Last Updated February 22, 2023
By browsing, access, or using the Service, including when you register for a new Wahi account, you are both agreeing to be bound by these Terms and representing that you are of legal age to form a binding contract. If you are using the Service on behalf of an organization, then you are agreeing to these Terms for that organization and promising to Wahi that you have the authority to bind that organization to these Terms (in which case, the terms “you” and “your” or “user” will refer to that organization). The exception to this is if that organization has a separate written agreement with Wahi covering the use of the Service, in which case, if there are any provisions in these Terms that conflicts with that agreement, that agreement will govern such use. If you do not wish to be bound by these Terms, please refrain from using the Service, accessing our websites, or registering for a Wahi account. By submitting your contact information to Wahi, you agree that Wahi may contact you.
Whether using the Service as an individual or on behalf of an organization, you acknowledge that our agreements contained in these Terms are supported by reasonable and valuable consideration, including, without limitation, your ability to visit, use, submit information to, or receive information from the Service, the receipt and adequacy of which is hereby acknowledged by you individually and on behalf of any organization you represent. You also represent that you have the capacity to be bound by our agreements contained in these Terms, or if you are acting on behalf of a company or other entity, you have the authority to bind such company or entity.
The Service is available for individuals aged 18 years or older located in Canada. If you are 18 or older, but under the age of majority in your jurisdiction, you should review these Terms with your parent or guardian to make sure that you and your parent or guardian understands it. We reserve the right, in our sole and absolute discretion, to deny you access to the Service or any portion thereof, without notice and without reason.
2. DESCRIPTION OF USERS
Visitors to the Site are people who do not register for an account, but want to explore the Site for informational purposes (“Visitors”). No login is required for Visitors to the Site. Visitors can view all content and access all publicly available features and functionality on the Site, and contact us using the contact link on the Site.
b. Registered Users and Clients
If you want to access certain features of our Service, including access to non-publicly available features, saving your information, search history, and results in our database, you will need to become a “Registered User” by registering for an account with Wahi. Wahi may accept or reject any registration in our sole and exclusive discretion. Further if you do become a Wahi Client (“Client”), you will be required to execute an exclusive listing agreement and/or buyer representation agreement with Wahi (respectively, a “Listing Agreement” or “Buyer Broker Agreement” and collectively, a “Brokerage Agreement”). Wahi is under no obligation to accept any individual as a Client or to provide any services. As a Client, your Brokerage Agreement governs your use of our services and your obligations as a Client. These Terms are a separate agreement from your Brokerage Agreement, which govern a separate service (your access to and use of the Services) and does not supersede or negate anything in the Broker Agreement.
4. PROHIBITION OF USE BY EUROPEAN RESIDENTS
5. USE OF THE SERVICES; ACCOUNT
In order to use the Service or portions of the Service, you may be asked to create an account with us. When you become a Registered User, you will need to log in using your email address and create a password. When creating your account, we may also ask you to provide other information such as your current physical address, and you must provide true, accurate, current, and complete information about yourself. Your right to access and use the Service is personal to you and is not transferable by you to any other person or entity. You are solely responsible for all activity under your account. Each user email and password can be used by only one individual. You are responsible for maintaining the confidentiality of your login credentials. You are fully responsible for all activities that are associated with your account (including but not limited to any use of any services, or communications from your account to Wahi). You agree to immediately notify us of any unauthorized use or suspected unauthorized use of your account or any other breach of security.
By creating an account, you provide consent for us to contact you via voice call, text message and/or email, including through the use of automated calling technology, even if you’ve registered that number on a Do-Not-Call registry.
We will strive to make the Service available to you, but we make no guarantees regarding the availability of the Service, generally or at any particular time.
6. AGENTS; REALTORS®
Once you have registered with the Site as an Agent or Realtor®*, you will have the opportunity to access certain proprietary services that Wahi may offer from time to time (“Agent Services”). Access to and use of Agent Services shall be subject to the terms and conditions of the specific Agent Services. If there is a conflict between these Terms and terms and conditions of the Agent Services, the terms and conditions of the Agent Services will take precedence with respect to the Agent’s use of or access to the Agent Service. “Agents” and “Realtors®” are licensed real estate agents who access the Agent Services to facilitate the services provided by such Agent or Realtor®.
7. PROPERTY ESTIMATE TOOL
8. LICENSE GRANT
Subject to these Terms, Wahi grants you a limited, non-transferable, non-exclusive, license to access and use the Site solely for your personal, non-commercial purpose. Wahi may terminate this license at any time for any reason. By accessing and/or using the Site, you hereby agree to comply with the following guidelines:
- You will not use the Site for any unlawful purpose;
- You will not access or use the Site to collect any market research for competing businesses;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will use the Service only for your sole, personal, private, noncommercial use, and not to transfer, resell, lease, license, or otherwise make available the Service to third parties or offer them on a standalone basis;
- You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Site;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Site;
- You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the Site;
- You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Site, directly or indirectly;
- You will not interfere with or attempt to interrupt the proper operation of the Site through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Site through hacking, password or data mining, or any other means.
Wahi may modify, suspend, or discontinue the Site at any time and it will not be liable to you or any third party. We reserve the right, in our sole and absolute discretion, to deny you (or any device) access to the Site, or any portion thereof, without notice.
9. INTELLECTUAL PROPERTY
The Site and all content on the Site, including, but not limited to text, images, illustrations, audio clips, and video clips, visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, aggregate user review ratings, and all other elements and components of the Site is protected by copyright, trademark, and other laws of Canada and foreign countries. Except as expressly and unambiguously provided in these Terms, Wahi and its licensors exclusively own all right, title, and interest in and to the Site, including all associated intellectual property rights. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Site.
You may view all content on the Site (the “Content”) for your own personal, non-commercial use and not for any other use, including any commercial use, without the prior written consent of Wahi. The Content may be owned by us, our affiliates or third parties. The Content is protected under both Canadian and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
We, and our licensors, retain all right, title, and interest, including all intellectual property rights, in and to the Content. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other Site, social media page, or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of these Terms, your permission to access the Site automatically terminates and you must immediately destroy any copies you have made of the Site.
The trademarks, service marks, and logos of Wahi (the “Wahi Trademarks”) used and displayed on the Site are registered and unregistered trademarks or service marks of Wahi. Other company, product, and service names located on the Site may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Wahi Trademarks, the “Trademarks”). Nothing on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any Site are prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Wahi Trademarks inures to our benefit.
Elements of the Site are protected by trademark, unfair competition, and other provincial and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
a. Your Rights
Wahi does not claim ownership in the content you upload, post, email, transmit, or otherwise make available on the Service, including any text, text message bodies, data, information, images, photographs, music, sound, voice, video, User Usage Data, or other material (“Your Content”). However, if you submit Your Content to Wahi, you grant Wahi and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licenseable right to use, reproduce, alter, modify, adapt, publish, translate, distribute, display, create derivative works from, or otherwise make available Your Content throughout the world in any media. By submitting Your Content to Wahi, you agree to indemnify Wahi for all claims arising from Your Content and to abide by the policies in the section above concerning Your Conduct. “User Usage Data” means communications metadata made available to us through the use of the Service and includes, without limitation, data used to trace and identify the source and destination of a communication, such as individual data subjects’ telephone numbers, data on the location of the device generated in the context of providing the Service, and the date, time, duration, and type of communication.
b. Responsibility for Your Content
You alone are responsible for Your Content, and once published, it cannot always be withdrawn. You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable. You represent that you own, or have the necessary permissions to use and authorize the use of, Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Wahi. You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
c. Our Right to Use Your Content
If you provide us with any feedback, comments, and suggestions with respect to the Site (“Feedback”), you hereby agree that we will be free to use, reproduce, and disclose any and all such Feedback in perpetuity, subject to applicable privacy laws, for any lawful purpose, without compensation or attribution to you or any third party.
If you are a Registered User or Client, you acknowledge that Wahi has disclosed or may disclose information relating to Wahi’s technology or business (hereinafter referred to as “Proprietary Information”). You agree: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of these Terms, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that you take with your own proprietary information, but in no event less than reasonable precautions to protect such Proprietary Information. The foregoing will not apply with respect to any information that you can document (a) is or becomes generally available to the public other than through your own wrongful act, or (b) was in your possession or known by you prior to receipt from us, or (c) was rightfully disclosed to you without restriction by a third party, or (d) was independently developed without use of any Proprietary Information. Nothing in these Terms will prevent you from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that you give us reasonable prior notice of such disclosure to contest such order.
A violation of any of the foregoing is grounds for termination of your right to use or access the Site.
By using the Service, you agree to receive phone calls, emails and text messages from us and our partners. By using the Service, you expressly authorize Wahi, its affiliated companies, its affiliated real estate and mortgage professionals, and its partners and each such entity’s employees, contractors, and software (collectively, “Service Provider”) to communicate with you by phone and text at the wireless phone number provided or any other number that you may provide in the future and via email at the email address provided. You understand that message and data rates may apply based upon the terms of your wireless service provider contract. You also agree that methods of contact may include use of auto-generated text messages or an automated telephone dialing system, even if you’ve registered that number on a Do-Not-Call registry, and that your consent to text messages and phone calls is not a condition to using any Service Provider’s services. If you do not consent to receive these emails, texts or calls, do not use the Service or provide your information to us. You acknowledge that our text messages may be sent to you without being encrypted and may include personal information pertaining to your inquiry. Wahi reserves the right, in its sole discretion, without any obligation and without any notice requirement, to change, modify, or suspend phone call and text messages for scheduled or unscheduled maintenance, upgrades, improvements or corrections.
You agree to indemnify Service Provider in full for all claims, expenses, and damages related to or caused in whole or in part by your failure to notify Service Provider if you change your wireless phone number, including but not limited to all claims, expenses, and damages related to or arising under Canada’s Anti-Spam Legislation (CASL). You agree to notify Service Provider promptly if you change your wireless telephone number. You may revoke your consent to receive (i) phone calls by requesting to be placed on an internal Do Not Call list and (ii) text messages by following the opt-out instructions in a text message and (iii) email by following the opt out instructions contained in any email. You understand this authorization cannot be revoked to the extent that action has already been taken in reliance on this authorization prior to the date Service Provider receives my request to revoke authorization. Wahi reserves the right to change these Terms, and your continued use of the text messages constitutes agreement to all such changes.
15. OFFERS FROM OUR THIRD-PARTY PROVIDERS AND AFFILIATES
Through the Service, Wahi and our partners and affiliates may provide a venue through which you can obtain information regarding residential real estate and you can, upon your request, be connected to third-party service providers, such as real estate brokers, mortgage brokers and lenders, mortgage information services, insurance brokers, and other companies providing services around the buying and selling of real estate (“Third Party Providers”). We do not endorse or recommend the products or services of any Third Party Provider and are not an agent or advisor to you or any Third Party Provider. We do not validate or investigate the licensing, certification, or other requirements and qualifications of Third Party Providers. It is your responsibility to investigate any Third Party Providers before you engage them. You acknowledge and agree that these Third Party Providers are solely responsible for any services that they may provide to you and that we are not liable for any losses, costs, damages, or claims in connection with, arising from, or related to, your use of a Third Party Provider’s products or services. We urge you to obtain the advice of financial advisors or other qualified professionals who are fully aware of your individual circumstances before you make any financial decisions. You acknowledge and agree that you rely on your own judgment and that of such advisors in selecting any products or services offered by Third Party Providers.
Third Party Providers may pay us fees for services and to be matched with users of the Service, however Wahi is not involved with and is not responsible for any fee arrangement that you may enter into with any Third Party Provider.
By using the Service, you hereby release us of any and all losses, costs, damages, or claims in connection with, arising from or related to your use of a Third Party Provider’s products or services, including any fees charged by a Third Party Provider.
Wahi and its licensees may publicly display advertisements and other information adjacent to or included with Your Content. You are not entitled to any compensation for such advertisements. The manner, mode, and extent of such advertising are subject to change without specific notice to you.
17. REFERRAL PARTNERS
We may make available through the Service referrals to our third-party partners who may offer to provide additional products and services to you (each, a “Referral Partner”). We are typically compensated by our Referral Partners for such referrals. If you, at your sole discretion, choose to engage with a Referral Partner, then you will be required to accept the Referral Provider’s terms of service (“Referral Provider’s Terms”) as part of the referral process. The Referral Provider is solely responsible for their products or services offered, the content therein, and any claims that you or any other party may have relating to the Referral Partner’s products and services.
When you accept a referral to one of our Referral Partners, you acknowledge that you are purchasing any products or services offered by the Referral Partner directly from them and that Wahi is not a party to any agreement between you and the Referral Partner with respect to those products and services; and Wahi is not responsible for that Referral Partner’s products or services, the content therein, or any claims that you or any other party may have relating to that Referral Partner’s products and services.
By accepting a referral to one of our Referral Partners, you grant us permission to share Your Content with the Referral Partner so that they may offer their products or services to you.
18. DISCLAIMER OF WARRANTIES; NOT AN APPRAISAL
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER WAHI, NOR ITS AFFILIATES, NOR ITS THIRD-PARTY PROVIDERS MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THESE TERMS. WAHI, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WAHI WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT COULD RESULT FROM INTERCEPTION BY THIRD PARTIES OF ANY INFORMATION MADE AVAILABLE TO YOU VIA OUR TEXT MESSAGES OR ANY OTHER FAILURE TO RECEIVE TEXT MESSAGES FROM WAHI.
ALL CONTENT ON THE SITE IS SUBJECT TO THE POSSIBILITY OF ERRORS, OMISSIONS, OR WITHDRAWAL WITHOUT NOTICE. TO THE EXTENT THAT WAHI, ITS AFFILIATES, OR ITS THIRD-PARTY PROVIDERS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
WAHI DOES NOT OPERATE AS AN ACCOUNTING, FINANCIAL, TAX, LEGAL, OR INVESTMENT ADVISOR. THE CONTENT AND INFORMATION, INCLUDING, WITHOUT LIMITATION, ESTIMATES, THAT YOU ACCESS ON THE SITE ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. WAHI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING SUCH RESULTS, OR AS TO THE RELIABILITY, ACCURACY OR CURRENCY OF ANY INFORMATION, CONTENT, OR SERVICE ACQUIRED BY YOUR USE OF THE SITE. YOU HEREBY ACKNOWLEDGE THAT ANY DECISIONS ARE MADE AT YOUR SOLE DISCRETION AND RISK. WAHI MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOU WILL BE APPROVED AS A WAHI CLIENT, SECURE FINANCING FOR ANY PROPERTY, OR THAT WAHI WILL ENTER INTO ANY AGREEMENT WITH YOU WITH RESPECT TO ANY PROPERTY OR PROPERTIES. NOTHING IN THESE TERMS SHALL OBLIGATE WAHI TO EXECUTE ANY AGREEMENT WITH YOU, EVEN IF YOU ARE QUALIFIED BY OUR THIRD-PARTY PROVIDERS. YOUR USE OF THE SITE AND OUR SERVICE IS AT YOUR SOLE DISCRETION AND RISK.
WAHI DOES NOT PROVIDE APPRAISALS, AND ANY INFORMATION WAHI PROVIDES REGARDING YOUR HOME IS NOT AND SHALL NOT BE CONSIDERED AN APPRAISAL.
19. LIMITATION OF LIABILITY
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SITE OR ANY RELATED SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SITE OR ANY RELATED SERVICE SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100) EXCEPT AS OTHERWISE PROVIDED IN A BROKER AGREEMENT OR OTHER AGREEMENT BETWEEN YOU AND WAHI.
20. LINKS TO THIRD-PARTY EXTERNAL WEBSITE
The Site may contain links to third-party websites (“External Site”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Site. The content of such External Site is developed and provided by others. You should contact the Site administrator or webmaster for those External Site if you have any concerns regarding such links or any content located on such External Site. We are not responsible for the content of any linked External Site and do not make any representations regarding the content or accuracy of materials on such External Site. You should take precautions when downloading files from all Site to protect your computer from viruses and other destructive programs. If you decide to access linked External Site, you do so at your own risk.
21a. INTERNET DATA EXCHANGE AND OTHER VIRTUAL OFFICE WEBSITES
These terms apply to the Internet Data Exchange and Virtual Office Website features of the Site, which provide listing data from various real estate boards/associations. You agree and acknowledge that:
21b. INTERNET DATA EXCHANGE AND OTHER VIRTUAL OFFICE WEBSITES
To the extent applicable, you will acknowledge the below Real Estate Board Requirements:
(i) That the Canadian Real Estate Association (CREA) is the owner of the REALTOR®, and MLS® trademarks: REALTOR®, REALTORS®, and the REALTOR® logo are certification marks that are owned by REALTOR® Canada Inc. and licensed exclusively to CREA. These certification marks identify real estate professionals who are members of CREA and who must abide by CREA’s By-Laws, Rules, and the REALTOR® Code. The MLS® trademark and the MLS® logo are owned by CREA and identify the quality of services provided by real estate professionals who are members of CREA.
(ii) The Toronto Regional Real Estate Board (TREB)’s ownership of, and the validity of TREB’s proprietary rights and copyright in, the MLS® database, TREB’s MLS® System, listing information and any related data.
(iii) The Information Technology Systems Ontario (ITSO)’s ownership of and the validity of ITSO’s copyrights in the MLS® System, listing information and any related data.
(iv) The Ottawa Real Estate Board (OREB)’s ownership of, and the validity of OREB’s proprietary rights and copyright in, the MLS® System Database, OREB’s MLS® System, listing information and any related data.
(v) The Windsor-Essex County Association of Realtors (WECAR)’s ownership of, and validity of WECAR’s proprietary rights and copyright in, the MLS® System, WECAR’s listing information and any related data.
(vi) The Realtors Association of Hamilton-Burlington (RAHB)’s ownership of, and validity of RAHB’s proprietary rights and copyright in, the MLS® System, RAHB’s listing information and any related data.
(vii) The Nova Scotia Association of Realtors (NSAR)’s ownership of, and validity of NSAR’s proprietary rights and copyright in, the MLS® System, NSAR’s listing information and any related data.
You will indemnify, defend, and hold Wahi, our affiliates, and our and their respective shareholders, members, officers, directors, employees, agents, and representatives (collectively, “Wahi Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable legal fees incurred by any Wahi Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from your violation of these Terms or your gross negligence or willful misconduct; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the Claim (provided that our failure to provide prompt written notice shall excuse your indemnification obligations only to the extent that you are prejudiced thereby); (ii) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise, provided that you may not make any admission of liability on behalf of any Knock Indemnitee without our prior written approval.
23. COMPLIANCE WITH APPLICABLE LAWS
The Site is based in, and our services are only available in, Canada. The Site is designed to be accessed and used from Canada.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate these Terms and your access to all or any part of the Site, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Site at any time without prior notice or liability.
25. BINDING ARBITRATION
In the event of a dispute arising under or relating to these Terms or the Site or a Service (each, a “Dispute”), you agree to first contact our customer support team to resolve the issue. If a dispute cannot be resolved through our customer support team, you or any of your affiliates on one hand and Wahi and any of our affiliates on the other hand, all agree to resolve any dispute relating to these Terms or in relation to the Service by binding arbitration in Toronto, ON, Canada, or in another location that we have both agreed to.
Exception: As described in the Equitable Relief section below, you and your affiliates on one hand, and Wahi and its affiliates on the other hand, agree that we will go to court to resolve disputes relating to your, your affiliates’, Wahi’s or Wahi’s affiliates’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents).
In addition, if any of us brings a claim in court that should be arbitrated, the other of us can ask a court to stay the claim in favour of arbitration (i.e., compel arbitration).
Details of Arbitration Procedure: Prior to filing any arbitration, both parties jointly agree to first seek to resolve any dispute between us by mediation conducted by the Canadian Arbitration Association (CAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with the CAA pursuant to their rules and procedures (the “Rules”, available at www.canadianarbitrationassociation.ca) or you can call them at 1-800-856-5154. Any arbitration will be governed by the Rules and will be held before a single arbitrator appointed in accordance with the Rules. To the extent anything described in this Binding Arbitration section conflicts with the Rules, the language of this Binding Arbitration section applies. All discovery will be conducted in accordance with procedures agreed to by the parties and approved by the arbitrator.
This Binding Arbitration section does not alter in any way applicable limitations laws in respect of any claims or counterclaims asserted by either party. The arbitral award will provide in writing the factual findings and legal reasoning for such award. Unless otherwise agreed by the parties, the arbitrator will not be entitled to modify these Terms. Except as provided in the Commercial Arbitration Act and Commercial Arbitration Code, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
26. CLASS ACTION WAIVER
Both you and your affiliates agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the fullest extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. In the event the laws of your jurisdiction prohibit this class action waiver, this section will not apply; however, all other provisions of the Terms will remain in effect.
27. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to seek injunctive relief to enforce these Terms. We may, without waiving any other remedies available under these Terms, seek any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights without the need to resort to the process referenced in the Binding Arbitration section, above. For the purposes of this section and our pursuit of any relief described herein, you hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Delaware.
a. Entire Agreement, No Oral Modification. These Terms constitute the entire agreement between you and Wahi and supersede all prior agreements, discussions or understandings, whether oral or written. No oral or written information or advice given by Wahi, its agents, or employees will create a warranty or in any way increase the scope of the warranties in these Terms. Any purchase order document or similar document provided by you shall be construed solely as evidence of your internal business processes, and the terms and conditions contained therein shall be void and have no effect with regard to these Terms. An electronic version of this agreement shall be admissible in judicial or administrative proceedings and be of the same force and effect as if generated in printed form.
b. Governing Law and Exclusive Forum. These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to any conflict of laws provisions. Except as provided in the Binding Arbitration and Equitable Relief sections above, the exclusive jurisdiction of any legal action or proceeding will be a court in Toronto, Ontario, to which the Parties attorn.
c. Severability. In the event any term of these Terms is found to be void or otherwise unenforceable, the remainder of the Terms shall remain valid and enforceable.
d. Assignment. You will not assign or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms without such consent will be null and void. Subject to this Assignment section, these Terms will be binding on both you and Wahi and each of our respective successors or assigns.
e. Waiver. Our failure to act on or enforce any provision of these Terms shall not be construed as a waiver of that provision or any other provision in these Terms. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
f. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms must be filed within one year after such claim or cause of action arose or be forever barred.
g. Relationship. You agree that no joint venture, partnership, employment or agency relationship exists between you and Wahi as a result of this agreement. You also agree that there are no survivorship rights or third party beneficiaries to this agreement.
h. Notice. Any notice, request, consent or other communication required or made under these Terms must be delivered in writing to the receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt. Notices to Wahi shall be copied to email@example.com.
i. Force Majeure. Under no circumstances shall Wahi be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature or other forces beyond its reasonable control, including, without limitation, fires, floods, storms and acts of God.
j. Survival. If these Terms are terminated in accordance with the termination provision above, such termination shall not affect the validity of the following provisions of these Terms, which shall remain in full force and effect: “Intellectual Property,” “Confidentiality,” “Disclaimer of Warranties; Not an Appraisal,” “Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Binding Arbitration,” “Class Action Waiver,” “Equitable Relief,” “Controlling Law; Exclusive Forum,” and “General.”
Copyright © 2023 Wahi Inc. All rights reserved.
*The trademarks REALTOR®, REALTORS® and the REALTOR® logo are controlled by The Canadian Real Estate Association (CREA) and identify real estate professionals who are members of CREA.
**The trademarks MLS®, Multiple Listing Service® and the associated logos are owned by CREA and identify the quality of services provided by real estate professionals who are members of CREA.