SUBSCRIPTION AGREEMENT

SUBSCRIPTION AGREEMENT

THIS AGREEMENT made as of the date of acceptance of the terms and agreements.

The Subscription starts on either the 1st or 15th of each month, whichever is subsequent after the date of acceptance.

B E T W E E N:

TORONTO MOBILE LISTINGS INC.,
a corporation incorporated under the laws of the Province of Ontario

(the “SaaS – Software as a Service”)

– and –

an individual Real Estate Agent

(the “Subscriber”)

 

 

 

WHEREAS:

  1. The SaaS – Software as a Service is the owner of certain trademarks, trade names, mobile applications (Mobile App Real Estate Listings or “MARL”) and web-domains, all as set out in this Agreement and herein referred to as the “Product”;
  2. The Subscriber carries on business as a licensed real estate agent and sales representative or broker (the “Business”) and desires a limited and non-exclusive licence from the SaaS – Software as a Service to use the Product owned or controlled by the “SaaS” applicable to the Business, and the purpose of this Agreement is that the “SaaS” shall provide to the Subscriber a licence to use the Product to the extent necessary to enable the Licensee to conduct the Business in the Province in which the Subscriber resides using the Product;

NOW THEREFORE IN CONSIDERATION of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

  1. Definitions

In this Agreement, “Product” shall also refer to those things set out on Schedule “A” hereto.

  1. Grant of Licence
    • Non-Exclusive Grant- exclusive Branding on Listings: During the term and subject to the terms of this Agreement, the “SaaS” grants to the Subscriber the non-exclusive and restricted licence to use the Product in connection with the Business, but the licence shall be exclusive to customer enquiries or bookings within the geographical confines of the areas defined by the postal codes assigned.
    • The parties acknowledge that the licence for the geographical area(s) shall be for the English version of the Product only. The Subscriber shall have one first right of refusal to acquire the rights to use different language versions of the Product in the licensed area for one term. If this first right of refusal is declined, the “SaaS” may licence these different language versions to other Subscriber
    • The parties acknowledge and agree that the Subscriber is not granted any license, sub-license or other rights in the Product or any other intellectual property owned by the “SaaS” except as set forth above and the Subscriber shall not use or permit others to use, directly or indirectly, in whole or in part, the Product except in the manner and to the extent that the “SaaS” has granted under this Agreement or as the “SaaS” may otherwise grant expressly in writing.
    • The parties further acknowledge that the Product does not include any right to rent, lease or purchase any data owned or controlled by the Toronto Real Estate Board and/or the Canadian Real Estate Board, Vancouver Real Estate Board, Edmonton Real Estate board, or any other boards used to provide the listing feed. The Subscriber agrees to complete and supply the “SaaS” with an executed Agreement and any relevant DDF/IDX data feed agreement.
  2. Consideration
    • YEARLY FEE: As consideration for the non-exclusive and restricted subscription granted under this Agreement, commencing as of the date of the 1st or 15th of the month, the Subscriber shall pay the “SaaS” for the term of this Agreement a sum of $300.00 fee plus HST. Thereafter the Subscription Fee shall continue from year to year preceding the month to which the Licence Fee and the Ad Fee applies. Unless (the “Subscriber”) gives written notice by email 30 days before the end of term.
    • MARKETING “BANNER” FEE: In addition to the Yearly fee, the Subscriber shall pay to the “SaaS” an initial one time Marketing Banner fee (the “Banner Fee”) of $50.00 plus HST.
  3. Sub-licences

The Subscriber may not appoint a sub-subscribe for use of the Product.

  1. Representation, Warranties and Covenants re Trade Marks
    • Acknowledge re Validity: The Subscriber acknowledges the validity and ownership of the Product by the “SaaS” and agrees that any intellectual property is and shall remain the property of the “SaaS” and that the use of the Property enures to the benefit of the “SaaS”.
    • Use of Product: The Subscriber covenants and agrees that its use of the Product will be executed in a manner and of a quality which is consistent with superior industry standards and that the Subscriber will conform to reasonable standards of use and reasonable quality standards that are established from time to time by the “SaaS”, and as mandated from time to time by any real estate board having jurisdiction over the Business or the Product, specifically but not limited to the requirements of the Toronto Real Estate Board and/or the Canadian Real Estate Board.  The “SaaS” shall approve the format and design for the Product that must be used in all printed or electronic presentation of the Product and the Subscriber covenants and agrees that it shall only use such format and design.  In the event, that the Subscriber wishes to adopt some format or design other than previously approved, the Subscriber shall provide the “SaaS” with notice of the proposed format and design for “SaaS”’ prior consent, such consent may be unreasonably withheld, and all intellectual property rights associated with such new format and design shall become the property of the “SaaS”.
    • Subscriber Not to Infringe: The Subscriber shall not in any way do anything to infringe upon, harm, or contest the validity of intellectual property of the Product.
    • Infringement of Product IP: If infringement or passing off of the Product, in Canada, is reported by the Subscriber, the “SaaS” shall have the first right to bring suit against the infringer and, if necessary to the suit or if requested so to do by the “SaaS”, the Subscriber agrees to be joined or to join as a nominal party in such suit. In every case of reported infringement, the “SaaS” shall be allowed a reasonable time to investigate the situation, to come to an independent conclusion on the question of infringement and the advisability of starting suit, to correspond and negotiate with the alleged infringer, to engage counsel and to start legal proceedings. However, in the event the “SaaS” does not bring suit in any such instance within a reasonable time, the Subscriber shall have and is granted the right during the life of this Agreement to sue in its own name or jointly with the “SaaS” and with the approval of its own name or jointly with the “SaaS” and with the approval of the “SaaS” for present and past infringement and to collect such damages and profits as may be accrued as a result of such suit. The “SaaS” shall be kept informed at all times of all such proceedings taken by the Subscriber. If it elects to do so, the “SaaS” may be represented in such proceedings by its own counsel and, at its option and for any reason which it deems sufficient to warrant such action, the “SaaS” may at any time take over the conduct of such proceedings. In any event and regardless of which party brings the action, the Subscriber shall bear all costs incurred in connection with such infringement proceedings.
  2. Use of Proprietary Marks
    • With every use of the Product by the Subscriber, the Subscriber must affix an additional mark showing that such Product is being used under licence from the “SaaS”.
    • Cease Using on Termination: The Subscriber agrees not to, during the term of this Agreement or afterwards, register or seek to register any intellectual property which is the same as or confusingly similar to the Product. This obligation shall survive the termination of this Agreement.
  3. Term and Termination of Agreement
    • This Agreement shall commence as of the first effective start date first being the 1st or 15th of the month and be in full effect for 1 year. Your Subscription will renew PER ANNUM unless cancelled 1 month Prior to the effective start or renewal date.
  4. Indemnity

If the Subscriber shall be charged with or sued for infringement of any trade mark of another as a result of using the Product (an “Infringement Claim”), the Subscriber shall promptly notify the “SaaS” of the particulars of such charge or suit.  The “SaaS” shall have carriage of any defence of such Infringement Claim unless the “SaaS” shall have permitted the Subscriber to conduct the defence.  In any event, the Subscriber shall, at the request of the “SaaS”, co-operate in the disposition of each such Infringement Claim.  The “SaaS” agrees to indemnify and hold the Subscriber, its directors, officers, shareholders and representatives harmless against any liability, damage or expense (including costs and attorney’s fees and expenses) by reason of, or arising out of, or relating to, any Infringement Claim.

  1. Dispute Resolution

All disputes, controversy or claims arising out of or in connection with or in relation to this Agreement, including any question regarding its existence, validity or termination, shall be submitted to and be subject to the jurisdiction of the courts of the Province of Ontario (including the Supreme Court of Canada) which shall have exclusive jurisdiction in the event of any dispute under this Agreement. The parties irrevocably submit to the jurisdiction of such courts to finally adjudicate or determine any suit, action or proceedings arising out of or in connection with this Agreement.

  1. Assignment

Neither this Agreement nor any of the rights or duties of the Subscriber shall be assigned, transferred or conveyed by the Subscriber, by operation of law or otherwise, nor shall this Agreement or any rights of the Subscriber enure to the benefit of any trustee in bankruptcy, receiver, creditor, trustee or successor of the Subscriber’s business or of its property, whether by operation of law or otherwise, or to a purchaser of all of the shares of the Subscriber or to a purchaser of the entire business or substantially all of the assets of the Subscriber, without the prior written consent of the “SaaS”.

  1. Extended Meanings

Words importing the singular number include the plural and vice versa and words importing gender include all genders.

  1. Interpretation not affected by Headings

The division of this Agreement into paragraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

  1. Applicable Law

This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the Federal laws of Canada as applicable.

  1. Entire Agreement

This Agreement constitutes the entire agreement of all the parties with respect to the subject-matter hereof and, except as stated in this Agreement and in the instruments and documents to be executed and delivered pursuant to it, contains all of the representations, undertakings and agreements of all parties respecting the subject-matter hereof. There are no representations, undertakings or agreements of any kind between all the parties respecting the subject-matter hereof except those contained in this Agreement.

  1. Severability

The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.

  1. Currency

Unless otherwise specifically provided in this Agreement, all references to dollar amounts or other money amount are expressed in terms of lawful money of Canada.

  1. Notices
    • Any notice or other documents required or permitted to be given under this Agreement shall be in writing and shall be delivered, mailed by pre-paid registered mail, return receipt requested, sent by facsimile or by email.
  2. Amendment of Agreement

None of the terms, conditions or provisions of this Agreement shall be held to have been changed, waived, varied, modified or altered by any act or knowledge of either party, their respective agents, servants or employees unless done so in writing signed by both parties.

  1. Waiver of Breach

No waiver on behalf of any part of any breach of the provisions shall be effective or binding on such party unless the same shall be expressed in writing and any waiver so expressed shall not limit or affect such party’s rights with respect to any future breach of any of the provisions of this Agreement.

  1. Further Assurances

Each of the parties covenants and agrees that its successors and permitted assigns will execute such further documents and do and perform or cause to be done and performed such further and other acts as may be necessary or desirable from time to time in order to give full effect to the provisions of this Agreement.

  1. Successors and Assigns

This Agreement shall be binding on and enure to the benefit of the successors and assigns of both parties and all persons or corporations succeeding to or acquiring the Business. The Subscriber shall not be entitled to assign this Agreement in whole or in part without the consent in writing of the “SaaS”, which consent may be unreasonably withheld.

 

 

Schedule “A”

PRODUCT

  1. The parties agree that all existing clients or leads from the “Subscriber’s” own prospecting and/or database (“Existing Clients”) shall have access to, and be permitted to use the Product. Information about Existing Client’s searches shall be available only to the “Subscriber” regardless of where the Existing Client is searching for property, and in this way shall “override” the geographical boundaries of any other licensed area. (“Agent Override”)  The Licensee acknowledges that his/her exclusive right to those leads/data  is subject only to the Agent Override rights of other licensees who have licensed other territories, “Subscriber’s” and the Agent Override rights of agents who have or will enter into agreements with the “SaaS”  to register their clients (who have entered into a Buyer Agency Contract with the agent) with the “SaaS” and the Product and receive information about those client’s searches on an exclusive basis. Any Agent/Subscriber or Licensee who has a signed relationship (Buyer Agency or Listing Agreement) with a MARL User supersedes original point of entry.
  2. In the case of additional products and programs that create leads/Enquires – Automatic receipt of all enquiries and/or bookings regarding properties located in the licenced area received by Toronto Mobile Listings Inc. and the exclusive right to all such leads. Referral, Postal code enquires and or license agreements.
  3. Mobile Application (MARL) Icon for Licensee’s website and Mobile site and other online material used or owned by the Licensee.