Customer Services Agreement
This is a legal agreement between Avesdo Technologies Inc. (“Avesdo” or “we” or “us”) of #604, 535 Thurlow Street, Vancouver, B.C., V6E 3L2 and the real estate developer, marketing agency or other entity (“Customer” or “you”) that is named in the proposal to which this agreement is linked or attached (the “Proposal”).
This agreement applies to your use of any Avesdo application(s), including Avesdo’s web-based real estate sales applications (collectively, the “Application(s)”) in connection with the project described in the Proposal (the “Project”).
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 contracts page of our website (currently available here) regularly for updates. Your continued use of the Services after the change(s) will constitute your acceptance of the change(s).
- Services. Subject to the terms and conditions of this agreement, Avesdo will host the Application(s), or arrange for the Application(s) to be hosted, and made available online for the your use (the “Services”). Avesdo may use third party contractors to provide some or all of the Services. The Services may be provided using servers and other equipment located in any country including Canada, the United States and elsewhere. Avesdo may make changes to the Services as needed to comply with applicable laws or safety requirements, or which do not materially reduce the quality of the Services, without notification to you.
- Access. Avesdo hereby grants you a non-exclusive, revocable licence to access and use the Application(s) 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, any Acceptable Use Policy provided by Avesdo, and applicable laws when using the Application(s) and Services.
- Users and Purchasers. Your license to use the Application(s) entitles you to designate a limited number of registered users (each a “User”) as described in the Proposal, and an unlimited number of potential purchasers of real estate units in the Project (each a “Purchaser”). You must ensure that each User complies with this agreement and any licence agreement or terms and conditions presented to the User prior to accessing the Application(s). 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 Application(s) and use of the Service by Users and Purchasers, whether or not you have knowledge of or authorize such use.
- 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 Application(s).
Cooperation. You will cooperate with Avesdo in a timely manner as required for Avesdo to provide the Services, and you will give Avesdo all required information and access to your premises and equipment as required by 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 has been provided and loaded on the Application(s) prior to the sales launch of the Project; and
- rectify any errors or omissions in the Project information and data;
- Interactions. You are solely responsible for all communications, contracts, disputes and other interactions among the Customer, Users and Purchasers (collectively, the “Interactions”). For greater certainty, 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 you are solely responsible for resolving all disputes among those parties.
- Fees. You will pay all fees as and when described in the Proposal. Avesdo may increase the fees at any time after the initial term of this agreement upon 30 days’ notice to you.
- 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 18% 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 Application(s). 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 Application(s). If you become aware of or reasonably suspect any security breach, including any loss, theft or unauthorized disclosure or 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 Application(s) (the “Customer Data”) complies with current data format requirements specified by Avesdo from time to time. Failure to do so may result in the rejection of the data, and may also result in the failure of the Application(s) 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 Application(s) or the hardware or software used to provide the Application(s), or any of 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);
- resell, transfer or otherwise provide any of the Services or the Application(s) 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 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.
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;
- 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 statistical information to third parties and may include Customer’s Data in that information, provided that the information is aggregated and does not include personally identifying information. Avesdo reserves the right to establish (and notify the Customer of) a maximum amount of memory or other computer storage and a maximum amount of Customer’s Data that Customer may post, store, or transmit on or through the Service.
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).
Other Content. Notwithstanding the foregoing, Avesdo does not endorse any 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 is also not responsible or liable for content that is generated by you, the Users, the 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 Customer Data 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.
Privacy. Avesdo and its representatives may collect and use personal information about Users and Purchasers 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 our service providers for the above purposes. If we suspect you of prohibited activities, we may disclose personal information to the police or other authorities. We may also otherwise disclose personal information as permitted by our privacy policies, mentioned above. You will comply with all privacy laws while using the Services, and will obtain any consents required for Avesdo to collect, use and disclose personal information from Users and Purchasers as permitted 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.
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 Application(s), then Avesdo, at its sole option and expense, may:
- procure for you the right to continue to the use the Application(s) in accordance with the terms of this agreement;
- modify the Application(s) so that they cease to be infringing;
- replace any infringing portions of the Application(s) 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 Initial Term or renewal term then in effect.
Warranty. Avesdo warrants that the Services will conform to the descriptions set out in this Agreement and will be performed in a professional manner. The Customer’s sole remedy for a breach of this warranty will be for Avesdo to re-perform the Services in compliance with the above warranty. EXCEPT AS STATED ABOVE, 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.
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), 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 APPLICATION(S) OR THE SERVICES OR A COMBINATION OF THE FOREGOING, THAT LIABILITY WILL BE LIMITED TO THE FEES THE CUSTOMER PAID TO AVESDO FOR ITS USE OF THE APPLICATION(S) IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
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, ANY CLAIMS ARISING OUT OF ANY OF THE INTERACTIONS IN SECTION 6, 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.
Term. This agreement will commence on the date set out in the Proposal, and will continue for the initial term of 3 years or such other term set out in the Proposal (the “Initial Term”) unless terminated as described below.
Termination for Cause. Either party may terminate this agreement 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. Neither party may terminate this agreement for convenience.
Termination for Insolvency. Either party may terminate this agreement immediately by delivering written notice of termination to the other party if:
- the other party becomes insolvent or voluntarily or involuntarily bankrupt;
- a petition in bankruptcy against the other party is not dismissed within 90 calendar days of filing;
- a receiver, assignee or other liquidating officer is appointed for all or substantially all of the other party’s business;
- the other party makes an assignment in bankruptcy or an assignment for the benefit of creditors;
- the other party ceases to carry on its business in the normal course (or threatens to cease carrying on its business in the normal course); or
- if any resolution is passed or order made or other steps taken for the winding up, liquidation or other termination of the existence of the party, or for the amalgamation or merger of the party with another entity.
Effect of Termination. Upon termination of this agreement for any reason:
- you will immediately cease all use of the Application(s);
- you will have no further access to your account in the Application(s);
- you will pay Avesdo all unpaid amounts owing to Avesdo;
- at your request and expense, Avesdo will return to you all of the Customer Data, provided that you request the return of that data within 30 days after termination; and
- Avesdo may delete all the Customer Data from the Application(s) after the agreement has been terminated for at least 30 days.
Sections 6- 9, 13-15, 19, 22-24, and 28-31 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.
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. 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) and Services. 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. Counterparts. This agreement and all documents contemplated by or delivered under or in connection with this agreement may be executed and delivered electronically or in writing in any number of counterparts with the same effect as if all parties had all signed and delivered the same document and all counterparts will be construed together to be an original and will constitute one and the same agreement. 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 expressement que ce Contrat et tous les documents qui s’y rapportent soient rediges en Anglais.
Any rights not expressly granted by this agreement are reserved by Avesdo.