END-USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE USING THE MLP SOFTWARE, MLP SERVICES OR THE MLP PLATFORM (AS EACH DEFINED BELOW, RESPECTIVELY). This EULA is a legal agreement between You and Multi-Listing Platform LP (“MLP“). “You”, and “Your” means the individual or legal entity licensing the MLP Software and accessing and using the MLP Services and MLP Platform under this EULA.
BY ACCEPTING THIS EULA, INSTALLING, ACCESSING, AND/OR USING THE MLP SOFTWARE, MLP SERVICES AND MLP PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS EULA AND OUR PRIVACY POLICY. If You do not have such authority or You do not agree to the terms of this EULA or our Privacy Policy, please do not install or use the MLP Software, MLP Platform or access the MLP Services. Nothing contained in any other document submitted by You shall in any way modify or add to the terms and conditions contained in this EULA.
1. Definitions
The following capitalized terms used in this EULA have the meanings set out below:
“Account” means Your MLP username and password accessible by a single login to the MLP Software;
“Closing Report” has the meaning set out in Section 4.1;
“Deal Blockchain” means the log of all activities pertaining to a specific real estate transaction, including User Content, Your involvement in the transaction and communications made via the MLP Platform;
“Documentation” means the electronic materials made accessible to You by MLP that describes the features and operating characteristics of the MLP Software and the MLP Platform or any part thereof, together with any copies, revisions, modifications or enhancements or other documentation as may be provided from time to time by MLP;
“Effective Date” means the date this EULA takes legal effect, being the earlier of the date You (i) agree to this EULA; or (ii) access the MLP Platform and/or download the MLP Software;
“Feedback” has the meaning set out in Section 3.3;
“Interim Report” has the meaning set out in Section 4.1;
“Laws” means all statutes, codes, ordinances, decrees, rules, regulations, municipal-by-laws, orders, decisions, rulings or awards, policies, voluntary restraints, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the party referred to in the context of which such word is used and “Law” means any one of the foregoing;
“MLP Application” means the MLP Platform made available over the Internet through Apple iTunes or Google Play online marketplaces, or any other similar online marketplace chosen by MLP;
“MLP Platform” means MLP’s proprietary platform containing the MLP Software, which allows You to access, share, view, communicate and upload User Content to the Deal Blockchain, as additionally modified by MLP from time to time;
“MLP Services” means those services that MLP provides to You through the MLP Platform as described in the Documentation, including facilitation of real estate transactions, access to the Deal Blockchain and communication on the MLP Platform;
“MLP Software” means the MLP Application in object code form, together with any Updates, as may subsequently be provided by MLP;
“MLP Intellectual Property” means collectively, (i) the MLP Services, MLP Software and MLP Platform and all trade secrets, copyrights, inventions, works, trademarks, logos, designs, distinctive names, commercial symbols, domain names, materials and insignia developed, licensed, owned, or provided by MLP in connection with MLP Services, MLP Software and MLP Platform; (ii) any other intellectual property rights developed, licensed or owned by MLP; and (iii) all enhancements, improvements, derivative works and modifications of (i) and (ii);
“Privacy Policy” means MLP’s privacy policy as currently posted by MLP which can be found at: www.thenewrealm.ca, which policy or location may be revised by MLP from time to time in its sole discretion;
“Reports” means collectively, any Ad hoc Report, Closing Report or Interim Report;
“Term” has the meaning set out in Section 13.1;
“Termination Date” has the meaning set out in Section 14.1;
“Updates” means bug fixes, patches, or other revisions to or modifications of the MLP Services, MLP Software and MLP Platform that MLP provides to You; and
“User Content” mean any document, file, image or other form of electronic documentation that You upload through the MLP Services, MLP Software or MLP Platform.
2. Ownership
2.1. The MLP Services, MLP Software and MLP Platform are licensed, not sold to You. You acknowledge that MLP owns and exclusively retains all rights and title in, including without limitation, all MLP Intellectual Property. MLP reserves all rights to the MLP Intellectual Property not expressly granted herein.
3. Proprietary Rights and License Grant
3.1. MLP grants You a revocable, non-exclusive, limited license to use the MLP Services, MLP Software and MLP Platform solely for the purposes of accessing the MLP Services, MLP Software and MLP Platform during the Term.
3.2. You provide MLP an irrevocable, perpetual, non-exclusive, unlimited, royalty-free, fully paid-up, transferable and sublicensable license to use all User Content for the purposes of providing the MLP Services. You are responsible for the User Content that is uploaded through the MLP Services, including but not limited to its legality, reliability and appropriateness. You represent and warrant that: (i) You have the right to use and make available the User Content and grant MLP the rights and license as provided in this EULA; and (ii) uploading and posting the User Content on or through the MLP Platform does not violate the privacy rights, intellectual property rights, property rights, and contractual rights of any other person or third party. The license grant described in this Section survives any termination of this EULA and for greater clarity MLP is expressly permitted to make all User Content available in perpetuity on the Deal Blockchain and in any Closing Reports, Interim Reports or Ad hoc Reports, defined in Section 4.2 below. You acknowledge that, by providing the ability to view and distribute User Content on and through the MLP Services, MLP Software or MLP Platform, MLP is merely acting as an intermediary for such distribution and is not undertaking any obligation relating to the accuracy or legality of the User Content.
3.3. You further acknowledge that MLP owns all feedback reported to MLP, including without limitation any feedback relating to software bugs, usability and performance problems (the “Feedback”). MLP shall be entitled to use the Feedback for any purpose, including for purposes of correcting and/or enhancing the MLP Services, MLP Software and the MLP Platform and developing other products and services. You hereby assign to MLP all right, title and interest in and to the Feedback, and all intellectual property therein, now and forever, and hereby waive all moral rights therein.
4. MLP Platform Features
4.1. Deal Blockchain. The Deal Blockchain is a record of all activities that take place on the MLP Platform for a specific real estate transaction. You have the authority to invite others to the MLP Platform for the limited purpose of carrying out and participating in a specific real estate transaction. If You initiate a specific real estate transaction, You shall designate the access of each person that You invite and pre-select what User Content must be uploaded by You and each other person you have invited to the Deal Blockchain, for example: an agreement of purchase and sale, images, representations and warranties, or insurance documentation. Once a real estate transaction is successfully completed, and where You have initiated the real estate transaction, You must close the Deal Blockchain.
4.2. Reports. You may generate a closing report that contains all of the User Content, MLS listing data, any other relevant information and communication made available by You through the MLP Platform (a “Closing Report”) once the real estate transaction has closed within the MLP Platform and any individual who participates in such real estate transaction may generate a Closing Report. You may also generate an interim report at any time during the course of a real estate transaction that will contain all of the User Content, MLS listing data and any other information and relevant communication made available by You through the MLP Platform (an “Interim Report”). You may also generate reports at any time regarding the open and closed real estate transactions You have participated in that can contain User and participant Content, MLS listing data and any other information and relevant communication made available by You through the MLP Platform (an “Ad hoc Report”). If You are participant in a real estate transaction, You may download a copy of the Ad hoc Report; otherwise You may request a copy through the MLP Platform. You are not permitted to modify, adapt, translate or amend any Report nor create derivative works from any Report.
4.3. User Content. You may upload User Content to the MLP Platform for the purposes of carrying out a specific real estate transaction. User Content should be limited to documents associated with the specified real estate transaction. All User Content uploaded through the MLP Platform will be registered as part the specified real estate transaction’s Deal Blockchain that will be made available on the MLP Platform in perpetuity. Please note that You should not upload any sensitive personal information or confidential information to the MLP Platform.
5. Use and Restrictions on Use
5.1. The rights and licenses granted to You in this EULA are personal to You and are not transferable or assignable without prior written consent of MLP. Any attempt to assign this EULA or any part thereof without the express prior written consent of MLP will be void.
5.2. You shall not modify, translate, decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of any of the MLP Platform or MLP Software supplied hereunder, or adapt the MLP Platform or MLP Software in any way to create a derivative work. You will not, and will not authorize any third party to use, reproduce, sublicense, or distribute the MLP Platform or MLP Software in whole or in part.
5.3. You shall not: (i) interfere with or disrupt the integrity or performance of the MLP Platform, the MLP Software or the MLP Services; (ii) systematically access the MLP Platform or MLP Software using “bots” or “spiders”, or attempt to gain unauthorized access to the MLP Platform or MLP Software or their related systems or networks; (iii) access the MLP Software, MLP Services or MLP Platform in order to build a competitive commercial product or service or to build a product or service using the same or similar ideas, features, functions or graphics as the MLP Software, MLP Services or MLP Platform; or (iv) use the MLP Services, MLP Software or MLP Platform in any manner that violates any applicable Laws, rules and regulations.
5.4. You may not modify, disable, circumvent, avoid, bypass, remove, deactivate, impair or otherwise interfere with features of the MLP Services, MLP Software or MLP Platform that reports technical or statistical information regarding the MLP Intellectual Property or its use to MLP.
5.5. You shall use best efforts to protect the copyright and/or any proprietary rights of MLP, including but not limited to any contractual, statutory and common law rights. You will comply with all reasonable requests made by MLP in relation to the protection of its intellectual property rights hereunder.
5.6. If You undertake any unauthorized decompilation, copies, translations, adaptations, modifications of the MLP Software or MLP Platform or any component thereof, all profits and proceeds from such unauthorized activity, if any, will accrue to MLP and MLP will be the owner of same whether or not made in compliance with this EULA.
5.7. If You become aware of any unauthorized decompilation or infringement of the MLP Software or MLP Platform or any component thereof by any third party, You will promptly alert MLP of such activity and provide the identity of such third party to MLP. You will provide MLP with all reasonable assistance required by MLP to assert its rights against such third party and to the proceeds of such unauthorized activity.
6. Your Conduct
6.1. You hereby agree to not use any information contained in the MLP Software, MLP Services or MLP Platform in any claim, proceedings, suits or actions as against MLP. You may not may not post, publish, reproduce, transmit or otherwise distribute User Content through the MLP Software or MLP Platform: (a) constituting or encouraging conduct that would constitute a criminal offence or give rise to civil liability; (b) which is protected by copyright, or other intellectual property right or derivative works thereof, without obtaining permission of the copyright holder; or (c) otherwise use the MLP Software, MLP Services or MLP Platform in a way that is contrary to law, regulation or professional obligation or which would adversely impact use of the MLP Software, MLP Services or MLP Platform.
7. Accounts
7.1. Your Account shall only be used by You. You are solely responsible for maintaining the confidentiality and security of user ID passwords associated with Your Account. You are solely responsible and liable for any and all use of Your user ID password and for activities that occur on or through Your Account. You agree to notify us immediately about any unauthorized access to or use of any of You Accounts. The MLP Software and MLP Platform contains technological measures designed to prevent its illegal use. You agree that we may enforce those measures.
8. Use of Data
8.1. During the installation process and through use of the MLP Services, MLP Software and MLP Platform, MLP may collect personal information as set forth in our Privacy Policy. By using or installing the MLP Software, the MLP Platform, and accessing the MLP Services, You agree to the terms and conditions of the Privacy Policy.
8.2. MLP does not guarantee the accuracy or completeness of any information made available through the MLP Services, MLP Software or MLP Platform. Despite our efforts, the information made available through the MLP Software, MLP Services and MLP Platform may have errors or inaccuracies. By using the MLP Services, MLP Software or the MLP Platform, You agree to indemnify and hold harmless MLP, its owners, directors, officers, employees, contractors, and its partners for any and all losses incurred, howsoever, whether foreseeable, reasonably or otherwise, and whether in tort, contract and with or without negligence on the part of the aforementioned releasees, including all form of claims, losses, damages, obligations, costs, actions or demands.
9. Download of MLP Software
9.1. You acknowledge that certain additional terms and conditions apply with respect to the MLP Software and MLP Platform designed for use on a device specific platform, including but not limited to Apple, Inc. iOS-powered mobile device (an “ App“) and that Your use of the MLP Software and MLP Platform must comply with the then-current terms of service of the applicable device specific platform.
9.2. Upon Your acceptance of this EULA, the entity providing the device specific platform you download the App from will have the right (and will be deemed to have accepted the right) to enforce these terms against You as they relate to Your license of the App as a third party beneficiary thereof.
10. Representations, Warranties and Disclaimer
10.1. MLP Representation and Warranty. MLP hereby covenants, represents and warrants that MLP has all rights to grant the rights and licenses hereunder.
10.2. Your Representation and Warranties. You hereby covenant, represent and warrant to MLP that (i) You have all necessary rights to upload and otherwise make available the User Content; (ii) the User Content does not contain any software code that will disable the MLP Software, the MLP Services or the MLP Platform, such as computer viruses, back doors, malware, Trojan horses and the like, and You will not insert such disabling code in the MLP Software, MLP Services or MLP Platform at any time; and (iii) You will access and use the MLP Software, MLP Services and the MLP Platform in full compliance with Laws and professional obligations as applicable, and in such manner as not to violate or infringe any intellectual property rights or confidential information of any other person.
10.3. MLP ASSUMES NO RESPONSIBILITY FOR THE SECURITY OF THE MLP SOFTWARE, MLP SERVICES OR THE MLP PLATFORM, THE PROPRIETY OR COPYRIGHT COMPLIANCE OF ANY USER CONTENT OR INFORMATION PROVIDED THROUGH THE MLP SOFTWARE, MLP SERVICES OR MLP PLATFORM. EXCEPT AS EXPRESSLY STATED ABOVE, YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE MLP SOFTWARE, MLP SERVICES, MLP PLATFORM AND ANY REPORTS ARE PROVIDED BY MLP ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. THE REPRESENTATION AND WARRANTY IN SECTION 10.1 OF THIS EULA IS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF TITLE OR NON-INFRINGEMENT, MERCHANTABLE QUALITY, MERCHANTABILITY, FITNESS OR ADEQUACY FOR A PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS, CAPACITY, OR THAT THE OPERATION OF THE MLP SERVICES, MLP SOFTWARE, OR MLP PLATFORM WILL BE ERROR FREE, COMPLETELY SECURE OR INTEROPERATE WITH ANY THIRD PARTY SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MLP, ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OR ITS PARTNERS WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THESE WARRANTIES AND YOU MAY NOT RELY ON SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND CONDITIONS SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
11. Indemnification
11.1. You shall defend, indemnify and hold harmless MLP and its owners, directors, officers, employees, contractors and partners from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including legal and accounting fees, arising out of or in connection with: (a) Your breach of any of the provisions of this EULA; (b) Your violation of any Laws, the rights of a third party (including, without limitation, privacy or intellectual property rights) or the MLP Intellectual Property; or (c) Your use of the MLP Software, MLP Services and MLP Platform in a manner that it was not designed for or intended to be used, as described in this EULA.
12. Exclusions of Damages and Limitations of Liability
12.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MLP NOR ANY OF ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS OR PARTNERS (EACH, A “RELEASED PARTY“), WILL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR EXPENSES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOST PROFITS, LOSS OF DATA, BUSINESS OR REVENUE, LOSS OF GOODWILL OR OTHER ECONOMIC ADVANTAGE, OR LOSS OF PRIVACY) ARISING OUT OF OR RELATED TO THIS EULA, WHETHER SUCH DAMAGES OR EXPENSES ARISE OUT OF BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH), OR TORT OR ON ANY OTHER STATUTORY OR COMMON LAW BASIS, EVEN IF A RELEASED PARTY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EXPENSES.
12.2.WITHOUT LIMITING THE SCOPE OR EFFECT OF SECTION 12.1 ABOVE, IN NO EVENT WILL THE RELEASED PARTIES’ CUMULATIVE LIABILITY WITH RESPECT TO ALL CLAIMS ARISING OUT OF OR RELATED TO THIS EULA, THE MLP SOFTWARE, THE MLP SERVICES, THE MLP PLATFORM OR THE REPORTS (INCLUDING CLAIMS OF NEGLIGENCE AND STRICT LIABILITY) EXCEED $100 CAD.
12.3. SOME JURISDICTIONS LIMIT THE EXCLUSION OF DAMAGES OR LIMITATION OF LIABILITY, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF ANY PART OF THE EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY SET FORTH IN THIS EULA IS UNENFORCEABLE UNDER APPLICABLE LAW, MLP’S AND THE RELEASED PARTIES’ AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
12.4. No action arising hereunder whether in contract or in tort may be brought more than two (2) years after the cause of action is discovered or should reasonably have been discovered.
13. Changes, Term and Termination
13.1. This EULA will take effect on the Effective Date and will continue unless terminated as described below (the “Term”) and unless You and MLP enter into a new agreement that entirely replaces this EULA, or unless MLP terminates this EULA as provided herein.
13.2. Without prejudice to any other rights, MLP may terminate this EULA if You are in breach of any provisions, or You default in the performance of any of Your duties or obligations as set forth in this EULA.
13.3. Either party may terminate this EULA upon the provision of thirty (30) days’ prior written notice to the other party.
13.4.MLP reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the MLP Software, MLP Services or the MLP Platform without notice.
14. Duties Upon Termination/Expiration
14.1. Upon the day this EULA terminates (the “Termination Date”), for any reason whatsoever, all of Your rights hereunder will terminate immediately, except as otherwise provided herein. You will immediately cease use of the MLP Intellectual Property, MLP Software, MLP Services and MLP Platform.
14.2. You will, within fifteen (15) days of the Termination Date, destroy all materials related to MLP Software, MLP Services or MLP Platform in Your possession or control, regardless of its format or containing medium.
14.3. Your failure to comply with the terms of this Section will result in irreparable harm to MLP and, accordingly, in addition to any legal remedies available to MLP as a result of such failure to comply, MLP will have the right to seek specific performance of this Section 14.3 or other equitable relief (or the equivalent of any such relief known or designated by some other name or term) from a court of competent jurisdiction in accordance with the provisions of this EULA. You will submit to the personal jurisdiction of any such court in an action seeking such relief.
15. Miscellaneous
15.1. You agree to comply with all applicable Laws related to use of the MLP Software, MLP Services and MLP Platform and Your performance under this EULA.
15.2. If any clause, sentence, paragraph or part of this EULA will be held by any court of competent jurisdiction to be invalid, illegal or unenforceable, such judgment will not affect or nullify the remaining provisions of this EULA.
15.3. This EULA is governed by the provincial laws of the province of Ontario and the federal laws of Canada applicable therein, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. Except as restricted by applicable law, You agree to submit to the exclusive jurisdiction and venue of courts in Toronto, Ontario, Canada for the purpose of litigating all such claims or disputes.
15.4. It is the express wish of the parties that this EULA and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
15.5. No failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver, nor will any single or partial exercise preclude further exercise thereof. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of non-performance or breach.
15.6. The headings of paragraphs are inserted for convenience only and are not intended to be construed as part of this EULA or to limit the scope of a particular paragraph.
15.7. This EULA contains the entire understanding and agreements between You and MLP with respect to the subject matter herein. There are no representations, agreements, arrangements or understandings, oral or written, between the parties hereto relating to the subject matter of this EULA which are not fully expressed or described herein.
15.8. You may not otherwise transfer the MLP Services, MLP Software or MLP Platform or assign any of Your rights or obligations under this EULA. This EULA is binding upon and enures to the benefit of the parties and their respective successors and permitted assigns.
15.9. The parties agree that those sections which by their nature should survive termination of this EULA will survive such termination, such sections to include, but be not limited to, Sections 1, 2, 3, 4.1, 5, 6, 8.2, 10, 11, 12, 14 and 15.
15.10. The parties waive the application of any rule of law, which otherwise would be applicable in connection with the construction of this EULA, that ambiguous or conflicting terms or provisions should be construed against the party that (or its counsel that) prepared this EULA.
