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.
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
(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.
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
(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
(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
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
(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
(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
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.