SuccessWebsite® Solution Terms
Last Revised: April 10, 2017
The terms and conditions set out in this document, as amended from time to time (the “Terms“) are an agreement between you and ConsulNet Computing Inc. (“ConsulNet“) and govern your use of all websites, SuccessWebsite® marketing resources and materials, and other products and services, provided to you (collectively referred to as the “ConsulNet Products“) by ConsulNet and its licensors. These Terms come into effect upon the earlier of your acceptance (as evidenced by your signature below or your acceptance via the ConsulNet website) and the date that ConsulNet sets up the first specific ConsulNet Product for you such as a branded website or any other ConsulNet Product (any such product, a “Client Specific Product“). ConsulNet may at any time revise these Terms, without notice, by updating the posting of these Terms at http://www.successwebsite.com/Terms.htm and changing the “Last Revised“ date reference at the top of these Terms. It is your responsibility to check these Terms regularly for any such revisions. If you do not wish to be further bound by the Terms as amended you must immediately notify ConsulNet in the manner prescribed in these Terms and stop using the ConsulNet Products. Your continued use of the ConsulNet Products will evidence your agreement to be bound by the Terms effective as of the time they were amended by ConsulNet.

 

CONSULNET PRICING AND PAYMENT

You will pay the initial and monthly fees for the applicable ConsulNet Products as they are outlined in the ConsulNet Products Pricing Appendix based on your selected package level or, depending on what other services you choose, such other fees as applicable. You may cancel or change levels at any time by ConsulNet receiving notice sent by you in the manner prescribed in these Terms. Such cancellation or level change will take effect at the end of the then current monthly billing period. Packages and pricing are subject to change by ConsulNet upon 30 days notice. Services and customizations not included in individual packages will result in additional charges as they are incurred. All pricing is in US dollars. Canadian pricing is available on request for Canadian residents only. All pricing is exclusive of applicable taxes.

 

GENERAL & OTHER SERVICE TERMS

You are responsible for your use of all ConsulNet Products and you must notify ConsulNet promptly of any (a) changes in your right or authority to use, or cause ConsulNet to use on your behalf, any third party resources that are required in order for ConsulNet to provide any ConsulNet Products to you (including, without limitation, any limitation on your right to use real estate data or listings provided by third parties), and (b) concerns or problems regarding such products or services or with regard to your account with ConsulNet, including any disputes regarding fees and billing.

Certain services offered as part of the ConsulNet Products have additional terms and conditions associated with them which may be set out in an appendix to these Terms or another document that incorporates these Terms by reference. In such cases, in the event of an inconsistency with these Terms, these Terms shall take precedence to the extent of the inconsistency.

For certainty, you are responsible for all third party advertising and related fees accrued as a result of any marketing activity by you or by ConsulNet operating on your behalf. You are responsible for monitoring all ConsulNet administered accounts and all advertising spending, and for promptly notifying ConsulNet if you believe any fees have been accrued in error. You acknowledge and agree that for any marketing activity, whether initiated by you or by ConsulNet on your behalf, individual, results may vary, including the possibility of negative results and ConsulNet makes no representations, warranties or conditions regarding such activity.

In these Terms “including“ means “including without limitation“ and is not to be construed to limit any general statement which it follows to the specific or similar items or matters immediately following it.

 

DOMAIN NAMES

All domain names are registered on your behalf for 2 years unless otherwise indicated and offered. All domains, including extra parked or forwarded domains, are subject to the domain registration fee payable directly to the appropriate registrar using the credit card info you have provided. Domain name registration fees are available only in US dollars. As domain registration fees are not ConsulNet fees, you may incur such registration fee(s) prior to being billed by ConsulNet. For any domain names registered at your request, you bear sole responsibility and liability, including but not limited to (i) ensuring immediately after registration that the registration information and settings are accurate and conform to your needs, (ii) renewing your registration, and (iii) responding to registrar communications. ConsulNet does not retain any right, title or interest in or to, and bears no responsibility or liability in respect of, any domain name registered at your request.

 

PROPRIETARY RIGHTS

You acknowledge that except for any content provided by you through use of the ConsulNet Products or otherwise and any third party content that you make available on or otherwise accessible through any part of the ConsulNet Products (collectively, “Your Content“), all images, graphics, graphical user interfaces, data, charts, graphs, text, mailing lists, contact information, audio, music, videos, names, marks, logos, designs and other content comprising or used in association with the Client Specific Product or otherwise forming part of the ConsulNet Products, and the selection, compilation and arrangement of the Client Specific Product, and all related software (collectively, the “Proprietary Content“), and any revisions, edits or modifications to the Proprietary Content and, to the extent made by ConsulNet, to Your Content, are, to the extent permitted by law, protected by applicable international intellectual property laws (including copyright law, trade-mark law and trade secret law) and are otherwise proprietary and are owned solely by ConsulNet or its licensors. For further clarity, any versions of Your Content, including but not limited to audio or video clips which ConsulNet has revised, edited or modified for the purpose of placing on the Client Specific Product are Proprietary Content and not works for hire.

You hereby sell, assign and transfer to ConsulNet any and all right, title and interest in and to any and all intellectual property, including but not limited to patent, trade-mark, copyright, industrial design and any other similar right, that you have worldwide in and to Proprietary Content, which you may have by virtue of having conceived or contributed to any such content or property. You also waive any and all other rights, including moral rights, you have in the said Proprietary Content in favour of ConsulNet, its assignees and licensees. You understand and agree that ConsulNet may use, modify and/or publish such Proprietary Content or portions thereof in any manner it considers appropriate. You warrant and represent that you possess all rights necessary for the assignment or grant of these rights, and shall indemnify and hold ConsulNet, it licensees and assigns, harmless from and against any and all claims, damages, liabilities, costs and expenses arising out of a breach of the foregoing warranty. All rights and privileges herein granted or assigned to ConsulNet are irrevocable and not subject to recession, restraint or injunction under any circumstances. You further agree to execute any formal assignments or other documentation which ConsulNet may require in order for you to assign or grant the rights that are referred to herein. ConsulNet hereby grants you a limited, non-exclusive, non-licensable, non-transferable license to use the ConsulNet Products for your personal use for the purposes of advertising and marketing your own products and services in connection with your personal real estate agency practice or personal mortgage brokerage practice, and any related use by your clients or potential clients in connection with such products and services. SuccessWebsite® is a trade-mark owned by ConsulNet and no use of such trade-mark is licensed by these Terms.

If you have subscribed to ConsulNet's optional listshare service: (i) you hereby grant ConsulNet a non-exclusive license to access, use, distribute, and/or sub-license, at ConsulNet’s sole discretion, all of the real estate listings that you provide to ConsulNet, including without limitation the right to include such listings in ConsulNet's listshare database of real estate listings (the “Listshare“); (ii) you represent and warrant that you have the full authority to grant such license and that no consent of any third party is required in connection with (i) above; (iii) ConsulNet hereby grants you a non-exclusive license to access the Listshare solely through the applicable Client Specific Product provided to you, in accordance with the policies and rules of ConsulNet and these Terms. You agree that you may not otherwise download, copy or reproduce any listings from the Listshare at any time.

Except as provided in these Terms, no other rights (including the right to translate or copy, or have translated or copied on your behalf, any Proprietary Content) are expressly or impliedly granted by these Terms and your use is limited to the rights granted above and for the duration specified in the section on Termination below. Once you no longer subscribe to the ConsulNet Products, under no circumstances will you be permitted to publish, display, distribute or otherwise use any of the Proprietary Content, or any part of the Proprietary Content, in any way whatsoever, whether on the Internet or otherwise, including, but not limited to, publishing on any website, transmitting via email or other form of communication involving the Internet. Except as may be expressly permitted by ConsulNet, for greater certainty, in no event shall you use any Proprietary Content for the purpose of directly or indirectly soliciting any customers of ConsulNet.

You agree to retain a copy of all materials submitted by you to ConsulNet, as ConsulNet bears no obligation whatsoever to return any content or property submitted by you.

 

TESTIMONIALS

You hereby grant ConsulNet the worldwide right to use your name, testimonial(s) and any samples of ConsulNet work product, for use in the ConsulNet Products and for the promotion of ConsulNet, advertising, distribution and sale of any and all versions of the ConsulNet Products and other ConsulNet products and services in any and all media of any nature whatsoever, where now known or hereafter devised and in any works derived therefrom, including the right to edit or modify the testimonial for this purpose. Termination of your subscription under any circumstances does not terminate ConsulNet's rights to such testimonials granted herein.

 

THIRD PARTY LINKS

Client Specific Products may contain links to third party websites. The inclusion by ConsulNet of any linked website does not imply approval, endorsement or recommendation of the material on such website or any association by ConsulNet with its operators. You may also add third party links to Client Specific Product websites through your use of the Website Customization Tools. Your addition or use, or use by any third party, of any hypertext link is entirely at your or their own risk and/or liability. ConsulNet does not make, and expressly disclaims, any warranty or condition, express or implied, statutory or otherwise, as to third party websites that you or any third party links to through a Client Specific Product, including any warranties or conditions of merchantable quality, fitness for a particular purpose or non-infringement, or any warranty that such websites will be available, uninterrupted or error free.

 

RESTRICTED CONDUCT

You will not use the ConsulNet Products to: (i) post, propagate, distribute, house, process, store, or otherwise in any way handle, material that is pornographic, obscene, lewd, lascivious, excessively violent, harassing, harmful, offensive, disparaging, defamatory, knowingly false or deceptive, or that invades any right of privacy or that infringes upon any rights (including intellectual property rights) of any person; (ii) transmit or store any information, data or material, or do anything that causes you to be, in violation of any international, federal, provincial, state or local regulation or law, or those of any applicable real estate board (“Laws and Regulations“); or (iii) “spam“ or otherwise transmit unsolicited content (including through email) to third parties, or interfere with or disrupt other users, services or equipment on our networks or the Internet. You will comply with all applicable Laws and Regulations governing: (i) the transmission, storage, production, and/or retrieval of electronic information; (ii) the collection, use and storage of personal information; and (iii) communication for commercial purposes by electronic means.

ConsulNet will have the right (but not the obligation) in its sole discretion to monitor, refuse, edit, move or remove any of Your Content in or on the ConsulNet Products. ConsulNet will also be entitled to limit your use of, or obtain a temporary or permanent injunction to stop you from using, the ConsulNet Products in a manner thought to be in violation of these Terms or any agreement ConsulNet may have with its licensors.

 

ACCESS TO SYSTEM AND YOUR CONTENT

You will be provided a restricted means for you to access your Client Specific Products. You will be responsible for all activities that occur in connection with the use of each ConsulNet Product by you or by third parties to whom you provide access to the ConsulNet Products (“Your Representatives“). You will be solely responsible for all of Your Content that you make available on, or otherwise accessible through, the ConsulNet Products, including its legality, reliability, appropriateness, originality and compliance with all third party rights including copyright. You will be responsible for any and all damage to ConsulNet, ConsulNet’s computer systems or the Proprietary Content caused by use of the ConsulNet Products by you or Your Representatives, whether knowingly, negligently or otherwise, including damage resulting from the introduction of any virus, worm, bomb, trojan horse or other limiting, debilitating, disabling or otherwise harmful means, whether such damage is manifested before or after termination of your subscription to the ConsulNet Products.

You hereby grant to ConsulNet and its affiliates, and their respective suppliers, licensors, and licensees, a non-exclusive, world-wide, perpetual, royalty-free, fee-free, fully sub-licensable and transferrable license to use, execute, display, perform, delete, modify and copy any of Your Content for the purposes of delivering the ConsulNet Products to you.

 

USE AND TRANSFER OF PERSONAL INFORMATION

In connection with the ConsulNet Products, certain information about identifiable individuals may have been, and may be, collected, used or disclosed by ConsulNet and by others on your behalf (other than the name, title or business address or telephone number of an employee of an organization if used only to contact the employee in their business or professional capacity, the “Personal Information“). You represent and warrant, and acknowledge that ConsulNet is relying on such representation and warranties, that: (a) you shall obtain the prior consent of each individual for ConsulNet to collect, use and/or disclose their Personal Information for the purposes described below and as set out in the consent form on the Client Specific Product (the “Consent“); (b) you shall use the Personal Information disclosed to you by ConsulNet solely for the purposes identified in the Consent or otherwise consented to by the individual who is the subject of the Personal Information; and (c) you shall comply with all applicable Laws and Regulations and rules in the collection, creation, use, storage and disclosure of Personal Information. You shall promptly notify ConsulNet in writing of any claim, inquiry, complaint, investigation or remedial action regarding the collection, storage, use or disclosure of Personal Information and be solely responsible for responding to and handling such claim, inquiry, complaint, investigation or remedial action.

You acknowledge and agree that (a) ConsulNet may use such Personal Information for its own marketing, promotional and product development purposes, including to design and provide websites to others, as such purposes are identified in the Consent, and to provide the ConsulNet Products to you; and (b) ConsulNet may disclose such Personal Information to its affiliates and ConsulNet’s and its affiliates respective suppliers, licensors and clients in furtherance of the purposes set out in (a) above.

Notwithstanding the foregoing, ConsulNet may also (a) make disclosures of personal information to a potential acquirer in connection with a transaction involving the sale of ConsulNet’s business, and (b) send personal information outside of the country for the purposes set out above, including for process and storage by service providers in connection with such purposes, and you should note that while such information is out of the country, it is subject to the laws of the country in which it is held, and may be subject to disclosure to the governments, courts or law enforcement or regulatory agencies of such other country, pursuant to the laws of such country.

 

DISCLAIMER OF WARRANTIES

You expressly understand and agree that the ConsulNet Products are provided on an “AS IS“ and “AS AVAILABLE“ basis and your use of the ConsulNet Products is at your sole risk. You understand and acknowledge that ConsulNet cannot guarantee “top spots“ in search engines and/or directories. EXCEPT AS EXPRESSLY STATED ON THE CONSULNET SUCCESSWEBSITE.COM WEBSITE, THERE ARE NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. For example, ConsulNet, its affiliates and their respective suppliers and licensors, make no warranty or condition that (i) the ConsulNet Products will be useful or meet your needs or requirements; (ii) that the ConsulNet Products will be available, uninterrupted, reliable, timely, secure, private, error-free or free of computer viruses or other harmful components; or (iii) the information or results that may be obtained from the use of the ConsulNet Products will be complete, accurate or reliable. ANY INFORMATION OR OTHER CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CONSULNET PRODUCTS IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH INFORMATION OR OTHER CONTENT. No advice or information, whether oral or written, obtained by you from ConsulNet, its affiliates or their respective suppliers and licensors, or through or from the ConsulNet Products, shall create any warranty or condition not expressly stated on the ConsulNet successwebsite.com website. All materials displayed or provided to you on any Client Specific Product or through your registration with the ConsulNet Products or otherwise are not to be a substitute for specific legal or financial advice. We advise you to seek out your own independent legal and financial advice regarding use of such materials and their content. THIS PARAGRAPH SHALL APPLY WITH EQUAL FORCE TO YOUR CLIENTS AND POTENTIAL CLIENTS AND OTHER THIRD PARTIES WHO ACCESS, OR ATTEMPT TO ACCESS, THE CONSULNET PRODUCTS.

 

LIMITATION OF LIABILITY

IN NO EVENT SHALL CONSULNET, ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (“CONSULNET PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF COMMISSIONS, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, DAMAGE TO REPUTATION OR OTHER INTANGIBLE LOSSES), WHETHER BASED ON BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM), TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION (WHETHER NEGLIGENT OR OTHERWISE), BREACH OF WARRANTY OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH (I) THE USE OR INABILITY TO USE THE CONSULNET PRODUCTS; (II) THE ACCURACY OR EFFECTIVENESS OF THE CONSULNET PRODUCTS; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF THE CONTENT ON OR IN THE CONSULNET PRODUCTS; OR (IV) ANY OTHER MATTER RELATING TO THE CONSULNET PRODUCTS.

IN NO EVENT SHALL THE MAXIMUM LIABILITY OF CONSULNET OR ANY CONSULNET PARTY IN THE AGGREGATE, EXCEED THE AMOUNT YOU PAID TO CONSULNET FOR THE CONSULNET PRODUCTS IN THE THREE (3) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.

 

INDEMNITY & RELEASE

You agree to indemnify and hold ConsulNet and the ConsulNet Parties harmless from any demand, claim, action, suit, proceeding, expenses, losses or damages of any kind whatsoever, including reasonable legal fees, brought by any third party due to, or arising out of: (a) any of Your Content; (b) use of the ConsulNet Products by you or any third parties; (c) your violation of these Terms; (d) your or Your Representatives violation of any rights of another or (e) your or Your Representatives.

You hereby release, discharge and agree to indemnify and hold ConsulNet and all ConsulNet Parties harmless from any and all claims, demands or causes of actions that they may have now or in the future for libel, defamation, invasion of privacy or right of publicity, infringement of copyright or trademark, or violation of any other right arising out of or relating to any utilization of the rights granted to ConsulNet or any ConsulNet Party by you herein.

 

TERMINATION

You may cancel your subscription to the ConsulNet Products at any time by ConsulNet receiving notice sent by you in the manner prescribed in these Terms. Such cancellation will take effect at the end of your then current monthly billing period. ConsulNet can cancel your subscription to use the ConsulNet Products at any time without notice, for any reason, including if ConsulNet believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Upon cancellation of your subscription, the license granted under these Terms shall automatically terminate and you will return or destroy any Proprietary Content that you may have in your possession or control. ConsulNet shall have no obligation to return any of Your Content to you.

 

NOTICE

Any notice to be provided to ConsulNet shall be provided (i) in writing to 3300 Bloor St. W, Suite 620, Toronto, ON M8X 2X2; (ii) by email to support@successwebsite.com; (iii) by fax to 416-227-0050; or (iv) by other means specified in writing by ConsulNet. Any notice to be provided to Client shall be provided (i) by email to the Client email address provided upon Client’s registration with ConsulNet; or (ii) by posting such notice on the ConsulNet website at http://www.successwebsite.com/Terms.htm.

 

RELATIONSHIP OF THE PARTIES

Nothing in these Terms shall be construed as a partnership or joint venture between the parties and neither party is the agent of the other.

 

GOVERNING LAW

These Terms shall be treated in all respects as terms and conditions agreed to in Ontario, Canada. These Terms and any matter applicable to your use of the ConsulNet Products shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to any conflict of laws provisions. Any dispute shall be settled in the courts located in the City of Toronto in the Province of Ontario, though the foregoing shall not limit the ability of ConsulNet to seek injunctions and remedies in other jurisdictions which are required to stop continuing breaches of these Terms by you.

 

ENTIRE AGREEMENT, SEVERABILITY AND WAIVER

These Terms, including the ConsulNet Products Pricing Appendix and any other additional ConsulNet terms as applicable to the ConsulNet services provided hereunder and the terms and conditions for the ConsulNet SuccessWebsite.com website, constitute the entire agreement between you and ConsulNet regarding your use of the ConsulNet Products and supercede any previous oral or written representations, negotiations or agreements. In the event of any inconsistency between these terms and any other ConsulNet publication, the provisions of these Terms shall take precedence to the extent of the inconsistency. If any provision of these Terms is found to be invalid by a court of competent jurisdiction, in whole or in part, the invalidity of such provision or part thereof shall not affect the validity of the remaining provisions, or part thereof, which shall remain in full force and effect. No changes or amendments to these Terms shall be binding upon ConsulNet unless accepted by ConsulNet in writing. No waiver of any of these provisions shall be deemed a further or continuing waiver of such provision or any other provision of these Terms. No failure on the part of either party to exercise, and no delay in exercising, any right under these Terms shall operate as a waiver of such right.

 

ADDITIONAL TERMS FOR CREA DDF DATA ACCESS

If the ConsulNet Products include access to the permission based data distribution facility developed and owned by the Canadian Real Estate Association (the “CREA DDF“), then You and ConsulNet may agree in a separate written agreement, that ConsulNet will, as a ConsulNet Product and in consideration for the applicable fees agreed to by ConsulNet, make certain modifications to your real estate listing and related information, photographs and images in electronic form (the “Listing Content“) contained in the CREA DDF, by, as expressly agreed in writing between you and ConsulNet, displaying alternate property pictures, general description, and listing agent and broker pictures, or by removing contact information or linking to contact information from your own Listing Content being displayed on websites being provided as ConsulNet Products (the “CREA Design Customizations“). Such separate agreement is required before any CREA Design Customizations will be made and will provide for mutually agreed rights of use of any such CREA Design Customizations.


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