END USER LICENSE AGREEMENT for Profet.ai Software
Redistribution and sharing not permitted
IMPORTANT: READ CAREFULLY BEFORE USING THIS SOFTWARE
This is a legally binding agreement between PropMix.io LLC with its principal offices located at 61-20, 220th Street, Bayside, NY 11364 (“PropMix”) and You (either as an individual or an entity).
By using the Profet.ai software (“Service”) and/or any updates to such software provided by PropMix, you:
- Agree to the following terms on behalf of the PropMix customer with which you are employed, affiliated, or associated (the “Customer”)
- Represent that you have the authority to bind the Customer to these terms, If you do not have such authority, are not an authorized User, or do not agree to these terms, you not use the Service.
If you do not have such authority, are not an authorized User, or do not agree to these terms, you not use the Service.
Table of Contents
- Our Responsibilities
- Use of the Services and Content
- Fees and Payment for Purchased Services
- Proprietary Rights and Licenses
- Representations, Warranties, Exclusive Remedies and Disclaimers
- Mutual Indemnification
- Limitation of Liability
- Term and Termination
- Who You Are Contracting With, Notices, Governing Law and Jurisdiction
- General Provisions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Content” means information obtained by PropMix from publicly available sources or third party content providers and made available to Customer through the Services, as more fully described in the Documentation.
“Documentation” means the applicable Service’s Trust and Compliance documentation, and its usage guides and policies, as updated from time to time, accessible via propmix.io or login to the applicable Service.
“Purchased Services” means Services that You or Your Affiliate purchase under this Agreement, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You this Agreement or provided to You under a free trial, and made available online by Us, including associated PropMix offline or mobile components, as described in the Documentation. “Services” exclude Content.
“User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means PropMix.io LLC described above.
“You” or “Your” means the individual using the Service or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed or accepted this Agreement.
2. OUR RESPONSIBILITIES
2.1 Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement, (b) provide applicable PropMix standard support for the Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Services available 99.9% of 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
3. USE OF SERVICES AND CONTENT
3.1 Software License. PropMix hereby grants to Customer, including all Customer’s Authorized Users a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use the Service solely for Customer’s business operations in according with the terms of this agreement. The detailed description of the Profet.ai is available at https://www.profet.ai
The Service, including software embedded in the Service, is licensed, not sold, to the Customer by PropMix under the terms of this Agreement. PropMix reserves all rights not expressly granted to the Customer in this Agreement.
3.2 Subscriptions. (a) Services and access to Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.3 Permitted Use: Customer and other approved third parties specified below shall use the Service solely for the applications specified below in accordance with the terms and conditions of this Agreement.
- Customer may use the Service for Customer’s internal real estate analytics, market statistics and valuation business purposes.
- Customer may create valuation and analytic reports (“Customer Products”) incorporating the listings (“Listing Data”), public records (“Public Record Data”), listing images (“Image Data”) and distress property data (“Distress Data”) elements obtained from the Service subject to the restrictions outlined in section “License Restrictions”.
- Customer may provide Customer Products to its clients (“End Users”) for the aforementioned permitted purposes. Said End Users shall access Customer Products via Customer’s secure password protected, Internet sites, user interface, password protected mobile applications/messages, or email. End User access will be restricted using secure password protection.
- Listing Data can be used within an internal use product or service to determine a property value and for analytical purposes. Listing Data can be incorporated into reports distributed to End Users.
- Image Data can be accessed, viewed and displayed as part of an internal use valuation product, report or solution.
3.4 Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Documentation. Unless otherwise specified, a User’s password or access token may not be shared with any other individual, You shall pay any invoice for excess usage in accordance with Section 4.2 (Invoicing and Payment).
3.5 Responsibilities. Parties will (a) be mutually responsible for Users’ compliance with this Agreement and Documentation, (b) be mutually responsible for the accuracy, quality and legality of each Parties Data and the means by which Parties acquired The Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify each other promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with this Agreement, Documentation, and applicable laws and government regulations
3.6. Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Your Users, unless expressly stated otherwise in the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (d) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (e) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement or the Documentation, (f) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, or (k) reverse engineer any Service (to the extent such restriction is permitted by law). You or Your Users shall not modify, reverse engineer, disassemble or reverse compile any portion of the end product, nor can the data and/or analytics within be stored, cached or be copied, in order to build a database of any kind. Any use of the Services in breach of this Agreement or Documentation by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
- Customer shall not resell, relicense, or redistribute the Service to any other party or entity including affiliates, subsidiaries, or partners of the Customer.
- Customer may not display certain fields of information as set forth in the attached layout files on a publicly available site that is not password protected.
- Customer shall not deliver Customer’s Products to End Users via any other website or other delivery mechanism.
- Listing Data cannot be downloaded and sold as a standalone product to any end user. Listing Data cannot be used for any direct marketing purpose.
- Image Data cannot be displayed on a publicly accessible website. Images cannot be downloaded and sold as a standalone product to any end user.
- Customer shall not use the Service for any purpose other than those listed herein above.
- Customer shall not use the Service to create, enhance or structure any database for resale or distribution, or other commercial exploitation
- End Users shall not resell, relicense or redistribute the Service in whole or in part. End Users are all clients of Customer.
- Customer shall not create any other “Derivative Products” using the Service except as expressly authorized in herein. For the purposes of this Agreement “Derivate Products” are defined as any work based upon one or more Service that is a translation, modification, reformatting in any manner, abridgement, condensation, enhancement, addition, or expansion or any other form in which Service may be transformed or adapted in whole or in part. Notwithstanding the foregoing, any model, algorithm, formula, valuation, or other processing output is a Derivative Product. The Parties acknowledge and agree that all such work with Modifications shall be a Derivative Product hereunder regardless of whether or not such work would constitute a “derivative product” under law or otherwise be deemed an original work of authorship.
3.7 Services Use Policy. If You subscribe to a Service its use is subject to Services Use Policy at www.propmix.io/tandc/services-use-policy.pdf, and You are solely responsible for complying with applicable law in Your use of any cookies or other tracking technologies.
3.8 Removal of Content. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will have 60 Days to remove such Content from Your systems. If You do not take required action in accordance with the above, We may disable the applicable Content, Service until the potential violation is resolved.
4. FEES AND PAYMENT FOR PURCHASED SERVICES
4.1 Fees. You will pay all fees according to the subscription fee You selected at the time of signing up for the Service. Except as otherwise specified herein, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
Fees for the Service charged based on the number of orders processed within Service by Customer in a calendar month. The number of orders is counted using Order Identifier (“OrderId”) and Subject Property Address (“Subject Address”) entered into Service.
An OrderId serves the purpose of uniquely identifying an order processed by Customer within Service to retrieve data about a subject property and its comparable listings and/or sales. An OrderId shall be associated with the address of the subject property called the Subject Property Address. The same OrderId cannot be used for a different Subject Address. An OrderId received by PropMix is valid for a time period of 30 calendar days from the time of first receipt of the OrderId. All operations within the Service for with the same OrderId are considered part of a single order for usage tracking and billing purposes.
An order is considered to be successful order (“Successful Order”) within the Service if the Subject Address has been successfully verified and a comparable property search is initiated. PropMix shall charge a fee only for Successful Orders.
4.2 Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). We will email an invoice to You and provide a corresponding usage report for successful orders for the previous calendar month within 3 business days of the close of the previous calendar month. You will have 5 business days to review the invoice and usage report and report any discrepancies. The credit card on file will be charged on the 10 th business day of every month.
4.3 Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
4.4 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 11.2 (Manner of Giving Notice) for billing notices, before suspending services to You.
4.5 Payment Disputes. We will not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.6 Taxes. Our 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”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
4.7 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
5. PROPRIETARY RIGHTS AND LICENSES
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2 Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of this Agreement and the Documentation.
5.3 License to Use Feedback. Unless otherwise mutually agreed upon, You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does 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 the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’, Partners’ and Vendors’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement to a subcontractor to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 Our Warranties. We warrant that during an applicable subscription term (a) We will not materially decrease the overall security of the Services, and (b) the Services will perform materially in accordance with the applicable Documentation, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “PropMix Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content or Your use of the Services in violation of this Agreement or the Documentation.
8.2 Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party arising from Your use of the Services or Content in violation of the Agreement, the Documentation, or applicable law (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
8.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
10.2 Term of Purchased Subscriptions. Subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
10.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
PropMix may terminate this subscription upon notice to You if any third party restricts, prevents or ceases to authorize the use of the Service from Your devices or over Your or Customer’s network. In addition, this Agreement shall terminate immediately and automatically upon any termination of the Customer’s subscription to the Service. Upon any such termination, the Customer (including You) shall no longer be permitted to use the Service. Termination of this Agreement shall not entitle the Customer to any refund, credit, or other compensation from PropMix under any other agreement or from any third party.
10.4 Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 10.3 (Termination), We will refund You any prepaid fees covering the remainder of the term after the effective date of termination. If this Agreement is terminated by Us in accordance with Section
10.3, You will pay any unpaid fees covering the remainder of the term. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
10.5 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Customer Data Portability and Deletion,” “Removal of Content”, “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
11. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
11.1 General. All notices required or permitted under this Agreement shall be in writing and shall be deemed effective upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, or by recognized overnight courier, addressed to the other party at the address shown above, or at such other address or addresses as either party shall designate to the other in accordance with this Section.
11.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
11.3 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
11.4 No Agency. For the avoidance of doubt, We are entering into this Agreement as principal. Subject to any permitted Assignment under Section 12.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
12. GENERAL PROVISIONS
12.1 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement and (2) the Documentation.
12.2 Audit. During the term of this Agreement and not more than once per year (unless circumstances warrant additional audits), PropMix may audit the use of licenses granted in this Agreement to ensure compliance with this Agreement upon at least 10 business days’ notice. Notwithstanding the foregoing, the parties agree that PropMix may conduct an audit at any time, in the event of (i) audits required by PropMix’s governmental or regulatory authorities or PropMix’s data suppliers, or (ii) PropMix reasonably believes that an audit is necessary to address a material operational problem or issue that poses a threat to PropMix’s business.
12.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, 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. Notwithstanding the foregoing, 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 such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.