Terms of Service for Tenants
Last updated on August 1, 2022.
Please read these Terms of Service (“Terms” or this “Agreement”) carefully as they contain important information about your legal rights, remedies and obligations.
These Terms constitute a legally binding agreement between you and the applicable PlaceHolder entity in Schedule A (“DataCo”) governing the use of the DataCo website, including any subdomains thereof, and any other websites through which DataCo makes its services available, mobile, tablet and other smart device applications, and application interfaces and all associated services (the “DataCo Platform”) and the platform operated by DataCo that enables Landlords to publish Listings (as such terms are defined below) and to communicate and transact directly with Tenants (as defined below) that are seeking to submit an Offer (as defined below) on a Listing and to enter into a Rental Agreement over a Premises (as such terms are defined below) (“DataCo Service”).
Please contact DataCo with any questions at firstname.lastname@example.org.
1. Scope of DataCo Service
1.1 The DataCo Service is an online platform that enables registered users (“Members”) to publish listings for spaces (“Listings”, and Members who publish Listings are “Landlords”) on the DataCo Platform and to communicate and transact directly with Members that are seeking to lease the area described in such Listings (“Tenants”). Tenants may use the DataCo Service to submit offers (“Offers”) to a Landlord to rent the area described in a Listing (a “Premises”) and Landlords may accept such Offers.
1.2 As the provider of the DataCo Service, DataCo does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Listings. The Landlord alone is responsible for its Listings. When a Landlord accepts an Offer through the DataCo Service, the Tenant and the Landlord are each agreeing to enter into a separate written agreement (a “Rental Agreement”) directly with each other, to which DataCo is not a party. DataCo is not and does not become a party to or other participant in any contractual relationship between Members.
1.3 DataCo has no control over and does not guarantee, represent or warrant any of: (i) the existence, quality, safety, suitability, or legality of any Listings, (ii) the truth or accuracy of any Listing descriptions, or (iii) the performance or conduct of any Member or third party. DataCo does not endorse any Member or Listing. Any references to a Member being “verified” (or similar language) only indicate that the Member has completed a verification or identification process with DataCo and nothing else. Any such description is not an endorsement, certification or guarantee by DataCo about any Member, including the Member’s identity or background or whether the Member is trustworthy, safe or suitable. Tenants should always exercise due diligence and care when deciding whether to enter into a Rental Agreement with a Landlord through the DataCo Service, or communicate and interact with other Members, whether online or in person. Images in a Listing are intended only to indicate a photographic representation of a Premises at the time the photograph was taken and do not represent an endorsement by DataCo respecting any Landlord or Listing.
1.4 A Tenant’s relationship with DataCo is limited to being an independent, third‑party contractor, and not an employee, agent, joint venturer or partner of DataCo for any reason, and a Tenant acts exclusively on its own behalf and for its own benefit, and not on behalf, or for the benefit, of DataCo. DataCo does not, and shall not be deemed to, direct or control a Tenant generally or in its performance under this Agreement.
1.6 In order to use the DataCo Service, Members must have a computer with Internet access that can access the DataCo Platform or a compatible mobile device enabled with any mobile application DataCo may provide.
2. Authority, Using the DataCo Service, Member Verification
2.1 The Tenant represents and warrants that: (i) it is entering into this Agreement on behalf of a corporation and not as an individual; (ii) it has all requisite power, authority, capacity, rights, and licenses to enter into and perform this Agreement and to carry out the transactions contemplated herein; (iii) this Agreement constitutes legal, valid, and binding obligations, enforceable against it in accordance with its terms; (iv) the execution, delivery, and performance of this Agreement shall not result in a breach or violation of, or constitute a default under, any material agreement, lease, or instrument to which the Member is a party or by which its properties may be bound or affected; (v) no suit, action, arbitration, or other legal or administrative proceeding is pending, or to its knowledge has been threatened, against the Member that would affect the validity or enforceability of this Agreement.
2.2 DataCo may make access to and use of the DataCo Service, or certain features of the DataCo Service, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, the Tenant’s cancellation history or the Tenant’s history of making Offers.
2.4 The Tenant represents and warrants to DataCo that, in respect of any personal information that Tenant provides to DataCo in connection with this Agreement, the Tenant will obtain all consents and will have provided all notices to all relevant individuals as required under applicable privacy laws.
2.5 The use of the DataCo Service may be subject to separate policies, standards or guidelines, or may require that the Tenant accepts additional terms and conditions. If there is a conflict between this Agreement and terms and conditions applicable to a specific feature of the DataCo Service, the latter terms and conditions will, unless specified otherwise, have priority with respect to the Tenant’s use of that feature.
3. Modification of DataCo Service; Modification of these Terms
3.1 DataCo may change the DataCo Service at any time. DataCo may alter, suspend or discontinue the DataCo Service in whole or in part, at any time and for any reason, without notice. The DataCo Service may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons.
3.2 DataCo reserves the right to modify these Terms at any time in accordance with this provision. If DataCo makes changes to these Terms that DataCo, in its sole discretion, considers material, the revised Terms will be emailed to the Tenant. DataCo will also provide Tenants with notice of material modifications by email at least thirty (30) days before the date the revised Terms become effective. If a Tenant disagrees with the revised Terms, it may terminate this Agreement with immediate effect. DataCo will inform the Tenants about their right to terminate the Agreement in the notification email. If a Tenant does not terminate this Agreement before the date the revised Terms become effective, its continued access to or use of the DataCo Service will constitute acceptance of the revised Terms.
4. Account Registration; Electronic Communications
4.1 Tenants must register an account (“DataCo Account”) to access and use certain features of the DataCo Service, such as making an Offer or entering into a Rental Agreement.
4.2 A Tenant can register a DataCo Account by completing the DataCo Account registration form found on the DataCo website or otherwise provided by DataCo. The Tenant must provide accurate, current and complete information during the registration process and keep its DataCo Account information up‑to‑date at all times by immediately notifying DataCo of any changes.
4.3 The Tenant may not register more than one (1) DataCo Account unless DataCo authorizes it to do so. The Tenant may not assign or otherwise transfer its DataCo Account to any other party.
4.4 Any username, password, or any other piece of information chosen by the Tenant, or provided by the Tenant as part of our security procedures (“Login Credentials”), must be treated as confidential, and the Tenant must not disclose it to any other person or entity. The Tenant is responsible for protecting its Login Credentials from unauthorized use, and the Tenant is responsible for all activity that occurs on its DataCo Account (including, without limitation, financial obligations). The Tenant shall notify DataCo immediately if its believe that its Login Credentials have been or may be used without its permission so that appropriate action can be taken. DataCo is not responsible for losses or damage caused by a Tenant’s failure to safeguard its Login Credentials.
4.5 You hereby agree: (i) to receive communications, including emails, push notifications, mail and telephone calls, that are related to the DataCo Service; (ii) that any communications from DataCo may also include marketing materials from DataCo or from third parties; and (iii) that any notices, agreements, disclosures or other communications that DataCo sends to you electronically are deemed to satisfy any legal communication requirements. You may opt out from receiving our communications by contacting DataCo at email@example.com. or selecting to unsubscribe as may be provided in the applicable correspondence
5. Listings and Content
5.1 The Landlord is solely responsible for setting the rent (including any taxes if applicable) in respect of its Listing.
5.2 When a Landlord accepts an Offer, the Tenant and Landlord acknowledge that they are entering into an agreement with one another, to which DataCo is not a party. The Tenant agrees that upon acceptance of an Offer by a Rental Agreement, the Tenant will enter into a Rental Agreement with the Landlord to govern the Members’ obligations with respect to the Rental Agreement.
5.4 You are solely responsible for all Member Content that you make available on or through the DataCo Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available on or through the DataCo Platform or you have all rights, licenses, consents and releases that are necessary to grant to DataCo the rights in and to such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or DataCo’s use of the Member Content (or any portion thereof) as contemplated under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5.5 DataCo may, without prior notice, remove or disable access to any Member Content that DataCo finds to be in violation of applicable law, these Terms, or otherwise may be harmful or objectionable to DataCo, Members, third parties, or property.
5.6 Notwithstanding anything else in the Agreement or otherwise, DataCo may monitor your use of the DataCo Service and the DataCo Platform and use data and information related to Member Content and your use of the DataCo Service in an aggregate or de-identified manner, including without limitation to compile statistical and performance information related to the provision and operation of the DataCo Service and the DataCo Platform and to test or improve operation of the DataCo Service and DataCo Platform. You agree that DataCo may make such data and information publicly available, and use such information for any purpose, including without limitation as required by applicable law or regulation and/or for purposes of data gathering, analysis, service enhancement, improvements to the DataCo Services or DataCo Platform and marketing, provided that such data and information does not identify you or your confidential information. DataCo retains all intellectual property rights in such data and information.
5.7 We welcome your feedback, ideas and suggestions (collectively, “Suggestions”). It is important to be aware of the following restrictions with regards to your Suggestions. If you send us any Suggestions, you agree that: (i) your Suggestion(s) become our property and you are not owed any compensation in exchange; (ii) none of the Suggestion(s) contain confidential or proprietary information of any third party; (iii) we may use or redistribute Suggestion(s) for any purpose and in any way; (iv) there is no obligation for us to review your Suggestion(s); and (v) we have no obligation to keep any Suggestions confidential.
5.8 Nothing contained on the DataCo Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the DataCo Service, the DataCo Platform or any Member Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with our prior written permission or the permission of the third party that may own the trademark or copyright of material displayed thereon.
5.9 If you believe that any materials the DataCo Service infringe your copyright, you may request that such materials be removed by emailing firstname.lastname@example.org. This request must bear a signature (or electronic equivalent) of the copyright holder or an agent and must include the following: (i) identification of the copyrighted work that you believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work; (ii) identification of the material that you believe to be infringing, including a description of the material, and its location on the DataCo Platform; (iii) your name, address, telephone number and email address; (iv) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent or the law; (v) a statement that the information in your claim is accurate; and (vi) a statement that “under penalty of perjury,” you declare that you are the lawful copyright owner or are authorized to act on the owner’s behalf. To protect the rights of copyright owners, we reserve the right to suspend your DataCo Account and/or other any user privileges, delete or disable content alleged to be infringing and/or terminate the DataCo Account and/or other user privileges of a repeat infringer.
6. Ratings and Reviews
6.1 Within a certain timeframe after entering into a Rental Agreement, Tenants and Landlords may be able to leave a public review (“Review”) and submit a star rating (“Rating”) about each other. Ratings or Reviews reflect the opinions of individual Members and do not reflect the opinion of DataCo. Ratings and Reviews are not verified by DataCo for accuracy and may be incorrect or misleading.
6.2 Ratings and Reviews by Tenants and Landlords must be accurate and may not contain any offensive or defamatory language.
6.3 Members are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review about another Member.
6.4 Ratings and Reviews are part of a Member’s public profile and may also be surfaced elsewhere on the DataCo Platform together with other relevant information such as number of Rental Agreements and average response time and other information.
7. Rental Agreements
7.1 Subject to meeting any additional requirements (such as completing any verification processes) set by DataCo or the Landlord, a Tenant can submit an Offer to a Landlord.
7.2 All applicable fees, including the rent, the fee charged to a Tenant to prepare the Premises for the Rental Agreement (“Setup Fee”), the cash deposit held by the Landlord and/or a third party for the duration of the Rental Agreement (“Security Deposit”), any other fees ("Extra Fees"), and any applicable taxes will be presented to the Tenant prior to the Tenant making an Offer.
7.3 Upon the date that an Offer is accepted by the Landlord, a legally binding agreement is formed between the Tenant and the Landlord, subject to the Rental Agreement entered into between the Tenant and the Landlord, and to any additional terms and conditions of the Landlord that apply, including any rules and restrictions specified in the Listing.
7.4 The Rental Agreement entered into between the Tenant and the Landlord must require (i) the Tenant to comply with these Terms and (ii) the Tenant and the Landlord to use Placeholder Payments Canada Inc. in Canada or Placeholder Payments Inc. in the United States, as applicable, to process all payments under the Rental Agreement.
7.5 A Landlord and a Tenant who have entered into a Rental Agreement are responsible for any modifications made to the Rental Agreement.
7.6 In certain circumstances, DataCo may decide, in its sole discretion, that it is necessary to cancel an Offer.
8. Insurance and Indemnities
8.1 The Landlord is responsible for obtaining appropriate insurance for its Premises and it is the Landlord’s sole liability to determine the sufficiency of its insurance, including whether or not its insurance policy will cover the actions or inactions of the Tenant or its employees, agents, guests, invitees, contractors or subcontractors (“Users”) while using the Premises.
8.2 The Tenant is solely responsible for arranging insurance for its personal property against any and all risks and for its liability to and for its Users and it is the Tenant’s sole liability to determine the sufficiency of its insurance. The Tenant has the risk of damage, loss, theft or misappropriation with respect to any of its personal property and liability to and for its Users.
8.3 The Tenant agrees to waive any right of recovery against DataCo and its directors, officers, and employees for any damage, loss, theft or misappropriation of the property under the Tenant’s control and any and all liability to and for its Users, including for injuries to the Tenant or its Users in or about the Premises. The Tenant agrees to indemnify and hold harmless DataCo from and against any and all claims arising from the Tenant’s use of the Premises or from the Landlord’s or Tenant’s failure to keep the Premises in good condition and repair. All property in the Premises is understood to be under the Landlord’s control.
9. Prohibited Activities
9.1 The Tenant is solely responsible for compliance with any and all applicable laws, rules, and regulations that may apply to the Tenant’s use of the DataCo Service. In connection with the Tenant’s use of the DataCo Service, the Tenant will not and will not assist or enable others to:
(i) violate or infringe anyone else’s rights or otherwise cause harm to anyone, including breaching or circumventing any applicable laws or regulations, agreements with third‑parties, third‑party rights, DataCo’s Terms of Service or the DataCo Policies;
(ii) use the DataCo Service for any commercial or other purposes that are not expressly permitted by this Agreement or in a manner that falsely implies DataCo endorsement, partnership or otherwise misleads others as to the Tenant’s affiliation with DataCo;
(iv) use the DataCo Service in connection with the distribution of unsolicited commercial messages;
(v) unless DataCo explicitly permits otherwise, submit an Offer if the Tenant will not actually be using the Premises;
(vi) contact another Member for any purpose other than asking a question related to a Listing, a Rental Agreement or the Member’s use of the DataCo Service, including, but not limited to, recruiting or otherwise soliciting any Member to join third‑party services, applications or websites, without prior written approval from DataCo;
(vii) use the DataCo Service to enter into a Rental Agreement independent of the DataCo Service to circumvent any fees or for any other reason;
(viii) request, accept or make any payment for rent, Setup Fees, Security Deposits, or Extra Fees outside of the payment processor to which DataCo directs Members. If the Tenant does so, it acknowledges and agrees that it: (i) is in breach of this Agreement; (ii) accepts all risks and responsibilities for such payment, and (iii) holds DataCo harmless from any liability for such payment;
(ix) discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or any other group that is protected by applicable law, or otherwise engage in any violent, harmful, abusive or disruptive behaviour;
(x) use, display, mirror or frame DataCo’s name, any DataCo trademark, logo or other proprietary information without DataCo’s express written consent;
(xi) dilute, tarnish or otherwise harm the DataCo brand in any way, including registering or using DataCo or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to DataCo domains, trademarks, taglines, or promotional campaigns;
(xii) avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by DataCo or any of DataCo’s providers or any other third party to protect the DataCo Service; or
(xiii) take any action that damages or adversely affects or could damage or adversely affect the performance or proper functioning of the DataCo Service.
9.2 The Tenant acknowledges that DataCo has no obligation to monitor the access or use of the DataCo Service by any Member, but has the right to do so for (i) operating, securing and improving the DataCo Service (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensuring Members’ compliance with this Agreement; (iii) complying with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; or (iv) any other purpose set forth in this Agreement. The Tenant agrees to cooperate with and assist DataCo in good faith, and to provide DataCo with such information and take such actions as may be reasonably requested by DataCo with respect to any investigation undertaken by DataCo or a representative of DataCo regarding the use or abuse of the DataCo Service.
9.3 If the Tenant believes that any other Member it interacts with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behaviour, (ii) the Tenant suspects of stealing from it, or (iii) engages in any other disturbing conduct, the Tenant shall immediately report such person to the appropriate authorities and then to DataCo and include the police station and report number, if available. The Tenant agrees that any report it makes will not obligate DataCo to take any action beyond that required by law, if any.
10. Term and Termination, Suspension and Other Measures
10.1 This Agreement will continue unless and until it is terminated in accordance with this Agreement.
10.2 The Tenant may terminate this Agreement at any time by sending DataCo an email at email@example.com or by following the instructions on the DataCo Platform for closing its DataCo Account.
10.3 DataCo may terminate this Agreement at any time for any reason or no reason, by giving the Tenant thirty (30) days’ notice via email to the Tenant’s registered email address.
10.4 DataCo may immediately, upon notice to Tenant, terminate this Agreement or stop providing access to the DataCo Service if (i) the Tenant has materially breached its obligations under this Agreement or any of the DataCo Policies used by DataCo in conjunction with this Agreement, (ii) the Tenant has violated applicable laws, regulations or third party rights, or (iii) DataCo believes in good faith that such action is reasonably necessary to protect the personal safety or property of DataCo, its Members, or third parties (for example, in the case of fraudulent behaviour of a Member).
10.5 If the Tenant (i) fails to comply with any applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, (ii) breaches this Agreement, DataCo Policies, applicable laws, regulations, or third party rights, (iii) provides inaccurate, fraudulent, outdated or incomplete information during the DataCo Account registration, Listing process or thereafter, (iv) DataCo becomes aware of or has received complaints about the Tenant’s performance or conduct, (v) the Tenant has repeatedly revoked Offers without a valid reason, or (vi) DataCo believes in good faith that such action is reasonably necessary to protect the personal safety or property of DataCo, its Members, or third parties, or to prevent fraud or other illegal activity, DataCo may take any of the following measures:
(i) cancel any Offers;
(ii) limit the Tenant’s access to or use of the DataCo Service;
(iii) temporarily or, in case of severe or repeated offenses, permanently suspend the Tenant’s DataCo Account and stop providing access to the DataCo Service.
In case of non‑material breaches and where appropriate, the Tenant will be given notice of any intended measure by DataCo and an opportunity to resolve the issue to DataCo’s reasonable satisfaction.
10.6 If the Tenant’s access to or use of the DataCo Service has been limited, its DataCo Account has been suspended, or this Agreement has been terminated by DataCo, the Tenant may not register a new DataCo Account or access and use the DataCo Service through the DataCo Account of another Member.
11.1 If the Tenant chooses to use the DataCo Service, it does so voluntarily and at its sole risk. THE DATACO SERVICE IS PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, WE DO NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE THROUGH THE DATACO SERVICE IS FREE OF ERRORS; (ii) THE FUNCTIONS OR SERVICES (INCLUDING WITHOUT LIMITATION MECHANISMS FOR THE DOWNLOADING AND TRANSMITTING CONTENT) PROVIDED BY THE DATACO SERVICE WILL BE UNINTERRUPTED, SECURE OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THAT OUR SERVERS OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11.2 The Tenant agrees that it has had whatever opportunity it deems necessary to seek independent legal advice, to investigate the DataCo Service, laws, rules, or regulations that may be applicable to a Listing or a Rental Agreement and that it is not relying upon any statement whatsoever of law or fact made by DataCo relating to a Listing or a Rental Agreement.
11.3 If DataCo chooses to conduct identity verification or background checks on any Member, to the extent permitted by applicable law, DataCo disclaims warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee that a Member will not engage in misconduct in the future.
11.4 The Tenant agrees that Rental Agreements may carry inherent risk, and by entering into Rental Agreements, it voluntarily, freely and willfully assumes those risks, including risk of illness, bodily injury, disability, or death. The Tenant assumes full responsibility for the choices it makes before, during and after its entering into a Rental Agreement.
11.5 The foregoing disclaimers apply to the maximum extent permitted by law. The Tenant may have other statutory rights, however, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
12.1 The Tenant acknowledges and agrees that, to the maximum extent permitted by law, the entire risk arising out of its access to and use of the DataCo Service, its Offers via the DataCo Service, any Rental Agreement, or any other interaction it has with other Members whether in person or online remains with the Tenant. NEITHER DATACO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE DATACO SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH (I) THIS AGREEMENT, (II) THE USE OF OR INABILITY TO USE THE DATACO SERVICE, (III) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER MEMBERS OR OTHER PERSONS WITH WHOM THE TENANT COMMUNICATES, INTERACTS OR MEETS WITH AS A RESULT OF ITS USE OF THE DATACO SERVICE, OR (IV) THE TENANT’S OFFERS OR RENTAL AGREEMENTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DATACO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12.2 IN NO EVENT WILL DATACO’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TENANT’S USE OF THE DATACO SERVICE INCLUDING, BUT NOT LIMITED TO, FROM THE MEMBER’S PUBLISHING OF ANY LISTINGS VIA THE DATACO SERVICE, FROM THE MEMBER’S OFFERS VIA THE DATACO SERVICE, OR FROM THE USE OF OR INABILITY TO USE THE DATACO SERVICE AND IN CONNECTION WITH ANY RENTAL AGREEMENT OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE GREATER OF AMOUNTS THE TENANT HAS PAID OR OWES FOR RENTAL AGREEMENTS VIA THE DATACO SERVICE AS A TENANT IN THE THREE (3) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE THOUSAND CANADIAN DOLLARS ($1,000), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DATACO AND THE TENANT.
12.3 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU BUT SHALL INSTEAD APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13.1 The Tenant agrees to release, defend (at DataCo’s option), indemnify, and hold DataCo and its affiliates and subsidiaries, including but not limited to, its officers, directors, employees and agents, harmless from and against any and all claims, liabilities, damages, losses, and expenses, including, without limitation, legal fees on a solicitor and client basis, and accounting fees, arising out of or in any way connected with (i) the Tenant’s breach of this Agreement or DataCo Policies, (ii) the Tenant’s use of the DataCo Service, (iii) the Tenant’s interaction with any other Member or use of a Premises, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, stay, participation or use, (iv) a Rental Agreement, or (v) the Tenant’s breach of any laws, regulations or third party rights.
14. Extraordinary Events
14.1 DataCo will not be liable for, and will not be considered in default or breach of this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond DataCo’s reasonable control, including without limitation any delays or loss of availability of a Premises or a Rental Agreement.
15. Dispute Resolution and Arbitration
15.1 Overview of Dispute Resolution Process. This Agreement provides for a two‑part dispute resolution process for Tenants: (i) an informal negotiation directly with DataCo, and (ii) confidential arbitration before a single arbitrator. If you are located in Canada, the arbitration will be conducted in accordance with the Arbitration Rules of the ADR Institute of Canada, Inc. and the seat and location of the arbitration will be in Ontario, Canada. If you are located in the United States, the arbitration will be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association and the seat and location of the arbitration will be in the State of New Jersey. All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. The language of the arbitration will be English unless otherwise required by applicable law or agreed to by the Member and DataCo.
15.2 Pre‑Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, the Tenant and DataCo each agree to notify the other party of the dispute or controversy between a Tenant and DataCo, including any dispute or controversy arising out of or relating to this Agreement or the DataCo Service, any DataCo Policies, any interactions or transactions between a Tenant and DataCo, or in respect of any legal relationship associated with or derived from this Agreement, including the validity, existence, breach, termination, construction, application or enforceability, or the rights, duties or obligations of a Tenant or DataCo (“Dispute”) and attempt to negotiate an informal resolution to it first. If after a good faith effort to negotiate one party feels the Dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration.
15.3 Agreement to Arbitrate. The Tenant and DataCo mutually agree that Disputes will be settled by binding individual arbitration. If there is a dispute about whether this agreement to arbitrate can be enforced or applies to the Dispute, the Tenant and DataCo agree that the arbitrator will decide that issue.
15.4 Exceptions to Agreement to Arbitrate. The Tenant and DataCo each agree that the following claims are exceptions to the agreement to arbitrate and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, or cyber‑attack); and (iii) small claims actions brought in the state court in which Tenant or DataCo is located if such court has a small claims procedure and if such court is located in the United States.
15.5 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
15.6 Jury Trial Waiver. THE TENANT AND DATACO ACKNOWLEDGE AND AGREE THAT EACH ARE WAIVING THE RIGHT TO A TRIAL BY JURY AS TO ALL ARBITRABLE DISPUTES.
15.7 No Class Actions or Representative Proceedings. The Tenant and DataCo acknowledge and agree that, to the fullest extent permitted by law, each are waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class‑wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless the Tenant and DataCo both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class‑wide arbitration” waiver in this section is held unenforceable with respect to any Dispute, then the agreement to arbitrate will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “private attorney general action” waiver or the “representative proceeding” waiver in this section is held unenforceable with respect to any Dispute, those waivers may be severed from this section and the Tenant and DataCo agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in arbitration.
16. General Provisions
16.1 This Agreement shall be governed by and construed in accordance with laws of (i) the province of Ontario (if in Canada), or (ii) the state of New Jersey (if in the United States), and the federal laws of Canada or the United States applicable therein.
16.2 The DataCo Service may contain links to third‑party websites or resources that may be used by the DataCo Service (“Third‑Party Services”) which may be subject to different terms and conditions and privacy practices, and the Tenant is responsible to review any such different terms and conditions and privacy practices. DataCo is not responsible or liable for the availability or accuracy of such Third‑Party Services, or the content, products, or services available from such Third‑Party Services. Links to such Third‑Party Services are not an endorsement by DataCo of such Third‑Party Services.
16.3 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, this Agreement constitutes the entire agreement between DataCo and the Tenant pertaining to the subject matter hereof and supersedes any and all prior oral or written understandings or agreements between DataCo and the Tenant in relation to the access to and use of the DataCo Service.
16.4 No joint venture, partnership, employment, or agency relationship exists between the Tenant and DataCo as a result of this Agreement or the Tenant’s use of the DataCo Service.
16.5 If this Agreement provides professional information or recommendations (for example, legal, insurance, financial or real estate), such information is for informational purposes only and should not be construed as professional advice. No decision or other action should be made on the basis of such information and no fiduciary or other privileged relationship exists between the Tenant and DataCo.
16.6 This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the parties.
16.7 If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
16.8 DataCo’s failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by DataCo in writing. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise permitted under law.
16.9 The Tenant may not assign, transfer or delegate this Agreement and its rights and obligations hereunder without DataCo’s prior written consent. DataCo may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with thirty (30) days prior notice. The Tenant’s right to terminate this Agreement at any time remains unaffected.
16.10 Any notices or other communications from Tenant to DataCo as required hereunder by DataCo must be sent by email to the DataCo General Email at firstname.lastname@example.org. Any notices or other communications permitted or required hereunder by DataCo to Tenants, including those regarding modifications to this Agreement, will be in writing and given by DataCo in its sole discretion via email or regular mail. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. DataCo is not responsible for any automatic filtering the Tenant or its network provider may apply to email notifications DataCo sends to the email or physical address provided in the Tenant’s DataCo Account information.
16.11 Any notices or other communications between Members as permitted and required hereunder by DataCo must be sent by email to an email address provided by DataCo or by other method of communication as agreed to by the relevant Members.
16.12 If this Agreement is terminated for any reason, the clauses of this Agreement that reasonably should survive termination of this Agreement will remain in effect.
16.13 The headings in this Agreement are for convenience only and are not to be used to interpret or construe any provision of this Agreement.
16.14 Unless the context of this Agreement clearly requires a different interpretation or construction, all references to the singular shall also include the plural and vice versa.
16.15 The DataCo Service is intended for use solely in Canada or the United States of America. DataCo makes no claims that the DataCo Service are appropriate for use outside of such countries.
16.16 The parties hereto have required that this Agreement be drawn in the English language, and that the English language version shall control over all translations thereof. If Tenant is located in Quebec, the following sentence shall apply: Les parties conviennent que cette entente ainsi que tout document accessoire soient rediges en anglais.
|Your place of residence||PlaceHolder Contracting Entity|
|Canada||PlaceHolder Technologies Canada Inc.|
|United States||PlaceHolder Technologies Inc.|