End Users Agreement
PLEASE READ THIS DOCUMENT CAREFULLY.
IT SIGNIFICANTLY ALTERS YOUR LEGAL RIGHTS AND REMEDIES.
This is a legal agreement between Avesdo Technologies Inc. (“Avesdo” or “we” or “us”) of #200, 1183 King Street West, Toronto, Ontario, Canada, M6K3C5 and you regarding your use of any Avesdo application(s), including Avesdo’s web-based real estate sales applications (collectively, the “Application(s)”). If you do not accept these terms, you must not use the Application(s).
Real estate developers (each, a “Developer”) and their marketing agencies (each, an “Agency”) use the Application(s) pursuant to a Client Service Agreement or similar agreement between Avesdo and the Developer and/or Agency (the “CSA”). Real estate purchasers (each a “Purchaser”) use the Application(s) to submit data to, and to enter into agreements with, Developers and/or Agencies.
By accessing or using the Application(s), you agree to the terms and conditions set out here. Avesdo may change these terms and conditions at its discretion any time without notice, so please check the Home page of our website regularly for updates.
- The Application(s). You must not access or use any of the Application(s) unless either: (a) you are a Purchaser, or (b) you work for a Developer or Agency and you have permission to access or use the Application(s) pursuant to a CSA between Avesdo and that Developer or Agency. If option (b) applies, then you must only access and use the Application(s) for the internal business purposes of that Developer or Agency, and only to the extent permitted by the CSA between Avesdo and that Developer or Agency.
- Rules. Whenever you access or use the Application(s) you must comply with any acceptable use policies and other policies Avesdo implements with respect to the Application(s) from time-to-time, as posted by Avesdo on or through the Application(s), and all applicable laws. You must protect the confidentiality of your user name and password, and you must immediately notify Avesdo if you believe that confidentiality may have been compromised. You must not permit any third party to access or use your user name and password.
- 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 Application(s) or the hardware or software used to provide the Application(s), or any of the services provided through the Application(s) (the “Services”);
- attempt to access any data, information or content of any third party through the Application(s), except as authorized by Avesdo;
- upload to or transmit via the Application(s) 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 Application(s) 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 Application(s) or Services;
- access the Application(s) by any means other than through the interface that is provided by Avesdo;
- use the Application(s) 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 Application(s);
- falsify any data or information available on the Application(s);
- delete or modify any copyright or other intellectual property notice on the Application(s);
- 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 Application(s) or any hardware/software used to provide the Application(s), or third-party hardware/software or services; or
- authorize or encourage any third party to do any of the above.
- Your Content. Any feedback, comments, photos, text, data and other content you provide to or through the Application(s) (collectively, “Your Content”) may be shared with the relevant Developer/Agency and Purchasers, and you hereby grant Avesdo an irrevocable, perpetual licence to copy, modify, display and otherwise use Your Content in that manner and in any other manner as required to provide the Services. You represent and warrant to Avesdo that:
- you either own Your Content or have permission from the copyright owner to make Your Content available on or through the Application(s);
- Your Content is accurate and correct;
- you have the right to grant the above licence to Avesdo; and
- the reproduction, display, distribution, use and other exploitation of Your Content by Avesdo, the relevant Developer/Agency and Purchasers, and Avesdo’s service providers, users and licensees as permitted by the above licence will not infringe or violate the rights of any third party, and will not violate any law.
- Avesdo’s Content. As between Avesdo and you, Avesdo owns:
- the Application(s) and all content provided on or through the Application(s), including all text,
photos, videos, templates, images, icons, software, designs, Application(s), data, and other content
and all intellectual property rights in the content;
- all tools, hardware and software used to provide the Application(s); and
- the graphical design, user interface and the look and feel of the Application(s).
- the Application(s) and all content provided on or through the Application(s), including all text,
- Other Content. Avesdo does not endorse the content on the Application(s). That content is completely “as is”, and may contain viruses, incorrect statements and material that is not suitable for you. Avesdo will not be responsible or liable for content that is generated by Developers, Agencies, Purchasers or other users of the Application(s) or Avesdo’s website.
- Monitoring and Disclosure. Avesdo and its representatives may monitor your use of the Application(s). Avesdo also reserves the right to remove or edit any or all of Your Content that Avesdo determines, in its sole discretion, is objectionable for any reason; however, Avesdo will not have any liability for any failure to remove, or delay in removing, any content. Avesdo may disclose any information that is necessary to satisfy any law, regulation or lawful request or as necessary to operate the Application(s) or to protect the rights or property of Avesdo or others.
- Links from the Application(s). The Application(s) 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.
- Your Privacy. Avesdo and its representatives may collect and use personal information about you through the Application(s) to provide the Application(s) and Services to you, to allow us to communicate with you (including through the use of commercial electronic messages), to manage your account with us, to monitor your compliance with this agreement and any other agreements between you and Avesdo, and for any other purposes as described in our privacy policies, copies of which are available here. We may disclose your personal information electronically or in writing to Developers, Agencies, Purchasers and our service providers for the above purposes. If we suspect you of prohibited activities, we may disclose your personal information to the police or other authorities. We may also otherwise disclose your personal information as permitted by our privacy policies, mentioned above. YOU HEREBY CONSENT TO AVESDO AND ITS REPRESENTATIVES COLLECTING, USING AND DISCLOSING YOUR PERSONAL INFORMATION IN THE MANNER DESCRIBED ABOVE.
- Interruptions/Errors. Your use of the Application(s) and Services might be interrupted and might not be error-free, accurate, complete or current at all or any times. The Application(s) 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.
- Disclaimers. YOUR ACCESS TO AND USE OF THE APPLICATION(S) AND SERVICES IS AT YOUR OWN RISK. THE APPLICATION(S) 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, PRIVACY, 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.
- strong>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 APPLICATION(S) 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), EVEN IF AVESDO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE BEING INCURRED. IF AVESDO BECOMES LIABLE TO YOU IN RESPECT OF THE APPLICATION(S) OR THE SERVICES OR A COMBINATION OF THE FOREGOING, THAT LIABILITY WILL BE LIMITED TO A TOTAL OF $100.
- INDEMNITY. YOU WILL INDEMNIFY, DEFEND AND HOLD THE AVESDO ENTITIES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, EXPENSES AND COSTS, INCLUDING REASONABLE LEGAL FEES AND EXPENSES, INCURRED BY THE AVESDO ENTITIES IN CONNECTION WITH ANY CLAIM, DEMAND OR PROCEEDING ARISING OUT OF, RELATED TO, OR CONNECTED WITH YOUR BREACH OF THIS AGREEMENT, THE UNTRUTHFULNESS OR INACCURACY OF ANY OF YOUR REPRESENTATIONS OR WARRANTIES TO AVESDO, OR ANY WRONGFUL CONDUCT BY YOU OR ANY OTHER PERSON FOR WHOM YOU ARE RESPONSIBLE UNDER THIS AGREEMENT OR AT LAW. YOU WILL ASSIST AND CO-OPERATE AS FULLY AS REASONABLY REQUIRED BY AVESDO IN THE DEFENSE OF ANY SUCH CLAIM, DEMAND OR PROCEEDING.
Termination. If you are using the Application(s) or Services under section 1(b) above (i.e., as an employee or contractor of a Developer or Agency), then you will immediately cease using the Application(s) and Services once the CSA between the relevant Developer/Agency and Avesdo has been terminated or has expired, or once your permission to use the Application(s) and Services under that CSA has ended. Subject to that CSA, Avesdo may in its sole discretion: (a) change, discontinue, modify, restrict, suspend or terminate the Application(s) or any part of it without any notice or liability to you or any other person, and (b) for its convenience at any time terminate this agreement or your permission to access and use the Application(s), without any prior notice or liability to you or any other person.
If this agreement or your permission to access or use any or all of the Application(s) is terminated for any reason, then sections 4, 5, 9 and 11 – 15 of this agreement and all other provisions necessary for their interpretation or enforcement, will survive indefinitely after the termination of this agreement and remain in full force and effect.
- Laws and Courts. Use of the Application(s) and Services is governed exclusively by, and will be enforced, construed and interpreted exclusively in accordance with, the laws applicable in British Columbia. All disputes under this agreement will be resolved by the courts of British Columbia in Vancouver; however, nothing in this section prohibits either party from obtaining an injunction against the other party in any other jurisdiction.
- Other. Invalidity: 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 supersedes all prior agreements and understandings between Avesdo and you relating the Application(s). 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: You must not assign this agreement or the rights and obligations under this agreement. Avesdo may assign this agreement and its rights and obligations under this agreement without your consent. This agreement contains provisions for the benefit of the Avesdo Entities, each of whom has the right to assert and enforce such provisions directly or on their own behalf. 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. English: The parties have expressly requested and required that this agreement and all other related documents be drawn up in the English language. Les parties conviennentet exigent expressément que ce Contrat et tous les documents qui s’y rapportent soient rédiges en Anglais.
Any rights not expressly granted by this agreement are reserved by Avesdo.