- Pursuant to the terms and conditions of this Agreement, PORCHLYTE ENTERPRISES LTD. (the “Service Provider”) will license the User (as defined herein) to use the Service Provider’s marketing content (the “Licensed Content”) for consideration received from the User for use of the Licensed Content.
- Definitions—The parties agree that, in this Agreement, the following terms have the following meanings:
- User Content: The electronic data collected and processed by or for the User using the Licensed Content;
- Force Majeure: Any event beyond the reasonable control of a party, including an event of fire, flood, earthquake, pandemic,
element of nature or act of God; acts of war, terrorism, rebellions or
revolutions in Canada, riots, civil disorders or disobedience, acts of
vandalism or other unlawful acts, power failures, or any other
- Licensed Content: The content licensed for use to the User for the online and social medial marketing of the User’s real estate business;
- Platform: The online platform where the Uses accesses the Licensed Content;
- Term: The time period specified in Section 8; and
- Use: In respect of the Licensed Content, use means the access of the Licensed Content through a web browser for online and social medial real estate business marketing purposes.
- Construction of Agreement—In this Agreement:
- words denoting the singular include the plural and vice versa and words importing gender include all genders;
- the word “including” shall mean “including without limitation”;
- when calculating the period of time within which or following which any act is to be done or step taken, the date which is the reference day in calculating such period shall be excluded, and the last day shall be included, and if the last day of such period is not a business day, the period shall end on the next business day;
- all references to currency are to the United States of America dollar/currency;
- words or abbreviations which have well known or trade meanings are used herein in accordance with their recognized meanings;
- any reference to a statute shall mean the statute in force as at the date hereof, together with all regulations promulgated there under, as the same may be amended, re-enacted, consolidated and/or replaced from time to time, and any successor statute thereto, unless otherwise expressly provided;
- the division of this Agreement into separate Articles, Sections, Subsections and Schedule(s) is for convenience of reference only and shall not affect the construction or interpretation of this Agreement; and
- the parties agree that this Agreement shall not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this Agreement.
- Parties and Effective Date—This Agreement is between the user of the Licensed Content on this device (the “User”) and the Service Provider.
- Acceptance— THE USER’S USE OF THE LICENSED CONTENT ON ANY DEVICE IS SUBJECT TO LEGALLY BINDING TERMS AND CONDITIONS. CAREFULLY READ ALL OF THE APPLICABLE TERMS AND CONDITIONS AS SET OUT BELOW. IF THE USER ACCEPTS THESE TERMS AND CONDITIONS BY CLICKING THE “ACCEPT” BUTTON BELOW, THAT ACTION CONSTITUTES THE USER’S ACCEPTANCE OF THE TERMS AND CONDITIONS AND THAT THE USER INTENDS TO BE LEGALLY BOUND BY THEM. IF THE USER DOES NOT AGREE TO THE TERMS AND CONDITIONS, THE USER MUST CLICK ON THE “CANCEL” BUTTON BELOW TO EXIT THIS PROGRAM.
- Consent to Electronic Documents—The parties hereby consent to the exchange of information and documents electronically over the Internet or by e-mail and that this Agreement in electronic form shall be the equivalent of an original written paper agreement between the parties.
- Jurisdiction and Language—This Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada and shall be treated in all respects as a British Columbia contract, without reference to the principles of conflicts of law. In the event of a dispute, the parties agree to submit to the non-exclusive jurisdiction of the British Columbia courts.
- Definitions—The parties agree that, in this Agreement, the following terms have the following meanings:
- LICENSE GRANT
- The Service Provider hereby grants a license to the User to use the Licensed Content for the Term of this Agreement, subject to the terms and conditions of this Agreement, on any device which the User accesses the Licensed Content.
- The User may not modify the Licensed Content except as set out in Section 4.
- The licenses granted in this Agreement do not grant any ownership or security right or title in any intellectual property right relating to the Licensed Content.
- Sub-licenses—The User has no right to sub-license the use of the Licensed Content.
- The license is non-transferable and is granted specifically for use only by the User through their personal account.
- LICENSE FEES & REFUNDS
- The licenses granted to User under this Agreement are for consideration received from the User for the use of the Licensed Content.
- No refunds will be offered.
- USER CONTENT
- The User may only add or create User Content that relates to or describes the User’s individual real estate business that is consistent with the purpose of the Licensed Content. As examples only, the User may add User Content that (a) describes the name of the User’s business; (b) describes the location of the User’s business; (c) and describes special promotions associated with the User’s business.
- The Service Provider does not control any User Content and is not responsible for any actions or conduct that may be found to result from or be caused by User Content.
- CONSENT TO USE OF DATA
- The User agrees that the Service Provider may collect and use technical data and related information-including but not limited to technical information about the User’s device, system and application software, and peripherals-that is gathered periodically to facilitate the provisions of software updates, product support, and other services to the User (if any) related to the Licensed Content. The Service Provider may use this information, as long as it is in a form that does not personally identify the User, to improve its products or to provide services or technologies to the User.
- OBLIGATIONS OF THE USER
- The User shall not make any copies of the Licensed Content nor permit anyone else to use, have access to, or copy the Licensed Content other than those that are specifically authorized to be made under this Agreement.
- The User shall only create User Content for a purpose consistent with the Licensed Content.
- Upon termination of this license, the User shall cease all use of the Licensed Content.
- Except to the extent otherwise expressly provided for in this Agreement, the User shall not adapt, translate, re-configure, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Licensed Content in any manner or to any extent whatsoever, whether in whole or in part.
- The User shall not use the Licensed Content on, or in conjunction with, any computer hardware or link to any (or use in conjunction with) any computer program or database other than the computer program platform specified by Service Provider.
- The User shall not be permitted to use the Licensed Content to act as a “service bureau” to provide the benefit of the use of the Licensed Content to third parties.
- The User shall only use the Licensed Content in accordance with any applicable laws.
- UPGRADES/MAINTENANCE RELEASES
- Maintenance releases and updates to the current version of the Platform are included in the User Fees and will be provided by the Service Provider to the User at no additional charge.
- New Releases and versions of the Platform are not included in the User Fees and may be provided by the Service Provider at an additional charge to the User.
- TERM AND TERMINATION
- The term of this Agreement shall commence upon acceptance of these license terms by the User and shall continue until terminated by Service Provider or User as provided in this Agreement.
- Service Provider shall have the right to terminate the Agreement if the User has breached any material provision of the Agreement.
- This Agreement terminates automatically if the User becomes insolvent, files a voluntary petition in bankruptcy or insolvency or a petition for reorganization under any bankruptcy law, the User consents to any involuntary petition in bankruptcy or if a receiving order is given against the User under any bankruptcy law, or an order, judgment or decree is entered by any court of competent jurisdiction, upon the application of a creditor, receiver, trustee or liquidator of all or a substantial part of the User’s assets, and the same has not been discharged or terminated without prejudice to Service Provider’s rights under this Agreement within thirty (30) calendar days.
- NO WARRANTY
- USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE LICENSED CONTENT IS AT USER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH USER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED CONTENT AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED CONTENT AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND / OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, SERVICE PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH USER’S ENJOYMENT OF THE LICENSED CONTENT, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED CONTENT WILL MEET USER’S REQUIREMENTS, THAT THE OPERATION OF THE LICENSED CONTENT OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED CONTENT OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SERVICE PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED CONTENT OR SERVICES PROVE DEFECTIVE, USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
- NO ADVICE
- The Service Provider does not endorse or recommend any business advice, legal advice or accounting advice through the system, and does not provide any advice, or recommendation. The Licensed Content is a marketing tool only and does not stand in for, or provide any advice. Without limiting the application of any other limitation or exclusion of liability under this Agreement or at law, the User hereby expressly acknowledges and agrees that the Service Provider has no liability whatsoever however arising under any theory of law for any advice, result or lack of result from such advice obtained from any professional.
- User shall indemnify Service Provider against all claims (including reasonable legal costs and disbursements) made against Service Provider arising from User’s use of the Licensed Content otherwise than in accordance with this Agreement or applicable laws.
- User shall indemnify Service Provider against all claims (including reasonable legal costs and disbursements) made against the Service Provider arising from the interpretation, application or use of User Content in any manner whatsoever.
- EQUITABLE RELIEF AND RISK MANAGEMENT
- User acknowledges that any unauthorized use of any intellectual property rights of the Service Provider made or caused by the User or any breach of its obligations of confidentiality will result in irreparable harm to the Service Provider which cannot be adequately compensated for by damages. Neither the User, nor any term in this Agreement, shall interfere with, delay, or prevent the Service Provider from seeking an interim and interlocutory equitable remedy to enforce any provision concerning its intellectual property or confidentiality rights. The User agrees not to oppose an application for equitable relief by the Service Provider in such circumstances. Any such relief or remedy shall not be exclusive, but shall be in addition to all other available legal or equitable remedies. User agrees that the provisions of this Section are fair and reasonable in the commercial circumstances of this Agreement.
- Limitation of Liability—SERVICE PROVIDER SHALL NOT BE LIABLE TO THE USER FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL OR ANY OTHER INDIRECT DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WITH RESPECT TO LOSS OF DATA OR PROFITS OR BUSINESS INTERRUPTION) SUFFERED BY THE USER HOWSOEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERVICE PROVIDER’S TOTAL LIABILITY AND OBLIGATION TO THE USER, IN THE AGGREGATE FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN ANY CONNECTION WITH THIS AGREEMENT, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND OR NATURE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED AND SHALL NOT EXCEED THE LICENSE FEES PAID BY THE USER.
- DISPUTE RESOLUTION
- Governing Law—This Agreement shall be governed by and interpreted in accordance with the laws of British Columbia.
- Disputes—Excluding (i) the right of either party to apply to a court of competent jurisdiction for an interim or interlocutory injunction or other provisional remedy to preserve the status quo or prevent irreparable harm pending final award of an arbitrator; or (ii) with respect to any disputes that may arise in connection with the ownership of any intellectual property; or (iii) with respect to any disputes that may arise in connection with a breach of a party’s obligations of confidentiality hereunder, shall be finally settled by a single arbitrator in a location to be agreed to by the parties (or if the parties are unable to agree on a location, by the arbitrator), in accordance with the Arbitration Act of British Columbia at such place and time as the arbitrator may fix.
A party wishing to pursue arbitration of the dispute shall give notice of arbitration to the other party containing a concise description of the matter submitted for arbitration. Within ten (10) business days after a party gives a notice of arbitration, the parties shall jointly appoint an arbitrator. If the parties fail to appoint an arbitrator within that time, each party shall appoint an arbitrator and the two arbitrators so appointed shall appoint a third arbitrator whose decision shall be final and binding upon the parties.
The arbitrator may determine all questions of law and jurisdiction (including questions as to whether a dispute is arbitrable) and all matters of procedure relating to the arbitration. The arbitrator shall have the right to grant legal and equitable relief (including injunctive relief) and to award costs (including legal fees and the costs of the arbitration) and interest.
The arbitrator shall be a suitably qualified, impartial person who is experienced in contractual disputes concerning computer law, including technology licensing.
The arbitration proceedings shall be conducted in the English language.
The written decision of the arbitrator shall be final and binding upon the parties in respect of all matters relating to the arbitration, the procedure, the conduct of the parties during the proceedings and the final determination of the issues in the arbitration. There shall be no appeal from the determination of the arbitrator to any under the Arbitration Act of British Columbia and the rules set forth in this Section. Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction.
The costs of any arbitration shall be borne by the parties in the manner specified by the arbitrator in his or her determination.
Insofar as they do not conflict with the terms of this Section, the arbitration shall be governed by the Arbitration Act of British Columbia and the arbitrator shall have jurisdiction to take such action and make such orders as are contemplated in such Act.
- REVERSE ENGINEERING
- The User shall not reverse engineer, decompile or disassemble the object code version of the Licensed Content without the prior written approval of Service Provider.
- GENERAL PROVISIONS
- This Agreement constitutes the entire agreement between the parties concerning all the matters herein and supersedes all prior agreements, understandings, letters of intent, negotiations and discussions between the parties, whether oral or written.
- This Agreement cannot be amended or modified other than by express agreement of the parties.
- In the event that any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law.
- All notices, requests, claims, demands and other communications required or permitted hereunder shall be in writing, to the address specified at the beginning of this Agreement or at such other address for notice which may be given by notification of the other party. Notice shall be given by delivery in person or by courier service (with signature required) or by registered or certified mail (postage prepaid, return receipt requested) or by facsimile (and telephoning to confirm receipt). Notice is deemed to be made and effective on the date that the notice is received.
- No delay or omission by a party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.
- If, by reason of Force Majeure, a party is delayed or unable, in whole or in part, to perform or comply with any of its obligations under the Agreement, then, subject to the remainder of this Section, it shall be relieved of liability and shall suffer no prejudice for failing to perform for such time and to the extent that the inability was caused by Force Majeure, provided that such party gives to the other party reasonably prompt notice of such inability. In the event of a Force Majeure, the non-performing party shall use commercially reasonable efforts to remedy the situation and remove the cause of its inability to perform as soon as is reasonably possible.
- Each party shall be acting as an independent contractor in performing its obligations hereunder and this Agreement does not establish a joint venture or partnership between Service Provider and User.
- The obligations and covenants of the parties described in this Agreement shall survive the termination of this Agreement for any reason.
- This Agreement is binding on the parties to this Agreement, their successors and assigns.