Horse Power System™ License Agreement


Please read the following access agreement. By using Horse Power System™, you agree to the terms outlined below.
 
Horse Power System™ ONLINE ACCESS AGREEMENT
 
THIS AGREEMENT ("Agreement") is made and effective upon your acceptance of this agreement as indicated by clicking on the "accept" button at the bottom of the account sign-up form. The agreement is by and between the PROVIDERS (Lekrem Business Services Ltd, a Alberta Limited Liability Company ("Lekrem Business Services") and Paul Herr Consulting) (“Providers”) and you and the organization you represent.
 
RECITALS
 
The Providers owns and maintains an Internet survey service through its web site www.horsepowermetric.com ("Service"). The Service allows a consultant to create Horse Power System™ surveys for their clients use. The consultant sets up an account with The Providers to use the Service and creates a Horse Power System™ . Respondents then access the Service and answer the questions. The Service generates reports based on an analysis of the respondents' answers.

 
For purposes of evaluating the Service, The Providers may offer you a free demo survey ("Demo Survey"). The purpose of the Demo Survey is to allow you to evaluate whether the Service is suitable to your needs. The Demo Survey is fully functional; however, if the consultant decides not to continue with the service the data will be deleted.

 
NOW, THEREFORE, the parties agree as follows:
 
1. Service Provided.
 
(a) Subject to the terms and conditions of this Agreement, The Providers hereby grant the right to use Service (as defined above). You agree to pay applicable fees, if any, before gaining access to the data submitted by survey respondents. Rates for specified services will be provided in a written quote or per any fee schedule posed on the Horsepower System™ web site. Rates for surveys that are posted on the Horsepower System™ web site are subject to change. Rates are based upon (i) number of respondents who complete a survey; and (ii) custom services provided by The Providers, including but not limited to customization of the survey interface, customization of reports, and technical support. For purposes of the foregoing, an "item" means a single question in the form of multiple choice, short answer response, or as otherwise allowed in the sole discretion of The Providers.
 
(b) If you conduct a Demo Survey, you acknowledge the terms of this free offer as listed on the Horsepower System™ web site. If the Demo Survey goes beyond the scope of the offer as specified, you will be responsible for all applicable fees associated with the survey. The Providers reserve the right to withhold data for any Demo Survey that does not conform to the limitations of the offer.
 
(b) All rights granted in this Agreement shall be non-exclusive, non-transferable and non-sublicensable.
 
(c) The parties acknowledge that The Providers may provide separate consulting or survey customization services under terms and conditions that are not covered in this Agreement.
 
(d) You agree not to interrupt or attempt to interrupt the operation of the Service in any way. You further acknowledge that The Providers cannot guarantee uninterrupted access or availability to the Service.
 
(e) The Providers reserve the right to withhold data for any unpaid services. If services remain unpaid for thirty (30) days, The Providers reserve the right to delete all data at its sole discretion.
 
2. Password, Account and Security. You will receive a password and account designation and are fully responsible for maintaining the confidentiality of such password and account, and are fully responsible for all activities that occur under such password or account. You agree to immediately notify The Providers of any unauthorized use of your password or account or any other breach of security.
 
3. Maintenance of Survey Data.
 
(a) Absent technical difficulties, all survey questions and answers ("Survey Data") will remain on the The Providers server for the duration of this Agreement unless it is deleted by a user of your account or unless you request in writing that The Providers delete the Survey Data. The Survey Data will be made available to you for a period of thirty (30) days after this Agreement is terminated, at which time The Providers may delete the Survey Data in its sole discretion. The foregoing notwithstanding, some Survey Data may be maintained indefinitely on backup storage devices.
 
(b) Subject to The Providers right to assign its rights and delegate its duties under this Agreement, The Providers will not sell or publicize the Survey Data, or otherwise use it for profit or disclose it to a third party without your written consent.
 
(c) The Providers attempt to maintain backup storage devices containing the data collected through the Service and will use reasonable efforts to retrieve any lost Survey Data. You expressly acknowledges that The Providers are not liable for any loss of Survey Data and cannot guarantee that any Survey Data will be available.
 
4. Termination.
 
This Agreement shall terminate upon a request in writing from you to do so. The foregoing notwithstanding, The Providers reserve the right to terminate this Agreement at any time by written notice to you or upon a change of control. For purposes of the foregoing, a "change of control" shall mean transfer of ownership, in part or in full, to another party. Written notice is contingent upon the accuracy of the contact information you provide and may be provided via email.
 
5. Ownership; Limitations of Use; Confidentiality.
 
(a) All rights not expressly granted to you under this Agreement are retained by The Providers, including all patent, copyright, trade secret, trademark and other proprietary rights therein ("Proprietary Information"). Proprietary Information further includes the survey and reporting formats and design provided through the Service. You may not translate, decompile, disassemble or reverse engineer the Service, its software or any documentation thereof.
 
(b) You acknowledge that The Providers, as the sole and exclusive owner, expressly retains the right to modify the Service from time to time. Such modification may include changing the location of the Service on the Internet at any time with or without notice to you in any manner, notwithstanding Section 8 herein, that The Providers deem appropriate.
 
(c) During the term of this Agreement, you shall take all reasonable steps to ensure the security and confidentiality of Proprietary Information and shall not disclose such information or any part thereof to any third party without the prior written consent of The Providers. You may disclose the Proprietary Information to officers and employees of your organization only to the extent necessary to enable you to use the Proprietary Information as granted hereunder; provided however, that such officers and employees are required to keep the Proprietary Information secure and confidential.
 
(d) You further agree to prominently mark all Proprietary Information with The Providers copyright notice.
 
6. Disclaimer of Warranties; Limitation of Liability.
 
(a) THE SERVICES PROVIDED IN THIS AGREEMENT ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
 
(b) IN NO EVENT SHALL THE PROVIDERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, OR COSTS OF REPLACEMENT GOODS) ARISING OUT OF THE USE, INABILITY OF USE, OR THE RESULTS OF USE OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF CUSTOMINSIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
 
(c) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS CONTAINED IN THIS SECTION MAY NOT APPLY.
 
7. Notices. All notices and other communications which are required or may be given hereunder shall be in writing and shall be delivered via email, return receipt requested, or by telecopy. All notices and other communications shall be deemed given when actually received by a party.

 
8. Remedies in Equity. You expressly agree that it would be impossible or inadequate to measure and calculate The Providers damages from any breach of the covenants set forth in Section 6 herein. Accordingly, you agree that if it breaches such section, The Providers will have available, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specific performance of any provision of this Agreement. You further agree that no bond or other security shall be required in obtaining such equitable relief and hereby consents to the issuance of such injunction and to the ordering of specific performance.
 
9. General Provisions.
 
(a) Applicable Laws and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the province of Alberta without reference to its choice of law rules. You expressly agree to submit to the personal and exclusive jurisdiction of the courts located within the province of Alberta.
 
(b) Entire Agreement; Enforcement of Rights. This Agreement constitutes the entire agreement between the parties and supersedes in their entirety all prior undertakings and agreements of the parties with respect to the subject matter hereof. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by both parties. The failure of The Providers to enforce any rights under this Agreement shall not be construed as a waiver of any rights of The Providers.
 
(c) Severability. Should any provision of this Agreement be determined to be invalid or unenforceable, the validity and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 
(d) Construction. A rule of construction that requires any ambiguity to be construed against the drafting party shall not apply in interpreting this Agreement.
 
(e) Arbitration. The Parties expressly agree and acknowledge that any dispute, claim or controversy of any kind arising out of or relating to this Agreement shall at the request of either party be resolved exclusively by binding arbitration in Edmonton, Alberta or any other location mutually agreeable to the parties.
 
(f) Assignment. Unless The Providers consent in writing, you shall not assign your rights or delegate your responsibilities under this Agreement and any attempt to do so shall be invalid. The Providers may assign its rights or delegate its responsibilities under this Agreement to any third party.
 
(g) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
 
(h) Headings. Headings contained herein are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
 
10. Marketing Provisions. By using The Providers services (beyond the scope of a Demo Survey) you agree to let The Providers include your organization's name and/or logo on The Providers customer list, at The Providers sole discretion. The Providers may use your organization's name and/or logo in any sales or marketing material, including but not limited to (i) the The Providers web site; (ii) printed sales and marketing materials; and (iii) advertising materials. Rights to use your organization's name and/or logo include use of any Demo Survey that extends beyond the scope of the free offer. The Providers may ask for your permission to include more information in its sales and marketing materials, but will not disclose any information other than your organization's name and logo to a third party, including details of service provided, without your prior written consent.

IN WITNESS WHEREOF, the parties have executed this Agreement upon your acceptance of this agreement. Your acceptance of this agreement is indicated by clicking on the "Accept" button on the sign-up form.