Terms and Conditions
These Terms and Conditions are made a part of and incorporated by reference into the REW Subscription Agreement by and between Client and Real Estate Webmasters Inc. (“REW”) (the “Agreement”).
- “Affiliate” means a party that partially (at least 50%) or fully controls, is partially or fully controlled by, or is under partial (at least 50%) or full common control with, another party.
- “Client Data” means proprietary or personal data regarding Client or any of its users under this Agreement.
- “Confidential Information” means any non-public information of REW or Client disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or a part of the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.
- “Implementation” means implementation, deployment, and/or training relating to the Software and Website.
- “Initial Term” shall have the meaning ascribed in section 7a. of this Agreement.
- “Intellectual Property Right” means any patent, copyright, trade or service mark, trade dress, trade name, database right, goodwill, logo, trade secret right, or any other intellectual property right or proprietary information right, in each case whether registered or unregistered, and whether arising in any jurisdiction, including without limitation all rights of registrations, applications, and renewals thereof and causes of action for infringement or misappropriation related to any of the foregoing.
- “Order” means a Website, Software or Service purchase in a schedule, statement of work, order, addendum, or amendment signed by both parties.
- “Renewal Term” shall have the meaning ascribed in section 7a. of this Agreement.
- “Service” means any service rendered by REW specifically to Client, including, but not limited to: (i) hosting of the Software and Website; (ii) Implementation; (iii) development of Software and Website functionality specially requested by Client; and/or (iv) any consulting service. Without limiting the generality of the foregoing, Client may request specific services from REW by completing, executing and delivering an Order for such services for acceptance by REW.
- “Software” means any and all of REW’s proprietary software offerings, including, without limitation, all updates, revisions, bug-fixes, upgrades, and enhancements thereto.
- “Software Customization” means software that has been modified in any way by REW at the request of a client. The particulars of any such customization request shall be set forth in an Order made by the Client and submitted to REW for acceptance.
- “Subscriber” means an employee, member, or customer of Client or one of its Affiliates who is permitted by Client to access the Software and Website.
- “Subscription” means a subscription purchased by Client for a Subscriber to access the Software and Website. Each Subscription purchased by Client shall have a unique login identifying Client and any access to the Software and Website by use of such login shall be deemed to be that of Client or a Subscriber permitted by Client to access the Software and Website.
- “Term” means the Initial Term plus all Renewal Terms.
- “Website” means the set of interconnected webpages or documents viewable by anyone connected to the internet using a web browser that are provided to Client by REW.
- Support and Service Levels.
- Please refer to the REW Support Policy
- Please refer to the REW Service Level Agreement
- Please refer to the REW Custom Design/Development Agreement
- Fees and Payment. Client shall pay all fees and charges as specified on each executed Order. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Client shall pay all fees in accordance with the billing frequency set forth in the applicable Order, or as advised in the Software. At the request of REW, Client shall deliver to REW a deposit for such fees and charges (the “Deposit”), which Deposit shall be held by REW as security for payments owed by Client and may be debited by REW on account of any amount owed to REW by Client at REW’s sole discretion. All payments for Services are to be paid in advance and not in arrears, unless otherwise agreed to in writing by REW in an Order. In the event an Order contemplates payments to be made by Client in instalments, REW may accelerate such instalment payments in the event Client fails to make a payment when due or is otherwise in breach of any of its obligations under any agreement with REW. Client hereby authorizes REW to charge any credit card supplied by Client to REW for all payments owed by Client at such times as determined by REW in its sole discretion, including any accelerated instalment payments. REW may increase fees for future Renewal Terms by giving Client at least sixty (60) days’ prior written notice of the increase. Payment of fees will be due within fourteen (14) days after the date of the invoice, except where this Agreement expressly prescribes other payment dates. All payments must be made in US dollars unless another currency is specified, and are exclusive of all applicable taxes. Services are subject to suspension for failure to remit payment timely therefor. Notwithstanding any provision to the contrary, REW reserves the right to implement and the Client agrees to participate in an automated debit payment system or an automated electronic funds transfer payment system. REW reserves the right to increase or otherwise modify its fees and charges from time to time by providing 60 days’ written notice (the “Fee Notice”) to Client. Client may terminate this Agreement upon receipt if a Fee Notice by providing REW notice in writing of its desire to terminate within 30 days of receipt of such Fee Notice; provided that Client shall be deemed to have agreed to the modification of the fees and charges as stated in the Fee Notice if it does not terminate this Agreement in writing within such 30 day period.
- Recurring PPC (Pay Per Click Management) If a client chooses to subscribe to Real Estate Webmasters monthly recurring PPC service, they agree to the following terms and conditions:
a. An initial payment for the last month of service in the amount of 1 month’s value of the agreed upon advertising budget must be paid before PPC service can begin.
b. PPC services are provided as a recurring monthly subscription service and will continue every month until the client cancels.
c. PPC clients will pay the management fee and budget directly to Real Estate Webmasters. All applicable fees will be invoiced in USD.
d. PPC clients will be invoiced for a minimum management fee until such time that a campaign budget exceeds the maximum spend allowed for the minimum management fee, wherein the management fee will then be a percentage of the campaign budget.
e. PPC budgets can be increased at any time during the monthly billing cycle. Upon increase, the client is responsible to pay the difference in budget for the final month of service before the budget will be increased.
f. Billing cycle: PPC campaigns will run from the 1st of the month to the end of the calendar month. PPC management fees and the applicable Google Ad Spend will be invoiced the first week of the calendar month for the services of the previous months. The first month of PPC services will be prorated to the commencement date as required.
g. Clients can request to cancel at any time during the monthly billing cycle.
h. Client is responsible for payment of all PPC services including management fees and Google Ad Spend for the entire month of the PPC campaign that the cancellation occurs within.
i. All PPC invoices are due and payable upon receipt. Non-payment may result in a pause, suspension or cancellation upon the discretion of Real Estate Webmasters.
- REW Obligations. In accordance with the terms and conditions of the Agreement, REW will: (i) make the Software, Website and Services available on a non-exclusive basis to Client and Subscribers via the Internet; (ii) maintain appropriate safeguards for protection of Client Data, including regular back-ups, unique logins and security protocols; (iii) not access, modify, or disclose Client Data (except as compelled by law, to prevent or address service or technical issues, or if otherwise permitted by Client). REW reserves the right, but shall not be obligated, to institute unique IP address match, single login safeguards and other such protocols for Client access to the Software and Website as it deems necessary in its sole discretion.
- Client Obligations. Client may only use the Software, Website and Services for its own lawful, internal business purposes. Client shall not: (i) use or deploy the Software and Website in violation of applicable laws or this Agreement; (ii) resell the Software, Website or Services; create any derivative works based upon the Software, Website or Services; (iii) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from the Software and Website or any part thereof (except to the extent that such restriction is not permitted under applicable law); (iv)make the Software, Website or Services available to any unauthorized parties, including without limitation, competitors of REW or parties that are not Subscribers; (v) share its unique login information with any party that is not a Subscriber; or (vi) perform, or release the results of, benchmark tests or other comparisons of the Software, Website or Services with other software, services, or materials. Client will be responsible for Subscribers’ compliance with the Agreement and liable for Subscribers’ breach thereof. Client will ensure that it has obtained all necessary consents and approvals for REW to access Client Data for the purposes permitted under this Agreement. If Client is in breach of this section, REW may suspend Services, in addition to any other rights and remedies REW may have at law or in equity.
- Intellectual Property. As between the parties, REW will and does retain all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to the Software, Website and Services. Client retains all ownership rights to Client Data.
- Term and Termination
- Term. The initial term of this Agreement shall be as set forth in the Order, or one (1) year if no Order is completed, unless earlier terminated pursuant to Section “Termination” below (the “Initial Term”). The Agreement will automatically renew for additional, consecutive one-year periods (each a “Renewal Term”), unless and until Client or REW provides written notice to the other, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term.
- Termination for Cause. Either party may immediately terminate this Agreement if the other party materially breaches its obligations hereunder, and, where capable of remedy, such breach has not been materially cured within forty-five (45) days of the breaching party’s receipt of written notice describing the breach in reasonable detail.
- Effect of Termination. Immediately following termination of the Agreement, Client shall cease using the Software and Website. Within ten (10) business days of termination of the Agreement, Client may request that Client Data be returned at no additional charge in a standard format to be determined by REW, or as otherwise agreed by the parties; provided that all payments owed by Client to REW have been made. REW shall be under no obligation to return Client Data if any amount are owed by Client and reserves all of its rights and remedies at law and equity with respect to any amounts owed to it by Client. Following termination of the Agreement, REW will maintain backups of Client Data for no more than thirteen months, after which time all remaining Client Data will be destroyed.
- Confidentiality. Each of the parties agrees: (i) not to disclose any Confidential Information to any third parties except as mandated by law and except to those subcontractors of REW providing Services hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (ii) not to use any Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (iii) to keep the Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of this Agreement. If a party breaches any of its obligations with respect to confidentiality or the unauthorized use of Confidential Information hereunder, the other party shall be entitled to seek equitable relief to protect its interest therein, including but not limited to, injunctive relief, as well as money damages.
- REW’s Indemnification Obligations. REW agrees to indemnify, defend, and hold harmless Client from and against any and all third party claims and causes of action, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorney’s fees and related court costs and expenses) incurred or suffered by Client which directly relate to or directly arise out of the violation or infringement of any third-party Intellectual Property Rights by Client’s authorized use of the Software and Website. The foregoing provisions of this section shall not be applicable, with respect or related to, or in connection with: (i) Client Data; or (ii) unauthorized or negligent use and/or alteration of the Software and Website. To obtain indemnification, Client shall: (i) give written notice of any claim promptly to REW; (ii) give REW, at its option, sole control of the defense and settlement of such claim, provided that REW may not, without the prior consent of Client (not to be unreasonably withheld), settle any claim unless it unconditionally releases Client of all liability; (iii) provide to REW all available information and assistance; and (iv) not take any action that might compromise or settle such claim.
- Infringement Cures. Should the Software and Website or any part thereof become, or in REW’s reasonable opinion be likely to become, the subject of a claim for infringement of a third party Intellectual Property Right, then REW shall, at its sole option and expense: (i) procure for Client the right to use and access the infringing or potentially infringing item(s) of the Software and Website free of any liability for infringement; or (ii) replace or modify the infringing or potentially infringing item(s) of the Software and Website with a non-infringing substitute otherwise materially complying with the functionality of the replaced system. If (i) and (ii) are not reasonably available in REW’s reasonable opinion, REW may terminate the Agreement in which case Client shall receive a refund of prepaid, unearned fees.
- Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL REW BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSS OF GOOD WILL, OR LOST PROFITS), OR ANY DAMAGES FOR GROSS NEGLIGENCE OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES) ARISING FROM YOUR USE OR MISUSE OF THE SOFTWARE AND/OR THE WEBSITE, EVEN IF REW KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, REW SHALL NOT BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE TO CLIENT DATA. REW SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS OF SERVICE, INCLUDING WITHOUT LIMITATION ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. WITH RESPECT TO THE FOREGOING INDEMNIFICATION, IN NO EVENT SHALL REW BE LIABLE FOR ANY DAMAGES IN EXCESS OF ANY AMOUNT YOU HAVE PAID TO REW, IF ANY, DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
- Exclusive Remedies. The remedies set forth in this section shall be exclusive with respect to any infringement claim hereunder.
- Warranties. Each party represents and warrants to the other party that, as of the date hereof: (i) it has full power and authority to execute and deliver the Agreement; (ii) the Agreement has been duly authorized and executed by an appropriate officer, director or employee of such party; (iii) the Agreement is a legally valid and binding obligation of such party; and (iv) its execution, delivery and/or performance of the Agreement does not conflict with any agreement, understanding or document to which it is a party. REW warrants that any and all Services provided by it hereunder shall be performed in a professional manner consistent with prevailing industry standards, and that the Software and Website will perform substantially in material accordance with the agreement and applicable documentation provided by REW. Client’s exclusive remedy for any breach of these warranties shall be to terminate the Agreement for cause. To the extent permitted by applicable law, REW disclaims all other warranties, express or implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular purpose, non-infringement (except for the infringement indemnification provided hereunder) and any warranties arising from a course of dealing, usage or trade practice. Client understands that the Software and Website is provided as Software as a Service. Accordingly, except for Software Customizations, Software and Website enhancements may be made by REW on a periodic basis, in its sole and absolute discretion and without any obligation, and Client will only have access to the most recent version of the Software and Website. For Software Customizations Client will only have access to the version of the Software and Website that was modified at their request.
- Liability. Except for: (i) REW’s intellectual property indemnification obligations; (ii) breach by client of section “client obligations”; or (iii) a party’s gross negligence or willful misconduct:
- Liability Cap. Each party’s maximum aggregate liability arising out of or relating to this agreement, regardless of the theory of liability, will be limited to the total fees paid by client to REW hereunder for the twelve-month period immediately preceding the date the cause of action arose. The existence of more than one claim shall not expand such limit. The parties acknowledge that the fees agreed upon between client and REW are based in part on these limitations, and that these limitations will apply notwithstanding any failure of any essential purpose of any limited remedy. The foregoing limitation shall not apply to a party’s payment obligations under the agreement.
- Exclusion of Consequential Damages. Neither party will be liable for lost profits, lost revenue, lost business opportunities, loss of data, interruption of business, providing replacement Software and Website (except as set forth in section “right to procure or substitute”), or any other indirect, special, punitive, incidental or consequential damages arising out of or related to this agreement regardless of the theory of liability, even if it has been advised of the possibility of such damages.
- Communications. Neither party shall issue any publicly disseminated statement using the name of the other party as a customer or provider without the other party’s consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, REW may mention Client by name during investor-related communications and list Client’s name and logo alongside REW’s other clients on the REW website and in marketing materials, unless and until Client revokes such permission in writing.
- Miscellaneous Provisions.
- Grant of Security by Client. As security for the performance and observance of all obligations, terms and conditions on the part of the Client to be performed or observed hereunder, including the payment of any monies by the Client to REW, the Client hereby grants in favour or REW a lien, charge and security interest over its Client Data, which may be registered by REW in all applicable registries capable of recording security interests in its sole and absolute discretion. Client hereby (i) acknowledges receiving a copy of this Agreement; and (ii) waives all rights to receive from REW a copy of any financing statement, financing change statement or verification statement filed at any time or from time to time in respect of the security interest granted under this Agreement.
- Governing Law; Jurisdiction. The Agreement will be governed by and construed in accordance with the laws of British Columbia, Canada, and the courts of British Columbia, Canada shall have exclusive jurisdiction in any proceedings relating to it.
- Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation, acts of war, acts of God, earthquake, flood, weather conditions, embargo, riot, epidemic, acts of terrorism, sabotage, labor shortage or dispute, governmental act, failure of the Internet or other acts beyond such party’s reasonable control, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
- Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and in facsimile or electronically, each of which shall be an original but all of which together shall constitute one and the same instrument.
- Entire Agreement. This Agreement contains the entire understanding of the parties in respect of its subject matter and supersedes all prior agreements and understandings (oral or written) between the parties with respect to such subject matter. The schedules and exhibits hereto constitute a part hereof as though set forth in full herein. Purchase orders submitted by Client are for Client’s internal administrative purposes only, and the terms and conditions contained in those purchase orders will have no force and effect.
- Modifications. Any modification, amendment, or addendum to this Agreement must be in writing and signed by both parties.
- Assignment. Client may not assign this Agreement or any of its rights, obligations, or benefits hereunder, by operation or law or otherwise, without REW’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and permitted assigns.
- No Third Party Beneficiaries. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.
- Aggregated Data Use. Without limiting the confidentiality rights and protections set forth in this Agreement, REW owns the aggregated, anonymized, and statistical data (“Aggregated Data”) derived from the operation of the Software and Website, and nothing herein shall be construed as prohibiting REW from utilizing the Aggregated Data for business and/or operating purposes, provided that REW does not share with any third party Aggregated Data which reveals the identity of Client, Client’s users, or Client’s Confidential Information.
- Suggestions. REW shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Software and Website any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or its Subscribers relating to the operation of the Software and Website.
- Integration with Third-Party Offerings. The Software and Website may contain features designed to operate with third-party applications. To use such features, Client may be required to obtain access to such applications from a third-party provider. Client shall not be entitled to a refund, credit, or other compensation if REW ceases to offer certain features because the application provider ceases to make such application available for interoperation with the Software and Website.
- Minimum Technical Requirements for Software and Website Use. Client understands that, in order to use the Software and Website, a Subscriber must utilize a web browser that is one of REW’s qualified browsers. A list of REW’s qualified browsers is provided in REW’s technical product documentation, attached as Schedule 2 to this Agreement.
- Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, such provision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement shall remain in full force and effect.
- Notices. Any notice or communication required or permitted to be given hereunder may be delivered by e-mail, hand, deposited with an overnight courier, sent by facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party first written above or at such other address as may hereafter be furnished in writing by either party hereto to the other party. Such notice will be deemed to have been given as of the date it is delivered, if by personal delivery; the next business day, if deposited with an overnight courier; upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail); and five days after being so mailed. Notices to REW shall be delivered to Real Estate Webmasters Inc., 210 Fourth Street, Nanaimo, BC, Canada, V9R 1T2
- Independent Contractors. Client and REW are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Client and REW. Each party understands that they do not have authority to make or accept any offers or make any representations on behalf of the other. Neither party may make any statement that would contradict anything in this section.
- Subcontractors. Should REW use any subcontractors to perform any Services hereunder, REW shall be fully responsible for ensuring such subcontractors’ compliance with this Agreement.
- Headings. The headings of the sections of this Agreement are for convenience only and do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe its meaning, scope or intent.
- Waiver. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.
- Survival. Sections of the Agreement intended by their nature and content to survive termination of the Agreement shall so survive.
H. Policies for Software Customization Requested by Customer
REW products are designed to be as comprehensive and "turn-key" as possible. However, occasionally the Client may have special requirements or requests. REW will accommodate these in accordance with the following guidelines:
(a) The Client is responsible for the risks involved with their custom development project. At times, REW custom code will be found to have an issue after the Client and REW have signed off that the project has been completed. In such cases, we consider the original project to have been completed, and we will establish a new project to perform the additional work. We do not entertain the notion that the original work was "done wrong and should be fixed for free.”
(b) The Client pays for all the time invested by REW personnel in their custom design and development project.
(c) While REW personnel conduct a reasonable amount of testing of Client customizations, the responsibility for Client acceptance testing for production implementation rests with the Client. Website/IDX technologies are complex and cannot be subject to guarantees without a long period of testing. Since thorough testing of custom projects would incur a far greater cost for clients, REW performs a reasonable amount of testing in accordance with industry standards prior to submitting Milestones for the Client to perform acceptance testing. As a result, some projects may require additional work following testing by the Client.
(d) In cases where the Client requests integration of 3rd party functionality as part of their custom project, REW is not responsible for the impact of changes that may be applied to that 3rd party functionality from time to time by its vendors. All time applied by REW personnel at the request of the Client to restore functionality will be billed as an additional fee.
(e) Client solutions provided as a result of custom design and development projects are not incorporated into REW’s product upgrade path and consequently may lack features or functionality without a further investment by the Client for additional development work.
I. Technical Support for Custom Software
The REW technical support team does not support any of the functionality of the Client’s software that is provided by a custom design and development project. Support for code produced as a result of custom projects is provided on a fee-for-service basis.N/A
REW endeavors to respond to all general queries about the application within one (1) Business Day.
SOFTWARE AND WEBSITE AVAILABILITY
REW will provide at least ninety-nine percent (99%) of Software and Website availability per calendar month as recorded by REW’s internal processes, excluding reasonable and scheduled maintenance periods.