Terms of Use

(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”).

By downloading the Application on your Device or by tapping an acceptance button upon your use of the Application for the first time, you hereby accept to be bound by these Terms of Use (“TOU”) without any reservations, modifications, additions or deletions.  If you do not agree to all the provisions contained in the TOU, you are not authorized to use the Application. The TOU are a legal and binding agreement between you and us. For this Application, these TOU may also be referred to as, and are equivalent to, an “End User License Agreement” or “EULA”.

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.

Additional definitions shall be made throughout these TOU, but they will be recognizable as they will be capitalized, bolded, and in quotation marks. Additional definitions may also be found in the Privacy Policy and will have the same meaning in these TOU as they do there. The definitions found in these TOU shall also apply to the Privacy Policy. Both the TOU and the Privacy Policy govern your use of the Application.

2. Contacting Us

If you have any questions about the TOU, please contact:

SAFENLABS Legal Services

legal@safenlabs.com

or:

SAFENLABS Legal Services

222-3700 Saint-Patrick Street
Montréal, Québec
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:

1. Not use the Application  in any manner that in any way violates these TOU or any other applicable policy posted on or in the Application by SAFENLABS;

1. Not use the Application in any manner that violates any intellectual property rights of SAFENLABS or any third party;
2. Not use the Application in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
3. Not use the Application in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to SAFENLABS or a third party, or to damage or obtain unauthorized access to any system, data, password or other information (whether personal data or not) of SAFENLABS, other Application users or any other third party;
4. Not: (1) take any action that imposes or may impose (as determined by SAFELABS in its sole discretion) an unreasonable or disproportionately large load on SAFENLABS’s (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Application or any activities conducted on or via the Application; (3) bypass any measures SAFENLABS may use to prevent or restrict access to the Application or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page or portion of the Application; or (5) harvest or scrape any content from the Application in an unreasonable manner;

1. Not take any action or use any process that removes, modifies, disables, blocks, obscures or otherwise impairs any advertising or other promotions in connection with the Application;

1. Not use the Application to in any way collect information (whether personal information or not) of any third party or in violation of our Privacy Policy;

1. Not use the Application to advertise or promote products or services that are not expressly approved in advance in writing by SAFENLABS, or as permitted by these TOU;

1. Not interfere with any third party’s use or enjoyment of the Application;

1. Not do anything or encourage conduct that would constitute a criminal offense or give rise to civil liability, or is any way unlawful, illegal, fraudulent or harmful to any third party;

1. Not attempt to do any of the foregoing prohibitions;

1. Use the Application in good faith, and in compliance with all applicable local, provincial or state, national, and international laws.

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.

b. Disclaimer
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

1. The Application is licensed, not sold. SAFENLABS grants you the non-exclusive, non-transferable, non-sublicensable, limited right and license to install and use the Application solely and exclusively for your personal use on your Device, or the use of any other third party with access to the Device that you control and with your permission, and as permitted by the Usage Rules set forth in the App Store Terms and Conditions for the iOS Application or the Google Play Terms of Service for the Android Application.  The iOS App Store or Google Play or any other distributor for apps may be referred to in these TOU as a “Third-Party Application Distributor”.

1. You may not use the Application in any manner that could damage, disable, overburden, or impair the Application (or servers or networks connected to the Application), nor may you use the Application in any manner that could interfere with any other party’s use and enjoyment of the Application (or servers or networks connected to the Application).

1. You agree that you are solely responsible for (and that SAFENLABS has no responsibility to you or to any third party for) your use of the Application, any breach of your obligations under the TOU, and for the consequences (including any loss or damage, direct or indirect, which SAFENLABS may suffer) of any such breach. Where a third party uses the Application on your Device with your permission, you are solely responsible for conforming to these TOU and any breach thereof shall be your responsibility. Where a third party gains control of your Device without your permission, we strongly suggest taking action (especially a remote wipe or other procedure to lock out your Device) as SAFENLABS cannot be held responsible for any misuse of, or damage to, your Device (whether in relation to the Application or not) in such circumstances.

7. Privacy Policy and Permissions for the Application

1. Our Privacy Policy explains how SAFENLABS treats your personal data (as that term is defined in the Privacy Policy) and protects your privacy when you use the Application. By installing, accessing or using the Application, you explicitly agree to the use of your personal data in accordance with the Privacy Policy, which may be updated from time to time and without notice.

1. By installing, accessing or using the Application, you consent to the information collection and usage terms as described in the Privacy Policy.

8. Accessing and Downloading the iOS Application from the Apple iTunes Store, and Related Acknowledgements

1. You acknowledge and agree that (i) these TOU are concluded between you and SAFENLABS only, and not Apple, and (ii) SAFENLABS, not Apple, is solely responsible for the iOS Application and content thereof. Your use of the iOS Application must comply with the Apple Media Services Terms and Conditions, which you are responsible to review from time to time.

1. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Application.

1. Apple will have no warranty obligation whatsoever with respect to the iOS Application. As between SAFENLABS and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of SAFENLABS, or as further specified and limited hereinafter.

1. You and SAFENLABS acknowledge that, as between SAFENLABS and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the iOS Application or your possession and use of the iOS Application, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

1. You and SAFENLABS acknowledge that, in the event of any third-party claim that the iOS Application or your possession and use of the iOS Application infringes that third party’s intellectual property rights, SAFENLABS, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, as specified elsewhere in these TOU.

1. You and SAFENLABS acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these TOU as related to your license of the iOS Application, and that, upon your acceptance of these TOU, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOU as related to your license of the iOS Application against you as a third-party beneficiary thereof.

1. You acknowledge that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

1. Without limiting any other of these TOU, you must comply with all applicable third-party terms of agreement when using the Application.

1. You acknowledge that updates to the iOS Application are subject to the approval of Apple, and SAFENLABS and its Representatives shall not be held responsible for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from any delay in the approval of updates by Apple.

9. Accounts

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

The information required to create an account is the following: your email address associated with the Organization and the password that is initially provided to you, as referenced in section 9a. This information you submit as part of the sign-up process may be referred to in the present TOU or the Privacy Policy as “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.

The above paragraph further applies to third party property used as part of the Application, including but not limited to third party Computer Code.  For the purposes of the present section, “Computer Code” includes but is not limited to source code in any programming language, object code, frameworks, CSS, PHP, JavaScript or similar files, templates, modules, or any similar files, and related documentation.

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

From time to time SAFENLABS may provide links to other websites or services. Links from the Application may take you to websites or services not covered by these TOU. When you access third party resources on the internet in this manner, you do so at your own risk. SAFENLABS provides those links as a convenience to you and SAFENLABS takes no responsibility for your use of those other websites or services or protection of your privacy (including collection of your personal information) on those other websites or services. We encourage you to check the Terms of Use and / or Privacy Policy of any website or service you visit. SAFENLABS does not make any claim or warranty whatsoever about the content of those websites or services to which we link, or any products or services available through those websites or the third parties operating those websites.

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

You agree that SAFENLABS, in its sole discretion, with or without cause, has the right (but not the obligation) to block your IP address, revoke your account credentials, or otherwise terminate your access to or use of the Application (or any part thereof), immediately and without notice, if SAFENLABS believes that you have acted inconsistently with the letter or spirit of the TOU or the Privacy Policy, or have violated any other posted policy.

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.

16. Indemnity

Notwithstanding any other term of the TOU or any act or failure to act by SAFENLABS or its Representatives, you agree to indemnify, defend and hold harmless SAFENLABS and its Representatives where applicable, from and against any damages, liabilities, costs and expenses (including attorneys’ fees), claims or demands, arising out of: (i) your use of or connection to the Application, the information thereon, the information downloaded therefrom; (ii) your participation in any activities arising from the Application, the information thereon or information or materials downloaded therefrom; (iii) your violation of, or failure to perform your obligations under the TOU or the Privacy Policy; or (iv) your violation of any rights of a third party.

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

1. The TOU, in conjunction with the Privacy Policy, constitutes the entire agreement between you and SAFENLABS with respect to your use of the Application, superseding any prior agreements between you and SAFENLABS.
2. SAFENLABS shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond SAFENLAB’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation, or any force majeure event.
3. If any provision of the TOU or Privacy Policy is found by a court of competent jurisdiction to be invalid, you and SAFENLABS nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOU or Privacy Policy, as the case may be, shall remain in full force and effect.
4. The failure of SAFENLABS to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to SAFENLABS.
5. The section titles in the TOU and Privacy Policy are for convenience only and have no legal or contractual effect.
6. The parties acknowledge having expressly required that these TOU and the Privacy Policy are to be drawn up in the English language. Les parties aux présentes reconnaissent avoir expressément exigé que les présentes Conditions d’utilisation et la Politique de confidentialité soient rédigées en anglais.

© 12195577 Canada Inc., 2020