Last Modified: January 9, 2024
Thank you for choosing ClearEstate. Please read these terms carefully before accessing or using ClearEstate's Platform and Services.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND CLEARESTATE, AND BOTH YOU AND CLEARESTATE WAIVE THE RIGHT TO A JURY TRIAL OR CLASS ACTION. PLEASE READ SECTION 18 CAREFULLY TO ENSURE YOU UNDERSTAND HOW THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS AND THE REMEDIES AVAILABLE TO YOU. IF YOU ARE RECEIVING THE SERVICES AS AN ONTARIO RESIDENT SECTION 18(d) DOES NOT APPLY TO YOU.
2. Purpose of the ClearEstate Platform
The purpose of the ClearEstate Platform is to offer a comprehensive companion tool for Estate administration and planning. Among other Services, the ClearEstate Platform guides users through the stages of Estate administration or the Estate planning process, as applicable, making sure steps are completed at the right time.
You acknowledge and agree that if ClearEstate disables access to your ClearEstate Account, you may be prevented from accessing certain areas of the ClearEstate Platform, your ClearEstate Account details, and/or any files or other content contained on your ClearEstate Account.
“Beneficiaries” means the beneficiary or beneficiaries of the Estate (as the case may be), whether determined by intestate laws or Testamentary Documents.
“CEIAN” means ClearEstate Independent Attorney Network and is the term used by ClearEstate to refer to all Canadian lawyers and USA attorneys whose Legal Services are recommended to you as part of a plan you have purchased through ClearEstate.
“Claims” has the meaning set forth in Section 13.
“ClearEstate Agents” has the meaning set forth in Section 11.
“ClearEstate Platform” has the meaning set forth in the preamble.
“ClearEstate Platform Content” has the meaning set forth in Section 7.
“Deceased” means the person who has passed away and for whom the ClearEstate Platform and the Services are used to liquidate the Estate.
“Estate” means a Deceased’s inheritance, including all real estate; funds in bank, investment and other financial accounts; tangible property; electronic property; and trusts and other legal entities that are transferred from the Deceased to their Beneficiaries, in accordance with Testamentary Documents and rules.
“Estate Professional” refers to a ClearEstate employee who is dedicated, experienced, and trained to guide you through the estate administration or planning process, as the case may be. Estate Professionals cannot provide you with legal advice.
“Executor” refers to the person(s) designated by the Deceased or appointed by law to liquidate the Estate or execute his/her will in such capacity.
“FACFOA” has the meaning set forth in Section 24.a.
“Fiduciary Partner” means an individual or authorized trust corporation who has the capacity to act as personal representative, Executor, trustee or attorney of the Estate and is appointed in connection with a user’s purchase of a Professional Plan.
“Independent Professional Advisor” includes, without limitation, any third party tax advisor, accountant, appraiser, property manager, broker, wealth manager, notary, lawyer, attorney, or any other professionals or business partners, engaged by you to provide professional services.
“Legal Services” means the services delivered by an Independent Professional Advisor who is a Canadian qualified lawyer or USA qualified attorney, licensed by a Law Society or Bar Association in the jurisdiction where he or she is providing professional services to you, and who is referred to you through the CEIAN.“LSO” means the Law Society of Ontario.
“LSO Approved Services” means the services which the LSO has approved for inclusion in the Access to Innovation (A2I) Program which include:
● The operation of an online platform by ClearEstate, through which users may create testamentary documents and estate plans in Ontario, as well as manage the administration of the estate of a deceased where they have an interest;
● The administrative assistance and general guidance provided by ClearEstate related to estate planning or estate administration and probate in Ontario.
“OFAC” has the meaning set forth in Section 24.a.
“Ontario Disclosures” means the series of disclosures applicable to clients who reside in Ontario, as part of ClearEstate’s compliance under its registration with LSO’s Access to Innovation Program (A2I).
“Professional Plan(s)” means any of ClearEstate’s plan(s) pursuant to which a Fiduciary Partner is appointed by you to act as personal representative, Executor, trustee, or attorney (each, as the case may be) of the Estate.
“Purchase Terms” has the meaning set forth in Section 16.a.
“SEMA” has the meaning set forth in Section 24.a.
“Services” has the meaning set forth in the preamble.
“Testamentary Document(s)” refers to the will and power of attorney for property or health, and probate application pursuant to which an Executor has been appointed to act to settle the affairs of the Estate.
“User Submissions” has the meaning set forth in Section 8.
“Website” has the meaning set forth in the preamble.
a. No Provision of Legal Advice. ClearEstate is NOT a law firm, nor a lawyer and no attorney-client relationship or other form of legal privilege is created or exists between you and ClearEstate. The legal information contained on the ClearEstate Platform is not legal advice and is not guaranteed to be correct, complete, or up-to-date.
b. No Trust Services. ClearEstate is NOT a trust office, trust business, trust company, or trust corporation in any jurisdiction and at no time will hold any asset in trust for the Beneficiaries of any Estate. ClearEstate’s Estate administration Services only extend to assisting Executors or Fiduciary Partners in carrying out their respective tasks of a clerical or administrative nature.
c. ClearEstate Platform Limitations. The ClearEstate Platform is not suitable for use for complex Estate-settlement matters including, but not limited to, Estates with equity interests in corporations not wholly owned by the Estate, or Estates which are highly contentious. A lawyer should be consulted for planning and settling Estates of this nature.
d. Independent Professional Advisors. ClearEstate is not engaged to make any decision on your behalf. Under certain circumstances, ClearEstate may recommend that you engage the services of an Independent Professional Advisor and may maintain a list of recommended Independent Professional Advisors and may make such list available to you. You are permitted to engage Independent Professional Advisors from outside of the list made available to you. Under all circumstances, any Independent Professional Advisor engaged by you is engaged solely by you, and ClearEstate has no liability for any advice provided by any Independent Professional Advisor and shall be entitled to rely on the advice and instructions of any Independent Professional Advisors engaged by you. In the event you engage the services of an Independent Professional Advisor, ClearEstate will, to the extent you provide your written consent, share any documents, information and records requested by such Independent Professional Advisor.
e. ClearEstate Platform Availability. We make every effort to ensure that the features of the ClearEstate Platform are reliable and information posted to the ClearEstate Platform is accurate when published. However, despite our best efforts, we cannot guarantee that such information is accurate or complete, free from error or omission, or that it is up-to-date at all times. We cannot guarantee that the ClearEstate Platform will be accessible at all times or without interruption. We shall not be held responsible for any damages that may result from the inaccessibility of the ClearEstate Platform, or from any difficulties that you may experience while you access it, including: an interruption of electronic service; a network failure; the malfunction of any equipment, computer hardware or software; or any faulty, incomplete, incomprehensible or deleted transmission, whether or not such difficulties have been brought to our attention.
f. Law Society of Ontario Disclosures applicable to customers located in Ontario. The following disclosures apply to you in the event you are receiving Services related to or arising from the LSO’s Access to Innovation Program (“A2I”):
i. ClearEstate is an LSO approved participant in A2I;
ii. ClearEstate’s participation in A2I, and the LSO’s approval, is limited to the specific LSO Approved Services set out in the Certificate which are:
● The operation of an online platform by ClearEstate, through which users may create testamentary documents and estate plans in Ontario, as well as manage the administration of the estate of a deceased where they have an interest; and
● The administrative assistance and general guidance provided by the ClearEstate team related to estate planning or estate administration and probate in Ontario;
iii. The LSO has not certified or endorsed the effectiveness of the Services;
iv. The LSO shall not be held responsible or liable to you for any claims, losses, damages, or matters arising from the advertising of the LSO Approved Services, the provision of LSO Approved Services, the non-suitability of the LSO Approved Services for the purposes intended by you, or any other quality, availability, or LSO Approved Service issue, failure, or liability of the LSO Approved Services or ClearEstate.
v. The LSO shall not be responsible or liable to you for any claims, losses, damages, or matters arising from the advertising of Services, the provision of the LSO Approved Services, the non-suitability of the LSO Approved Services for the purposes intended by you, or any other quality, availability, or service issue, failure, or liability of the LSO Approved Services or ClearEstate.
vi. You can provide feedback to ClearEstate or make a Complaint by writing to us to firstname.lastname@example.org and following the steps indicated here;
vii. ClearEstate is not a law firm and is a business owned by non-lawyers. Some of the people who manage ClearEstate are not lawyers or paralegals licensed and regulated by the LSO;
viii. The ClearEstate Platform, business model and Approved Services have been developed and are maintained with input and recommendations from LSO Licensees;
ix. Some of the people involved in the provision of LSO Approved Services by ClearEstate are not lawyers licensed by the LSO. Accordingly, some service protections applicable to Legal Services provided by a lawyer licensed by the LSO may be different or may not be available, including:
● Any communications with or information provided to ClearEstate may not be subject to solicitor-client privilege;
● ClearEstate may be required under law to disclose information provided to it by you, including to authorities or third parties;
● Another party involved in your file may be using the same LSO Approved Services provided by ClearEstate;
● ClearEstate carries liability insurance, including coverage for errors and omissions made by ClearEstate, but this insurance coverage differs from that required of lawyers licensed by the LSO lawyers; There is no statutory complaints process available for the LSO Approved Services; and
● ClearEstate may be required to disclose de-identified customer information to the LSO as part of the LSO’s monitoring of the Services provided in Ontario. Information about you will ordinarily be disclosed to the LSO on a de-identified and aggregated basis. ClearEstate is committed to protecting your personal information, and any identifiable personal information will not be shared without your express consent. There may be circumstances where the LSO requires us to contact you on its behalf to request permission to share identifiable personal information about you with the LSO, for the purpose of monitoring the Services. In those circumstances, you agree that ClearEstate is authorized to contact you for that purpose.
x. CEIAN is a collective reference to lawyers and/or law firms who may be called upon to provide Legal Services directly to you. CEIAN does not exist as a legal entity. Service protections applicable to Legal Services provided by the lawyers and/or law firms referred to as CEIAN are the same as would be available with other lawyers or law firms including in respect of solicitor-client privilege, disclosure of information, conflicts and statutory complaints. Retainers for the provision of these Legal Services are between you and the lawyer or law firm directly.
g. Additional Fees. In certain circumstances, our plans, including Professional Plans, may be subject to certain additional fees connected with any exceptional effort required to administer an Estate. These circumstances include those involving corporate ownership, requiring corporate services, development of tax planning steps, administering unusual assets, managing an existing trust, acting as company Director, or any other circumstance where ClearEstate and/or ClearEstate Fiduciary Partner, are required to perform any task or duty not specifically set out in the applicable plan description set forth in the Purchase Terms. Additional fees will be charged at an hourly rate disclosed to you prior to such charges being incurred, based on the additional time, effort and responsibility involved in completing such tasks and duties.
6. Your Use of the ClearEstate Platform
Unfortunately, the transmission of information via the Internet is not 100% secure. Although we do our best to protect your information, we cannot guarantee the security of your information transmitted to our ClearEstate Platform. Any transmission by you of information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the ClearEstate Platform.
d. Consent to Communications. By creating a ClearEstate Account, you agree that you will receive essential communications relating to the Services you have purchased, and may, in addition receive other communications from us, such as newsletter, promotions, and account reminders and updates. You may unsubscribe to receive optional communications, such as marketing messages, however, you may not opt-out from essential communications, unless and until you cease your use of the ClearEstate Platform.
7. Intellectual Property Rights and Ownership
You understand and agree that the Website and the ClearEstate Platform and its entire contents, features, and functionality, including, but not limited to, all information, software, code, text, displays, graphics, photographs, video, audio, design, presentation, selection, and arrangement (the “ClearEstate Platform Content”), are owned by ClearEstate, its licensors, or other providers of such material and are protected in all forms by intellectual property laws including without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.
The ClearEstate name, logo, any trademarks and all related names, logos, product and service names, designs, images and slogans are trademarks of ClearEstate or its affiliates or licensors. You must not use such marks without the prior written permission of ClearEstate. You are prohibited from: (i) using, reproducing, modifying, adapting, translating, downloading or transmitting the ClearEstate Platform Content, in whole or in part; (ii) modifying, removing or covering any trademark or property notice included in or on the ClearEstate Platform Content or the ClearEstate Platform; and (iii) decompiling, disassembling, decrypting, extracting the ClearEstate Platform or performing reverse engineering on the ClearEstate Platform or its components, or assist anyone in doing the foregoing.
Other names, logos, product and service names, designs, images and slogans mentioned, or which appear on the Website or the ClearEstate Platform are the trademarks of their respective owners. Use of any such property, except as expressly authorized, shall constitute an infringement or violation of the rights of the property owner and may be a violation of federal or other laws and could subject the infringer to legal action. You agree not to remove, edit or otherwise alter trademarks, service marks, logos or other proprietary information contained on the Website or the ClearEstate Platform. Trademarks and the information contained on the Website or the ClearEstate Platform, including comments from users, may not be reproduced, in whole or in part, or used in any way without obtaining our prior written consent or the consent of the third-party owner of such intellectual property.
You shall not directly or indirectly reproduce, compile for an internal database, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Website or the ClearEstate Platform, in any form or medium whatsoever except:
a. Your computer and browser may temporarily store or cache copies of materials being accessed and viewed; and
b. In the event social media platforms are linked to certain content on the ClearEstate Platform, you may take such actions as our ClearEstate Platform and such third-party social media platforms permit.
You may not allow any third party (whether or not for your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any of the ClearEstate Platform’s Content without the express prior written consent of ClearEstate or its owner if ClearEstate is not the owner.
8. User Submissions
The following content standards apply to any and all content, material, and information a user submits, posts, publishes, displays, or transmits (collectively, “submit”) to or via the Website or the ClearEstate Platform (collectively, “User Submissions”).
You understand and agree that you are fully responsible for any User Submissions you submit, and you are fully responsible and legally liable to any third party, for such content and its accuracy. We are not responsible or legally liable to any third party for the content or accuracy of any User Submission by you or any other user of the Website or the ClearEstate Platform.
Without limiting the foregoing, you warrant and agree that your use of the Website and the ClearEstate Platform and any User Submissions shall not:
b. Violate the privacy of any individual, including other users of the Website or the ClearEstate Platform.
d. Include or contain any material that is exploitive, obscene, harmful, threatening, abusive, harassing, hateful, defamatory, sexually explicit or pornographic, violent, inflammatory, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or other such legally prohibited ground or be otherwise objectionable, such determination to be made in ClearEstate’s sole discretion.
e. Involve stalking, attempting to exploit or harm any individual (including minors) in any way by exposing them to inappropriate content or otherwise or ask for personal information as prohibited under applicable laws, regulations or code.
f. Involve, provide or contribute any false, inaccurate or misleading information.
g. Impersonate or attempt to impersonate ClearEstate, a ClearEstate employee, another user, or any other person or entity (including, without limitation, by using email addresses, or screen names associated with any of the foregoing).
h. Affect us adversely or reflect negatively on us, the Website or the ClearEstate Platform, our goodwill, name or reputation or cause duress, distress, or discomfort to us or anyone else, or discourage any person, firm, or enterprise from using all or any portion, features, or functions of the Website or the ClearEstate Platform, or from advertising, linking, or becoming a supplier to us in connection with the Website or the ClearEstate Platform.
i. Transmit, or procure the sending of, any advertisements or promotions without our prior written consent, sales, or encourage any other commercial activities, including, without limitation, any “spam”, “junk mail”, “chain letter”, contests, sweepstakes and other sales promotions, barter, or advertising or any other similar solicitation.
j. Encourage any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website or the ClearEstate Platform, or which, as determined by us, may harm ClearEstate or users of the Website or the ClearEstate Platform or expose them to liability, including modifying, disrupting, impairing, altering or interfering with the use, features, functions, operation, or maintenance of the Website or the ClearEstate Platform or the rights or use of the Website or the ClearEstate Platform by any other user.
k. Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, or alarm any other person.
l. Promote any illegal activity, or advocate, promote, or assist any unlawful act.
m. Give the impression that they originate from or are endorsed by us or any other person or entity, if this is not the case.
9. Site Monitoring and Enforcement and Account Suspension
We reserve the right to, without provision of notice to:
a. Discontinue your ability to upload information to the ClearEstate Platform;
b. Remove or refuse to accept or upload to the ClearEstate Platform any User Submissions for any or no reason in our sole discretion;
d. Take appropriate legal action, including, without limitation, referral to law enforcement or regulatory authority or notifying the harmed party of any illegal or unauthorized use of the Website or the ClearEstate Platform. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the ClearEstate Platform;
a. Termination by You. You may terminate your ClearEstate Account and any Services ordered using your ClearEstate Account at any time by providing us with a written notification or email sent to email@example.com at least thirty (30) calendar days prior to the intended termination date, or by such other means made available to you to do so on the ClearEstate Platform. You will continue to be obligated to make payment for the Services purchased.
b. Termination by ClearEstate.
ii. Information Requests. From time to time, ClearEstate may request that you provide us with certain information necessary to provide the Services. It is your responsibility to provide us with such requested information within thirty (30) calendar days from the date of request. If you fail to respond to any such request, we reserve the right to terminate the applicable Services and your access to the ClearEstate Platform or your ClearEstate Account without penalty or further notice to you, and without refund of any Services fees paid by you.
iii. Failure to Pay. If you fail to pay any amount due to ClearEstate for the Services when it comes due, your ClearEstate Account will be considered an “Account in Default” and you will be notified of such missed or declined payment. If you fail to make the necessary payment to bring your ClearEstate Account into good standing, your access to your ClearEstate Account and the ClearEstate Platform will terminate.
iv. Failure to Meet Fiduciary Partner Appointment Criteria. As set forth in Section 16.a, the appointment of a Fiduciary Partner is subject to the review and approval of such appointment by the Fiduciary Partner. In the event an Estate does not satisfy the appointment criteria of the named Fiduciary Partner, ClearEstate will work with you to find an alternate plan that is suitable for your situation and, if applicable, a partial refund will be issued. If a suitable alternate plan is not found, your Account will be terminated, no further payment will be required, and a partial refund will be issued.
v. Changing File Complexity. ClearEstate may terminate the Services if your estate becomes litigious or if its complexity changes such that it is no longer suitable for the ClearEstate Platform. In such cases, we will recommend that you obtain legal advice from a licensed lawyer in your jurisdiction.
vi. Completion of Services. Your access to your ClearEstate Account will terminate thirty (30) calendar days following the completion of the Services ClearEstate was engaged to complete.
ClearEstate expects that your use of the ClearEstate Platform and Services for estate administration should result in a settled estate within twenty-four (24) months.
ClearEstate expects that your use of the ClearEstate Platform and Services for estate planning should be completed within twelve (12) months (unless the annual maintenance fee add-on is purchased).
c. Effect of Termination. You will remain responsible to pay for all Services rendered to the date of termination of your ClearEstate Account or any Services ordered using your ClearEstate Account.
11. ClearEstate Account Access for Executors, Beneficiaries, Independent Professional Advisors and ClearEstate Agents
The ClearEstate Platform may provide you with the ability to provide “view-only” access to your ClearEstate Account or portions thereof to Beneficiaries and/or Independent Professional Advisors where such access reasonably required to provide the Services. You are solely responsible for granting such access to these individuals, and ClearEstate shall not be held responsible for any damages that you or other people may incur in connection with you granting access to your ClearEstate Account.
If you are accessing and using a ClearEstate Account as the Beneficiary of an Estate, or as an Independent Professional Advisor, you acknowledge and confirm that such access may be terminated at any time by the Executor without notice or penalty.
In connection with the delivery of certain Services, ClearEstate may engage its own advisors and agents (“ClearEstate Agents”) to review the documents and information submitted by you to the ClearEstate Platform, including completed forms and documents necessary to perform the Services. The ClearEstate Agents will have access to your ClearEstate Account and its contents to the extent necessary to provide the advice for which they have been engaged by ClearEstate.
12. Hyperlinks and Third-Party Service Providers
The Website and the ClearEstate Platform may, from time to time, contain hyperlinks that may direct users to third-party websites. Such third party websites are not under our control, and we make no representations about any other websites that may be accessed from the Website or the ClearEstate Platform. The third-party links included on the Website or the ClearEstate Platform are provided for your convenience, and the inclusion of such links does not imply a recommendation or endorsement by us of any such website or the products or services offered therein. Any third-party content, data or publications made available through the Website or the ClearEstate Platform are furnished by us on an as-is basis for your convenience and information. Any opinions, advice, statements, services, offers, or other information made available by third parties, including legal professionals or tax advisors, are those of the respective third parties not of ClearEstate. WE DISCLAIM ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT THE INFORMATION IN SUCH THIRD PARTY CONTENT IS ACCURATE OR COMPLETE.
If you choose to access third-party sites, you do so at your own risk. We have no control over the contents of any such third-party sites and accept no responsibility for such sites or for any loss or damage that may arise from your use of them. You are subject to any terms and conditions of such third-party sites.
THIS CLAUSE DOES NOT APPLY TO YOU IF YOU ARE RECEIVING THE SERVICES IN THE PROVINCE OF ONTARIO.
14. Limitation on Liability
a. EXCEPT WHERE SUCH EXCLUSIONS ARE PROHIBITED BY LAW,:
(i) IF YOU ARE LOCATED OUTSIDE OF THE PROVINCE OF ONTARIO, UNDER NO CIRCUMSTANCE WILL CLEARESTATE, ANY AFFILIATE OF CLEARESTATE OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, OR SUCCESSORS BE LIABLE FOR 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, PERSONAL INJURY, 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, THE ACTIONS OR OMISSIONS OF AN INDEPENDENT PROFESSIONAL PROVIDER, OR OTHERWISE, EVEN IF THE PARTY WAS ADVISED OR HAD REASON TO KNOW, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, OR RELIANCE ON, THE CLEARESTATE PLATFORM, ANY LINKED WEBSITES OR SUCH OTHER THIRD-PARTY WEBSITES, NOR ANY CLEARESTATE PLATFORM CONTENT, MATERIALS, POSTING OR INFORMATION THEREON EVEN IF THE PARTY WAS ADVISED OR HAD REASON TO KNOW.
IN ALL CASES, YOU ACKNOWLEDGE THAT CLEARESTATE’S TOTAL AND AGGREGATE LIABILITY FOR ANY INDIRECT, DIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR OTHER TYPES OF DAMAGES (INCLUDING IN PARTICULAR, PROPERTY DAMAGE, LOSS OF INFORMATION, PROGRAMS OR DATA, ECONOMIC LOSSES), WHETHER IN CONTRACT, TORT, OR EQUITY, ARISING FROM THE USE OF THE CLEARESTATE PLATFORM OR THE SERVICES RECEIVED, ANY CONTENT PROVIDED, A THIRD-PARTY WEBSITE, OR THAT ARISES FROM ANY ACTS OR OMISSIONS OF A USER, THE INABILITY TO USE OR ACCESS THE CLEARESTATE PLATFORM, WHETHER SUCH DAMAGE OR SUCH LOSS WAS REASONABLY FORESEEABLE, THAT YOU MAY CLAIM AND THAT MAY BE GRANTED TO YOU IS LIMITED TO THE AMOUNT YOU HAVE ACTUALLY PAID CLEARESTATE FOR ITS SERVICES.
(ii) IF YOU ARE LOCATED IN THE PROVINCE OF ONTARIO, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCE WILL WE BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR (a) ANY DIRECT DAMAGES IN AN AMOUNT THAT EXCEEDS THE GREATER OF (i) $2,500 IN THE AGGREGATE OR (ii) THE TOTAL AMOUNT PREVIOUSLY PAID BY YOU TO US IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE; AND (b) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE OR ANY OTHER LEGAL BASIS, ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE OR NON-LEGAL SERVICES; PROVIDED, HOWEVER THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY FRAUD, CRIMINAL MISCONDUCT, WILFUL MISCONDUCT, GROSS NEGLIGENCE OR MALICIOUS OR DISHONEST ACTS OR OMISSIONS.
15. Disclaimer of Warranties
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITE AND THE CLEARESTATE PLATFORM, ITS CONTENT AND ANY OF ITS SERVICES IS AT YOUR OWN RISK. THE WEBSITE, THE CLEARESTATE PLATFORM AND ITS SERVICES ARE PROVIDED ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF SERVICES RENDERED, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
NONE OF CLEARESTATE, ANY AFFILIATE OF CLEARESTATE OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS OR SUCCESSORS MAKE ANY WARRANTY, REPRESENTATION OR ENDORSEMENT WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, SUITABILITY, ACCURACY, CURRENCY OR AVAILABILITY OF THE CLEARESTATE PLATFORM OR ITS CONTENTS. WITHOUT LIMITING THE FOREGOING, NONE OF CLEARESTATE, ANY AFFILIATE OF CLEARESTATE OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS OR SUCCESSORS REPRESENT OR WARRANT THAT THE CLEARESTATE PLATFORM, ITS CONTENT, OR ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE CLEARESTATE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE CLEARESTATE PLATFORM OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT THAT THE CLEARESTATE PLATFORM WILL CONTINUE TO OPERATE, OPERATE WITHOUT INTERRUPTION OR BE FREE FROM ERROR.
WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES OR DATA AVAILABLE FOR DOWNLOADING FROM THE INTERNET (INCLUDING THE WEBSITE) OR THE CLEARESTATE PLATFORM WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE SOLELY AND ENTIRELY RESPONSIBLE FOR YOUR USE OF THE WEBSITE, THE CLEARESTATE PLATFORM AND YOUR COMPUTER, INTERNET AND DATA SECURITY. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, MAILBOMBING OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE, THE CLEARESTATE PLATFORM OR ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE WEBSITE OR THE CLEARESTATE PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
a. Our Fees
When ordering specific Services through your ClearEstate Account, you may be prompted to accept specific purchase or payment terms on our checkout page or provided to you over email or in any other manner (the “Purchase Terms”). All payments shall be made pursuant to the applicable Purchase Terms. Payments can be made in US dollars or Canadian dollars, using a credit card issued by Visa TM, MasterCard TM or American Express TM. In accordance with applicable laws, applicable sales, value-added or use taxes will be collected at the time of payment.
Unless otherwise expressly provided, fees payable for services rendered by third-party agents (including but not limited to ClearEstate Agents, appraisers, realtors, property managers, brokers, and Independent Professional Advisors), or costs for the transfer of real property, taxes, and court probate fees are not included in the cost of ClearEstate’s Services and will be charged as disbursements on any invoice you receive from us.
Complex cases may incur additional fees as set out in Section 5g, above.
For Professional Plans and certain other Services ClearEstate may, in its sole discretion, require the provision of satisfactory proof that the Estate is solvent before commencing the Services. ClearEstate reserves the right to withhold Services in cases where this proof is unclear or if any claim against the Estate arises. A Fiduciary Partner’s appointment is subject to review and approval of such appointment.
b. Payment Priority
By accepting the Purchase Terms, you agree that ClearEstate’s fees and expenses as described in the Purchase Terms are due and deemed payable from the beginning of the administration of your Estate and such fees shall rank senior to other debt owed by the Estate. If you have selected a Professional Plan and you have appointed a Fiduciary Partner as a co-Executor, co-trustee or co-attorney, you agree that ClearEstate’s fees and such Fiduciary Partner’s fees shall, to the extent permitted by law, be paid in priority to all other claims for fees and expenses by any co-Executors, co-trustees or co-attorneys.
17. Governing Law
18. Dispute Resolution
a. Mandatory Arbitration
b. Arbitration Rules
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the rules of the ADR Institute of Canada, Inc.
In an arbitration pursuant to this Section 18:
i. The parties shall appoint a single arbitrator who shall have such technical and other qualifications as may be reasonably necessary to enable the arbitrator to properly adjudicate upon the matter;
ii. the parties shall be deemed to have failed to concur in the appointment of a single arbitrator if the arbitrator is not appointed within fifteen (15) days after the service by one party upon the other of a notice requesting that it concur in such appointment. Any party shall then be entitled to apply to the ADR Institute of Canada, Inc. who shall have jurisdiction to appoint an arbitrator;
iii. the arbitrator shall have the right to appoint appraisers, experts, consultants and auditors as they in their sole discretion may consider necessary or advisable;
v. the decision of the arbitrator shall be in writing and shall be delivered to all of the parties to the dispute;
vi. the decision of the arbitrator shall be final and binding on the parties;
viii. the arbitration shall be conducted in Toronto, Ontario unless otherwise agreed by the parties and, except as modified in accordance with the Arbitration Act (Ontario) as amended from time to time.For greater certainty, remote arbitration is allowed when appropriate under section 22 of the Arbitration Act;
ix. in the event of the failure, refusal or inability of any arbitrator to act, a new arbitrator shall be appointed in his or her stead, which appointment shall be made in the same manner as hereinbefore provided for the appointment of the arbitrator so failing, refusing or unable to act;
x. it shall be a condition of the appointment of any arbitrator that the arbitrator shall maintain in strict confidence all documents, the transcripts of the proceedings and other materials and all information disclosed by or on behalf of the parties in the arbitration and shall not use the same or allow the same to be used for any purpose collateral to the arbitration and, at the request of the party that provided any documents or other printed materials, shall return all originals and any copies of such documents and printed materials. The arbitrator shall be responsible for ensuring that his or her officers, employees, representatives and consultants comply with this obligation of confidentiality; and
xi. the parties acknowledge, covenant and agree that they will not apply, nor will they have the right to apply, by any means, to any court to challenge any findings, determinations or issues of fact as determined by the arbitrator nor will they appeal or have the right to appeal to any court with respect to any findings, determinations or awards resulting from the arbitration process, all of which shall be final, conclusive and binding for all purposes.
Where applicable law requires a dispute relating to the Services and/or the Agreements to be resolved by litigation and does not prescribe the venue of such litigation, each of the parties irrevocably submits to the exclusive jurisdiction of the courts of the Province of Ontario and waives any and all objections to the exercise of jurisdiction by such courts. In addition, you agree that notwithstanding Section 18a, ClearEstate may seek injunctive relief in any court of law to address intellectual property infringement claims.
d. No Jury Trial or Class Action
THIS CLAUSE DOES NOT APPLY TO YOU IF YOU ARE RECEIVING THE SERVICES IN THE PROVINCE OF ONTARIO.
If for any reason a claim proceeds in court rather than in arbitration, both you and ClearEstate, each waive any right to a jury trial.
EXCEPT WHERE PROHIBITED UNDER APPLICABLE LAW, YOU AND CLEARESTATE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and ClearEstate agree in writing, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
19. Entire Agreement
You shall not assign or transfer your rights or obligations under this Term of Use or under any other document executed between you and ClearEstate without ClearEstate’s prior written consent, which consent shall be at our sole discretion. ClearEstate may, without restriction, assign, transfer or delegate this agreement and any rights and obligations hereunder, at its sole discretion.
24. Anti-Money Laundering
You represent and warrant that:
a. You are not a “specially designated national” or “blocked person” under United States sanctions administered by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”), a person identified under the Special Economic Measures Act (Canada) (“SEMA”), the Freezing Assets of Corrupt Foreign Public Officials Act (Canada) (“FACFOA”) or any United Nations resolution or regulation or otherwise a target of economic sanctions under other similar applicable Canadian, United States or foreign laws; and
b. You are not, and no Beneficiaries of the Estate are engaged in any business with any person with whom, or in any country in which it is prohibited for a person to engage under SEMA, FACFOA, any United Nations resolution or regulation or any other law or it is prohibited for a United States person to engage under law or under applicable United States sanctions administered by OFAC.
25. Force Majeure
27. English Language