USER TERMS OF SERVICE
Effective: June 17, 2019
These User Terms of Service (the “User Terms”) govern your access to and use of our Re-TRAC Connect™ service and/or our RecycleSearch™ service (collectively, the “Services” and, individually, a “Service”) as a User.
By registering to use any Service, whether as:
- an individual authorized on behalf of a third party entity referred to in these User Terms as a “Customer” to access and use a Subscribed Service, which is any Service for which that entity pays us a fee in order to be provided with such access and use (an “Authorized User”), or
- an individual authorized on behalf of a third party entity referred to in these User Terms as a “Reporting Entity” that is approved as a member by a Customer to enter data or other information to that Customer’s configurable program(s) within a Subscribed Service (a “Reporting Entity User”), or
- an individual authorized on behalf of a third party entity referred to in these User Terms as an “MMP Entity” approved by us as a member to access and use the Municipal Measurement Program™ (“MMP”™), which is a standardized program assessment and planning tool within the Services (an “MMP User”),
you (herein referenced as “you” and “your”) are agreeing to comply with and be bound by these User Terms.
Representations during, and Binding Effect of, Registration
For greater certainty:
- these User Terms are binding on each Authorized User, on each Reporting Entity User (and the organization that such Reporting Entity User registers on behalf of and that is named in the account creation process triggered by such registration or is named in the join program process – a “Reporting Entity”), and on each MMP User (and the organization that such MMP User registers on behalf of and that is named in the account creation process triggered by such registration or is named in the join program process – an “MMP Entity”);
- any individual who registers on behalf of a Customer represents (in so registering to create an account) that he/she is authorized to do as an Authorized User by that Customer;
- any reference herein to a “Customer” includes all Emerge Knowledge Customers who are governed by the Customer Terms of Service for a Configurable Program for a Subscribed Service, as well as all Emerge Knowledge Customers who are governed by the Customer Terms of Service for a Standardized Program for a Subscribed Service;
- any individual who registers as a Reporting Entity User on behalf of a Reporting Entity represents (in so registering to create an account) that he/she is not only authorized to do so by that Reporting Entity but also to bind that Reporting Entity to these User Terms;
- any individual who registers as an MMP User on behalf of an MMP Entity represents (in so registering to create an account) that he/she is not only authorized to do so by that MMP Entity but also to bind that MMP Entity to these User Terms; and
- any reference in these User Terms to “User” applies to every Authorized User, every Reporting Entity User and every MMP User.
AS A RESULT, IF YOU DO NOT PERSONALLY AGREE TO THESE USER TERMS OR IF YOU DO NOT HAVE THE AUTHORIZATION REPRESENTED BY SUCH REGISTRATION (IN PARTICULAR, TO BIND A REPORTING ENTITY OR AN MMP ENTITY TO THESE USER TERMS), DO NOT REGISTER.
The terms “Emerge Knowledge,” “we”, “our,” and “us” refer to Emerge Knowledge Design Inc., the owner of this website and the provider of the Services.
First and Foremost
These User Terms are Legally Binding
You may not use the Services, and may not accept the User Terms, if (a) you are not of legal age to form a binding legal agreement with Emerge Knowledge, or (b) you are a person barred from receiving the Services under the laws of Canada, the United States, or other applicable jurisdiction in which you are a resident and from which you wish to use the Services.
The Relationship Between You, a Customer/Reporting Entity/MMP Entity, and Us
The Customer for whom you are an Authorized User has separately agreed to our Customer Terms of Service or has entered into a written agreement with us (in any such case, the “Agreement”) that permits that Customer to have access to and use of one or more Subscribed Services. The Agreement is the contractual relationship between us and that Customer. These User Terms are the contractual relationship between us and you (as an Authorized User), between us and you (as a Reporting Entity User) and your Reporting Entity, or between us and you (as an MMP User) and your MMP Entity, as the case may be.
An Overview of What this Means for You and Us
|Reporting Entity User||
Data Ownership, Licensing, Responsibility, Use, and Consent
On behalf of a Customer governed by our Terms of Service for Configurable Programs
Customer Data includes all content, such as data, files, and messages, that you as an Authorized User for Customer (or any other Authorized User for Customer) may access and use such as enter, collect, store, process, display, delete, download, or export while using the Subscribed Services. You have sole responsibility for the legality, reliability, integrity, accuracy, and quality of Customer Data while using the Subscribed Services.
Retrieval of Customer Data in the Services as an Authorized User, pertaining to the termination of the Agreement between us and Customer, is governed by that Agreement.
On behalf of a Customer governed by our Terms of Service for Standardized Programs
You as an Authorized User for Customer may access, use, display, factually modify, and process data and messages that users of our Municipal Measurement Program™ (MMP™) in the geographic jurisdiction referred to in the Order Form (“MMP Users”) have entered, stored, and displayed in their use of the MMP (“MMP Data”). You may only factually modify MMP Data in accordance with the process applicable to such modifications as described in the Subscribed Service. You have sole responsibility for any such modifications and for how you otherwise use the MMP Data (including the legality of any such modification or use). We are not responsible in any manner whatsoever for any of the content in the MMP Data or for how you or any other Authorized User chooses to use it.
Reporting Entity User
You, as a Reporting Entity User, may enter, store, and display content, such as data, files, and messages, in one or more of our Customer’s program(s) in the Subscribed Services. You and your Reporting Entity understand and agree that if you enter content in a program of one of our Customers via the Services that all entered content is then owned by the Customer (ie. all such content immediately becomes part of that Customer’s Customer Data) and the Agreement between that Customer and us provides that Customer with many choices and control over its program and its Customer Data (including your entered content). During the term of the Agreement between us and the Customer for whom you have entered content, you may delete your survey response data while in draft status and may export your survey response data during draft, completed, and verified status; all other content that you enter as a Reporting Entity User in a program of one of our Customers cannot be deleted or retrieved by you or your Reporting Entity.
In addition, you and your Reporting Entity understand and agree that Emerge Knowledge may use any such content which you enter to deliver the Subscribed Services to Customer and to create Aggregated Data (which we can license to third parties). For greater certainty, our Agreements with Customers permit us to generate aggregate information from and about Subscribed Services through the combination and compilation of Customer Data from multiple Customers (which would include any content that you enter to a Customer’s program(s) in the Services), provided that the information is aggregated and/or de-identified so that it is no longer associated with an identifiable Customer of the Subscribed Service or any of its Reporting Entities (collectively, ”Aggregated Data”), and to use such Aggregated Data for statistical analysis, benchmarking, and other business or research purposes and/or to make such Aggregated Data (unanalyzed and/or analyzed) available to all Customers of the Subscribed Service, or to any third party(s). You and your Reporting Entity expressly agree and consent to our doing so.
You also acknowledge and agree that you are responsible for the legality, reliability, integrity, accuracy, and quality of any content that you enter using the Services, and represent and warrant that you have satisfied yourself that all relevant parties have been informed and have given their consent to the submission of any content by you via the Services, to the immediate ownership of such content by the relevant Customer, and to our use of such content to create and use Aggregated Data as so described.
You as an MMP User may enter, store, and display content such as data and messages (“MMP Data”) in your use of the Municipal Measurement Program™ (MMP™) within the Services. Your MMP Entity will own your MMP Data, and you have sole responsibility for the legality, reliability, integrity, accuracy, and quality of any content that you enter using the Services that will become MMP Data. For as long as we choose at our discretion to maintain your access to the MMP in the Services and to host your MMP Data, you may delete your MMP survey response data only while in draft status and may export your survey response data during draft, completed, and verified status. For greater certainty and notwithstanding the foregoing, you and your MMP Entity acknowledge and agree that we are not responsible or liable in any way whatsoever for the way you choose to use your MMP Data and that we have no obligation to maintain your access to the MMP and/or to host MMP Data and/or allow you or your MMP Entity to access, use and/or retrieve your MMP Data.
You and your MMP Entity hereby grant us, and third parties with whom we work, a world-wide, non-exclusive, irrevocable, perpetual, sublicensable, transferable and royalty-free license to access, use, modify, store, process, display, delete, export, and disclose your MMP Data as we see fit, and specifically for us to sell access to your MMP Data to any third party as we see fit, who may in turn access, use, display, store, factually modify and process your MMP Data as they see fit (the “MMP Data License”). MMP Data may be factually modified in accordance with the process applicable to such modifications as described in the Subscribed Service, which includes a notification to you (or to another MMP User on behalf of your MMP Entity if your account as an MMP User for that MMP Entity is no longer active). Modified MMP Data will still be owned by your MMP Entity. You represent and warrant that you have secured all rights in and to all of the MMP Data that you choose to enter in the MMP within the Services as may be necessary to grant this license and to provide such third party access and other rights. Finally, we may retain and use MMP Data in the MMP in accordance with the MMP Data License for as long as we, in our sole discretion, choose to do so, even if your account as an MMP User is terminated for any reason by you or us.
Key Ground Rules
For a safe and productive work environment, all Authorized Users, Reporting Entity Users, and MMP Users must comply with our acceptable use policy (the “Acceptable Use Policy”), which sets out a list of acceptable and unacceptable conduct for utilizing our Services as follows:
You agree to:
- Use the Services only for the legitimate business purposes of the Customer(s), Reporting Entity(s) or MMP Entity(s) that have authorized you to use the Services on their behalf;
- Comply with these User Terms;
- Comply with all applicable laws and governmental regulations, including, but not limited to, all intellectual property, data, privacy, anti-spam, tax, and export control laws, and regulations promulgated by any government agencies;
- Enter only data and other content (including any third party personal information that you choose to submit) for which you have satisfied yourself that the Customer, Reporting Entity or MMP Entity that authorized you to use the Services on its behalf owns all required rights under law and under contractual and fiduciary relationships (such as proprietary and confidential information learned or disclosed as part of nondisclosure agreements) or has otherwise obtained any and all required permissions and consents to enter;
- Keep passwords and all other login information confidential, and use all reasonable efforts to prevent unauthorized access to or use of the Services;
- Monitor and control all activity conducted through your account in connection with the Services; and
- Promptly notify us if you become aware of or reasonably suspect any illegal or unauthorized activity or a security breach involving your account, including any loss, theft, or unauthorized disclosure or use of your Login Credentials.
You agree that you will not:
- Permit any third party to access or use your Login Credentials for the Services;
- Use the Services to store or transmit any data or other content that may infringe upon or misappropriate someone else's trademark, copyright, trade secret or other intellectual property right, or that may be tortious or unlawful;
- Post or send spam, unsolicited communications, promotions or advertisements, or use contact or other user information obtained from the Services (including email addresses) to contact users outside of the Services without their express permission or authority or to create or distribute mailing lists or other collections of contact or user profile information for use outside of the Services;
- Upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component or a technology that unlawfully accesses or downloads content or information stored within the Services or on the hardware of Emerge Knowledge or a third party;
- Attempt to reverse engineer, decompile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Services (including any mechanism used to restrict or control the functionality of the Services), any third party use of the Services, or any third party data or other content contained therein;
- Attempt to gain unauthorized access to the Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent protection or monitoring mechanisms of the Services;
- Access the Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services;
- Rent, loan, resell, time share or similarly exploit the Services; or
- Authorize, permit, enable, induce or encourage any third party to do any of the above.
You Are Here At the Pleasure of a Customer, a Reporting Entity or an MMP Entity and Us
Emerge Knowledge continuously innovates in order to improve the Services and, subject to our commitments to our Customers in our Agreements with them, you agree that the form and nature of the Services we provide may change from time to time without prior notice to you.
For greater certainty, Emerge Knowledge may at any time immediately terminate your account if: a) you violate the User Terms; b) we are concurrently terminating the Agreement with the Customer for whom you were an Authorized User; c) required to by law; or d) we have decided, in our sole discretion, to cease offering the Services that you were using on behalf of a Customer, Reporting Entity or MMP Entity.
Our Review and Related Rights
We may review Customer Data (including content entered by a Reporting Entity User that becomes Customer Data) and MMP Data for legal compliance purposes. If we believe that there is a violation of law (such as publishing defamatory or offensive material), any Agreement, any User Terms, or any of our other policies that can simply be remedied by removal of that Customer Data or MMP Data or taking other action, we will, in most cases, ask the applicable Customer to take action to remove that Customer Data (rather than intervene with a Reporting Entity, if one of its Reporting Entity Users entered that data) or ask the applicable MMP User to remove that MMP Data, as the case may be.
We may also suspend or delete your Login Credentials to the Services if the applicable Customer or MMP User does not take appropriate and timely action or we believe there is a credible risk of harm to us, the Services, any Authorized Users, any Reporting Entity Users, any MMP Users, or any third parties.
The Re-TRAC Connect Team
We may leverage our directors, officers, and employees (collectively, the “Re-TRAC Connect Team”) in exercising our rights and performing our obligations under each Agreement and the User Terms. We will be responsible for the Re-TRAC Connect Team’s compliance with our obligations under each Agreement.
We own and will continue to own this website and the Services and we own and will continue to own (or are and will continue to be an authorized licensee) all software that we utilize to provide the Services (including any report templates generated by the software and the methodology that produces such reports), together with all modifications, enhancements, and updates to this website, the Services and/or to such software, as well as all related documentation, and any and all copyrights, patent rights, trademarks (whether registered or unregistered), trade secrets or other intellectual property rights of any nature or kind whatsoever therein or thereto that are not owned by a third party licensor of any such software, documentation or intellectual property right (collectively, “Our Intellectual Property”). Without limiting the generality of the foregoing, the content, organization, graphics, design, compilation, digital conversion and other matters related to this website, the Services, to such software and/or to such documentation are protected under applicable copyrights, trademarks, and other intellectual property rights, which are owned by us or any such third party licensor. The copying, redistribution, use, or publication by you of any such matters, except as expressly allowed by these User Terms, is strictly prohibited. Any and all of our rights not expressly granted by an Agreement to any Customer or pursuant to these User Terms are hereby retained by Emerge Knowledge.
You shall not use our name, logo, or trademarks in documents, presentations, or other materials that you distribute, except to the extent they are incorporated in reports by the design of the Services, unless our prior written permission is granted in each case.
Trademarks and servicemarks that appear on this website and/or in the Services that are not owned by Emerge Knowledge are the property of their respective owners.
Third Party Content
Emerge Knowledge assumes no obligation to screen, and does not routinely pre-screen, content Users submit via the Services. As a result, any use or reliance on any content, materials or communications obtained by you through the Services is at your own risk. Furthermore, links to third party websites found in the Services are provided merely as a convenience and do not imply endorsement of the linked or referenced sites or their content. We are not responsible for the accuracy, reliability or currency of the information or services provided on any linked site or by any external source. Your use of any linked site shall be at your own risk and shall be subject to the terms and conditions established by and applicable to each such site.
No Representations, Warranties, or Conditions
YOU (AND YOUR REPORTING ENTITY [IN THE CASE OF EACH REPORTING ENTITY USER] AND YOUR MMP ENTITY [IN THE CASE OF EACH MMP USER]) EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SERVICES AND ALL RELATED INFRASTRUCTURE AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, AND THAT WE EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION TITLE, NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MECHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, YOU (AND YOUR REPORTING ENTITY [IN THE CASE OF EACH REPORTING ENTITY USER]) AND YOUR MMP ENTITY [IN THE CASE OF EACH MMP USER]) FURTHER EXPRESSLY ACKNOWLEDGE AND AGREE THAT WE DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONALITY CONTAINED IN ANY SERVICE WILL SATISFY ALL OF YOUR (OR ITS) REQUIREMENTS, THAT THE QUALITY OF THE SERVICES WILL MEET YOUR (OR ITS) EXPECTATIONS, OR THAT ANY SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
WE SHALL IN NO EVENT BE RESPONSIBLE FOR THE RECONSTRUCTION OF ANY CORRUPTED OR LOST CUSTOMER DATA OR MMP DATA THAT IS CORRUPTED OR LOST AS A RESULT OF ANY ACT OR OMISSION ON YOUR PART OR ON THE PART OF YOUR CUSTOMER (OR ANY OF ITS OTHER AUTHORIZED USERS), YOUR REPORTING ENTITY (OR ANY OF ITS OTHER REPORTING ENTITY USERS) OR YOUR MMP ENTITY (OR ANY OF ITS OTHER MMP USERS), AS THE CASE MAY BE.
Limitation of Liability
YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND THE CONSEQUENCES THEREOF. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT WITH A CUSTOMER (IF YOU ARE AN AUTHORIZED USER), REGARDLESS OF CIRCUMSTANCES AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT UNDER AN AGREEMENT OR THESE USER TERMS OR IN TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY), IN NO EVENT SHALL EMERGE KNOWLEDGE OR ANY MEMBER OF THE RE-TRAC CONNECT TEAM BE LIABLE FOR PERSONAL INJURY, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR AGGRAVATED LOSSES OR DAMAGES OF ANY NATURE OR KIND WHATSOEVER, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO YOUR USE OF, DELAY IN USING OR INABILITY TO USE THE SERVICES AND/OR ANY LINKED WEBSITE AND/OR PRODUCTS AND/OR SERVICES, OR FOR ANY CLAIM OR DEMAND AGAINST YOU (AND/OR YOUR REPORTING ENTITY (IF YOU ARE A REPORTING ENTITY USER) AND/OR YOUR MMP ENTITY (IF YOU ARE AN MMP USER)) BY ANY THIRD PARTY, EVEN IF EMERGE KNOWLEDGE AND/OR ANY MEMBER OF THE RE-TRAC CONNECT TEAM MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR IF SUCH LOSSES OR DAMAGES WERE REASONABLY FORESEEABLE.
THE FOREGOING LIMITATIONS OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN US AND YOU AS A USER, AND BETWEEN US AND YOUR REPORTING ENTITY (IF YOU ARE A REPORTING ENTITY USER) AND BETWEEN US AND YOUR MMP ENTITY (IF YOU ARE AN MMP USER). IN PARTICULAR, THESE LIMITATIONS ALLOCATE THE RISKS UNDER THE USER TERMS BETWEEN US AND YOU (AND, IF APPLICABLE, YOUR REPORTING ENTITY OR MMP ENTITY, AS THE CASE MAY BE). WE HAVE RELIED ON THESE LIMITATIONS IN PRICING THE SERVICES, AND THE SERVICES WOULD NOT BE PROVIDED AT SUCH PRICING IN THE ABSENCE OF SUCH LIMITATIONS.
The sections titled “Representations During, and Binding Effect of, Registration”, “First and Foremost”, “Proprietary Rights”, “Third Party Content”, “No Representations, Warranties, or Conditions”, “Limitation of Liability” and “Survival”, and all of the provisions under the headings “The Relationship Between You, a Customer/Reporting Entity/MMP Entity, and Us”, “Key Ground Rules”, You Are Here At the Pleasure of a Customer, a Reporting Entity or an MMP Entity and Us”, and “General Provisions” will survive any termination or expiration of the User Terms.
Notifications, Administrative Messages, and Notices
Critical notifications and administrative messages from Emerge Knowledge, and from any Customer via the Services, may be sent to you and you agree that these communications are considered part of the Services, which you may not be able to opt-out from receiving.
All notices to you under the User Terms will be via the Services, although notice to you may also be sent via email to the work email address associated with your Login Credentials. All notices from you to Emerge Knowledge will be sent to firstname.lastname@example.org. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices sent through email (so long as that ‘day after’ is a business day of the party receiving that notice), so long as the party sending the notice does not receive a response that the message was not received by the intended party; and (b) the same day, in the case of notices sent through the Services. Notices under an Agreement will be delivered solely to the Customer in accordance with the terms of that Agreement.
You may provide us with suggestions, comments or other feedback regarding any existing Service or any future service plan, including but not limited to improved or additional functionality or features (“Feedback”). You agree that any Feedback shall be voluntarily given, that any and all Feedback will immediately and automatically become our property, and that we shall be entitled to incorporate any Feedback into any Service without any compensation or other liability or obligation of any nature or kind whatsoever to you or to the Customer, Reporting Entity or MMP Entity for whom you are a User.
The headings contained in these User Terms are for convenience of reference only and shall not affect the interpretation of these User Terms. The User Terms shall be read with all changes in gender and number required by the context. The language in the User Terms shall be interpreted as to its fair meaning and not strictly for or against any party.
We and you (as well as your Reporting Entity [if you are a Reporting Entity User] or your MMP Entity [if you are an MMP User]) acknowledge and agree that it is required that all of the documents that form part of the User Terms be prepared in the English language.
Contacting Emerge Knowledge
Please contact us if you have any questions about these User Terms of Service. You may contact us at email@example.com or at our mailing address below:
Emerge Knowledge Design Inc.
401 – 250 McDermot Avenue
Winnipeg, Manitoba R3B 0S5