END-USER TERMS AND CONDITIONS OF USE
Last Modified: November 10, 2017
BrokerBay Inc. is a corporation formed pursuant to the Business Corporations Act R.S.O. 1990, CHAPTER B.16 in Ontario, Canada. In consideration for permitting your access to our website, online services and Portal (defined below) and other good and valuable consideration, you agree as follows:
These terms and conditions (the "Terms") form a legally binding agreement which govern your access to and use of BrokerBay Inc.'s, ("we", "us" or "our") real estate brokerage portal (“Portal”), whether it is hosted at http://brokerbay.ca, a unique customer domain or sub-domain.
IN THESE TERMS, THERE ARE PROVISIONS WHICH LIMIT OUR LIABILITY AND IMPOSE OBLIGATIONS ON YOU. YOU MUST REVIEW AND AGREE TO THESE TERMS, ALONG WITH ANY POLICIES INCORPORATED BY REFERENCE BEFORE USING THE PORTAL.
BY USING THE PORTAL, YOU, THE USER ("YOU" OR "YOUR"), REPRESENT AND WARRANT THAT:
1. YOU ARE OF THE AGE OF MAJORITY; AND
2. YOU HAVE READ AND UNDERSTAND THESE TERMS AND AGREE TO BE BOUND BY THEM.
IF YOU ARE NOT OF THE AGE OF MAJORITY OR DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO ACECSS OR USE OUR PORTAL.
IF YOU ARE USING THE WEBSITE AND/OR PORTAL ON BEHALF OF, OR IN THE EMPLOY OF AN ORGANIZATION (CORPORATION, TRUST, PARTNERSHIP, ETC.) OTHER THAN THE APPLICABLE ENTITY THAT SIGNED OUR SOFTWARE AGREEMENT, YOU ARE AGREEING TO THESE TERMS FOR THAT ORGANIZATION AND REPRESENTING AND WARRANTING THAT YOU HAVE THE AUTHORITY TO BIND THAT ORGANIZATION TO THESE TERMS. IN SUCH A CASE, "YOU" AND "YOUR" WILL ALSO REFER TO THAT ORGANIZATION AND YOURSELF INDIVIDUALLY.
AS OUR WEBSITE AND PORTAL CONTINUE TO CHANGE, WE MAY, AT ANY TIME, REVISE THESE TERMS AND OUR POLICIES BY UPDATING THIS PAGE OR THE PAGE HOSTING THE RELEVANT POLICY. THE DATE OF THE LAST VERSION OF THESE TERMS IS POSTED ABOVE. AS YOU ARE BOUND BY THESE TERMS EACH TIME YOU VISIT OUR WEBSITE OR USE THE PORTAL, YOU ARE RESPONSIBLE FOR PERIODICALLY REVIEWING THE AMENDMENTS TO THESE TERMS AND YOU ARE DEEMED TO HAVE ACCEPTED AND AGREED TO SUCH AMENDMENTS BY ACCESSING AND USING THE PORTAL AFTER SUCH AMENDMENTS HAVE BEEN POSTED. IF YOU DO NOT AGREE WITH THE AMENDMENTS, YOU SHALL IMMEDIATELY STOP ACCESSING THE PORTAL AND TERMINATE YOUR ACCOUNT, SUBJECT TO THE TERMS PROVIDED FOR HEREIN. WE MAY ALSO UNDERTAKE TO SEND YOU NOTICE OF ANY CHANGES TO THE TERMS OR POLICIES.
Establishing an Account
The Portal allows real estate brokerages to integrate with Toronto Real Estate Board (“TREB”) MLS listings. With the applicable account subscription, we also provide access to a private real estate listing network (the “Network”). For more about our service offering visit http://brokerbay.ca.
Upon establishing a user account with us, we grant you a worldwide, non-transferable, non-exclusive right to access the Portal in accordance with these Terms. We reserve the right to revoke such access where (i) your account is no longer paid for under a corresponding enterprise software agreement; or (ii) we have reasonable grounds for believing you may have violated these Terms or any policy incorporated by reference.
Account Not Transferable, Updating Your Account & Security
If you establish an account with us (whether directly or via your employer or third party licence holder), access to your account is not transferrable and is only intended for the individual named on that account. You will be required to create a username and password. You are responsible for safeguarding the password you use to access the Portal and you agree not to disclose your password to any other person or entity. You agree you are responsible for any activity on your account, whether or not you authorized that activity. You also agree to immediately notify us of any unauthorized use of your account.
We take certain security measures to protect user content and data. While we take such measures, you acknowledge that communications and data may still be hacked or stolen by third-parties and involve transmissions over various networks and devices, including networks and devices not owned or controlled by us. We cannot guarantee that our security measures, or the security measures of any third-party or third-party integration (including TREB data feeds), will be error-free or that others will never be able to defeat such security measures.
You further agree and acknowledge that the Portal is hosted on third-party servers and may use third-party software, networks and hardware located in various jurisdictions.
ACCEPTANCE OF RISK AND DISCLAIMERS
UNLESS A SPECIFIC WARRANTY IS PROVIDED TO YOU IN WRITING BY US, EVERYTHING ON OUR WEBSITE AND PROVIDED AS PART OF THE PORTAL IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY.
WE ACCEPT NO RESPONSIBILITY OR LIABILITY FOR ANY DATA ACQUIRED OR PROVIDED TO US FROM TREB (OR THEIR AFFILIATES), WHETHER PURSUANT TO A TREB AGREEMENT OR OTHERWISE.
YOU AGREE THAT WE ARE NOT OBLIGATED OR RESPONSIBLE FOR REVIEWING THE ACCURACY OR PROPRIETY OF ANY CONTENT YOU, OR ANY OTHER PERSON UPLOADS OR POSTS TO THE PORTAL, INCLUDING ANY LISTING INFORMATION POSTED ON THE EXCLUSIVE LISTING NETWORK. YOU AND THE LISTING BROKERAGE ARE RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL INFORMATION SUBMITTED TO THE NETWORK AND TO CORRECT ANY INACCURACIES IMMEDIATELY AS MAY BE NECESSARY IN THE CIRCUMSTANCES.
YOU AGREE THAT, WHILE WE STRIVE TO HAVE ERROR FREE AND UNINTERRUPTED SERVICE, WE DO NOT GUARANTEE THE ABSENCE OF ERRORS OR INTERRUPTIONS, NOR SHALL YOU HOLD US LIABLE FOR ANY DAMAGE SUCH INTERRUPTIONS MAY CAUSE.
DISCLOSURE PURSUANT TO COURT ORDER, SUBPOENA OR OTHER LEGAL PROCESS
WE RESERVE THE RIGHT TO PROVIDE YOUR CONTENT AND INFORMATION (INCLUDING BUT NOT LIMITED TO YOUR PERSONAL AND BUSINESS INFORMATION) UPLOADED OR COLLECTED BY OUR WEBSITE OR PORTAL TO THIRD PARTIES IF REQUIRED BY LAW (SUCH AS IN RESPONSE TO A SUBPOENA, COURT ORDER OR OTHER LEGAL PROCESS IN ANY JURISDICTION), AND TO COOPERATE WITH LAW ENFORCEMENT AUTHORITIES IN THE INVESTIGATION OF ANY CRIMINAL OR CIVIL MATTER.
IF WE ARE REQUIRED BY LAW TO MAKE ANY DISCLOSURE OF YOUR CONTENT OR PERSONAL OR BUSINESS INFORMATION, WE MAY (BUT ARE NOT OBLIGATED TO) PROVIDE YOU WITH WRITTEN NOTICE (TO THE EXTENT PERMITTED BY LAW) PRIOR TO SUCH DISCLOSURE SO THAT YOU MAY TAKE APPROPRIATE ACTION.
WE ALSO OPERATE THE WEBSITE AND PORTAL IN CONJUNCTION WITH OUR INDEPENDENT CONTRACTORS. OUR INDEPENDENT CONTRACTORS MAY HAVE ACCESS TO YOUR PERSONAL INFORMATION IN PROVIDING SERVICES TO US, OR PROVIDING YOU WITH ACCESS TO THE WEBSITE AND PORTAL. WE MAY USE A VARIETY OF SERVICE PROVIDERS, EMPLOYEES AND SERVERS IN LOCATIONS BOTH INSIDE AND OUTSIDE OF CANADA, WHICH MAY MAKE YOUR PERSONAL INFORMATION THE SUBJECT OF FOREIGN LAWS AND FOREIGN LEGAL PROCEEDINGS.
TO THE EXTENT PERMITTED BY LAW, WITHOUT LIMITING THE GENERALITY OF THIS SECTION, OR ANY OTHER SECTION LIMITING OUR LIABILITY, YOU AGREE THAT WE SHALL NOT BE RESPONSIBLE FOR THE ACTS OR OMMISSIONS, INCLUDING THE NEGLIGENT ACTS OR OMISSIONS, OF OUR INDEPENDENT CONTRACTORS OR THIRD PARTY SERVICE PROVIDERS.
LIMITATION OF OUR LIABILITY
YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE, HOWSOEVER CAUSED, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, REGARDLESS OF LEGAL THEORY AND WHETHER OR NOT WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER THOSE DAMAGES WERE FORESEEABLE OR NOT.
IF YOU ARE DISSATISFIED WITH THE WEBSITE OR PORTAL, OR DO NOT AGREE WITH ANY PART OF THESE TERMS, OR HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST US, OUR AFFILATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, SUPPLIERS OR LICENSORS, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE PORTAL.
IN ADDITION TO YOUR AGREEMENT TO NOT HOLD THE ABOVE ENTITIES AND PERSONS LIABLE FOR ANY DAMAGES, IN THE EVENT A COURT OR ARBITRATOR OF COMPETENT JURISDICTION DECLINES TO UPHOLD SAID CLAUSE, YOU AGREE THAT IN NO CIRCUMSTANCES SHALL THE AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO OR IN ANY WAY ARISING FROM THE USE OF OUR WEBSITE OR PORTAL, OR IN ANY WAY RELATED TO THESE TERMS, BE MORE THAN THE AMOUNTS PAID BY YOU (OR YOUR EMPLOYER ON YOUR BEHALF) TO ACCESS THE PORTAL, OVER THE PRECEEDING SIX (6) MONTHS.
YOU AGREE AND ACKNOWLEDGE THAT ACCESS TO OUR WEBSITE AND PORTAL, AND IF YOU ARE A PAYING USER, THE FEES PAID BY YOU, REFLECTS THE ALLOCATION OF RISK SET FORTH IN THESE TERMS AND THAT WE WOULD NOT ENTER INTO THIS AGREEMENT OR GRANT ACCESS TO THE PORTAL WITHOUT THESE RESTRICTIONS AND LIMITATIONS ON OUR LIABILITY.
INDEMNIFICATION AND HOLD HARMLESS
Our Website and Portal contain open source and public domain content, licenced content as well as proprietary content owned by us and by third-parties. You are not permitted to copy or distribute any content (including but not limited to text, images, trademarks, videos and audio) on our website or Portal without the express consent of the owner. All other contents of our website and Portal including, but not limited to, the computer code, is the property of BrokerBay Inc. and/or our independent providers of content ("ICPs") with all rights reserved.
Without limiting the generality of the forgoing, you are not permitted to use any trademark or trade name of BrokerBay Inc., including our logo, without our express permission.
Our website and Portal permit you and other users the ability to upload and post content ("User Content"). We do not pre-screen User Content uploaded or posted to the website or Portal by you or other users. You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any of your User Content that you post or upload to the Portal solely to facilitate the ordinary use of the Portal.
In addition to our Acceptable Use Policy, you agree not to use the Portal in any manner which may infringe copyright or other intellectual property rights of any third-party or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of these Terms.
We may, but have no obligation to, remove content and accounts that we determine in our sole discretion to be unlawful, damaging, or violate any third-party's intellectual property rights, these Terms or any policy incorporated by reference herein.
Property and Feedback
All rights, title and interest in and to our website, Portal and their contents or components are and will remain the exclusive property of BrokerBay Inc., our ICP’s and licensors, including all Intellectual Property Rights (as defined below), even if we incorporate any of your Feedback (as defined below) into subsequent versions.
Our website, Portal and their contents are protected by copyright, trademark and other laws of Canada, the United States and foreign countries. Except as expressly permitted in these Terms, you may not reproduce, modify or prepare derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the website, Portal or their contents. You may not copy or modify the code used on the website or Portal.
To ensure our ongoing ownership of the Portal, all feedback, comments, and suggestions for improvements (the "Feedback") that you provide to us, will become our property. Upon giving such Feedback, you agree to transfer and assign to us, all your rights, title, and interest in and to such Feedback, including patent rights, copyright rights, trade secret rights and other intellectual property rights (collectively, the "Intellectual Property Rights"). Upon request, you agree to take reasonable measures to assist us in registering our ownership of such Feedback.
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on our Website or Portal, please notify our copyright contact at firstname.lastname@example.org. While we take no responsibility for any user who breaches your copyright or other intellectual property rights, we may, in our sole discretion and without liability, undertake to attempt to contact the infringer on your behalf and/or cancel the infringer's account.
Whether or not we are affiliated with sites or third-party vendors that may be linked to our website or Portal, we are not responsible for their content (the "Linked Sites"). The Linked Sites are for your convenience only and you access them at your own risk. We and other users provide links and references to material on other websites not owned or operated by us. Links found on our website or Portal are not an endorsement and we do not represent or warrant the accuracy or truth of the contents of information found on said websites. You access those links and corresponding websites at your own risk.
Law of the Contract (Governing Law) and Jurisdiction.
These Terms, all documents incorporated by reference and your relationship with us shall be governed by, construed and enforced in accordance with the laws of the Province of Ontario, Canada (and any Canadian federal laws applicable therein) as it is applied to agreements entered into and to be performed entirely within such province.
If any dispute arises between the parties relating to the application, interpretation, implementation or validity of this agreement, the parties agree to resolve the dispute by arbitration at ADR Chambers (http://adrchambers.com) using the ADR Chambers Expedited Arbitration Rules. The parties agree that the ADR Chambers Expedited Arbitration Rules give the parties a fair opportunity to present their case and respond to the case of the other side. The arbitration shall be held in Toronto, and shall proceed in accordance with the provisions of the Arbitration Act, 1991, SO 1991, c 17, as amended from time-to-time. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
If any provision of these Terms are found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
No Construction Against Drafter
If an ambiguity or question of intent arises with respect to any provision of these Terms, the Terms shall be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favouring or disfavouring either party by virtue of authorship of any of the provisions of these Terms.
Waiver of Class Proceedings and Trial by Jury
To the extent permitted by law, you waive your right to participate in any class action lawsuits against us, our contractors, employees, shareholders, successors, assigns and directors.
To the extent permitted by law, you further waive any right to a trial by jury, should such a right exist, in relation to any legal dispute connected to or in any way arising out of these Terms.
Incorporation by Reference
You may stop using and delete your account at any time. Please contact us to learn more about cancelling your account. Your account and access to the Portal may also be terminated by your employer or the applicable party authorizing and granting your account access.
The cancellation, suspension or termination of access to our website or Portal shall not terminate this agreement. Without limiting the generality of the foregoing, any provision concerning the limitation of our liability, your indemnification obligations, settling disputes (including the jurisdiction and choice of law) shall remain binding.
Assignment of this Agreement
These Terms shall enure to the benefit of and is binding upon the parties and their respective successors and permitted assigns. You agree that we may assign this agreement to any successor or assignee, whether pursuant to the purchase of our business or Portal, the transfer of control of BrokerBay Inc., or otherwise.
Right to Seek Injunction
Violation of these Terms may cause us irreparable harm and, therefore, you agree that we will be entitled to seek extraordinary relief including, but not limited to, temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that we may have for a breach of these Terms.
Our failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
Any new features that augment or enhance the Portal, including the release of new versions, new modules, tools and resources, shall be subject to these Terms. Continued use of the Portal after any such changes shall constitute your consent to such changes.