TERMS OF USE | PLATFORM

NavigatorCRE Master Subscription Agreement (OA Signed) 

 

This Master Subscription Agreement (“Agreement”) is entered into between NavigatorSRVS, Inc. dba NavigatorCRE (“NavigatorCRE”) and the customer identified in Order Agreement “OA” (“Customer”).  This Agreement sets forth the terms and conditions under which Customer may use the Services and permits Customer to purchase Services pursuant to Order Form referencing this Agreement.  Each party represents that the person signing this Agreement has the authority to bind such party to this Agreement. 

 

Accepted and agreed as of the effective date specified above (“Effective Date”) of Order Agreement “OA”. 

 

 

1. SERVICES 

1. Provision of Services.  Customer and End Users may access and use the Services during the Initial Subscription Term and any renewal Subscription Terms, as applicable, in accordance with this Agreement and the Documentation.  NavigatorCRE will provide the Service in accordance with the Service Level Agreement set forth in Exhibit A.  With respect to any use by End Users that are clients of Customer (as described in Section 12.7), the following additional terms shall apply:  (a) all use of the Services by Customer’s clients, and any of their acts and omissions, are deemed to be Customer’s use of the Services and Customer’s acts and omissions, (b) each such End User is legally bound by an agreement, which is at least as protective of NavigatorCRE, NavigatorCRE’s rights and the Services as this Agreement, (c) no such End User shall be a third-party beneficiary to this Agreement, and (d) as between NavigatorCRE and Customer, Customer Data shall be deemed to belong to Customer and no other party. 

1. Third-Party Services.  The Services allow Customer to import data from Third-Party Services.  By using the Services, Customer authorizes NavigatorCRE to transfer, store, and process Customer Data from End Users and Customer’s Third-Party Services accounts on its behalf.  If Customer uses a Third-Party Service, NavigatorCRE will not be responsible for any act or omission of the Third-Party Service, including the Third-Party Service’s access to, use, provision, modification, or deletion of Customer Data.  NavigatorCRE does not warrant or support any Third-Party Service.  Customer shall (a) comply with such Third-Party Services’ terms of use; and (b) indemnify, defend and hold NavigatorCRE and its Affiliates harmless from and against any and all third-party claims, and any related losses, liabilities, fines or expenses (including reasonably attorneys’ fees) incurred by NavigatorCRE or its Affiliates, relating to Customer’s compliance with such Third-Party Services’ terms of use or in connection with your use or installation of such Third-Party Services.  

1. Security & Privacy.  NavigatorCRE implements and maintains an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of Customer Data.  NavigatorCRE has certified its compliance with the EU-U.S. Privacy Shield and the Swiss-U.S. Privacy Shield Framework and will transfer, store, and process Customer Data in accordance with NavigatorCRE’s privacy policy.  Additionally, NavigatorCRE agrees to implement procedures per Exhibit B (Data Processing Addendum).  Customer agrees that NavigatorCRE may engage sub-processors with at least the same level protections as provided by NavigatorCRE hereunder.  Customer agrees that NavigatorCRE and its sub-processors may transfer, store, and process Customer Data in locations other than Customer’s country to the extent needed to provide the Services.  All such transfers shall comply with the provisions outlined herein. 

1. Software.  Some Services may allow Customer and End Users to download NavigatorCRE software, which may be updated automatically.  NavigatorCRE grants Customer a limited, non-exclusive right during the Term to use such software only to access the Services.   

1. Changes.  NavigatorCRE may, at its discretion, change or update the Services from time to time.  NavigatorCRE will notify Customer in advance of changes to the Services that materially reduce their functionality.   

1. Implementation Services.  The parties may enter into a SOW describing configuration, training, or other implementation services to be provided by NavigatorCRE or its contractors to Customer.  NavigatorCRE will be responsible for the provision of services specified in the SOW and Customer will be responsible for the provision of any payment and Customer-provided assistance specified in the SOW. 

1. Evaluations. 

1. Evaluation Offerings.  Customer’s use of Evaluation Offerings will be governed by this Agreement, as modified by this subsection.  Customer may access and use the Evaluation Offerings for the sole purpose of determining whether to subscribe for a commercial version of the Evaluation Offerings and subject to any time period and usage limits set forth on the applicable NavigatorCRE invoice.  If no time period is agreed upon prior to the commencement of any Evaluation Offerings, Customer’s use of the Evaluation Offerings will be subject to a time limit of thirty (30) days and any other use and/or other limitations as may be imposed by NavigatorCRE. 

1. Evaluation Disclaimer.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NAVIGATORCRE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, FOR EVALUATION OFFERINGS.  ALL EVALUATION OFFERINGS ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS AT CUSTOMER’S OWN RISK AND NAVIGATORCRE WILL HAVE NO LIABILITY ASSOCIATED WITH THE EVALUATION OFFERINGS.   

1. CUSTOMER USE OF SERVICES 

1. Subscriptions.  Except as set forth in the Order Form, Services are made available as subscriptions and additional End User subscriptions may be added during the Subscription Term at the then-applicable price of that subscription type, pro-rated for the remainder of the then-current Subscription Term.   

1. Customer Responsibilities.  Customer and End Users may only use the Services in accordance with this Agreement.  Customer will be responsible for any use of the Services through its account, including all use of the Services by Customer’s End Users.  Customer is responsible for designating an Administrator for its Services account, maintaining updated Administrator contact information, and managing access to the Administrator account.  Customer is responsible for maintaining secure access by End Users to the Services.  Each End User must have a subscription and Customer may not permit sharing of End User accounts and passwords. 

1. Compliance.  Customer will obtain any consents and comply with any laws necessary to allow the operation of the Services and to permit NavigatorCRE to process, store, and transfer Customer Data from End Users and Customer’s Third-Party Services accounts.   

1. Usage Limits.  Use of the Services may be subject to usage limits as set forth in Customer’s Order Form or the Documentation.   

1. Restrictions.  Customer will not (and will not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (b) modify or create derivative works based on the Services, (c) copy, rent, lease, distribute, time-share the Services or otherwise use the Services for the benefit of a third party, (d) remove or alter proprietary notices from the Service, (e) use the Service to create any other product or service, (f) breach or circumvent any security or authentication measures of the Service, (g) interfere with or disrupt any part of the Services, (h) submit viruses, worms, Trojan horses, corrupted files, or other destructive content to the Services, or (i) use a robot or other automated means to access the Services.   

1. Suspension.  NavigatorCRE may suspend Customer’s or End User’s right to use the Services if (a) Customer or End User’s use of the Services poses a security risk to or may adversely affect the Services, NavigatorCRE’s systems and infrastructure, or a third party, (b) Customer or End User’s use of the Services could subject NavigatorCRE to liability, or (c) Customer is in material breach of this Agreement.  NavigatorCRE will use commercially reasonable efforts to provide prompt notice of any impending suspension unless immediate suspension is necessary to comply with legal process, regulation, order or prevent material imminent harm to the Services or any third party, in which case NavigatorCRE will notify Customer to the extent allowed by applicable law of such suspension as soon as reasonably practicable thereafter.  NavigatorCRE will provide Customer a commercially reasonable opportunity to cure any issue prior to suspending Customer or End User’s right to use the Services, and in any case, any suspension will be narrowly tailored to mitigate the issue. 

1. INTELLECTUAL PROPERTY RIGHTS & DATA 

1. Reservation of Rights.  Except for the rights granted in Section 1.1, NavigatorCRE and its licensors own and reserve all right, title, and interest in and to the NavigatorCRE Technology, and all technology, materials and the inventions and pre-existing content incorporated therein, and all derivative works, modifications and enhancements thereto and all intellectual property rights in any of the foregoing.  As between Customer and NavigatorCRE, Customer owns the Customer Data and NavigatorCRE owns the NavigatorCRE Technology (including any related intellectual property rights and documentation pertaining thereto) subscribed for under this Agreement.  Except as expressly set forth otherwise in an SOW, NavigatorCRE reserves all rights in and to any work product or deliverables developed for Customer under an Order Form or SOW (the “Deliverables”), including but not limited to the right to publish the Deliverables under an open source license, to license the Deliverables under one or more proprietary licenses, or to license or resell the Deliverables to other customers.  For the avoidance of doubt, Customer and each End User hereby assigns to NavigatorCRE “as is” any feedback and other information communicated to NavigatorCRE related to any NavigatorCRE Technology or Deliverables, including suggestions, feature requests, bug fixes, errors, improvements and other subjects. 

1. Customer License and Enhancement Data.  Notwithstanding any other provision of this Agreement, (a) Customer grants NavigatorCRE and its contractors a limited, non-exclusive right to use, copy, create derivative works based on, and display the Customer Data as reasonably necessary for NavigatorCRE to provide, maintain, and improve the NavigatorCRE Technology; (b) NavigatorCRE may use Customer’s and its End Users’ Services usage history, statistics and telemetry (“Enhancement Data”) for NavigatorCRE’s internal analytical purposes related to its provision of Services, including to improve and enhance the NavigatorCRE Technology; and (c) NavigatorCRE may make information derived from its analysis of Enhancement Data publicly available on an aggregated and de-identified basis, provided that such information does not contain any personally-identifiable Customer Data.  For the sake of clarity, aggregated and de-identified data is not Confidential Information of Customer. 

1. Suggestions.  Customer agrees that with respect to any Suggestions, NavigatorCRE may, in its discretion and for any purpose, (a) use, modify, and incorporate into NavigatorCRE’s products and services and (b) license or sublicense the Suggestions without obligation to Customer. 

1. Customer List.  Unless Customer opts out, NavigatorCRE may use Customer’s name and logo to identify Customer as a NavigatorCRE customer on NavigatorCRE’s website and in other marketing materials so long as Customer’s name and logo do not appear with greater prominence than NavigatorCRE’s other customers.  To opt out, Customer shall send an email from its Administrator's email address to sales@navigatorcre.com with "Customer List Opt Out" in the subject line. 

1. FEES & PAYMENT  

1. Fees.  Customer will pay NavigatorCRE the fees for the Services set forth in the Order Form.  All payments are due in U.S. dollars via check or wire transfer unless otherwise indicated on the Order Form or invoice.  Customer is responsible for providing complete and accurate billing and contact information to NavigatorCRE and updating NavigatorCRE of any changes.  All fees paid are non-refundable and not subject to set-off. 

1. Invoicing & Payment.  Unless otherwise set forth in the Order Form or any SOW, all fees will be invoiced in advance.  All invoices issued under this Agreement are due and payable according to the payment terms in the Order Form, if applicable, or within 30 days from invoice send date.  If Customer provides NavigatorCRE with credit card information for payment, Customer acknowledges that an invoice may not be sent and Customer authorizes NavigatorCRE to charge the credit card for the Services listed in the Order Form for the Subscription Term or for additional subscriptions added for the Subscription Term.  If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void. 

1. Late Payments.  Past due amounts are subject to a finance charge of 1% per month (or the highest rate permitted by law) from the payment due date until paid in full.  Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by NavigatorCRE in collecting past due amounts.  NavigatorCRE may suspend or terminate the Services for material breach for fees that are past due. 

1. Taxes.  Customer is responsible for all taxes, except those directly relating to NavigatorCRE’s net income, gross receipts, or capital stock.  NavigatorCRE will invoice Customer for sales or value added tax when required to do so and Customer will pay the tax unless Customer provides NavigatorCRE with a valid tax exemption certificate authorized by the appropriate taxing authority.   

1. Future Functionality.  Customer agrees that it has not relied on the availability of any future functionality of the Service or any other future product or service in executing this Agreement or any Order Form.  Customer acknowledges that information provided by NavigatorCRE regarding future functionality should not be relied upon to make a purchase decision. 

1. TERM & TERMINATION 

1. Agreement Term.  The Agreement will remain in effect for the Term.  Upon the end of the Initial Subscription Term or renewal Subscription Term, as applicable, this Agreement shall renew at the then-current fee structure for successive renewal Subscription Terms of the same length unless either party provides written notice to the other party at least sixty (60) days prior to the then-current renewal date.   

1. Termination.  Either party may terminate this Agreement if (a) the other party is in material breach (including for a material breach of the SLA or material non-performance of work pursuant to any SOW) of the Agreement and fails to cure that breach within 30 days after receipt of written notice, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings.  NavigatorCRE may also terminate the Agreement (a) for non-payment of fees, (b) if it has the right to suspend the Services under Section 2.6, or (c) in order to comply with legal process, regulation, order or prevent material imminent harm to the Services or any third party. 

1. Effect of Termination.  If this Agreement expires or is terminated, then (a) the rights granted by one party to the other will cease immediately except as otherwise set forth in this Section, (b) after 90 days NavigatorCRE will have no obligation to maintain any Customer Data, and (c) the following Sections will survive: 3 (Intellectual Property Rights), 4 (Fees & Payment), 5.3 (Effect of Termination), 6 (Confidentiality), 7 (Disclaimers), 8 (Indemnity), 9 (Limitation of Liability), 10 (Disputes), 11 (General Provisions), 12 (Definitions).   

1. CONFIDENTIALITY 

1. Definition of Confidential Information.  “Confidential Information” means any business or technical information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement that is marked as confidential or would normally be considered confidential to a reasonable person under the circumstances.  The Confidential Information of NavigatorCRE includes this Agreement, any Order Form, and the NavigatorCRE Technology.  The Confidential Information of Customer includes the Customer Data.  Confidential Information will not include any information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party prior to receipt, (c) is obtained by the Receiving Party from a third party not under an obligation of confidentiality, or (d) is independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.   

1. Obligations.  The Receiving Party will use reasonable care to (a) not use the Disclosing Party’s Confidential Information for any purpose outside of the scope of this Agreement and (b) except as authorized or directed by Customer to provide Confidential Information to a Third-Party Service, limit access to the Disclosing Party’s Confidential Information to its and its Affiliates’ employees and contractors who need access to the Confidential Information for any purpose not outside of the scope of this Agreement and who have agreed to confidentiality provisions with the Receiving Party containing similar protections to the protections for Confidential Information in this Agreement.   

1. Compelled Disclosure.  Each party may disclose the other party’s Confidential Information when required by law or regulation so long as the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Disclosing Party’s cost to contest or limit the disclosure.  If the Receiving Party is compelled to disclose the Confidential Information, the Receiving Party will disclose the minimum extent of Confidential Information necessary. 

1. WARRANTIES AND DISCLAIMERS 

1. Customer Data.  Customer warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data as may be necessary to permit the use contemplated under this Agreement. 

1. NavigatorCRE Warranties.  NavigatorCRE warrants that (a) the Services will be provided in a professional and competent manner in accordance with industry standards, (b) the Services provided hereunder are and will be in compliance with all applicable federal, state and local laws and government rules and regulations, and (c) it has taken commercially reasonable measures (including the use of then-current industry standard security and anti-virus tools) designed to ensure that the Services will not cause any Illicit Code to be installed or introduced on Customer’s computer, telecommunication or other information systems.  Notwithstanding the foregoing, any such code included within the Services for the sole purpose of allowing NavigatorCRE to (A) perform license validation and enforcement or (B) access the Services remotely in order to perform its support and maintenance obligations shall not be considered Illicit Code.  In the event NavigatorCRE is not able to cure any breach of such warranty within 30 days of written notice thereof from Customer, Customer will at its option have the right to (i) terminate this Agreement and receive a refund of any fees Customer has prepaid for the Service that it has not received as of the date of the warranty claim or (ii) elect as Customer’s sole remedy to continue the time NavigatorCRE has to cure the defect and receive a reduction in fees or a credit to be agreed upon by both parties for each month thereafter that the defect remains uncured. 

1. General.  EXCEPT AS SET FORTH IN SECTION 7.2 ABOVE, TO THE FULLEST EXTENT PERMITTED BY LAW, NAVIGATORCRE AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS (A) MAKE NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR ANY OUTPUT FROM THE SERVICES, AND (B) DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR (II) THAT THE OUTPUT OF THE SERVICES IS ACCURATE OR RELIABLE.  THE SERVICES AND ANY OUTPUT FROM THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”   

1. Beta Services and Evaluation Offerings.  Despite anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any Beta Services or Evaluation Offerings, (b) Beta Services and Evaluation Offerings may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services and Evaluation Offerings may not be available or reliable, (d) Beta Services may not be subject to the same security or audits as the Services, and (e) NavigatorCRE provides Beta Services and Evaluation Offerings “as-is” and will have no liability arising out of or in connection with Beta Services or Evaluation Offerings.   

1. INDEMNIFICATION 

1. By Customer.  Customer will indemnify, defend and hold harmless NavigatorCRE and its Affiliates from and against all third-party claims, lawsuits, and demands, and all related costs (including reasonable attorneys’ fees), arising out of an allegation regarding (a) Customer Data, including but not limited to the validity of Customer’s rights to such Customer Data, (b) any use of the Services by any End Users that are clients of Customer (as described in Section 12.7), or (c) or use of the Services by Customer or End Users in violation of this Agreement, and will indemnify NavigatorCRE and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set forth in Section 8.3.   

1. By NavigatorCRE.  NavigatorCRE will indemnify, defend and hold harmless Customer from and against all third-party claims, lawsuits, and demands, and all related costs (including reasonable attorneys’ fees), arising out of an allegation that NavigatorCRE’s technology used to provide the Services infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement consented to as further set forth in Section 8.3.  In no event will NavigatorCRE have obligations or liability under this Section arising from: (a) use of the Services in a modified form or in combination with materials or technology not furnished by NavigatorCRE, and (b) any content, information, or data provided by Customer, End Users, or other third parties.  For any claim covered by this Section, NavigatorCRE will, at its election, either (i) procure the rights to use the portion of the Services alleged to be infringing, (ii) replace the alleged infringing portion of the Services with a non-infringing alternative, or (iii) terminate the allegedly infringing portion of the Services or this Agreement and provide Customer with a pro-rata refund of any pre-paid, unused fees. 

1. General.  The party seeking indemnification will promptly notify the other party of the claim and cooperate with the party in defending the claim.  The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed, and (b) the other party may join in the defense with its own counsel at its own expense.  THE INDEMNITIES ARE A PARTY’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. 

1. LIMITATION OF LIABILITY 

1. Limitation on Indirect Liability.  TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY NOR ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.   

1. Customer Responsibilities.  Customer is responsible for all login credentials, including usernames and passwords, for its Administrator and all End Users.  NavigatorCRE shall not be responsible for any damages, losses or liability to Customer, End Users, or anyone else, if such information is not kept confidential by Customer or its End Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services. 

1. Liability Cap.  NEITHER PARTY’S NOR ITS AFFILIATES’, SUPPLIERS’, AND DISTRIBUTORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT AND ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES AND OUTPUT OF THE SERVICES WILL EXCEED THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR CUSTOMER’S USE OF THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. 

1. Excluded Claims.  Section 9.1 and 9.2 do not apply with respect to claims arising under Section 2 (Customer Use of Services) and Section 4 (Fees & Payment).  

1. Application and Reliance.  The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law.  The provisions of this “Limitation of Liability” section allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement and the pricing for the Services.  

1. DISPUTES 

1. Informal Resolution.  NavigatorCRE wants to address Customer’s concerns and requests that Customer bring issues that may lead to a dispute to our attention immediately.  Before filing a claim, NavigatorCRE and Customer agree to try to resolve the dispute by providing notice to the other party and having the appropriate executives attempt to resolve the dispute through communication and discussion.  After 15 days, either party may bring a formal proceeding. 

1. Arbitration Agreement.  NavigatorCRE and Customer agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as further set forth below.  Any dispute will be administered by JAMS under its Streamlined Arbitration Rules & Procedures by one arbitrator.  The arbitration will take place in Seattle, WA in the English language.  Either party may bring a lawsuit in court for claims for injunctive relief to stop unauthorized use or abuse of the Services or claims of intellectual property infringement without first engaging in the informal resolution process described above.  NavigatorCRE and Customer consent to the exclusive jurisdiction and venue of the federal and state courts located in King County, Washington.   

1. GENERAL PROVISIONS 

1. Entire Agreement.  All attachments to the Agreement, SOWs, and Order Form executed by the parties are hereby incorporated into the Agreement by reference.  This Agreement constitutes the entire agreement between Customer and NavigatorCRE with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements.  Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties.  If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: Order Form, the SOW, the Agreement, and the Documentation.   

1. Governing Law.  This Agreement will be governed by laws of the State of Washington except for its conflicts of laws principles.  For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply. 

1. Notices.  Notices must be sent by email (to the individual primarily responsible for the parties’ relationship or as otherwise designated for receiving notices hereunder), first class mail or overnight courier and are deemed given when received.  Notices to NavigatorCRE by first-class mail or overnight courier must be sent to NavigatorSRVS, Inc., Attn: Legal Department, 500 Union Street, Suite 1000, Seattle, WA 98101. 

1. Assignment.  Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent, not to be unreasonably withheld; except, however, either party may assign this Agreement in its entirety, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Subject to the restrictions in this section, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.  Any other attempt to transfer or assign is void.  If a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then the other party may terminate this Agreement upon written notice.  In the event of a termination by NavigatorCRE, NavigatorCRE will offer a pro-rata refund of prepaid fees for the Services. 

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

1. Third-Party Beneficiaries.  There are no third-party beneficiaries under this Agreement. 

1. Construction.  Any ambiguity in the Agreement will be interpreted equitably without regard to which party drafted the Agreement.  “Including” and “include” will be construed to mean “including without limitation.” 

1. Force Majeure.  Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, labor disputes, governmental action, utilities failures, and Internet disturbance) that was beyond its reasonable control. 

1. Waiver.  No failure or delay by either party in exercising a right under this Agreement will constitute a waiver of that right.  A waiver of a default is not a waiver of any subsequent default. 

1. Severability.  If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties’ intention and only to the extent necessary to make the term enforceable.  The remaining provisions of the Agreement will remain in effect. 

1. Export Compliance.  The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer’s and its End Users’ use of the Services.  Customer will not permit End Users to use the Services from a U.S. embargoed country. 

1. DEFINITIONS 

1. “Administrator” means a Customer-designated End User who administers the Services account and has access to permissions and other sensitive settings. 

1. “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means the ability to direct the management and policies of an entity. 

1. “Beta Services” means products or features available to Customer on a trial, beta, early access, or similar basis. 

1. “Customer Data” means data and information submitted to the Services by Customer or its End Users, including data and information submitted to the Services from Third-Party Services authorized by Customer. 

1. “Documentation” means any NavigatorCRE-provided written documentation and policies. 

1. “Effective Date” means the earlier of the effective date or subscription start date set forth on Customer’s first Order Form. 

1. “End Users” means users of Customer’s Services account.  End Users may include Customer’s and its Affiliate’s employees, agents, and consultants, as well as clients of Customer that are subject to written agreements consistent with the obligations and restrictions applicable to Customer hereunder.   

1. “Evaluation Offerings” means Services provided by NavigatorCRE to Customer for a limited period on a free or discounted trial basis, including pilot programs.  

1. “Illicit Code” means any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code. 

1. “Initial Subscription Term” means the term for the applicable Services starting on the subscription start date set forth on Customer’s first Order Form and continuing for the period set forth in the Order Form.   

1. “NavigatorCRE Technology” means the Services, Documentation, and NavigatorCRE’s trademarks, logos, and other brand features, including, without limitation, any object or other software code, interoperability and functionality features, design attributes (e.g., the “look and feel” and user interface of the Services), workflows and screen layouts associated with the Services. 

1. “Order Form” means the ordering document or page for the Services. 

1. “Services” means the products and services ordered by Customer under an Order Form or otherwise provided by NavigatorCRE and used by Customer under this Agreement. 

1. “SOW” means statement of work. 

1. “Subscription Term” means the Initial Subscription Term or any renewal terms for the Services. 

1. “Suggestions” means feedback, comments, or suggestions that Customer or End Users provide to NavigatorCRE or its contractors. 

1. “Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (a) the last Subscription Term has expired or (b) until the Agreement is terminated. 

1. “Third-Party Services” means products or services offered by a third party that interoperate with the Services for which Customer has an account and has connected the account with the Services.