TERMS AND PARTIES
- “The Agency” refers to Brixwork Real Estate Marketing Inc., the creators of BRIXWORK Real Estate Websites.
- “The Client” refers to the Real Estate Agent, or the Real Estate Brokerage, or a 3rd Party Web Designer who is willingly subscribing to use BRIXWORK Real Estate Websites for a monthly fee as a subscription-based service.
- “Our Website” refers to the website visible under www.brixwork.com, our product display & advertising website.
- “Our Website System”, or the “Brixwork System”, or “Our Software” refers to the real estate website management software (a web-app) that Brixwork Real Estate Inc. provides on a subscription basis.
- “Client’s Domain(s)” refers to a URL that belongs to the Client, such as www.jamesbond.com or www.judydench.ca, and remains the sole property of the Client unless otherwise specified in each individual contract.
- “The Client’s Website” refers to each installation of a website portraying the Client as the main business operator, utilizing The Brixwork System as the website operating platform. This is found on the world wide web by entering the Client’s Domain(s) mentioned above.
- “The Client’s Content” refers to the text, including but not limited to, the biography, property description, resource links, blog posts, pictures etc. written and uploaded by The Client, or by The Agency acting as a proxy for The Client.
- “The Software” refers to the BRIXWORK Real Estate Website system as a package, including the code, graphics, content and the instructions, the web-based software offered on a subscription basis (except the 3rd party code libraries that are distributed under a General Public License utilized as part of BRIXWORK).
- “The Design” refers to the graphical elements that determine the shape, colour, layout and form of how the front-end of a Client Website is displayed, all included in the /templates folder only. This does not include the BRIXWORK software and system files, mainly located under /admin, /includes, /ajax and other folders.
- “3rd Party Designer” refers to a graphic designer producing the intended visual designs for The Client, but has no direct relationship with The Agency, nor any financial responsibilities with the Agency.
- “The Server” refers to the web server(s) belonging to The Agency, where websites are hosted so they can be viewed through each Client’s domain.
- “Subscription” means a right to access and utilize The Software granted to The Client by The Agency upon an agreed monthly sum paid regularly.
Modifications to this Agreement
Brixwork Real Estate Marketing Inc. may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. A Change will be effective: (i) thirty (30) days after Brixwork Real Estate Marketing, Inc. provides notice of such Change, whether such notice is provided through our Website System user interface, is sent to the e-mail address associated with your Account or otherwise; or (ii) when you log-in to the admin section of our Website System or otherwise expressly agree to such Change or a version of this Agreement incorporating such Change, whichever comes first.
OWNERSHIP AND ACCESS
- The Software, including but not limited to the source code (except 3rd party plug-in source code distributed under the General User License, such as jQuery), the graphics (except icons and other artwork distributed by 3rd parties), the instructions remain the exclusive intellectual property of the Agency.
- The Client may only obtain monthly Subscription via monthly payments of a pre-determined amount, charged once a month, before the monthly service cycle. i.e. For a usage period of January 16 to February 15th, the billing occurs on January 16th.
- The Subscription cost, paid monthly, must be paid by pre-authorized credit card. The date of the payment each month varies depending on the date on which The Client’s Website goes live.
- The monthly Subscription cost is effective on the day when all deliverables are completed by the Agency.
- When The Client’s credit card number or expiry date changes, the payment may be declined. If a new credit card number is not provided via the payment gateway, email, nor phone within 30 days, the Client’s Website will be suspended from usage. After another 15 days without a new credit card information, the Agency will terminate The Client’s Website.
- The Client may stop The Subscription at any given time with an email notice via the Support Desk. The subsequent billing scheduled will be cancelled.
- Due to limited resources, we do not offer pro-rated refunds on remaining balances.
- When The Client no longer wishes to pay the agreed monthly cost for The Subscription, The Subscription also expires which limits access by The Client to The Client Website.
- The Agency provides upgrades and bug fixes on the Software on a regular basis.
- Furthermore, the Agency reserves the right to change the user interface and functionality of the Software. We conduct our upgrades and modifications in the best interest of The Client, web standards, load speed, accessibility and user friendliness.
- New feature requests for The Software are taken seriously, but we cannot guarantee that we will implement all new features, or how long it may take. We do our best though.
- Every visible page on the Client’s website will display, at the bottom of the website, a disclaimer that the Website is built by the Agency. The phrase will be “Website by Brixwork Real Estate Marketing Inc.” or similar, unless agreed upon otherwise. This block of text and link will be in plain text, matching the font scheme of the rest of the disclaimers and ownership notes at the footer, with no graphic or emblems in order to remain relatively low in visibility.
- The Subscription monthly cost may increase to reflect additional costs, inflation, as well as to cover additional/new services added to the Brixwork real estate website platform.
- Monthly subscription costs may differ based on each province/state/city, based on local laws & regulations.
- MLS® subscription fees may differ between real estate boards based on factors such as, but not limited to, platform technology differences, licensing fee differences, media size differences and more.
- 3rd party software & API usage fees may be added as an extra monthly charge to individual accounts if the website traffic exceeds 200 unique visits a day. 3rd party software & API usages include, but not limited to, Google Maps & Panorama & Geocode APIs (to run the map & Streetview, and getting locations on your listings & buildings), Sendgrid Email API (lead emails generated are funneled through Sendgrid), AWS S3 (for storage of listing & project photos), AWS Cloudfront (for faster global distribution of photos/PDFs), Vimeo & Youtube Premium (to support embedded video tours).
Functionality, Data & Media Availability, Website System & Website Uptime
- While we make efforts to reduce any disruptions to our services or downtime, no service can be guaranteed 100%.
- Our websites, like many others, operate dependent on our own network as well as many external party services.
- Some external party widgets from other providers including but not limited to Instagram™, Facebook™, Walkscore™ etc. may become deactivated, or have temporary disruption, and is out of our control.
- In the event that external providers impose changes to their technological structure, implementation methods, or billing & licensing structures, our websites may no longer be able to support such widgets. Brixwork is not responsible for any loss of functionality or removal of widgets/visuals that result from a change from a external party provider.
- Any additional labour or recurring subscription fee that is required to upkeep such external party widgets/functionalities/visuals will be added to the Client’s monthly invoice and payable by the Client to the Agency as a reimbursement.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Brixwork Real Estate Marketing Inc., ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, LICENSORS, AND/OR DISTRIBUTORS SHALL NOT BE LIABLE FOR: (A) ANY INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OF ANY KIND WHATSOEVER; (B) LOSS OF PROFITS, REVENUE, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO YOUR INABILITY TO ACCESS OR USE THE SERVICES; (D) DAMAGES RELATING TO ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OR USER USING THE SERVICES, INCLUDING WITHOUT LIMITATION DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT; AND/OR (E) DAMAGES IN ANY MANNER RELATING TO ANY USER OR SYSTEM GENERATED CONTENT. THIS LIMITATION APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT Glitch, Inc. HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF Brixwork Real Estate Marketing Inc. AND ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, LICENSORS AND/OR DISTRIBUTORS, FOR ANY CLAIM UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE GREATER OF FIFTY DOLLARS (CAD$50.00) OR THE AMOUNT YOU PAID US TO USE THE APPLICABLE SERVICE(S) IN THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
Rights to Deliverables Other Than Final Art
Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
Third Party Materials
All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Designer shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Designer shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of third party art, Client hereby indemnifies, saves and holds harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Designer.
Designer retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Designer within thirty (30) days of completion of the Services.
Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out- of-pocket expenses due, Designer assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer for use by Client as a Trademark. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
All Designer Tools are and shall remain the exclusive property of Designer. Designer hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s Web hosting or Internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools comprising any software or technology of Designer.
WHEN THE AGENCY PROVIDES CUSTOM DESIGN, BRANDING & STATIONERY WORK
If The Agency is contracted to provide The Client with custom design work, including but not limited to, the website visual design, branding & logo design, stationary design & print management, these terms apply.
- The design and its files remain the property of The Agency until full payment of the funds agreed upon is paid to The Agency by The Client.
- The design parameters, items to be designed, and the amount of hours reserved will be determined by a private contract between The Agency and The Client.
- The Client is responsible for timely responses for deliverables including layout, design & final product. When a deliverable is presented by the Agency, the client has 5 business days to approve, or request changes to the deliverables via written notice, within the parameters of the agreed upon contract. If no response is provided in 5 business days, the deliverable is deemed as approved and the project will move forward.
- Any deliverable approved by the client by way of written notice or lack of notice after 5 business days is deemed completed, and to revert or change the deliverable after the approval will incur extra charges, billed by the hour at the current hourly rate. The hourly rate is subject to change, and will be communicated at the bottom of all emails.
- In case of The Subscription for The Software being terminated by The Client, the Agency can surrender to the client all website visual design and surface layout files upon request by the customer, EXCLUDING the core files of The Software.
ADDITIONAL DESIGN AND LABOUR, INCIDENTAL COSTS, PRINTING COSTS, SHIPPING COSTS AND MORE
We provide additional graphic design, print media design, digital media design exclusively to our website subscribers. The following terms apply to additional work commissioned to the Agency by the Client that is outside of the scope of any existing proposals/contracts/agreements.
- All additional design, coding, consulting or content entry labour is billable. Exclusion applies only to website tech support such as providing instructions on using the software, or errors and glitches caused by a software error or an error by the Agency.
- The billable rates are disclosed in our emails, and are subject to change without notice.
- The billing cycle is always the 21st of a month to the 20th of the subsequent month, and we will send you an invoice within 15 days of the end of the billing cycle.
- After 7 days of sending you the invoice, we will automatically charge the amount on the invoice on the same credit card used for the Client’s monthly subscriptions. The 10 days is provided so that the Client has a chance to review the invoice and file any disputes if the Client believes there is an error.
- Clients who use pre-authorized debit will have the invoice amount withdrawn in addition to the monthly subscription fee on the next scheduled withdrawal, which is usually on or near the 1st of each month.