Authorized User Agreement

AUTHORIZED USER AGREEMENT
TERMS AND CONDITIONS
IMPORTANT PLEASE READ CAREFULLY

This Authorized User Agreement along with all materials referenced herein (“Agreement”) is a legal agreement between YOU (being designated in this Agreement as the “Authorized User“) and Airportxo Solutions Inc., a corporation incorporated pursuant to the laws of the Province of Ontario, Canada:

Toronto International Airport AMF
PO Box 6049
2710 Brittania Rd., Suite 337
Mississauga, Ontario, Canada
L5P 1B2

(hereinafter referred to as “AIRPORTXO”.

The Marketing Services, Airport Listings Database, Tenant Reporting Module and RFP Database (“Services”) to which this Agreement relates are owned and operated by AIRPORTXO SOLUTIONS INC. and made available to the Authorized User through the AIRPORTXO website (located at http://www.airportxo.net ) only under the terms and conditions of this Agreement.

The Website design, Software, Database and Documentation developed by or on behalf of AIRPORTXO and owned by or licensed to AIRPORTXO support the provision of the Services and access to the Airport Listings Database and the RFP Database.

This Agreement combined with the AIRPORTXO Requirements together with any amendments and updates that may be published by AIRPORTXO or posted by it on the AIRPORTXO Website from time to time collectively comprise the entire agreement between the Parties and supersede all prior agreements relating to the subject matter of this Agreement.

The rights granted to Authorized User under this Agreement are personal to the Authorized User.

Authorized User may not sell, assign, or otherwise transfer or agree to transfer all or any portion of those rights without the prior written consent of AIRPORTXO, which consent may be withheld in the absolute discretion of AIRPORTXO.

AUTHORIZED USER MUST READ THIS AGREEMENT CAREFULLY BEFORE INDICATING ACCEPTANCE AT THE END BY CLICKING THE “I ACCEPT” BUTTON FOR ELECTRONIC ACCEPTANCE OR SIGNING THE PAPER VERSION IN THE SIGNING BLOCK INDICATED AT THE END OF THIS AGREEMENT. IF AUTHORIZED USER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, CLICK ON THE “I DO NOT ACCEPT” BUTTON AT THE END OF THIS AGREEMENT OR, IN THE CASE OF THE PAPER VERSION, RETURN THE UNSIGNED AGREEMENT TO AIRPORTXO AND AUTHORIZED USER WILL NOT BE PERMITTED TO ACCESS AND USE THE SERVICES.

THE SERVICES, AIRPORT LISTINGS DATABASE AND RFP DATABASE MAY CONTAIN LINKS TO THIRD PARTY WEBSITES. AIRPORTXO DOES NOT ENDORSE THE CONTENT CONTAINED IN ANY THIRD PARTY WEBSITE. AIRPORTXO DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY OF ANY KIND REGARDING ANY THIRD PARTY WEBSITE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY REGARDING THE LEGALITY, ACCURACY, RELIABILITY, QUALITY, COMPLETENESS, TIMELINESS, NON INFRINGEMENT, SECURITY, OR SUITABILITY OF ANY CONTENT ON A THIRD PARTY WEBSITE OR WHETHER OR NOT ANY NECESSARY CONSENTS REQUIRED UNDER APPLICABLE PRIVACY LAWS FOR ANY ASPECT OF ANY THIRD PARTY WEBSITE HAVE BEEN PROPERLY OBTAINED. AIRPORTXO DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF ANY CONTENT, GOODS OR SERVICES ON OR MADE AVAILABLE THROUGH ANY THIRD PARTY WEBSITES. NOR DOES AIRPORTXO MAKE ANY REPRESENTATION, WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY THAT THE OPERATION OF ANY THIRD PARTY WEBSITE WILL BE UNINTERRUPTED, FREE OF ERROR, VIRUSES OR ANY OTHER HARMFUL COMPONENTS. THE CONTENT, GOODS AND/OR SERVICES AVAILABLE ON OR THROUGH ANY THIRD PARTY WEBSITE ARE NOT UNDER AIRPORTXO CONTROL AND IF YOU CHOOSE TO ACCESS ANY THIRD PARTY WEBSITE, YOU DO SO ENTIRELY AT YOUR OWN RISK.

  1. DEFINITIONS: 

In this Agreement:

(a) “Application” means any AIRPORTXO then-current properly completed “Application for Membership”, “Data Access Application” or other form or written application or agreement provided by Authorized User to AIRPORTXO in support of its requirement to access and use the Services and Airport Listings Database under the provisions of this Agreement.

(b) “Authenticator” means any handheld random password generator(s), or derived from third party software that may be provided by AIRPORTXO to YOU from time to time.

(c) “Authorized User” means YOU as the party having agreed to be contractually bound to AIRPORTXO under each and   every one of the terms and conditions of this Agreement.

(d) “Acceptable Use Policy” means AIRPORTXO’s established rules and prohibitions, as modified from time to time, that define acceptable use of the Services and Airport Listings Database and any associated features. Unacceptable use is prohibited, and is grounds for loss of privileges, termination of the Agreement, as well as discipline or legal sanctions for violating any applicable laws.

(e) “Agreement” means this Authorized User Agreement and any amendments thereto. Unless otherwise stated, all references to a Section shall refer to a Section of this Authorized User Agreement.

(e) “Airport Member” means any Governmental Authority, Agency, private business, partnership or corporation that owns, operates, administers or manages an Airport property and facilities recognized and codified by the International Air Transport Association (“IATA”).

(f) “RFP Database” means the aggregation of all Content as well as its or their selections, assembly and arrangement, that from time to time comprise the Internet based service currently known as the Request for Proposals Database Service (RFP Database), and any successor or replacement service thereto owned and operated by or on behalf of AIRPORTXO.

(g) “Business” or “business” as referenced in Sections 2, 3, 4, and 8, means the business of trading in real estate and may involve the rental, Leasing, Purchasing, Licensing or grant of Concession for available properties by Airports to interested Parties, Tenants, Suppliers or businesses, and as may be further amended from time to time.

(e) “Commercial User” means any person, company, organization or agency that is seeking the information contained in Airport Listings Database or the RFP Database for the purposes of entering into a Lease or Purchase contract with the applicable Airport authority or for the purpose of providing consulting or supply services directly related to the information posted on the Airportxo website to an Airport Authority.

(h) “Content” means all information, comments, opinions, statements, advice, descriptions, services, offers, data, files, links, ideas, software, images, graphics, audio clips, video clips, icons, or any other form of content or information.

(i) “Copies” means hard copy print outs and electronic versions of the reports, results, and other information or materials generated from Authorized User’s access and use of the Services, Airport Listings Database and RFP Database.

(j) “Documentation” means the applicable online or hardcopy user documentation providing guidance and instruction for accessing and using the Services, Airport Listings Database and RFP Database.

(k) “Intellectual Property” means all applicable copyrights, patents, trademarks, trade secrets, and associated international laws, treaties, and conventions.

(l) “License” means the restricted license rights granted by AIRPORTXO to the Authorized User under Section 2 and elsewhere in this Agreement.

(m) “Member” means a fully paid-up member in good standing of AIRPORTXO.

(n) “Airport Listings Database” means the aggregation of all Content as well as its or their selection, assembly, and arrangement, that from time to time comprises the Internet based Listing Service currently known as www.Airportxo.net , and any successor or replacement service thereto owned and operated by or on behalf of AIRPORTXO.

(o) “Party” or “Parties” means if used in the singular, either Authorized User or AIRPORTXO, and if used in the plural, both Authorized User and AIRPORTXO.

(p) “PIPEDA “and “Personal Information” shall have the meaning attributed to such term within the provisions of PART 1 of the Personal Information and Electronic Documents Act of Canada (“PIPEDA”) and any successor legislation and any legislation of similar effect in the Province of Ontario.

(q) “Real Estate” or “real estate”, includes any property, land, buildings, other structures or licenses, rights or interested being offered by Airports for Lease or Purchase or other contractual arrangement, being marketed on the website  and as may be further amended from time to time.

(r) “Services” means AIRPORTXO’s proprietary Internet-based system and associated technology that provides web-enabled display, search, retrieval, and uploading capabilities through the AIRPORTXO Website to its Airport Listings Database and RFP Database and other related capabilities including, without limitation, customer information services for its Commercial Users.

(s) “Software” means AIRPORTXO’s proprietary backbone software applications that enable AIRPORTXO to provide AIRPORTXO Website access to and use of the Services, Airport Listings Database and RFP Database for both Airport Members and Commercial Users.

(t) “Support” means any diagnosis of errors and corrections or workarounds, guidance to remedy a user problem, and any implementation by AIRPORTXO of updates, adjustments, additions or modifications to the Services as AIRPORTXO may prescribe from time to time.

(u) “Third Party Website” means any site other than an AIRPORTXO Website.

(w) “AIRPORTXO Members” means members of AIRPORTXO in good standing from time to time in accordance with AIRPORTXO’s Bylaws.

(x) “AIRPORTXO Requirements” means any single or combination, as the case may be, of AIRPORTXO’s:

(i) “Listing Policy Guidelines”, or its successor document if any, which are in force from time to time;

(ii) “Privacy Policy”, or its successor document if any, which are in force from time to time;

(iv) “Standards” means the document created from time to time by the Board of Directors of AIRPORTXO, relating to the technology needed to access the Airport Listings Database, the RFP Database and Software.

(y) “AIRPORTXO Website” means the following web address through which Authorized User’s may obtain logon access to the Services, Airport Listings Database and RFP Database through AIRPORTXO issued Authenticator, “User ID” and “Password” and Authorized User controlled “Password” – www.airportxo.net and any other associated or linked sites operated by or on behalf of AIRPORTXO.

  1. LICENSE GRANT:

Subject to the terms of this Agreement, AIRPORTXO grants authorized user a non-exclusive, non-transferable license, without right to sublicense, to access and use the Services, Airport Listings Database and RFP Database in accordance with this Agreement and in compliance with all applicable AIRPORTXO requirements (“License”) solely for the purpose of and directly related to the Authorized User’s ordinary carrying on of its business. Authorized User unconditionally agrees to access and use the Services, Airport Listings Database and RFP Database only in the manner and for the purposes expressly specified in this Agreement and for the exclusive and internal use by Authorized User and by other Authorized Users that have a valid Authorized User Agreement in effect with AIRPORTXO which has not been terminated or suspended. Any updates, modifications, enhancements to the Services, the underlying Software, Documentation, Airport Listings Database or RFP Database made available to authorized user by AIRPORTXO, shall be subject to all of the terms and conditions contained in this Agreement. AIRPORTXO may at any time and for any reason elect to modify, discontinue, delete or restrict any aspect or feature of the Services, Airport Listings Database and RFP Database without notice to Authorized User or any liability to AIRPORTXO or any third party; however, AIRPORTXO agrees to make commercially reasonable efforts to provide Authorized User with prior posted notice by means of notice posted to Authorized Users. No part of this Agreement may be assigned or transferred in any manner without the prior written consent of AIRPORTXO nor may the Authorized User rent, distribute, assign, sub-license or otherwise transfer any of the Authorized User’s rights, duties or obligations under this Agreement without the prior written consent of AIRPORTXO.

Authorized User shall maintain in confidence all provisions of this Agreement and shall not disclose any of same (including any of AIRPORTXO’s pricing or membership fee arrangements) to any third party or parties.

  1. DOCUMENTATION AND COPIES: 

Under the License, Authorized User may

(a) Use the Documentation in support of Authorized User’s use of the Services, Airport Listings Database and RFP Database; and

(b) Make Copies solely for the purpose of Business.

  1. RESTRICTIONS ON USE: 

Authorized User acknowledges that the Airport Listings Database and RFP Database as formatted by AIRPORTXO have substantial monetary value, have a special value due to access only by AIRPORTXO Members and Commercial Users authorized by AIRPORTXO, and are considered the confidential property of AIRPORTXO and that AIRPORTXO retains ownership of all rights, title and interest to the Services, the Software, the Airport Listings Database and the RFP Database. Except as expressly authorized in this Agreement, Authorized User shall not:

(a) use either the Airport Listings Database, the RFP Database or the Services in any manner not directly related to the business of real estate transactions or provision of services between the Commercial Users and the Airport Members;

(b) use either the Airport Listings Database, the RFP Database or the Services for the benefit of anyone except directly related to the business of real estate transactions or provision of services between the Commercial Users and the Airport Members;

(c) circulate or copy either the Airport Listings Database, the RFP Database or the Services in any manner except to authorized users who have a valid Authorized User Agreement which they have signed and delivered to AIRPORTXO which agreement has not been terminated or is suspended, and except to persons or entities who desire or may desire to acquire or dispose of certain of their rights respecting real estate;

(d) use, copy, reproduce or exploit either the Airport Listings Database, the RFP Database or the Services for creating, maintaining or marketing, or aiding in the creation, maintenance or marketing, of any Airport Listings Database or RFP Database which is competitive with the Airport Listings Database or the RFP Database or which is contrary to the By-Laws, the MLS Rules and MLS Policies, or the Real Estate and Business Brokers Act R.S.O. 1990, as amended under the Real Estate and Business Brokers Act, 2002 when proclaimed in force, and as may be further amended from time to time.

The provisions of this Section shall not apply to that part of the Airport Listings Database, as formatted by AIRPORTXO, which is publicly available without breach of any obligation by Authorized User hereunder; or is lawfully obtained by Authorized User from a third party who has a legal right to disclose it.

  1. CONTENT SUBMISSION AND LICENSE: 

All Content submitted by Authorized User to AIRPORTXO for inclusion in the Airport Listings Database or the RFP Database is accepted on the understanding that it is the right of the contributing Authorized User to make the submission and that there are no legal restrictions preventing its submission or publication online or in any other media that AIRPORTXO may utilize. Authorized User agrees to grant AIRPORTXO aperpetual, worldwide, royalty-free, non-exclusive, sub-licensable and transferable right and license (“Content License”) including all related Intellectual Property rights:

(a) To use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, play, and exercise all rights with respect to Authorized User’s Content contribution and to incorporate Authorized User’s Content contribution in other works in any media now known or later developed as required and at AIRPORTXO’s discretion without further rights negotiation. If Authorized User does not want to grant to AIRPORTXO the rights set out above, Authorized User agrees that it shall not submit its contribution to AIRPORTXO; and

(b) To fully exploit such Content and to allow others to do so.

Authorized User warrants, represents and agrees that it will not contribute any Content that is infringing, libelous, defamatory, obscene, pornographic, abusive, or offensive or otherwise violates any law or right of any third party. AIRPORTXO reserves the right to remove any Content from the AIRPORTXO Website at any time, for any reason including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if AIRPORTXO is concerned that Authorized User may have breached the immediately preceding sentence.

  1. CHARGES: 

As a condition of the rights granted in this Agreement, Authorized User shall pay to AIRPORTXO the charges as set forth and as amended by AIRPORTXO from time to time. Payment of charges is due as set forth in the Bylaws and MLS Rules and Policies. If AIRPORTXO does not receive payment when due, interest shall be charged in accordance with the Bylaws and MLS Rules and MLS Policies until such charges, together with all applicable interest, is received by AIRPORTXO.

  1. INTELLECTUAL PROPERTY:

(a) The Services, Airport Listings Database, RFP Database, Software and Documentation are proprietary and confidential to AIRPORTXO, are protected by the Intellectual Property laws of Canada and international treaties and conventions, and shall remain the sole property of AIRPORTXO. Notwithstanding anything in this Agreement to the contrary, AIRPORTXO shall have sole and exclusive ownership of all right, title and interest in and to the Services and Airport Listings Database, RFP Database, Software and Documentation including all derivative works and all modifications and enhancements thereof and derivative works regardless of the form or media in or on which the original and other copies may exist. No provision or clause in this Agreement shall be interpreted as an assignment or grant to Authorized User of any right, title, or interest in or to Intellectual Property, all privileges pertaining thereto remaining the exclusive property of AIRPORTXO (or in some cases, of its subcontractors).

(b) Authorized User shall not obtain any rights in connection with any trade-marks or service marks of AIRPORTXO. Authorized User shall not remove or alter any trade-mark, logo, copyright or other proprietary notices, legends, symbols or labels in the Airport Listings Database Content, RFP Database Content or in the Documentation and shall ensure that the Airport Listings Database Content, RFP Database Content, Copies and Documentation and each copy must contain all of the original proprietary notices.

(c) Authorized User shall

(i) reproduce and display all Notices on Copies Authorized User makes, in accordance with this Agreement;

(ii) not de-compile, reverse engineer, disassemble, modify, analyze or otherwise examine or otherwise reduce the Software to human readable form or create derivative works of the Software, Airport Listings Database and or the RFP Database;

(iii) not delete or in any manner alter any notices, disclaimers or other legends contained in the Software, Services, Airport Listings Database or the RFP Database appearing on any screens, documents, reports, numeric results or other materials obtained by Authorized User through use of the Software and Services (“Notices”); and

(iv) Not provide service bureau facilities or commercial time-sharing services to any third party or supporting operations for any third party through the access and/or use of the Software and/or Services.

(d) Authorized User shall not, at any time or times, during or after the term of this Agreement question or dispute any of AIRPORTXO’s right, title, ownership, license, Intellectual Property, and/or other interests in the Software, the Documentation, the Services, Airport Listings Database or RFP Database nor commit any act or omission which negates, reduces, or impairs any of AIRPORTXO’s rights or interests in any of same; nor file any patent, copyright, and/or other intellectual property application and/or registration relating to any portion of the Software copyright, and/or other Intellectual Property application and/or registration relating to any portion of the Documentation.

(e) Authorized User shall promptly notify AIRPORTXO if Authorized User becomes aware of any (i) error, bug, or security breach in the Services or Software; (ii) unauthorized use, reproduction, or distribution of Content, the Airport Listings Database, the RFP Database, the Software or Documentation; and (iii) breach of the terms of this Agreement. Authorized User shall maintain all such information in confidence, shall only disclose the same to AIRPORTXO, and shall not publicize, publicly distribute, or publicly display any such information.

(f) Authorized User recognizes the validity of AIRPORTXO’s copyrights and trade secrets. Authorized User will cooperate in good faith to secure and preserve AIRPORTXO’s right and title to the copyrights and trade secrets for the Software and of all derivative works, as if said products were their own products. Authorized User

acknowledges and agrees that the Software is, in all respects confidential information subject to the terms of this Subsection.

(g) Authorized User agrees upon termination of this Agreement to continue to protect AIRPORTXO’s copyrights and trade secrets.

  1. CONFIDENTIAL INFORMATION:

(a) “Confidential Information” means all confidential and/or trade secret information, knowledge, and/or data of every kind disclosed by one party to this Agreement (“Disclosing Party”) to the other party (“Recipient Party”) pursuant hereto.

(b) Confidential Information shall not include any information, knowledge, and/or data disclosed pursuant to this Agreement to the extent same: (i) is or hereinafter becomes part of the public domain through no wrongful act of the Recipient Party, or (ii) is known to the Recipient Party free of any obligation of confidentiality at the time of first disclosure hereunder; or (ii) is lawfully obtained by the Recipient Party from a third party without obligation of confidentiality, without breach of any obligation of confidentiality to the Disclosing Party, and without breach of this Agreement; or (iv) is disclosed pursuant to a court order provided that the Recipient Party provides a copy of such court order to the Disclosing Party prior to such disclosure and Recipient Party takes all reasonable steps, consistent with such order, to maintain the confidentiality of same.

(c) Each Recipient Party shall: (i) receive and maintain all Confidential Information received hereunder in confidence; (ii) use Confidential Information received hereunder solely for the purposes of such Recipient Party lawfully exercising its rights and/or performing its obligations hereunder and for no other purpose whatsoever; (iii) use the same degree of care to protect Confidential Information received hereunder as such Recipient Party itself uses to protect its own confidential information from unauthorized use, copying, and/or disclosure which standard shall be no less than reasonable care; and (iv) disclose Confidential Information received hereunder only to those of its directors, officers, employees, who have a direct need to know same for the purpose stated above and who are bound by written confidentiality obligations at least as restrictive as those contained herein.

(d) All ownership, license, Intellectual Property, moral, and other rights to Confidential Information disclosed hereunder shall remain with the Disclosing Party and/or with such Disclosing Party’s licensors.

(e) Each Recipient Party shall promptly cease all use of all Confidential Information received hereunder upon any termination or expiry of this Agreement and shall promptly return all such Confidential Information to the Disclosing Party by a secure means without delay.

  1. PRIVACY:

(a) Compliance with Personal Information Protection and Electronic Documents Act. Authorized User shall at all times comply with all applicable laws and regulations. Without limiting the generality of the foregoing, Authorized User shall ensure that all Personal Information that may be collected by or on behalf of Authorized User in connection with the Airport Listings Database, the RFP Database and/or the Services will be collected, used, disclosed and maintained strictly in accordance with the requirements of all applicable privacy legislation including, without limitation, the Personal Information Protection and Electronic Documents Act (“PIPEDA”) of Canada and any successor of similar effect in the Province of Ontario as though that legislation were fully in force and fully applicable to the Authorized User.

(b) Currency of Information and Listings. Subject to Section 9(a) above, Authorized User shall promptly, and in any event within 60 calendar days, destroy, erase or make anonymous Authorized User’s records and file copies of all of Authorized User’s customer and client personal information that is no longer required to fulfill the identified purpose. Authorized User will, upon request from AIRPORTXO, provide a written certification attesting to such destruction or erasure and will provide AIRPORTXO with a copy of Authorized User’s guidelines governing the destruction of personal information.

(c) Consent. Authorized User consents to and authorizes AIRPORTXO to collect, retain, use and disclose all information provided to AIRPORTXO relating to the Airport Listings Database, the RFP Database and the Services (including, in each case, personally identifiable information) for all purposes relating to the sale of real estate in Ontario and in the course of providing support for Members of AIRPORTXO to carry on their real estate businesses in Ontario including, without limitation, collection, use and retention of Authorized Users’ personally identifiable information for AIRPORTXO’s own administrative purposes, collection, retention, use and disclosure of Authorized Users’ personally identifiable information in the form of a AIRPORTXO membership roster that is compiled and disclosed to AIRPORTXO’s Members from time to time in paper and/or electronic formats and collection, retention and disclosure of all information submitted through the Services and in the form of listings to the Airport Listings Database or information in the RFP Database including, without limitation, Authorized Users’ name and relationship to particular real estate transactions, all financial particulars of such transactions and disclosure of such information to all users of the Airport Listings Database or the RFP Database in any form whatsoever, and all calendar, contact or other information collected, used, disclosed or maintained as part of the authorized User’s use of the Services. For purposes of this Section 9 (c) “personally identifiable information” shall include, but not be limited to, Authorized User’s and its client’s names, phone numbers, business and home addresses and employers.

(d) Cessation of Use. Subject to the provisions of this Agreement, Authorized User shall cease all use of all Personal Information received pursuant to this Agreement upon any termination or expiry of this Agreement.

  1. CONDITIONS AND RESTRICTIONS ON USE:

(a) Access. AIRPORTXO shall assign Passwords, as well as an Authenticator, to Authorized Users to enable Authorized Users to access the Services, Airport Listings Database, RFP Database and Software. Authorized User agrees to be fully responsible for all activities that occur under Authorized User’s Password or account and to not permit any person other than the Authorized User to access the Authorized User’s Password or account or use the Authorized User’s Authenticator. In the event Authorized User discovers unauthorized access to or use of Authorized User’s account, Password, or Authenticator, Authorized User must notify AIRPORTXO’s Director of Member Services or Chief Information Officer immediately. AIRPORTXO reserves the right from time to time to change the Passwords by notice to Authorized User, or to require Authorized User to change its Password or Authenticator. Authorized User must change its Password within one (1) day after notification of the requirement to change the Password in order to continue to be entitled to access the Data Base and Software.

(b) Technical Standards. The Standards list the minimal computer and software configuration together with associated technological criteria to enable Authorized User to access, communicate with and use the Services, Airport Listings Database, and RFP Database. Authorized User is solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services (such as long distance phone charges) not owned or operated by or on behalf of AIRPORTXO, that allow Authorized User to access and use the Software and Services, and for all expenses relating thereto (plus any applicable taxes). Authorized User agrees to access and use the Software and Services in accordance with any and all operating instructions or procedures that may be issued by AIRPORTXO, and amended by AIRPORTXO from time to time.

(c) Performance. Authorized User understands and agrees that the operation and availability of the systems used for accessing and interacting with the Software and Services, including, the public telephone, computer networks and the Internet or to transmit information, whether or not supplied by Authorized User or AIRPORTXO, can be unpredictable and may, from time to time, interfere with or prevent the access to and/or the use or operation of the Software and Services. AIRPORTXO shall not in any way be responsible for any such interference with or prevention of Authorized User’s access and/or use of the Software and Services.

(d) Compliance with AIRPORTXO Requirements Authorized User must comply with all provisions in the AIRPORTXO Requirements. In order to continuously improve and update the quality of the Services that it provides, AIRPORTXO reserves the right to change or modify the AIRPORTXO Requirements from time to time. Such changes shall become effective

(i) In the case of the Standards, six months; and

(ii) In the case of AIRPORTXO’s MLS Policies and MLS Rules, five days

after AIRPORTXO has either, in writing, notified Authorized User of such change, which writing may consist of, among other things, publishing the document known as the “Notice Page” on the AIRPORTXO Website or otherwise, or included notice of such change in the Airport Listings Database and/or RFP Database. If Authorized User does not comply with the applicable AIRPORTXO Requirements, or does not comply with a change to any such applicable AIRPORTXO Requirements after a change becomes effective, Authorized User may not be able to access the Services, Airport Listings Database or RFP Database and will furthermore be in breach of this Agreement. Changes to any of the Standards, AIRPORTXO’s MLS Policies, or AIRPORTXO’s MLS Rules shall be available for review at any time on reasonable notice during normal business hours at the offices of AIRPORTXO. As well, any changes to the Standards shall be available electronically upon Authorized User accessing the Airport Listings Database or RFP Database. Authorized User accepts complete responsibility to ensure that it has the most current version of the Standards, AIRPORTXO’s MLS Policies, and AIRPORTXO’s MLS Rules at all times.

(e) Non-Interference. Authorized User shall not attempt to access any systems, programs or data of AIRPORTXO that is not licensed under this Agreement, or otherwise made available by AIRPORTXO for public use;

(f) Suspension. The License rights granted to Authorized User under Section 2 shall be suspended immediately upon the Authorized User’s brokerage delivering to AIRPORTXO, in AIRPORTXO’s then currently authorized form, a signed Notice of Transfer which Notice states or provides that Authorized User’s license with the brokerage has been surrendered or terminated (“Suspension”). The License rights may be reinstated as if such Suspension had not occurred if at any time during or following such Suspension, the Board of Directors of AIRPORTXO permits Authorized User a period of time to relocate with a new brokerage that is Member of AIRPORTXO and that Broker of Record signs and delivers to AIRPORTXO and in AIRPORTXO’s then currently authorized form, either

(i) A validly executed and current Guarantee and Indemnity (available as part of AIRPORTXO’s Application for Membership and Agreement form in support of Authorized User, or

(ii) A Notice of Transfer relating to the Authorized User.

  1. LIMITATION OF LIABILITY:

(a) THE SERVICES, SOFTWARE, AIRPORT LISTINGS DATABASE AND RFP DATABASE ARE PROVIDED “AS IS” WITHOUT ANY GUARANTEE, REPRESENTATION, CONDITION OR WARRANTY OF ANY KIND, EITHER EXPRESSED, IMPLIED OR STATUTORY, USAGE OF TRADE OR COURSE OF DEALING INCLUDING,

BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AIRPORTXO MAKES NO WARRANTIES AND ASSUMES NO LIABILITY WHATSOEVER REGARDING THE TRUTH OR ACCURACY, CURRENCY, OR COMPLETENESS OF THE SERVICES, SOFTWARE, AIRPORT LISTINGS DATABASE OR RFP DATABASE. AUTHORIZED USER AGREES THAT ANY USE OF THE AIRPORT LISTINGS DATABASE, RFP DATABASE AND/OR SOFTWARE BY OR ON BEHALF OF AUTHORIZED USER OR ANY PERSON OR ENTITY WHO ACQUIRES THE RIGHT OF SUCH USE, DIRECTLY OR INDIRECTLY BY OR THROUGH AUTHORIZED USER, IS DONE AT AUTHORIZED USER’S SOLE RISK.

(b) Authorized User acknowledges that neither AIRPORTXO nor its directors, officers, employees or agents will assume any responsibility with respect to the use, copying or in any manner relating to how Authorized User, any of their employees, agents or any other person uses or relates to the AIRPORTXO Website, Services, Software, Airport Listings Database, RFP Database or any Third Party Website or the results of any act or omission related thereto in any manner. AIRPORTXO, its directors, officers, employees and agents, will not be liable to Authorized User or to Authorized User’s clients or customers, any of their employees, agents or to any other party for any direct, indirect, special, consequential, incidental, contingent, punitive or exemplary damages, or damages of any nature including without limitation lost profits, howsoever caused, arising in contract, tort (including negligence), fundamental breach, breach of a fundamental term, or otherwise, or out of or in connection with this Agreement and/or the supply, use, performance or non-performance of the Airport Listings Database, the RFP Database, the Software or any Third Party Website or relating to the assistance provided by AIRPORTXO, even if AIRPORTXO or its employees or agents have been advised of the possibility of such damages, regardless of the form of action and whether or not such damages are foreseeable.

(c) Authorized User shall indemnify, defend and save harmless AIRPORTXO, its partners and its and their respective directors, officers, employees and agents from and against all damages, costs and expenses relating in any manner, actual or threatened, to any claim, action, cause of action or any proceeding made, sustained, brought or prosecuted in any manner based upon, occasioned by or attributable to any injury, infringement or damage arising from: (i) any and all negligent or reckless acts or omissions of Authorized User, or its partners, or its or their respective directors, officers, employees, representatives or agents, in the performance or purported performance of this Agreement; (ii) breach of this Agreement except directly by AIRPORTXO; or (iii) breach of any Intellectual Property, moral or property rights related to the AIRPORTXO Website, the Services, Software, Airport Listings Database, RFP Database or any Third Party Website by Authorized User, or its partners, or its or their respective directors, officers, employees, representatives or agents, or any person or entity who gained access to the Airport Listings Database by or through Authorized User, directly or indirectly.

(d) Authorized User agrees to defend, indemnify and hold AIRPORTXO as well as each of the directors, officers, agents, and employees of AIRPORTXO harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonably lawyers’ fees and court costs) arising or resulting from Authorized User’s breach of any term of this Agreement or caused by acts or omissions performed by Authorized User or under Authorized User’s Password or any password issued by Authorized User to Licensed Authorized Users or shared by either of them with others.

(e) Authorized User shall indemnify, hold harmless and, at the request of AIRPORTXO, defend AIRPORTXO, its affiliates and its and their respective officers, directors and employees from and against any and all costs, expenses, awards of damages or settlements made in relation to any proceedings, complaints, actions or claims, or in relation to compliance by AIRPORTXO or its contractors with any orders or directions given against or to it or its affiliates by any privacy commissioner, tribunal, person or court, arising from any breach by Authorized User of any of its obligations as set out in Section 9.

  1. TERMINATION:

(a) In the event Authorized User is in breach of:

(i) this Agreement;

(ii) its payment obligations as set forth in Section 6 and any provision contained in the By-Laws, AIRPORTXO Requirements or the Real Estate and Business Brokers Act R.S.O. 1990, as amended under the Real Estate and Business Brokers Act, 2002 when proclaimed in force, and as may be further amended from time to time;

and, with respect to Section12 (a)(i), if such breach is not cured within two weeks after notice from AIRPORTXO, or with respect to Section 12 (a)(ii), if such breach is not cured immediately, then AIRPORTXO has the right to invoke any or all of the rights contained in the AIRPORTXO Requirements and Authorized User shall comply with the procedures and obligations as contained in the AIRPORTXO Requirements.

(b) Authorized User may terminate this Agreement at any time, provided it gives AIRPORTXO prior written notice, and provided that it complies with the termination procedures and obligations as set forth in the AIRPORTXO Requirements.

(c) In the event AIRPORTXO decides, at any time, not to continue to offer, maintain or develop the Airport Listings Database and/or RFP Database to meet the AIRPORTXO Requirements and Standards, AIRPORTXO may terminate this Agreement provided it gives Authorized User six months prior written notice and Authorized User shall comply with the termination procedures and obligations as contained in the AIRPORTXO Requirements.

(d) If at any time after the time period permitted by AIRPORTXO to permit Authorized User time to relocate with a new brokerage, there is not in existence a validly executed and current Guarantee and Indemnity relating to the Authorized User, in AIRPORTXO’s form which is available as part of AIRPORTXO’s Application for Membership and

Agreement form, or a Notice of Transfer relating to the Authorized User in the then current form as authorized by AIRPORTXO from time to time, which is executed by any type of Broker of Record who is a Member of AIRPORTXO, then AIRPORTXO may at any time thereafter terminate this Agreement by notice to Authorized User.

  1. INJUNCTIVE RELIEF.

Authorized User acknowledges that a violation of Sections 4, 7, 8, 9, and 10 of this Agreement would cause irreparable harm to AIRPORTXO for which no adequate remedy at law exists and Authorized User therefore agrees that, in addition to any other remedies available, AIRPORTXO shall be entitled to seek injunctive relief and to recover all costs and expenses, including reasonable lawyer’s fees incurred because of any such legal action to enforce the terms of Sections 4, 7, 8, 9, and 10.

  1. NOTICES

(a) Any notice, direction or other instrument required or permitted to be given to a Party shall be in writing and shall be sufficiently given if delivered personally, mailed by prepaid registered mail, or transmitted by fax or other form of recorded communication to the Party as follows:

(i) in the case of AIRPORTXO, at 1400 Don Mills Road, Toronto, Ontario M3B 3N1 Attention: President

(ii) in the case of Authorized User, at the Authorized User’s business address as identified in the Application last filed by Authorized User with AIRPORTXO, and to be addressed to the Attention of the Authorized User with a copy to the Attention of the Authorized User’s Broker of Record/Manager (as applicable) at the business address as last filed by such Broker of Record/Manager with AIRPORTXO.

(b) Either Party may change its address for service from time to time by notice given to the other Party in accordance with the foregoing.

(c) Provided that either Party may, at such Party’s option, elect to provide electronic legal notices regarding this Agreement to the other Party at the email address identified in the acceptance or signature block of this Agreement. It shall be the responsibility of the recipient Party to provide prompt notice to the other Party of any changes in email addresses.

  1. ELECTRONIC ACCEPTANCE.

(a) By clicking “I accept” or signing this Agreement where indicated below, Authorized User agrees and consents to (i) contract electronically with AIRPORTXO for the Software and Services in accordance with this Agreement; (ii) receipt of electronic legal notices regarding this Agreement to the email account Authorized User provided under Section 14 14(c)or upon accessing the Services; and (iii) that by clicking “I Accept”, Authorized User intends to be bound by this Agreement.

(b) Copy of Agreement. For electronic acceptance: In order to access, download, and print this Agreement, Authorized User should click on the link for the .PDF file version of this Agreement. For Signature Acceptance of this Agreement: Authorized User acknowledges having received a copy of this Agreement. Changes to these hardware and software requirements, if any, will be e-mailed to Authorized User. Authorized User may also request to receive a copy of this Agreement by Canada Post mail free of charge by giving notice to AIRPORTXO of such request within 45 days after entering into this Agreement.

  1. MISCELLANEOUS.

(a) Entire Agreement. This Agreement constitutes the entire agreement by which the relationship between AIRPORTXO and Authorized User will be governed. There are no oral agreements, arrangements, representations or understandings between the Parties and this Agreement may not be amended or modified except by an instrument in writing duly signed by both Parties. This Agreement constitutes the entire agreement between the Parties with respect to the transactions contemplated in this Agreement and cancels and supersedes any and all prior understandings, agreements, negotiations and discussions with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements or understandings, express or implied, between the parties other than as expressly set forth in this Agreement.

(b) Time of the Essence. Time shall be of the essence of this Agreement.

(c) Governing Law. This Agreement shall be construed in accordance with the laws of the Province of Ontario except that no choice of law doctrine shall be used to apply the laws of any other jurisdiction. The Parties further agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

(d) Consent to Jurisdiction. Authorized User consents to the exclusive jurisdiction of the federal and provincial courts located in the Province of Ontario in connection with any action or proceeding to enforce, or arising out of, this Agreement and agrees that venue will be proper in such court on any such matter. The Parties agree that a summons and complaint may be served by mail or overnight courier service at their addresses first set forth above or at such other address as such party may have given written notice of in accordance with Section 14.

(e) Waiver. The waiver by either party of any breach or default by the other party in the performance of any obligation hereunder shall not constitute a waiver of any subsequent breach or default.

(f) Amendments. AIRPORTXO may amend, add or remove portions of this Agreement at any time and from time to time without notice to Authorized User and the then current version shall be posted at the AIRPORTXO Website. Upon the posting of such version as aforesaid and Authorized User’s use of the Software, Airport Listings Database or RFP Database thereafter, this Agreement shall be deemed to be so amended without further acknowledgement of Authorized User.

(g) Severability. To the extent that any law, statute, treaty or regulation by its terms as determined by a court, tribunal or other governmental authority of competent jurisdiction, is in conflict with the terms of this Agreement, the conflicting terms of this Agreement shall be superseded only to the extent necessary by the terms required by such law, statute, treaty or regulation. If any provision of this Agreement shall be otherwise unlawful, void or for any reason unenforceable, then that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties. In either case, the remainder of this Agreement shall continue in full force and effect.

(h) Currency. All dollar amounts referred to in this Agreement, including the symbol $, refer to lawful money of Canada.

(i) Language. This Agreement and any documents relating thereto have been prepared in the English language at the express request of the parties. Les parties ont exigé, et par les présentes confirment leur demande, que ce contrat soit rédigé en anglais seulement.

(j) Headings. The division of this Agreement into Sections and the use of headings are for convenience of reference only and shall not affect the interpretation of this Agreement.

(k) Gender and Number. In this Agreement words importing a specific gender include all genders and words importing the singular include the plural and vice versa.

(l) Force Majeure. AIRPORTXO will not be responsible for any failure to perform due to causes beyond its reasonable control, including, acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like.

(m) Assignment and Corporate Reorganization. The rights granted to Authorized User under this Agreement are personal in character. Neither this Agreement nor any rights granted hereby may be assigned by Authorized User voluntarily or by operation of law without AIRPORTXO’s prior written consent and any such attempted assignment shall be null and void. For purposes of this Agreement, “assignment” shall be deemed to include the transfer of all or substantially all of the assets of, or a majority interest in Authorized User or the voting stock of Authorized User, or the merger of Authorized User with one or more entities. This Agreement shall inure to the benefit of and be binding upon any successor or assign of AIRPORTXO.

(n) Parties. Nothing contained in this Agreement is intended to confer upon any person other than the parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this Agreement, except with respect to Parties who shall be deemed third party beneficiaries under this Agreement but solely with respect to those terms that specifically reference a Party or the Parties.