(Last modified August •, 2020)
1. Introduction, Acceptance, Definitions, and Modifications
Welcome to the SAFEN app, powered by SAFENLABS. We are confident that you will appreciate using our “Application”, which refers to the app for iOS or Android called “SAFEN”, created and owned by SAFENLABS, which allows you to undertake a risk factor assessment of the state of your health and to communicate that risk factor assessment with the organization providing you with access to the Application (the “Organization”). You are accessing the Application using the handheld or tablet device onto which you have downloaded the Application (the “Device”).
The Application is owned and operated by 12195577 Canada Inc., the company that owns and operates the SAFENLABS brand (“SAFENLABS”), a Canadian corporation located in Montréal, Canada at the address listed below. Where the present TOU refer to “SAFENLABS” they may refer to 12195577 Canada Inc. and / or its affiliates, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives”), depending on the context. Any reference to “we”, “our”, or “us” in these TOU shall also refer to SAFENLABS and / or its Representatives. In these TOU, an Application user may be referred to as “you” or “your”. When an Application user is logged in to the Application, he, she or they may be referred to as a “Logged-in User”.
SAFENLABS reserves the right, at any time and without prior notice, to modify or replace any of the TOU. Any changes to the TOU can be found in the Application itself. It is your responsibility to check the TOU periodically for changes. Your use of the Application following the posting of any changes to the TOU constitutes acceptance of those changes. If we make any substantial changes to the TOU that materially affect your legal relationship with SAFENLABS, we will use commercially reasonable efforts to notify you by posting a prominent notice on the Application.
2. Contacting Us
If you have any questions about the TOU, please contact:
SAFENLABS Legal Services
SAFENLABS Legal Services
222-3700 Saint-Patrick Street
H4E 1A2, Canada
If you have any questions regarding the Application or your account, please consult the FAQ page in the Application.
3. General Code of Conduct for Use of the Application
In addition to the more specific rules found elsewhere in these TOU, you agree that by interacting with the Application in any way, you agree to:
4. Description and Use of the Application; Disclaimer
a. Description and Use of the Application
You are provided with access to the Application by the Organization, which sets the terms for your use of the Application in a separate agreement between yourself and the Organization. SAFENLABS has no input on the Organization’s expectations and requirements for your use of the Application and disclaims any responsibility in this regard.
The Application is free for you to use, as the Organization pays for it to be made available to you. The Application is a remote health monitoring system that extracts vital signs in real time. Using the Application, you will self-identify your symptoms and undergo a vital signs scan of your face using your Device’s camera. This vital signs scan will extract your oxygen saturation, respiration rate and heart rate and the Application will display these results to you in less than 30 seconds. You are only permitted to undergo the personal assessment and vital signs scan once per day and you cannot update your self-identified symptoms after you have completed the initial assessment. The Application will use our algorithm to analyze the inputs of your personal assessment and the results of your vital signs scan. The Application will then provide you with one of three possible outputs: (i) Pass (low health risk); (ii) Fail (higher health risk); or (iii) a locked account, which is the result of your selecting “I tested positive for COVID-19” in the Application. An analysis resulting in a Fail output will ask you to stay home that day and not visit the Organization. When you select “I tested positive for COVID-19”, your account will be locked. In order to unlock your account, you will need to contact the Organization.
The Application is not a medical device, nor a medical diagnostic tool and cannot be relied upon as a source of medical information, medical advice or COVID-19 symptoms; it is merely a risk factor assessment tool. Without limiting the generality of the Disclaimers and Limitation of Liability sections elsewhere in these TOU, SAFENLABS in no way guarantees that the Application is meant to act as a replacement for seeking medical care or as an accurate and reliable source of information about the state of your health. SAFENLABS cannot be held responsible for any actions or non-actions that you may take as a result of the outputs provided to you by the Application on any given day. If you are concerned about the state of your health, you are urged to consult medical professionals.
5. Device Requirements
In order to use the Application, you will be required to have a Device that meets these minimum requirements: [•].
6. Use of the Application
8. Accessing and Downloading the iOS Application from the Apple iTunes Store, and Related Acknowledgements
a. Accounts and Passwords
In order to be able to use the Application, you will be required to (i) download the Application from a Third-Party Application Distributor; and (ii) have an account provided to you by the Organization, subject to the restrictions and conditions as outlined elsewhere in these TOU. Accounts may be approved or rejected by SAFENLABS, which shall be at our sole discretion.
You will be provided with an initial password by the Organization and will subsequently be asked to replace the initial password with your own password. It is your responsibility to create a password of sufficient strength that cannot easily be discovered by third parties. You are responsible for maintaining the confidentiality of your password and are responsible for all activities that occur under your account, whether by you or any third party. You agree to immediately notify us of any unauthorized use of your account or any other breach of security regarding your account. You will be able to change your password at any time.
SAFENLABS reserves the right to suspend or terminate your account, at its sole discretion, at any time and for any reason, including but not limited to whether you have violated the letter or spirit of the TOU, as more fully described hereinbelow.
b. Age Requirements
In order to create an account with the Application, you affirm that you are at least sixteen (16) years of age or over, or the age of majority in the jurisdiction in which you reside and from which you access the Application where the age of majority is greater than sixteen (16) years of age.
c. Account Information
By submitting Account Information, you represent and warrant that the Account Information is true and accurate to the best of your knowledge. Submitting false or misleading Account Information may result in you being banned from using the Application, at our sole discretion.
If you are a Logged-in User, it is strongly suggested that you log out of your account at the end of every session, or not leave a logged-in account unattended for any period of time. SAFENLABS and its Representatives will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Application with your Account Information and accessing your account through any means, and disclaims any responsibility in this regard.
10. Proprietary Rights
a. Intellectual Property Rights
You acknowledge that: (a) the Application contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) SAFENLABS, its Representatives and/or third parties (via license) own all right, title and interest in and to the Application and content that may be presented or accessed through the Application, including, without limitation, all Intellectual Property Rights therein and thereto. All rights not specifically granted under these TOU are reserved to SAFENLABS and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, whether registered or not.
You agree that you will not, and will not allow any third party, to: (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Application, or content that may be presented or accessed through the Application for any purpose, unless otherwise permitted by these TOU or the functionalities of the Application; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in the Application; or (iii) remove, obscure, or alter SAFENLAB’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Application.
The content, arrangement and layout of the Application, including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and Computer Code are proprietary to SAFENLABS, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of SAFENLABS, or as permitted by the functionality of the Application or these TOU. Any unauthorized use of the content, arrangement or layout of the Application, Computer Code, images, logos, videos, audio or trademarks found on the Application or any portion of or derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and SAFENLABS may take action accordingly.
b. Submitted Information
If you choose to communicate to SAFENLABS (via any means) suggestions for improvements to the Application or any idea or proposal related to SAFENLABS or its businesses or properties (collectively, “Feedback”), SAFENLABS shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to SAFENLABS and waive in favor of SAFENLABS, its successors and assigns all your moral rights in the Feedback; and agree to provide SAFENLABS such assistance as SAFENLABS may require to document, perfect, and maintain SAFENLABS’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to SAFENLABS, you are not entitled to any compensation or reimbursement of any kind from SAFENLABS under any circumstances.
11. External Links
In no way will SAFENLABS be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Application or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.
12. Interruption of Service
From time to time, the Application (or any portion thereof) may be unavailable for brief periods of time for maintenance and / or modifications to the Application. While we will endeavour to make this unavailability as brief as possible, SAFENLABS and its Representatives shall not be held liable for any losses or damages, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Application, and disclaims any responsibility thereto.
13. Termination of the TOU and Access to the Application
SAFENLABS may also, in its sole discretion and at any time, discontinue providing the Application, or any part thereof, with or without notice. You agree that SAFENLABS and its Representatives shall not be liable to you or any third party for any losses or damages, pecuniary or non-pecuniary, resulting from termination of your access to the Application, or from SAFENLAB’S termination of the Application or any part thereof.
Termination of the Application or your access to the Application shall terminate the present TOU as between you and SAFENLABS. All provisions of these TOU which by their nature should survive termination of these TOU shall survive termination, including, without limitation, the intellectual property provisions, disclaimers, indemnity and limitations of liability.
14. Disclaimer of Warranties
You expressly understand and agree that your use of the Application, the information thereon (whether provided by SAFENLABS or third parties) or any activity arising from your use of the Application or the information thereon or the materials downloaded therefrom is at your sole risk. The Application, any materials downloaded therefrom, or any third party materials, are provided on an “as is” and “as available” basis, and you will be solely responsible for any damage to your Device or loss of data that results from the download, stream or access of any material obtained through the use of the Application or any other functionalities of the Application, or losses or damages (financial or otherwise) resulting from your use of the Application, the information thereon, any materials downloaded therefrom, or any activity arising from the use of the Application, the information thereon or any materials downloaded therefrom.
The information or resources provided through the Application, written or produced by SAFENLABS staff, freelance writers or other subcontractors hired by SAFENLABS are expected to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Application is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur. SAFENLABS and its Representatives shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Application or the information thereon, or your reliance on such information whether the information is correct or not.
SAFENLABS expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Application, the information thereon or any materials downloaded therefrom, and any third-party materials will be uninterrupted, error-free, accurate, reliable and free from viruses and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. SAFENLABS, its affiliates and their respective Representatives, do not warrant that: (i) the Application will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content (whether provided by SAFENLABS or third parties) available at or through the Application is free of viruses or other harmful components; or (iv) the results of using the Application or any content downloaded will meet your requirements.
Some of the content displayed on the Application may include elements that belong to or are provided by third parties. You acknowledge that SAFENLABS assumes no responsibility for such content.
To the extent that the law does not permit a disclaimer of warranties, all content accessible on the Application and all operations on the Application are warranted only to the minimum amount legally required.
15. Limitation of Liability
To the maximum extent permitted by law, SAFENLABS shall not be liable and assumes no responsibility for any loss or damages whether pecuniary or otherwise arising from or relating to the information available through the Application or downloaded therefrom, the use of the Application, activities arising from your use of the Application, or any third-party materials on the Application or available through the Application.
To the maximum extent permitted by law, in no event will SAFENLABS or its Representatives: (i) be liable for any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages (including, without limitation, loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of or relating to the Application or your use, misuse or inability to use the Application, even if SAFENLABS has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in contract, warranty, tort, negligence, strict liability or under any other legal theory.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above exclusions and limitations may or may not apply to you.
17. Governing Law and Applicable Jurisdiction
These TOU and your use of the Application shall be governed by and construed in accordance with the laws of the Province of Québec, Canada and the federal laws of Canada applicable therein in force at the time without regard to conflict of law provisions. You agree that any legal action or proceeding between you and SAFENLABS shall be brought exclusively in the courts located in the Judicial District of Montréal, Canada. Notwithstanding the foregoing, SAFENLABS shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by the Montréal court will, or may not be, enforced by the jurisdiction in which you reside or are located; or (iii) to enforce in your jurisdiction a judgment obtained against you in the Montréal court.
18. Miscellaneous Provisions
© 12195577 Canada Inc., 2020