Terms of Service

THESE TERMS OF SERVICE (the “Terms of Service”) are a legal agreement between you (the “Customer” or “you”) and Kompas Inc. (“Kompas” or “we”) (each a “Party” and collectively, the “Parties”) setting forth, among other things, the terms and conditions for the provision by Kompas of the Services (as defined hereinafter) to you.

PLEASE READ ALL THE TERMS OF SERVICE CAREFULLY

• Your Agreement. BY ACCESSING OR USING THE PLATFORM (AS DEFINED HEREINAFTER) AND/OR USING THE SERVICES, YOU ACCEPT AND AGREE TO THE PROVISIONS OF THE TERMS OF SERVICE WITHOUT ANY RESERVATIONS, MODIFICATIONS, ADDITIONS OR DELETIONS. If you do not agree to any provisions contained in the Terms of Service, you are not authorized to use the Platform or the Services. You may be denied access to the Platform and/or the Services, with or without notice to you, if you do not comply with the provisions of the Terms of Service.
• Amendments. WE MAY FROM TIME TO TIME MODIFY THE TERMS OF SERVICE AND WILL POST A COPY OF THE AMENDED TERMS OF SERVICE AT THE FOLLOWING LINK www.kompaspm.com/terms-of-service, SO WE ENCOURAGE YOU TO REVIEW THEM PERIODICALLY. If we make any substantial changes to the Terms of Service, we will notify you by email. If you wish to cancel your account because you do not agree with the Terms of Service as amended, you may do so by sending a request to support@kompaspm.com. Notwithstanding the foregoing, cancelling your account shall have no impact on any outstanding Order Form(s) (as defined hereinafter) and the version of the Terms of Service that existed prior to such amendment shall continue to apply to such Order Form(s) and your use of the Services. You will be deemed to have accepted the Terms of Service as amended if you continue to access or use the Platform or the Services after you have been notified by email of such substantial changes. We reserve the right to refuse to provide anyone with access to our Platform at any time.

1. INTERPRETATION

1.1 Definitions. Capitalized terms not otherwise defined herein shall have the meaning set out in Appendix 1.

1.2 Expressions. Where the word “including” or the word “includes” is used in the Terms of Service, it means “including (or includes) without limitation”.

1.3 Order of Precedence. In the event of any inconsistencies between the provisions set forth in the Terms of Service (including in any of its Appendices) and in any Order Form (as defined below), the provisions of these Terms of Service shall prevail (unless the Order Form explicitly provides otherwise).

1.4 Standard Forms. Nothing in Customer purchase orders or any other documents transmitted by Customer in connection with these Terms of Service or, subject to Section 1.3 above, any Order Form shall be construed to modify, amend or supplement the terms of the Terms of Service.

1.5 Currency. Except as otherwise expressly provided in the Terms of Service, all amounts referred to in these Terms of Service (including all related Order Forms), including the symbol “$”, are stated in the lawful currency of Canada.

1.6 Language. The Parties have requested that the Terms of Service and all documents related thereto be drafted in English. The Customer acknowledges having received and reviewed a French version of these Terms of Service before expressly requesting to enter into and be bound by the English version and requests that all related documents be prepared in English. Les Parties ont exigé que les présentes conditions de services, ainsi que tous les documents y afférents, soient rédigés en anglais. Le Client reconnaît avoir reçu et examiné une version française des présentes conditions de services avant d’indiquer sa volonté de conclure la version anglaise et d’être lié par celle-ci, et exprime sa volonté que tous les documents connexes soient rédigés en anglais.

2. SERVICES

2.1 Scope of Services. Subject to the terms and conditions of these Terms of Service, payment in full of the applicable Fees and the applicable Order Form, Kompas (i) shall make its proprietary real estate management and bookkeeping software platform (the “Platform”) available to Customer (the “Platform Services”); and (ii) shall provide the services set forth in the support services agreement attached hereto as Appendix 2 (the “Support Services”, and collectively with the Platform Services, the “Services”).

2.2 Order Form. The Parties agree that each and every Order Form entered into pursuant to these Terms of Service shall be deemed accepted and in final form following the signature of such by a duly authorized representative of each Party.

2.3 Amendments; Patches. Customer acknowledges and accepts that Kompas, from time to time and at its sole discretion, may amend or update the Platform Services. Customer is required to accept all Patches necessary for the proper function and security of the Platform, as such Patches may be released by Kompas from time to time. Except for emergency or security-related maintenance activities, Kompas will use commercially reasonable efforts to coordinate with Customer on the scheduling of application of Patches, based on Kompas’ next standard maintenance period.

2.4 Service Suspension. Kompas may suspend Customer’s account, access to or use of the Platform if (i) Customer or a User breaches any provision of the Terms of Service, and such breach is not remedied within 15 days of Customer receiving written notice from Kompas; (ii) Kompas detects fraud, a security breach or any other similar threat that causes or that could cause, in Kompas’ reasonable opinion, damage to the Platform, Kompas’ IT infrastructure or Customer Data; or (iii) Kompas is undertaking scheduled maintenance. Kompas will use commercially reasonable efforts to restore the access to or use of the Platform, as soon as possible after the suspension. Any suspension by Kompas of the Platform Services in application of this Section 2.4 shall not release Customer from its payment obligations under the Terms of Service.

3. CUSTOMER OBLIGATIONS AND RESPONSIBILITIES

3.1 Use of Services. Customer shall (i) be responsible for the means by which Customer acquired Customer Data, the accuracy, quality, legality and use of Customer Data (which includes Customer having obtained all licenses and other rights for the use of Customer Data by Kompas under these Terms of Service); (ii) implement commercially reasonable efforts to prevent unauthorized access to or use of the Platform, and notify Kompas promptly of any such unauthorized access or use; (iii) use the Services only in accordance with the Terms of Service and applicable laws and government regulations; and (iv) be responsible for the purchase and maintenance in good working order of all the equipment (including network equipment and systems), software and Internet connection necessary to access and use the Services.

3.2 Restrictions – Services. Except as provided herein, Customer may not: (i) loan, rent, lease, transfer, convey, assign, sell, distribute the Services or grant sublicenses for the Services or any part thereof; (ii) modify, combine or distribute the Services (or any part thereof) with any other software or code in a manner which would subject the Services to open source license terms; (iii) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material (including Customer Data) in violation of third party privacy rights; (iv) use the Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services; (vi) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal operational purposes; (vii) reverse engineer, decompile or disassemble the Services or attempt to gain unauthorized access to the Services or Kompas’ systems or networks; or (viii) use or access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services.

3.3 Assistance and Information. Customer is generally bound to cooperate in good faith with Kompas and, without limiting the foregoing, Customer shall promptly provide Kompas with all necessary Customer Data, information, documents, access and assistance for the performance of Kompas’ obligations hereunder or otherwise that is reasonably requested by Kompas. Without limiting the generality of the foregoing, Customer shall (i) comply with any applicable onboarding timelines; (ii) perform the tasks and assume the responsibilities and requirements of Customer specified in the applicable Order Form; (iii) provide any specific content requested by Kompas in the requested format; (iv) ensure prompt and efficient cooperation of all its personnel who must assist Kompas for the performance of the Services; (v) be responsible for handling all communications with the Tenants with respect to the Properties and the landlord-tenant relationship (i.e. any issues that do not relate directly to the availability of the Platform); and (vi) comply with all applicable laws in connection with its obligations hereunder, including all applicable real estate laws with respect to its management of the Properties and in connection with its relationships and communications with the Tenants (collectively, the “Customer Responsibilities”).

3.4 Passwords. Customer is solely responsible for (i) providing and controlling its Users’ access to the Platform (single sign-on or other processes), (ii) preserving the confidentiality of the Users’ user identifications and passwords to access the Platform; and (iii) restricting or protecting access to Customer equipment (hardware and software) required to access and use the Platform Services.

3.5 Users. Customer is responsible for all use and misuse of the Services by its Users, or their breach of the terms of the Terms of Service, and shall indemnify Kompas for any damages, costs and expenses suffered as a result of such use, misuse or breach.

3.6 Failure to Comply. If Customer repeatedly or unreasonably fails to perform the Customer Responsibilities or otherwise fails to comply with its obligations under these Terms of Service, Kompas may suspend the Services at its sole discretion, upon notice to Customer.

4. PRIVACY

4.1 Protection of Customer Data. Kompas maintains appropriate administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data. Kompas shall not access Customer Data except (i) in connection with the performance of its obligations hereunder; (ii) to prevent or address service or technical problems; or (iii) at Customer’s request in connection with Customer support matters. In no event will Kompas share Customer Data with any third parties other than its subcontractors or third party service providers who need to have access to Customer Data for the performance of Kompas’ obligations hereunder, or as required by applicable law or a governmental authority.

4.2 Customer Data Retention and Deletion. Kompas will retain any Customer Data in its possession until deleted in accordance with these Terms of Service. Except as otherwise required by applicable law, Kompas will delete all Customer Data in its possession as necessary from time to time in accordance with the terms of its then-current privacy policy.

4.3 Privacy Laws Compliance. Customer represents and warrants that it will comply with all applicable privacy laws and regulations, including with respect to the collection, use, Processing, disclosure and handling of personal information that is part of Customer Data or that is otherwise provided to Kompas for the purposes of these Terms of Service. Without limitation of the foregoing, Customer represents, warrants, and covenants that: (i) it has (and will have) provided any notice and obtained all consents and rights required by applicable law to enable Kompas to lawfully Process Customer Data as permitted by these Terms of Service; (ii) it has the full right and authority to make Customer Data available to Kompas under these Terms of Service; and (iii) Kompas’ Processing of Customer Data in accordance with these Terms of Service will not infringe upon or violate any applicable laws or any rights of any third party. Kompas represents and warrants that it will comply with all applicable privacy laws and regulations with respect to the handling of Customer Data.

5. INTELLECTUAL PROPERTY

5.1 Customer Property and Licenses. Customer owns all rights, title and interest in and to Customer Data and Customer Trademarks, including all Intellectual Property Rights related thereto. Customer grants Kompas a royalty-free, worldwide and non-exclusive license to host, use, copy, reproduce, display, save, process and transmit Customer Data and Customer Trademarks for the purposes of, and only to the extent necessary for, the provision of the Services.

5.2 Kompas Owned IP. Kompas (or its licensors) retains any and all rights, title and interest in and to: (i) the Platform, including any Patches, enhancements or other modifications to the Platform; (ii) Platform Data; (iii) the Kompas Intellectual Property; (iii) all Kompas Trademarks; and (iv) all Intellectual Property Rights related to any of the foregoing. Customer will acquire no rights or licenses to any Kompas property unless otherwise expressly provided in the Terms of Service. Customer shall not remove any Intellectual Property Rights notice that is redisplayed through or embodied in the Services.

5.3 License to Customer. Kompas hereby grants to Customer a royalty-free, worldwide, non-exclusive, non-transferable and non-sublicensable license to use any Kompas Intellectual Property that is included, embodied in or otherwise required to use the Services, solely in connection with the use by Customer of the Services, as applicable.

5.4 Feedback. Kompas shall own all rights, title and interest in and to any suggestions, requests or recommendations for improvements or enhancements to the Services that Customer (including any of its representatives) may, alone or jointly with Kompas, propose or make during the term of the Terms of Service (collectively, “Feedback”). Customer hereby irrevocably (i) assigns all rights, title and interest in and to the Feedback to Kompas; and (ii) waives in favour of Kompas, its successors and assigns any and all moral rights that Customer has or may have in the Feedback in each jurisdiction throughout the world, to the fullest extent that such rights may be waived in each respective jurisdiction.

6. FEES AND TAXES

6.1 Fees. In consideration of the Services, Customer shall pay the fees set out in the applicable Order Form (the “Fees”). Kompas will invoice Customer for (i) any subscription Fees set forth in an Order Form; and (ii) any other Fees (including any transactional fees, as detailed in an Order Form), in each case plus any applicable taxes, in accordance with the payment terms set forth in the Order Form. Kompas reserves the right to increase the Fees on an annual basis (including for greater certainty the Fees set forth in the pricing model incorporated in any Order Form), subject to providing a reasonable written notice to Customer. Any annual increase shall not exceed the percentage increase in the Consumer Price Index for all items for Canada (as published by Statistics Canada), plus 10%.

6.2 Payment Terms. Customer shall pay the Fees via pre-authorized debit following issuance of the applicable invoice and in accordance with the terms set forth in the Order Form. As a condition to receive the Services, Customer shall be required to complete, execute and deliver to Kompas the pre-authorized debit form attached to the applicable Order Form. All payments must be made in the full amount, free of any deductions or withholdings, and without exercising any right of set-off.

6.3 Payment Processing. Kompas may use certain third-party payment processors from time to time (“Payment Processors”) and Customer shall be able to use such Payment Processors to collect payments through the Platform. As a condition to receive (and continuing to receive) the Services, Customer shall be required to (i) establish merchant account(s) with Kompas’ designated Payment Processor(s); (ii) complete and execute the account application(s) (and related agreements) attached to the applicable Order Form or any other documentation reasonably required in connection with Kompas’ designated Payment Processor (the “Payment Processing Agreements”); and (iii) be approved by the applicable Payment Processor for online payments access. Customer’s use of a Payment Processor or any Payment Processor accounts shall be governed exclusively by the Payment Processing Agreement(s). KOMPAS DOES NOT PROVIDE ANY WARRANTY AND ASSUMES NO LIABILITY IN CONNECTION WITH CUSTOMER’S USE OF THE PAYMENT PROCESSORS OR ANY MERCHANT ACCOUNT ESTABLISHED WITH THE PAYMENT PROCESSORS.

6.4 Owner Invoicing. Customer’s use of the Platform may incur certain Fees on behalf of the Owners. If Customer elects on the Platform to invoice such Owners the applicable Fees (including any applicable taxes) directly for such Services, it shall obtain all consents and rights required by applicable law from the Owners enabling Kompas to invoice them directly.

6.5 Non-Refundable. Notwithstanding Customer’s rights under articles 2125 through 2129 of the Civil Code of Québec, which are expressly waived by Customer, all Fees paid or payable hereunder are non-refundable and non-reimbursable.

6.6 Expenses. In addition to the Fees, Customer shall reimburse Kompas for all reasonable and documented expenses incurred by Kompas (or its subcontractors) in connection with the provision of Services (collectively, the “Expenses”), provided, however, that such Expenses have been preauthorized by Customer.

6.7 Payment Terms. Payment terms are set out in the applicable Order Form(s).

6.8 Suspension of Service. If any amount owing by Customer under the Terms of Service is overdue by more than 30 days, Kompas may, without limiting Kompas’ other rights and remedies, suspend the Services to Customer until such amounts are paid in full, provided that such amount is not paid within 10 days of Customer receiving written notice from Kompas.

6.9 Interest. In addition to any other rights or remedies of Kompas, any uncontested amount not paid by Customer when due shall bear interest at the rate that is the lesser of 1.5% per month or the maximum rate allowable by law.

7. TERM AND TERMINATION

7.1 Term - Terms of Service. The Terms of Service will commence on the Effective Date and will remain in effect for 1 year (the “Initial Term”) unless terminated in accordance with Section 7.3 or Section 7.4 below. Following the Initial Term, the Terms of Service shall automatically renew for successive 1-year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”) on the terms and conditions contained herein, unless (i) terminated in accordance with Section 7.3 or Section 7.4 below; or (ii) either Party provides written notice to the other Party that it does not wish to renew these Terms of Service at least 30 days prior to the end of the then-current Term.

7.2 Term – Order Form. If the duration of an Order Form differs from the Term of the Terms of Service, the duration of such Order Form shall be set out therein.

7.3 Early Termination by Customer. If Customer terminates these Terms of Service, or an Order Form, other than as set out in Section 7.4, Kompas will invoice Customer for all Fees incurred in connection with the Services up until the effective date of termination (except to the extent already covered by the previous payment(s) made by Customer).

7.4 Termination for Cause. Each Party may terminate the Terms of Service, or an Order Form, at any time: (i) if the other Party is in breach of any of its material obligations hereunder or under the relevant Order Form, as applicable, and such breach is not cured within 30 days after a written notice delivered to the Party in default; or (ii) by written notice to the other Party, if such other Party takes or is bound by any person to take one of the following measures: (a) an assignment, an arrangement or a comparable act in favour of its creditors; (b) seizure or receivership of its assets; (c) the filing of a petition in view of bankruptcy, insolvency or relief of debtors or the instituting of any proceedings related to bankruptcy, insolvency or the relief of debtors; (d) the execution or threat of execution of any act of bankruptcy; or (e) the liquidation, winding-up or dissolution of the enterprise in application of a court order rendered by a competent court.

7.5 Recourse. The termination of the Terms of Service or any Order Form, for any reason whatsoever, will in no way affect either Party’s rights and recourses against the other Party, at law or in equity, for damages for failure to discharge an obligation under the Terms of Service or the applicable Order Form, as the case may be.

7.6 Effect of Termination. Upon termination of the Terms of Service (i) all Order Forms shall terminate immediately; (ii) Kompas shall be entitled to the immediate payment of (A) any Fees accrued as of the effective date of termination; and (B) any subscription Fees owed until the end of the then-current Term; (iii) Recipient shall immediately return to Discloser (such as these terms are defined in Section 11.2) all Confidential Information and all copies thereof in any form whatsoever under the possession or control of Recipient that relate to the Terms of Service, or destroy said Confidential Information and its copies and provide written confirmation of such destruction, as directed by Discloser; (iv) for a period of 30 days thereafter, Kompas shall retain any Customer Data in its possession and promptly deliver an export of such Customer Data to Customer upon Customer’s reasonable request; and (v) except in the case of a written agreement to the contrary between the Parties, following the 30-day period referenced in paragraph (iv) of this Section, Kompas, without incurring any liability to Customer or any third party, may delete all Customer Data found in Kompas’ systems or otherwise in Kompas’ possession or control in accordance with Section 4.2.

7.7 Surviving Provisions. Sections 4.2, 5, 7.5 to 7.7 and 9 to 12 of these Terms of Service shall survive the termination of the Terms of Service.

8. REPRESENTATIONS AND WARRANTIES

8.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it is a corporation, duly incorporated, organized and in good standing under the laws of its jurisdiction; (ii) it has the full right, power and authority to enter into these Terms of Service; and (iiI) that its entry into these Terms of Service shall not result in a breach of or constitute a default under any agreement or instrument to which it is a party.

8.2 Representations and Warranties of Customer. Customer represents and warrants to Kompas that: (i) Customer has (or shall obtain) all necessary rights and consents to Customer Data and the Customer Trademarks, to grant Kompas the licenses granted hereunder (including to enable Kompas to lawfully Process Customer Data as permitted by these Terms of Service); (ii) any technology, information, material or licenses granted or provided to Kompas hereunder will not breach or violate any third party Intellectual Property Rights or otherwise violate any applicable law; and (iii) shall comply with all applicable laws with respect to its management of the Properties (including for greater certainty, as required in connection with its relationships with the Tenants).

8.3 Representations and Warranties of Kompas. Kompas represents and warrants to Customer that: (i) it has all the rights necessary to provide the Services; (ii) it and its representatives have the necessary knowledge, experience, and skills to perform the Services; (iii) it has and/or will acquire and maintain all licenses and permits required to perform the Services; and (iv) the Services will be performed in a competent and professional manner, in accordance with industry standards and practices.

9. WARRANTY DISCLAIMER

9.1 General. THE PLATFORM SERVICES ARE PROVIDED ON AN AS-IS BASIS. EXCEPT TO THE EXTENT SET FORTH IN SECTION 8, KOMPAS EXPRESSLY DECLINES, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUBCONTRACTORS, VENDORS AND LICENSORS, ANY AND ALL EXPRESS, LEGAL OR IMPLICIT REPRESENTATIONS, WARRANTIES AND CONDITIONS NOT CONTAINED HEREIN, INCLUDING REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND ACCURACY. IN PARTICULAR, KOMPAS EXPRESSLY DECLINES THE FOLLOWING AND MAKES NO REPRESENTATION OR WARRANTY IN THESE REGARDS: (I) THE FACT THAT THE SERVICES WILL MEET CLIENT’S OPERATIONAL REQUIREMENTS; (II) THE FACT THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR, THAT THE RESULTS OBTAINED OR REPORTS GENERATED FROM THEIR USE WILL BE ACCURATE OR RELIABLE; OR (III) THE FACT THAT ALL PROGRAMMING OR SERVICE ERRORS CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED.

9.2 Professional Advice. KOMPAS DOES NOT GIVE PROFESSIONAL ADVICE. KOMPAS IS NOT IN THE BUSINESS OF PROVIDING LEGAL, FINANCIAL, ACCOUNTING, TAX, REAL ESTATE OR OTHER PROFESSIONAL SERVICES OR ADVICE. THE CUSTOMER SHALL CONSULT THE SERVICES OF A COMPETENT PROFESSIONAL WHEN THIS TYPE OF ASSISTANCE IS NEEDED IN CONNECTION WITH ITS USE OF THE PLATFORM OR WITH RESPECT TO THE INTERPRETATION OR USE OF ANY REPORTS, SUMMARIES, ANALYSES, STATEMENTS OR OTHER DOCUMENTS GENERATED BY THE PLATFORM.

9.3 Beta Services. Warranty Disclaimer – Beta Services. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH KOMPAS WHERE CUSTOMER GETS TO USE BETA SERVICES, PRODUCTS AND FEATURES (“BETA SERVICES”) OFFERED BY KOMPAS. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, KOMPAS IS PROVIDING THE BETA SERVICES TO CUSTOMER “AS IS.” KOMPAS MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANY PUBLISHED DOCUMENTATION OR ANYTHING IN THESE TERMS OF SERVICE THAT STATES OTHERWISE, KOMPAS DOES NOT WARRANT THAT THE BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

10. INDEMNIFICATION; LIMITATION OF LIABILITY

10.1 Indemnification. Customer agrees to indemnify, hold harmless and defend Kompas and its shareholders, directors, officers, employees, agents, representatives, successors and assigns from and against any and all claims, actions, losses, liabilities, damages, judgments, interest, fines penalties, costs and expenses of any kind or nature, including reasonable attorneys’ fees and all other expenses of investigation and defense relating to any claim or dispute of a third party (collectively, “Losses”), arising out of, relating to, resulting from or in connection with (i) Customer’s or any of its Users’ breach of or activities under these Terms of Service (including any failure to fulfill the Customer Responsibilities or comply with its obligations under these Terms of Service); (ii) Customer’s or any of its User’s use of the Services (including for greater certainty, its interpretation and use of any reports, summaries, statements or other documents generated by the Platform); (iii) any disputes between the Customer and its Tenants; or (iv) any disputes in connection with any third-party services provided directly or indirectly as a result of the Platform.

10.2 Exclusion of Certain Damages. Kompas shall not be liable and assumes no responsibility for any losses or damages arising directly or indirectly from (i) any reports, summaries, analyses statements or other documents generated by the Platform or any interpretation or use by Customer or its Users thereof (for greater certainty, Customer shall be responsible for ensuring that any such reports, summaries, analyses, statements or other documents are submitted to the appropriate professionals for their review); (ii) the omission by Customer to comply with Customer Responsibilities or to discharge its obligations hereunder to provide timely information, access or assistance to Kompas in accordance herewith or as Kompas reasonably requests in order to discharge its obligations; (iii) any disputes between the Customer and the Tenants; (iv) any disputes in connection with any third-party services provided directly or indirectly as a result of the Platform (including without limitation, maintenance services); and (v) Customer’s use of the Payment Processors and any merchant account (or sub-merchant account) established with the Payment Processors.

10.3 Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT MAY EITHER PARTY, ITS AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUBCONTRACTORS, VENDORS AND LICENSORS BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES; OR (II) ANY LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER FINANCIAL LOSS, ARISING DIRECTLY OR INDIRECTLY FROM THE TERMS OF SERVICE (INCLUDING ALL OF ITS APPENDICES AND RELATED ORDER FORM(S)), OR CAUSED BY THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION: WHETHER IN CONTRACTUAL LIABILITY, APPLICATION OF THE WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY OF MANUFACTURERS AND VENDORS, STRICT CIVIL LIABILITY OR UNDER ANY OTHER LEGAL THEORY.

10.4 Amount Limitation. THE TOTAL LIABILITY OF KOMPAS FOR CLAIMS BY CUSTOMER OR ANY OTHER PERSON ARISING UNDER THESE TERMS OF SERVICE SHALL BE LIMITED TO LESSER OF: (I) THE FEES PAID BY CUSTOMER TO KOMPAS DURING THE 6-MONTH PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILITY ARISES; AND (II) $25,000.

10.5 Infringement Options. If the use of the Platform Services by Customer has become, or in Kompas’ opinion is likely to become, the subject of any claim of infringement, Kompas may at its option and expense: (i) procure for Customer the right to continue using the Platform Services as set forth herein; (ii) modify the Platform Services to make such services non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate these Terms of Service and refund Customer any unused pre-paid Fees. This Section 10.5 states Customer’s exclusive remedy, for any claim by a third party alleging that the use of the Platform Services as permitted hereunder infringes or misappropriates a third-party copyright, trade secret, trademark or patent.

10.6 Force Majeure. Except for any obligation to pay any amount then owed, if either Party’s performance is prevented, hindered or delayed by reason of any Force Majeure event, such Party shall be excused from performance to the extent that it is prevented, hindered or delayed thereby during the continuance of such causes, and such Party’s obligation hereunder shall be suspended for so long and to the extent that such causes prevent or delay its performance. The Party subject to a Force Majeure event shall give the other Party written notice thereof. If either Party gives notice of a Force Majeure event and is unable to resume performance within 30 days after giving notice or fails within that period to give reasonable assurance that it will resume performance within a further 15 days, then the other Party may terminate these Terms of Service upon a 15-day written notice.

10.7 Allocation of Risk. Customer acknowledges that Kompas pricing reflects the allocation of risk under these Terms of Service and the limitations of liability specified herein.

11. CONFIDENTIALITY

11.1 Prior Non-Disclosure Agreement. If the Parties have entered into a non-disclosure agreement prior to the Effective Date, such agreement is hereby terminated and replaced in its entirety by the terms of this Section 11.

11.2 Obligation of Confidentiality. The Party (“Recipient”) receiving from the other Party (“Discloser”) any Confidential Information, or otherwise obtaining any Confidential Information, shall keep confidential Discloser’s Confidential Information and shall protect Discloser’s Confidential Information with the same degree of care as Recipient employs in the protection of its own confidential and proprietary information, but at least with a reasonable degree of care. Without limiting the scope of the foregoing, Recipient shall not copy, reproduce, disclose, circulate or publish Discloser's Confidential Information or permit such action, except as reasonably required for the purpose of the Terms of Service to comply with applicable laws, directives, policies or procedures. Recipient shall disclose Confidential Information only to those of its representatives who have a need to know said Confidential Information for the purpose of the Terms of Service or as permitted herein. Recipient remains liable for any breach of the terms of this Section 11 by its representatives. It remains understood that any disclosure of Confidential Information permitted by Section 12.1 will not constitute a breach of this Section 11.

11.3 Use of Confidential Information. Recipient may not use Discloser's Confidential Information in any manner, except as reasonably required for the purpose of the Terms of Service or as permitted herein.

11.4 Exclusions. The restrictions imposed by this Section 11 shall not apply to Confidential Information that Recipient can demonstrate (i) is now, or which hereafter, through no act or failure to act on the part of Recipient, becomes generally known or available to the public without breach of these Terms of Service; (ii) is known to Recipient at the time of disclosure of such Confidential Information, provided that Recipient can satisfactorily demonstrate such prior knowledge by appropriate written records antedating the disclosure and that such knowledge was not gained from third parties through breach of an obligation of confidentiality; (iii) is hereafter furnished to Recipient in good faith by a third party without breach by such third party, either directly or indirectly, of an obligation of confidentiality to Discloser; or (iv) is approved for such use or disclosure by written authorization of Discloser.

11.5 Legal Communication. In the event Recipient becomes legally compelled to disclose any portion of Discloser’s Confidential Information, Recipient immediately shall give notice thereof to Discloser, to the extent allowable, and shall collaborate with Discloser reasonably and in good faith to prevent or limit the disclosure or obtain a protective order or other recourse. In the event that disclosure cannot be prevented, that the protective order or other recourse fails, or that Discloser waives compliance with this provision, Recipient shall disclose only that portion of the Confidential Information which it is legally bound to disclose (as reasonably determined by Recipient) and exercise all reasonable efforts to obtain a reliable guarantee that the confidentiality of the disclosed Confidential Information will be ensured in accordance with the terms hereof.

11.6 Injunctive Relief. Each Party acknowledges that the restrictions contained in this Section 11 are reasonable and necessary to protect the other Party’s legitimate interests. Each Party understands and agrees that the remedies at law for the violation of any of the undertakings or provisions of this Section 11 are insufficient, that such violations will cause irreparable harm within a short period of time, and that the other Party shall be entitled to preliminary injunctive relief or other injunctive relief against any such violation, without the necessity of proving actual damages. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other remedies the other Party shall have at law or in equity for the enforcement of those undertakings and provisions.

11.7 Assistance. Each Party agrees that it shall notify the other Party if it becomes aware of, or has reasonable grounds to suspect, that the unauthorized disclosure of the Confidential Information of the other Party has occurred or is likely to occur.

12. GENERAL

12.1 Publicity. Except in any proceeding to enforce the provisions of the Terms of Service or except as otherwise required by law, neither Party shall publicize or disclose to any third party the existence or provisions of the Terms of Service or any of the Fees, terms or conditions hereof, without the prior written consent of the other Party. Notwithstanding the foregoing, Customer acknowledges and agrees that Kompas may mention, in its corporate brochures, marketing material, press releases and website, that Customer is a customer of Kompas. In that regard, Customer agrees that Kompas may use Customer's corporate names and logos, subject to applicable Customer logo policies.

12.2 Subcontract. Kompas may subcontract certain of its obligations under the Terms of Service to any third party.

12.3 Applicable Laws and Jurisdiction. The Terms of Service will be governed by, interpreted and construed in accordance with the laws of the province of Québec, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Each of the Parties agrees that any dispute arising out of or in connection with these Terms of Service, including any question regarding its existence, validity or termination, shall be submitted to the exclusive jurisdiction of the courts of the province of Québec, Canada (district of Montréal). The foregoing choice of jurisdiction and venue shall not prevent either Party from seeking injunctive relief with respect to a violation of Intellectual Property Rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

12.4 Entire Agreement. The Terms of Service (including all of its Appendices, its Order Form(s)) and any data processing addendums entered into hereunder) constitutes the complete agreement between the Parties and cancels and replaces all prior or concomitant agreements or representations or warranties, oral or written, between the Parties concerning the subject matter of the Terms of Service.

12.5 Assignment. Neither Party may assign or transfer these Terms of Service without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, any Party may, without such consent, assign or transfer these Terms of Service: (i) to any Affiliate of such Party; or (ii) to a person or entity who acquires all the shares or all or substantially all of the assets of such Party, whether by sale, merger or otherwise; provided that: (A) such Affiliate or acquirer agrees, in writing, to abide by the terms and conditions of these Terms of Service; and (B) with respect to Customer, such Affiliate or acquirer is not, in Kompas’ sole opinion, a competitor of Kompas and does not otherwise pose a threat to Kompas’ Intellectual Property Rights. Any assignment which violates the foregoing will be void.

12.6 Successors and Assigns. All obligations set forth in the Terms of Service will bind and apply to the benefit of the respective successors and assigns of the Parties.

12.7 Severability. If a competent court rules a provision of the Terms of Service invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions of the Terms of Service shall in no way be affected or compromised.

12.8 Waiver. The failure of a Party to enforce any provision of the Terms of Service shall not constitute a waiver of such provision or the right of such Party to enforce such provision and every other provision.

12.9 Notices. All notices required to be sent hereunder will be in writing and will be deemed to have been given when: (i) sent via e-mail to the Parties’ respective e-mail addresses set forth on the cover page of these Terms of Service (which e-mail addresses may be altered upon written notice to each Party); or (ii) mailed by first class mail or personal delivery (including overnight mail by private carrier) to the Parties’ respective addresses set forth on the cover page of these Terms of Service (which addresses may be altered upon written notice to each Party). Any such notice shall be deemed to have been received, if sent by e-mail, on the next business day following transmission, if delivered by hand, at the time of delivery or, if posted, at the time of arrival thereof at the address of the other Party.

APPENDIX 1 – DEFINITIONS

For the purposes of these Terms of Service:

• “Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity. For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity;
• “Confidential Information” means (i) any and all non-public, confidential or proprietary information of a Party, including any information relating to the existence or content of these Terms of Service (including for greater certainty any pricing terms set forth herein), the Services, Customer Data and a Party’s business, products, services, activities, operations, business affairs, customers and prospects, Intellectual Property (including Kompas Intellectual Property), technology, know-how, design rights and trade secrets, whether such information is provided orally, in writing, in computer readable form or otherwise and whether or not it is specifically identified as confidential; and (ii) any copies, extracts or reproductions, in whole or in part, of any of the foregoing;
• “Customer Data” means any and all electronic data, technology, documents or other information that is provided by Customer, its Affiliates or its or their Users to Kompas, through the Platform or otherwise, to be used in connection with the Services;
• “Force Majeure” means any unavailability caused by circumstances beyond a Party’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, pandemics, epidemics, government-mandated quarantines, publicly declared states of emergency, acts of terror, strikes or other labor problems, Internet service provider failures or delays, computer hacking, security breaches, or denial of service attacks or power failures that ordinary commercial efforts could not reasonably have prevented;
• “Intellectual Property” means any and all ideas, concepts, inventions, methods, processes, know-how, works, software, computer programs and other computer software (including all source and object code, algorithms, architectures, structures, user interfaces including display screens, lay-outs and development tools), databases, designs, plans, drawings, brochures, website content, sales and advertising literature and other marketing materials, and any improvements thereon or applications or derivative works thereof, and all other forms of intellectual property, all whether or not registered or capable of such registration;
• “Intellectual Property Rights” means any and all patents, copyrights, trademarks, trade names and other proprietary rights, and all registrations or applications in relation to the foregoing;
• “Investors” means investors in the Properties, as designated on the Platform;
• “Kompas Intellectual Property” means all Intellectual Property developed by or first conceived or reduced to practice by Kompas, its Affiliates, its licensors or by any third party on Kompas’ behalf relating to the Platform, Platform Data, the Services, all related products or services and any other Kompas products or services;
• “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
• “Order Form” means each Order Form or similar ordering document between the Parties incorporating the terms of the Terms of Service which, among other things, sets forth the Services ordered and the corresponding Fees;
• “Owner” shall mean the owners of the Properties, as designated on the Platform;
• “Party” means either Kompas or Customer, as applicable, and “Parties” means Kompas and Customer;
• “Platform Data” means (i) any and all data provided by Kompas through the Platform; and (ii) any and all data (other than Customer Data) generated by the Platform, including (A) all metadata and (B) any Customer Data that has been transformed by the Platform or converted by the Platform into anonymized and non-Customer identifiable data. Customer acknowledges that Platform Data is used, among other things, as inputs for the proprietary algorithms of the Platform;
• “Process” (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
• “Properties” means real estate properties then-currently being managed by Customer through the Platform.
• “Tenants” means tenants or prospective tenants of the Properties, as designated on the Platform;
• “Trademarks” means trademarks, trade names, brands, trade dress, business names, domain names, designs, graphics, logos and other commercial symbols and indicia of origin whether registered or not and any goodwill associated therewith; and
• “User” means any person (A) who is authorized by Customer to access and use the Services; (B) who has been invited to create an account on the Platform by Customer ; and/or (C) who has been supplied user identification codes and passwords by Customer (or by Kompas at Customer’s request).

APPENDIX 2 – SUPPORT SERVICES AGREEMENT

Capitalized terms used herein have the meanings assigned in the Terms of Service unless the context otherwise requires.

Terminology

In this Schedule:

• “Support Services” refers to the services provided by Kompas in response to Customer requests.
• “Critical Impact Issue” means that the Platform is unavailable or multiple functionalities are unavailable or severely degraded and is severely affecting Customer’s business processes, in each case due to reasons directly attributable to Kompas. More specifically, (i) the Services are inaccessible or severely degraded; (ii) a majority of Customer’s Users are affected; and (iii) the issue is severely affecting many of Customer’s business processes

Communication Methods

Support Services are provided either via the Platform or support email. For non-Critical Impact Issues the Platform or support email are the available methods of communication (as detailed below):

Support Hours

Standard Support Services are available:

• 09:00 to 17:00 Eastern Time, Monday to Friday
• Non-Critical Impact Issue support is only available during business hours. For Critical Impact Issues, please contact Kompas at the details set forth in the “Out of Hours Support” Section of this support services agreement.

All Canadian statutory holidays are excluded, a list of which is available at https://www.canada.ca/en/revenue-agency/services/tax/public-holidays.html.

Out of Hours Support

In the event the Customer is experiencing a Critical Impact Issue, the Customer may contact Kompas at the support telephone number or email set forth below:

When contacting support for Critical Impact Issues via e-mail and outside of support hours, include “Urgent” in the subject line.