Effective as of November 7, 2018
1.1. “Services” has the meaning set forth in Section 2 below.
1.2. “Software” means the MetricWire application that a user can use on a computer or supported mobile device in order to utilize the Services; the Software may be downloaded or accessed on the Internet.
2. The Services
2.1. What the Services are. MetricWire will provide users with the ability to respond to surveys, questionnaires, and other feedback collection mechanisms posted by researchers and other data collectors (the “Services”). The Services are provided subject to the terms and conditions of this Agreement and the fees posted for such Services on MetricWire’s website (if any), as may be changed from time to time in MetricWire’s sole discretion.
2.2. Information you must provide. In order to use the Services, you must:
(a) provide up-to-date, complete and accurate registration information;
(b) where you are obtaining Services subject to a fee, provide up-to-date, complete and accurate credit card information for a credit card that is valid and legally registered to you, or otherwise pay in full or guarantee payment for the Services; and
(c) be at all times in compliance with the terms and conditions of this Agreement and applicable law.
You specifically agree that MetricWire may rely on the accuracy of the information provided by you to MetricWire, and that MetricWire will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to MetricWire.
2.3. Discontinuing the Services. MetricWire reserves the right to change, suspend or discontinue the Services at any time, including the availability of any feature or content, account access, or any promotion offered by MetricWire. MetricWire may also impose limits on the Services and/or terminate or restrict your access to parts or all of the Services without notice or liability.
3. Your Use of the Services
3.1. Restrictions and Parameters of Use. You agree that:
(a) You will only use the Services in accordance with this Agreement and applicable law;
(b) You will be solely responsible for all activities with respect to the Services undertaken by you;
(c) You will not use the Services for any commercial purposes or for the benefit of any third party;
(d) You represent and warrant that you have the right and the authority to enter into this Agreement and to use the Services, and will provide accurate information to MetricWire;
(e) You will not in any way use the Services to transmit harassing, abusive, libelous, illegal or deceptive messages or information, or to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts;
(f) You will not alter, modify, delete, or otherwise interfere with or in any manner compromise the Services or Software or any content accessible through the Services;
(g) You will cooperate with MetricWire and provide information requested by MetricWire to assist MetricWire and/or relevant authorities in investigating or determining whether there has been a breach of this Agreement or applicable law.
Without limiting the foregoing, you agree not to violate any applicable laws, the rights of others, or the operational and security mechanisms of the Services.
4. The Software
4.1. License Grant. MetricWire hereby grants you a personal, non-exclusive, revocable, non-transferable license to use the Software in accordance with the terms of this Agreement, solely for the purposes of using the Services.
4.2. Restrictions on Software Use. You shall not:
(a) copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Software or any part thereof;
(b) distribute, assign, license, sublicense, lease, rent, transfer, sell or otherwise provide access to the Software, in whole or in part, to any third party on a temporary or permanent basis;
(c) remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Software (including without limitation any copyright notice);
(d) copy any written materials accompanying any portion of the Software unless specifically authorized in writing to do so by MetricWire; or
(e) use the Software in any way inconsistent with the use parameters for the Services;
For the purposes of this provision “copy or reproduce” shall not include copying of statements and instructions of the Software during program execution when used in accordance with and for the purposes described in the user documentation or in the course of making backups of the computer or system on which the Software is installed, in accordance with industry standard business practices.
4.3. Compliance with Laws. You hereby represent and warrant that (i) you are not located in a country that is subject to a Canadian or U.S. Government embargo, or that has been designated by the Canadian or U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any Canadian or U.S. Government list of prohibited or restricted parties.
5. Fees for Services
5.1. Payment of Fees. You agree to pay all applicable fees in connection with the Services selected by you. You authorize MetricWire to automatically charge you for any and all fees incurred by you for Services. MetricWire reserves the right to change its price list and to institute new charges at any time upon notice to you, which notice may be provided by means of updates on MetricWire’s website. Your use of the Services following such changes constitutes your acceptance of any new or increased charges.
5.2. Non-Payment. Where your credit card or other payment method is rejected for any reason, you will also be responsible for any fees and charges associated with such rejection. The foregoing shall not limit MetricWire’s ability to exercise any rights available to it in law or equity respecting the collection of any amounts payable hereunder, and you shall also be responsible for paying for all reasonable fees and costs incurred by MetricWire, including legal fees, in collecting any overdue amounts or enforcing any provision of this Agreement.
5.3. Interest. In addition to any other rights and remedies available to MetricWire, MetricWire shall be entitled to charge interest on all outstanding amounts at the lesser of 1.5% per month or the maximum rate permitted by law, such interest commencing as of the due date for such payment.
6. Privacy and Confidentiality
7. Intellectual Property Rights
7.1. Ownership of Intellectual Property. You acknowledge that the Software is owned by MetricWire, who retains all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws. You do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Software, the Services, or any part thereof. Your only rights to the Software, the Services and any part thereof shall be those rights expressly licensed or granted to you under this Agreement. Any rights not expressly granted under this Agreement are reserved.
8. Disclaimer of Warranties
8.1. No Warranty. The Software and Services are provided to you “AS IS” without warranty or conditions of any kind, whether express or implied, including, but not limited to, the implied warranties or conditions of merchantability and fitness for a particular purpose, title, non-infringement, security or accuracy. MetricWire assumes no responsibility for any errors, omissions or inaccuracies whatsoever in the information provided through the Services or Software. Under no circumstances will MetricWire be liable for any loss or damage caused by your reliance on information obtained through use of the Services or the Software. It is your responsibility to evaluate the accuracy, completeness and usefulness of any information provided, and use of the Services and Software is solely at your own risk. MetricWire has no special relationship with or fiduciary duty to you, and you acknowledge that MetricWire has no control over, and no duty to take any action regarding any acts or omissions taken by you or any researcher or data collector using the Services, including without limitation: (a) what material you access on or through the Services, or (b) how you may interpret or use materials accessed through the Services, or (c) the surveys, questionnaires or other feedback mechanisms posted by researchers or data collectors through the Services. MetricWire makes no representations or warranties whatsoever concerning any information obtained through the Services, and MetricWire will not be responsible or liable for the accuracy, copyright compliance, legality or decency of any material contained in or accessed through the Services. Some jurisdictions do not allow the exclusion of certain warranties, so the above limitations or exclusions may not apply to you.
9. Limitation of Liability
9.1. Damages. The only type of damages that can be recovered against MetricWire arising from or related to this Agreement including without limitation in relation to the provision of the Services, shall be your direct damages, if any, arising from MetricWire’s gross negligence or wilful misconduct. Without limiting the foregoing, your only right with respect to any problems or dissatisfaction with the Software is to uninstall and cease use of such Software.
9.2. No Liability. Except for the limited direct damages specified above, to the maximum extent permitted by law, in no event shall MetricWire be liable for any damages whatsoever (including, without limitation, indirect, special, incidental, exemplary or consequential or punitive damages) whether or not such damages were foreseen or unforeseen including without limitation the use of or inability to use the software or services, even if MetricWire has been advised of the possibility of such damages.
10.1. Your Responsibility for Claims. You agree to indemnify, defend and hold harmless MetricWire, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of: (a) your access to the Services, the Software, and any content obtained by you through the Services or Software, (b) your use or misuse of the Services and/or Software, (c) any breach of this Agreement by you, or (d) your violation of any third-party rights or any applicable laws. MetricWire reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with MetricWire, at your expense, in asserting any available defences.
11.1. Your Termination. You may terminate this Agreement at any time upon notice to MetricWire. Upon any termination of this Agreement for any reason (whether by you or by MetricWire), you must cease all use of the Services and Software and destroy and/or permanently delete all copies of the Software in your possession.
11.2. MetricWire’s Termination. MetricWire reserves the right, in its sole and complete discretion, to revoke your authorization to use the Services at any time with or without cause, for any reason or no reason. Upon termination of your account, your right to use the Services and/or access any materials through the Services will immediately cease. Any fees paid by you are non-refundable. All restrictions contained in this Agreement shall survive the termination of your right to use the Services.
11.3. MetricWire’s Rights on Termination. Without limiting other remedies, MetricWire may limit your activity, warn other users of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your account and refuse to provide Services to you if: (a) you breach this Agreement; (b) MetricWire is unable to verify or authenticate any information you provide; or (c) MetricWire believes that your actions may cause financial loss or legal liability for you, other users or MetricWire.
11.4. No Exclusive Remedy. The above-described actions are not MetricWire’s exclusive remedies and MetricWire may take any other legal, equitable or technical action it deems appropriate in the circumstances. MetricWire will not be liable for any damage caused by the termination of this Agreement.
12. Third Party Application Stores
12.1. Third Party Application Store Terms and Conditions. If you have obtained the Software through a third party application store, such as Google Play Store, BlackBerry App World, Amazon Appstore or Apple iTunes or App Store (the “Third Party App Store”), you are subject to all terms and conditions imposed by such third parties in relation to your download of the Software and/or use of the Services, as applicable. Such Third Party App Store may impose additional restrictions, or may have additional rights, in relation to your use of the Software or Services, such as removal of the Software from your mobile device; it is solely your responsibility to ensure that you are aware of the terms and conditions imposed by the Third Party App Store from which you downloaded the Software, and to comply with such terms and conditions. To the limited extent that this Agreement is less restrictive than the usage rules or terms and conditions for software downloaded from a Third Party App Store, or is in direct conflict with, the Third Party App Store terms of service or like agreement as they relate to your obligations to the Third Party App Store and MetricWire, the usage rules of the Third Party App Store shall apply.
12.2. Third Party Liability. Although the Software is being made available to you through Third Party App Stores, You acknowledge that this Agreement is concluded solely between you and MetricWire, and not with the Third Party App Store, and the Third Party App Store shall have no responsibility whatsoever respecting the Services, Software and the content thereof (including without limitation in relation to the sale, distribution or use thereof, or the performance or non-performance thereof).
12.3. Third Party Beneficiaries. Each Third Party App Store from whom you have downloaded the Software is a third party beneficiary of this Agreement, and, upon your acceptance of the terms and conditions of this Agreement, such Third Party App Store will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. With respect to BlackBerry App World, such third party beneficiaries shall also include airtime service providers (which for clarity includes telecommunications carriers), and any MoR (as defined in the BlackBerry App World™ Vendor Agreement) making the Software available through its Kiosk.
13. General Provisions
13.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties. There are no provisions, representations, undertakings, agreements, or collateral agreements between the parties other than as set out in this Agreement.
13.2. Governing Law. This Agreement is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada. The parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement or to any contracts relating to goods or services obtained through this site.
13.3. Severability. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in full force and effect.
13.4. English Language. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
13.5. Age Restriction. If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install or use the Software. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to use Software or Services of this type, you may not enter into this Agreement and you may not download, install or use the Software. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction if your use of the Software and Services is allowed.
14.1. If you have any questions regarding this Agreement, or if you have any questions, complaints, claims or other legal concerns relating to MetricWire or its business, please contact MetricWire at:
PO Box 22015 Westmount PO
Waterloo, Ontario, Canada