NavigatorCRE Terms of Service Agreement
This Terms of Service Agreement (“Agreement”) is a legal agreement entered into by and between Navigator Srvs, Inc. ("Navigator"), a Washington corporation, and any business or individual (“Customer”) that Navigator has authorized to use the NavigatorCRE Service and related services (as more particularly described below, the “Services”). Navigator and Customer are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
THIS AGREEMENT SHALL BECOME EFFECTIVE (“EFFECTIVE DATE”) AS FOLLOWS:
(A) IF CUSTOMER IS A NEW USER OF THE SERVICES, ON THE EARLIER OF (i) THE DATE ON WHICH CUSTOMER SIGNS A NAVIGATOR ORDER FORM (ii) THE DATE CUSTOMER FIRST ACCESSES OR USES THE SERVICES IN A PRODUCTION CAPACITY. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.
OR
(B) IF CUSTOMER IS A CURRENT USER OF THE SERVICES, THE DATE CUSTOMER FIRST ACCESSES OR USES THE SERVICES FOLLOWING PUBLICATION OF A NEW VERSION OF THIS AGREEMENT ON THE NAVIGATOR WEB SITE.
1. Definitions.
For the purposes of this Agreement, the following capitalized terms shall have the meanings set forth for each of them below:
“Affiliate” means, with respect to either Party, any entity that is controlled by such Party or under common control of a Party, where “control” means the power to direct or cause the direction of the management and policies of the organization, directly or indirectly, whether through ownership of voting securities, by contract or credit arrangement, as trustee or executor, or otherwise.
“Aggregated Data” means anonymized, aggregated and statistical data derived from the operation of the Services, that is created by or on behalf of Navigator and that does not reveal any personally identifying information, including, without limitation, the number of records in the Services, the number and types of transactions, configurations, and reports processed in the Services and the performance results for the Services. NavigatorCRE does not aggregated client data into a shared pool for any sharing, sale or marketing. Aggregated data that is opted in by customers can be shared at their sole discretion.
“Customer Data” means all data entered or stored by Customer, Customer’s End Users and Customer/s Affiliates on Navigator's host computer system when using the Services.
“Beta Services” means any services that Navigator does not make generally available to its customers (e.g., services subject to pre-production testing).
“Billing Period” means the subscription period that is covered by a single Subscription Fee payment. Unless specified otherwise in any applicable Order Acceptance, the Billing Period shall be a minimum of one year.
"Confidential Information" means (a) any software utilized by Navigator in the provision of the Services; (b) the Customer Data; (c) each Party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as "confidential" or "proprietary" or any other information that the receiving Party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or Parties).
“Documentation" means Navigator’s electronic and hardcopy user guides for the Services, which may be updated by Navigator from time to time.
“End User” means each individual that Customer has authorized to access and use the Services, via Customer’s account.
“Navigator CRE Service” means Navigator’s cloud-based, data management software platform for the commercial real estate industry, including Support.
“Order Acceptance” means the communication that Navigator sends to Customer indicating its acceptance of an order for Services, which may be in the form of a Navigator invoice. The Order Acceptance shall list the Services to which Customer has subscribed, any Premium Services to be delivered by Navigator, the timing and amount of the Subscription Fees and/or other other fees payable by Customer to Navigator for such Services and/or Premium Services and the applicable Subscription Term.
“Premium Services” means any services (e.g., data transition assistance services) specified to be provided on a non-subscription basis by Navigator in an Order Acceptance, which may or may not require Customer’s payment of additional fees.
“Subscription Term” means the time period specified in an Order Acceptance applicable to Customer’s subscription for Services.
“Services” means the NavigatorCRE Service, Support and/or any other subscription-based services specified to be provided by Navigator to Customer in an Order Acceptance, other than the Premium Services.
“Support” means the customer support services provided by Navigator applicable to the the NavigatorCRE Service, for no additional charge above the Subscription Fees.
“Term” means the term of this Agreement, which shall begin on the Effective Date and continue until terminated in the manner specified in Section 7 (Termination) below.
2. Services.
2.1. Provision of the Services. Navigator shall make any Services for which Customer has subscribed, as specified in each applicable Order Acceptance, available to Customer in accordance with the Documentation during the applicable Subscription Term, pursuant to this Agreement. Navigator shall also provide any Premium Services specified to be delivered in an Order Acceptance, in accordance with the timing and specification set forth in such Order Acceptance.
2.2. Customer Obligations. Customer is responsible for its use of the Services, including any use by its End Users and Affiliates, and their compliance with this Agreement. Without limiting the foregoing, Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of the Customer Data and Customer’s collection and use of the Customer Data; and (b) prevent unauthorized access to, or use of, the Services, and notify Navigator promptly of any such unauthorized access or use. Customer, including its End Users and Affiliates, may not: (i) use the Services in violation of any applicable laws; (ii) in connection with use of the Services, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) interfere with or disrupt performance of the Services or the data contained therein; or (iv) attempt to gain access to the Services or related systems or networks in a manner not set forth in the Documentation.
2.3. Modifications to the Services. Navigator may, subject to its compliance with Section 8.1 (Warranties), modify, add, or remove features or functions to or from the Services, or to provide programming fixes, enhancements, updates and upgrades to the software supporting delivery of the Services, with or without notice to Customer.
2.4. Beta Services. From time to time, Navigator may invite Customer to try Beta Services at no charge. Customer may accept or decline any such trial in Customer’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a similar description. Beta Services are for evaluation purposes and not for production use, are not “Services” under this Agreement, may not be supported by Navigator, are not subject to warranties and may be subject to additional terms. Navigator may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Navigator will have no liability for any harm or damage arising out of or in connection with Customer’s use of a Beta Service.
3. Fees and Payment.
3.1. Payment Terms. Unless specified otherwise in any applicable Order Acceptance, Customer shall pay Navigator, in advance, via check or electronic funds transfer to Navigator’s designated bank account the subscription fees (“Subscription Fees”) specified in such Order Acceptance for the upcoming Billing Period. In the event that Navigator has agreed to an invoice process for the payment of Subscription Fees, Navigator will invoice Customer for Services upon Order Acceptance. Each invoice is due and payable within thirty (30) days following the invoice date. Except as otherwise stated in an Order Acceptance, all Subscription Fees are quoted and payable in United States dollars and are based on the right to receive Services and not actual usage, and are non-refundable. Navigator may charge Customer interest on all late payments at the lower of 1.5% per month or the maximum interest permitted by applicable law, as well as its costs of collection. Any payment not received within thirty (30) days after the applicable due date shall be considered a material default under this Agreement and upon such occurrence, Navigator shall be entitled to suspend or terminate Customer’s right to receive the Services, with or without prior notice to Customer.
3.2. Payment by Affiliates. Subject to Navigator’s prior approval, Navigator will accept partial or complete payment of Subscription Fees and Taxes (defined below) from Customer’s Affiliates and/or any other third party approved by Navigator. Navigator’s approval of such a payment arrangement will not relieve Customer of its obligation to pay any amounts when properly due or any other obligations under this Agreement.
3.3. Increase in Fees. Customer will promptly pay Navigator additional Subscription Fees, at Navigator’s then-current rates, if Customer’s use of the Services exceeds any limits specified in any applicable Order Acceptance. Navigator may also, upon written notice to Customer, increase the Subscription Fees payable by Customer for Services specified in an Order Acceptance, which increase shall not become effective until the expiration of the then-current Subscription Term (i.e., at the beginning of a renewal term).
3.4. Taxes. Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with any purchases under this Agreement. For clarity, it is understood that Navigator is solely responsible for all taxes assessable against Navigator based on its income, property and employees.
4. Proprietary Rights.
4.1. Navigator Intellectual Property. Navigator owns all right, title and interest in and to the Services, Documentation and Aggregated Data. Subject to the limited rights expressly granted hereunder, Navigator reserves all rights, title and interest in and to the Services, Documentation and Aggregated Data including all related intellectual property rights.
4.2. License Grant. Navigator hereby grants Customer a non-exclusive, non-transferable, right to use the Services and Documentation, solely for the internal business purposes of Customer and Affiliates and solely during the Subscription Term, subject to the terms and conditions of this Agreement and within scope of use defined in the relevant Order Acceptance.
4.3. License Restrictions. Customer shall not, and shall ensure its End Users and Affiliates do not (i) modify, copy or create any derivative works based on the Services or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services or Documentation available to any third party, other than to Customer’s Affiliates and End Users as permitted herein; (iii) reverse engineer or decompile any portion of the Services or Documentation, including but not limited to, any software utilized by Navigator in the provision of the Services and Documentation, except to the extent required by any applicable law; (iv) access the Services or Documentation in order to build any competing products or services; or (v) copy any features, functions, integrations, interfaces or graphics of the Services or Documentation.
4.4. License to Use Feedback. Customer grants to Navigator and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Customer’s Affiliates relating to the operation of the Services.
5. Data Ownership and Use
5.1. Aggregated Data. Nothing herein shall be construed as prohibiting Navigator from utilizing the Aggregated Data for purposes of operating Navigator’s business, provided that such use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Services.
5.2. Customer Data. As between Customer and Navigator, Customer has sole ownership of all right, title and interest the Customer Data. Customer represents and warrants that it is entitled to use the Customer Data in connection with the Services, and such use will not be in violation of any contractual restrictions or third-party intellectual property rights.
5.3. Protection and Security. Navigator shall, during the Subscription Term maintain a formal security program in accordance with industry standards, that is designed to: (i) ensure the security and integrity of the Customer Data; (ii) protect against threats or hazards to the security or integrity of the Customer Data; and (iii) prevent unauthorized access to the Customer Data. During the Subscription Term, Navigator will also maintain a current certification with the U.S. Department of Commerce under the U.S.-European Union and U.S.-Switzerland Safe Harbor Frameworks.
5.4. Unauthorized Disclosure. If either Party believes that there has been a disclosure of Customer Data in a manner not authorized under this Agreement, such Party shall promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
6. Confidential Information
6.1. Confidentiality. A Party shall not disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement or with the other Party's prior written permission.
6.2. Protection. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
6.3. Compelled Disclosure. A disclosure by either Party of the other Party’s Confidential Information to the extent required by applicable law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party's cost, if the other Party wishes to contest the disclosure.
6.4. Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (ii) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) was independently developed by a Party without breach of any obligation owed to the other Party; or (iv) is received from a third party without breach of any obligation owed to the other Party.
7. Termination.
7.1. Termination for Convenience. Unless otherwise specified in an Order Acceptance, Customer may terminate a Subscription Term for convenience, by providing written notice to Navigator at least thirty (30) days prior Customer’s chosen termination date. Unless otherwise agreed in writing by Navigator, any termination under this Section shall not entitle Customer to any refund of prepaid Subscription Fees or relieve Customer of its obligation to pay non-cancellable Subscription Fees applicable to a future time period.
7.2. Termination for Cause. In the event of a material breach of this Agreement by either Party, the other Party shall have the right to terminate this Agreement, if the breaching Party fails to remedy such breach within thirty (30) days of its receipt of written notice of such breach from the other Party. Without limiting the foregoing, or any other remedies, Navigator may limit, suspend, or terminate Customer’s use of the Services, if (a) Navigator believes that Customer or any of Customer’s Affiliates is infringing any third party’s intellectual property rights, or is using the Services to engage in fraudulent, immoral, disruptive or illegal activities, or (b) if Navigator is required to do so by law.
7.3. Termination of Subscription Term. Upon termination of the Subscription Term, Customer shall cease accessing and/or using the Services and, except as specified in Section 7.5 (Retrieval of the Customer Data), Navigator shall have no obligation to maintain Customer’s user account or to forward any data to Customer or any third party. The termination of Customer’s right to use the Services howsoever occurring shall not terminate Customer’s obligation to pay any amounts owed by Customer to Navigator as of the date of such termination.
7.4. Termination of Agreement. Following the expiration or termination of the Subscription Term, either Party may terminate this Agreement, upon written notice to the other Party. The following Sections of this Agreement shall survive any such termination, howsoever occurring: 2.2, 3.1, 3.4, 4, 5, 6, 7, 8, 9 and 10.
7.5. Retrieval of the Customer Data. During the Subscription Term, Customer can extract any of the Customer Data, using the administrative components of the Services. For a period of thirty (30) days following termination of the Subscription Term, upon Customer’s request, Navigator will make the Customer Data available to Customer through the Services at no charge, solely for the purpose of permitting Customer to retrieve a copy of the Customer Data. After such thirty-day period, Navigator will have no obligation to maintain or provide Customer with the Customer Data and may thereafter, unless legally prohibited, delete all of the Customer Data. Customer data will be deleted immediately upon request from customer should they not want a data download grace period.
8. Warranties & Disclaimer
8.1. Warranties. Each Party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all applicable laws. Navigator warrants that during the Subscription Term (i) the Services shall perform materially in accordance with the Documentation; and (ii) the functionality of the Services will not be materially decreased.
8.2. Warranty Remedies. As Customer’s exclusive remedy and Navigator's sole liability for breach of the warranty set forth in Sections 8.1 (i) and (ii) above, (a) Navigator shall correct the non-conforming Services at no additional charge to Customer, or (b) in the event Navigator is unable to correct such deficiencies after good-faith efforts, Navigator shall refund to Customer amounts paid that are attributable to the defective Services from the date Navigator received such notice. To receive warranty remedies, Customer must promptly report deficiencies in writing to Navigator, but no later than thirty (30) days of the date the deficiency is first identified by Customer.
8.3. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NAVIGATOR MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. NAVIGATOR DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICES.
8.4. Indemnification. Customer shall defend, indemnify and hold Navigator and its Affiliates, including their officers, employees, contractors and agents (collectively, “Covered Parties”), harmless from and against any and all third party claims alleged or asserted against such Covered Parties, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) to the extent based upon, arising out of, or otherwise related to:
(a) Any breach by Customer, Customer’s End Users or Customer’s Affiliates of any of Customer’s warranties or covenants under this Agreement;
(b) Any allegation that Customer, Customer’s End Users or Customer’s Affiliates violated the rights of a third party in connection with this Agreement, including any allegation of infringement of any intellectual property or other property rights of any such third part;
(c) The failure to comply with any applicable privacy law and/or any other applicable law or regulation by Customer, Customer’s End Users or Customer’s Affiliates; and/or
(d) Any dispute between Customer, Customer’s End Users and/or Customer’s Affiliates and any third party with respect to ownership of or right to access the Customer Data.
9. Limitation of Liability.
9.1. Limitation of Navigator’s Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NAVIGATOR’S (OR NAVIGATOR’S SUPPLIERS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. EXCEPT WITH RESPECT TO ANY WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, NAVIGATOR SHALL HAVE NO LIABILITY WITH RESPECT TO CUSTOMER DATA.
9.2. Exclusion of Damages. EXCEPT WITH RESPECT TO CUSTOMER’S PAYMENT AND INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9.3. Federal Government End Use Provisions. Navigator provides the Services, including related software and technology, for federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202.3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a “need for” right not conveyed under these terms, it must negotiate with Navigator to determine whether there are acceptable terms for transferring additional rights. A mutually acceptable addendum specifically conveying such rights must be executed by the parties in order to convey such rights beyond those set forth herein.
9.4. Export Controls. Customer shall comply with all export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and Customer shall not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. Customer represents and warrants that it is not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that it will otherwise comply with all applicable export control laws.
10. Miscellaneous.
10.1. Applicable Law and Venue. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of Washington and where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each case without regard to (a) conflicts of laws principles, and (b) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the Parties shall submit to the exclusive jurisdiction of and venue in the Superior Court of King County, Washington, or the Federal District Court for the Western District of Washington, and appeal courts therefrom.
10.2. Entire Agreement. This Agreement, including each Order Acceptance, constitutes the entire agreement between the Parties with respect to its subject matter. In the event of a conflict, the provisions of an Order Acceptance shall take precedence over any other provisions of this Agreement. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
10.3. Waiver and Severability. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the waiver is to be asserted. 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.
10.4. Assignment. Customer may not assign, delegate or transfer this Agreement in whole or in part, without Navigator’s prior written consent.
10.5. Amendments.
Navigator may, in its sole discretion, supplement or modify this Agreement upon written notice to Customer. Any new or modified version of this Agreement will be effective upon the earlier of Customer’s acceptance of those terms or Customer’s continued use of the Services following publication of such modified version on Navigator’s website. If Customer does not agree to be bound by any such changes to this Agreement, Customer’s sole and exclusive remedy is to immediately stop all use of the Services. Any other modifications to this Agreement must be in writing and executed by duly authorized representatives of each of the Parties. No terms or conditions stated in Customer’s purchase order or in any of Customer’s other ordering documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
10.6. Publicity. During the Term, Navigator may use Customer’s business name and logo in lists of its customers, on marketing materials and on its website.
10.7. Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Navigator’s or Customer’s employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.8. Copyright Complaints. Navigator will to respond to all notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act). Navigator does not permit material infringing copyright law on its equipment or network, and reserves the right to remove from Navigator's servers and/or prevent the transmission via the Services of any content that infringes any third party’s copyright or other intellectual property rights or otherwise violates the terms of this Agreement.
This Terms of Service Agreement (“Agreement”) is a legal agreement entered into by and between Navigator Srvs, Inc. ("Navigator"), a Washington corporation, and any business or individual (“Customer”) that Navigator has authorized to use the NavigatorCRE Service and related services (as more particularly described below, the “Services”). Navigator and Customer are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
THIS AGREEMENT SHALL BECOME EFFECTIVE (“EFFECTIVE DATE”) AS FOLLOWS:
(A) IF CUSTOMER IS A NEW USER OF THE SERVICES, ON THE EARLIER OF (i) THE DATE ON WHICH CUSTOMER SIGNS A NAVIGATOR ORDER FORM (ii) THE DATE CUSTOMER FIRST ACCESSES OR USES THE SERVICES IN A PRODUCTION CAPACITY. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.
OR
(B) IF CUSTOMER IS A CURRENT USER OF THE SERVICES, THE DATE CUSTOMER FIRST ACCESSES OR USES THE SERVICES FOLLOWING PUBLICATION OF A NEW VERSION OF THIS AGREEMENT ON THE NAVIGATOR WEB SITE.
1. Definitions.
For the purposes of this Agreement, the following capitalized terms shall have the meanings set forth for each of them below:
“Affiliate” means, with respect to either Party, any entity that is controlled by such Party or under common control of a Party, where “control” means the power to direct or cause the direction of the management and policies of the organization, directly or indirectly, whether through ownership of voting securities, by contract or credit arrangement, as trustee or executor, or otherwise.
“Aggregated Data” means anonymized, aggregated and statistical data derived from the operation of the Services, that is created by or on behalf of Navigator and that does not reveal any personally identifying information, including, without limitation, the number of records in the Services, the number and types of transactions, configurations, and reports processed in the Services and the performance results for the Services. NavigatorCRE does not aggregated client data into a shared pool for any sharing, sale or marketing. Aggregated data that is opted in by customers can be shared at their sole discretion.
“Customer Data” means all data entered or stored by Customer, Customer’s End Users and Customer/s Affiliates on Navigator's host computer system when using the Services.
“Beta Services” means any services that Navigator does not make generally available to its customers (e.g., services subject to pre-production testing).
“Billing Period” means the subscription period that is covered by a single Subscription Fee payment. Unless specified otherwise in any applicable Order Acceptance, the Billing Period shall be a minimum of one year.
"Confidential Information" means (a) any software utilized by Navigator in the provision of the Services; (b) the Customer Data; (c) each Party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as "confidential" or "proprietary" or any other information that the receiving Party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or Parties).
“Documentation" means Navigator’s electronic and hardcopy user guides for the Services, which may be updated by Navigator from time to time.
“End User” means each individual that Customer has authorized to access and use the Services, via Customer’s account.
“Navigator CRE Service” means Navigator’s cloud-based, data management software platform for the commercial real estate industry, including Support.
“Order Acceptance” means the communication that Navigator sends to Customer indicating its acceptance of an order for Services, which may be in the form of a Navigator invoice. The Order Acceptance shall list the Services to which Customer has subscribed, any Premium Services to be delivered by Navigator, the timing and amount of the Subscription Fees and/or other other fees payable by Customer to Navigator for such Services and/or Premium Services and the applicable Subscription Term.
“Premium Services” means any services (e.g., data transition assistance services) specified to be provided on a non-subscription basis by Navigator in an Order Acceptance, which may or may not require Customer’s payment of additional fees.
“Subscription Term” means the time period specified in an Order Acceptance applicable to Customer’s subscription for Services.
“Services” means the NavigatorCRE Service, Support and/or any other subscription-based services specified to be provided by Navigator to Customer in an Order Acceptance, other than the Premium Services.
“Support” means the customer support services provided by Navigator applicable to the the NavigatorCRE Service, for no additional charge above the Subscription Fees.
“Term” means the term of this Agreement, which shall begin on the Effective Date and continue until terminated in the manner specified in Section 7 (Termination) below.
2. Services.
2.1. Provision of the Services. Navigator shall make any Services for which Customer has subscribed, as specified in each applicable Order Acceptance, available to Customer in accordance with the Documentation during the applicable Subscription Term, pursuant to this Agreement. Navigator shall also provide any Premium Services specified to be delivered in an Order Acceptance, in accordance with the timing and specification set forth in such Order Acceptance.
2.2. Customer Obligations. Customer is responsible for its use of the Services, including any use by its End Users and Affiliates, and their compliance with this Agreement. Without limiting the foregoing, Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of the Customer Data and Customer’s collection and use of the Customer Data; and (b) prevent unauthorized access to, or use of, the Services, and notify Navigator promptly of any such unauthorized access or use. Customer, including its End Users and Affiliates, may not: (i) use the Services in violation of any applicable laws; (ii) in connection with use of the Services, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) interfere with or disrupt performance of the Services or the data contained therein; or (iv) attempt to gain access to the Services or related systems or networks in a manner not set forth in the Documentation.
2.3. Modifications to the Services. Navigator may, subject to its compliance with Section 8.1 (Warranties), modify, add, or remove features or functions to or from the Services, or to provide programming fixes, enhancements, updates and upgrades to the software supporting delivery of the Services, with or without notice to Customer.
2.4. Beta Services. From time to time, Navigator may invite Customer to try Beta Services at no charge. Customer may accept or decline any such trial in Customer’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a similar description. Beta Services are for evaluation purposes and not for production use, are not “Services” under this Agreement, may not be supported by Navigator, are not subject to warranties and may be subject to additional terms. Navigator may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Navigator will have no liability for any harm or damage arising out of or in connection with Customer’s use of a Beta Service.
3. Fees and Payment.
3.1. Payment Terms. Unless specified otherwise in any applicable Order Acceptance, Customer shall pay Navigator, in advance, via check or electronic funds transfer to Navigator’s designated bank account the subscription fees (“Subscription Fees”) specified in such Order Acceptance for the upcoming Billing Period. In the event that Navigator has agreed to an invoice process for the payment of Subscription Fees, Navigator will invoice Customer for Services upon Order Acceptance. Each invoice is due and payable within thirty (30) days following the invoice date. Except as otherwise stated in an Order Acceptance, all Subscription Fees are quoted and payable in United States dollars and are based on the right to receive Services and not actual usage, and are non-refundable. Navigator may charge Customer interest on all late payments at the lower of 1.5% per month or the maximum interest permitted by applicable law, as well as its costs of collection. Any payment not received within thirty (30) days after the applicable due date shall be considered a material default under this Agreement and upon such occurrence, Navigator shall be entitled to suspend or terminate Customer’s right to receive the Services, with or without prior notice to Customer.
3.2. Payment by Affiliates. Subject to Navigator’s prior approval, Navigator will accept partial or complete payment of Subscription Fees and Taxes (defined below) from Customer’s Affiliates and/or any other third party approved by Navigator. Navigator’s approval of such a payment arrangement will not relieve Customer of its obligation to pay any amounts when properly due or any other obligations under this Agreement.
3.3. Increase in Fees. Customer will promptly pay Navigator additional Subscription Fees, at Navigator’s then-current rates, if Customer’s use of the Services exceeds any limits specified in any applicable Order Acceptance. Navigator may also, upon written notice to Customer, increase the Subscription Fees payable by Customer for Services specified in an Order Acceptance, which increase shall not become effective until the expiration of the then-current Subscription Term (i.e., at the beginning of a renewal term).
3.4. Taxes. Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with any purchases under this Agreement. For clarity, it is understood that Navigator is solely responsible for all taxes assessable against Navigator based on its income, property and employees.
4. Proprietary Rights.
4.1. Navigator Intellectual Property. Navigator owns all right, title and interest in and to the Services, Documentation and Aggregated Data. Subject to the limited rights expressly granted hereunder, Navigator reserves all rights, title and interest in and to the Services, Documentation and Aggregated Data including all related intellectual property rights.
4.2. License Grant. Navigator hereby grants Customer a non-exclusive, non-transferable, right to use the Services and Documentation, solely for the internal business purposes of Customer and Affiliates and solely during the Subscription Term, subject to the terms and conditions of this Agreement and within scope of use defined in the relevant Order Acceptance.
4.3. License Restrictions. Customer shall not, and shall ensure its End Users and Affiliates do not (i) modify, copy or create any derivative works based on the Services or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services or Documentation available to any third party, other than to Customer’s Affiliates and End Users as permitted herein; (iii) reverse engineer or decompile any portion of the Services or Documentation, including but not limited to, any software utilized by Navigator in the provision of the Services and Documentation, except to the extent required by any applicable law; (iv) access the Services or Documentation in order to build any competing products or services; or (v) copy any features, functions, integrations, interfaces or graphics of the Services or Documentation.
4.4. License to Use Feedback. Customer grants to Navigator and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Customer’s Affiliates relating to the operation of the Services.
5. Data Ownership and Use
5.1. Aggregated Data. Nothing herein shall be construed as prohibiting Navigator from utilizing the Aggregated Data for purposes of operating Navigator’s business, provided that such use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Services.
5.2. Customer Data. As between Customer and Navigator, Customer has sole ownership of all right, title and interest the Customer Data. Customer represents and warrants that it is entitled to use the Customer Data in connection with the Services, and such use will not be in violation of any contractual restrictions or third-party intellectual property rights.
5.3. Protection and Security. Navigator shall, during the Subscription Term maintain a formal security program in accordance with industry standards, that is designed to: (i) ensure the security and integrity of the Customer Data; (ii) protect against threats or hazards to the security or integrity of the Customer Data; and (iii) prevent unauthorized access to the Customer Data. During the Subscription Term, Navigator will also maintain a current certification with the U.S. Department of Commerce under the U.S.-European Union and U.S.-Switzerland Safe Harbor Frameworks.
5.4. Unauthorized Disclosure. If either Party believes that there has been a disclosure of Customer Data in a manner not authorized under this Agreement, such Party shall promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
6. Confidential Information
6.1. Confidentiality. A Party shall not disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement or with the other Party's prior written permission.
6.2. Protection. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
6.3. Compelled Disclosure. A disclosure by either Party of the other Party’s Confidential Information to the extent required by applicable law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party's cost, if the other Party wishes to contest the disclosure.
6.4. Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (ii) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) was independently developed by a Party without breach of any obligation owed to the other Party; or (iv) is received from a third party without breach of any obligation owed to the other Party.
7. Termination.
7.1. Termination for Convenience. Unless otherwise specified in an Order Acceptance, Customer may terminate a Subscription Term for convenience, by providing written notice to Navigator at least thirty (30) days prior Customer’s chosen termination date. Unless otherwise agreed in writing by Navigator, any termination under this Section shall not entitle Customer to any refund of prepaid Subscription Fees or relieve Customer of its obligation to pay non-cancellable Subscription Fees applicable to a future time period.
7.2. Termination for Cause. In the event of a material breach of this Agreement by either Party, the other Party shall have the right to terminate this Agreement, if the breaching Party fails to remedy such breach within thirty (30) days of its receipt of written notice of such breach from the other Party. Without limiting the foregoing, or any other remedies, Navigator may limit, suspend, or terminate Customer’s use of the Services, if (a) Navigator believes that Customer or any of Customer’s Affiliates is infringing any third party’s intellectual property rights, or is using the Services to engage in fraudulent, immoral, disruptive or illegal activities, or (b) if Navigator is required to do so by law.
7.3. Termination of Subscription Term. Upon termination of the Subscription Term, Customer shall cease accessing and/or using the Services and, except as specified in Section 7.5 (Retrieval of the Customer Data), Navigator shall have no obligation to maintain Customer’s user account or to forward any data to Customer or any third party. The termination of Customer’s right to use the Services howsoever occurring shall not terminate Customer’s obligation to pay any amounts owed by Customer to Navigator as of the date of such termination.
7.4. Termination of Agreement. Following the expiration or termination of the Subscription Term, either Party may terminate this Agreement, upon written notice to the other Party. The following Sections of this Agreement shall survive any such termination, howsoever occurring: 2.2, 3.1, 3.4, 4, 5, 6, 7, 8, 9 and 10.
7.5. Retrieval of the Customer Data. During the Subscription Term, Customer can extract any of the Customer Data, using the administrative components of the Services. For a period of thirty (30) days following termination of the Subscription Term, upon Customer’s request, Navigator will make the Customer Data available to Customer through the Services at no charge, solely for the purpose of permitting Customer to retrieve a copy of the Customer Data. After such thirty-day period, Navigator will have no obligation to maintain or provide Customer with the Customer Data and may thereafter, unless legally prohibited, delete all of the Customer Data. Customer data will be deleted immediately upon request from customer should they not want a data download grace period.
8. Warranties & Disclaimer
8.1. Warranties. Each Party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all applicable laws. Navigator warrants that during the Subscription Term (i) the Services shall perform materially in accordance with the Documentation; and (ii) the functionality of the Services will not be materially decreased.
8.2. Warranty Remedies. As Customer’s exclusive remedy and Navigator's sole liability for breach of the warranty set forth in Sections 8.1 (i) and (ii) above, (a) Navigator shall correct the non-conforming Services at no additional charge to Customer, or (b) in the event Navigator is unable to correct such deficiencies after good-faith efforts, Navigator shall refund to Customer amounts paid that are attributable to the defective Services from the date Navigator received such notice. To receive warranty remedies, Customer must promptly report deficiencies in writing to Navigator, but no later than thirty (30) days of the date the deficiency is first identified by Customer.
8.3. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NAVIGATOR MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. NAVIGATOR DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICES.
8.4. Indemnification. Customer shall defend, indemnify and hold Navigator and its Affiliates, including their officers, employees, contractors and agents (collectively, “Covered Parties”), harmless from and against any and all third party claims alleged or asserted against such Covered Parties, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) to the extent based upon, arising out of, or otherwise related to:
(a) Any breach by Customer, Customer’s End Users or Customer’s Affiliates of any of Customer’s warranties or covenants under this Agreement;
(b) Any allegation that Customer, Customer’s End Users or Customer’s Affiliates violated the rights of a third party in connection with this Agreement, including any allegation of infringement of any intellectual property or other property rights of any such third part;
(c) The failure to comply with any applicable privacy law and/or any other applicable law or regulation by Customer, Customer’s End Users or Customer’s Affiliates; and/or
(d) Any dispute between Customer, Customer’s End Users and/or Customer’s Affiliates and any third party with respect to ownership of or right to access the Customer Data.
9. Limitation of Liability.
9.1. Limitation of Navigator’s Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NAVIGATOR’S (OR NAVIGATOR’S SUPPLIERS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. EXCEPT WITH RESPECT TO ANY WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, NAVIGATOR SHALL HAVE NO LIABILITY WITH RESPECT TO CUSTOMER DATA.
9.2. Exclusion of Damages. EXCEPT WITH RESPECT TO CUSTOMER’S PAYMENT AND INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9.3. Federal Government End Use Provisions. Navigator provides the Services, including related software and technology, for federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202.3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a “need for” right not conveyed under these terms, it must negotiate with Navigator to determine whether there are acceptable terms for transferring additional rights. A mutually acceptable addendum specifically conveying such rights must be executed by the parties in order to convey such rights beyond those set forth herein.
9.4. Export Controls. Customer shall comply with all export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and Customer shall not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. Customer represents and warrants that it is not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that it will otherwise comply with all applicable export control laws.
10. Miscellaneous.
10.1. Applicable Law and Venue. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of Washington and where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each case without regard to (a) conflicts of laws principles, and (b) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the Parties shall submit to the exclusive jurisdiction of and venue in the Superior Court of King County, Washington, or the Federal District Court for the Western District of Washington, and appeal courts therefrom.
10.2. Entire Agreement. This Agreement, including each Order Acceptance, constitutes the entire agreement between the Parties with respect to its subject matter. In the event of a conflict, the provisions of an Order Acceptance shall take precedence over any other provisions of this Agreement. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
10.3. Waiver and Severability. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the waiver is to be asserted. 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.
10.4. Assignment. Customer may not assign, delegate or transfer this Agreement in whole or in part, without Navigator’s prior written consent.
10.5. Amendments.
Navigator may, in its sole discretion, supplement or modify this Agreement upon written notice to Customer. Any new or modified version of this Agreement will be effective upon the earlier of Customer’s acceptance of those terms or Customer’s continued use of the Services following publication of such modified version on Navigator’s website. If Customer does not agree to be bound by any such changes to this Agreement, Customer’s sole and exclusive remedy is to immediately stop all use of the Services. Any other modifications to this Agreement must be in writing and executed by duly authorized representatives of each of the Parties. No terms or conditions stated in Customer’s purchase order or in any of Customer’s other ordering documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
10.6. Publicity. During the Term, Navigator may use Customer’s business name and logo in lists of its customers, on marketing materials and on its website.
10.7. Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Navigator’s or Customer’s employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.8. Copyright Complaints. Navigator will to respond to all notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act). Navigator does not permit material infringing copyright law on its equipment or network, and reserves the right to remove from Navigator's servers and/or prevent the transmission via the Services of any content that infringes any third party’s copyright or other intellectual property rights or otherwise violates the terms of this Agreement.
