Terms & Conditions

Updated as of: October 31st, 2020

WHITEROCK AI TERMS & CONDITIONS | UPDATED AS OF: OCTOBER 31ST, 2020

1. License. (a) This Agreement between Whiterock AI, Inc. (“Whiterock AI”) and Licensee concerns one or more electronic databases developed and maintained by Whiterock AI each consisting of (1) a proprietary database (the "Database") of residential real estate information, including but not limited to, the information, text, photographic and other images and data contained therein (collectively, the “Information”), (2) forecasts, evaluations, simulations, assessments, models, processes, methods, techniques, applications, procedures, formulae, algorithms and other analyses related to real estate or securities, including but not limited to those related to the Licensee’s portfolio or otherwise resulting from the performance of services rendered in connection with any consulting agreement between Whiterock AI and Licensee (the “Analysis”) and (3) residential property reports, which may contain the Analysis (the “Whiterock AI Property Reports”). Those portions of the Software, Database, Analysis and Whiterock AI Property Reports that are licensed hereunder, including any updates or modifications thereto, and any information derived from the use of the Database, Analysis or Whiterock AI Property Reports, including as a result of the verification of any portion of the Information, Analysis or Whiterock AI Property Reports by Licensee, are collectively referred to herein as the “Licensed Product.” (b) During the term of this Agreement, Whiterock AI hereby grants to Licensee a nonexclusive, nontransferable license to use only those portions of the Licensed Product that are expressly identified on the Subscription Form to which these Whiterock AI Terms and Conditions are attached, subject to and in accordance with the terms of this Agreement. (c) The Licensed Product may be used by no more than the number of users set forth on the Subscription Form and, except as set forth below, only at the site(s) specifically identified herein. Except where Licensee is an individual, and therefore the sole Authorized User, all of such users (the “Authorized Users”) must be individuals (1) employed by Licensee or an Exclusive Contractor of Licensee at a site identified on the Subscription Form and (2) included on Whiterock AI’s list of Authorized Users and associated sites for the Licensed Product. Licensee understands that all individuals that benefit from the Licensed Product at each licensed site, which for the avoidance of doubt includes any broker, agent, researcher, analyst, appraiser, surveyor, valuer, investment professional (including those making/assisting with investment or lending decisions), advisor, underwriter, asset manager, sales or other similar personnel (including, but not limited to, managers or directors managing such personnel) must be an Authorized User and Licensee agrees to notify Whiterock AI if the number of such individuals at a site exceeds the number of Authorized Users set forth in this Agreement. An “Exclusive Contractor” is defined as an individual person working solely for Licensee and not also for themselves or another company with commercial real estate information needs and performing substantially the same services for Licensee as an employee of Licensee. (d) Licensee will ensure that access to and use of the Licensed Product, and the user names and passwords (collectively, the “Passcodes”) and any other authentication method used to access the Licensed Product are available only to Authorized Users, and will not allow anyone other than an Authorized User access to the Licensed Product or Passcodes for any reason.

2. Use. (a) Subject to the prohibitions set forth below, during the term of this Agreement, Licensee may, in the ordinary course of business: (1) use the Licensed Product for Licensee’s internal research purposes; and (2) use the Database (A) to provide information regarding particular properties to its clients and prospective clients; (B) to market particular properties, and (C) to support its valuation, appraisal or counseling regarding a specific property. Licensee may also, in the ordinary course of its business share or distribute to clients limited amounts of Information and limited excerpts and discrete portions of Analysis, including limited excerpts and discrete portions from Whiterock AI Property Reports (“Whiterock AI Excerpts”) that are contained in or incidental to its own reports, analyses or presentations for clients (“Client Materials”), provided that: (i) such Whiterock AI Excerpts are only supportive of the substance of the Client Materials; (ii) Licensee shall be liable for any such distribution of the Whiterock AI Excerpts; (iii) Licensee shall always acknowledge Whiterock AI as the source of the Whiterock AI Excerpts within the Client Materials; (iv) the Client Materials shall not include full copies or substantial portions of any Whiterock AI Property Reports; and (v) the Client Materials only contain limited amounts of building-specific and tenant-specific Information and are not commercially or generally distributed. Subject to the provisions set forth below, Licensee may print Information or copy Information into word processing and presentation programs (or other software programs with the express written consent of Whiterock AI), so long as the level of Information being printed or copied is reasonably tailored for Licensee’s purposes, insubstantial and used in compliance with this Section. (b) Except as set forth in Section 2(a), Licensee shall not distribute, disclose, copy, reproduce, make available, communicate to the public by telecommunication, display, publish, transmit, assign, sublicense, transfer, provide access to, use or sell, directly or indirectly (including in electronic form), any portion of the Licensed Product, or modify, adapt or create derivative works of the Licensed Product. (c) Notwithstanding any other provision herein, Licensee shall not: (1) upload, post or otherwise transmit any portion of the Licensed Product on, or provide access to any portion of the Licensed Product through, the Internet, any bulletin board system, any electronic network, any listing service or any other data sharing arrangement not restricted exclusively to Licensee and the Authorized Users, except that (i) Licensee may e-mail a report containing Information or Whiterock AI Excerpts that complies with Section 2(a), to a limited number of its clients and prospective clients; (2) use any portion of the Licensed Product to create, directly or indirectly, any database or product; (3) access or use the Licensed Product if you are a direct or indirect competitor of Whiterock AI or provide any portion of the Licensed Product to any direct or indirect competitor of Whiterock AI; (4) store, copy or export any portion of the Licensed Product into any database or other software program, except as set forth in Section 2(a); (5) modify, merge, scrape, disassemble or reverse engineer any portion of the Licensed Product; (6) use, reproduce, publish or compile any Information or Analysis for the purpose of selling or licensing such information or making such information publicly available; (7) use or distribute Information or Analysis that has been verified or confirmed by Licensee for the purpose of developing or contributing to the development of any database, product or service; (8) use any portion of the Licensed Product in a manner that would violate any U.S., Canadian, international, provincial, state or local law, regulation, rule, ordinance or common-law principle, including real estate practice, competition, marketing, advertising, defamation, securities, spam and privacy laws; or (9)(A) use any portion of the Licensed Product in any securities offering materials, registration statement, prospectus or other filing with the U.S. Securities and Exchange Commission or a foreign securities regulator (or other materials in each case), (B) incorporate by reference any portion of the Licensed Product into any such registration statement, prospectus or other filing or (C) use any portion of the Licensed Product in any filing with any federal, provincial, state, local or foreign governmental authority; each case of (A), (B) and (C) being in connection with the offer or sale of securities.

3. Ownership. Licensee acknowledges that the Information is comprised of data that is owned by Whiterock AI and its licensors and that Whiterock AI and its licensors have and shall retain exclusive ownership of all proprietary rights to the Licensed Product, including all U.S., Canadian and international intellectual property and other rights such as patents, trademarks, copyrights and trade secrets. This is a license agreement and not an agreement for sale. Licensee shall have no right or interest in any portion of the Licensed Product except the right to use the Licensed Product as set forth herein. Licensee acknowledges that the Software, Database, Analysis, Information and Licensed Product constitute the valuable property and confidential copyrighted information of Whiterock AI and its licensors (collectively, the “Proprietary Information”) Licensee shall be liable for any violation of the provisions of this Agreement by any Authorized User and by Licensee’s employees, Exclusive Contractors, affiliates and agents and for any unauthorized use of the Licensed Product by such persons. Without Whiterock AI’s consent, Licensee may not use or reproduce any trademark, service mark or trade name of Whiterock AI or its licensors.

4. Term. The term of this Agreement shall begin on the Start Date, shall continue for the initial term specified on the Subscription Form (the “Initial Term”), and shall expire at the end of such Initial Term on the last day of the calendar month in which the Start Date occurred, unless earlier terminated pursuant to the terms hereof. This Agreement shall continue thereafter for successive periods of one (1) year (each such successive period being a “Renewal Term”) commencing on the last day of the Initial Term or any Renewal Term, unless at least thirty (30) days prior to the last day of the Initial Term or any Renewal Term, either party has provided the other written notice of an intent not to renew. Licensee acknowledges that it is responsible for payment of License Fees (as defined below) pursuant to Section 5 for the entire Renewal Term unless the Agreement is terminated in accordance with the notice provisions of this Section. The “Start Date” shall be the date of dissemination by Whiterock AI of a Passcode for such Licensed Product to Licensee; provided, that for existing customers with Passcodes, the “Start Date” shall be the date the Agreement is fully executed

5. License Fees. Licensee agrees to pay the License Fees and all other fees set forth in this Agreement, which are priced in U.S. dollars and shall be paid in U.S. dollars (the “License Fees”). Licensee’s obligation to pay such fees shall begin on the Start Date. In addition to anything set forth herein, Whiterock AI may: (a) on each anniversary of the last day of the calendar month in which the Start Date occurred, increase the License Fees by a percentage equal to the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U) for the previous twelve months; and (b) at any time during a Renewal Term increase the License Fees or charge other fees for any portion of the Licensed Product or service provided by Whiterock AI, provided, that if Licensee does not agree to the increase or charge implemented solely under this Section 5(b), then Licensee may give Whiterock AI written notice of termination within sixty (60) days of Whiterock AI’s notice of such increase or charge, in which case Licensee shall continue to pay the License Fees in place before the proposed increase or charge until the last day of the calendar month in which Licensee’s notice of termination is delivered, and this Agreement shall terminate with respect to such portion of the Licensed Product on such date. All fees shall be billed in advance in accordance with the billing cycle identified herein and are due net thirty days. All payments received after the due date may be subject to a late payment charge from such due date until paid at a rate equal to the maximum rate permitted under applicable law. In all cases, the amount of License Fees shall be paid by Licensee to Whiterock AI in full without any right of set-off or deduction. No endorsement or statement on any check, payment, or elsewhere will be construed as an accord or satisfaction. The License Fees do not include sales, use, excise or any other taxes or fees now or hereafter imposed by any governmental authority with respect to the Licensed Products. At Whiterock AI’s option, Licensee shall pay such taxes or fees directly or pay to Whiterock AI any such taxes or fees immediately upon invoicing by Whiterock AI.

6. Termination. (a) Either party may terminate any portion of this Agreement in the event of: (1) any breach of a material term of this Agreement by the other party which is not remedied within thirty (30) days after written notice to the breaching party; or (2) the other party’s making an assignment for the benefit of its creditors, or the filing by or against such party of a petition under any bankruptcy or insolvency law, which is not discharged within 30 days of such filing. (b) Whiterock AI may terminate any portion of this Agreement immediately without further obligation to Licensee: (1) upon Whiterock AI’s good faith determination of any violation by Licensee of any provision of Section 1, 2, 3, or 13(a) hereunder, or any material provision of any other agreement between the parties or their affiliates; or (2) in the event that Whiterock AI discontinues a particular market or markets that form a part of the License Product or discontinues a particular product, upon five (5) days written notice at any time in Whiterock AI’s sole discretion in which case Whiterock AI shall refund any fees paid by Licensee to license the terminated portion of the Licensed Product after the effective date of such termination, and Licensee shall be released of its obligation to pay the associated License Fees due after the date of such termination. (c) Whiterock AI may interrupt the provision of any portion of the Licensed Product to Licensee upon Whiterock AI’s good faith determination of any violation by Licensee of any provision of Section 1, 2, 3, or 13(a) hereunder, or any material provision of any other agreement between the parties or their affiliates, and Licensee shall continue to be responsible for all License Fees, provided that Licensee shall not be responsible for license fees for an interrupted period if there was not an actual violation. Whiterock AI will restore the provision of the Licensed Product only if all amounts due hereunder are paid and if, in Whiterock AI’s reasonable opinion, Whiterock AI has received satisfactory assurances as to the cessation of the violation. (d) Upon Licensee’s breach of any term of this Agreement, all License Fees and all other fees payable hereunder shall become immediately due and payable in full, and in addition to the foregoing, Whiterock AI’s remedies shall include any damages and relief available at law or in equity. If Whiterock AI retains any third party to obtain any remedy to which it is entitled under this Agreement, Whiterock AI shall be entitled to recover all costs, including attorney’s fees and collection agency commissions, Whiterock AI incurs.

7. Post-Termination. At termination or nonrenewal of this Agreement, Licensee may no longer use any portion of the Licensed Product in any manner. Within ten (10) business days after the effective date of termination or nonrenewal, Licensee will permanently delete or destroy all elements of the Licensed Product under its control and upon request from Whiterock AI, affirm the completion of this process by execution and delivery to Whiterock AI of an affidavit to that effect reasonably satisfactory to Whiterock AI.

8. Licensed Product. Subject to Section 11, during the term of this Agreement, Whiterock AI will provide updated Information and Analysis, as applicable, to Licensee, which updates may be provided through the Internet or in such other manner as determined by Whiterock AI. Licensee is responsible for providing all hardware, software and Internet access necessary to obtain and use the Licensed Product. Whiterock AI reserves the right to modify any part of the Licensed Product or the way the Licensed Product is accessed at any time, so long as such modifications do not significantly degrade the Licensed Product.

9. LIMITATION ON LIABILITY. (a) LICENSEE ACKNOWLEDGES THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WHITEROCK AI AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND THIRD PARTY SUPPLIERS (COLLECTIVELY, THE “WHITEROCK AI PARTIES”) WILL NOT BE HELD LIABLE FOR ANY LOSS, COST OR DAMAGE SUFFERED OR INCURRED BY LICENSEE OR ANY THIRD PARTY INCLUDING WITHOUT LIMITATION THOSE ARISING OUT OF OR RELATED TO ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE LICENSED PRODUCT, OUT OF ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE LICENSED PRODUCT, REGARDLESS OF HOW SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISE, OR FOR ANY UNAUTHORIZED USE OF THE LICENSED PRODUCT. (b) THE WHITEROCK AI PARTIES’ AGGREGATE, CUMULATIVE LIABILITY RELATING TO THIS AGREEMENT AND USE OF THE LICENSED PRODUCT SHALL BE LIMITED TO LICENSEE’S ACTUAL, RECOVERABLE DIRECT DAMAGES, IF ANY, WHICH IN NO EVENT SHALL EXCEED THE TOTAL AMOUNT OF LICENSE FEES ACTUALLY PAID TO WHITEROCK AI UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH CLAIM AROSE. RECOVERY OF THIS AMOUNT SHALL BE LICENSEE’S SOLE AND EXCLUSIVE REMEDY. (c) UNDER NO CIRCUMSTANCES WILL ANY OF THE WHITEROCK AI PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, ARISING OUT OF, BASED ON, RESULTING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF THE LICENSED PRODUCT, EVEN IF WHITEROCK AI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES IN THIS SECTION 10(c) IS INDEPENDENT OF LICENSEE’S EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS. (d) NO ACTION ARISING OUT OF OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY LICENSEE MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. (e) THE PROVISIONS OF THIS SECTION APPLY WITHOUT REGARD TO THE CAUSE OR FORM OF ACTION, WHETHER THE DAMAGES ARE GROUNDED IN CONTRACT, TORT OR ANY OTHER CAUSE OF ACTION.

10. NO WARRANTIES. ALTHOUGH WHITEROCK AI MAKES EFFORTS TO PROVIDE AN ACCURATE PRODUCT, THE LICENSED PRODUCT AND ALL PARTS THEREOF ARE PROVIDED ‘AS IS’, ‘WITH ALL FAULTS’, AND ‘AS AVAILABLE’. THE WHITEROCK AI PARTIES MAKE NO WARRANTIES. THE WHITEROCK AI PARTIES DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, QUIET ENJOYMENT AND NO ENCUMBRANCES OR LIENS, (2) THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE LICENSED PRODUCT, (3) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, (4) THE LICENSED PRODUCT CONFORMING TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY WHITEROCK AI PARTY, AND (5) THAT ACCESS TO OR USE OF THE LICENSED PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. THE ANALYSIS AND WHITEROCK AI MARKET REPORTS CONTAINED IN THE LICENSED PRODUCT MAY INCLUDE, WITHOUT LIMITATION, STATEMENTS REGARDING WHITEROCK AI'S CURRENT OR FUTURE BELIEFS, EXPECTATIONS, INTENTIONS OR STRATEGIES REGARDING PARTICULAR COMMERCIAL REAL ESTATE MARKETS. THE ANALYSIS AND WHITEROCK AI MARKET REPORTS ARE SUBJECT TO MANY RISKS AND UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE ANALYSIS AND WHITEROCK AI MARKET REPORTS. LICENSEE UNDERSTANDS THAT THE ANALYSIS AND WHITEROCK AI MARKET REPORTS CONTAINED IN THE LICENSED PRODUCT ARE BELIEVED TO BE STATE OF THE ART AND, BY REASON OF THEIR LIMITED PERIOD OF USE, THEIR DEGREE OF ACCURACY IN REPORTING COMMERCIAL REAL ESTATE MARKET INFORMATION AND MAKING FORECASTS IS NOT PROVEN. LICENSEE SHALL NOT HOLD WHITEROCK AI OR ITS LICENSORS RESPONSIBLE FOR ANY ERRORS IN REPORTING, EVALUATING, ANALYZING, SIMULATING OR FORECASTING COMMERCIAL REAL ESTATE MARKET INFORMATION, OR FOR ANY INFORMATION, ANALYSES OR WHITEROCK AI MARKET REPORTS COMPRISING THE LICENSED PRODUCT.

11. Assignment. The parties’ obligations hereunder are binding on their successors, legal representatives and permitted assigns. Licensee may not assign or transfer (by operation of law or otherwise) this Agreement nor the license granted hereunder, in whole or in part, without the prior written consent of Whiterock AI. Notwithstanding anything set forth to the contrary above, in the event of Licensee’s merger with or acquisition of, or acquisition of assets by, any third party, Licensee shall be entitled upon written notice, without approval from Whiterock AI, to assign its rights and obligations under this Agreement to such third party; provided, however, that (a) such assignment shall not result in the elimination of any then-existing Whiterock AI revenue stream from Licensee or such third party; and (b) in no event shall Licensee be entitled to assign its rights and obligations hereunder to any individual or entity that directly or indirectly competes with Whiterock AI or any of its affiliates.

12. Indemnification. Licensee agrees to defend, indemnify and hold harmless Whiterock AI, its affiliates, and approved assignees, and their partners, directors, officers, employees and agents for all costs and expenses including attorney’s fees, associated with the defense and settlement of any threatened, pending or completed claim, demand or action by any person not a party to this Agreement resulting from, arising out of or relating to Licensee's use or application of the Database, Analysis, Information or Licensed Product in contravention of the terms of the Agreement, including a claim under any laws, rules or regulations (a “Claim”) and shall pay any judgments or settlements based thereon; provided, that Whiterock AI shall give Licensee prompt written notice of the Claim (provided, however, that Whiterock AI’s failure to provide such notice shall not relieve Licensee of its indemnification obligations except to the extent it is prejudiced thereby), sole control of the proceedings or settlement, and, at Licensee’s expense, reasonable cooperation, information and assistance in the defense or settlement negotiations. Whiterock AI may, at its own expense, reasonably assist in such defense if it so chooses, provided that Licensee shall control such defense and all negotiations relative to the settlement of any such claim. This clause shall survive the expiration or termination of the Agreement for any reason. Solely with respect to any Claim under any laws, rules or regulations pursuant to the Section above, if for any reason the foregoing indemnity is unavailable to any Whiterock AI Party, Whiterock AI shall be entitled to seek in a court of competent jurisdiction Licensee’s contribution to such Claim under any legal or equitable theories available to it.

13. Notices; Invoices. All notices given hereunder will be in writing and delivered by email, personally mailed by registered or certified mail, return receipt requested, or delivered by a well-recognized overnight courier company. If such notice is being delivered to Licensee, such notice shall be delivered to Licensee’s physical address specified on the Subscription Form, email address or to such other address as Licensee may specify, and if being delivered to Whiterock AI, delivered to the physical address set forth on the Subscription Form, Attention: Sales Administration, email address or to such other address as Whiterock AI may specify. All notices will be deemed given if delivered personally or by email, on the day of delivery, if mailed by registered or certified mail, three days after the date of mailing, if delivered by a well-recognized overnight courier company, one day after dispatch, and if delivered by overnight international mail, four days after mailing. Licensee agrees that Whiterock AI may include notices on invoices sent to Licensee by regular mail or email. Pursuant to Section 4 of this Agreement, Licensee may deliver notices of termination to Whiterock AI via email at the following address: info@whiterock.ai

14. Force Majeure. None of the Whiterock AI Parties shall have any liability for any damages resulting from any failure to perform any obligation hereunder or from any delay in the performance thereof due to causes beyond Whiterock AI’s control, including industrial disputes, acts of God or government, public enemy, war, fire, other casualty, failure of any link or connection whether by computer or otherwise, or failure of technology or telecommunications or other method or medium of storing or transmitting the Licensed Product.

15. User Information. Licensee acknowledges that if it creates any settings, surveys, fields or functions in the Licensed Product or inputs, adds or exports any data into or from the Licensed Product (collectively, the “User Data”), none of the Whiterock AI Parties shall have any liability or responsibility for any of such User Data, including the loss, destruction or use by third parties of such User Data. Licensee acknowledges that it is Licensee’s responsibility to make back-up copies of such User Data. For each licensed site, Licensee is allotted an aggregate amount of 100 megabytes of storage space in any Whiterock AI Property Professional Licensed Product per Authorized User located at that site.

16. Choice of Law; Jurisdiction. This Agreement shall be construed under the laws of the State of New York without regard to the choice of law principles. Whiterock AI irrevocably consents to the exclusive jurisdiction of the federal and state courts located in the State of New York for the purpose of any action brought against Whiterock AI in connection with this Agreement or use of the Licensed Product.