- governs your access to and/or use of our websites domusoptima.ca, auction.domusoptima.ca, domusoptima.com (hereinafter collectively referred to as the “Website”),
- applies to each auction or other marketing or transaction event (hereinafter collectively referred to as the “Event”) conducted by the Auctioneer on behalf of a seller (hereinafter referred to as the “Seller”) of real property and included chattels and fixtures (if any) or secured note (hereinafter collectively referred to as the “Property”),
- governs your access to, purchase and/or use of our products and services (hereinafter collectively referred to as the “Service”).
References to “you”, “your”, “yourself” and “Customer” mean any person or legal entity that:
- accesses or uses our Website or Event,
- accesses or uses or purchases our Service.
References to “Participant” mean any prospective buyer or joint buyers who register(s) for and participate(s) in any Event.
References to “Winning Bidder” mean the Participant:
- who submits the highest net bid in the Event, in case of Type A (Absolute Auction) Event,
- who submits the highest net bid in the Type S (Sealed-Bid Auction) or Type R (Reserve Auction) Event at or above a predefined reserve price,
- who is acknowledged by the Auctioneer by electronic communication or telephone or in person as the winner of the Event.
AS USED IN THIS TOU, THE TERMS “AUCTIONEER”, “WE”, “US”, “OUR”, “YOU”, “YOUR”, “YOURSELF”, “CUSTOMER”, “SELLER”, “PARTICIPANT” AND “WINNING BIDDER” SHALL ALSO REFER TO THE RESPECTIVE PRINCIPALS, AGENTS, BROKERS AND AFFILIATES OF EACH.
By agreeing to the TOU, you represent and warrant that you are at least the age of majority in your province/country of residence and are legally capable of entering into a binding contract.
This TOU is subject to modification by the Auctioneer without prior written notice at any time and in the Auctioneer’s sole discretion. All modifications will be effective immediately upon posting the changed or amended TOU to our Website. By accessing or using our Website and/or participating in the Event and/or placing an order for or using the Service following the posting of any modifications to this TOU, you accept and agree to be bound by and comply with any such modifications.
1. Our Website
1.1. Allowed Use of Our Website
You agree to use our Website for legitimate purposes and not for any illegal or unauthorized purpose, including without limitation, in violation of any intellectual property or privacy law.
You agree to not use our Website to conduct any activity that would constitute a civil or criminal offense or violate any law, rule or regulation. You agree not to:
- interfere with or disrupt this Website or any of our computer systems, servers, networks, databases, software, hardware or equipment used by or for this Website;
- interfere with the use or enjoyment of this Website by others;
- introduce code which is disruptive or harmful;
- attempt to gain unauthorized access to our Website or any of our computer systems, servers, networks, databases, software, hardware or equipment, including without limitation to: user-restricted areas of this Website; logins and passwords of others; or personal information and personal accounts of others.
Auctioneer reserves the right to refuse access to and/or use of our Website to anyone, at any time, for any reason. We reserve the right to make any modifications to the Website, including terminating, changing, suspending or discontinuing any aspect of the Website at any time, without notice. We may impose additional rules or limits on the use of our Website.
You agree that we will not be liable to you or any third party for any modification, suspension or discontinuance of our Website or its feature or content.
1.2. Links to/from Third-Party Websites
Links from or to some widely-used social media platforms as well as websites outside our Website are meant for convenience only. We do not review, endorse, approve or control, and are not responsible for any social media platforms and sites linked from or to our Website, the content of those sites, the third parties named therein, or their products and services. Linking to any social media platform and other site is at your sole risk and we will not be responsible or liable for any damages in connection with linking. Just to be clear, providing a link to them doesn’t mean that we endorse or recommend them to you.
Also, since these other websites and social media platforms are controlled and maintained by other people/entities, we can’t be sure that the link will still work when you click on it or that the service or content is useful, appropriate, virus-free or reliable. Therefore, you need to decide for yourself whether you want to follow any link or to agree to receive or rely on any service or content that is made available to you.
1.3. Comments, Feedback, and Other Submissions
This Website may allow you and others to submit content to this Website. If you choose to submit content, please be civil and respectful. You acknowledge that you are responsible for the information, profiles, opinions, messages, comments and any other content (hereinafter collectively referred to as the “Content”) that you post, distribute or share on or through our Website and/or Event and/or Service.
You further acknowledge that you have full responsibility for the Content, including but limited to, with respect to its legality, and its trademark, copyright and other intellectual property ownership. You agree that any Content submitted by you in response to a request by us for a specific submission may be edited, adapted, modified, recreated, published, distributed, or not posted by us. You further agree that we are under no obligation to maintain any Content in confidence, to pay compensation for any Content or to respond to any Content.
You agree that you will not post, distribute or share any Content on our Website that:
- misleads us or anyone else as to your identity or the origin of the submitted content, or falsely claim to represent a person, organization or entity;
- you either do not own or do not have the necessary rights to post or transmit;
- is in violation of any law, rule or regulation or any third party right, or promotes illegal activity or conduct that would contravene any law, rule or regulation or third-party right;
- is abusive, hateful, homophobic, discriminatory, malicious, aggressive, threatening, violent, sexist, harassing, inflammatory, indecent, tortious, defamatory, knowingly false, misleading, deceptive, vulgar, obscene, offensive, scandalous, sexually explicit, profane, offensive or otherwise objectionable;
- incites hatred, racism, bigotry or physical harm of any kind;
- is unsolicited or unauthorized, such as unsolicited or unauthorized advertising, promotional material, “junk mail,” “spam,” “chain letter,” “pyramid scheme,” or any other form of solicitation (commercial or otherwise);
- is in breach of any confidence;
- contains any malware or computer virus that could affect our Website’s operations.
You will be solely liable for any Content that you make and its accuracy. We have no responsibility and assume no liability for any Content posted by you or any third-party. We reserve the right to terminate your ability to post on our Website and to remove and/or delete any Content that we deem objectionable. You consent to such removal and/or deletion and waive any claim against us for the removal and/or deletion of your Content.
1.4. Your Personal Information
1.5. Intellectual Property Rights
This Website and all of its content, features and functionality (including, but not limited to all information, text, code, software, trademarks, service marks, trade names, displays, images, video, audio, design, selection and arrangement thereof) is owned by the Auctioneer, its licensors, or other providers of such material, and is protected by the Canadian and international copyright, trademark and other intellectual property or proprietary rights laws.
The Domus Optima® name and logo are registered trademark of FRC, used under license.
These TOU grant you a personal, non-exclusive, non-transferable, revocable license to access and use this Website and its content. You may access the material on this Website only for your own personal, non-commercial use. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as incidental to normal web browsing, such as the making of temporary copies in RAM or the cache of your internet browser, and for features of the Website that enable sharing via e-mail, social media, linking, and other platforms expressly enabled by our Website.
Any use of this Website not expressly permitted by this TOU is a breach of the TOU and may violate copyright, trademark, and other laws.
2. Membership Account
In order to access and use our Service, certain sections and features of our Website, as well as to participate in our Event you must first register and create a complimentary Domus Optima members account (hereinafter referred to as the “Account”). To register for the Account, you must be: (a) at least of the age of majority in your province/country of residence (18 years old in the province of Ontario) and (b) legally capable of entering into a binding contract, and (c) NOT included into the list of designated persons under Canadian anti-terrorist financing, criminal and other laws. Information and instructions on the Account registration process are provided on our Website (Staring Guide https://domusoptima.ca/get-started/).
Upon successful submission of your Account registration form, you should receive 2 emails from the Auctioneer: (a) confirmation of your Account registration and (b) activation request with a verification link to activate your account. You should activate your Account by following a verification link in the received Account activation request email. Otherwise, you will not be able to log into your Account and you will not receive any of our future emails.
We strongly encourage you to keep the log-in credentials of your Account confidential as if anyone other than yourself accesses your Account and its features, you will be solely and fully responsible for all activities that occur under your Account with us, whether or not specifically authorized by you, and for any damages, expenses or losses that may result from such activities.
Auctioneer reserves the right to temporarily or permanently suspend or cancel your Account at any time and for any reason, including, but not limited to: (a) your breach of this TOU, (b) Account inactivity for a period of 3 years or longer, (c) unverified status of the Account.
From time to time, we may introduce or remove any complimentary or paid levels of Domus Optima membership. Additional levels of Domus Optima membership may provide extended functionality to your Account. You should be logged into your Account to view currently available membership levels and requirements for membership upgrades.
3.1. Form and Type of the Event
Auctioneer conducts the Event in the online form only. Available types and basics of the Event are stated on our Website (Auction Basics https://domusoptima.ca/new-to-auctions/). Step-by-step instructions on participation in the Event are also available on our Website (Starting Guide https://domusoptima.ca/get-started/).
Each Event may have its specific Other Terms. In the event of a conflict between the TOU and the Other Terms, the Other Terms supersede the TOU. Detailed information on the Property and the associated Event along with its Other Terms (hereinafter collectively referred to as the “Auction Listing”) is published on our Website.
Property information is gathered for the Auction Listing from a variety of sources and is not independently verified, endorsed or approved by the Auctioneer. Auction Listing is provided on an “as is, as available” basis with all faults and defects. Participant may use this information for its own internal purposes at its own risk. Participant is encouraged to consult with a licensed real estate agent/broker, contractor, attorney, financial advisor, tax advisor, and/or other relevant professionals.
Auctioneer is not a party to any transactions relating to the Property. Auctioneer is only an online venue for the Seller to auction the Property and for the Participant to make bids on such Property. You and the Auctioneer are independent contractors. Auctioneer conducts the Event solely on behalf of the Seller, and is not acting as an agent, representative, broker, employee, partner or joint venturer either for the Seller or the Participant in any capacity. Auctioneer is not responsible for and does not engage in brokering, exchanging, posting Property or providing “multiple listing service” (hereinafter referred to as the “MLS”), and does not counsel Seller or Participant, show Property or negotiate sales contracts. Auctioneer is not a party to, nor involved in, the transactions between the Seller and the Participant / Winning Bidder. Auctioneer has no control over the Seller, Participant / Winning Bidder or any aspect of the transactions.
Auctioneer reserves the right to modify, postpone or cancel the Event, or refuse or terminate all or part of our Event to anyone for any reason at our sole discretion. Auctioneer has no liability to you for any decision to modify, postpone or cancel the Event, or refuse or terminate all or part of our Event.
Auctioneer may issue press releases and/or other public communications regarding the Event and/or the Property offered for listing, listed or sold during the Event.
In connection with your participation or use of the Event, we may send you service announcements and administrative communications. By accessing, participating or using the Event you hereby specifically consent and agree to receive such announcements and communications.
3.2. Agent / Broker Participation
Real estate agents / brokers are an integral part of our Event. Information on real estate agents / brokers participation is available on our Website (Guide for Agents https://domusoptima.ca/guide-for-agents/). Auction Listing contains information on real estate agents’/brokers’ commissions related to the Property.
If the Auction Listing states that the Buyer’s Premium applies to the sale of the Property at the Event, then applicable real estate agents’/brokers’ commissions are included in the amount of the Buyer’s Premium.
If the Auction Listing states that the Seller is responsible for the payment of the Seller’s Commission for the sold at the Event Property, then the Purchase Price includes the Seller’s Commission payable out of the commission the Seller pays to its listing agent / broker (hereinafter referred to as the “Listing Brokerage”) according to a listing agreement between the Seller and the Listing Brokerage (e.g. OREA Form 200a, hereinafter referred to as the “Listing Agreement”).
The Seller specifically authorizes the Listing Brokerage to arrange with the Auctioneer the Event for the Property and its promotion, disclose to the Auctioneer the Listing Agreement and all its applicable schedules, draft Auction Service Agreement (hereinafter referred to as the “ASA”), provide available information and media regarding the Property, including without limitation information on MLS listing, Property inspection and/or appraisal report(s), prices, materials, text, images, photographs, video, audio or other content (hereinafter referred to as the “Initial Property Information”) for the Auction Listing, and offer to pay the Auctioneer on the Closing Date the agreed Seller’s Commission (if any) out of the commission the Seller pays to the Listing Brokerage.
You grant to the Auctioneer an irrevocable, non-exclusive, worldwide, royalty-free, perpetual license and right to publish, display, reproduce or otherwise use the Initial Property Information for all purposes (including without limitation marketing that may identify the Property), in any medium whatsoever. It shall be your sole and exclusive responsibility to secure any necessary permissions and/or authorizations for the Auctioneer to post or display the Initial Property Information where such rights are held by third-parties.
The Seller and the Listing Brokerage accept and agree to include information on the Event in the Property’s MLS listing (if any), and to display the Auctioneer’s sign and/or banner and/or flag upon the Property along with the Listing Brokerage sign.
The Seller and the Listing Brokerage are jointly and severally liable for the obligation to effect payment of the Seller’s Commission (if any) to the Auctioneer in time and in full.
Participant is highly recommended to hire a licensed real estate agent/broker to assist the Participant with due diligence process and all pre and post Event formalities. Participant’s agent/broker (hereinafter referred to as the “Co-Operating Brokerage”) may earn commission as a cooperating one if you are the Winning Bidder and successfully closed on the Property.
Participant shall appoint its hired Co-Operating Brokerage during the registration process for the Event by filling out the related part of the ‘Additional Information’ section of the check out page. If incomplete or no information provided on your hired Co-Operating Brokerage during the registration process for the Event, you are deemed to have accepted the appointment of the Seller’s Listing Brokerage to act as a dual agent, and represent and assist you in the post-Event and closing activities. There can be NO EXCEPTIONS to the procedure of your Co-Operating Brokerage appointment.
Winning Bidder and its agent/broker (the Co-Operating Brokerage or the Listing Brokerage, acting as a dual agent) are jointly and severally liable for the obligation to effect payment of the Buyer’s Premium (if any) to the Auctioneer in time and in full.
Real estate agents / brokers may choose to participate in our affiliate program, when available, on terms and conditions stated in this affiliate program.
3.3. Purchase Documents
Auction Listing will include an estimated closing date (hereinafter referred to as the “Closing Date”), a draft of the Agreement of Purchase and Sale prepared by the Listing Brokerage, and other transaction documents (hereinafter collectively referred to as the “Purchase Documents”) to be executed between the Seller and the Winning Bidder at the end of the Event. Participant must review the Purchase Documents prior to placing a Bid. Purchase Documents are non-negotiable unless otherwise specified in the Auction Listing. You acknowledge that prior to participating in the Event, you are strongly encouraged to have the Purchase Documents reviewed by your own legal counsel.
3.4. Place of the Event
Place of the Event is the Auctioneer’s corporate headquarters.
3.5. Registration for the Event
To participate in the particular Event, you should be registered for that Event with the Auctioneer by following the registration link provided in the Auction Listing.
To finalize your registration for the Event and become a Participant you will be asked to pre-authorize your valid credit / debit card for the amount of an Auction Administrative Fee stated in the Auction Listing. This is not a charge to your card but just held as a preauthorisation to ensure that the Bid made by the Participant is binding, serious, and without risk of delinquency. The actual charge of the pre-authorised Auction Administrative Fee shall only be made in case of the Winning Bidder’s breach of its obligations stated in this TOU or the Purchase Documents. All other pre-authorizations for the Event will be cancelled / released accordingly.
You will need to give us enough time to process and approve your registration for the Event. If in our opinion you do not satisfy our requirements for the Participant’s identification and registration, we may refuse to register you as the Participant for the Event.
3.6. Conditions and Proof of Funds
Sale of the Property at the Event represents a “cash sale”, is final and not subject to satisfaction of any conditions after the Event, including, but not limited to the Property inspection or your ability to obtain financing. You specifically understand and agree that the Transaction shall not be subject to the satisfaction of any conditions after the Event. Any improvements which may need to be done will be the responsibility of the Winning Bidder unless otherwise stipulated in the Auction Listing and the Purchase Documents.
It is vital to organize your finances prior to the Event. If mortgage is required, it is strongly recommended to contact your mortgage lender or mortgage broker prior to the Event to get a mortgage pre-approval.
Auctioneer may require Participant to provide proof of readily available funds and/or additional information at any time. Participant must respond to such inquiries within one business day, time being of the essence. You understand that response to such inquiries is your sole responsibility.
Further, you acknowledge that the Seller is not required to transfer its insurance policy on the Property to you, and it is your sole responsibility to satisfy yourself that the Property is insurable and to obtain your own insurance policy.
3.7. Ownership Restrictions / Additional Taxation
Canadian provinces may impose foreign ownership restrictions or additional taxation on the purchase of real estate property by non-residents of Canada or non-qualified Canadian organizations. You acknowledge that it is your sole responsibility to make any necessary enquiries, including but not limited to consulting with legal and tax advisors, prior to participating in the Event to ensure that you are legally eligible to purchase the Property.
3.8. Due Diligence
Auction Listing will include information on available reports related to the Property, provided by or ordered on behalf of the Seller (e.g. Home Inspection, Property Appraisal, etc. hereinafter collectively referred to as the “Reports”). Full texts of the Reports will be included in the Property’s catalogue available for purchase from the Auction Listing page of our Website.
Reports represent the opinion of the respective independent inspectors, appraisers or other professionals concerning the condition, feature or value of the Property at the time of inspection or appraisal, and may be subject to limitations or conditions stated in the Reports. Reports are not guarantee, warranty or an insurance policy of any kind. Reports are meant for your convenience only. Auctioneer does not review, endorse, approve or control, and is not responsible for any content of the Reports. Your use of the Reports is at your sole risk and we will not be responsible or liable for any damages of any kind related to your use of the Reports.
It is each Participant’s responsibility to conduct its own due diligence and investigate all matters relating to the Property, including, but not limited to legal matters, physical condition and attributes, environmental matters, economic matters, encumbrances, and all other aspects before registering to participate in the Event. Participant must coordinate any such inspection, appraisal, etc. with the Seller. If for any reason it is not possible to carry out any such inspection, appraisal, etc. or receive a report on any such inspection, appraisal, etc. prior to the Event, Participant should make its decision solely at its own risk whether to participate or not in the Event.
Participant is responsible for all liability, damages and/or costs directly or indirectly arising from Participant’s inspection, visit, or investigation of the Property. Participant agrees to indemnify, defend and hold harmless the Seller and the Auctioneer from any such liability, damages and/or costs, and to maintain all applicable policies of insurance insuring over such liability, damages and/or costs.
Participant hereby warrants and represents that it has satisfied itself as to the location, boundaries and condition of the Property, and all the information of the Auction Listing prior to participating in the Event, and that the Participant has had the opportunity to do so. Further, you specifically agree that by submitting a Bid at the Event and becoming a Winning Bidder, you are entering into an irrevocable and binding agreement to purchase the Property, and that the agreement is not contingent on the Property receiving a pre-purchase inspection report. Subject to the Purchase Documents, you accept any patent defects that may exist on the Property.
3.9. As-is Sale
Participant shall accept the Property “AS-IS”, “WHERE-IS”, and “WITH ALL FAULTS” at the time the Bid is placed at the Event. Participant further agree that the condition of the Property on the Closing Date is solely the responsibility of the Seller and that the Auctioneer will not be liable for any changes in Property condition between the Event date and the Closing Date. Further, you specifically agree that the Auctioneer has not made any representations or warranties of any kind whatsoever, expressed or implied, to yourself as to the value, future use, condition or fitness of the Property, any hidden defects known or unknown, environmental or otherwise, or any part thereof or improvements thereon. All descriptions, measurements and acreage provided by the Auctioneer are to be used as a guide only.
3.10. Reserve Price
Event listed as a Reserve Auction (Type R) or a Sealed -Bid Auction (Type S) has a minimum selling price established by the Seller (hereinafter referred to as the “Reserve Price”). Reserve Price is not disclosed to the Participant. A starting bid in not the Reserve Price. If the Reserve Price is met at the end of the Event, the Participant with the highest Bid will be declared as the Winning Bidder. If the Reserve Price is not met at the end of the Event, the Event ends without sale of the Property and no Winning Bidder is announced. The Seller is under no obligation to sell the Property below the Reserve Price.
Seller has an option to decrease the Reserve Price once per Event at its sole discretion and at any time prior to the end of the Event. Listing Broker shall visit the Reserve Price Change Notice page of our Website (https://auction.domusoptima.ca/products/listing-fees/cancel-auction-listing/) to initiate your request for the Reserve Price change.
3.11. Absolute Auction Event
Event listed as an Absolute Auction (Type A) does not have any Reserve Price and the Property is sold to a Winning Bidder at the end of the Event.
3.12. Bidding at the Event
Bids may only be submitted between the dates and times specified in the Auction Listing of the Property. Auctioneer will not accept the Bid made after the end of the Event.
Bids may be placed by the Participant jointly with another person (hereinafter referred to as the “Joint Bidder”). To place the Bid in joint names you should: (a) receive a lawful consent for bidding from the Joint Bidder prior to registration for the Event, and (b) provide the Joint Bidder’s contact details upon registration for the Event, and (c) provide the Joint Bidder’s government-issued photo ID in case you declared as a winner of the Event.
All perils of this TOU concerning the Participant or the Winning Bidder shall also refer and apply to the Joint Bidder of each. Joint Bidder specifically agree to be jointly and severally liable for all of the Participant’s / Winning Bidder’s obligations. In addition, the Joint Bidder and the Participant / Winning Bidder hereby acknowledge and agree that all of the representations, warranties, covenants, obligations, conditions, agreements and other terms contained in this TOU, Auction Listing and Purchase Documents shall be applicable to and shall be binding upon them jointly and severally.
Any Participant making a Bid at the Event will be identified using the same unique username provided at its initial Account registration and will be subject to the same terms as detailed in this TOU. Identity of the Participant will not be made public beyond a masked version of its username.
Auctioneer may not place the Bid on behalf of the Seller or on Auctioneer’s own Property. The Seller may not place the Bid on its own Property.
Bidding generally opens at a specified starting bid amount and increases in steps (bidding increments) pre-defined in the Auction Listing (except Type S – Sealed-Bid Auctions).
Both the Seller and the Participant accept and specifically agree that all Bids placed during the Event will be publicly visible on our Website, except in case of the Sealed-Bid Auction (Type S). In addition, both the Seller and the Participant accept and specifically agree that the Winning Bid will be publicly visible on our Website for all types of the Event. You grant to the Auctioneer an irrevocable, non-exclusive, worldwide, royalty-free, perpetual license and right to publish, display, reproduce or otherwise use information on the Winning Bid for all purposes, in any medium whatsoever.
Auctioneer or the Seller shall not be responsible to you or any other party for errors or failures to execute the Bid placed on the internet or on your mobile device via our Website, including, without limitation, errors or failures caused by: (a) any loss of connection on our or your end, (b) a breakdown or problems with our Website or the online auction software; and (c) a breakdown or problems with any internet connection, server, computer, mobile device or system. Execution of your online and mobile internet Bid is a free service and the Auctioneer does not accept liability for your or our failing to access the Website or to execute an online or mobile internet Bid or for errors or omissions in connection with this activity.
If there is a dispute concerning the Bid placed during the Event (hereinafter referred to as the “Bidding Dispute”), the Auctioneer will decide the Bidding Dispute in a way that it deems appropriate. The decision of the Auctioneer is final and gives rise to no claim by any Participant against another Participant. In case of any dispute, you agree to accept as true the information that we have in our records.
Participant may arrange automatic bidding during the Event through our Website, if available. Our system will place Bids during the Event on the Participant’s behalf up to the maximum amount set by the Participant in response to Bids from another Participant. The maximum amount of the Proxy Bid set by the Participant is not disclosed to other Participant or the Seller of the Property.
A number of allowed Bids for each Participant may be limited based on the type of the Event (e.g. a Sealed-Bid (Type S) Auction allows only a single (1) undisclosed Bid for each Participant during the Event). In this case the number of allowed Bids shall be specifically stated in the Auction Listing.
If the Bid is placed by the Participant within the last three (3) minutes of the Event, the Event’s closing time will be automatically extended for the additional three (3) minutes to allow for other Participant to have a fair chance to compete (soft closing). These extensions will continue indefinitely until there is no more bidding activity for the Property for a period of three (3) minutes.
You accept and agree that all Bids submitted by you during the Event are final, legally binding, irrevocable and unassignable. There is absolutely NO way to revoke the Bid once it is confirmed. There is absolutely NO way to assign the Bid or your obligation to purchase the Property (if you are the Winning Bidder) to any third party. The decision on bidding should be made prior to submitting your Bid at the Event. We are not responsible for any errors you make in bidding.
You understand that by submitting the Bid at the Event and becoming a Winning Bidder: (a) you together with the Joint Bidder (if any) specifically agree to purchase the Property from the Seller (hereinafter referred to as the “Transaction”) at the highest price you bid on the Property (hereinafter referred to as the “Winning Bid”), and (b) a contract for sale has been formed between you (including the Joint Bidder, if any) and the Seller on the terms stated in the Auction Listing and this TOU.
If the Auction Listing states that an additional charge (percentage) on the Winning Bid (hereinafter referred to as the “Buyer’s Premium”) applies to the sale of the Property at the Event, then the Winning Bidder will be required to pay the stated Buyer’s Premium in addition to the Winning Bid amount on the Closing Date. Buyer’s Premium amount will be added to the Winning Bid amount to establish the total purchase price (hereinafter referred to as the “Purchase Price”) payable by the Winning Bidder for the Property. Buyer’s Premium is subject to applicable GST/HST. Winning Bidder specifically agrees to pay the stated Buyer’s Premium to the Auctioneer on the Closing Date.
If the Auction Listing states that the Buyer’s Premium does not apply to the sale of the Property at the Event and the Seller is responsible for the payment of a set in the Auction Listing commission (hereinafter referred to as the “Seller’s Commission”) for the sold at the Event Property, then the Purchase Price represents just the Winning Bid amount and includes the Seller’s Commission. Seller’s Commission is subject to applicable GST/HST. Seller specifically agrees to pay the stated Seller’s Commission to the Auctioneer on the Closing Date.
Further, you specifically agree to cooperate and execute such documentation (including, but not limited to Purchase Documents) as may be required to facilitate the Transaction. You will hire an independent attorney to ensure that the title to the Property is free of all registered restrictions, charges, liens, and encumbrances by the Closing Date.
3.14. Signing Purchase Documents
The final Purchase Documents will be emailed both to the Winning Bidder (along with a Joint Bidder, if any) and the Seller (hereinafter referred to individually each as the “Transaction Party”, and collectively as the “Transaction Parties”) for electronic signature using the email addresses associated with the Transaction Party Account. Purchase Documents must be signed by the Transaction Parties within one (1) business day from the date they are sent to the related Transaction Party for signature, time being of the essence.
Upon signing Purchase Documents, the Winning Bidder shall pay a deposit (hereinafter referred to as the “Earnest Money Deposit”) payable to the Earnest Money Deposit holder as directed in the Purchase Documents, and in amount stated in the Purchase Documents and the Auction Listing.
Transaction Parties understand that they may be subject to lawsuits for failing to timely sign Purchase Documents and/or provide the Earnest Money Deposit (hereinafter referred to as “Duly Execution of the Purchase Documents”). Any such legal action will fall out of the purview of the Auctioneer’s service and we will not be responsible, or held liable for, any such legal proceedings. Additionally, Auctioneer may declare such non-performing Transaction Party to be in default of our TOU and suspend or cancel its Account. Winning Bidder further understands that its Winning Bid will be declared as null and void, and agrees to pay the Auctioneer an Auction Administrative Fee and to forfeit any further interest in the Property in case of its failure of Duly Execution of the Purchase Documents.
After the Duly Execution of the Purchase Documents, these Purchase Documents shall govern the relationship between the Winning Bidder and the Seller.
The closing on the sold at the Event Property will take place during the period shown as “estimated closing date” on the Auction Listing of the Property, or such other date as may be mutually agreed by the Winning Bidder and the Seller (hereinafter referred to as the “Closing Date”).
Completion and closing of the Transaction will be handled by legal representatives appointed by the Seller and the Winning Bidder, acting on behalf of the Seller and the Winning Bidder, respectively. You shall be responsible for your own legal fees. All necessary adjustments will be based on the agreed upon Closing Date.
During the closing process the Property will be registered either in the Winning Bidder’s name or in joint (the Winning Bidder’s and the Joint Bidder’s) names, if applicable.
If a sale of the Property is subject to GST/HST, the tax shall be included in the Purchase Price. Any GST/HST on chattels, as applicable, is not included in the Purchase Price and shall be your obligation on the Closing Date.
You warrant that the funds used for settlement are not connected with any criminal activity, including tax evasion, and you are neither under investigation, nor have you been charged with or convicted of money laundering, terrorist activities or other crimes.
Unless otherwise specified in the Purchase Documents, the Winning Bidder will receive vacant possession of the Property on the Closing Date.
Winning Bidder acknowledges that local municipality use the Property’s current value assessment for a property tax purpose. The Property may be re-assessed on an annual basis. Winning Bidder agree that no claim shall be made against the Seller or the Auctioneer for any changes in property tax as a result of a reassessment.
Winning Bidder understands that its Winning Bid will be declared as null and void, and agrees to pay the Auctioneer an Auction Administrative Fee and to forfeit any further interest in the Property in case of its failure to close on the Property at the Closing Date. Winning Bidder further understands that the Seller can take legal actions against the Winning Bidder for damages and any other remedies permitted by law in case of the Winning Bidder’s failure to complete the Transaction. Any such legal action will fall out of the purview of the Auctioneer’s service and we will not be responsible, or held liable for, any such legal proceedings.
3.16. Cooling-off Rights
Except as stipulated in contracts with newly built condominiums purchased at the Event directly from the builder, cooling-off rights do not apply to a sale of such Property at the Event.
3.17. Pre-Auction Offers and Withdrawal of the Property from the Event
Event is subject to prior sale and any offers (hereinafter referred to as the “Pre-Auction Offer”) of the potential buyers of the Property are welcome through the traditional real estate channels prior to the Event.
Seller is required to inform the Auctioneer via its Listing Brokerage at sight upon the Pre-Auction Offer receipt stating the date and time of its expiration by submitting a Pre-Auction Offer Notice online (https://auction.domusoptima.ca/products/listing-fees/pre-auction-offer-notice/). Participant of the Event will be notified on the Auction Listing page of our Website about the received Pre-Auction Offer to give an opportunity to submit its offer as well.
Seller is required to cancel the Auction Listing and withdraw the Property from the Event prior to accepting the Pre-Auction Offer or counter-offering. SELLER UNDERSTANDS AND SPECIFICALLY AGREE NOT TO ACCEPT THE PRE-AUCTION OFFER OR SUBMIT A COUNTER OFFER PRIOR TO CONFIRMED BY THE AUCTIONEER CANCELLATION OF THE AUCTION LISTING AND WITHDRAWAL OF THE PROPERTY FROM THE EVENT.
If the Seller fails to cancel the Auction Listing and withdraw the Property from the Event prior to accepting the Pre-Auction Offer or counter-offering, the Auctioneer shall be entitled to receive the Seller’s Commission in amount stated in the Auction Listing (if any) but based on a purchase price stipulated in the accepted/counter-offered Agreement of Purchase and Sale of the Property, and the Seller and the Listing Brokerage will be jointly and severally liable for the obligation to effect payment of this Seller’s Commission to the Auctioneer in full on the Property’s closing date.
Seller may cancel the Auction Listing and withdraw the Property from the Event for any reason (including, but not limited to willingness to accept the Pre-Auction Offer or submit the counter offer) either before or after the start of the Event, but prior to: (a) the first Bid of any Participant of Type A (Absolute Auction) Event, or (b) the Reserve Price being reached by any Participant’s Bid of Type R (Reserve Auction) Event or Type S (Sealed-Bid Auction) Event. Such cancellation and withdrawal is subject to an Auction Listing Cancellation Fee (https://auction.domusoptima.ca/schedule-of-fees/). Listing Broker shall visit Cancel Auction Listing page of our Website (https://auction.domusoptima.ca/products/listing-fees/cancel-auction-listing/) to initiate your request for the Auction Listing cancellation and the Property withdrawal from the Event.
After (a) the first Bid of any Participant of Type A (Absolute Auction) Event, or (b) the Reserve Price being reached by any Participant’s Bid of Type R (Reserve Auction) Event or Type S (Sealed-Bid Auction) Event, absolutely NO cancellation of the Auction Listing and withdrawal of the Property from the Event is possible due to a nature of the auction process.
If the Property is not sold during the Event the Seller may resume accepting offers from the potential buyers.
3.18. Relisting the Property
The Seller may relist the Property that has not been sold during the Event for a new Event on the same or reviewed terms.
3.19. Seller’s Warranties
Seller confirms and warrants that: (a) the Seller is the owner of the Property or a joint owner of the Property acting with the permission of the other co-owner(s) or, if the Seller is not the owner or joint-owner of the Property, has the permission of the owner to sell the Property, or the right to do so in law; (b) the Seller has the right to transfer ownership of the Property to the Winning Bidder; and (c) the title to the Property is currently free and/or at the Closing Date will be free of all registered restrictions, charges, liens, and encumbrances.
We may provide you with access to our free-of-charge or paid Service. Additional or different terms and conditions may apply to the particular Service. You should carefully review this TOU, Cancellation and Refund Policy (https://auction.domusoptima.ca/cancellation-and-refund-policy/) and any other applicable terms and conditions before obtaining the particular Service. Where this TOU is different from those terms and conditions, those terms and conditions will apply to the extent of the difference.
You may need the Account in order to access and use our Service.
Paid Service has a clearly posted fee (https://auction.domusoptima.ca/schedule-of-fees/) and available method(s) of payment. We reserve the right to modify any Service fee at any time without prior notice.
You should carefully check and confirm all details on both the Service page and the payment page of our Website before placing your order for the Service.
By making your payment, you: (a) warrant that you are the credit/debit card cardholder or the account holder, and (b) acknowledge that the Auctioneer has no liability for your payment not reaching us where, for example payment is refused or declined by a financial institution or credit/debit card processor or your card supplier. It is your responsibility to check with the Auctioneer and/or financial institution and/or your card supplier that the payment has been accepted. Payment information for your online payments is collected and processed directly by a third-party service provider and not by the Auctioneer.
In connection with your use of our Service, we may send you service announcements and administrative communications. By accessing or using the Service you hereby specifically consent and agree to receive such announcements and communications.
We are constantly changing and improving our Service. We reserve the right to add or remove functionalities or features, and we may suspend or stop the Service altogether. We reserve the right to refuse service to anyone, at any time, for any reason. We may also impose additional rules, add or create new limits to our Service at any time and our sole discretion. Your continued access or use of our Service will mean that you agree to any changes.
We provide our Service using a commercially reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Service. We disclaim any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or availability of information or materials displayed in our Service. We disclaim any responsibility for the deletion, failure to store, or delivery of any material, or for any harm resulting from accessing any material through our Service. Other than as expressly set out in this TOU we do not make any specific promises about the Service, including but not limited to its specific functions, or its reliability, availability, or ability to meet your needs. We provide the Service on an “as is” and “as available” basis. To the extent permitted by law, we exclude all warranties.
5. Fees, Commissions, Taxes and Currency
Auctioneer charges fees and/or commissions for using its Service and/or Event. You can find information on the applicable fee(s) and/or commission(s) on the respective Auction Listing or Service page of our Website. A full list of fees and commissions is posted on the Schedule of Fees (https://auction.domusoptima.ca/schedule-of-fees/) page of our Website.
Fees and commissions do not include taxes and are subject to applicable GST/HST. If the sale of the Property is subject to GST/HST, then such tax shall be included in the Purchase Price of the Property. Any GST/HST on chattels, if applicable, is not included in the Purchase Price of the Property.
All references to currency, monetary values and dollars made in connection with any Property, Event or Service shall mean Canadian dollars and all payments hereunder shall be made in lawful money of Canada.
6. Electronic Communications, Transactions and Signatures
By accessing or using our Website and/or participating in the Event and/or placing an order for or using the Service you hereby consent and agree to the use of electronic communication and electronic signature pursuant to the Electronic Commerce Act 2000, S.O. 2000, c17 as amended from time to time.
Any agreement, Purchase Documents, notices or other communications originated in connection with any Property, Event or Service may be transmitted by means of electronic systems (hereinafter collectively referred to as the “Electronic Document”), in which case both signatures and Electronic Document shall be deemed to be original. The transmission of Electronic Document by you shall be deemed to confirm that you have retained a true copy of the Electronic Document.
You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
7. Errors and Omissions
Please note that our Website and any information related to the Auction Listing, Event or Service including without limitation description, pricing, promotion and availability may contain typographical errors or inaccuracies and may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time, without prior notice (including after an order has been submitted). We reserve the right to cancel or refuse any transaction made based on incorrect pricing or availability information, to the extent permitted by applicable law. We do not undertake to update, modify or clarify information on our Website, except as required by law.
8. Disclaimer and Limitation of Liability
YOU ASSUME ALL RESPONSIBILITY AND RISK WITH RESPECT TO YOUR USE OF OUR WEBSITE, WHICH IS PROVIDED “AS IS” WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO INFORMATION ACCESSED FROM OR VIA OUR WEBSITE, INCLUDING WITHOUT LIMITATION, ALL CONTENT AND MATERIALS, AND FUNCTIONS AND SERVICES PROVIDED ON OUR WEBSITE, ALL OF WHICH ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS OR USEFULNESS OF CONTENT OR INFORMATION, UNINTERRUPTED ACCESS, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANT-ABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT OUR WEBSITE OR ITS FUNCTIONING, CONTENT OR MATERIAL WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT OUR WEBSITE OR THE SERVERS THAT MAKE OUR WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE USE OF OUR WEBSITE, ANY LINKED WEBSITE OR LINKED SOCIAL MEDIA PLATFORM IS AT YOUR SOLE RISK AND YOU ASSUME FULL RESPONSIBILITY FOR ANY COSTS ASSOCIATED WITH YOUR USE OF THEM. WE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO THE USE OF OUR WEBSITE, ANY LINKED WEBSITE OR LINKED SOCIAL MEDIA PLATFORM.
AUCTIONEER MAKES NO REPRESENTATIONS AND GIVES NO WARRANTIES OR GUARANTEES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY, EVENT, SERVICE, OR LEGAL SUFFICIENCY OR TAX CONSEQUENCES OF ANY DOCUMENT PROVIDED BY THE AUCTIONEER. AUCTIONEER SPECIFICALLY GIVES NO GUARANTEES TO THE SELLER THAT THE PARTICIPANT WILL PLACE THE BID ON THE PROPERTY DURING THE EVENT, OR THE SELLER WILL BE ABLE TO SELL THE PROPERTY USING THE EVENT, OR THE SELLER WILL BE ABLE TO COLLECT THE PURCHASE PRICE FROM THE WINNING BIDDER. YOU HEREBY RELEASE THE AUCTIONEER, ITS SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, ATTORNEYS, AGENTS, BROKERS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, SUPPLIERS, SUCCESSORS, AND ASSIGNS (HEREINAFTER COLLECTIVELY REFERRED TO AS THE “REPRESENTATIVES”) FROM ANY AND ALL CLAIMS THAT YOU MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST THE AUCTIONEER OR ANY OF ITS REPRESENTATIVES FOR ANY DAMAGE OR INJURY RESULTING FROM OR RELATING TO ANY ERRORS, OMISSIONS OR OTHER CONDITIONS AFFECTING ANY PROPERTY, THE DOCUMENTS USED IN EVALUATING OR ACQUIRING ANY PROPERTY, OR THE CONDUCTION OF ANY EVENT, OR PROVISION OF ANY SERVICE. THIS RELEASE INCLUDES CLAIMS OF WHICH YOU ARE PRESENTLY UNAWARE OR DO NOT PRESENTLY SUSPECT TO EXIST IN YOUR FAVOR WHICH, IF KNOWN BY YOU, WOULD MATERIALLY AFFECT YOUR RELEASE OF THE AUCTIONEER.
AUCTIONEER DOES NOT PROVIDE TAX, LEGAL, ENVIRONMENTAL, INVESTMENT, REAL ESTATE, FINANCIAL OR ACCOUNTING ADVICE. ANY INFORMATION PROVIDED BY THE AUCTIONEER HAS BEEN PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO PROVIDE, AND SHOULD NOT BE RELIED ON FOR TAX, LEGAL, ENVIRONMENTAL, INVESTMENT, REAL ESTATE, FINANCIAL OR ACCOUNTING ADVICE. YOU SHOULD CONSULT YOUR OWN ADVISORS BEFORE USING OUR WEBSITE, SERVICE, EVENT OR ENGAGING IN THE TRANSACTION.
EXCEPT WHERE SUCH EXCLUSIONS ARE PROHIBITED BY LAW, UNDER NO CIRCUMSTANCE WILL THE AUCTIONEER NOR ITS REPRESENTATIVES BE LIABLE FOR NEGLIGENCE, GROSS NEGLIGENCE, NEGLIGENT MISREPRESENTATION, FUNDAMENTAL BREACH, DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, BREACH OF PRIVACY, OR OTHERWISE, EVEN IF THE PARTY WAS ALLEGEDLY ADVISED OR HAD REASON TO KNOW, ARISING OUT OF OR IN CONNECTION WITH THEIR USE OF, OR INABILITY TO USE, OR RELIANCE ON, OUR WEBSITE, OUR EVENT, OUR SERVICE OR BREACH OF THIS TOU BY EITHER THE SELLER, PARTICIPANT OR THE WINNING BIDDER.
IF THE WINNING BIDDER BREACHES THIS TOU, (A) WINNING BIDDER’S BID MAY BE REJECTED BY THE AUCTIONEER AND OR SELLER, (B) THE PROPERTY MAY BE IMMEDIATELY SOLD TO ANOTHER PARTICIPANT OR PLACED IN ANOTHER EVENT, AND (C) WINNING BIDDER WILL BE RESPONSIBLE FOR PAYING THE AUCTIONEER LIQUIDATED DAMAGES IN AMOUNT EQUAL TO THE AMOUNT OF THE AUCTION ADMINISTRATIVE FEE SHOWN AT THE TIME OF REGISTRATION FOR THE EVENT.
AUCTIONEER IS AUTHORIZED TO CHARGE THE CREDIT CARD PROVIDED BY THE WINNING BIDDER AT THE REGISTRATION FOR THE EVENT TO SATISFY ALL OR PART OF THE LIQUIDATED DAMAGES OWED BY THE WINNING BIDDER. WINNING BIDDER ACKNOWLEDGES THAT THE ACTUAL DAMAGES RESULTING FROM WINNING BIDDER’S BREACH IF THIS TOU WOULD BE DIFFICULT AND IMPRACTICAL TO CALCULATE, AND THAT THE AMOUNT OF THE AUCTION ADMINISTRATIVE FEE IS A REASONABLE PRE-ESTIMATE OF THE RESULTING DAMAGES TO THE AUCTIONEER AND IS NOT A PENALTY OR FORFEITURE.
FULL RELEASE: IN THE EVENT THAT YOU HAVE A DISPUTE WITH ANOTHER CUSTOMER, YOU RELEASE THE AUCTIONEER AND ANY OF ITS REPRESENTATIVES FROM ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE AUCTIONEER AND ANY OF ITS REPRESENTATIVES FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, JUDGEMENTS, AWARDS, LOSSES, COSTS, EXPENSES, OR FEES (INCLUDING LEGAL FEES) DIRECTLY OR INDIRECTLY CAUSED BY OR RESULTING FROM AN ACT, INCLUDING THE NEGLIGENT ACTS OR OMISSIONS OF THE AUCTIONEER OR ANY OF ITS REPRESENTATIVES, AND IN ANY WAY ARISING OUT OF, RELATED TO OR IN CONNECTION WITH OUR EVENT, SERVICE OR WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY USE OF OUR WEBSITE, EVENT, SERVICE OR CONTENT, YOUR VIOLATION OF TOU OR OTHER TERMS, OR THE POSTING OR TRANSMISSION OF ANY MATERIALS ON OR THROUGH THE WEBSITE BY YOU, INCLUDING BUT NOT LIMITED TO, ANY THIRD PARTY CLAIM THAT ANY INFORMATION OR MATERIALS PROVIDED BY YOU INFRINGE UPON ANY THIRD PARTY PROPRIETARY RIGHTS.
IF WE ARE FOUND TO BE LIABLE TO YOU FOR ANY REASON, WE SHALL NOT HAVE TO PAY MORE THAN: (A) THE BUYER’S PREMIUM OR SELLER’S COMMISSION ON THE AUCTIONED PROPERTY PAID BY YOU TO US IN CASE OF THE EVENT; OR (B) THE AMOUNT (FEE) PAID BY YOU TO US FOR THE SERVICE. WE WILL NOT BE RESPONSIBLE TO YOU FOR ANY REASON FOR ANY OTHER DAMAGES OR EXPENSES.
IN NO EVENT WILL OUR LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS TOU OR THE OWNERSHIP OF THE AUCTIONED PROPERTY, EXCEED: (A) THE BUYER’S PREMIUM OR SELLER’S COMMISSION AMOUNT PAID BY YOU TO US IN CASE OF THE EVENT; OR (B) THE AMOUNT (FEE) PAID BY YOU TO US FOR THE SERVICE.
10. General Provisions
10.1. Time is of the Essence
Time is of the essence of the performance of each and every covenant under this TOU and the satisfaction of each and every condition under this TOU.
Any headings and titles herein are for convenience only.
You and the Auctioneer expressly acknowledge that they have requested that this TOU and all ancillary and related documents thereto be drafted in the English language only.
10.4. Entire Agreement
This TOU and any documents expressly referred to in the TOU represent the entire agreement between you and us in relation to the subject matter of the TOU and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing. Both you and we acknowledge that, in entering into these TOU, neither you nor we have relied on any representation, undertaking or promise given by the other or implied from anything said or written between you and us prior to such TOU, except as expressly stated in the TOU.
10.5. Severability and Survival
If any of the provisions of the TOU are determined by any competent authority to be invalid, unlawful or unenforceable, such provision will to that extent be severed from the remaining TOU, which will continue to be valid and enforceable to the fullest extent permitted by law.
Provisions that, by their nature, should survive termination of this TOU shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership of intellectual property rights, and terms regarding dispute resolution.
Our failure to exercise or enforce any right or provision of this TOU will not constitute a waiver of such right or provision. A waiver by us of any default will not constitute a waiver of any subsequent default. No waiver by us is effective unless it is communicated to you in writing.
10.7. Governing Law
This TOU is governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law.
11. Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW DISPUTES BETWEEN YOU AND THE AUCTIONEER ARE RESOLVED.
You and the Auctioneer agree that any dispute, controversy or claim (hereinafter referred to as the “Dispute”) that has arisen, or may arise, between you and the Auctioneer (hereinafter referred to as the “Dispute Party”, and collectively, as the “Dispute Parties”) that relates in any way to or arises out of this or previous versions of this TOU, your use of or access to the Website, Event or Service, and the actions of the Auctioneer or its Representatives, except for the Bidding Dispute, will be resolved in accordance with the provisions set forth in this Dispute Resolution section and shall be governed in all respects by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Except as otherwise mutually agreed by the Dispute Parties, or as described in the Informal Dispute Resolution and Binding Arbitration paragraphs below the Dispute Parties agree to submit to the jurisdiction of the courts located in Toronto, Ontario for the resolution of any Dispute between the Dispute Parties.
11.1. Informal Dispute Resolution
To expedite resolution and control the cost of any Dispute brought by either Dispute Party, the Dispute Parties agree to first attempt to negotiate any Dispute (except for the Bidding Dispute) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Dispute Party to the other Dispute Party by email or through the online Contact Form (https://domusoptima.ca/contact/) on our Website. Please be sure to select the “Informal Dispute Resolution” category from the list of available categories of our Contact Form.
11.2. Binding Arbitration
If the Dispute Parties are unable to resolve the Dispute through informal negotiations, the Dispute (except the Bidding Dispute and those expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted pursuant to the simplified arbitration procedure set out in the arbitration rules of the ADR Institute of Canada, in force at the time of the Dispute and available at www.adrontario.ca. The Seat of Arbitration will be Toronto, Ontario. The language of the arbitration will be English. Unless the Dispute Parties agree or the arbitrator determines otherwise, the arbitration shall not involve any personal appearance by the Dispute Parties or witnesses, and shall be conducted by telephone, online and/or solely based on written submissions. The arbitrator is bound by the terms of this TOU. Payment of all filing, administration and arbitrator fees will be governed by the Simplified Arbitration Rules.
Judgement upon the arbitration award may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
The Dispute Parties agree that in no event shall any Dispute brought by either Dispute Party be commenced more than six (6) months after the cause of action arose; otherwise, such cause of action is permanently barred.
The Dispute Parties agree that any arbitration shall be limited to the Dispute between the Dispute Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
11.3. Improperly Filed Dispute
Any Dispute must be resolved in accordance with this Dispute Resolution section of the TOU. Any Dispute filed or brought contrary to the Dispute Resolution section shall be considered improperly filed. Should you file a Dispute contrary to the Dispute Resolution section, the Auctioneer may recover attorneys’ fees and costs up to one thousand five hundred Canadian Dollars (Ca$1500), provided that the Auctioneer has notified you in writing of the improperly filed Dispute, and you have failed to promptly withdraw the Dispute.
12. Questions or Concerns
Any questions, comments, feedback or concerns related to this TOU may be directed to us either through the Online Contact Form or by e-mail at or by mail at:
Domus Optima Co. Ltd.
17075 Leslie Street, Unit 7
Newmarket, ON, L3Y 8E1
Last updated: June 3, 2022 (TOU2022061)
Created: September 9, 2018