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1.1. 11453424 Canada Inc, (“TOP” also known as “Top Real Estate” or “Top Real Estate People”) provides its software and services (“Subscription”) as defined in the Subscription Agreement (“Agreement”) to the person or entity and its users (“Customer”, “You” or “you”) identified on the Agreement subject to these Terms and Conditions (“T&Cs”), as may be amended from time to time.
1.2. By signing the Agreement or by accessing the Subscription, Customer represents and acknowledges Customer has read, understood, and agrees (a) to be bound by these T&Cs, and the provisions of the Agreement, (b) that the information Customer provides is accurate, complete, and is within Customer’s right to use. If Customer is a company or another legal entity, the individual signing on behalf of the Customer represents that he or she has the authority to bind Customer and its affiliates to these T&Cs.
1.3. Customer acknowledges that these T&Cs constitute a contractual agreement between Customer and TOP, are incorporated into the Agreement, and that these T&Cs govern Customer’s use of the Subscription and supercede any other agreements between Customer and TOP.
1.4. The TOP Marketing Tools use YouTube API Services, FaceBook API Services, Instagram API Services, Pinterest API Services and Customer agrees to be bound by the YouTube Terms of Service found at https://www.youtube.com/t/termsm
2.1. TOP shall make available to Customer during the Subscription Term, as defined in Section 7.1, the purchased Subscription as specified in Exhibit 1 of the Agreement and pursuant to these T&Cs.
2.2. TOP shall use commercially reasonable efforts to make the Subscription available 24 hours a day, 7 days a week, except for: (a) planned downtime, (b) any unavailability caused by circumstances beyond TOP’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, listings feed outages or failures, Internet service provider failures or delays, or denial of service attacks. TOP’s obligations shall be limited to providing the Subscription only in accordance with applicable laws and government regulations. Customer acknowledges that the Subscription may be subject to other limitations, such as: (i) limits on disk storage space, (ii) the number of calls TOP’s customers are permitted to make against TOP’s servers and application programming interface, and (iii) limitations imposed by third party service providers enabling the Customer to provide public websites with limited page views.
2.3. The Customer is limited to the total of one-thousand (1,000) contacts per agent multiplied by the number of agents covered by this Agreement, unless approved in writing by TOP.
3.1. Protection of Data: TOP shall maintain commercially reasonable levels of administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of data, content and media supplied by Customer for inclusion in the Subscription (“Customer Data”).
3.2. Customer Data Rights: Subject to the limited rights granted by Customer hereunder, TOP acquires no right, title or interest from Customer or Customer licensors under these T&Cs in or to Customer Data, including any intellectual property rights therein. Customer grants TOP the right to use non-Customer specific aggregated data for use by TOP to create business and best practice metrics. Further, TOP does not claim copyright to Customer Data, and TOP shall not be held liable for Customer Data on the website or any uses made of Customer Data. For more details on TOP’s DMCA policy please visit our website page at: www.insiderealestate.com/dmca- policy/.
Customer represents and warrants to TOP that Customer has all necessary rights, permissions, licenses and other authority to use the Customer Data as anticipated under these T&Cs. Customer shall indemnify and hold harmless TOP and its owners, officers, managers, members, employees, agents, contractors, successors and assigns from and against any damages, claims, injury, costs and expenses, including, without limitation, attorney fees and court costs, arising out of the use of Customer Data as anticipated under these T&Cs. TOP reserves the right to suspend or remove Customer’s website or portions thereof if TOP determines, in its sole discretion, that (i) significant doubt exists as to Customer’s right to use any portion of Customer Data, (ii) any Customer Data is offensive, immoral, obscene, illegal, or likely to incite or encourage illegal or dangerous acts, or (iii) any Customer Data may harm TOP’s reputation or hinder its ability to provide its services to other customers.
3.3. Return of Customer Data. Upon written request by Customer made within thirty (30) days after the date of termination of the Subscription Term and payment in full of all outstanding fees, TOP shall make available to Customer for download a file of Customer Data that TOP has defined at the time as exportable. Exportable Customer Data may include some or all agent, contact and lender information; front end website style design settings and files which the Customer has paid for through a Custom Design & Layout Work; images owned by Customer. Additionally, Customer may be able to receive or download periodic backups of some or all of the Customer Data throughout the Subscription Term based on a request to the TOP support team, no more often than quarterly. TOP shall have no obligation to maintain or provide any Customer Data and may delete Customer Data after the aforementioned thirty (30) day period.
3.4. MLS/IDX Instructions. TOP will need to begin the process of setting up your IDX connection. Depending on the individual Multiple Listing Service (each, and “MLS”) either a vendor agreement will need to be signed with the MLS, or if no vendor agreement is required by the MLS, you will need to provide your login and password. After TOP receives Customer’s MLS connection information, TOP will get the process started and determine what is required. The MLS may charge a fee for data access, vender access, or annual fees. TOP is NOT RESPONSIBLE for any IDX setup or access fees. This includes any fees assessed to the vendor. Any fees charged to the vendor on Customer’s behalf will be billed back to Customer on the monthly billing or invoice if applicable.
3.5. GDPR Compliance. By signing the Agreement or by accessing the Subscription, you agree that you will not use any of the services provided hereunder to collect the personal information of any individual residing within the European Union (or cause any of your employees, independent contractors, or affiliates to do so) without first obtaining the express written consent of such individual and otherwise complying with the requirements of the European Union’s General Data Protection Regulation (the “GDPR”). In the event you should use the services provided herein to violate any provisions of the GDPR, you hereby agree to indemnify TOP against any and all costs and liabilities of TOP incurred thereby pursuant to Section 5.6 herein.
3.6. CCPA Compliance:
I) Compliance. By signing this agreement or by accessing the subscription or logging into the platform you agree that you will only use the tools, software and services provided hereunder to collect personal information of any person residing in California (each a “California consumer”) (or cause any of your employees, independent contractors or proxies to do so) after providing notice to each California consumer of their privacy rights under the California consumer privacy act (The “CCPA”). Furthermore, you agree to comply with all requirements of the CCPA, including but not limited to, notice rights, data portability rights, deletion rights, opt-out rights and non-descrimination rights.
II) Service Provider. You acknowledge that TOP is a “service provider” under the CCPA with regards to any California Consumer personal information that is shared with TOP through the use of the subscription. TOP will only collect, use, retain or disclose the personal information of any California consumer for which you provide access in accordance to your written instructions.
Top will not collect, use, retain, disclose, sell or otherwise make any california consumer’s personal information available for top’s own commercial purposes or in any way that does not comply with the ccpa. If law requires top to disclose any california consumer’s personal information for a purpose unrelated to the subscription, top will first inform you of the legal requirement and give you an opportunity to object or challenge the requirement, unless law prohibits such notice. Top will limit collection, use, retention and disclosure of personal information to activities reasonably necessary and proportionate to the subscription. Top shall promptly comply with any of your requests or instructions requiring top to provide, amend, transfer or delete any california consumer’s personal information, or to stop, mitigate or remedy any unauthorized processing. If the subscription requires the collection of any California consumer’s personal information on your behalf, top will always provide a ccpa-compliant notice addressing use and collection methods that you specifically pre-approve in writing. Top shall not modify or alter the notice in any way without your prior written consent. If the ccpa permits, top may aggregate, de-identify or anonymize any California consumer’s personal information so it no longer meets the personal information definition and may use such aggregated, de-identified, or anonymized data for its own research and development purposes. Top will not attempt to or actually re-identify any previously aggregated, de-identified or anonymized data and will contractually prohibit downstream data recipients from attempting to or actually re-identifying such data.
Iii) TOP has provided tools to assist you in meeting your ccpa compliance obligations and responding to ccpa-related inquiries, including responding to verifiable consumer requests. Top will reasonably cooperate to provide additional support as needed, taking into account the nature of top’s processing and the information available to top. Further, top shall notify you if it receives any complaint, notice or communication that directly or indirectly relates to your compliance with the ccpa. Specifically, top shall notify you within three (3) working days if it receives a verifiable consumer request under the ccpa.
Iv) warranties. Both you and top shall comply with all applicable requirements of the ccpa when collecting, using, retaining or disclosing any california resident’s personal information. In the event you should use the services provided herein to violate any provisions of the ccpa, you hereby agree to indemnify top against any and all costs and liabilities of top incurred thereby pursuant to section 5.6 herein.
4.1. Payment: Customer is responsible for all payments and fees as specified in the Agreement, including Implementation Fee, Monthly Subscription Fee, Monthly Marketing Fee and Monthly MLS Fee, Communication Fee, and Other Fees (collectively, “Fees”), as described herein.
(i) Implementation Fee. Implementation Fees, as indicated on the Agreement, include but are not limited to the amounts specified for initial implementation of the Subscription. The Implementation Fee shall be due and billed on the signing date of the Agreement.
(ii) Monthly Subscription Fee. Subscription Fees, as indicated on the Agreement, include but are not limited to the amounts specified for use of the Subscription during the Subscription Term as defined in Section 7.1. Monthly Subscription Fees will be due and automatically billed monthly commencing on the beginning of the Subscription Term and continuing each month through the Subscription Term.
(iii) MLS Fees. MLS Fees include charges both direct and indirect associated with connecting Customer websites with required MLS data feeds. MLS Fees will be due and billed as incurred by TOP.
(iv) Communication Fees. Communication Fees include emails, minutes, texts or other usage- based forms of communication. Fees will be billed on a monthly basis and due upon billing.
(v) Marketing Fees. Marketing Fees include advertisements placed through various online services (Google, Facebook, etc.) and are billed monthly. The Customer must notify TOP by the fifteenth (15th) of the month prior to the month the online Marketing is to be cancelled. (For example: Customer must notify TOP no later than December 15th to cancel marketing scheduled to take place in January.)
(vi) Fees added to the Subscription and agreed to by the Customer in writing or via email after the date of the Agreement shall be due and billed at the time TOP receives Customer’s request and adds related services to Customer’s Subscription.
4.2. Billing Method. Customer will provide TOP with valid and updated credit card or automated clearing house (ACH) information (“Billing Method”) throughout the Subscription Term. By providing the Billing Method to TOP, Customer authorizes TOP to charge such Billing Method for all fees due.
4.3. Payment Obligations. Payment obligations are non-cancelable and fees paid are non- refundable. Customer agrees that, due to the nature of the Subscription, all Fees are due under these T&Cs regardless of Customer’s use of the Subscription. TOP reserves the right to suspend Subscription and remove any Customer website from viewing on the Internet if any payment from Customer is not made when due. In cases where collection proves necessary, Customer agrees to pay all fees (including all attorney’s fees and court costs) incurred throughout the collection process. All payments must be made in U.S. dollars.
4.4. Taxes: Unless otherwise stated, TOP’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Subscription hereunder. If TOP has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be charged via Customer’s Billing Method, unless Customer provides TOP with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.1. Reservation of Rights in Subscription: Subject to the limited rights expressly granted hereunder, TOP reserves all rights, title and interest in and to the Subscription, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Copyright to the finished website design, other design-based elements, and special functionality produced by TOP are owned by TOP or used by TOP by permission. Once payment under the Agreement and these T&Cs, including any additional charges incurred, has been received, the Customer will be assigned rights to use the Subscription subject to these T&Cs. Rights to photos, graphics, source code, work-up files, and computer programs specifically are not transferred to Customer, and remain the property of their respective owners. In cases where customers pay for customized cascading style sheets (“CSS”), both Customer and TOP will have rights to future use of those CSS files and hereby grant each other reciprocal, royalty-free, worldwide, irrevocable, perpetual licenses for such use. TOP, its licensors, employees and subcontractors retain the ownership, copyright, and distribution rights to themes, templates, designs and any other products or derivatives of such work; and retain the right to display graphics and other web design elements as examples of their work in their respective portfolios. Notwithstanding anything to the contrary contained herein, any use by Customer granted in these T&Cs of intellectual property described in this Section 5.1 shall be deemed to be used under a license (or sublicense, as the case may be) hereby granted by TOP subject to the payments required herein and to TOP’s right to terminate such license by terminating the Agreement as allowed hereunder. “InsideRE,” “Inside Real Estate,” and “Kunversion” and other TOP marks and logos are service marks and trademarks of TOP.
5.2. Restrictions: Customer shall not personally use the Subscription, or allow others to access the Subscription to, (a) create derivative works based on the Subscription except as authorized herein, (b) copy, frame or mirror any part or content of the Subscription, other than copying or framing on Customer’s own intranets for internal business purposes, (c) reverse engineer the Subscription, (d) facilitate or allow mass communications such as email or text message ‘blasts’ to contacts that are have not expressly opted-in to such communications, (e) use any part of the Subscription in ways that can be considered an abuse of the Subscription or (f) build a competitive product or service, or (g) copy any features, functions or graphics of the Subscription.
5.3. Suggestions: TOP shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Subscription and its design and functionalities, whether for Customer use or for any other uses, any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Subscription.
5.4. TCPA Notice and Disclaimer: Transmitting unsolicited voice and text messages (as well as other forms of communication) is heavily restricted and regulated under the Telephone Consumer Protection Act (“TCPA”) and other laws as well as various jurisdictions’ laws and regulations. You should consult your legal advisor to ensure compliance with the TCPA and related laws. TOP makes no representations regarding the content and manner of transmission of any text, phone or other communication you may make.
5.5. Customer Communications & Compliance with Laws. Customer is solely responsible for the content of any and all communications and the means of communication (phone, fax, text, etc.) with any third parties, including customers, potential customers, leads or other individuals or entities, and Customer is solely responsible for complying with any laws, Taxes and tariffs applicable in any way to the Subscription or any other services contemplated herein.
5.6. Indemnification. Customer agrees to and shall indemnify and hold harmless TOP, its owners, officers, managers, members, employees, agents, contractors, successors and assigns from and against any damages, claims, injury, costs and expenses, including, without limitation, attorney fees and court costs, arising from or related to (i) Customer’s exercise of Internet electronic commerce, (ii) any failure to comply with any laws, Taxes, and tariffs, (iii) any violation of the TCPA and/or related statutes (federal and state), (iv) Customer’s violation of these T&Cs, and (v) Customer’s use of the Subscription, its website, services provided by TOP in connection therewith, and any information obtained as a result thereof.
Customer agrees to cooperate as fully as reasonably required in the defense of any claims, including asserting any available defenses. TOP reserves the right, at its own expense, to assume the exclusive defense and control of any claims or matter otherwise subject to indemnification by Customer and Customer shall not in any event settle any claims without TOP’s prior written consent.
5.7. Equitable Relief: You acknowledge that a breach of any proprietary rights provision of these T&Cs may cause us irreparable damage, for which the award of damages would not be adequate compensation. Consequently, we may institute an action to enjoin you from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and we may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which we may be entitled at law or in equity.
6. Disclaimers and limitation of liability
Except as expressly provided herein, top makes no warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law. In no event shall TOP’s aggregate liability arising out of or related to the agreement and these t&cs (whether in contract or tort or under any other theory of liability) exceed the total amount paid by customer hereunder during the previous 12 months. The foregoing shall not limit customer payment obligations under section 4 (fees and payment for subscription). In no event shall top have any liability for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not top has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
7.1. Subscription Term: The Subscription Term shall include the Implementation Term, the Initial Subscription Term and Renewal Term(s). The Implementation Term shall commence upon the date of this Agreement through the launch date of the Customer agent websites. The Initial Subscription Term shall commence as of the launch date of the Customer agent websites through the Number of Subscription Months specified above. The Agreement will automatically renew at the end of the Initial Subscription Term for an additional Renewal Period equivalent to the Initial Subscription Term (each, a “Renewal Period”) unless Customer provides a written cancellation notice to Inside Real Estate (TOP) at least thirty (30) days prior to the end of the Initial or Renewal Term(s).
7.2. Termination: The Agreement may be terminated within the Initial Subscription or Renewal Term(s): (a) by either party if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (b) by TOP immediately upon Customer’s failure to make any payment required under the Agreement or these T&Cs, or (c) in the event of an uncured material breach, which material breach must be documented as such to the breaching party with a sixty (60) day notice that the breach is material; if the noted breach goes uncured for sixty (60) days from date of notice, then such applicable party may then terminate immediately upon written notice to the other party.
7.3. Payment upon Termination: Upon termination by TOP under Section 7.2, Customer shall pay any unpaid fees covering the remainder of the Subscription Term for all Subscriptions. In no event shall any termination by TOP pursuant to Section 7.2 above relieve Customer of the obligation to pay any fees payable to TOP hereunder for the full Subscription Term.
7.4. Surviving Provisions. Sections 2, 3, 4, 5, 6, 7, and 8 of these T&Cs shall survive any termination or expiration of the Agreement.
7.5. Notices. Except as otherwise specified in these T&Cs, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, or (c) the first business day after sending by email.
8.1. Independent Contractors. The parties are independent contractors. Neither the Agreement nor these T&Cs creates a partnership, franchise, joint venture, agency, brokerage, fiduciary or employment relationship between the parties.
8.2. Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement or these T&Cs.
8.3. No Waiver; Severability. No failure or delay by either party in exercising any right under the Agreement or these T&Cs shall constitute a waiver of that right. If any provision of the Agreement or these T&Cs is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement and these T&Cs shall remain in effect.
8.4. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of TOP. TOP reserves the right to assign its rights and delegate its duties under the Agreement and these T&Cs in its sole discretion. Subject to the foregoing, the Agreement and these T&Cs shall bind and inure to the benefit of the parties, their respective heirs, successors and assigns.
8.5. Entire Agreement. These T&Cs, including all exhibits and addenda hereto, and the Agreement constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer purchase orders or other order documentation (excluding Subscription Agreements) shall be incorporated into or form any part of these T&Cs, and all such terms or conditions shall be null and void.
8.6. Amendment to Agreement; Changes to These T&Cs. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
To the extent of any conflict or inconsistency between the provisions in the body of these T&Cs and any exhibit or addendum hereto or any Agreement, the terms of such Agreement shall prevail provided such conflicting Agreement has been signed or accepted by TOP. TOP may evidence its acceptance of an Agreement either by countersigning and returning a copy to Customer or by beginning to provide the services requested thereunder and charging Customer as described therein.
8.7. Governing Law and Jurisdiction: Each party agrees that these T&Cs shall be governed by and construed under the laws of the Province of Ontario without regard to such provincial choice or conflicts of law rules. The parties further agree to the exclusive jurisdiction of the applicable courts located in Toronto, Ontario, Canada. In any action to enforce or interpret these T&Cs, the substantially prevailing party shall be entitled to recover its attorney fees and court costs in addition to any other remedy to which it is entitled, whether such fees and costs are incurred in mediation, arbitration, litigation or on appeal.
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