TERMS OF SERVICE
Last Updated: October, 2020
IMPORTANT: Carefully read these Terms of Service (this “Agreement”) before using the Service (as defined below).
This Agreement creates a binding legal agreement between you (“Customer”, “you” or “your”) and WiiBid Solutions Corp. (“WiiBid”).
BY USING THE SERVICE, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. You also agree to ensure that anyone who uses the Service using your password or login information abides by this Agreement.
IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
- if you have registered to use the Service as a borrower (either as a primary applicant or a co-applicant), you agree to be bound by the Borrower Supplemental Terms located at here;
- if you have registered to use the Service as a lender, you agree to be bound by the Lender Supplemental Terms located at here; or
- If you have registered to use the Service as a broker, you agree to be bound by the Broker Supplemental Terms located at here.
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence, and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representation and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
. As used in this Agreement:
- “Account” is defined in Section 1.
- “Customer Data” means any data, information or information contained in any database, template or other similar document (a) submitted by Customer through the Service, (b) provided by Customer to WiiBid as part of the Service, or (c) supplied to WiiBid by or on behalf of Customer.
- “Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms made available by WiiBid that describe the features, functionality or operation of the Service and the System.
- “Force Majeure Event” is defined in Section 2.
- “Personal Information” means information about or relating to an identified or identifiable individual that is subject to any Privacy Laws.
- “Privacy Laws” means all applicable federal and provincial legislation and regulations governing the collection, use and disclosure of Personal Information in the jurisdictions where Customer has subscribed to use the Service, which may include the Personal Information and Protection of Electronic Documents Act (Canada) and equivalent provincial legislation.
- “Service” means the on-line software as a service offerings delivered by WiiBid to Customer using the System, as made available by WiiBid from time-to-time, including without limitation a communication service that enables real estate mortgage borrowers to communicate directly with real estate mortgage lenders and mortgage brokers for various purposes, such as making and evaluating applications for mortgage loans and making and evaluating mortgage loan offers.
- “System” means the technology, including hardware, software and systems, used by WiiBid to deliver the Service to Customer in accordance with this Agreement.
- “UserID” is defined in Section 1.
- The Service.
- Subscription to the Service. Conditional on Customer complying with the provisions of this Agreement and cooperating with the reasonable requests of WiiBid, WiiBid hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right to access and use the Service in accordance with this Agreement.
- Support. Subject to the terms of this Agreement, WiiBid will use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that WiiBid will not have an obligation to provide a correction for all such nonconformities.
- System Updates and Scheduled Downtime. WiiBid may update any aspect of the Service or System at any time in its sole discretion. WiiBid may schedule downtime for maintenance and upgrades to the System without prior notice but will use commercially reasonable efforts to provide advance notice where practicable.
- Internet Security Disclaimer. Customer acknowledges and agrees that WiiBid exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of WiiBid’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.
- Limitation, Suspension or Termination of Access. In addition to the other rights and remedies of WiiBid under this Agreement, WiiBid may suspend, terminate or limit, in WiiBid’s reasonable discretion, Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect WiiBid from harm to its reputation or business. WiiBid will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, WiiBid will restore Customer’s access to the Service when WiiBid determines the event has been resolved. Nothing in this Agreement will limit WiiBid ’s right to take any action or invoke remedies, or will act as a waiver of WiiBid’s rights in any way with respect to any of the foregoing activities. WiiBid will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 6.
- Subcontractors. Customer acknowledges and agrees that WiiBid may retain the services of independent contractors (“Subcontractors”) from time to time to provide, or to assist WiiBid in providing, the Service. Any Subcontractors used by WiiBid to provide the Service shall remain under the direction and control of WiiBid, and WiiBid shall be fully and personally liable for all acts or omissions of the Subcontractors.
- Customer’s Use of the Service.
- Access and Security Guidelines. Customer may set up an account (a “WiiBid Account”) by supplying a unique user identification name and password (“UserID”) to WiiBid. Customer must ensure its UserID is not shared and is kept confidential, and is responsible for any and all activity occurring under its UserID. Customer will promptly notify WiiBid of any actual or suspected unauthorized use of the Service. WiiBid may require that Customer’s UserID be replaced at any time.
- Customer Responsibilities and Restrictions. Customer will, at all times, comply with all applicable local, state, provincial, federal and foreign laws in using the Service. Without limiting the generality of Section 1, Customer agrees that Customer will not, and will not permit any person, to:
- use the Service other than as permitted by this Agreement;
- use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights or any other legal right;
- sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau;
- copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;
- use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service; or
- interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.
- Customer Data. Customer is solely responsible for the Customer Data and will not provide or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. WiiBid may take remedial action if Customer Data violates this Section 3, however, WiiBid is under no obligation to review Customer Data for accuracy or potential liability.
- WiiBid Security. WiiBid will maintain reasonable administrative, physical and technical safeguards (collectively, “Security Procedures”) designed to protect the security, confidentiality and integrity of the Service and System, and the data within them.
- Customer Security. Customer will maintain reasonable Security Procedures designed to protect the security, confidentiality and integrity of Customer’s information technology systems connecting to the Service and System, and the data within them.
- System and Technology. Customer acknowledges that WiiBid retains all right, title and interest in and to the Service, the System and all software, materials, formats, interfaces, information, data, content and WiiBid proprietary information and technology used by WiiBid or provided to Customer in connection with the Service (collectively, the “WiiBid Technology”), and that the WiiBid Technology is protected by intellectual property rights owned by or licensed to WiiBid. Other than as expressly set forth in this Agreement, no license or other rights in the WiiBid Technology are granted to the Customer, and all such rights are hereby expressly reserved by WiiBid. WiiBid will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Service.
- Customer Data. Customer retains all right, title and interest in and to the Customer Data. Except as set out in Section 3, WiiBid will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer grants to WiiBid all necessary licenses in and to such Customer Data solely as necessary for WiiBid to use the Customer Data as described in this Agreement.
- Aggregated Data. Customer grants to WiiBid a perpetual, worldwide, royalty-free, non-exclusive, irrevocable license to collect, use, reproduce, process, manipulate and display the Customer Data in an aggregated and anonymized format for WiiBid’s business purposes, including without limitation to develop and improve the Service, the System and WiiBid’s other products and services.
- Term and Termination.
- Term. The term of this Agreement will commence on the Effective Date and continue until terminated as described in this Section 6 (the “Term”).
- Account Cancellation. You may cancel your WiiBid Account at any time through the interface provided as part of the Service. Cancellation must be issued via the interface or via WiiBid’s support addresses. This is the only way to cancel your WiiBid Account. Email requests or phone requests to cancel your WiiBid Account will not be accepted.
- Termination by WiiBid. WiiBid reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, a failure to comply with the terms of this Agreement. WiiBid reserves the right to modify, suspend or discontinue the Service, or any portion thereof, at any time and for any reason, with or without notice.
- Effect of Termination. Upon the termination of this Agreement for any reason: (a) Customer’s access to and use of the Service will be immediately suspended; and (b) within 30 days following any termination of this Agreement, WiiBid will remove all Customer Data from the System. The rights and duties of the parties under Sections 3, 5, 6.4 and 7 through 10 will survive the termination of this Agreement.
UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY WIIBID: (A) THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY WIIBID TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND; (B) WIIBID HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE; (C) WIIBID DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE; AND (D) WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, WIIBID EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
WIIBID IS NOT RESPONSIBLE OR LIABLE FOR, AND YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF OR RELIANCE ON, ANY INFORMATION OR DATA MADE AVAILABLE ON THE SERVICE THAT WAS PROVIDED BY ANY OTHER USER OF THE SERVICE (INCLUDING WITHOUT LIMITATION ANY BORROWER, LENDER OR BROKER). YOU ACKNOWLEDGE AND AGREE THAT WIIBID SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DISPUTES OR DAMAGES ARISING FROM ANY CONTRACT YOU ENTER INTO WITH ANOTHER USER OF THE SERVICE (INCLUDING WITHOUT LIMITATION ANY LETTER OF INTENT, BROKER CONTRACT, COMMITMENT LETTER OR OTHER MORTGAGE LOAN AGREEMENT), REGARDLESS OF WHETHER SUCH CONTRACT WAS ENTERED INTO OR OTHERWISE FACILITATED THROUGH THE SERVICE OR YOU WERE INTRODUCED TO SUCH OTHER USER THROUGH THE SERVICE.
WIIBID IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY PROVIDER OF ANY SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY WIIBID, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY WIIBID.
THE SERVICES ARE OFFERED AND CONTROLLED BY WIIBID FROM ITS FACILITIES IN CANADA. WIIBID MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
. If any action is instituted by a third party against WiiBid arising out of or relating to: (a) Customer’s use of the Service or System (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data by WiiBid pursuant to this Agreement, infringes any third party intellectual property rights or other rights of a third party, or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of WiiBid and shall pay all damages attributable to such claim which are finally awarded against WiiBid or paid in settlement of such claim.
- Limitation of Liability
. The following provisions have been negotiated by each party , are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- Amount. UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY WIIBID, WIIBID’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT IS LIMITED TO CDN$2MM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL WIIBID’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- Type. IN NO EVENT SHALL WIIBID BE LIABLE TO CUSTOMER FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (D) 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, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL WIIBID BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
- No Jury Trial. CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
- No Participating in Class Action. CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
- Limitation of Time. Customer agrees that it will not bring a claim under or related to this Agreement more than 12 months from when such claim first arose.
- General Provisions
- Assignment. Customer may not assign this Agreement to a third party without WiiBid’s prior written consent, not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer. WiiBid may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section 1 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
- Force Majeure. If the performance of any obligation under this Agreement, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, epidemics and pandemics, power surges or failures, Internet connectivity or the act or omission of any third party (each a “Force Majeure Event”), such party will be excused from such performance to the extent necessary. Each party will use reasonable efforts to implement industry standard procedures to minimize disruption of such Force Majeure Events and will use reasonable efforts to remove such causes of non-performance.
- Arbitration. Any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada and the language of the arbitration shall be English. The number of arbitrators shall be one. Notwithstanding the foregoing, WiiBid may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by WiiBid through injunctive relief and other equitable remedies without proof of monetary damages.
- Choice of Law; Jurisdiction. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (i) to WiiBid, by email at email@example.com or by certified mail at 2900 – 550 Burrard Street, Vancouver, BC, V6C 0A3; or (ii) to Customer, by email or by certified mail at the addresses provided by Customer through the Service. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused.
- Entire Agreement. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. This Agreement may only be modified in writing signed by both parties.
- Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.