HandyMetrics End User License Agreement v1.0
Effective Date: July 1, 2018
“You” or “you” means the individual who downloads, installs, accesses, publishes to, or uses the App (and, if you represent a legal entity, it also means that entity, and you represent and warrant that you are authorized to enter into this agreement for that entity).
HandyMetrics is the owner and/or licensor of an application called “QIPAudit” (the “App”). For purposes of this EULA, HandyMetrics’ “App” consists of: HandyMetrics’ website, a mobile application, including software, code, text, graphics, logos, designs, layouts, interfaces, and other items included in or associated with the application; and any updates, supplements, and the product of any support or other services provided by HandyMetrics in respect of the App, all of which are deemed included within the App upon delivery to you. The App may be delivered to you electronically, directly or through a third party. The App may enable your access to one or more websites, other applications, databases, Templates, or other products and services offered by HandyMetrics or accessible through HandyMetrics’ systems (“Services”) and access to Templates, text, software, scripts, graphics, photos, sounds, audio, video, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Services (“Content”).
The main purpose of the App is to enable end users (who we call “Auditors”) to capture data using templates (“Templates”). Templates can be downloaded by licensed Auditors from our site’s ‘store’. Templates are created and posted to our site by “Publishers”. Publishers may include HandyMetrics and third parties. Publishers control authorization and access to individual Templates they post. Publishers can post Templates as “public” (any licensed Auditor can access them) or “semi-private” (anyone can see they exist, but only authorized individuals can see or access the contents) or “private” (only authorized individuals can see they exist, see or access the contents). Publishers can authorize Organizations to use and to sub-license Templates and other Content to Auditors and can authorize individual freelance Auditors.
Auditors may be associated with one or more organizations that use or support the App (“Organizations”), or freelance. Licensed freelance Auditors have access to data posted as publicly available without further restriction (unless otherwise noted), to public Templates, and to such other information as may be agreed by acceptance of supplemental terms and conditions of HandyMetrics, a Publisher, or an owner of particular data. Organizations can designate persons as organization Auditors, with the right to access and use data of that organization and to access and use Templates published by that Organization or licensed to that Organization by a Publisher on these terms and conditions plus such further terms and conditions as that Organization may impose from time to time in its discretion.
This EULA states the terms and conditions on which HandyMetrics grants, and you accept a limited, non-exclusive license to install and use the App on one or more devices or mobile devices owned by you or under your legitimate control, to engage in non-commercial use of the App, and upon which HandyMetrics may make available access to Services and Content. By installing or using the App, you accept all of the terms and conditions of this EULA.
Upon acceptance, these terms and conditions are enforceable against you and any entity that obtained the App and on whose behalf it is used. All rights to use the App are forfeited if you fail to comply with the terms of this EULA.
HandyMetrics, any Publisher, and any Organization may change its terms at any time without prior notice. The revised terms will become effective upon the earlier of posting to any of the App, website, or otherwise provisioned to the licensee. Any use of the App after such date shall constitute your acceptance of such revised terms. If any change to these terms is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the App.
There may be additional terms that HandyMetrics presents to you from time to time, for example, at the time of a download (“Additional Terms”). In the event of a conflict between this EULA and any Additional Terms, the Additional Terms will control, unless the Additional Terms expressly state otherwise.
HandyMetrics may suspend or discontinue offering the App; modify the App; change or discontinue the Services available through the App; change how it offers and operates such Services (e.g., to begin charging a fee to access features, services, or Content that had previously been made available without charge); remove Content; alter Content; impose limits on certain features or restrict your access to part or all of the App, Services and Content; or make other changes in product and service offerings at its sole discretion and with or without notice to you. HandyMetrics will not be liable to you or any third party for taking any of these actions.
You further acknowledge and agree that even if a copy of the App continues to reside on your device after HandyMetrics makes changes in its product or services offerings, the App may not work as it did prior to such action, and HandyMetrics will have no liability to you or any third party as a result.
Your license is not transferable without prior written notice to and the express consent of HandyMetrics, which will not be unreasonably withheld.
You acknowledge that Templates you upload to the Services may be posted to or hosted at HandyMetrics’ sites, and will be accessible to Auditors as public, semi-public, or private, with the authorization and access controls you have expressed.
HandyMetrics’ Services are intended to enable Publishers to post Templates to the Services and to allow licensed Auditors to access Templates through the use of the App, and to allow Auditors to obtain reports from Content supplied to the App.
If you are a Publisher, you are solely responsible for your own Templates and the consequences of submitting and publishing your Templates on the Services; and you represent and warrant that you own or have sufficient rights to post such Templates for their use on the App, and to grant authorization and access to those Templates.
The HandyMetrics Terms of Service contain your grant of rights and licenses to HandyMetrics, and its service providers, and other users of the Services to your Content and your obligations to HandyMetrics and to the HandyMetrics community. You will not submit to the Services any Templates or other material that is contrary to HandyMetrics’ Terms of Service, or contrary to applicable local, national, and international laws and regulations.
By using the App you agree HandyMetrics may offer access to its, your, and third party Templates, and may use the App to deliver to you its Content, your Content, third party Content, push notifications, text messages, MMS messages, advertising and other electronic commercial messages based on parameters determined by HandyMetrics. You may discontinue receipt of push messages in your device’s or the App’s settings or by deleting the App, as applicable.
Your uploaded Templates are subject to the following additional provisions:
1. If a Template has been accessed by one or more Auditors as a public Template, you agree that Template shall remain accessible in perpetuity as a public Template.
2. If a Template has been posted as semi-private or private, you agree that Template shall remain accessible to Auditors or classes of Auditors you have designated in accordance with the terms of your grant of access to those end users which supplement our Terms of Service.
Each Publisher agrees that any Template may be customized by it or third parties. Any person authorized to access a particular Template may add one or more customizations to a Template or another customizations. Each such customization shall be subject to the permissions and restrictions on permissions granted by the initial Publisher of the Template, plus such further restrictive view and access provisions as the Publisher of each overlay may impose.
You acknowledge that the App may check for updates to the App that may be available to you, and may deliver those updates to you electronically.
HandyMetrics will collect and will be entitled to use your data, including without limitation, registration and user registration data, telemetry data (e.g., operating system, number of processors, graphic chipset, memory, device type, locale, time), and error reporting data in order to improve the App, the Services, and HandyMetrics software, products and services generally, and or any other commercial purposes elected by HandyMetrics.
Ownership and Your Restrictions on Use
HandyMetrics owns or has all necessary licenses to the App and to all intellectual property rights associated with the App. The App is protected by the copyright laws of Canada, the United Kingdom, the United States of America, international treaties and conventions, and other laws. Except as expressly stated herein, you have no intellectual property rights in or to the App (including without limitation any rights to use the trademarks, trade names, service marks, logos, domain names, and other distinctive brand features), and HandyMetrics and its licensors reserves all rights not expressly granted to you. You must comply with all laws when using the App as well as all applicable copyright, trademark or other legal notices or restrictions.
You may not:
1. Make copies of the App, other than as part of your normal backup and archiving processes, or as otherwise allowed by applicable law.
2. Reverse engineer, decompile, or disassemble the App or permit third parties to do so, except to the extent required to obtain interoperability with other independently created software as explicitly permitted by law.
3. Work around any technical limitations in the App.
4. Alter or in any other way modify nor cause or allow others to alter or modify the App provided to you in object code form for which the source code form is not also provided.
5. Publish the App or any part for others to copy.
6. Rent, lease or lend the App.
7. Use the App for commercial software hosting or service bureau services.
8. Transfer or distribute this license or your original or any backup copy of the App to another computer or to any other person or legal entity.
9. Disclose the results of any benchmark tests of the App to any third party without HandyMetrics’ prior written approval.
If the App contains software developed by a third party, such third party shall be considered a third party beneficiary of your restrictions and obligations under this EULA.
Warranty Disclaimer and Limitations of Liability
HandyMetrics disclaims all express or implied warranties, including, without limitation, non-infringement, merchantability, fitness for a particular purpose, title, quality, availability, and as to subject matter of content. The Application, Services, and Content are provided to you “as is”, “as available”, and “with all faults”.
HandyMetrics does not warrant that (a) the App’s functions or any Services or Content will be uninterrupted or free or errors or omissions; (b) that there are no defects or that defects will be corrected; (c) that the App or the servers hosting Content will be free of viruses or other harmful code; (d) or that the App, Services, or Content shall continue to be available. HandyMetrics shall have no liability for any such issue.
HandyMetrics and its data providers do not accept any liability for any error or omission in the information available or the recommendations made through the App and exclude all liability for any action you may take or loss or injury you may suffer (direct or indirect including: loss of income, profit, opportunity or time) as a result of relying on any information available through the App.
You acknowledge and agree that HandyMetrics is not liable for any loss or damage which may be incurred by you as a result of any reliance placed by you on the completeness, accuracy, or existence of any advertising, products, or other materials on or available through the Services.
Your access to and use of the App and any Services is at your risk. If you are dissatisfied with the App or any of the Services or Content available to you, your sole and exclusive remedy is to discontinue accessing and using the App.
Neither HandyMetrics nor anyone else who has been involved in the creation, production, or delivery of the App shall be liable for any indirect, consequential, or incidental damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of the use of or inability to use such App even if HandyMetrics knew or should have known about the possibility of such damages, and regardless of the form of action (including negligence).
You can recover from HandyMetrics and its suppliers only direct damages, up to a maximum of the amount you paid to acquire your license to the App in total. This limitation applies to: anything related to the App, any services provided by HandyMetrics in respect of the App, any content supplied by HandyMetrics or its agents, and any third party programs, as well as all claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or any other tort, to the maximum extent permitted by law. The above limitation or exclusion may not apply to you if your jurisdiction does not allow the exclusion or limitation of incidental, consequential or other damages.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
YOU AND HANDYMETRICS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE APP OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
You will indemnify, defend, and hold HandyMetrics and all of its officers, directors, owners, employees, agents, information providers, service providers, vendors, contractors, affiliates, partners, and licensors (collectively, the “HandyMetrics Parties”) harmless from and against any and all liability, losses, costs, and expenses (including lawyers’ fees) incurred by any of the HandyMetrics Parties in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity or privacy, copyright infringement, or trademark infringement arising out of: your use of the App or any Services; any use or alleged use of your account or your passwords (if any) by any person, whether or not authorized by you; your connection to HandyMetrics’ or its vendors’ servers; your violation of this EULA; or your violation of the rights of any other person or entity. HandyMetrics reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify HandyMetrics, and you will cooperate with HandyMetrics’ defense of these claims.
U.S. Government Users
All software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial rights and restrictions described elsewhere herein, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (Jun 1995).
The App is subject to Canadian and United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use.
Law / Forum
This EULA, its interpretation, and any claims for breach of it, is governed by the laws of the Province of Ontario, and the laws of Canada applicable therein, without regard to conflict of laws principles. Any proceeding against AWE in respect of the interpretation or enforcement of this EULA is to be submitted to a court of competent jurisdiction in the judicial district of Toronto, Province of Ontario. You consent to the personal and subject matter jurisdiction of the courts in the Province of Ontario, Canada.
This EULA is effective until terminated. You may terminate this EULA at any time by: (i) irretrievably erasing, deleting, or destroying all copies of the App in your possession or control; and (ii) ceasing to use the Services and Content available through the App. HandyMetrics may terminate this Agreement at any time for any reason or no reason. However, if you paid HandyMetrics to acquire the App, and we terminate this EULA within one year after you made your payment for reasons other than your breach of this EULA, we will refund a prorated portion of the purchase price corresponding to the portion of such one year period for which our action caused you not to be able to use the App. Upon termination for any reason, the license granted to you will immediately terminate. The rights of HandyMetrics herein and the licenses you granted to HandyMetrics in this EULA will survive any termination.
If any provision of this EULA shall be unlawful, void, or for any reason unenforceable, then such provision shall be severable from this EULA and shall not affect the validity and enforceability of any remaining provisions.
This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, which is expressly excluded and you also expressly agree to exclude the applicability of the Uniform Computer Information Transactions Act.
A printed copy of this EULA and of any notice in electronic form shall be admissible in any judicial or administrative proceedings to the same extent and under the same conditions as other business documents and records originally generated and maintained in printed form.
You agree that you will only sue HandyMetrics as an individual.
This EULA, including documents incorporated by reference or referenced herein, constitutes the entire agreement between you and HandyMetrics with respect to the App, the Services, and any Content.
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION AND YOU AGREE THAT YOU SHALL ONLY BRING A CLAIM AGAINST HANDYMETRICS, ITS PARENT AND AFFILIATES, AND RELATED COMPANIES IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY CLAIM OR ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Except as otherwise required by law, the controlling language of this EULA is English. Les parties ont demandé que cette convention ainsi que tous les documents que s'y rattachent soient rédigés en anglais.
This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and we acknowledge and agree that HandyMetrics’ licensors and service providers, and their respective affiliates and subsidiaries are intended third party beneficiaries of this EULA and will have the right (and will be deemed to have accepted the right) to enforce this EULA against you.
If you have any questions, claims, or complaints, you should notify us using the Contact Us Link on our website, or by post at our office listed below.
You may contact HandyMetrics at:
370 Queens Quay W., Suite 203A
Toronto, ON, M5V 3J3
You hereby acknowledge that you have read and understood this EULA and agree that by clicking “Accept” or by installing, copying, or using the App you are acknowledging your agreement to be bound by this EULA.
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