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TERANET DISCHARGE SOLUTION TERMS OF USE

This Teranet Discharge Terms of Use (“Agreement”) governs the Services provided by Teranet Inc. (“Teranet”) to the recipient (“Customer”).  

This Agreement becomes effective on the earliest of the following dates: (a) the effective date of an agreement that incorporates this Agreement by reference; (b) the date accepted by the Customer electronically through Teranet’s website; or (c) upon receipt of the Services by the Customer (“Effective Date”). By entering into this Agreement, you represent and warrant that you have all necessary rights and authority to bind the organization that you represent to this Agreement.

Teranet may update or modify this Agreement or the Teranet Discharge Solution and Services at any time. If Teranet makes material changes to this Agreement, Teranet will provide notice to the Customer by email, through the Teranet Discharge Solution, or by other reasonable means. The updated Agreement will become effective on the date specified in the notice, but no sooner than 30 days from when the notice is provided, unless a shorter timeframe is required to comply with Applicable Laws or address security, legal, or regulatory changes. Customers are encouraged to regularly check the Teranet Discharge website for updates to this Agreement.

If the Customer continues to use the Teranet Discharge Solution or Services after the updated Agreement takes effect, the Customer agrees to the revised terms. If the Customer does not agree to the updated Agreement, the Customer must stop using the Teranet Discharge Solution and Services.

  1. DEFINITIONS

Capitalized terms used in this Agreement have the following meanings:

  1. “Applicable Law” refers to all laws applicable to a party with respect to its rights and obligations under this Agreement, including without limitation any rules, regulations, practice management guidelines, or orders from bodies like the Law Society of Ontario, the Law Society Tribunal, or similar entities in other Canadian regions affecting either party, or the Services, including the Teranet Discharge Solution.  
  2. “Business Day” means any day, other than a Saturday, Sunday, or a day on which the chartered banks are not open for business in the Province of Ontario, or a day on which the Teranet offices are not open for business.
  3. “Confidential Information” means all information disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), in whatsoever form or media, whether communicated visually, orally, electronically, in writing or otherwise, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure. Confidential Information includes, any data or information that relates to either party or any of either party's existing or contemplated business activities, technology, developments, software, methods, trade secrets, and clients, where such data or information is not otherwise publicly available. For clarity, Confidential Information of Teranet includes the terms of this Agreement, Teranet Data, Documentation, Feedback, the Teranet Discharge Solution and the Services.
  4. “Conveyancing Platform Provider” means a software provider of a software or an application used by Customers to manage their real estate transactions. Examples of third-party software and applications include: UNITY, Closer, Quintalink, and Lawyer Done Deal
  5. “Customer Data” means all data and information that is obtained, collected, provided to, the Teranet Discharge that originates from, Customer or their clients, including information and data pertaining to End Clients.
  6. “Documentation” means the technical services documentation, user manuals and other written materials that describe the Services, its operation or matters related to its use, which Teranet makes available to Customer.
  7. “End Client” means the individual or entity that has, or  has previously had, an ownership or security interest in the property the Services relate to (e.g. the mortgage holder or property owner).
  8. “Feedback” means any suggestions, ideas, recommendations, bug reports, feature requests, or other input provided by Customer or its users to the Teranet regarding the Teranet Discharge Solution or Services.
  9. “Intellectual Property Rights” means all intellectual property and other similar proprietary rights in any jurisdiction, whether registered or unregistered, including such rights in and to: (a) patent or invention and discovery; (b) any trademark, service mark, trade name, logo, business name or brand name; (c) any copyright, design, or database rights and moral rights; (d) any internet domain name, and registrations and applications therefore. The foregoing encompasses statutory or common law rights, whether current or future, worldwide. This includes renewals, extensions, and applications, regardless of jurisdiction.
  10. “Personal Information” means information about an identifiable individual.
  11. “Province of Ontario” means His Majesty the King in Right of Ontario.
  12. “Teranet Data” means all data and information generated by Teranet and delivered through the Teranet Discharge Solution and Services, including system-generated data, certificates of discharge, notifications, reports, and any other outputs or deliverables created by Teranet in the course of providing the Teranet Discharge Solution and Services.
  13. “Teranet Group” means Teranet, its affiliates, and each of the foregoing’s respective directors, officers, suppliers, agents, employees and representatives.
  14. “Teranet Discharge API” is the application interface that allows Customer to initiate requests and receive notifications from the Solution to Customer’s systems, either through Customer’s own internal systems or Customer’s Conveyancing Platform Provider accounts.
  15. “Services” means the services that Teranet provides to Customer under this Agreement, including Support Services, and access to the Teranet Discharge Solution. For clarity, reference to the “Services” includes the Undertaking Solution.    
  16. “Teranet Discharge Solution” refers to the proprietary workflow system developed by Teranet to provide access to specific Ontario land registry data and assist Customers in more efficiently and effectively managing legal undertakings related to real estate transactions along with the Teranet Discharge API (where applicable).
  1. SERVICES
  1. Teranet Discharge Solution. Teranet will use commercially reasonable efforts to make the Teranet Discharge Solution available to Customer in accordance with this Agreement through: (a) a web portal (“Portal”); (b) the Teranet Discharge API; and/or (c) integration with a Conveyancing Platform Provider. Teranet does not guarantee that the Teranet Discharge Solution and Services (and the data and notifications provided therein) will be accurate or error free. Teranet disclaims all liability for the accuracy, timeliness and availability of Teranet Data. Customer must ensure that it takes necessary steps to ensure compliance with its legal obligations under Applicable law.  
  2. Support Services.  Teranet will provide reasonable technical and user support services to Customer with respect to the Teranet Discharge Solution, as set out in this section (“Support Services”).  Support will be provided by phone and email from Monday to Friday (excluding holidays observed in Ontario) between the hours of 8:30am -6 pm. Teranet, directly or by way of its designated agent, may, at its discretion, provide support outside of the Support Services and charge a consulting fee (at Teranet’s then current applicable rates) to provide Customer support.
  3. Monitoring. Customer acknowledges and agrees that Teranet may employ certain security procedures, monitoring tools and safeguards in relation to the Teranet Discharge Solution, in order to protect the integrity of the same. Customer agrees not to circumvent or attempt to circumvent any such security procedures, monitoring tools and safeguards.
  4. Subcontracting. Teranet may subcontract its obligations under this Agreement to third parties. Notwithstanding the foregoing, Teranet will remain liable to Customer for the performance of the Services in accordance with this Agreement.
  5. Use Restrictions. Customer must not, and must ensure that its users do not:
    1. use the Teranet Discharge Solution or Teranet Data in any manner that violates Applicable Laws or infringes third-party right;
    2. disrupt, damage, or interfere with the Teranet Discharge Solution or its security, including attempts to access it without authorization.
    3. attempt to copy, modify, create derivative works of, reverse engineer, decompile, or disassemble the Teranet Discharge Solution or Teranet Data;
    4. use the Teranet Discharge Solution or the Teranet Data to build or improve a competing product or service;
    5. distribute, sell, lease, rent, lend, transfer, assign, or sublicense any rights granted by this Agreement to any third party, nor grant access to the Teranet Data, Teranet Discharge Solution, or the Teranet Discharge API to any third party;
    6. conduct excessive data uploads, downloads, or other high-volume activity that may degrade the Teranet Discharge Solution’s performance or interfere with third party use of the Teranet Discharge Solution by others;
    7. upload, transmit, or store malicious code, viruses, or other harmful software; and
    8. allow any unauthorized third party to access or use the Teranet Discharge Solution, including through sharing credentials, sublicensing, or other unauthorized means.
  6. Account Security and Responsibility. Customer is responsible and liable for:
  1. maintaining the confidentiality and security of its account credentials, including usernames, passwords, and any access keys. Customer must not share account credentials with any unauthorized third party; and
  2. all activities conducted under its accounts, whether or not such activities are authorized by Customer.
  1. TERANET DATA
  1. Customer agrees to use the Teranet Discharge Solution and Teranet Data solely for the purpose of discharging its obligations with respect to an undertaking made during a real estate transaction in the ordinary course of the Customer's practice with respect to the applicable End Client to which the Teranet Data pertains (“Permitted Purpose”). Customer shall not use Teranet Data for any other purpose, including but not limited to, for the benefit of Customer or any commercial exploitation, data mining, or unauthorized dissemination. Customer must ensure that all use of Teranet Data complies with Applicable Laws, and that appropriate measures are taken to protect the confidentiality and integrity of Teranet Data.
  2. Customer is solely responsible for ensuring that it has obtained all necessary consents required to provide Customer Data to Teranet and to allow Teranet to provide the Services.
  1. API ACCESS
  1. Where Teranet has agreed to provide API access, subject to the terms and conditions herein, Teranet grants to Customer a limited, non-exclusive, revocable, non-transferrable, non-sub-licensable, royalty free, fully paid-up license to use the Teranet Discharge API for the sole purpose of using the application programming interface, as designed, to interface between the Teranet Discharge Solution and either Customer’s software or the applicable Conveyancing Platform Provider to initiate use Teranet Discharge Solution functionality as contemplated by this Agreement.
  2. Customer agrees to comply with any implementation documentation and instructions provided by Teranet with respect to its use of the Teranet Discharge API. Teranet may provide services to facilitate implementation of the Teranet Discharge API, which will be a chargeable Service at Teranet’s then current time and material rates.
  1. CONVEYANCING PLATFORM PROVIDER

Teranet is not responsible for any disruptions in the Teranet Discharge Solution or Services caused by Conveyancing Platform Provider.

  1. BETA/PILOT ACCESS
  1. Beta. Teranet may provide Customer with access to the beta testing phase of the Teranet Discharge Solution release (“Beta”). As part of the Beta, you will be given access to the Teranet Discharge Solution or new Teranet Discharge Solution  functionality in exchange for performing certain tasks within the Teranet Discharge Solution and providing your feedback. Customer acknowledges that the Undertaking Solution made available during the Beta may have limited functionality.
  2. Beta Term. The “Beta Term” commences on the Effective Date and continues until: (i) this Agreement is Terminated; or (ii) the Beta ends (as communicated by Teranet to Customer) and production services begin, in which case the entirety of this Agreement continues in full force and effect, provided that this Section 6 no longer applies to the Customers access to and use of the Teranet Discharge Solution and Services. Teranet agrees to provide at least 10 Business Days’ notice of the end of the Beta. Either party may terminate this Agreement during the Beta Term upon 5 Business Days’ notice. For clarity, failure to terminate this Agreement before the Beta ends is deemed to mean that Customer automatically agrees to the terms of this Agreement on an on-going basis for its access to and use of the Teranet Discharge Solution and Services.
  3. Amendments. Your use of the Teranet Discharge Solution is governed by this Agreement, provided that the following amendments apply during the Beta Term. In the event of a conflict between the language of this Section 6 and rest of this Agreement, the language of this Section 6 shall govern with respect to that conflict:
  1. Section 2(a) and 2(b) of this Agreement do not apply to the Beta and shall be replaced with the following:

Teranet does not guarantee that the Teranet Discharge Solution and Services (and the data and notifications provided therein) will be accurate or error free. Teranet disclaims all liability for the accuracy, timeliness and availability of Teranet Data. Customer must ensure that it takes necessary steps to ensure compliance with its legal obligations under Applicable law.  Customer acknowledges that the Teranet Discharge Solution, Teranet Data and Services may not function as expected or have errors during the Beta

  1. Section 14 of this Agreement does not apply to the Beta and shall be replaced with the following:

Teranet shall not be liable for any damages of any kind. In no event, whether in contract or tort (including negligence), as a result of breach of warranty, strict liability or under any other theory of liability whatsoever, will Teranet be liable for: (i) any direct, indirect, consequential, incidental, exemplary, punitive or special damages; or (ii) for any damages, whether direct, indirect, consequential, incidental, exemplary, punitive or special, characterized as lost revenue, lost savings or lost profits; even if Teranet has been advised of the possibility of such damages in advance.

  1. Feedback. In consideration for participation in the Beta, Customer agrees to provide Teranet with Feedback regarding the Teranet Discharge Solution, including Feedback on user experience feature usability, ease of use,  in addition to any bugs, issues or errors Customer identifies during the Beta. You agree that you will not disclose any information pertaining to the Teranet Discharge Solution or the Beta to any third parties, including, without limitation, disclosing any descriptions of the functionality of the Teranet Discharge Solution or any Feedback related thereto.
  2. Beta Requirements and Compensation.
  1. Teranet is not providing any compensation to Customers for participation in the Beta.
  2. Customer agrees to:
  1. comply with the Beta requirements agreed to by the parties in writing (email being sufficient);  
  2. promptly complete and submit bug reports on an ongoing basis as they are identified;
  3. during the first four weeks, participate in weekly 30 minute interviews regarding their experience so far, after the first four weeks 15 minute interviews will be conducted monthly; and
  4. upon request, participate and cooperate with Teranet during onsite visits.
  1. FEES
  1. Fees. Customer agrees to pay Teranet the  then current fees applicable to the Services as presented to Customer at the time of ordering (the "Fees"). Teranet reserves the right to adjust the Fees at any time.
  2. Payment. Payments will be made online using a credit card at the time of ordering. Teranet reserves the right to update or modify accepted payment methods at its discretion.
  3. Taxes. All fees are exclusive of applicable taxes, levies, or duties. Customer is solely responsible for paying any applicable taxes or other charges imposed by any jurisdiction related to use of the Teranet Discharge Solution, excluding taxes based solely on Teranet's income.
  4. No Refunds. All payments made are non-refundable unless otherwise required by Applicable Law or explicitly agreed upon by the Teranet in writing.
  1. TERM, TERMINATION AND SUSPENSION
  1. Term. This Agreement commences on the date on which the Customer agrees to the terms and conditions of this Agreement and continues until terminated in accordance with this Agreement (the “Term”). Teranet reserves the right to terminate this Agreement and de-activate Customer’s account following 12 months of inactivity on Customer’s Account. For the purposes of this Agreement, inactivity includes accessing the Undertaking Solution, but not ordering any monitoring Services.
  2. Mutual Termination. Either party may terminate this Agreement: (1) immediately upon written notice, if the breaching party does not remedy a material breach within 30 days of receiving notice from the non-breaching party; (2) immediately, if the other party becomes insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy law; or (3) upon 1 business days notice by either party for any reason.  
  3. Teranet Termination. Teranet may terminate this Agreement: (1) upon notice, including as required by Applicable Laws, written or verbal restrictions, directions or recommendations for non-use of the Teranet Discharge Solution issued by a governmental organization (including the Privacy Commissioner of Ontario) or the Law Society of Ontario; or (2) immediately if Customer breaches any of its obligations hereunder with respect to compliance with Applicable Laws, or confidentiality, or infringes any copyright or other intellectual property or proprietary rights in the Teranet Discharge Solution or Services. This Agreement shall commence on the Effective Date.
  4. Effect of Termination.
    1. Termination or expiration of this Agreement does not affect either party’s rights or obligations that existed before termination. For clarity, any notifications associated with monitoring already in effect and paid for by Customer at the time of termination will still be provided in accordance with the terms of this Agreement. No further Services can be ordered by Customer following Termination.  
    2. Upon termination, Customer:
    1. must stop using the Teranet Discharge Solution to order further Services;
    2. must immediately cease use of the Teranet Data; and
    3. immediately permanently delete and destroy all Teranet Data in its possession and control, including purging such data from its computer systems, and securely destroying all hardcopy materials produced using the Teranet Data. Upon request, Customer will provide written certification of its compliance with the obligations set out in this Section.
  5. Suspension. Teranet shall have the right to suspend, without notice, access to the Teranet Discharge Solution and/or Services in the event of: (1) any security issues; (2) any confirmed or suspected use of the Teranet Discharge Solution and/or Services contrary to the terms of this Agreement; and (3) any non-payment of Fees under this Agreement. Suspension shall not relieve Customer from any Fees owing prior to the time that such suspension becomes effective.
  6. Survival. All sections that by their nature should survive termination or expiration of this Agreement will survive, including Sections 1, 2(e), 3, 8 -11, 13-18.
  1. INTELLECUTAL PROPERTY
  1. Teranet IP. As between the parties, Teranet retains all rights (including Intellectual Property Rights), title and interest in and to:
  1. its proprietary information and Intellectual Property owned, created, formed or developed by Teranet prior to, or independent of, entering into this Agreement;
  2. the Teranet Data;
  3. the Teranet Discharge Solution;
  4. the Teranet Discharge Solution specifications (including any Documentation);
  5. Feedback;
  6. the Teranet Discharge Solution and Teranet brand and any associated trade names, trademarks, or logos (whether registered or unregistered); and
  7. any domain names and URLs associated with the Teranet Discharge Solution,

(collectively, the “Teranet IP”) and all enhancements, updates, and modifications to the Teranet IP. Customer hereby assigns, and agrees to assign, all rights, title, and interest in and to any Feedback to Teranet, including all associated intellectual property rights. Teranet may use, modify, and incorporate the Feedback into its products, services, and operations without restriction and without any obligation, attribution, or compensation to Customer.

  1. License to Teranet IP. Subject to the terms of this Agreement, Teranet grants to Customer a non-exclusive, non-transferable, non-sublicensable, license to access and use the Teranet IP solely: (1) as necessary to use the Teranet Discharge Solution and Services; (2) for Customer’s internal business purposes with respect to the applicable End Client; and (3) in compliance with this Agreement.
  2.  Customer IP: As between the parties, Customer owns all Intellectual Property Rights in Customer Data.  Teranet is hereby granted a license to use such Customer Data in order to provide the Teranet Discharge Solution and Services.
  3. Feedback. Customer grants Teranet a perpetual, irrevocable, worldwide, royalty-free, transferable, sublicensable license to use, modify, and incorporate Feedback into Teranet’s products, services, and business operations without any obligation or compensation to Customer.
  4. No Sale or License. This Agreement does not constitute a sale or, except as otherwise expressly set out herein, license of any Intellectual Property Rights whatsoever (nor does it transfer ownership of any Intellectual Property exchanged between the parties). Each party retains full and exclusive title and, except as otherwise expressly provided herein, all rights and interest to their respective Intellectual Property Rights.
  1. SECURITY, CONFIDENTIALITY AND PRIVACY
  1. Confidentiality.
    1. The Receiving Party will maintain Confidential Information in strict confidence and will not disclose or publish any part of the Confidential Information without the other Disclosing Party’s consent.
    2. The Receiving Party will use the Confidential Information solely for the purpose of performing its obligations under this Agreement. However, the Receiving Party may disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Receiving Party gives reasonable prior notice to the Disclosing Party to contest such order or requirement, where legally permissible. Notwithstanding the foregoing and anything to the contrary in this Agreement, each party may retain electronic copies of the other party’s Confidential Information that have been made in the normal course of business, which shall continue to be subject to the obligations of confidentiality set out in this Agreement.
    3. Each party agrees to only disclose the other party’s Confidential Information to such of its employees, agents and consultants as have a need to know for the purposes of this Agreement and are subject to obligations of confidence with respect thereto. For clarity, Teranet may disclose Customer Confidential Information to its subcontractors.
  2. Exceptions. Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no act or omission of the Receiving Party; (iii) is rightfully communicated to the Receiving Party by persons that, to the best of the Receiving Party’s knowledge, are not bound by confidentiality obligations with respect thereto; (iv) is already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto; (v) is independently developed by the Receiving Party without use of any Confidential Information; or (vi) is approved for release or disclosure by the Disclosing Party in writing without restriction.
  3. Security.
    1. Teranet will use industry standard security measures designed to protect the Teranet Discharge Solution and the Customer Data from unauthorized access and disclosure.
    2. Customer shall take all reasonable precautions to prevent any Teranet Confidential Information (including Teranet Data) from being used, accessed or acquired by any unauthorized person or persons.
  4. Privacy. Teranet will process Personal Information in accordance with its Privacy Policy, which is available https://www.teranet.ca/privacy/. By using the Undertaking Solution, Customer acknowledges and agrees that the Personal Information it loads into the system will be handled as described in the Privacy Policy.
  1. PROVINCE OF ONTARIO

This Section 11 applies notwithstanding anything to the contrary in this Agreement:

  1. Customer acknowledges that some or all of the Services may be based on information obtained from the public and collected by the Province of Ontario. Customer agrees to comply with all Applicable Laws, including without limitation any privacy and access to information laws, relating to the use of Services.
  2. At all times the Customer shall abide by any and all directions by Teranet to Customer with respect to the collection, use, dissemination and sale of information about and obtained from the public.
  3. The confidentiality of any material or information provided to Customer under this Agreement, including Teranet Confidential Information may be subject to the provisions of applicable protection of privacy and access to information legislation. For the purposes of such Applicable Law, Teranet and Customer agree that disclosure of the Teranet Data or any Confidential Information concerning Teranet or the Services could reasonably be expected to significantly prejudice the competitive position of Teranet in the marketplace or interfere significantly with other contractual negotiations of Teranet.
  4. In the event that a request for all or part of any material or information provided to Customer, or the Services is made to Customer pursuant to Applicable Law, Customer shall provide notice of such a request to Teranet within 3 Business Days of the request being made, and shall co-operate with Teranet in handling such a request.
  5. Customer is fully responsible and liable for gathering all necessary consents with respect to Customer Data, including Personal Information, it provides through the Services. Teranet may disclose Personal Information of the Customer or any End Client to the Province of Ontario, its ministries or agencies, for the purposes of Ministry or agency use, and to the Province of Ontario, its ministries or agencies and to any law enforcement authority or regulator having jurisdiction, or the Law Society of Ontario, in connection with any investigation by any of them relating to use by the Customer or any End Clients of the Teranet Discharge Solution or Services.
  6. Customer acknowledges the Province of Ontario makes no warranties, express or implied, with respect to the Services (including the Teranet Discharge Solution), and the Teranet Data, which are provided on an "as is" and "as available" basis, without any warranties, representations or conditions, express or implied including warranties, representations or conditions of merchantable quality, fitness for a particular purpose or non-infringement of third party rights, or those arising by law or by usage of trade or course of dealing. Customer further acknowledges that the Province of Ontario and its agents, employees and representatives shall not have any liability to Customer or any other person or entity for any loss of revenue, profit or savings, lost or damaged data, or other commercial or economic loss, or any indirect, incidental, special or consequential damages whatsoever, even if the Province of Ontario has been advised of the possibility of such damages, or for claims of any nature by a third party against the Province of Ontario. Notwithstanding anything else in this Agreement, the Province's maximum aggregate liability to the Customer or any other party for any cause whatsoever related to this Agreement and the Services shall not exceed 1$ CDN. This section shall apply whether or not liability results from a breach of a term or condition or a fundamental breach of this Agreement. This section shall survive the termination or expiry of this Agreement.
  7. Customer shall indemnify, defend and save harmless HIs Majesty the Province of Ontario against any claims that arise due to the use of the Services by Customer, or from any breach of the Customer's obligations hereunder, and Customer shall pay the resulting costs, damages, reasonable legal fees, penalties and expenses of any kind whatsoever finally awarded.
  8. Customer shall maintain complete and accurate records relating to this Agreement and in particular relating to the use of the Services. Such records shall be open for inspection or audit by. Teranet or its suppliers, or their agents and representatives, at the expense of Teranet, during normal business hours upon reasonable prior written notice and Customer shall maintain all such records for a period of at least five (5) years after the termination or expiration of this Agreement. Teranet shall have the right to require Customer to take such actions as Teranet requires, both remedial and prospective, to ensure Customer's compliance with its obligations pursuant to Sections 10 and 11. Teranet shall have the right to make copies of such records at its own expense. Teranet shall bear the cost of the audit unless the audit determines that accurate records have not been maintained by Customer in which case Customer shall bear the cost of the audit.
  1. WARRANTIES
  1. Mutual Warranties. Each party represents and warrants that it:
    1. is a corporation duly organized, validly existing, and in good standing under the laws of its jurisdiction, with the authority to operate its business and perform its obligations under this Agreement;
    2. has obtained all necessary corporate approvals to enter into and perform its obligations under this Agreement.
    3. will comply with all Applicable Laws related to its obligations under this Agreement, including all applicable privacy laws.
  2. Province of Ontario Disclaimer. The Customer acknowledges that the Province of Ontario makes no warranties, express or implied, with respect to Teranet IP. The Customer further acknowledge that the Province of Ontario shall not be liable in any manner to the Customer, End Client or any other person or entity for any loss of revenue or profit or savings, lost or damaged data, or other commercial or economic loss or any direct or indirect or incidental, special or consequential damages whatsoever even if the Province of Ontario has been advised of the possibility of such damages, or for claims of any nature by a third party. This Section 12 (b) shall apply whether or not the liability results from a breach of a fundamental term or condition or a fundamental breach. It is acknowledged that Teranet accesses records filed with the Province of Ontario and this Section 12 (b) is included for the benefit of and can be relied on by the Province of Ontario.
  1. DISCLAIMER

EXCEPT AS EXPRESSLY STATED ELSEWHERE IN THIS AGREEMENT, THE UNDERTAKINGS SOLUTION, TERANET DATA, SERVICES, DELIVERABLES AND PRODUCTS ARE PROVIDED “AS IS” AND TERANET MAKES, AND THERE ARE, NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, UNDER THIS AGREEMENT, REGARDING ANY MATTER, INCLUDING NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ACCURACY, AVAILABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. ANY CERTIFICATE OF DISCHARGE PROVIDED IS A SUMMARY OF A REGISTRATION THAT HAS BEEN COMPLETED IN THE ELECTRONIC LAND REGISTRY SYSTEM OF ONTARIO (“ELRS”) AND IS NOT AN OFFICIAL GOVERNMENT OR LAND REGISTRY DOCUMENT. IF YOU REQUIRE AN OFFICIAL RECORD OR WISH TO CONFIRM THE OFFICIAL CURRENT STATE OF ALL INTERESTS IN LAND, YOU MUST OBTAIN THE APPLICBLE DOCUMENTS DIRECTLY FROM THE ELRS.

  1. LIMITATION OF LIABILITY
  1. Indirect Damages Exclusion. In no event, whether in contract or tort (including negligence), as a result of breach of warranty, strict liability, indemnity or under any other theory of liability whatsoever, will either party be liable to the other under this Agreement for: (i) any indirect, consequential, incidental, exemplary, punitive or special damages; or (ii) for any damages, whether direct, indirect, consequential, incidental, exemplary, punitive or special, characterized as lost revenue, lost savings or lost profits; even if such party has been advised of the possibility of such damages in advance.
  2. Direct Damages. Teranet’s aggregate liability under this Agreement, whether in contract or tort (including negligence), as a result of breach of warranty, strict liability, indemnity, or under any other theory of liability whatsoever, will be limited to direct damages in an amount not exceeding the total Fees paid to Teranet under this Agreement in the six (6) months immediately preceding the month in which the most recent event giving rise to liability occurred.
  1. INDEMNIFICATION
  1. The Customer shall indemnify and hold the Teranet Group harmless for any costs, damages, losses or expenses that the Teranet Group may incur, suffer or become liable for as a result of or in connection with any claim asserted against the Teranet Group arising from Customer’s breach of Sections 2(e), 3 and 11.  
  2. Teranet shall, defend the Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties alleging Teranet Discharge Solution, used By Customer in accordance with this Agreement, infringes third party Intellectual Property Rights (collectively “Claims”) and shall hold Customer harmless from and against damages and costs finally awarded or entered into in settlement (collectively, “Losses”) to the extent based upon such a Claim. Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of Teranet IP, Teranet Discharge Solution or Services in violation of this Agreement or Applicable Law; (b) use of the Teranet IP after Teranet notifies the Customer to discontinue use because of an infringement claim, or (c) use of the Teranet IP in combination with any software, application or service made or provided other than by Teranet, if infringement would not have happened except for such combination.
  3. If an infringement, violation or misappropriation of any third party Intellectual Property Rights in relation to the Teranet IP is perceived, threatened or pending, Teranet may, at its entire expense and sole option: (i) procure for the Customer the right to continue any such activity giving rise to the infringement, violation or misappropriation; or (ii) replace or modify the affected elements of the Teranet IP with other elements that will not be so enjoined or constitute an actionable infringement, violation or misappropriation, provided that the replaced elements are of equivalent functionality and performance to those contracted for; or (iii) if neither (i) nor (ii) are reasonably possible, terminate this Agreement and provide the Customer with a pro-rated refund of any prepaid and un-used Fees for the terminated portion of the Term. The foregoing shall be the Customer’s sole remedy and Teranet’s sole obligation in relation to any third party claim of Intellectual Property Rights infringement.
  4. If a party seeks indemnification in accordance with this Agreement, it must promptly notify the other party in writing. The indemnifying party will control the defense and settlement, but the indemnified party may participate with its own counsel at its expense. The indemnifying party may not settle without the indemnified party’s consent if the settlement imposes obligations on the indemnified party.
  1. GOVERNING LAW AND DISPUTES
  1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario.
  2. Arbitration. Any controversy which shall arise between the parties to this Agreement concerning its construction or application, or the rights, duties or obligations of any party hereto, which cannot be resolved amicably, shall be resolved by arbitration in accordance with the provisions of the Arbitration Act, 1991 (Ontario); provided that nothing in this Agreement shall prohibit a party from seeking injunctive relief as and where it deems appropriate. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration; provided, however, that this confidentiality provision shall not prevent a petition to vacate or enforce an arbitral award, and shall not bar disclosures strictly required by law. Before making any such disclosure, a party shall give written notice to the other party and shall afford such party a reasonable opportunity to protect its interests. The arbitral award shall be final and binding, provided however that a party may petition a court of competent jurisdiction to vacate the arbitrator’s award or decision on the grounds of the arbitrator’s failure to abide by the provisions of this Agreement. Judgment on the award or any other final or interim decision rendered by the arbitrator may be entered, registered or filed for enforcement in any court having jurisdiction thereof.
  1. NOTICES
  1. Any notice to be given under this Agreement shall be in writing and delivered by hand, courier, registered mail, facsimile or email to the following addresses. Any notice delivered by hand or courier shall be deemed to be received on the Business Day of delivery. Any notice delivered by email shall be deemed to be received on the Business Day following transmittal.; provided that a bounceback notification of non-delivery is not received. Any notice delivered by registered mail shall be deemed to be received on the 5th Business Day following mailing. Either party may change its address for notice by providing notice to the other party. Any deliveries to give effect to this Agreement shall be delivered to the following addresses:

In the case of Teranet: 123 Front Street West, Suite 700, Toronto, Ontario M9A 2J5.

In the case of Customer: to the address listed on its account.  

  1. GENERAL PROVISIONS
  1. Assignment. The Customer may not assign this Agreement or its rights or obligations, or portions thereof hereunder, without the prior written consent of Teranet.
  2. Currency. All dollars amounts referred to in this Agreement or required to be paid under this Agreement are in the lawful money of Canada.
  3. Entire Agreement. This Agreement contains the entire agreement of the parties, and there are no representations, inducements, promises, agreements, arrangements or undertakings, oral or written, between the parties with respect to the subject matter hereof other than those set forth herein and duly executed in writing.
  4. Enurement. Except as provided herein, this Agreement shall be binding upon and enure to the benefit of the respective successors, heirs, administrators, trustees, attorneys, and permitted assigns of the parties.
  5. Force Majeure. No failure or omission in the performance of any obligation hereunder, except for the obligation to pay any monies required to be paid hereunder, will be deemed to be a breach of this Agreement or create any liability for damages if such failure shall be due to any pandemic, epidemic, labour disputes, strikes, lock-outs, civil commotion, invasion, rebellion, hostilities, sabotage, government, regulation or controls or acts of God, fire, unusual delay by common carriers, or unavoidable casualties or without limit to any of the foregoing by a cause beyond the reasonable control of such party, including without limitation, statutory or regulatory changes.
  6. Headings. The headings in this Agreement are inserted solely for convenience of reference, do not form a part of this Agreement and are not to be used as an aid in interpreting this Agreement.
  7. Independent Contractor. The parties acknowledge and agree that they are independent contractors and nothing contained in this Agreement shall be construed as constituting a partnership, joint venture or agency between the parties.
  8. Severability. Where possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid pursuant to Applicable Laws, and if any provision of this Agreement would be prohibited by or invalid pursuant to such Applicable Laws, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.
  9. Waiver.  A waiver of any provision of this Agreement shall only be valid if provided in writing and shall only be applicable to the specific incident and occurrence so waived. The failure by a party to insist upon the strict performance of this Agreement, or to exercise any term hereof, shall not act as a waiver of any right, promise or term, which shall continue in full force and effect.

V. April 24, 2025