CounterPoint

CounterPoint End User Licence Agreement - Terms of Use

Effective Date: April 1, 2014

This is a legal contract between you and Green Action Centre (referred to as "GAC", "us", or "we", which terms include all of GAC's officers, directors, agents, members, representatives, contractors, employees, licensors, licensees, suppliers, partners and volunteers). Please read it carefully. This contract governs your use of the CounterPoint application made available by GAC at http://www.counterpointapp.org (the "Site"), for use on mobile devices, tablets, personal computers and other devices, as well as all elements related to the CounterPoint Application including, but not limited to, updates and upgrades, manuals, online materials, files and documentation of any kind (collectively, the "Application"). This contract, together with any amendments, and all of GAC's applicable rules and policies posted via the Application or on the Site, including but not limited to the CounterPoint Privacy Policy, collectively constitute the "Agreement" between you and GAC with respect to your use of the Application. To agree to the terms and conditions of this Agreement, click "AGREE" where indicated. If you do not agree to the terms and conditions of this Agreement, do not click "AGREE," and do not access or use the Application.

1. Description of CounterPoint

The Application is a Web Application provided by GAC at no cost to users that allows users to count traffic of all kinds in their neighbourhoods and to share that traffic count information via the Application. By joining the crowd at CounterPoint, you are creating what is called a 'baseline' set of data. Engineers, planners, school principals, architects, politicians, and people like you and your neighbours depend on information to make decisions about transportation planning. Better information means better decisions.

2. Acceptance of Terms

This Application is available for individuals of any age. You must, however, be at least 18 years of age to enter into this Agreement on your own behalf and to register to use the Application. IF YOU ARE UNDER 18 YEARS OF AGE, YOU MUST OBTAIN PERMISSION TO USE THIS APPLICATION FROM A PARENT OR LEGAL GUARDIAN WHO MAY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING "AGREE" ON YOUR BEHALF. YOUR PARENT OR LEGAL GUARDIAN MUST ALSO SUPPLY HIS OR HER VALID E-MAIL ADDRESS.

By clicking "AGREE", you represent that (i) you have read, understood and agree to be bound by this Agreement; (ii) you are at least 18 years old, and you are either entering into this Agreement for yourself or entering on behalf of your child or a child in your legal care; (iii) you have not been previously suspended or removed from the Application and do not have more than one user account; and (iv) you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. If you are a parent or guardian entering this Agreement for the benefit of your child, please be aware that you are fully responsible for his or her use of the Application, including all legal liability that he or she may incur. If you do not agree to (or cannot comply with) any of these terms and conditions, do not click "AGREE" and do not attempt to access or use the Application.

You may not use the Application if you live in a jurisdiction where use of the Application or any part of it may be illegal or prohibited. It is solely your responsibility to determine whether your use of the Application is lawful, and you must comply with all applicable laws. We reserve the right to request proof of identification and age. We may, in our sole discretion, refuse to offer the Application to any person or entity. We may, without notice and in our sole discretion, terminate your right to use the Application, or any portion of thereof, and block or prevent your future access to and use of the Application or any portion thereof.

3. Changes to this Agreement

Once you click "AGREE" to this Agreement, you have also agreed to the changing of the terms and conditions of this Agreement at any time by GAC without your separate acceptance of the changes. GAC reserves the right, at its sole discretion, to change, amend, modify, add or remove portions of this Agreement, at any time. It is your responsibility to check the Site periodically for changes to this Agreement, and you are deemed to be aware of such changes. Your continued use of the Application following the posting of changes to the Site will mean that you accept and agree to the changes. If you do not agree to the changes, you must immediately stop using the Application and must destroy all copies, full or partial, of the Application.

4. Accounts

In order to use certain aspects of the Application, including to upload photographs, you will be required to select a UserName and password. In consideration of your use of the Application, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by any registration form(s), including your geographical location and e-mail address (the "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and to refuse any and all current or future use of the Application (or any portion thereof).

You will receive a password and account designation upon completing the registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to: (a) immediately notify us of any unauthorized use of your password or account or any other breach of security; and (b) take measures to prevent unauthorized access or use (e.g., ensuring that you exit from your account at the end of each session).

Any personal information you provide in the registration form will be collected in accordance with, and for the express purposes set out in, the CounterPoint Privacy Policy, which can found here.

5. Application Licence

GAC hereby grants you a personal, non-exclusive, non-assignable and non-transferable license, without the right of sublicense, to reproduce and display the Site and the Application, solely for your personal and non-commercial use in connection with viewing the Site and using the Application on any computer and any associated smartphones, tablets and other related devices which you own and control, subject to any usage rules or other restrictions set out by the device manufacturer, "app store" provider or platform operator (e.g. Apple, Google, Microsoft, Amazon) (the "Application Licence").

The rights granted under this Application Licence are subject to your compliance with the terms and conditions of this Agreement. You agree not to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, commercially exploit, communicate, circulate, or in any way transfer or assign the Application or any part thereof (including, without limitation, building databases of content contained in the Application), to any third party (including, without limitation, the display and distribution of the Application via a third party website) without the express prior written consent of GAC. You further agree that you will not disassemble, decompile, reverse engineer, create derivative works from or otherwise modify the Application, except to the extent permitted by applicable law. You may not rent, lease, sell or sublicense the Application. You may not copy the Application other than as specified herein. You may not remove any proprietary notices or labels on the Application.

GAC retains all rights not expressly granted hereunder.

6. Intellectual Property Ownership

The Application and all Application Content (as defined below) is the proprietary property of GAC, its content suppliers or its licensors, as the case may be, and is protected by Canadian and international copyright, trademark, and other applicable laws. For the purposes of this Agreement, "Application Content" includes any and all material, information in text, graphical, video and audio forms, images, reports, articles, publications, data, databases, charts, graphics, photographs, illustrations, maps, interfaces, designs, music, sound, software, product names, company names, trademarks, logos and trade names contained in the Application or used by GAC in association with the Application, together with all intellectual property rights therein.

Except for the rights you may have in the User Content (as defined below) posted, submitted, or otherwise made available by you via the Application, you do not acquire ownership rights or any implied right to the Application or Application Content that you obtained, accessed, used or viewed via the Application or the Site.

7. User Content

The Application allows registered users to submit "User Content" to or via the Application. User Content includes any information about traffic and traffic patterns, observations, comments, data, text, photographs, messages, or other content or material, including any intellectual property rights contained therein, that is submitted, posted or otherwise made available by users via the Application. GAC's reserves the right to review all User Content and maintains absolute discretion to determine which User Content will be displayed, distributed, communicated or otherwise transmitted by the Application.

(a) User Content Licence

When you submit your original copyrightable User Content via the Application, you retain ownership of any copyright you claim to your submitted User Content. However, by making your User Content available via the Application, you automatically grant to GAC a royalty-free, perpetual, irrevocable, non-exclusive, transferable, worldwide, sublicensable (through multiple tiers) right and licence to use, reproduce, copy, distribute, transmit, host, market, create derivative works of, modify, adapt, communicate, display and perform the User Content and any intellectual property rights therein (including but not limited to any copyright, trademark, publicity and database rights), in any form, technology or media now known or later developed, without providing compensation to you or anyone else, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of GAC.

Subject to the CounterPoint Privacy Policy where relevant, you hereby (i) agree to waive all moral rights in any User Content and any intellectual property rights therein in favour of GAC; (ii) consent to your name appearing as the author or contributor of any such User Content, where applicable, and to the disclosure and/or display of such information and any other information which appears in or is associated with such User Content; (iii) acknowledge and agree that GAC is not responsible for any loss, damage, or corruption that may occur to your User Content; and (iv) acknowledge and agree that any User Content you provide for display on the Application will be considered non-confidential.

When you submit User Content to or via the Application, you (i) represent and warrant that the User Content is original to you and that no other party has any rights thereto, and that you retain ownership of any copyright you claim to your submitted User Content, or (ii) you represent and warrant that you are legally entitled to post, submit, or otherwise make available the User Content and grant the foregoing licence to GAC.

8. Trademarks

GREEN ACTION CENTRE, GREEN ACTION CENTRE & Design, COUNTERPOINT, COUNTERPOINT WHERE EVERYONE COUNTS & Design and other marks and logos appearing on or via the Application are registered and unregistered trademarks or trade names of GAC. Other product and company names and logos appearing on or via the Application may be registered or unregistered trade-names or trademarks of their respective owners. Any use of the trademarks, trade names and logos (collectively, the "Marks") displayed on or via the Application, except as expressly provided in this Agreement, is strictly prohibited. Nothing appearing on or via the Application or elsewhere shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use, display or copy, in any manner, any Mark displayed on or via the Application.

9. Automatic Communications Features

The Application includes functionality that requires it to perform certain communications over the Internet as part of its normal operation. The communications features are automatic and are enabled by default. By installing and/or using the Application, you consent to the Application's communications features. If you do not maintain a connection to the internet, certain features and functions of the Application may not work, or may not work properly.

10. Contests and Other Activities

GAC provides rules and/or guidelines ("Rules of Participation") for certain activities associated with the Application including, without limitation, contests and giveaways by GAC and in conjunction with third parties. This Agreement is incorporated by reference to the specific Rules of Participation which appear in connection with information about a particular activity. To the extent that any conflict exists between this Agreement and specific Rules of Participation, the Rules of Participation for the activity in which you choose to participate shall govern.

11. Rules of Conduct

The Application provides or may provide features that allow you to post, submit, or otherwise make available User Content, or to interact with other users through forums, board services, blogs, chat areas, or certain third-party social media sites such as Facebook. When using any features of the Application, it is a condition of your use of the Application and any of its features that you agree to the following:

GAC reserves the right, in its sole discretion, to edit or remove, refuse to accept, post, display or transmit any User Content. You acknowledge and agree that GAC may, in its sole discretion, periodically monitor the Application and Site, including any User Content, and disclose any information as necessary to satisfy any law, regulation or other governmental or Court request, to operate the Application and Site properly or to protect itself or other users of the Application or Site. Although GAC may from time to time monitor or review User Content as stated above, GAC does not have any obligation to do so, and disclaims any responsibility or liability for any User Content posted, submitted or otherwise made available on or via the Application or Site. User Content represents the views and opinions of the user(s) posting, submitting, or otherwise making available the User Content and does not represent the views or opinions of GAC. GAC does not assume any liability, and specifically disclaims any liability, to you or any other person arising from GAC's decision to monitor or not to monitor the User Content consistently or at all. You remain solely responsible for the User Content and use of your User Content.

12. Disclaimer

The Application, the Site and the Application and User Content are for informational, reference and educational purposes only. GAC assumes no responsibility or liability arising from any error in, or omission of, information, or from the use of any information or advice contained in any of the Application, Site, or Application or User Content.

13. No Warranties/Limitation of Liability

THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MIGHT NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

YOU AGREE THAT THE APPLICATION AND ALL INFORMATION, APPLICATION AND USER CONTENT, SUBMISSIONS, MATERIALS, AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE APPLICATION ARE PROVIDED BY GAC ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU FURTHER AGREE THAT YOUR USE OF THE APPLICATION AND ALL INFORMATION, SUBMISSIONS, APPLICATION AND USER CONTENT, MATERIALS, AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE APPLICATION BY GAC SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, GAC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE APPLICATION AND ALL INFORMATION, APPLICATION AND USER CONTENT, SUBMISSIONS, MATERIALS, AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE APPLICATION AND YOUR ACCESS TO AND USE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, ACCURACY OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. GAC MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE TRUTHFULNESS, ACCURACY OR COMPLETENESS OF THE APPLICATION AND USER CONTENT ON THE APPLICATION, OR THE AVAILABILITY, QUALITY, CHARACTERISTICS, LEGITIMACY, FUNCTIONALITY, SECURITY OR SAFETY OF THE APPLICATION OR ANY APPLICATION AND USER CONTENT PROVIDED THROUGH THE APPLICATION, OR ANY DESCRIPTIONS OR LITERATURE ABOUT THE APPLICATION OR APPLICATION AND USER CONTENT. GAC ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE APPLICATION AND THE APPLICATION AND USER CONTENT PROVIDED THROUGH THE APPLICATION ARE FIT FOR ANY PARTICULAR PURPOSE OR WILL MEET ANY USER'S REQUIREMENTS, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OMISSIONS OR INACCURACIES OF THE APPLICATION AND USER CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE APPLICATION, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APPLICATION, (IV) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE APPLICATION BY ANY THIRD PARTY, AND/OR (V) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE APPLICATION OR ANY APPLICATION AND USER CONTENT MADE AVAILABLE VIA THE APPLICATION OR THE SITE.

IN NO EVENT SHALL GAC BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO (1) THE APPLICATION, (2) APPLICATION OR USER CONTENT; (3) THE SITE, OR (4) THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, BUSINESS, MARKETS, SAVINGS, INCOME, PROFITS, USE, PRODUCTION, REPUTATION OR GOODWILL, ANTICIPATED OR OTHERWISE, OR ECONOMIC LOSS, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY OR LAW OR EQUITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING WITHOUT LIMITATION GROSS NEGLIGENCE AND FUNDAMENTAL BREACH) BY GAC OR ANY PERSON FOR WHOM GAC IS RESPONSIBLE, AND EVEN IF GAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE BEING INCURRED. NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT IN NO EVENT SHALL GAC'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY CANADIAN DOLLARS ($50.00).

IF THERE IS A DISPUTE BETWEEN YOU AND ANY THIRD PARTY (INCLUDING WITHOUT LIMITATION, ANY USER OF THE APPLICATION OR THE SITE), GAC IS UNDER NO OBLIGATION TO BECOME INVOLVED, AND YOU HEREBY RELEASE GAC FROM ANY CLAIMS, DEMANDS OR DAMAGES OF ANY KIND AND OF ANY NATURE ARISING OUT OF OR RELATING TO ANY SUCH DISPUTE.

14. Indemnity

By accepting this Agreement, you agree to indemnify and hold GAC harmless from any and all claims, demands, liabilities, expenses or tax assessments, including reasonable legal fees, arising out of your use of the Application and/or your actual or alleged breach of this Agreement, including any claim made by any third party or any action taken by any governmental or regulatory body, due to, arising out of or relating to

15. Term; Termination

This Agreement, and the Application Licence contained herein, is effective until terminated by you or GAC. Notwithstanding any other provision of this Agreement, GAC may in its discretion change, discontinue, modify, restrict, suspend or terminate the Application or any part of it without any notice or liability to you or any other person. GAC may in its discretion and for its convenience at any time immediately terminate, temporarily or permanently, this Agreement or your permission to access and use the Application without any notice or liability to you or any other person.

If this Agreement or your permission to access or use all or any part of the Application is terminated for any reason, then this Agreement and all other then-existing agreements between you and GAC will continue to apply and be binding upon you regarding your prior access to and use of the Application, and anything connected with, relating to or arising therefrom.

16. CounterPoint Privacy Policy

GAC collects, uses and discloses personal information via the Site and the Application in accordance with its CounterPoint Privacy Policy, which is available by clicking here. The CounterPoint Privacy Policy may be changed from time to time by GAC in its discretion without any notice or liability to you or any other person by making an amended CounterPoint Privacy Policy accessible through its Site. By accepting this Agreement, and each time you use the Site or Application, you consent to the collection, use and disclosure of your personal information by GAC in accordance with the CounterPoint Privacy Policy as it then reads.

17. Governing Law and Forum

GAC, the Application, and the Site (excluding linked web sites or content) are physically located within the Province of Manitoba, Canada. The Application and the Site are intended to be used by Canadian residents only. This Agreement will be governed by the laws of the Province of Manitoba and the federal laws of Canada and shall be treated in all respects as a Manitoba contract, without reference to the principles of conflicts of law. Any dispute between you and GAC or any other person arising from, connected with or relating to the Application, the Site, this Agreement, or any related matters (collectively "Disputes") will be resolved before the Courts of Manitoba, sitting in the City of Winnipeg, and you hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those courts in respect of all Disputes.

You agree to waive any right that you may have to: (i) a trial by jury; and (ii) commence or participate in any class action against GAC related to the Application, the Site, or this Agreement and, where applicable, you also agree to opt out of any class proceedings against GAC or its licensors.

You and GAC have required that this Agreement and all documents relating thereto be drawn-up in English. Vous et GAC avez demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.

18. Other

(a) Entire Agreement

These Agreement as it may be amended from time to time in accordance with the provisions of Section 3, and any and all other legal notices and policies on the Site or the Application, constitute the entire agreement between you and GAC with respect to your use of the Application.

(b) Assignment and Enurement

GAC may assign this Agreement to any third party. This Agreement cannot be assigned or transferred, in whole or in part, by you. This Agreement will enure to the benefit of and be binding upon each of you and GAC and our respective heirs, executors, personal representatives, successors and permitted assigns.

(c) No Waiver

No waiver of any provision of this Agreement shall be binding on GAC unless executed by GAC in writing. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.

(d) Severability

Any provision of this Agreement which is held by a court of competent jurisdiction to be illegal, invalid or unenforceable in such jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability and shall otherwise be enforced to the maximum extent permitted by law, all without affecting the remaining provisions of this Agreement or affecting the legality, validity or enforceability of such provision in any other jurisdiction.

(e) Headings

All article or section headings are for reference and convenience only and shall not be considered in the interpretation of this Agreement.

19. Contact Us

If you have any questions, concerns or comments, please contact us at

Green Action Centre

Mailing Address: 3rd floor, 303 Portage Avenue, Winnipeg, MB, R3B 2B4

Telephone No.: 1-204-925-3777 or 1-866-394-8880 (toll free number)

E-mail: info@greenactioncentre.ca

©Green Action Centre, 2014, Winnipeg.