AUTHORIZED USER AGREEMENT TERMS AND CONDITIONS
IMPORTANT PLEASE READ CAREFULLY
This Authorized User Agreement along with all materials referenced herein ("Agreement") is a legal agreement between YOU (being designated in this Agreement as the "Authorized User") and Toronto Lofts Realty Corp., a corporation incorporated pursuant to the laws of the Province of Ontario with offices at 1179 King Street W., Suite 215, Toronto Ontario M6K 3C5 (hereinafter referred to as "Toronto Lofts”).
The Services being provided by Toronto Lofts and the Toronto Lofts database (hereinafter referred to as the “TORONTO LOFTS Database”) to which this Agreement relates are owned and operated by or on behalf of TORONTO LOFTS™ and made available to Authorized User only under the terms and conditions of this Agreement.
The Website, Software and Documentation developed by or on behalf of TORONTO LOFTS™ and owned by or licensed to TORONTO LOFTS™ support the provision of the Services and access to the TORONTO LOFTS™ Database.
This Agreement combined with the TORONTO LOFTS™ Requirements together with any amendments and updates that may be published by TORONTO LOFTS™ or posted by it on the TORONTO LOFTS™ Website from time to time collectively comprise the entire agreement between the Parties and supersede all prior agreements relating to the subject matter of this Agreement.
The rights granted to Authorized User under this Agreement are personal to the Authorized User.
Authorized User may not sell, assign, or otherwise transfer or agree to transfer all or any portion of those rights without the prior written consent of TORONTO LOFTS™, which consent may be withheld in the absolute discretion of TORONTO LOFTS™.
BY ACCEPTING THE TERMS OF THIS AGREEMENT THE AUTHORIZED USER WILL BE PERMITTED TO ACCESS AND USE THE SERVICES and the TORONTO LOFTS™ Database.
THE SERVICES, TORONTO LOFTS™ Database MAY CONTAIN LINKS TO THIRD PARTY WEBSITES. TORONTO LOFTS™ DOES NOT ENDORSE THE CONTENT CONTAINED IN ANY THIRD PARTY WEBSITE NOR DOES IT MAKE ANY REPRESENTATION, WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY OF ANY KIND REGARDING ANY THIRD PARTY WEBSITE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY REGARDING THE LEGALITY, ACCURACY, RELIABILITY, QUALITY, COMPLETENESS, TIMELINESS, NON INFRINGEMENT, SECURITY, OR SUITABILITY OF ANY CONTENT ON A THIRD PARTY WEBSITE OR WHETHER OR NOT ANY NECESSARY CONSENTS REQUIRED UNDER APPLICABLE PRIVACY LAWS FOR ANY ASPECT OF ANY THIRD PARTY WEBSITE HAVE BEEN PROPERLY OBTAINED. TORONTO LOFTS DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF ANY CONTENT, GOODS OR SERVICES ON OR MADE AVAILABLE THROUGH ANY THIRD PARTY WEBSITES. NOR DOES TORONTO LOFTS MAKE ANY REPRESENTATION, WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY THAT THE OPERATION OF ANY THIRD PARTY WEBSITE WILL BE UNINTERRUPTED, FREE OF ERROR, VIRUSES OR ANY OTHER HARMFUL COMPONENTS. THE CONTENT, GOODS AND/OR SERVICES AVAILABLE ON OR THROUGH ANY THIRD PARTY WEBSITE ARE NOT UNDER TORONTO LOFTS™ CONTROL AND IF YOU CHOOSE TO ACCESS ANY THIRD PARTY WEBSITE, YOU DO SO ENTIRELY AT YOUR OWN RISK.
In this Agreement:
(a) "Authorized User" means YOU as the party having agreed to be contractually bound to TORONTO LOFTS™ under each and every one of the terms and conditions of this Agreement.
(b) "Acceptable Use Policy" means the rules and prohibitions established by TORONTO LOFTS™ as modified from time to time that define acceptable use of the Services and TORONTO LOFTS™ Database and any associated features. Unacceptable use is prohibited, and is grounds for loss of privileges, termination of the Agreement, as well as discipline or legal sanctions for violating any applicable laws.
(c) "Agreement" means this Authorized User Agreement and any amendments thereto. Unless otherwise stated, all references to a Section shall refer to a Section of this Authorized User Agreement.
(d) "Business" or "business" as referenced in Sections 2, 3(b), 4, and 8(c), means the business of trading in real estate as set out or otherwise utilized in the Real Estate and Business Brokers Act R.S.O. 1990, as amended under the Real Estate and Business Brokers Act, 2002 when proclaimed in force, and as may be further amended from time to time.
(e) "Content" means all information, comments, opinions, statements, advice, descriptions, services, offers, data, files, links, ideas, software, images, graphics, audio clips, video clips, icons, or any other form of content or information.
(f) “Copies" means hard copy print outs and electronic versions of the reports, results, and other information or materials generated from Authorized User's access and use of the Services and TORONTO LOFTS™ Database.
(g) "Documentation" means the applicable online or hardcopy user documentation providing guidance and instruction for accessing and using the Services and TORONTO LOFTS™ Database.
(h) "Intellectual Property" means all applicable copyrights, patents, trademarks, trade secrets, and associated international laws, treaties, and conventions.
(i) "License" means the restricted license rights granted by TORONTO LOFTS™ to Authorized User under Section 2 and elsewhere in this Agreement.
(j) "TORONTO LOFTS Database" means the aggregation of all Content as well as its or their selection, assembly, and arrangement, that from time to lime comprises the Internet based service currently known as the Toronto Lofts Listing Service (TLLS), and any successor or replacement service thereto owned and operated by or on behalf of TORONTO LOFTS™.
(k) "Party" or "Parties" means if used in the singular, either Authorized User or TORONTO LOFTS™, and if used in the plural, both Authorized User and TORONTO LOFTS™.
(l) "PIPEDA" and "Personal Information" shall have the meaning attributed to such term within the provisions of PART 1 of the Persona/Information and Electronic Documents Act of Canada ("PIPEDA") and any successor legislation and any legislation of similar effect in the Province of Ontario.
(m) "Real Estate" or "real estate", as referenced in Sections 4 and 9 shall have the same meaning as set out or otherwise utilized in the Real Estate and Business Brokers Act R.S.O. 1990, as amended under the Real Estate and Business Brokers Act, 2002 when proclaimed in force, and as may be further amended from time to time.
(n) "Services" means TORONTO LOFTS’™ proprietary Internet-based system and associated technology that provides web enabled display, search, retrieval, and uploading capabilities through the TORONTO LOFTS™ Website to its TORONTO LOFTS Database and other related capabilities including, without limitation, customer information services.
(o) "Software" means TORONTO LOFTS'™ proprietary software applications that enable TORONTO LOFTS™ to provide TORONTO LOFTS™ Website access to and use of the Services, TORONTO LOFTS Database.
p) "Third Party Website" means any site other than a TORONTO LOFTS™ Website.
(q) "Trade in Real Estate" or "Trading In Real Estate" shall have the same meaning as set out or otherwise utilized in the Real Estate and Business Brokers Act R.S.O. 1990, as amended under the Real Estate and Business Brokers Act, 2002, when proclaimed in force, and as may be further amended from time to time.
(r) "TORONTO LOFTS™ Website" means the following web address through which Authorized User's may obtain logon access to the Services, TORONTO LOFTS Database through TORONTO LOFTS™ issued Authenticator, "User ID" and "Password" and Authorized User controlled "Password" - www.torontolofts.ca and any other associated or linked sites operated by or on behalf of TORONTO LOFTS™.
2. LICENSE GRANT:
Subject to the terms of this Agreement, TORONTO LOFTS™ grants authorized user a non-exclusive, non-transferable license, without right to sublicense, to access and use the Services, TORONTO LOFTS Database in accordance with this Agreement and in compliance with all applicable TORONTO LOFTS™ requirements ("License") solely for the purpose of and directly related to the Authorized User's ordinary carrying on of its business. Authorized User unconditionally agrees to access and use the Services, TORONTO LOFTS Database only in the manner and for the purposes expressly specified in this Agreement and for the exclusive and internal use by Authorized User and by other Authorized Users that have a valid Authorized User Agreement in effect with TORONTO LOFTS™ which has not been terminated or suspended. Any updates, modifications, enhancements to the Services, the underlying Software, Documentation, TORONTO LOFTS Database made available to authorized user by TORONTO LOFTS™, shall be subject to all of the terms and conditions contained in this Agreement. TORONTO LOFTS™ may at any time and for any reason elect to modify, discontinue, delete or restrict any aspect or feature of the Services and TORONTO LOFTS Database without notice to Authorized User or any liability to TORONTO LOFTS™ or any third party; however, TORONTO LOFTS™ agrees to make commercially reasonable efforts to provide Authorized User with prior posted notice by means of notice posted to Authorized Users. No part of this Agreement may be assigned or transferred in any manner without the prior written consent of TORONTO LOFTS™ nor may the Authorized User rent, distribute, assign, sub-license or otherwise transfer any of the Authorized User's rights, duties or obligations under this Agreement without the prior written consent of TORONTO LOFTS™.
3. DOCUMENTATION AND COPIES:
Under the License, Authorized User may
(a) use either the TORONTO LOFTS Database or the Services in any manner not directly related to the business of real estate as defined in the Real Estate and Business Brokers Act R.S.O. 1990, as amended under the Real Estate and Business Brokers Act, 2002, when proclaimed in force, and as may be further amended from time to time;
(b) use either the TORONTO LOFTS Database or the Services for the benefit of anyone except directly related to the real estate business as defined in the Real Estate and Business Brokers Act R.S.O. 1990, as amended under the Real Estate and Business Brokers Act, 2002 when proclaimed in force, and as may be further amended from time to time;
(c) circulate or copy either the TORONTO LOFTS Database or the Services in any manner except to authorized users who have a valid Authorized User Agreement which they have signed and delivered to TORONTO LOFTS™ which agreement has not been terminated or is suspended, and except to persons or entities who desire or may desire to acquire or dispose of certain of their rights respecting real estate;
(d) use, copy, reproduce or exploit either the TORONTO LOFTS Database or the Services for creating, maintaining or marketing, or aiding in the creation, maintenance or marketing, of any TORONTO LOFTS Database which is competitive with the TORONTO LOFTS Database or which is contrary to the Real Estate and Business Brokers Act R.S.O. 1990, as amended under the Real Estate and Business Brokers Act, 2002 when proclaimed in force, and as may be further amended from time to time and under the Rules and Regulations of the Real Estate Council of Ontario (“RECO”).
Authorized User warrants, represents and agrees that it will not contribute any Content that is infringing, libelous, defamatory, obscene, pornographic, abusive, or offensive or otherwise violates any law or right of any third party. TORONTO LOFTS™ reserves the right to remove any Content from the TORONTO LOFTS’™ Website at any time, for any reason including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if TORONTO LOFTS™ is concerned that Authorized User may have breached the immediately preceding sentence.
As a condition of the rights granted in this Agreement, Authorized User shall pay to TORONTO LOFTS™ the charges as set forth and as amended by TORONTO LOFTS™ from time to time. If TORONTO LOFTS™ does not receive payment when due, interest shall be charged at the rate of 2% per month or 24% per annum until such charges, together with all applicable interest, is received by TORONTO LOFTS™.
7. INTELLECTUAL PROPERTY:
(a) The Services, TORONTO LOFTS Database, Software and Documentation are proprietary and confidential to TORONTO LOFTS™, are protected by the Intellectual Property laws of Canada and international treaties and conventions, and shall remain the sole property of TORONTO LOFTS™. Notwithstanding anything in this Agreement to the contrary, TORONTO LOFTS™ shall have sole and exclusive ownership of all right, title and interest in and to the Services and TORONTO LOFTS Database, Software and Documentation including all derivative works and all modifications and enhancements thereof and derivative works regardless of the form or media in or on which the original and other copies may exist. No provision or clause in this Agreement shall be interpreted as an assignment or grant to Authorized User of any right, title, or interest in or to Intellectual Property, all privileges pertaining thereto remaining the exclusive property of TORONTO LOFTS™ (or in some cases, of its subcontractors).
(b) Authorized User shall not obtain any rights in connection with any trade-marks or service marks of TORONTO LOFTS™. Authorized User shall not remove or alter any trade-mark, logo, copyright or other proprietary notices, legends, symbols or labels in the TORONTO LOFTS Database Content, or in the Documentation and shall ensure that the TORONTO LOFTS Database Content, Copies and Documentation and each copy must contain all of the original proprietary notices.
(d) Authorized User shall not, at any time or times, during or after the term of this Agreement question or dispute any of TORONTO LOFTS’™ right, title, ownership, license, Intellectual Property, and/or other interests in the Software, the Documentation, the Services, TORONTO LOFTS Database nor commit any act or omission which negates, reduces, or impairs any of TORONTO LOFTS' rights or interests in any of same; nor file any patent, copyright, and/or other intellectual property application and/or registration relating to any portion of the Software copyright, and/or other Intellectual Property application and/or registration relating to any portion of the Documentation.
(e) Authorized User shall promptly notify TORONTO LOFTS™ if Authorized User becomes aware of any (i) error, bug, or security breach in the Services or Software; (ii) unauthorized use, reproduction, or distribution of Content, the TORONTO LOFTS Database the Software or Documentation; and (iii) breach of the terms of this Agreement. Authorized User shall maintain all such information in confidence, shall only disclose the same to TORONTO LOFTS™, and shall not publicize, publicly distribute, or publicly display any such information.
(f) Authorized User recognizes the validity of TORONTO LOFTS'™ copyrights and trade secrets. Authorized User will cooperate in good faith to secure and preserve TORONTO LOFTS'™ right and title to the copyrights and trade secrets for the Software and of all derivative works, as if said products were their own products. Authorized User acknowledges and agrees that the Software is, in all respects confidential information subject to the terms of this Subsection.
(g) Authorized User agrees upon termination of this Agreement to continue to protect TORONTO LOFTS'™ copyrights and trade secrets.
(a) "Confidential Information" means all confidential and/or trade secret information, knowledge, and/or data of every kind disclosed by one party to this Agreement ("Disclosing Party") to the other party ("Recipient Party") pursuant hereto.
(b) Confidential Information shall not include any information, knowledge, and/or data disclosed pursuant to this Agreement to the extent same: (i) is or hereinafter becomes part of the public domain through no wrongful act of the Recipient Party, or (ii) is known to the Recipient Party free of any obligation of confidentiality at the time of first disclosure hereunder; or (iii) is lawfully obtained by the Recipient Party from a third party without obligation of confidentiality, without breach of any obligation of confidentiality to the Disclosing Party, and without breach of this Agreement; or (iv) is disclosed pursuant to a court order provided that the Recipient Party provides a copy of such court order to the Disclosing Party prior to such disclosure and Recipient Party takes all reasonable steps, consistent with such order, to maintain the confidentiality of same.
(c) Each Recipient Party shall: (i) receive and maintain all Confidential Information received hereunder in confidence; (ii) use Confidential Information received hereunder solely for the purposes of such Recipient Party lawfully exercising its rights and/or performing its obligations hereunder and for no other purpose whatsoever; (iii) use the same degree of care to protect Confidential Information received hereunder as such Recipient Party itself uses to protect its own confidential information from unauthorized use, copying, and/or disclosure which standard shall be no less than reasonable care; and (iv) disclose Confidential Information received hereunder only to those of its directors, officers, employees, who have a direct need to know same for the purpose stated above and who are bound by written confidentiality obligations at least as restrictive as those contained herein.
(d) All ownership, license, Intellectual Property, moral, and other rights to Confidential Information disclosed hereunder shall remain with the Disclosing Party and/or with such Disclosing Party's licensors.
(e) Each Recipient Party shall promptly cease all use of all Confidential Information received hereunder upon any termination or expiry of this Agreement and shall promptly return all such Confidential Information to the Disclosing Party by a secure means without delay.
(a) Compliance with Personal Information Protection and Electronic Documents Act. Authorized User shall at all times comply with all applicable laws and regulations. Without limiting the generality of the foregoing, Authorized User shall ensure that all Personal Information that may be collected by or on behalf of Authorized User in connection with the TORONTO LOFTS Database and/or the Services will be collected, used, disclosed and maintained strictly in accordance with the requirements of all applicable privacy legislation including, without limitation, the Personal Information Protection and Electronic Documents Act ("PIPEDA") of Canada and any successor of similar effect in the Province of Ontario as though that legislation were fully in force and fully applicable to the Authorized User.
(b) Consent. Authorized User consents to and authorizes TORONTO LOFTS™ to collect, retain, use and disclose all information provided to TORONTO LOFTS™ relating to the TORONTO LOFTS Database and the Services (including, in each case, personally identifiable information) for all purposes relating to the sale of real estate in Ontario. and in the course of providing support for Authorized Users of TORONTO LOFTS™ to carry on their real estate businesses in Ontario including, without limitation, collection, use and retention of Authorized Users' personally identifiable information for TORONTO LOFTS'™ own administrative purposes, collection, retention, use and disclosure of Authorized Users' personally identifiable information in the form of a TORONTO LOFTS’™ Authorized Users register that is compiled and disclosed to TORONTO LOFTS'™ Authorized Users from time to time in paper and/or electronic formats and collection, retention and disclosure of all information submitted through the Services and in the form of listings to the TORONTO LOFTS Database including, without limitation, Authorized Users' name and relationship to particular real estate transactions, all financial particulars of such transactions and disclosure of such information to all users of the TORONTO LOFTS Database or in any form whatsoever, and all calendar, contact or other information collected, used, disclosed or maintained as part of the authorized User's use of the Services. For purposes of this Section 9 (c) "personally identifiable information shall include, but not be limited to, Authorized User's and its client's names, phone numbers, business and home addresses and employers.
(d) Cessation of Use. Subject to the provisions of this Agreement, Authorized User shall cease all use of all Personal Information received pursuant to this Agreement upon any termination or expiry of this Agreement.
(a) Access. TORONTO LOFTS™ shall assign Passwords to Authorized Users to enable Authorized Users to access the Services, TORONTO LOFTS Database and Software. Authorized User agrees to be fully responsible for all activities that occur under Authorized User's Password or account and to not permit any person other than the Authorized User to access the Authorized User's Password or account or use the Authorized User's Authenticator. In the event Authorized User discovers unauthorized access to or use of Authorized User's account, Password, or Authorized User must notify TORONTO LOFTS™ immediately. TORONTO LOFTS™ reserves the right from time to time to change the Passwords by notice to Authorized User, or to require Authorized User to change its Password. Authorized User must change its Password within one (1) day after notification of the requirement to change the Password in order to continue to be entitled to access the Data Base and Software.
(b) Performance. Authorized User understands and agrees that the operation and availability of the systems used for accessing and interacting with the Software and Services, including, the computer networks and the Internet or to transmit information, whether or not supplied by Authorized User or TORONTO LOFTS™, can be unpredictable and may, from time to time, interfere with or prevent the access to and/or the use or operation of the Software and Services. TORONTO LOFTS™ shall not in any way be responsible for any such interference with or prevention of Authorized User's access and/or use of the Software and Services.
(d) Non-Interference. Authorized User shall not attempt to access any systems, programs or data of TORONTO LOFTS™ that is not licensed under this Agreement, or otherwise made available by TORONTO LOFTS™ for public use;
(a) THE SERVICES, SOFTWARE AND TORONTO LOFTS DATABASE ARE PROVIDED "AS IS" WITHOUT ANY GUARANTEE, REPRESENTATION, CONDITION OR WARRANTY OF ANY KIND, EITHER EXPRESSED, IMPLIED OR STATUTORY, USAGE OF TRADE OR COURSE OF DEALING INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TORONTO LOFTS™ MAKES NO WARRANTIES AND ASSUMES NO LIABILITY WHATSOEVER REGARDING THE TRUTH OR ACCURACY, CURRENCY, OR COMPLETENESS OF THE SERVICES, SOFTWARE, TORONTO LOFTS DATABASE. AUTHORIZED USER AGREES THAT ANY USE OF THE TORONTO LOFTS DATABASE AND/OR SOFTWARE BY OR ON BEHALF OF AUTHORIZED USER OR ANY PERSON OR ENTITY WHO ACQUIRES THE RIGHT OF SUCH USE, DIRECTLY OR INDIRECTLY BY OR THROUGH AUTHORIZED USER, IS DONE AT AUTHORIZED USER'S SOLE RISK.
(b) Authorized User acknowledges that neither TORONTO LOFTS™ nor its directors, officers, employees or agents will assume any responsibility with respect to the use, copying or in any manner relating to how Authorized User, any of their employees, agents or any other person uses or relates to the TORONTO LOFTS™ Website, Services, Software, TORONTO LOFTS Database or any Third Party Website or the results of any act or omission related thereto in any manner. TORONTO LOFTS™, its directors, officers, employees and agents, will not be liable to Authorized User or to Authorized User's clients or customers, any of their employees, agents or to any other party for any direct, indirect, special, consequential, incidental, contingent, punitive or exemplary damages, or damages of any nature including without limitation lost profits howsoever caused, arising in contract, tort (including negligence), fundamental breach, breach of a fundamental term, or otherwise, or out of or in connection with this Agreement and/or the supply, use, performance or non-performance of the TORONTO LOFTS Database, the Software or any Third Party Website or relating to the assistance provided by TORONTO LOFTS™, even if TORONTO LOFTS™ or its employees or agents have been advised of the possibility of such damages, regardless of the form of action and whether or not such damages are foreseeable.
(c) Authorized User shall indemnify, defend and save harmless TORONTO LOFTS™, its partners and its and their respective directors, officers, employees and agents from and against all damages, costs and expenses relating in any manner, actual or threatened, to any claim, action, cause of action or any proceeding made, sustained, brought or prosecuted in any manner based upon, occasioned by or attributable to any injury, infringement or damage arising from: (i) any and all negligent or reckless acts or omissions of Authorized User, or its partners, or its or their respective directors, officers, employees, representatives or agents, in the performance or purported performance of this Agreement; (ii) breach of this Agreement except directly by TORONTO LOFTS™; or (iii) breach of any Intellectual Property, moral or property rights related to the TORONTO LOFTS Website, the Services, Software, TORONTO LOFTS Database or any Third Party Website by Authorized User, or its partners, or its or their respective directors, officers, employees, representatives or agents, or any person or entity who gained access to the TORONTO LOFTS Database by or through Authorized User, directly or indirectly.
(d) Authorized User agrees to defend, indemnify and hold TORONTO LOFTS™ as well as each of the directors, officers, agents, and employees of TORONTO LOFTS™ harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonably lawyers' fees and court costs) arising or resulting from Authorized User's breach of any term of this Agreement or caused by acts or omissions performed by Authorized User or under Authorized User's Password or any password issued by Authorized User to Licensed Authorized Users or shared by either of them with others.
(e) Authorized User shall indemnify, hold harmless and, at the request of TORONTO LOFTS™, defend TORONTO LOFTS™, its affiliates and its and their respective officers, directors and employees from and against any and all costs, expenses, awards of damages or settlements made in relation to any proceedings, complaints, actions or claims, or in relation to compliance by TORONTO LOFTS™ or its contractors with any orders or directions given against or to it or its affiliates by any privacy commissioner, tribunal, person or court, arising from any breach by Authorized User of any of its obligations as set out in Section 9.
(b) Authorized User may terminate this Agreement at any time, provided it gives TORONTO LOFTS™ prior written notice, and provided that it complies with the termination procedures and obligations as required.
(c) In the event TORONTO LOFTS decides, at any time, not to continue to offer, maintain or develop the TORONTO LOFTS Database TORONTO LOFTS™ may terminate this Agreement provided it gives Authorized User six months prior written notice and Authorized User shall comply with the termination procedures and obligations as contained herein
13. INJUNCTIVE RELIEF:
Authorized User acknowledges that a violation of Sections 4, 7, 8, 9, and 10 of this Agreement would cause irreparable harm to TORONTO LOFTS™ for which no adequate remedy at law exists and Authorized User therefore agrees that, in addition to any other remedies available, TORONTO LOFTS™ shall be entitled to seek injunctive relief and to recover all costs and expenses, including reasonable lawyer's fees incurred because of any such legal action to enforce the terms of Sections 4, 7, 8, 9, and 10.
(a) Any notice, direction or other Instrument required or permitted to be given to a Party shall be in writing and shall be sufficiently given if delivered personally, mailed by prepaid registered mail, or transmitted by fax or other form of recorded communication to the Party as follows:
(i) in the case of TORONTO LOFTS™, at 1179 King St. W, Suite 215 Toronto, ON M6K 3C5
(ii) in the case of Authorized User, at the Authorized User's business address as identified in the Application last filed by Authorized User with TORONTO LOFTS™, and to be addressed to the Attention of the Authorized User.
(b) Either Party may change its address for service from time to time by notice given to the other Party In accordance with the foregoing.
(c) Provided that either Party may, at such Party's option, elect to provide electronic legal notices regarding this Agreement to the other Party
at the email address identified in the acceptance or signature block of this Agreement. It shall be the responsibility of the recipient Party to provide prompt notice to the other Party of any changes in email addresses.
(a) Entire Agreement. This Agreement constitutes the entire agreement by which the relationship between TORONTO LOFTS and Authorized User will be governed. There are no oral agreements, arrangements, representations or understandings between the Parties and this Agreement may not be amended or modified except by an instrument in writing duly signed by both Parties. This Agreement constitutes the entire agreement between the Parties with respect to the transactions contemplated in this Agreement and cancels and supersedes any and all prior understandings, agreements, negotiations and discussions with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements or understandings, express or implied, between the parties other than as expressly set forth in this Agreement.
(b) Time of the Essence. Time shall be of the essence of this Agreement.
(c) Governing Law. This Agreement shall be construed in accordance with the laws of the Province of Ontario except that no choice of law doctrine shall be used to apply the laws of any other jurisdiction. The Parties further agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
(d) Consent to Jurisdiction. Authorized User consents to the exclusive jurisdiction of the federal and provincial courts located in the Province of Ontario in connection with any action or proceeding to enforce, or arising out of, this Agreement and agrees that venue will be proper in such court on any such matter. The Parties agree that a summons and complaint may be served by mail or overnight courier service at their addresses first set forth above or at such other address as such party may have given written notice of in accordance with Section 14.
(e) Waiver. The waiver by either party of any breach or default by the other party in the performance of any obligation hereunder shall not constitute a waiver of any subsequent breach or default.
(f) Amendments. TORONTO LOFTS™ may amend, add or remove portions of this Agreement at any time and from time to time without notice to Authorized User and the then current version shall be posted at the TORONTO LOFTS Website. Upon the posting of such version as aforesaid and Authorized User's use of the Software, TORONTO LOFTS™ thereafter, this Agreement shall be deemed to be so amended without further acknowledgement of Authorized User.
(g) Severability. To the extent that any law, statute, treaty or regulation by its terms as determined by a court, tribunal or other governmental authority of competent jurisdiction, is in conflict with the terms of this Agreement, the conflicting terms of this Agreement shall be superseded only to the extent necessary by the terms required by such law, statute, treaty or regulation. If any provision of this Agreement shall be otherwise unlawful, void or for any reason unenforceable, then that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties. In either case, the remainder of this Agreement shall continue in full force and effect.
(h) Currency. All dollar amounts referred to in this Agreement, including the symbol$, refer to lawful money of Canada.
(i) Language. This Agreement and any documents relating thereto have been prepared in the English language at the express request of the parties. Les parties ont exigé, et par les présentés confirment leur demande, que ce contrat soit rédigé en anglais seulement.
(j) Headings. The division of this Agreement into Sections and the use of headings are for convenience of reference only and shall not affect the interpretation of this Agreement.
(k) Gender and Number. In this Agreement words importing a specific gender include all genders and words importing the singular include the plural and vice versa.
(l) Force Majeure. TORONTO LOFTS™ will not be responsible for any failure to perform due to causes beyond its control, including, acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like.
(m) Assignment and Corporate Reorganization. The rights granted to Authorized User under this Agreement are personal in character. Neither this Agreement nor any rights granted hereby may be assigned by Authorized User voluntarily or by operation of law without TORONTO LOFTS'™ prior written consent and any such attempted assignment shall be null and void.
(n) Parties. Nothing contained in this Agreement is intended to confer upon any person other than the parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this Agreement, except with respect to Parties who shall be deemed third party beneficiaries under this Agreement but solely with respect to those terms that specifically reference a Party or the Parties.