This AvenueHQ Technology Inc. services agreement (the “Agreement”) is comprised of the Order Form and the AvenueHQ Technology Inc Terms and Conditions set out below and is entered into as of the date that Customer accepts the Order Form (the “Effective Date”), between AvenueHQ Technology Inc. (“AvenueHQ”), with its principal place of business located at 250 - 997 Seymour St., Vancouver, BC, Canada and the customer identified in the Order Form (the “Customer”).
a. “AvenueHQ-Provided Content” means any video recordings, audio recordings, pictures, information, documentation, or other content or materials prepared, developed or provided by or on behalf of AvenueHQ pursuant to this Agreement (excluding, for greater certainty, Customer-Provided Content).
b. “AvenueHQ Services” has the meaning set out in Section 2(a).
c. “Customer-Provided Content” means any video recordings, audio recordings, pictures, information, documentation, or other content or materials (including any email addresses and email contact lists) that Customer provides to AvenueHQ pursuant to this Agreement.
d. “Fees” has the meaning set out in Section 5.
e. “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
f. “Order Form” means any order form entered into by AvenueHQ and Customer that references these Terms and Conditions.
g. “Parties” means AvenueHQ and Customer, and “Party” means either one of them.
h. “Personal Information” means information about an identifiable individual.
i. “Term” has the meaning set out in Section 9(a).
a. AvenueHQ Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, AvenueHQ will use commercially reasonable efforts to provide the services described in the Order Form (the “AvenueHQ Services”). b. Support. AvenueHQ will use commercially reasonable efforts to provide support by phone from 9 AM to 5 PM (PT) on business days (i.e. Monday through Friday, excluding provincial and federal holidays observed at AvenueHQ’s offices). AvenueHQ will use reasonable efforts to provide responses to all emails at firstname.lastname@example.org within one business day. AvenueHQ will make phone consultations available from 9 am - 5 pm Monday to Friday. These appointments can be booked by clients through provided scheduling software. c. Collaboration. Customer acknowledges that AvenueHQ’s performance of the AvenueHQ Services is dependent on Customer’s performance of certain activities and tasks. Customer agrees (at its own cost and expense) to take all actions as reasonably required to enable AvenueHQ to provide the AvenueHQ Services, including:
i. responding to AvenueHQ’s reasonable requests for information and providing Customer-Provided Content to AvenueHQ in a usable format; ii. providing AvenueHQ with Customer’s MLS ID for AvenueHQ to verify Customer’s licensing credentials and incorporate MLS data into Customer’s website and posts; iii. entering into data sharing agreements as required for AvenueHQ to be given the necessary permissions to use real estate listing data to provide the AvenueHQ Services;
iv. obtaining and maintaining a website domain that AvenueHQ can link to the website it creates for Customer;
v. obtaining and maintaining a Facebook account and Mailchimp account and providing AvenueHQ with access to such accounts as required for AvenueHQ to provide the AvenueHQ Services; and
vi. completing the Launch Form (preferences form) made available by AvenueHQ.
d. Customer Restrictions. Customer must not itself, and will not permit others to:
i. other than as required to advertise and promote Customer and its real estate services, Modify, sub-license, sell, rent, lend, lease, make available, or distribute the AvenueHQ Services or the AvenueHQ-Provided Content;
ii. use or access the AvenueHQ Services or AvenueHQ-Provided Content in violation of any applicable law;
iii. provide or transmit any Customer-Provided Content:
A. that Customer does not have the lawful right to create, collect, transmit, store, use or process; or B. that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
iv. build a competitive product or service to the AvenueHQ Services or the AvenueHQ-Provided Content; or
vi. use the AvenueHQ Services or AvenueHQ-Provided Content for any purpose or in any manner not expressly permitted in this Agreement.
e. Suspension of Access; Scheduled Downtime; Modifications. AvenueHQ may, at its discretion, suspend the AvenueHQ Services, including removing the AvenueHQ-Provided Content from any website or platform, if Customer violates any provision of this Agreement. f. Responsibility for Advertising Strategy. Customer is solely responsible for: (i) oversight of its advertising strategy; and (ii) placement of and content contained in the advertisements. AvenueHQ will use reasonable efforts to correct, but not responsible for, errors in advertisements, posts and newsletters (e.g. typos, incorrect placements of advertisements, etc.).
g. Responsibility for Customer Accounts and Tools (social media, websites, etc.). To the extent that Customer provides log-in information to AvenueHQ for Customer’s accounts, mailing lists, or tools (e.g. social media, Google analytics, etc.), Customer acknowledges that AvenueHQ will use reasonable efforts to safeguard, but is not responsible for, use or misuse of such accounts, mailing lists, and tools (including content posted to such accounts and advertising spending authorizations). Customer may provide AvenueHQ with only the limited access that AvenueHQ requires to provide the AvenueHQ Services. To the extent that Customer provides additional access rights or privileges (e.g. admin-level access, ability to change spending limits, access to financials or site code), Customer does so at its own risk.
Ownership; Reservation of Rights
a. Except as expressly provided in this Agreement, Customer retains all right, title and interest, including intellectual property rights, in and to the Customer-Provided Content. Customer grants to AvenueHQ a non-exclusive, worldwide, royalty-free, fully paid-up right to use, edit, adapt, change, alter, and Modify the Customer-Provided Content (including any content or information contained within the Customer-Provided Content) to provide the AvenueHQ Services.
b. Except as expressly provided in this Agreement, AvenueHQ or its licensors retain all right, title and interest, including intellectual property rights, in and to: (i) the AvenueHQ Services, the AvenueHQ-Provided Content, and anything else created or provided by AvenueHQ pursuant to this Agreement; and (ii) any Modifications to the foregoing clause (i). To the extent that any Customer-Provided Content is integrated with, embedded in, forms part of, or is otherwise required in order to exercise AvenueHQ’s rights in and to the AvenueHQ property described in the previous sentence, Customer grants to AvenueHQ a perpetual, irrevocable, royalty-free, worldwide, non-exclusive license to the extent required to exercise such rights.
c. All rights not expressly granted by AvenueHQ to Customer under this Agreement are reserved.
Fees and Payment
a. Fees. Customer will pay to AvenueHQ the fees described in each Order Form (the “Fees”). Unless otherwise specified on the Order Form, Fees will be auto invoiced and payable by Customer on a monthly basis on the day in which Customer signs up for the AvenueHQ Services, or on the same date the following year, if prepaid annually. If AvenueHQ’s performance of the AvenueHQ Services requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such fees and pay the fees in accordance with this Agreement. AvenueHQ may modify the Fees from time to time upon at least 30 days’ notice to Customer. Customer acknowledges that AvenueHQ does not provide any refunds of Fees once the corresponding payments have been processed.
Customer may modify the Order Form for convenience, upon providing at least 30 days’ written notice to the other party, in advance of the upcoming billing cycle. If notice is provided in the middle of an active billing cycle, the requested change will apply after the next full billing cycle has elapsed. If either Party modifies the Order Form for convenience, Customer will be responsible for the Fees payable for the AvenueHQ Services subscribed to by Customer through the end of the final billing cycle; AvenueHQ agrees to continue to provide all services until that billing cycle has elapsed.
b. Disputed Invoices or Charges. If Customer believes AvenueHQ has charged or invoiced Customer incorrectly, Customer must contact AvenueHQ no later than 45 days after having been charged by AvenueHQ or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
c. Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. AvenueHQ reserves the right to suspend the AvenueHQ Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
d. Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of AvenueHQ.
c. Suspension. Any suspension of the AvenueHQ Services by AvenueHQ pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
a. Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) Customer-Provided Content (except to the extent expressly agreed by the Parties in writing); (ii) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (iii) information that is publicly available through no wrongful act of Recipient; or (iv) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
b. Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as protective as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
c. Exceptions to Confidentiality. Notwithstanding Section 6(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of AvenueHQ, to potential assignees, acquirers or successors of AvenueHQ if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of AvenueHQ.
Warranty; Disclaimer; Indemnity
a. Customer Warranty. Customer represents and warrants to, and covenants with AvenueHQ that: (i) Customer has obtained all applicable rights and permissions to enable AvenueHQ to perform the AvenueHQ Services, including the right to use, distribute and reproduce the Customer-Provided Content (including to use email addresses and contact information provided by Customer) and to grant the licenses in Section 3; and (ii) the Customer-Provided Content will only contain Personal Information and email addresses in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable AvenueHQ to provide the AvenueHQ Services.
b. GENERAL DISCLAIMER. AVENUEHQ DOES NOT WARRANT THAT THE AVENUEHQ SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE AVENUEHQ SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE AVENUEHQ SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY AVENUEHQ TO CUSTOMER, ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, AVENUEHQ HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
AVENUEHQ DOES NOT ENDORSE THE AVENUEHQ-PROVIDED CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, OR OTHERWISE), INJURY CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY AVENUEHQ-PROVIDED CONTENT.
i. Indemnity. Customer will defend, indemnify and hold harmless AvenueHQ, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with any of the following: (i) the Customer-Provided Content; (ii) Customer’s breach of any of Customer’s obligations, representations, or warranties under this Agreement; and (iii) any personal injury, death, or property damage to the extent caused by any act or omission of Customer. Customer will fully cooperate with AvenueHQ in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of AvenueHQ.
Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
a. Amount. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF AVENUEHQ IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER TO AVENUEHQ IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL AVENUEHQ’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
b. Type. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL AVENUEHQ BE LIABLE TO CUSTOMER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, CONTENT, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Term and Termination
a. Term. This Agreement will commence on the Effective Date and continue to be in effect until terminated in accordance with this Agreement (the “Term”).
b. Termination. Either Party may terminate this Agreement for convenience upon providing 30-days' written notice to the other Party, in advance of the upcoming billing cycle. If notice is provided in the middle of an active billing cycle, the requested change will apply after the next full billing cycle has elapsed. If either Party terminates this Agreement for convenience, Customer will be responsible for the Fees payable for the AvenueHQ Services subscribed to by Customer through the end of the final billing cycle; AvenueHQ agrees to continue to provide all services until that billing cycle has elapsed.
c. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty; Disclaimer; Indemnity), Section 8 (Limitation of Liabilities), Section 9(c) (Survival), and Section 10 (General Provisions).
a. Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent: (i) if to AvenueHQ, to the following address:
and (ii) if to Customer, to the current postal or email address that AvenueHQ has on file with respect to Customer. AvenueHQ may change its contact information by posting the new contact information on its website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with AvenueHQ current at all times during the Term.
b. Subcontracting and Assignment. Customer will not assign this Agreement to any third party without AvenueHQ’s prior written consent. AvenueHQ may assign this Agreement or any rights under this Agreement, or delegate or subcontract all or any part of the AvenueHQ Services, to any third party without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
c. Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. This choice of jurisdiction does not prevent AvenueHQ from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
d. Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of AvenueHQ in this Agreement means the right of AvenueHQ to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
e. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond AvenueHQ’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving AvenueHQ’s employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third party websites.
f. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
g. Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
h. Independent Contractors. AvenueHQ’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
i. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral.
j. Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
k. English Language. It is the express wish of the Parties that this Agreement 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.
l. Publicity. Upon Customer’s prior approval, AvenueHQ may: (i) display Customer’s website to potential customers and other third parties as an example of AvenueHQ’s work; and (ii) list Customer as a customer of AvenueHQ.