eConveyance

END-USER LICENSE AGREEMENT

This End-User License Agreement (the “Agreement”) is a legal agreement between you (either an individual or a single entity and referred to as “You” or “User”) and Dye & Durham Corporation (referred to as “D&D”).

IF YOU WISH TO USE THE ECONVEYANCE SYSTEM YOU MUST CLICK “I AGREE” SIGNIFYING YOUR AGREEMENT TO THIS AGREEMENT. IF YOU DO NOT AGREE, YOU MAY NOT USE THE ECONVEYANCE SYSTEM. IF YOU INSTALL, COPY OR USE THE ECONVEYANCE SYSTEM YOU ARE DEEMED TO HAVE AGREED TO BE BOUND BY THIS AGREEMENT.

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, You and D&D hereby agree to be bound by the following:

DEFINITIONS
1. “econveyance System” means the web based electronic conveyance software products, hardware and network architecture set up by D&D
2. “D&D Trusted User Identification” means the identification name(s), number(s) and/or password(s) provided by D&D to a User to access the econveyance System under a User Account;
3. “User Account” means an account established by D&D for a User;
4. “User Documentation” means documents, records, materials and/or data generated by User through use of the econveyance System, but not data related to system usage or performance metrics;
5. “User Profile” means the recorded profile for a User based on the information provided by the User to D&D; and
6. “Website” means the website located at portal-prod3.econveyancepro.com operated by D&D.
SYSTEM LICENSE
1. The econveyance System is proprietary to D&D. Subject to the User’s acceptance of this Agreement, D&D grants to the User a non-transferable, non-exclusive, limited license to use the econveyance System for the User’s bona fide internal business purposes with no right to sublicense (the “License”).
2. D&D reserves all rights not explicitly granted herein. The License granted to the User in this Agreement herein is non-exclusive. Nothing in this Agreement shall be construed as limiting in any manner D&D’s marketing or distribution activities or the licensing of the econveyance System by D&D to any other person.
3. The User shall not:
  - use, copy, republish, make available or distribute the econveyance System, or cause or permit any person to use, copy, republish or distribute the econveyance System, except as expressly permitted under this Agreement;
  - loan, sell, rent, lease, timeshare, sublicense, grant a security interest in, or otherwise attempt to transfer its license to the econveyance System, in whole or in part to any person;
  - use the econveyance System in a facility management or Service Bureau manner or permit third parties to access the econveyance System over the Internet. “Service Bureau” means an arrangement pursuant to which (i) third parties are permitted to access and use the econveyance System, directly or indirectly, by any means to process their own data or (ii) User uses the econveyance System to process the data of any third party;
  - except to the extent that these restrictions are void under applicable law, directly or indirectly attempt in any way to rewrite, reorganize, reproduce, decompile, disassemble, reverse engineer or translate the econveyance System, create derivative works thereof, or circumvent any usage or other restrictions imposed by D&D;
  - remove, alter or modify any proprietary notices or labels from the econveyance System; or
  - attempt to compromise, circumvent or invalidate any technological protection measures included in the econveyance System.
4. The User acknowledges and agrees that this Agreement does not grant the User any rights to use any trade-marks or trade names of D&D or their licensors. All such marks shall remain the property of their respective owner.
5. The User must use the econveyance System in accordance with: this Agreement; the applicable documentation; any operating ‎instructions or procedures or acceptable use policies or other policies D&D may issue or amend from time to time; and all ‎applicable laws.
6. The User is solely responsible for supplying, configuring and ‎maintaining all software, internet or telecommunication, ‎connections and other hardware and equipment needed to access and use the econveyance System, as set out in the ‎documentation or otherwise by D&D from time to time. D&D will not be responsible for errors, deficiencies or other problems ‎with the econveyance System arising from ‎the User’s failure to properly supply, configure or maintain such software, connections, ‎hardware or equipment.‎
7. The econveyance System may include technological protection measures designed to prevent ‎unlicensed, unpaid or improper use of the econveyance System. D&D may use these measures to (a) confirm the User is legally ‎accessing and using the econveyance System, that the User is using the econveyance System in accordance with this Agreement, and that ‎the User has properly paid for the econveyance System, and (b) disable the econveyance System as set out in this Agreement. These measures will ‎not collect any personal information from the User.‎
8. D&D may at any time and from time to time audit and review any aspect of the User’s use of the econveyance System to ‎ensure compliance with this Agreement, and the User will cooperate with providing assistance reasonably required to facilitate ‎that audit. If D&D discovers any discrepancies that are not corrected within such period that D&D deems appropriate and ‎notifies the User of in writing, D&D may immediately on written notice to the User terminate this Agreement and the License. If D&D discovers any material breach of this Agreement through an audit, the User will bear the costs of the ‎audit; otherwise, D&D will bear the audit costs.‎
9. Without limiting any other provision in this Agreement, the User will create and pay for a separate transaction file on the econveyance System for each real estate transaction for which the User is using the econveyance System. The User will not reuse a transaction file for multiple separate real estate transactions.
ACCOUNT AND PASSWORDS
1. The User covenants and agrees with D&D as follows:
  - the User will provide D&D with accurate and complete information as required by D&D to complete the User Profile;
  - the User will notify D&D of any change in the information provided to D&D or of any misuse or potential misuse of the D&D Trusted User Identification or User Profile within ten (10) days of such changes or information becoming known to the User;
  - the User consents to D&D using and storing any information the User provides to D&D to fulfill the purposes of this Agreement;
  - the User acknowledges and agrees that D&D has the right, but not the obligation, to validate any information the User discloses to D&D;
  - the User covenants that all information the User provides to D&D under this Agreement, including any statements made verifying the identity of the User’s staff are true, accurate and complete; and
  - the User confirms that the User, if a person, is not a minor in the User’s jurisdiction.
2. The User acknowledges and agrees that the establishment of a User Account and User Profile does not entitle the User to use any software application or service provided by D&D or by any other third party other than the econveyance System.
3. If the User wishes to obtain access to any other software application or service, the User must enter into a separate agreement with the respective software application or service provider. Without limiting the generality of the foregoing, the User acknowledges and agrees that the User is solely responsible to ensure that the software applications or services are suitable for the User’s needs and that each of the software applications or service providers have agreed to deal with the User’s information in a manner acceptable to the User.
4. The User covenants to take all reasonable steps to preclude any third party access to the confidential User Profile or the D&D Trusted User Identification including, without limitation:
  - maintaining in strict confidence any password that limits access to the econveyance System or is used to establish the User’s identity in communications with D&D;
  - restricting access to the computer on which the User Profile or D&D Trusted User Identification is installed; and
  - ensuring the econveyance System is turned off when not in use or in attendance by the User.
5. The User acknowledges and agrees that D&D, in its sole discretion, may:
  - refuse to establish a User Profile and/or a User Account; or
  - cancel or suspend the User Account and/or access to the econveyance System (using the technological protection measures in the econveyance System or any other lawful means), if D&D reasonably believes that the econveyance System has been or may be misused by the User or any third party who has obtained access to the econveyance System.
6. The User shall notify D&D immediately if the User becomes aware of any unauthorized use of the whole or any part of the econveyance System, the User Account, the User Profile or the D&D Trusted User Identification.
D&D OBLIGATIONS
1. D&D shall:
  - upon receipt of satisfactory User information, establish a User Account and a User Profile;
  - provide the User with the D&D Trusted User Identification to enable the User to access the econveyance System;
  - provide the User with information from time to time regarding the econveyance System and software applications and services of D&D’s associated suppliers; and
  - subject to the terms of this Agreement, protect any information that the User provides in a manner consistent with applicable legislation and in accordance with D&D privacy policies as amended from time to time which are available for review on the Website.
2. D&D may, at its discretion, store User Documentation on the econveyance System. Notwithstanding the foregoing, the User shall be responsible for all User Documentation including, without limitation, the backup and storage of User Documentation, the accuracy and legality of User Documentation, the means by which the User acquires and uses the User Documentation, including compliance with any regulations and laws applicable to the User Documentation (including, without limitation, privacy and data protection), and has obtained all rights in the User Data necessary to permit D&D to provide the econveyance System. D&D shall not be responsible for any lost or corrupted User Documentation. All User Documentation older than thirty six (36) months will be automatically removed from the econveyance System by D&D without notice to the User.
DISCLAIMER AND LIMITATION OF LIABILITY
1. THE USER HEREBY ACKNOWLEDGES AND AGREES THAT, FOR THE CONVENIENCE OF THE USER, D&D GATHERS THIRD PARTY INFORMATION FROM SECONDARY SOURCES AND MAKES SUCH THIRD PARTY INFORMATION AVAILABLE TO USERS THROUGH THE ECONVEYANCE SYSTEM. THE USER ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR REVIEWING SUCH THIRD PARTY INFORMATION AND DETERMINING ITS COMPLETENESS, ACCURACY AND SUITABILITY FOR THE USER’S PARTICULAR PURPOSES. D&D IS NOT RESPONSIBLE FOR THIRD PARTY INFORMATION AND MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO SUCH THIRD PARTY INFORMATION INCLUDING, WITHOUT LIMITATION ANY REPRESENTATIONS OR WARRANTIES REGARDING ITS COMPLETENESS, ACCURACY OR FITNESS FOR THE USER’S PURPOSES.
2. D&D DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE ECONVEYANCE SYSTEM, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THIRD PARTY INFRINGEMENT, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE USER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY D&D OR ANY OTHER PERSON. THE ECONVEYANCE SYSTEM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED AND D&D HAS NO OBLIGATION TO PROVIDE MAINTENANCE, SUPPORT, UPDATES, ENHANCEMENTS OR MODIFICATIONS WITH RESPECT TO THE D&D SYSTEM TO THE USER. WITHOUT LIMITING ANY OTHER WORDING IN THIS AGREEMENT: (A) D&D DOES NOT WARRANT THAT THAT ACCESS TO OR USE OF THE ECONVEYANCE SYSTEM WILL BE ‎SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, THAT ERRORS IN THE ECONVEYANCE SYSTEM WILL BE IDENTIFIED AND CORRECTED, THAT THE ‎ ECONVEYANCE SYSTEM WILL MEET THE USER’S REQUIREMENTS OR THAT THE ECONVEYANCE SYSTEM WILL OPERATE IN CONJUNCTION WITH EQUIPMENT, THIRD-PARTY ‎SOFTWARE OR SERVICES THAT THE USER MAY OBTAIN OUTSIDE OF THIS AGREEMENT; AND (B) ACCESS TO AND USE OF THE ECONVEYANCE SYSTEM MAY ‎AFFECT THE USABILITY OF THIRD-PARTY SOFTWARE, APPLICATIONS OR SERVICES.‎
3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL D&D BE LIABLE FOR ANY DAMAGES SUFFERED OR INCURRED BY THE USER OR ANY OTHER PERSON OR ENTITY (WHETHER THAT LIABILITY IS ASSERTED ON THE BASIS OF INDEMNITY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, (A) ANY SPECIAL, INCIDENTAL, INDIRECT, DIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE ECONVEYANCE SYSTEM, EVEN IF D&D HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) LOST PROFITS, LOST BUSINESS, LOST REVENUE, LOST OPPORTUNITIES OR LOST CUSTOMERS, BUSINESS INTERRUPTIONS, LOSS OF OR DAMAGE TO DATA, ‎COST OF REPLACEMENT PRODUCTS OR SERVICES, OR LOSS OF OR DAMAGE TO REPUTATION OR GOODWILL‎. IF THE USER IS DISSATISFIED WITH THE ECONVEYANCE SYSTEM, THE USER’S SOLE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT. IF D&D BECOMES LIABLE TO THE USER DESPITE THE PREVIOUS WORDING IN THIS SECTION 5.3, IN NO EVENT WILL D&D’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE TOTAL FEES RECEIVED BY D&D ‎UNDER THIS AGREEMENT DURING THE CALENDAR YEAR IN WHICH THE USER MAKES THE USER’S FIRST CLAIM FOR DAMAGES.‎
4. THE USER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF LIABILITY SET OUT IN THIS PART 5 ARE FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND THAT D&D WOULD NOT HAVE ENTERED INTO THIS AGREEMENT NOR PROVIDED ACCESS TO THE D&D SYSTEM BUT FOR THE USER’S AGREEMENT TO LIMIT D&D’S LIABILITY IN THE MANNER, AND TO THE EXTENT, PROVIDED FOR HEREIN.
ENDORSEMENTS, COMMUNICATION AND LINKS TO EXTERNAL SITES
1. D&D is not responsible for the contents of any third party sites or services, any links contained in third party sites or services, or any changes or updates to third party sites or services. D&D provides these links and access to third party sites and services to the User only as a convenience and the including of any link or access does not imply an endorsement by D&D of the third party site or service.
2. Nothing in this Agreement, nor the License shall constitute or imply any promise to or intention to make any purchase of products or services by either party or its affiliates or any commitment by either party or its affiliates with respect to the present or future marketing of any product or service or any commitment to enter into any other business relationship.
3. In specific areas of the software, D&D uses third party logos to add clarity for users. D&D makes no representation of ownership of any these logos and has sought permission, which has been given in most cases, for their use from each company owning the specific logo.
INDEMNITY AND REMEDIES
1. The User shall defend, indemnify and save D&D and its respective directors, officers, employees, agents, affiliates, shareholders or any combination thereof harmless from any claims, costs (including settlement and legal or other professional fees on a solicitor and own client basis), damages, expenses, losses, and liability arising out of or relating to, either directly or indirectly, the User’s use of the econveyance System, any breach by the User of its obligations under this Agreement, any unauthorized alteration, modification, adjustment or enhancement made by the User to the econveyance System or the misuse of a Trusted User Identification, a User Account or information recorded in a User Profile by the User.
2. The User agrees that, in addition to any other rights or remedies D&D may have for any breach of this Agreement, D&D has the right to an injunction or other equitable relief in any court of competent jurisdiction enjoining a threatened or actual breach of this Agreement by the User.
FEES AND PAYMENT ACCOUNTS
1. Prior to using the econveyance System the User shall establish a pre-paid account with D&D (the “Payment Account”) to pay for use of the econveyance System. Users may pay monies into the Users Payment Account by way of cheque, online payment or credit card payment. Users may pay monies into their Payment Account from time to time as may be required.
2. All fees for use of the econveyance System are due and payable at the time the econveyance System is used by the User and/or the time any services are performed by D&D. D&D may withdraw from the Payment Account the amount of all fees incurred by the User as they become due and payable. No interest will be paid to the User on funds held in the Payment Account. D&D shall bill the User by way of an electronic invoice which shall summarize the fees incurred by the User and state the balance available in the Payment Account. All fees are non-refundable. D&D may adjust its fees from time to time upon written notice, and the new fees will be effective ‎at the start of the User’s next billing period.‎
3. Users may, upon written notice to D&D (an “Account Closure Notice”), request that their Payment Account be closed and that the balance of their Payment Account, after deduction of any amounts owing by the User to D&D, be returned to the User. Upon receipt of an Account Closure Notice or the termination of this Agreement in accordance with Part 10, D&D shall calculate the balance of such User’s Payment Account and after deduction of any amounts owing by User to D&D, shall return the balance of the Payment Account to the User. D&D shall provide the User with a written summary (the “Account Summary”) of the User’s Payment Account together with any funds (if any) to be returned to the User within sixty (60) days of the later of D&D’s receipt of an Account Closure Notice or the termination of this Agreement. If D&D determines that the User’s Payment Account has a negative balance the User shall pay such amount to D&D within thirty (30) days of its receipt of the Account Summary. D&D’s calculation of the Account Summary including, without limitation D&D’s calculation of the amounts paid by the User into the Payment Account, the balance of a Payment Account at any particular time and/or the amount to be returned to a User upon closure of a Payment Account shall be determined by D&D acting reasonably. The User acknowledges and agrees that any such calculation made by D&D shall be final, conclusive and binding upon the User.
4. D&D reserves the right to suspend the License and the User’s access to the econveyance System should there be insufficient funds in the User’s Payment Account.
FUTURE AMENDMENT OF TERMS
1. The User acknowledges that D&D may modify the terms and conditions of this Agreement in its sole discretion at any time by posting a revised version of the Agreement on the Website. The User’s continued use of the econveyance System and/or D&D services shall be evidence of the User’s acceptance of any such modified terms and conditions of this Agreement.
TERMINATION
1. Either party may terminate this Agreement immediately for any reason by providing the other party with a written termination notice (the “Termination Notice”). Upon issuance or receipt of a Termination Notice D&D shall be deemed to have received an Account Closure Notice and shall calculate the balance of a User’s Payment Account and determine a return of funds (if any) or balance owing by the User in accordance with Section 8.3 of this Agreement.
2. Immediately upon termination of this Agreement, the User shall cease all use of the econveyance System and shall promptly, but in any event not less than one (1) day after termination, return to D&D or, upon the written instructions of D&D, destroy any and all copies of D&D materials or information in its possession or control and confirm such destruction in writing to D&D.
NOTICE
1. Any notice required or permitted to be given under this Agreement shall be in writing and shall be effective upon its delivery by courier or delivery by electronic mail to the last civic address or e-mail address provided by the recipient to the other party.
SURVIVAL
1. The User acknowledges, covenants and agrees that due to the proprietary nature of the econveyance System, the provisions of this Agreement, including, without limitation, Parts 5 and 7 of this Agreement, will continue in full force and effect notwithstanding the termination of this Agreement for any reason.
ASSIGNMENT
1. The User will not assign this Agreement, either directly or indirectly, without the prior written consent of D&D which may be withheld by D&D for any reason in its sole and unfettered discretion.
2. No subcontract entered into by the User with any third party will: (a) relieve the User of the obligations under this Agreement; or (b) create any obligation or liability to any such subcontractor upon D&D.
GOVERNING LAW
1. D&D, the Website and its server are physically located within the Province of British Columbia, Canada. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein. The parties agree that the Courts of the Province of British Columbia shall have exclusive jurisdiction to hear and make any judicial determination on any issue arising with respect to this Agreement. The parties expressly exclude the UN Convention on Contracts for the International Sale of Goods as amended, replaced or re-enacted from time to time. The parties have required that this Agreement and all documents relating thereto be drawn-up in English. NOUS avons demande que cette convention ainsi que tous les documents qui s’y rattachent soient rediges en Anglais.
SEVERABILITY
1. If a court of competent jurisdiction concludes that any provision of this Agreement is illegal, invalid or unenforceable, then it shall be severed from this Agreement and the remaining provisions shall remain in full force and effect.
BINDING EFFECT
1. By clicking the I AGREE button set out below and/or by accepting delivery of the econveyance System, copying, accessing or otherwise using the econveyance System, the User represents and warrants to D&D that the User has all requisite power and authority to enter into this Agreement and has all necessary power and authority to perform the obligations of the User as set out herein.
ENUREMENT
1. The Agreement will be for the benefit of and binding upon the heirs, executors, representatives, administrators, successors and permitted assigns of the User.
ENTIRE AGREEMENT
1. This Agreement constitutes the entire understanding between the parties hereto and supersedes all previous communications, representations and understandings, oral or written, between the parties, with respect to the subject matter of this Agreement.

BY CLICKING THE “I AGREE” BUTTON SET OUT BELOW, YOU, AS THE USER INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND CERTIFY THAT YOU HAVE ALL THE REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE, YOU MAY NOT USE THE ECONVEYANCE SYSTEM AND MUST PROMPTLY RETURN ANYTHING ASSOCIATED WITH THE ECONVEYANCE SYSTEM TO D&D.

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ECONVEYANCE

END-USER LICENSE AGREEMENT