END USER LICENSE AGREEMENT
Please read this End User License Agreement (the “Agreement”) carefully. Taking any step to access or otherwise use the report known as the PwC Real Estate Investor Survey (“REIS”) constitutes your consent to this Agreement.
This Agreement is between you and PricewaterhouseCoopers Advisory Product Sales LLC (“PwC” or “we” or “us”) concerning your access to or use of the REIS. This Agreement hereby incorporates by this reference any additional terms and conditions posted by PwC through the REIS, or otherwise made available to you by PwC.
BY ACCESSING OR OTHERWISE USING THE REIS THROUGH THIS WEBSITE, YOU AFFIRM THAT IF YOU STATED YOU ARE PURCHASING THIS SUBSCRIPTION FOR PERSONAL USE YOU ARE AN INDIVIDUAL PURCHASING THE REIS FOR YOUR INDIVIDUAL USE. YOU MAY NOT ACCESS THE REIS ON BEHALF OF ANY BUSINESS ENTITY (E.G., A CORPORATION, LLC, PARTNERSHIP, ETC.), UNLESS YOU HAVE DISCLOSED THAT BUSINESS ENTITY TO PWC, AND PWC HAS APPROVED USE OF THE REIS BY SUCH BUSINESS ENTITY.
BY ACCESSING OR OTHERWISE USING THE REIS, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT OR, IF YOU ARE NOT, THAT YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THIS AGREEMENT.
References to “you” and “your” in this Agreement refer to you as an individual, and not any organization that you may be affiliated with.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 18 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
2. Jurisdictional Issues. The REIS is accessible from the United States, and is not intended to subject PwC to any non-U.S. jurisdiction or law. The REIS may not be appropriate or available for access or use in some non-U.S. jurisdictions. Any access or other use of the REIS is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the REIS’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
3. Prohibited Activities. In connection with the REIS, you must not (and must not permit any third party to):
• Except as otherwise agreed by PwC, use the REIS for any commercial purpose on behalf of any business entity.
• Use the REIS for any purpose that is fraudulent or otherwise tortious or unlawful.
• Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the REIS except as expressly authorized herein, without PwC’s express prior written consent.
• Reverse engineer, decompile or disassemble any portion of the REIS, except where such restriction is expressly prohibited by applicable law.
• Remove or alter any copyright, trademark or other proprietary rights notice on the REIS.
• Incorporate any portion of the REIS into any product or service or software, without PwC’s express prior written consent.
You are responsible for obtaining, maintaining and paying for any hardware, software, and telecommunications and other services needed to access or use the REIS.
4. Registration; No Sharing of User Name and Password. You may need to register or otherwise establish an account to access or otherwise use all or part of the REIS. We may reject, or require that you change, any user name, password or other information that you provide to us in registering or otherwise establishing an account. Your user name and password are for your personal use only and should be kept confidential. YOU MUST NOT PROVIDE YOUR USER NAME AND PASSWORD TO ANY OTHER PERSON OR ENTITY FOR PURPOSES OF ACCESSING OR OTHERWISE USING THE REIS. You, and not PwC, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your account.
YOU MUST NOT, DIRECTLY OR INDIRECTLY, ALLOW ANY OTHER PERSON OR ENTITY TO USE YOUR ACCOUNT TO ACCESS OR OTHERWISE USE THE REIS.
5. Feedback. If you provide to us any ideas, proposals, suggestions or other information or materials (“Feedback”), whether related to the REIS or otherwise, you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place PwC under any fiduciary or other obligation. You hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze, exploit and practice such Feedback, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
You represent and warrant that you have all rights necessary to grant the licenses granted in this Section, and that your Feedback, and your provision thereof through and in connection with the REIS, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Feedback that you may have under any applicable law under any legal theory.
6. Your Limited Rights. The REIS is licensed (not sold) to you. Except as otherwise agreed by PwC, we hereby grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to access and otherwise use the REIS solely for your personal, non-commercial use, subject to your compliance with this Agreement. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the REIS and delete the REIS from the equipment on which it is stored.
7. PwC’s Proprietary Rights. We and our suppliers own the REIS, which is protected by proprietary rights and laws. As between you and us, the REIS and all non-public information and materials (technical, business and otherwise) related to the REIS (and the use of it), are our intellectual property and/or “Confidential Information”, as applicable, and you will not use or disclose to third parties Confidential Information except to the extent necessary to exercise your rights and fulfill your obligations under this Agreement or as required by applicable law. Our trade names, trademarks and service marks include the name “PricewaterhouseCoopers” and “PwC” and any associated logos, marks and designs. All trade names, trademarks, service marks, logos and designs on the REIS not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks, logos or designs in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained in this Agreement or the REIS should be construed as granting any right to use any trade names, trademarks, service marks, logos or designs without the express prior written consent of the owner. For clarity and not as a limitation to the foregoing, as between you and PwC, we retain all right, title and interest in and to the patent, copyright, trademark, trade secret and other intellectual property rights in the REIS and any derivative works thereof, subject only to the limited licenses set forth in this Agreement, and you do not acquire any rights, express or implied, in the REIS other than those rights expressly granted under this Agreement.
8. CPA Notice; PwC Related Parties. PwC is owned by professionals who hold CPA licenses as well as by professionals who are not licensed CPAs. Depending on the nature of the products and services provided to you under this Agreement (including the REIS or through the REIS), non-CPA owners may be involved in providing such products and services. PwC is a firm in the global network of separate and independent PricewaterhouseCoopers firms (exclusive of PwC, the “Other PwC Firms”). PwC may draw on the resources of (and subcontract to) its affiliates, the Other PwC Firms and third party contractors and subcontractors, within or outside of the United States (each, a “PwC Service Provider”) for internal, administrative and regulatory compliance purposes or in connection with providing the REIS. The PwC Service Providers and their and PwC’s respective partners, principals, employees and agents (collectively, the “PwC Beneficiaries”) will have no liability or obligations arising out of this Agreement, and you agree to bring any claim or other legal proceeding of any nature arising from or related to this Agreement or its subject matter against PwC and not against the PwC Beneficiaries. While PwC is entering into this Agreement on its own behalf, this Section 11 also is intended for the benefit of the PwC Beneficiaries.
9. DISCLAIMER OF WARRANTIES. The REIS (including any information and materials made available to you in connection with using the REIS) is not for any third party’s use or benefit and is not intended to be relied upon by you or any third party, including to operate or promote your business, secure financing or capital in any form, sell or underwrite securities, obtain any regulatory or governmental approvals, or otherwise be used in connection with procuring services or other benefits from any entity. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE REIS AND ANY PRODUCTS, SERVICES AND THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) PWC DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE REIS AND ANY PRODUCTS, SERVICES AND THIRD PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH PWC AND THE PWC BENEFICIARIES AND THEIR RESPECTIVE PARTNERS, PRINCIPALS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
While we try to maintain the timeliness, integrity and security of the REIS, we do not guarantee that the REIS is or will remain updated, complete, accurate, correct or secure, or that access to or other use of the REIS will be uninterrupted. The REIS may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the REIS. If you become aware of any such alteration, contact us at email@example.com with a description of such alteration and its location with respect to the REIS.
10. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) PWC WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, PWC WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR INSTALLATION, ACCESS OR OTHER USE OF OR INABILITY TO INSTALL, ACCESS OR OTHERWISE USE THE REIS OR FROM ANY PRODUCTS, SERVICES OR THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE REIS OR ANY PRODUCTS, SERVICES OR THIRD PARTY MATERIALS IS TO STOP USING THE REIS; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF PWC FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL BE THE GREATER OF ONE HUNDRED DOLLARS ($100) AND THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO PWC TO INSTALL, ACCESS OR OTHERWISE USE THE REIS. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH PWC AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
11. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless PwC and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of (including installation of and otherwise accessing), or other activities in connection with, the REIS (including all Feedback); and (b) any violation or alleged violation of this Agreement by you.
12. Termination. This Agreement is effective until terminated. PwC may immediately terminate this Agreement without penalty or liability: (a) if continuing to perform under this Agreement could, in PwC’s sole and absolute judgment, result in PwC’s noncompliance with any applicable law, rule or regulation, or any regulatory guidance, professional standard, or self-regulatory rule or policy, in each case as in effect from time to time; or (b) upon the occurrence of an event that, in PwC’s sole and absolute judgment, causes or would be likely to cause PwC or any Other PwC Firm not to be “independent” as required by any law, rule, regulation or professional standard relating to independence. PwC may terminate this Agreement at any time and without prior notice, for any reason, including if PwC believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination, your right to use the REIS will immediately cease, and you will cease all use of the REIS, return to us or destroy the REIS and all related materials in your possession, and so certify to us. In addition, PwC may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 2 through 11 and 13 through 17 will survive any termination of this Agreement.
13. Governing Law; Arbitration. This Agreement, and any dispute relating to this Agreement or the subject matter of this Agreement, will be governed by and construed, interpreted and enforced in accordance with the domestic laws of the State of New York, without giving effect to any provisions that would require the laws of another jurisdiction to apply and regardless of your location. The parties expressly disclaim the applicability of, and waive any rights based on, the Uniform Computer Information Transactions Act, the Uniform Commercial Code, or the United Nations Convention on Contracts for the International Sale of Goods, however each may be codified or amended. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE REIS AND THE ACCESS OR OTHER USE THEREOF) OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND PWC UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL PANEL OF THREE ARBITRATORS INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT PWC AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, nothing in this Agreement will preclude either party from seeking equitable relief in a court having jurisdiction. The arbitration will be conducted in accordance with the Rules for Non-Administered Arbitration of the International Institute for Conflict Prevention and Resolution then in effect (“CPR Rules”). The arbitration will be conducted before a panel of three arbitrators selected using the screened process provided for in the CPR Rules. The arbitration panel will have no power to award non-monetary or equitable relief of any sort, or to award damages inconsistent with this Agreement (including Section 16). Judgment on any arbitration award may be entered in any court having jurisdiction. All aspects of the arbitration will be treated as confidential. You acknowledge and agree that any demand for arbitration must be issued within one (1) year from the date that you became aware or should reasonably have become aware of the facts that give rise to PwC’s alleged liability and in any event no later than two (2) years after the cause of action accrued.
14. Information or Complaints. If you have a question or complaint regarding the REIS, please send an e-mail to firstname.lastname@example.org. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.
15. Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available through the REIS infringe your copyright, you (or your agent) may send to PwC a written notice by mail or e-mail, requesting that PwC remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to PwC a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to PwC’s DMCA agent as follows: By mail to PricewaterhouseCoopers LLP, Attn: DMCA Agent, Office of the General Counsel, Three Embarcadero Center, San Francisco, CA 94111; by e-mail to email@example.com; or by fax to the fax number that we will provide to you if you request such fax number by contacting PwC’s DMCA agent by mail, e-mail or telephone at the addresses or phone number provided in this Section. PwC’s DMCA agent’s phone number is (415) 498-7542.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
16. Trade Control Laws. The REIS may be subject to applicable export control laws and economic sanctions, including those of the United States and other relevant jurisdictions (“Trade Control Laws”). You agree to comply with all applicable Trade Control Laws and you represent, warrant and covenant as follows: (a) you will not use the REIS except as authorized by applicable Trade Control Laws; (b) you are not located or ordinarily resident in any country subject to comprehensive U.S. economic sanctions (currently, Cuba, Iran, North Korea, Sudan, Syria and Crimea (region of Ukraine) (“Sanctioned Countries”)); (c) you will not access or otherwise use the REIS from or on behalf of any Sanctioned Country; (d) you are not and are not acting on behalf of a person or entity on any U.S. Government or other applicable restricted party lists; (e) you will not use the REIS for any end-uses restricted by the U.S. Government; and (f) you will not use the REIS to store or transfer any data subject to the International Traffic in Arms Regulations or subject to the Export Administration Regulations and controlled at a level other than EAR99/AT.
17. Miscellaneous. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and PwC. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and PwC relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and PwC relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made by posting or linking to a revised Agreement through the REIS or any updated version of the REIS, by e-mail (including via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. PwC will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.