Terms and Conditions

Please Read Carefully

THIS IS PART OF A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND OPENROAD COMMUNICATIONS INC. ("OPENROAD") BY ACCESSING THIS SERVICE AND CLICKING ON THE “AGREE” OR “YES” BUTTON DURING THE REGISTRATION PROCESS YOU AGREE TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT DURING THE REGISTRATION PROCESS, CLICK ON THE “I DO NOT AGREE” OR “NO” BUTTON, AND MAKE NO FURTHER USE OF THE SERVICE.

OPENROAD MAY IN ITS SOLE DISCRETION, BY POSTING A REVISED AGREEMENT ON THE WEBSITE STATS.THOUGHTFARMER.COM, CHANGE THE TERMS OF THIS AGREEMENT FROM TIME TO TIME AS IT RELATES TO YOUR FUTURE USE OF THIS SERVICE. BY USING THE SERVICE AFTER THE REVISED AGREEMENT HAS BEEN POSTED, YOU SIGNIFY YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THE REVISED TERMS. YOU MAY NOT CHANGE THESE TERMS IN ANY MANNER. EACH TIME YOU USE THE SERVICE YOU SIGNIFY YOUR ACCEPTANCE AND AGREEMENT TO THE CURRENT VERSION OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH EACH PROVISION OF THIS AGREEMENT, DO NOT USE THE SERVICE.

OpenRoad Communications Ltd. (“OpenRoad”) provides its online data management service for ThoughtFarmer intranet statistics commonly known as "Intranet Statistics" (“Service”) to you (“Subscriber”) upon the terms and conditions set out below. By using the Service, Subscriber agrees to abide by the terms of this agreement (“Agreement”).

1.   License. Your right to use the Service is subject to this Agreement and is made subject to the GNU General Public License version 3 pursuant to which the software underlying the Service is provided. OpenRoad may from time to time modify or enhance the Service without notice to you. Your access to the Service will be terminated without notice if your maintenance account for OpenRoad's ThoughtFarmer software expires or is otherwise terminated.

2.   Subscriber's Account. Subscriber is responsible for all access to the Service by Subscriber's personnel or designated Users, whether or not Subscriber has knowledge of or authorizes such use.

3.   Subscriber’s Internal Policies. OpenRoad is not responsible for compliance with Subscriber’s internal policies, regardless of whether it has notice of them.

4.   Term. OpenRoad may in its sole discretion discontinue offering the Service at anytime without notice to Subscriber.

5.   Intellectual Property. ThoughtFarmer, the ThoughtFarmer logo and other OpenRoad logos and product and service names, including without limitation "Intranet Statistics" are trademarks of OpenRoad (the “OpenRoad Marks”), whether or not registered. Without OpenRoad`s prior permission, Subscriber agrees not to display or use, in any manner, the OpenRoad Marks.

6.   Prohibited Uses. Subscriber agrees not to access the Service by any means other than through the interface that is provided by OpenRoad. Subscriber shall not access the Service for the purpose of data mining or extracting content from the Service beyond Subscriber’s own data.

The Service has been designed so that each Subscriber’s data ("Subscriber's Data") can only be accessed by that Subscriber (including Subscriber’s Users). Subscriber agrees that it will not attempt to access, download, copy or otherwise use any information provided by the Service that does not belong to Subscriber or that Subscriber is not authorized to access, and Subscriber agrees to ensure that each individual User authorized by Subscriber does not do so or attempt to do so. If, however, Subscriber or any User authorized by Subscriber does access, receive or otherwise obtain any such unauthorized information, then Subscriber agrees to treat such information as strictly confidential and promptly notify OpenRoad, and not to download, copy, transmit or otherwise use any of such unauthorized information, except as may be expressly authorized by OpenRoad.

7.   Security. OpenRoad will maintain the Service at a reputable third party hosting facility, where commercially reasonable security precautions are taken to prevent unauthorized access to the Service. Subscriber acknowledges that, notwithstanding such security precautions, use of, or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Service and Subscriber’s Data. ACCORDINGLY, OPENROAD CANNOT AND DOES NOT GUARANTY THE PRIVACY, SECURITY, OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.

8.   Rights in Data. All property rights in the Subscriber’s Data that is provided by Subscriber, or by any party authorized by Subscriber to submit data to the Service, including without limitation copyrights, are and shall continue to be the exclusive property of Subscriber. Subscriber acknowledges and agrees that OpenRoad may disclose Subscriber’s Data if required to do so by law or with prior written consent of the Subscriber. OpenRoad may provide statistical information, using Subscriber’s data, to third parties, but such information will not include personally identifying information. OpenRoad may access Subscriber’s Data to respond to service or technical problems with the Service.

OpenRoad shall retain Subscriber’s Data for a period of thirty (30) days after expiration or termination of this Agreement. After thirty (30 days), OpenRoad may delete and destroy all Subscriber’s Data without notice or further liability to the Subscriber.

OpenRoad reserves the right to establish (and notify the Subscriber of) a maximum amount of memory or other computer storage and a maximum amount of Subscriber’s Data that Subscriber may post, store, or transmit on or through the Service.

9.   Responsibility/Indemnity. Subscriber is solely responsible for all access to the Service and use of the Subscriber’s Data by Subscriber’s personnel or the use of Subscriber’s account, whether or not Subscriber has knowledge of or authorizes such use. Subscriber and Users shall maintain the confidentiality of password and account log-in identification. Subscriber agrees to indemnify and hold harmless OpenRoad against any liability or claim of any person that relates to or principally caused by Subscriber's use of the Service.

Subscriber acknowledges that OpenRoad has no control over the source, quality, format, nature, ownership or legality of information submitted to the Service by the Subscriber or third parties and that the Subscriber is responsible for any claims or liabilities that may arise from the Subscriber’s actions in extracting or submitting information to the Service.

10.   Warranty.

OpenRoad warrants that:

(i) It has the power, authority and capacity, and has received all necessary authorizations and approvals, to enter into this Agreement, (ii) it owns or has all rights in and to the intellectual property rights in the Service necessary to grant the licenses granted in this Agreement, (iii) the use of the Service in accordance with the terms of this Agreement does not , and will not infringe on the intellectual property rights of a third party, (iv) the Service will conform to the written descriptions that have been provided to the Subscriber as are set out in the Schedules to this Agreement and that are found at http://stats.thoughtfarmer.com/ at the date of this Agreement, (v) OpenRoad will take all reasonable steps to ensure the Service will be free of viruses, malicious codes and spy-ware throughout the term of this Agreement, (vi) OpenRoad will undertake all reasonable efforts to correct any material errors in the service.

11.   Disclaimer and Limitation of Liability.

EXCEPT AS PROVIDED IN THE WARRANTY ABOVE SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT:

SUBSCRIBER’S USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

OPENROAD MAKES NO REPRESENTATION OR WARRANTY THAT (i) THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE PERFORMANCE OF THE INTERNET WILL BE UNINTERRUPTED OR PERFORM AT SPECIFIED RATES, (v) SUBSCRIBER’S INTERNET SERVICE PROVIDER WILL PROVIDE UNINTERRUPTED SERVICE OR PERFORM AT SPECIFIED RATES.

SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT OPENROAD SHALL NOT BE LIABLE FOR ANY, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, SUBSCRIBER’S DATA, BODILY INJURY OR PROPERTY DAMAGE, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER INTANGIBLE LOSSES (EVEN IF OPENROAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) INVALID DESTINATIONS, TRANSMISSION ERRORS, OR UNAUTHORIZED ACCESS TO OR ALTERATION OF SUBSCRIBER’S TRANSMISSIONS OR SUBSCRIBER’S DATA.

NO CLAIM, REGARDLESS OF FORM, MAY BE MADE OR ACTION BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE BASIS FOR THE CLAIM BECOMES KNOWN TO THE PARTY ASSERTING IT.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OPENROAD LIABILITY TO SUBSCRIBER PURSUANT TO THIS AGREEMENT OR PURSUANT TO ANY OTHER LEGAL THEORY, INCLUDING LEGAL FEES AND AWARDABLE COSTS, SHALL NEVER EXCEED THE AMOUNT PAID BY SUBSCRIBER TO OPENROAD IN THE PREVIOUS TWELVE MONTHS FOR THE USE OF THE SERVICE .

12.   Termination for Breach. Upon the occurrence of any of the following events: (i) the other party materially breaches or defaults in any of the material terms or conditions of this Agreement, (ii) the other party makes any assignment for the benefit of creditors, is insolvent or unable to pay its debts as they mature in the ordinary course of business, or (iii) any proceedings are instituted by or against the other party in bankruptcy or under any insolvency laws or for reorganization, receivership or dissolution, or (iv) if Subscriber`s license to use the ThoughtFarmer software is terminated, then the non-defaulting party may give the other party written notice of such default and an opportunity to cure the default within thirty (30) days after receipt of such notice, failing which the non-defaulting party may cancel this Agreement without notice.

13.   Publicity. OpenRoad may use Subscriber’s name as part of a general list of customers and may refer to Subscriber as a user of the Service in general advertising and marketing materials. Each party shall obtain the other’s permission prior to using the other party’s name for any other marketing or promotional purposes. The parties agree that any press release or other public comments issued by either party relating to this agreement will be prepared jointly between OpenRoad and the Subscriber.

14.   Force Majeure. Neither party is liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war (declared or undeclared), fire, flood, storm, slide, earthquake, power failure, inability to obtain equipment, supplies or other facilities not caused by a failure to pay, labour disputes, or other similar event beyond the control of the party affected which may prevent or delay such performance. If any such act or event occurs or is likely to occur, the party affected shall promptly notify the other, giving particulars of the event. The party so affected shall use reasonable efforts to eliminate or remedy the event.

15.   Notices. All notices required to be given to OpenRoad shall be given to OpenRoad as set out in the Schedule A. Any notice required to be given by OpenRoad may be given by e-mail to the address of Subscriber’s Technical and Administrative Contact.

16.   Counterparts/Facsimile. This agreement may be executed in two counterparts, each of which will be deemed to be an original, and both of which together shall constitute one agreement. This Agreement may be executed via facsimile.

17.   Sole Agreement. This Agreement constitutes the sole agreement between the parties with respect to the Service.

18.   Governing Law. The laws of the British Columbia govern this Agreement and all disputes arising out of it shall be submitted to a court of competent jurisdiction in British Columbia.

19.   Assignment. This Agreement may not be assigned by Subscriber.

20.   General Provisions. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision nor shall such a waiver constitute a continuing waiver unless otherwise expressly provided in writing duly executed by the party to be bound. This Agreement is binding upon the successors to and permitted assigns of the parties.

Terms and Conditions

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