Last Updated: July 19, 2021 Openscreen Inc.
QR Code is a registered trademark of DENSO WAVE INCORPORATED in the United States and other countries.
Openscreen is a platform that provides developers and clients, (our “Clients”) with tools to generate QR Codes, store associated assets and contacts, and scan data related to those codes. In providing the Service, we collect personal information relating to Clients and their employees and representatives (“Client Data”). We also collect personal information relating to our Client’s end users, such as our Client’s employees or customers (“User Data”). We process User Data on behalf of our Clients as their service provider. Our Clients are accountable for the User Data that we process on their behalf. If you are an end user of one of our Clients and you have questions about how your User Data is handled, please contact the Client directly. We also collect personal information from individuals who provide it to us directly for specified purposes, such as individuals that sign up to receive promotional communications about Openscreen’s products, services or events.
The Client Data we collect includes name and contact information (including email and phone number), username and password, information about a Client’s business and needs, information about the types of Services that a Client uses, and information for the purposes of processing payments. We also collect certain Client Data automatically (see “Information We Collect Automatically” section below). We use Client Data to:
We may use Client Data for other purposes with consent or as otherwise permitted or required by law.
We collect User Data on behalf of our Clients and in accordance with their instructions. The User Data we collect will depend on how our Clients use our Service, and the type of information that the user chooses to provide, but may include name, email address, phone number, social media username, location, device type, scan data and other contact information, as well as comments and feedback. We also collect certain User Data automatically (see “Information We Collect Automatically” section below).
We use the information we collect, including Client Data, User Data, and data collected automatically through tools such as cookies, to create de-identified data that cannot be associated with, or used to identify, a Client, User, or other individual. We may use and share de-identified data with third parties to market or improve products or services, create new products or services, for research purposes, or otherwise as permitted or require by law. bsite you visit.
We use data collection tools to automatically collect information when individuals visit our Site or use our Services. When we collect this information about our Client’s end users, we treat this information as User Data and only process it on behalf of our Clients.
We use technologies like date stamps, device identifiers, GPS, and cookies and pixel tags to provide, monitor, analyze, promote and improve the Service. For example, a cookie is used to remember your username when you return to the Service and to improve our understanding of how you interact with the Service. You can block cookies on your web browser; however please be aware that some features of the Service may not function properly if the ability to accept cookies is disabled.
When you use the Service, our servers automatically record certain information in server logs. These server logs may include information such as your scan request, Internet Protocol (“IP”) address, browser type, device type, location, referring / exit pages and URLs, number of clicks, number of scans, and how you interact with Content and links on the Service, domain names, landing pages, pages viewed, mobile carrier, and other such information. Log files help us to monitor, analyze, improve and maintain the Service and to diagnose and fix any Service-related issues.
When you access the Service using a mobile device, we collect specific device information contained in your mobile device’s “device identifier.” This device identifier includes information such as the type of device you are using, its operating system, and mobile network information, which may include your mobile phone number. We may associate this device identifier with your Service account and will use data associated with your device identifier to customize our Services to your device and to analyze any device related issues.
We may collect and process information about the location of the device from which you are accessing the Service. Location data may convey information about how you browse the Service and may be used in combination with personal information. Location data may be used with consent to customize the services provided. You may be able to adjust whether your device shares location data in your personal device settings.
Time & Date
When you access the Service by either logging in as a Client or as an end user by scanning a QR Code or other contactless technology, we may automatically record the time and date of your activities while using the Service. We use this data to understand usage patterns to improve the Service, to diagnose and remedy errors, and for security and assurance purposes.
We may use third party service providers like Google Analytics to collect information about your use of the Site, such as the features used and time spent on the Site, to help us better understand our users and improve our Site. The information we gather is used in an aggregate, non-identifiable form. For information about information is processed in connection with Google Analytics please read the Google Analytics Policy here.
Our Clients have access to User Data relating to their end users. We are not responsible for our Client’s handling of User Data. If you are an end user of one of our Clients and have questions about how your User Data is handled, please contact the applicable Client directly.
We do not sell or rent personal information to marketers or unaffiliated third parties. We may transfer personal information to service providers that provide certain services on our behalf, such as data hosting and processing, marketing, analytics, email delivery, auditing services, information technology services, call center, and payment processing. Among such service providers, we use Amazon Web Services to host our platform; we use Amazon SES to originate emails sent by our Service; we use Klayvio to manage our email marketing and Service communications; and we use Twilio for SMS communications originated by our Service.
We may disclose personal information to parties in connection with a corporate transaction, such as a sale, financing or other disposition of all or part of our business or assets, for the purposes of evaluating and/or performing the transaction.
We may disclose personal information where permitted or required by law, including to comply with a subpoena or warrant, to law enforcement in connection with an investigation, to protect our rights and the safety and security of our employees, and to enforce our agreements and collect debts owed to us.
We rely on one or more of the following legal grounds (as appropriate) to process Client Data:
Where personal information is processed with consent, you may (subject to contractual and legal restrictions) refuse to provide your consent, or choose to withdraw your consent, to our processing of your personal information by contacting us as described below. Note that if you refuse to consent, or withdraw your consent, to certain processing of your personal information, we may not be able to provide certain parts of our services.
With respect to User Data, we process this information on behalf of our Clients as a service provider.
We protect personal information using safeguards that are appropriate to the sensitivity of the information. These safeguards may include measures to protect against unauthorized access, alteration, disclosure or destruction of personal information. We limit access to personal information to our employees and service providers who require access in connection with their role or function. Each of our employees is responsible for maintaining the confidentiality of all personal information to which they have access. We keep our employees informed about our policies and procedures for protecting personal information. Despite these measures, since no system or security measure is completely secure, it is possible that personal information may be lost, stolen or accessed without authorization.
Personal information is maintained on our servers or those of our service providers and is retained as long as necessary for the fulfillment of the purposes for which it was collected, in accordance with prudent business practices on general document retention, or as otherwise required by law.
Personal information is maintained on our servers or those of our service providers and is retained as long as necessary for the fulfillment of the purposes for which it was collected, in accordance with prudent business practices on general document retention, or as otherwise required by law.
You may unsubscribe from our promotional email communications at any time by using the unsubscribe feature included in those messages. Please note that if you unsubscribe from our promotional email communications you may still receive transactional or business-related communications from us.
You may request access to or correction of your personal information in our custody or control, by writing to us as described below. You may also have the right, in specified circumstances, to object to our use of your personal information, to request the deletion of your personal information or restrict its use, to request a copy of the information you have provided to us to use for your own purposes, or to lodge a complaint with a supervisory authority. Your rights are subject to applicable legal restrictions and we may take appropriate steps to verify your identity before responding to your request. Please note that if you are an end user of one of our Clients, you must make all such requests directly to the applicable Client.
By accepting our Communication Policy, you agree to subscribe to promotional communications about Openscreen Inc.’s p1roducts, services, and events. You can unsubscribe from these communications at any time.
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1. Amendments to these Terms of Service
1.1 Amendments these Terms of Service. Openscreen may modify or adapt these Terms of Service at any time, with or without prior notice. Openscreen will provide notice any substantial modification by placing a notice on the Platform. Your continued access and use of the Services after a modification or adaptation of these Terms of Service will be deemed as acceptance of these modified terms on behalf of the Client. If the Client disagrees with any modification or adaptation of the Terms of Service, all access and use of the Services by the Client must cease.
2. Account Creation
2.1 Account Creation and Information. To use any Service, you will be asked to create an account. Openscreen may, in its sole discretion, determine and alter the qualifications required to create an account for Services at any time. As part of the account creation process, you will be asked to provide your full name, email address and create a password. You may authorize an individual employed by the Client to access the Platform and Services for the purposes of developing a Client Application on behalf of the Client (each, an “Authorized User”) and you remain liable for any action of any Authorized User in connection with your account.
2.2 Accurate Information. When creating an account, you must provide true, accurate, current, and complete information about yourself as requested during the account creation process. You must keep that information true, accurate, current, and complete after you create each account. If you breach these Terms of Service, including, without limitation, your payment obligations in Section 7 (Fees and Payment), you are strictly prohibited from creating new accounts until you remedy such breach in full.
2.3 Account Access. You shall keep the usernames, passwords, and other identifying information used by you to access the Services (the “Login Credentials”), including your user ID and password, confidential and secure at all times and shall ensure that you are the only person who accesses and uses the Services using your Login Credentials. You must take corrective action or report to Openscreen immediately if you learn or suspect any compromise or loss of your Login Credentials or any unauthorized access to or use of the Services with your Login Credentials. You agree that you will be fully responsible for all activities conducted using your Login Credentials and that you will be liable to Openscreen for all losses, damages, and expenses suffered or incurred by Openscreen or any other person due to your breach of this Section 2.3. You agree that Openscreen will not be liable to for any losses, damages, or expenses incurred that are attributable to your breach of this Section 2.3 or for any unauthorized access to or use of the Services through your Login Credentials.
3. Access to these services
3.1 Rights Granted. Subject to your compliance with these Terms of Service, Openscreen grants you a limited, non-exclusive and non-transferable right and licence to: (i) access the Platform, install and download the Openscreen tools, and use the Openscreen API for your use in connection with the Services; (ii) use the Openscreen Platform, tools, user interface and API to access and use the Services, strictly in accordance with these Terms of Service for the purposes of developing and making available to your end-users software application or services that interface with the Services (each, a “Client Application”).
3.2 Provision of Services. Openscreen will make the Services available to you in accordance with these Terms of Service, the Openscreen documentation, including any usage guides and policies for the Services contained in such documentation (“Documentation”), and any applicable ordering document between the parties that specifies mutually agreed upon rates for certain Services and other commercial terms (the “Service Plan”), subject to your use of the Services in accordance with these Terms of Service, the applicable Documentation, and any applicable Service Plan. Openscreen disclaims any warranty in relation to the Services not expressly set out herein.
3.3 Beta Offerings. Openscreen may make Services available to you that are identified as alpha, beta, not generally available, limited release, developer preview, or any similar Services offered by Openscreen (collectively, “Beta Offerings”) available to you. You may choose to use a Beta Offering in your sole discretion. Openscreen may discontinue a Beta Offering at any time, in its sole discretion, or decide not to make a Beta Offering generally available.
3.4 Suspension of Services. Openscreen reserves the right, at its sole discretion, to suspend your access to the Platform and any or all Services or to cease providing any of the Services to you at any time if you are, or Openscreen reasonably believes that you are, in breach of these Terms of Service or are otherwise engaging in conduct that Openscreen considers in its sole discretion to be harmful to Openscreen. If Openscreen suspends your access or use of the Platform or any of the Services pursuant to this section 3.4 or section 7.4, Openscreen will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur in connection with any such suspension.
3.5 Changes to Services. Openscreen reserves the right to modify all or part of the Platform and the Services at any time. The features and functions of the Services, including the Openscreen API, may change over time provided, however, Openscreen will not materially decrease the overall functionality of the Services. It is your responsibility to ensure each Client Application (as defined below) is compatible with the then-current Services. Although Openscreen tries to avoid making changes to the Services that are not backwards compatible, if any such changes become necessary, Openscreen will use reasonable efforts to let you know at least sixty (60) days prior to implementation. In the event Openscreen makes a non-backwards compatible change to a Openscreen API and such change materially and negatively impacts your use of the Services (“Adverse API Change”), (a) you will notify Openscreen of the Adverse API Change and (b) Openscreen may agree to work with you, in Openscreen’s sole discretion, to resolve or otherwise address the Adverse API Change, except where Openscreen, in its sole discretion, has determined that an Adverse API Change is required for security reasons, to accommodate a modification to open technology standards, or to comply with applicable law or regulation.
4. User Responsibilities
4.1 Your Account Responsibilities. In accessing and using the Platform and the Services, you shall:
4.2 Unauthorized Use. Openscreen is not liable for any loss or damage arising from unauthorized use of your account. Assignment of Account.
4.3 Assignment of Account. Your account may not be assigned without Openscreen’s prior written consent.
4.4 End-User Agreement. You must ensure that any person who accesses and uses a Client Application (an “End-User”) agrees to be bound by and executes an End-User agreement for such Client Application prior to their use of such Client Application (the “End-User Agreement”). The provisions of the End-User Agreement must grant no less protection of Openscreen’s rights and interest than the provisions of these Terms of Service relating to intellectual property and confidential and that include consent language that ensure compliance with all applicable personal information and privacy protection legislation.
4.6 Additional Terms. Certain services or products that Openscreen may make available to you through the Platform may be subject to additional terms and conditions. You shall comply with any such additional terms and conditions of which Openscreen provides you with notice. If there is any inconsistency between such additional terms and conditions and these Terms of Service, the additional terms and conditions will prevail to the extent of the conflict.
5. Affiliates and Service Providers
5.1 Other Parties involved in Providing the Services. The Services may be provided, in whole or in part, by one or more affiliates of Openscreen or by third-party service providers on behalf of Openscreen (collectively, the “Openscreen Parties”), in accordance with these Terms of Service. Openscreen is only responsible for the Services provided by Openscreen Parties, and you are not relieved of your obligations under these Terms of Service if the Services, or a portion thereof, are provided by Openscreen Parties. Openscreen will enforce these Terms of Service relating to the Services that Openscreen Parties provide. Notwithstanding anything to the contrary in these Terms of Service, Openscreen Parties may directly bill you for the Services they provide or solely as a billing agent for Openscreen or another Openscreen Parties of ours providing the Services, as applicable. Certain services in connection or in relation with the Services may also be provided by unaffiliated third parties; such additional services will be governed by the provisions of your agreement with such third parties and Openscreen (and any Openscreen Parties) will have no responsibility in relation to the provision of such third-party services.
5.2 Your Affiliates. Your Affiliates that use the Services under these Terms of Service shall be deemed to have accepted these Terms of Service individually.
6. Third-Party Content
6.1 Third-Party Content. Platform Content may include content and materials created by third parties (“Third-Party Content”). The inclusion of any Third-Party Content on the platform does not constitute an endorsement by Openscreen of any such Third-Party Content. You acknowledge and agree that all Third-Party Content is made available to you on an “as-is” basis and is used and relied on by you at your own risk. Openscreen has no liability to you for any damage or loss that arises as a result of your use of any Third-Party Content.
6.2 Third-Party Terms. Certain Third-Party Content may be subject to any additional terms and conditions (“Third-Party Terms”). You shall comply with any applicable Third-Party Terms of which Openscreen provides you with notice.
6.3 Links to Other Websites. Openscreen may from time to provide you with links to websites and services provided by third parties. If Openscreen does so, Openscreen does not endorse any such third-party websites or services and Openscreen does not guarantee the quality, accuracy, currency, timeliness, reliability or fitness for any purpose of any third-party websites or services. If you choose to access any such website or service, you do so at your own risk.
7. Fees and Payment
7.1 Fees. You agree to pay fees in accordance with the Service Plan to which you subscribed.
7.2 Taxes. The Fees are exclusive of all taxes imposed by applicable law in connection with the Fees, including, sales tax, goods and services tax, use, withholding or excise tax and all other like or similar taxes applicable to the provision of Services, and Client shall pay or reimburse Openscreen for all such applicable taxes (exclusive of taxes based on Openscreen’s income or property taxes or other taxes not related to the Services or Client’s use thereof).
7.3 Payment Terms. As determined by the Service Plan, Fees will either be (a) invoiced by Openscreen to the Client address set out on the Service Plan in advance of each billing period or (b) be charged to Client’s credit card in advance of each billing period . If payment is by invoice, all invoiced charges are due net 30 days from the invoice date. If payment is by credit card, Client is responsible for providing Openscreen with valid and updated credit card information and Client hereby authorizes Openscreen to charge such credit card for all Services listed in the Service Plan. Client is responsible for providing complete and accurate billing and contact information to Openscreen and notifying Openscreen of any changes to such information.
7.4 Suspension of Service. If any amount owing by Client under these Terms of Service is 30 or more days overdue Openscreen may, without limiting its other rights and remedies, suspend the Services until all such amounts are paid in full. Openscreen will provide at least 7 days’ prior notice that Client’s account is overdue before suspending the Services.
8. Intellectual Property
8.1 Openscreen Intellectual Property. All rights, title, and interest in and to the Services, the Platform, all Platform Content (including all Third-Party Content), including any software, technology, tools, designs, graphics, illustrations, logos and marks used by Openscreen to provide the Services and all videos included on the Platform, and any and all modifications or improvements thereto (“Openscreen IP”), are, and will be, owned solely and exclusively by Openscreen or its licensors, as applicable. Openscreen reserves all rights not expressly granted to you under these Terms of Service, and you will have no title, right, or interest in or to any Openscreen IP except for the limited rights and licenses expressly granted to you under in these Terms of Service. To the extent that you create or develop any modifications or improvements to the Openscreen IP, you hereby assign, and agrees to assign, to Openscreen any and all rights therein you have or may have in the future and to take all actions and execute all documents necessary to affect such assignment. All rights granted to you under these Terms of Service to access and use the Services, the Platform, and the Platform Content will terminate on any termination of these Terms of Service.
8.2 Your Intellectual Property. You exclusively own and reserve all right, title, and interest in and to each Client Application (excluding any rights in Openscreen IP, which remain owned by Openscreen and its licensors).
8.3 Feedback. You may provide input, comments or suggestions to Openscreen regarding aspects of the Services, the Platform, and Platform Content (“Feedback”). You acknowledge and agree that Openscreen may use any Feedback without any obligation to you and you hereby grant Openscreen a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit, or otherwise use such Feedback as Openscreen in its sole discretion may deem appropriate, without restriction obligation or consideration to you, for any and all commercial or non-commercial purposes.
9. Data Ownership
9.1 Services Data. Openscreen exclusively owns and reserves all right, title, and interest in and to the Services, the Documentation, our Confidential Information (as defined below), and any data that is derived from the use of the Services that does not directly or indirectly identify your assets, your QR Codes, your contacts and your scan information, or any natural person and includes (a) data such as volumes, frequencies, locations, dates and Service performance data and (b) subject to any restrictions under applicable laws, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify you, any natural person, your assets, your QR Codes, your contacts and your scan data. You exclusively own and reserve all right, title, and interest in and to each your applications, your Confidential Information, and Client Data, subject to our rights to process Client Data in accordance with these Terms.
9.2 Data Retention Upon termination of an account, Openscreen shall retain Client Data for a minimum of 30 days following the termination date (“the Retention Period”). During the Retention Period, Clients may (a) reinstate use of the Platform by subscribing to a Service Plan that accommodates the Client Data stored in the account (b) access Client Data via the Platform for purposes of data downloading and transfer. In the event of a violation of Openscreen’s Acceptable Use Policy, Openscreen shall not be required to retain Client Data for any period following the termination date.
10. Confidential Information
10.1 Definitions. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party hereto (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. For greater clarity, Confidential Information of Openscreen includes the Platform, security reports and attestations, audit reports, customer lists, pricing, concepts, processes, plans, designs and other strategies, “know how”, financial, and other business and/or technical information and materials relating to the Services. Confidential Information does not include any information which: (a) is publicly available through no breach of these Terms of Service or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without breach of Disclosing Party’s rights; or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.
10.2 Use and Disclosure. Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under these Terms of Service and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to its, its Affiliates’, and their respective employees, legal counsel, accountants, contractors, and in Openscreen’s case, subcontractors (collectively, “Representatives”) who have a “need to know” as necessary for Receiving Party to exercise its rights or fulfill its obligations under these Terms of Service. Receiving Party is responsible for its Representatives’ compliance with this Section 10.2 and shall ensure that Representatives are legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 10.2. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care. The obligations of the Receiving Party under this Section 9 shall survive the expiry or termination of these Terms of Service.
10.3 Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party if so, required pursuant to a regulation, law, subpoena, or court order, provided Receiving Party gives Disclosing Party notice of such a compelled disclosure (to the extent legally permitted). Receiving Party will provide reasonable cooperation to Disclosing Party in connection with such a compelled disclosure at Disclosing Party’s sole expense.
10.4 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 10 and that, in the event of an actual or threatened breach of the provisions of this Section 10, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
11. Data Protection
11.2 Security. Openscreen has implemented security policies and practices that are designed to protect the security and integrity of the Services; however, Openscreen does not guarantee the security of the Services or the security or integrity of any communications between you and the Platform.
12. Representations and Warranties
12.1 Client Data. You represent and warrant that you have provided, and will continue to provide, adequate notices and have obtained, and will continue to obtain, the necessary permissions and consents and have given all required notices, in compliance with applicable law and with Sections 4.1(d) and 11.1 (Client Data), for Openscreen to use, store, process, communicate and disclose Client Data for all purposes set out in these Terms of Service.
12.2 Services. Openscreen represents and warrants that the Services perform materially in accordance with the applicable Documentation. Openscreen’s sole obligation, and your sole and exclusive remedy, in the event of any failure by Openscreen to comply with this Section 12.2 will be for Openscreen to, at Openscreen’s option, (a) remediate any material non-conformity or (b) refund to you the Fees you actually paid for the time period during which the affected Services do not comply with this Section 12.2.
12.3 Disclaimer. OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPENSCREEN DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, LEGAL OR COLLATERAL, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, ENJOYMENT, TITLE, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
13. Indemnification and Liability
13.1 Indemnification. You agree to indemnify, hold harmless, and defend the Openscreen Indemnified Parties from and against any and all liability, loss, claim, damages, expense, or costs (including legal fees), incurred by or made against the Openscreen Indemnified Parties in connection with any claim arising from or related to: (a) access to or use of the Services by you; (b) any person’s access to or use of the Services through your Login Credentials (regardless of whether such access or use was authorized by you); (c) any breach or violation of these Terms of Service; or (d) any non-compliance with any applicable laws by you. In the event of a claim to which this indemnity applies, you agree: (i) to fully cooperate at your expense as reasonably required by a Openscreen Indemnified Party; (ii) that each Openscreen Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder; and (iii) you shall not settle any matter involving a Openscreen Indemnified Party without the consent of the applicable Openscreen Indemnified Party.
13.2 Exclusion. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OPENSCREEN, ITS AFFILIATES, ANY OPENSCREEN PARTY, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS (COLLECTIVELY, THE “OPENSCREEN INDEMNIFIED PARTIES”) BE LIABLE TO YOU FOR ANY DAMAGES, LOSSES, EXPENSES, OR ANY LIABILITIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, DATA (INCLUDING CLIENT DATA) OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICES, THE PLATFORM, OR ANY PLATFORM CONTENT. ALL RISK AS TO THE RESULTS, PERFORMANCE AND USE OF THE SERVICES, THE PLATFORM, AND ANY PLATFORM CONTENT IS ASSUMED BY YOU.
13.3 Indirect Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST BUSINESS OR PROFITS, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.4 Limitation. IN ANY EVENT, OPENSCREEN’S MAXIMUM AGGREGATE LIABILITY TO THE CLIENT FOR ANY CLAIM UNDER THESE TERMS OF SERVICE SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY THE CLIENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13.5 Limitations Apply. The limitations and exclusions of liability set out in these Terms of Service will apply regardless of the form of action or theory of liability, including for breach of contract, tort, negligence, civil, by statute or otherwise, and whether or not foreseeable or Openscreen is advised of the possibility of such damages. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THESE TERMS OF SERVICE ARE REASONABLE BASED UPON THE COMMERCIAL CIRCUMSTANCES, AND OPENSCREEN WOULD NOT HAVE MADE THE SERVICES AVAILABLE TO YOU NOR ENTERED INTO THESE TERMS OF SERVICE BUT FOR THE LIMITATIONS AND EXCLUSIONS OF LIABILITY CONTAINED IN THESE TERMS OF SERVICE.
14. Use of Marks
14.1 Use of Marks. You grant Openscreen the right to use your name, logo, and a description of your use case to refer to you on the Openscreen website or marketing or promotional materials, subject to your standard trademark usage guidelines that you expressly provide to us.
15. Term, Termination and Survival
15.1 Term. The term of these Terms of Service will begin on the date of your execution of these Terms of Service and will continue until terminated by either Openscreen or you in accordance with these Terms of Service; however, your right to access the Platform and use the Services will be on the date that Openscreen notifies you that your account registration is complete.
15.3 Fees upon Termination. Upon termination, all Fees for Services rendered will become immediately due and payable. In the event of termination by you under Section 15.2(a) or by Openscreen under Section 15.2(c), any Fees paid in advance will not be reimbursed and Services shall remain in effect until the next invoice date; however, Openscreen will reimburse Fees for Services paid in advance and not rendered in the event of termination by Openscreen under Section 15.2(b) hereto or by you under Section 15.2(c).
15.4 Effects of Termination. Upon termination of these Terms of Service, you must immediately stop all use of the Services, Platform, and Platform Content. Termination of these Terms of Service will not affect either party’s accrued rights or liabilities. Openscreen will have no liability for your inability to access any Services, Platform Content or Client Data, or use any Client Application, after termination of these Terms of Service, other than as specifically set out in these Terms of Service.
15.5 Survival. Notwithstanding the termination or expiration of these Terms of Service for any reason, the following Sections, and any right or obligation of either of the parties which, by its nature, should survive termination or expiration of these Terms of Service, will survive such termination or expiration: Section 8 (Intellectual Property), 9 (Data Ownership), 10 (Confidential Information), 15.3, 15.4 and 15.5.
16.1 Notices. All required notices, or notices which may be provided in accordance with these Terms of Service, shall be in writing via e-mail, if to Openscreen, to the e-mail address listed on the contact portion of Openscreen’s website. Every notice delivered in the manner provided for in these Terms of Service shall be deemed to have been received: when delivered or if by e-mail the first business day after the date received unless the sender receives a notice of delivery failure in which case another permitted method of notice will be used.
16.2 Force Majeure. Openscreen will not be liable for any delays in or failures to perform any of its obligations under these Terms of Service (including providing with the Services) due to causes beyond its reasonable control, including acts of God, your acts or omissions, third-party product or service failures, Internet or telecommunications outages, acts of civil or military authorities, fire, strikes, power surges or outages, pandemics, epidemics, flood, earthquakes, riot, or war.
16.3 Assignment. You may not assign these Terms of Service or your rights and obligations under these Terms of Service without Openscreen’s prior written consent. Openscreen may assign these Terms of Service or any of its rights and obligations under these Terms of Service without your consent.
16.4 Governing Law and Jurisdiction. These Terms of Service shall be governed and construed in accordance with the laws of the Province of Ontario, without reference to conflict of laws principles, and the federal laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. The parties irrevocably submit to the exclusive jurisdiction of the courts of Ontario for the resolution of any and all disputes relating to these Terms of Service.
16.6 Severability. If any provision of these Terms of Service is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of these Terms of Service, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of these Terms of Service shall be valid and enforceable to the extent granted by law.
16.7 Waiver. No delay or omission by a party to exercise any right or power it has under these Terms of Service or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.
16.8 Electronic Agreement. A printed version of these Terms of Service and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. This electronic document, and all other electronic documents referred to or incorporated herein, will be: (a) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; and (b) legally enforceable as a signed writing as against the parties subject to the electronic documents.
16.9 English. It is the express wish of the parties hereto that these Terms of Service be drawn up in English. Les parties ont expressément exigé que les présentes conditions de service soient rédigées en langue anglaise.
16.10 Interpretation. In these Terms of Service: (a) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (b) all usage of the words “including” or “include” in these Terms of Service shall mean “including, without limitation”; (c) the division into separate Articles, Sections and Subsections and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of these Terms of Service; (d) words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings; (e) if action is required to be taken on a day which is not a business day then such action shall be made or taken on the next business day; and (f) the parties agree that these Terms of Service shall not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of these Terms of Service.
This Data Protection Addendum (“DPA”) is incorporated into and forms part of the Terms of Service (the “Terms of Service”) between Openscreen and Client. All capitalized terms used but not otherwise defined in this DPA shall have the meaning given to those terms in the Terms of Service.
“Client Data” means electronic data or information entered, submitted or communicated by the Client or any End-User though the Client Application (as such terms are defined in the Terms of Service), which may include Personal Data.
“Personal Data” means information about an identifiable individual and includes any information that is “personal information” or “personal health information” within the meaning of any applicable Privacy Legislation.
“Privacy Legislation” means all applicable laws governing the collection, use, storage, disclosure and retention of Personal Data relating to an identifiable individual including the Personal Information Protection and Electronic Documents Act (Canada) and substantially similar provincial legislation, as amended or supplemented from time to time.
B. Objectives and Guiding Principles
The objective of this DPA is to establish the rules governing the collection, use, storage, protection and disclosure of Personal Data included in Client Data by Openscreen on behalf of Client.
The guiding principles of this DPA are those found in applicable Privacy Legislation including the collection, use and disclosure of the least amount of Personal Data necessary to achieve the purposes set out in the Terms of Service.
C. Appointment and Duties of Openscreen
D. Protection of Personal Data
Openscreen agrees that in respect of the Personal Data included in the Client Data entrusted to it by Client, it shall:
F. Retention and Destruction of Personal Data
1. If Openscreen receives a request from a patient of the Client for access to their Personal Data included in the Client Data, or to make corrections or amendments to their Personal Data included in the Client Data, or if Openscreen receives an express wish from a patient of Client relating to disclosure of their Personal Data included in the Client Data, Openscreen shall inform the client that they must make such request or express wish to the Client and shall provide the patient with contact information for the Client that the individual may use to make such request or express wish. Openscreen and Client shall work together to respond to such request or express wish in accordance with the requirements of Privacy Legislation.
G. Retention and Destruction of Personal Data
1. Openscreen shall retain Personal Data included in the Client Data in accordance with the terms of the Terms of Service.
1. Openscreen shall comply with its obligations under Privacy Legislation in providing the Services.
2. To the extent of any inconsistency between this DPA and the Terms of Service in respect of the treatment of Personal Data included in the Client Data, this DPA shall prevail.
3. Client may terminate the Terms of Service upon written notice if Openscreen materially fails to comply with the provisions of this DPA.
4. This DPA shall terminate upon termination of the Terms of Service. Notwithstanding any termination of this DPA, the provisions of this DPA that govern Openscreen’s collection, use, disclosure, protection and other processing of Personal Data included in the Client Data shall survive until such Personal Data is destroyed, de-identified or returned to Client.