SUBSCRIPTION SERVICES AGREEMENT
THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN APPRAISERS NOW LTD. (“ANOW”) AND YOU AND IT GOVERNS YOUR USE OF THE ANOW SOFTWARE TOOLS AND SERVICES (THE “SERVICES“) OFFERED THROUGH HTTP://ANOW.COM/ AND IT’S SUBDOMAINS (THE “WEBSITE”). IF YOU ACCESS OR USE THE WEBSITE OR SERVICES, YOU ARE ACCEPTING TO DO SO ON THE TERMS OF THIS AGREEMENT (“AGREEMENT”).
IMPORTANT NOTE: THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
I. GETTING STARTED
1. Creating an Account. You must create an account in order to use the Services on a free trial or subscription basis. To create an account, you will be asked to provide certain basic information in order to purchase/use the Services. This information may include Your name, address, company (if applicable), telephone number, email address, credit card details. All financial information is held by ANOW’s payment gateway provider employing industry standard protections.
2. Services Overview. The Services include access to ANOW tools and software platform to upload, manage and store customer data on the ANOW system. Features of ANOW include managing your firm’s appraisals and their statuses, managing your team of appraisers, tracking revenues, generating reports and analytics. You will have access to your own dashboard which you can log-in and see your content and manage the Services.
II. FREE TRIAL EVALUATIONS
If a free trial of the Services is available you may register on the Website and request a free trial and ANOW will make those Services available to you free of charge for evaluation purposes until the end of the free trial period. Trial services are provided ‘as is’ without any warranty of any kind although ANOW will provide reasonable telephone support period in connection with the use and operation of the Product and any problems therewith. Additional terms and conditions governing trial evaluations of the Services may be set out on the Website and indicated at the time of sign up. Such terms should be read in conjunction with this Agreement as they will take precedence over any conflict or inconsistency with this Agreement.
ANY DATA YOU PROVIDE FOR PROCESSING DURING YOUR FREE TRIAL WILL BE DELETED BY ANOW AT THE END OF THE TRIAL PERIOD UNLESS YOU PURCHASE A SUBSCRIPTION FOR THE SERVICES OR REQUEST AN EXPORT OF SUCH DATA (AT ADDITIONAL COST) BEFORE THE END OF THE TRIAL.
1. Subscriptions. You may subscribe for the Services after creating an account as indicated in Creating an Account HTTPS://SECURE.ANOW.COM/PROFILE#SUBSCRIPTION. Unless otherwise specified on the Website, Services are purchased as monthly subscriptions and monthly charges will vary depending on the category and number of users selected by you (see further: HTTP://ANOW.COM/PRICING).
2. Service Period and Renewals. Services purchased will be provided to you for the period set out in the order form on the Website, and will automatically renew unless and until your subscription is terminated pursuant to Sections 3 or 4 below.
3. Termination by You. If you wish to terminate your subscription, You can do so at any time by providing ANOW at least thirty (30) days’ notice in advance that you wish to discontinue the service. Recurring payments for periodic subscriptions are processed on the first of each calendar month in respect of that month if you acquire services on a monthly subscription basis. Termination will take effect after the 30 day notice period.
4. Service Suspension or Termination. Without limiting other remedies, ANOW may limit, suspend, or terminate this license and your use of the Services, prohibit access to the Website and delete your user account and/or user ID, with immediate effect, if any outstanding invoices are more than 10 days past due, if we think that you are in breach of this Agreement, creating legal liabilities (actual or potential) or acting inconsistently with respect to our policies. ANOW shall effect such termination by providing notice to you (see further Notices).
5. Effect of Termination. Upon termination of this Agreement your access to and receipt of the Services will terminate. ANOW will not be liable in respect of any damage caused by the termination of this Agreement.
IV. LICENCES AND PROPRIETARY RIGHTS
1. License Grant. Subject to the terms of this Agreement and payment of the applicable fees, ANOW grants you a limited, personal, non-sublicensable, internal license and right to use the Services (including the underlying software and technology contained therein) (“Licensed Materials”) for the purpose of managing appraisers, customer relationships and appraisals, and carrying out reporting and analysis of sales activities. This license also includes the right to use any other applications that may be explicitly provided by ANOW. Any software provided to you is licensed; not sold.
2. Third Party Components. The Licensed Materials may incorporate and embed software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Licensed Materials falls under the scope of this Agreement. Such third party software is licensed; not sold and will be provided to You on the license terms of this Agreement unless additional or separate license terms apply as indicated at the time of download.
3. License Restrictions. You shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Licensed Materials available to any third party. You shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Licensed Materials except to the extent expressly agreed upon in writing by you or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Services; (c) access the Services in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Services.
4. Restrictions on Use of the Services. You shall not (a) use, or permit the use of, the Services for an illegal purpose, criminal offence, intellectual property infringement, harassment (including annoying or offensive transmissions), or in a manner that would cause interference with network operations, attempt to bypass ANOW’s network, or re-arrange, disconnect, remove, repair or otherwise interfere with any Services or facilities; or (c) remove any proprietary notices, labels, or marks from the Licensed Materials or modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available through the Services nor use any of the foregoing except for the specific purpose for which such intellectual property is made available to you.
5. Lawful Purposes. You will at any and all times comply with any and all laws, regulations and policies that may apply to the use of the Services in your country, including applicable rules that govern the export or import of software. You will use the Services solely for lawful purposes. In this respect You may not, without limitation (i) use the Services to manage any illegal operations, (ii) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Services (including our proprietary software which may be available for download on the Website), (iii) send any unsolicited commercial communication not permitted by applicable law; (iv) endanger any part of any system or Internet connection of ANOW or any third party; (v) use the Services to store any personal information from individuals who have not consented to your processing of their personal information.
6. Exclusive Ownership. Except for the rights and licenses granted in this Agreement, You acknowledge and agree that any and all intellectual property (“IP“) rights to or arising from the software are and shall remain the exclusive property of ANOW and its licensors. Nothing in this Agreement intends to transfer any such IP rights to, or to vest any such intellectual property rights in, you. You are only entitled to the limited use of the intellectual property rights granted to you in this Agreement. You will not take any action to jeopardize, limit or interfere with ANOW’s IP rights. Any unauthorized use of ANOW’s intellectual property rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
7. Content. As between you and ANOW, you own the content you provide, create, store and process through the Services. You hereby grant ANOW, its subcontractors and agents the right and license to access and use the Content to the extent necessary to perform the Services as contemplated by this Agreement. You acknowledge and agree that ANOW may obtain and use interaction data from the Services to improve its business and services. For the avoidance of doubt, ANOW will only use your Content in an aggregated and anonymized manner and will not reveal its origins.
9. Feedback. If you provide ANOW with any suggestions, comments or other feedback relating to any aspect of the Website and/or the Services (“Feedback“), ANOW may use such Feedback in the Website, the Services or in any other ANOW products or services (collectively, “ANOW Offerings“). Accordingly, you agree that: (a) ANOW is not subject to any confidentiality obligations in respect to the Feedback, (b) the Feedback is not confidential or proprietary information of you or any third party and you have all of the necessary rights to disclose the Feedback to ANOW, (c) ANOW (including all of its successors and assigns and any successors and assigns of any of the ANOW Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any ANOW Offerings, and (d) you are not entitled to receive any compensation or re-imbursement of any kind from ANOW or any of the other users of the Website in respect of the Feedback.
IV. PAYMENT TERMS
1. Fees, Payment & Charges. Your access to and use of the Services is subject to your payment of the applicable fees due for the Services selected by you (“Fees“) as set out on HTTP://ANOW.COM/PRICING and all other applicable amounts, charges and taxes indicated when you purchase Services (or otherwise notified to you by ANOW from time to time) when you use the ANOW payment gateway on the Website or noted on your invoice. Payments are due monthly in advance and are non-refundable. Receipts for purchased Services will be delivered to you electronically. You shall: (i) keep the billing, credit card and payment information you provide to ANOW or its suppliers or payment processors, including name, credit card number and expiry date, mailing address, email address and telephone number, accurate and up to date; otherwise, we may suspend the Services; (ii) promptly advise ANOW if your credit card information changes due to loss, theft, cancellation or otherwise; (iii) be liable for your failure to pay any Fees billed to you by ANOW caused by your failure to provide ANOW with up to date billing information. To offset its additional processing costs, ANOW may bill you for administrative charges as set from time to time for administrative or account activities including: collection efforts due to non-payment or having a balance over your credit limit; returned or rejected payments; or changes in personal identifier information. All administrative charges charged to you will be indicated to you on your invoice or receipt and you shall pay all such charges.
2. Taxes. You are responsible for paying all governmental sales, use, value-added, commodity, harmonized and other taxes imposed on your purchase or use of the Services. To the extent ANOW is required to collect such taxes, the applicable tax will be added to your billing account.
3. Pre-authorized Payment. By providing a credit card to ANOW as part of your account set-up for your monthly or annual pre-authorized payments, you authorize ANOW to charge your credit card for all outstanding Fees, taxes and charges and outstanding account balances due under the Agreement, and this constitutes ANOW’s good and sufficient authority for so doing. If your pre-authorized payment fails, ANOW may immediately deactivate your account without notice to you and collect Fees owing using other collection mechanisms. You are solely responsible for all charges incurred under your account by you or third-parties.
V. CHANGES TO SOFTWARE, SERVICES AND AGREEMENT
1. Updates to Agreement. ANOW reserves the right to modify this Agreement at any time by publishing the revised Agreement on the Website. The revised Agreement shall become effective within ten (10) days of such publication or provision to you, unless you expressly accept the revised Agreement earlier by clicking on the accept button. Your express acceptance or your continued use of the Services after expiry of the notice period of ten (10) days shall constitute your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at HTTP://ANOW.COM/TERMS-CONDITIONS.
2. Changes to the Licensed Materials. ANOW may alter, update or upgrade the Licensed Materials from time to time. Services will be provided for current versions of the technology made available by ANOW.
3. Changes to Fees and Services. ANOW may change the Services, any Fees, amounts, charges (including one-time charges), and/or other aspect of any of the Services at any time upon reasonable notice to you by posting the change on HTTP://ANOW.COM/PRICING sending notice via an email to the email address you provide on registration, a message on your invoice, in writing, or any other notice method likely to come to your attention. If you do not accept the change, your sole recourse is to terminate the Services. Your continued access to and use of the Services after the change has come into effect constitutes your acceptance of the change and you acknowledge and agree that (i) you will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) you will continue to be responsible to pay for the Services unless you terminate in accordance with Section III.3 at HTTP://ANOW.COM/TERMS-CONDITIONS .
VI. CUSTOMER SUPPORT
1. Customer support. ANOW will provide support for the Services and will (i) use commercially reasonable efforts to make the Services available during the hours specified in HTTP://ANOW.COM/#CONTACT except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond ANOW’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ANOW employees), or Internet service provider failures or delays, and (iii) provide the Services only in accordance with applicable laws and government regulations.
2. Maintenance Services. ANOW provides upgrades to the Licensed Materials (including software) from time to time to provide new features and improvements, bug fixes and error corrections which will be available with subsequent releases. Hosting is provided by a third party provider on behalf of ANOW.
3. Modes of Contact. You may contact ANOW via the means set out on the support page HTTP://ANOW.COM/#CONTACT and HTTP://SECURE.ANOW.COM/SUPPORT .
4. Named Contacts. When ordering certain Services such as support, you must provide ANOW with the name and contact information for a named contact(s) who will be the sole user(s) authorized to use the purchased service. The named contact(s) within the company or organization may be changed if necessary but must be entitled to make decisions on behalf of your enterprise.
5. ANOW Service Warranties. ANOW represents and warrants that during the term of the applicable Services it will provide the Services in a manner consistent with the related service levels.
VII. LIABILITY PROVISIONS
1. Mutual Indemnification.
(i) Your Indemnity. You agree on demand to indemnify, defend and hold ANOW, its affiliates and their directors, officers and employees harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of the Services.
(ii) ANOW Indemnity. ANOW agrees to defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify you for any damages finally awarded against, and for reasonable attorney’s fees incurred by, you in connection with any such claim; provided, that you (a) promptly give ANOW written notice of the claim; (b) give ANOW sole control of the defense and settlement of the claim; and (c) provide to ANOW all reasonable assistance.
2. NO WARRANTIES. THE LICENSED MATERIALS ARE PROVIDED “AS IS” WITH NO WARRANTIES OR CONDITIONS WHATSOEVER AND ANOW DOES NOT MAKE ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR GIVES ANY CONDITIONS, OR MAKES ANY CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE WEBSITE, THE SERVICES OR THE LICENSED MATERIALS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. ANOW FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR LICENSED MATERIALS WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES ANOW WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
3. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ANOW NOR ANY OF ITS AFFILIATES, LICENSORS OR SUBCONTRACTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (WHETHER ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR TO ANY SERVICES PROVIDED TO YOU BY ANOW (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF ANOW (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE.
IN NO EVENT SHALL ANOW’S (INCLUDING ITS LICENSORS AND SUBCONTRACTORS) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER ANOW NOR ANY OF ITS LICENSORS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.
VIII. GENERAL TERMS
1. Notices. Any notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to ANOW at 3RD Floor, 4813 47 Street, Red Deer, Alberta, Canada T4N 3T9. Any notices to be sent to you will be sent by ANOW via email and/or post to the address provided in your account. Notice shall be considered delivered and effective on the earlier of actual receipt or when: (a) personally delivered; (b) the day following transmission if sent by telex, telegram, electronic mail or facsimile when followed by written confirmation by registered overnight carrier or certified mail; or (c) one (1) day after posting when sent by registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (d) five (5) days after posting when sent by certified mail.
2. Customer Service. For assistance regarding this Agreement or the Services or if you have other enquiries, please refer to the help section of the Website. If you require further assistance regarding use of the Services provided by us, please contact us using the contact details located here HTTP://ANOW.COM/#CONTACT .
3. Independent Contractors. This Agreement does not create a partnership, franchise, joint venture or employment relationship between the parties.
4. Logos. ANOW may refer to you in ANOW’s customer list and may use your corporate name and logo for this purpose. For the avoidance of doubt, ANOW will not use your name, logo, any other trademark or trade-name of yours for any other purposes without your prior consent.
5. Severability. Should any term or provision hereof be deemed invalid, void or un-enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement.
6. No waiver. If ANOW does not take action against any breach of this Agreement, it does not mean that ANOW waives its right at a later time to enforce the same.
7. Assignment. This Agreement shall not be assigned by either party, whether voluntarily or involuntarily or by operation of law, in whole or in part, to any other entity without the prior written consent of the other party, which consent shall not unreasonably be withheld, conditioned or delayed. Notwithstanding the foregoing, either party may assign this Agreement to a successor in interest upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of its assets, and any such assignment shall not require the consent of the other party.
8. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of Alberta, Canada without giving effect to any conflict of laws or provisions whether contained in Canadian law or the laws of your current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of Alberta, Canada. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
9. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between you and ANOW with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
© Appraisers Now Ltd.
Last updated June 1, 2014