Customer Services Agreement
This is a legal agreement between Avesdo Technologies Inc. (“Avesdo” or “we” or “us”) of Suite 200 – 1183 King Street West, Toronto, ON., M6K 3C5, and the real estate developer, marketing agency or other entity (“Customer” or “you”)
This agreement applies to your use of any Avesdo Applications, including Avesdo’s web-based real estate sales applications, which facilitate paperless and real-time contract management, sales reporting, realtor performance analytics and other market data analysis for the first sale of newly-constructed, multi-unit, real property to third party purchasers, and which may include ancillary features to streamline the purchase, financing, and insuring of those real properties (collectively, the “Applications”) in connection with the real property development (the “Project”) described in a mutually agreeable proposal (“Proposal”). A Proposal will be evidenced by a quote (“Quote”). You will receive a Quote when you first subscribe for the Services (as defined below), each time you renew your Services as well for each property or Project for which you would like to use the Services.
By entering into a Proposal and/or accessing or using the Applications, you agree to the terms and conditions set out herein.
- Users and Purchaser. Your license to use the Applications entitles you to designate a limited number (as described in the Proposal) of your registered employees and contractors (each a “User”), and an unlimited of potential purchasers of real estate units in the Project (each a “Purchaser”) and third party buyer agents representing purchasers (“Buyer Agents”). Each User and Purchaser will be assigned a login identification which will include a username and password (a “Login ID”). You are responsible for all access to the Applications and use of the Services by each of the Users who are your employees and contractor, and shall use reasonable efforts and cooperate with us to enforce these terms and discontinue any access to any Users or Purchasers, who are not your employees and who violate this agreement.
Subject to the terms and conditions of this agreement, Avesdo will provide the following services (collectively, the “Services”):
- program and implement the use of the Applications in relation to a Project through the collection of information from the Customer about the Project and the formatting of that information for use in the Applications;
- host the Applications, or arrange for the Applications to be hosted, and made available online for the your use; and
- permit Customer and its Users to access and use the Applications in accordance with the terms and conditions of this agreement.
Avesdo may use third party contractors to provide some or all of the Services; providing that Avesdo shall be responsible for any such contractors’ compliance with this agreement. Hosting services may be provided using servers and other equipment located in Canada and the United States. Avesdo may make changes to the Services as needed to comply with applicable laws or safety requirements.
- Additional Offering. In addition to the Services, Avesdo may provide Purchasers with a service to assist them with pre-approval of financing, obtaining insurance and other offerings designed to assist with the sale process. Avesdo will be responsible for obtaining consent for collection of Personal Information and credit checks in connection with such offerings. You consent to our collection of such Personal Information and its use by us in accordance with Section 15. Any such additional offerings will be charged separate and apart from this Agreement.
- Access. Avesdo hereby grants you a non-exclusive, revocable licence to access and use the Applications in accordance with the terms and conditions of this agreement, for your own internal business purposes relating to the development and sale of the Project only. You must comply with this agreement and applicable laws when using the Applications and Services. You may sublicense the license granted to you in this agreement only to your Affiliates, Users and Purchasers. In this Agreement, “Affiliate” has the meaning given to it in the Business Corporations Act (Ontario). If any Affiliate or User (as defined below) takes any action or inaction that would constitute a breach of this agreement if such Affiliate or User were a party to this agreement, you will be liable to Avesdo to the same extent that you would if you had breached this agreement in the same way.
- No Other Rights. All rights not expressly granted in this agreement are reserved by Avesdo. For clarity, nothing in this agreement will be construed as granting you any ownership, security, right in any intellectual property, or other rights in or relating to any or all of the Applications.
Cooperation. You will use commercially reasonable efforts to cooperate with Avesdo in a timely manner as required for Avesdo to provide the Services. Without limiting the foregoing, you will:
- provide and maintain all hardware, software and connectivity (and all related licences) required for your Users to access the Services;
- review all Project details and verify that the correct data and documentation have been provided and loaded on the Applications prior to the sales launch of the Project; and
- rectify any errors or omissions in the Project information and data for which you or your Users are responsible.
- Interactions. Subject to the terms and conditions of this agreement (including Avesdo’s obligations hereunder); (i) you are solely responsible to all communications, contracts, disputes and other interactions among the Customer, Users and Purchasers (collectively, the “Interactions”); (ii) Avesdo does not make any representations or warranties regarding the information exchanged among those parties or the enforceability of contracts entered into among those parties; and (iii) you are solely responsible for resolving all disputes among those parties.
Fees and Service Level. You will pay all fees on the terms described in each Proposal. Fees may be subject to amendments should the Project for which such Proposal relates be changed. Tiered pricing may apply, the details of which may be found in Avesdo’s product catalogue. You may upgrade your subscription at any time during the then current term by paying the incremental price difference, however you may not downgrade your service level during then then current term. We will send you a notice not less than 90 days prior to the end of the then current subscription period outlining any change in fees for each renewal period. You may elect not to renew your subscription by providing us with notice not less than 30 days prior to the end of the current term. Unless you terminate this agreement in accordance with Sections 26 or 28 or if we terminate this agreement in accordance with Section 22, the fees for any subscription are due and payable for the balance of the term regardless if this agreement has been terminated. We may also suspend or terminate your account should any fees be outstanding beyond the payment periods provided for in this Agreement.
If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
- Expenses. You will reimburse Avesdo for all travel-related expenses reasonably incurred by Avesdo in connection with providing any Services to you, within 30 days after receiving Avesdo’s invoice for those expenses.
- Interest. You will pay simple interest on all overdue amounts at a rate of 6% per year or the maximum rate permitted by law, whichever is less, calculated from the date payment was due until the date payment of all overdue amounts is made in full.
- Security. You will keep all Login IDs confidential, and must ensure that all appropriate user and security settings have been selected in the Applications. You will not allow any third party other than the Users to access or use your Login IDs. You are solely responsible and liable for all activity conducted through your account in connection with the Applications. If you become aware of or reasonably suspect any security breach, including any loss, theft or unauthorized disclosure or unauthorized use of any password or account, you will immediately report the actual or suspected security breach to Avesdo.
- Data Formats. You will ensure that any data the Customer or Users upload into the Applications, together with data pertaining to Purchasers and Buyer Agents acting on behalf of such purchaser (the “Customer Data”) complies with current data format requirements specified by Avesdo. Failure to do so may result in the rejection of the data, and may also result in the failure of the Applications and Services in respect of that data. Avesdo does not review Customer Data for accuracy or proper formatting.
Prohibitions. You must not:
- reverse engineer, de-compile, hack, disable, disrupt, interfere with, disassemble, copy, rent, lease, loan, sell, distribute, decrypt, reassemble, modify, supplement, translate, adapt or enhance, or create derivative works from any of the Applications or the hardware or software used to provide the Applications, or any of the Services;
- attempt to access any data, information or content of any third party through the Applications, except as authorized by Avesdo;
- upload to or transmit via the Applications any data, file, software or link that contains or redirects to a virus, Trojan horse, worm or other harmful component;
upload to or transmit via the Applications any content, link or anything else that (if reproduced, published, transmitted or used) may:
- be defamatory, threatening, abusive, harassing, hateful, obscene, pornographic, harmful or invasive of anyone’s privacy, or violent;
- violate any law including intellectual property, privacy or other laws;
- impersonate any person;
- give rise to civil or other liability; or
- relate to illegal drugs, weapons, gambling or other illegal activities;
- interfere with the any third party’s use of the Applications or Services;
- access the Applications by any means other than through the interface that is provided by Avesdo;
use the Applications to do or attempt to do any of the following without Avesdo’s prior written permission:
- send spam or other bulk messages;
- gain unauthorized access to any data, network or system;
- conduct or promote any commercial activity, other than the purchase of products and services from Avesdo;
- monitor data or traffic on any network or system;
- obtain an email address, user name or other information about a third party without their consent;
- use any misleading, false or deceptive TCP/IP header information in any email or posting; or
- conduct or instigate any denial of service attack against Avesdo’s website or network, or any third party’s website or network;
- improperly make complaints or use “flag” buttons or make false reports via the Applications;
- falsify any data or information available on the Applications;
- delete or modify any copyright or other intellectual property notice on the Applications;
- resell, transfer or otherwise provide any of the Services or the Applications to any third party;
- avoid, circumvent, or disable any access control technology, security device, procedure, protocol, or technological protection mechanism that may be included or established in or as part of any the Applications or any hardware/software used to provide the Applications, or third party hardware/software or services; or
- authorize or encourage any employee or third party to do any of the above.
Confidentiality. Each party will (and will cause its employees and agents to) keep the other party’s Confidential Information strictly confidential, and will not: (i) use it or take any benefit from it except as required to perform or receive the Services, or (ii) disclose it to anyone unless the other party consents or unless the recipient is required by law or court order to do so.
In this agreement, “Confidential Information” means all information, data and financial information relating to the business, commercial strategies, pricing, personnel, customers, products or services of a party (the “discloser”) but excludes any information that the other party (the “recipient”) proves:
- was lawfully in the recipient’s possession before receiving it from the discloser,
- is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party, or
- is or becomes generally available to, or accessible by, the public through no fault of recipient.
Customer Data. As between the parties, the Customer solely owns the Customer Data. The Customer hereby grants Avesdo and its service providers an irrevocable, royalty-free licence to collect, manipulate, format, copy, display, transmit and otherwise use and disclose that data as necessary to perform its obligations under this agreement and to provide the Services to the Customer. The Customer represents and warrants to Avesdo that:
- the Customer has obtained all consents required under privacy laws and other applicable laws for Avesdo to collect, use and disclose the Customer Data as permitted above;
- the Customer either owns the Customer Data or has permission from the owner to grant the above licence;
- to its knowledge, the Customer Data is accurate and correct; and
- the collection, manipulation, formatting, copying, display, transmission, use and disclosure of Customer Data by Avesdo and Avesdo’s service providers as permitted by the above licence will not infringe or violate the rights of any third party or violate any law.
Avesdo may also provide aggregated and anonymized information to third parties which may be derived using Customer Data..
Avesdo’s Content. As between Avesdo and you, Avesdo owns:
- the Applications and, other than Customer Data, and all content provided on or through the Applications, including all text, photos, videos, templates, images, icons, software, designs, Applications, data, and other content and all intellectual property rights in the content;
- all tools, hardware and software used to provide the Applications; and
- the graphical design, user interface and the look and feel of the Applications.
- Other Content. Notwithstanding the foregoing, Avesdo does not endorse any content on the Applications. That content is completely “as is”, and may contain viruses, incorrect statements and material that is not suitable for you. Avesdo is also not responsible or liable for content that is generated by you, the Users, the Purchasers, or other users of the Applications or Avesdo’s website.
- Monitoring and Disclosure. Avesdo and its representatives may monitor your use of the Applications. Avesdo also reserves the right to remove or edit any or all of Customer Data that Avesdo determines, acting reasonably, does not comply with applicable law. Avesdo will not have any liability for any failure to remove, or delay in removing, any Customer Data in compliance with the foregoing. Avesdo may disclose any information that is reasonably necessary to: (i) satisfy any law, regulation or lawful request; (ii) operate the Applications as contemplated herein; or (iii) protect the rights or property of Avesdo or others.
- Links from the Applications. The Applications may provide links to third-party websites and other content. Those sites and content are independent from Avesdo. We have no control over, and no liability for, those sites, their content, or your use of them. We provide links for your convenience only, and you access them at your own risk.
- Interruptions/Errors. Your use of the Applications and Services might be interrupted and might not be accurate, error-free, complete or current at all or any times; and the Applications and Services may also be unavailable from time-to-time due to routine maintenance, upgrades, hardware/software malfunctions, repairs, power outages, hackers, denial of service attacks and unforeseeably large service demands. Notwithstanding the foregoing, Avesdo will use commercially reasonable efforts to ensure that the Applications and Services are available to you throughout the term of the agreement.
Intellectual Property Claims. If any intellectual property law claim is made, or in Avesdo’s reasonable opinion is likely to be made, against you or Avesdo in connection with the Applications, then Avesdo, at its sole option and expense, may:
- procure for you the right to continue to the use the Applications in accordance with the terms of this agreement;
- modify the Applications so that they cease to be infringing;
- replace any infringing portions of the Applications with non-infringing portions; or
- terminate this agreement by notice in writing to you, and refund a pro rata portion of the fee paid by you for the remaining portion of the then current term in effect.
- Warranty. Avesdo warrants to you that the Services will conform to the descriptions set out in this agreement and will be performed in a professional manner, in accordance with all applicable laws. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT: (I) YOUR ACCESS TO AND USE OF THE APPLICATIONS AND SERVICES IS AT YOUR OWN RISK; (II) THE APPLICATIONS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF OR RELATING TO ACCURACY, ACCESSIBILITY, AVAILABILITY, COMPLETENESS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, LACK OF NEGLIGENCE, MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, QUALITY, RESULTS, SECURITY, SERVICE, TIMELINESS, TITLE, VIRUSES OR WORKMANLIKE EFFORT, ALL OF WHICH ARE HEREBY WAIVED BY YOU AND DISCLAIMED BY AVESDO TO THE FULLEST EXTENT PERMITTED BY LAW. YOU ARE RESPONSIBLE FOR CONFIRMING ALL CUSTOMER DATA, INCLUDING WITH RESPECT TO THE ACCURACY OF THE TRANSACTIONS YOU MAY CARRY OUT WITH THE PURCHASER.
- LIABILITY EXCLUSIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BUT EXCEPT AS OTHERWISE REQUIRED BY LAW, UNDER NO CIRCUMSTANCES WILL AVESDO OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS, SUB-CONTRACTORS, LICENSORS AND LICENSEES (COLLECTIVELY THE “AVESDO ENTITIES”) EVER BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO THE APPLICATIONS OR THE SERVICES OR THIS AGREEMENT, INCLUDING LOSS OF DATA, BUSINESS, MARKETS, SAVINGS, INCOME, PROFITS, USE, PRODUCTION, REPUTATION OR GOODWILL, ANTICIPATED OR OTHERWISE, OR ECONOMIC LOSS, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY OR LAW OR EQUITY), OR ANY INCORRECT CALCULATIONS OF ANY AMOUNTS (INCLUDING PRICES AND FEES DUE TO THE CUSTOMER FROM PURCHASERS) EVEN IF AVESDO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE BEING INCURRED. IF AVESDO BECOMES LIABLE TO THE CUSTOMER IN RESPECT OF THE APPLICATIONS OR THE SERVICES OR A COMBINATION OF THE FOREGOING, THAT LIABILITY WILL BE LIMITED TO THE GREATER OF: (I) THE FEES THE CUSTOMER PAID TO AVESDO FOR ITS USE OF THE APPLICATIONS AND SERVICES ORDERED IN THE PROPOSAL UNDER WHICH THE LIABILITY ARISES IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; OR (II) THE FEES EXPECTED TO BE PAID BY YOU IN THE FIRST 12 MONTHS OF SUCH PROPOSAL. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY IN THE EVENT OF FRAUD, WILLFUL MISCONDUCT..
- Term. Unless otherwise terminated in accordance with this agreement, each Proposal shall have the term specified in the Proposal together with these terms incorporated in the Proposal by reference. These terms shall remain in force until terminated or replaced by Avesdo.
- Termination. Either party may terminate a Proposal for cause if the other party materially breaches the agreement and fails to remedy the breach within 30 days after receiving the other party’s written notice of the breach.
- Survival. Sections 5, 13, 14, 15, 16, 19, 23, 24, 27, 29 and 31 of this agreement and all other provisions necessary for their interpretation or enforcement, will survive indefinitely after the termination of a Proposal incorporating this agreement and remain in full force and effect.
- Changes to Agreement. Avesdo may change these terms and conditions at its discretion any time provided that if such changes are materially adverse to you, you may terminate this agreement without penalty, provided that Avesdo shall have the option of waiving such change as it applies to your prior to your ability to terminate. These terms and conditions incorporated into a Proposal may otherwise be amended by an amendment to the Proposal executed by both parties.
- Laws and Courts. Use of the Applications and Services is governed exclusively by, and will be enforced, construed and interpreted exclusively in accordance with, the laws applicable in Ontario. All disputes under this agreement will be resolved by the courts of Ontario in Toronto; however, nothing in this section prohibits either party from obtaining an injunction against the other party in any other jurisdiction.
- Force Majeure. Neither party will be liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war (declared or undeclared), fire, flood, storm, slide, earthquake, power failure, inability to obtain equipment, supplies or other facilities not caused by a failure to pay, labour disputes, or other similar event beyond the control of the party affected which may prevent or delay such performance. If any such act or event occurs or is likely to occur, the party affected shall promptly notify the other, giving particulars of the event. The party so affected will use reasonable efforts to eliminate or remedy the event.
- Other. Severability: If any provision of this agreement is held to be invalid or unenforceable for any reason, then that provision will be deemed to be severed from this agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of any such severance this agreement would fail in its essential purpose. Entire Agreement: This agreement together with any Quotes in respect of a Proposal supersedes all prior agreements and understandings between Avesdo and you relating the Applications and Services. To extent of a conflict between these terms and conditions and a Quote the provisions of the Quote will prevail. Enurement: This agreement enures to the benefit of and is binding upon each of Avesdo and its successors, assigns and related persons, and you and each of your heirs, executors, administrators, successors, permitted assigns and personal representatives. Assignment: Neither party may assign this agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, delayed or conditioned, except that Avesdo may assign this agreement and each Proposal to a purchaser of all or substantially all of its business without your consent. Waiver: No consent or waiver by any party to or of any breach or default by any other party in its performance of its obligations under this agreement will be: (a) deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party; or (b) effective unless in writing and signed by all parties. Language: It is the express wish of the parties that this agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigé en anglais.