify Customer as a customer of prophAic on prophAic’s website and other marketing materials. Where authorized by a Customer or any Permitted User, prophAic may use testimonials and compliments on prophAic’s website and other marketing materials.

GENERAL TERMS

Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.

Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the Province of Ontario and the country of Canada applicable therein, without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the courts of Ontario, Canada and both parties hereby submit to the personal jurisdiction of such courts.

Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

Entire Agreement. 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 and communications relating to the subject matter of this Agreement. Customer acknowledges that the prophAic Product is an on-line, subscription-based product, and that in order to provide improved customer experience prophAic may make changes to the prophAic Product, and prophAic will update the applicable Documentation accordingly. The terms described in the Security Policy may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but any such modifications will not materially decrease prophAic’s obligations as compared to those reflected in such terms as of the Effective Date).

Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, pandemic/epidemic, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

Subcontractors. prophAic may use the services of subcontractors and permit them to exercise the rights granted to prophAic in order to provide the prophAic Product and Professional Services under this Agreement, provided that prophAic remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the prophAic Product as required under this Agreement.

Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.