PLEASE REVIEW THE BELOW TERMS OF USE AGREEMENT (THIS “AGREEMENT”) CAREFULLY AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU”) AND AWARE360TM Ltd. (“AWARE 360”, “WE”, “US”). BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING AWARE 360’S PROPRIETARY APP KNOWN AS GOAWARE (THE “APP”), A SOFTWARE APPLICATION FOR MOBILE CELLULAR TELEPHONE DEVICES RUNNING A LEGAL VERSION OF THE “iOS”, “ANDROID” OR SUCH OTHER OPERATING SYSTEM AS AWARE360 MAY DESIGNATE FROM TIME TO TIME (“DEVICES”), YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND AWARE360 PRIVACY POLICY LOCATED AT https://help.aware360.net/GAprivacypolicy.html AS MAY BE AMENDED FROM TIME TO TIME (“PRIVACY POLICY”). IF YOU DO NOT AGREE WITH ANY SUCH TERM OR CONDITION, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR OTHERWISE USE THE APP.
1 USING THE SERVICES
1.1 The App. Subject to the conditions and limitations outlined in this Agreement, the App allows You to subscribe to a service which provides a client of Aware360 (for example, your employer or the organization that you are visiting) (the “Client’) with a record of proximity information (the “Trace Data”). For greater clarity, the Client is not and is not related to Aware 360. The Trace Data may be used by the Client for safety,business continuity or other purposes in accordance with the Client’s internal policies and procedures. You will require cellular coverage or WiFi and Bluetooth connectivity to access and use the App to send Trace Data.
1.2 Account. In order to access and use the App, you will need create an account using your mobile telephone number. This mobile telephone number serves as your unique identifier (an “Account”) for the service. Your Account will be administered by the Client. You confirm that you authorized and consented for Aware 360 to grant the Client and/or its administrator the right to access, collect, store, share, disclose and otherwise use Your personal information for the purposes described below. The information collected by the App may include the following: Your telephone number, device information, communication networks and connections, Internet Protocol (IP) address and proximity information.
Your information may be used by the Client specified administrator (the “administrator”):
to verify Your eligibility to create and to maintain Your Account;
to ensure that Your Account, including Your mobile number, is unique;
to enable Aware360 and its partners to provide You with de-identified Trace Data;
to enable Aware360 and its partners to provide certain security and privacy safeguards,;
to deal with security, debugging and technical support issues; and
as otherwise required by the contract with the Client or required or authorized by applicable law.
You agree at all times to: (i) keep the App active and running as required by the Client and upon request to send the de-identified Trace Data to the administrator; and (ii) maintain and update Your mobile phone number to keep it accurate, current and complete. You acknowledge that, if any information provided by You is untrue, inaccurate, not current or incomplete, we may suspend or terminate Your Account and Your ability to use the App and, in our sole discretion, to report You to the Client or otherwise disclose Your personal information as required or authorized by law.
1.3 Data Collection and Usage. The App collects de-identified proximity data with other users of the App. Other than the mobile number and device name of the applicable Device, all other information collected by the App for contact notification services or usage metrics with other persons who are using the App is de-identified . No such data is stored on the App beyond a 21-day period consistent with contact tracing best practices. For purposes of collecting usage metrics, the App will send (a) aggregate proximity data daily to the server which includes your mobile number and device name and the number of close contact events in the last 24 hour period and (b) aggregate data regarding the time spent in close contact with other individuals and (c) data indicating the length of time during which the App has been used. This information will be stored on the server and deleted when updated daily. Authorized administrators of the system will be able to view the data as anonymous aggregated dashboard summaries of the average number of close contacts, the average time spent in contact with other individuals, the average usage time, and as individual summaries of the number of reported close contacts. Any collection of personal information by the Client is subject to the Client’s policy and procedures and is not the responsibility of Aware360.
2 LICENSE GRANT AND USE RESTRICTIONS
2.1 License Grant. The App is licensed, not sold. Subject to the restrictions set forth in Section 2.2, Aware360 grants You a personal, revocable, non-exclusive, non-transferable, limited right to install and use the App on a Device(s) owned or controlled by You or the Client, and to access and use the App on such Device solely for Your personal use, strictly in accordance with the terms and conditions of this Agreement, the Privacy Policy, and all applicable local, national, and international laws and regulations. You represent, warrant and agree that You are using the App solely for Your own personal use and not for redistribution or transfer of any kind.
2.2 Restrictions on Use. You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the App; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the App; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the App; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Aware 360 or its affiliates, partners, or suppliers; (e) use the App in a manner that derives revenue directly from the App, or use the App for any other purpose for which it is not designed or intended; (f) distribute the App to other Devices not owned by you; (g) make the App available over a network or other environment permitting access or use by multiple Devices or users at the same time; (h) use the App for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Aware 360; (i) use any proprietary information, interfaces or other intellectual property of Aware 360, or its affiliates, partners, or suppliers in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the App; (j) circumvent, disable or tamper with any security-related components or other protective measures applicable to the App or Your Device; or (k) reproduce, archive, retransmit, distribute, disseminate, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the App.
3 FEES
3.1 Fees. Subject to the terms and conditions of this Agreement, the App is being licensed to You free of charge.
3.2 Ancillary fees. Your cellular phone provider’s data and messaging rates may apply when You use this App, including domestic and international roaming charges, if applicable, and You agree that You are solely responsible for any cellular usage charges You incur by using the App.
4 INTELLECTUAL PROPERTY RIGHTS
4.1 Rights to App. You acknowledge and agree that the App, any copies thereof (including without limitation any copy that You download, install, or use on Your Device), and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Aware 360. Furthermore, You acknowledge and agree that the source and object code of the App and the format, directories, queries, algorithms, structure and organization of the App are the intellectual property and proprietary and confidential information of Aware 360, its affiliates, licensors, or suppliers. Title to the App shall remain with Aware 360. Aware 360 and its partners, licensors, and suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the App (or any copy thereof) at any time without notice and will have no liability to You or any third party for doing so. Except as expressly stated in this Agreement, You are not granted any intellectual property rights in or to the App by implication, estoppel or other legal theory, and all rights in and to the App not expressly granted in this Agreement are hereby reserved and retained by Aware 360.
4.2 Trace Data. By downloading, installing or otherwise using the App and using the services You consent to Aware 360 granting the Client and/or its administrator access to and right to use Your personal information for the purposes described above. The administrator may request access to Your de-identified Trace Data, and/or use your Trace Data as provided under the Client’s policies or procedures. UNDER NO CIRCUMSTANCES SHALL AWARE 360 OR ITS AFFILIATES, PARTNERS, RESELLERS OR SUPPLIERS BE RESPONSIBLE FOR ANY ACTS OR OMISSIONS WITH RESPECT TO USE OR DISCLOSURE OF THE TRACE DATA. ACCORDINGLY, YOU RELEASE AND FOREVER DISCHARGE AND INDEMNIFY AWARE 360 AND ITS AFFILIATES, PARTNERS, RESELLERS AND SUPPLIERS FROM AND IN RESPECT OF ANY AND ALL ACTIONS, CAUSES OF ACTION, DEBTS, DAMAGES, COSTS, CLAIMS AND DEMANDS (INCLUDING FEES FOR ATTORNEYS AND OTHER ADVISORS ON A FULL INDEMNITY BASIS) WHATSOEVER, WHETHER AT LAW, IN EQUITY OR UNDER STATUTE WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, WHICH YOU, OR ANYONE CLAIMING THROUGH YOU, HAVE HAD, NOW HAVE, CAN, SHALL OR MAY HEREAFTER HAVE ARISING OUT OF, CONNECTED WITH, OR IN RELATION TO ANY ACTS OR OMISSIONS WITH RESPECT TO USE OR DISCLOSURE OF THE TRACE DATA.
5 TERM AND TERMINATION
5.1 This Agreement shall be effective from the time You download, install, register or otherwise use the App until terminated in accordance with this Agreement. Aware 360 may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement, including the services, upon two (2) days’ notice. You may terminate this Agreement, including the services, upon one (1) days’ notice. Finally, Aware 360 may immediately or upon notice terminate this Agreement, including the services, if You fail to comply with any terms and conditions of this Agreement.
5.2 Notwithstanding anything in this Agreement, Aware 360 may suspend or cancel the availability or provision of any or all App or services immediately, or on notice to You in the sole discretion of Aware 360, if any of the following events (each a “Suspension Event”) occurs: (a) Aware 360’s right or license to lawfully use any infrastructure, technologies, services or data provided by or obtained from any third party required for provision of any App or services is disputed, suspended or terminated for any reason; (b) Aware 360 reasonably believes that the integrity, functionality, operation, performance, results, reliability or security of any App or services or any related data interface or data might have been damaged, disrupted, compromised or degraded, or to prevent a risk of damage, disruption, compromise or degradation to the integrity, functionality, operation, performance, results, reliability or security of the App or services, or any related data interface or data; (c) Aware 360 reasonably believes that the suspension of the availability or provision of any App or services is required by applicable law or is reasonably necessary to prevent or mitigate an imminent risk of harm, loss, damage or liability; or (d) customer fails to pay the fees payable for use of the App in a timely fashion. Aware 360’s suspension of the availability or provision of the App or services due to the occurrence of a Suspension Event pursuant to this section will not be a breach of this Agreement by Aware 360 or give rise to any liability by Aware 360 to You or any other person.
5.3 Upon the termination of this Agreement, You shall cease all use of the App and uninstall the App, this will also delete all data on the App. Aware 360 may, without notice to You, disable the App.
5.4 Aware 360 will not be liable to You or any third party for compensation, indemnity, or damages of any sort as a result of suspending or terminating this Agreement in accordance with its terms. Any suspension or termination of this Agreement will be without prejudice to any other right or remedy Aware 360 may have, now or in the future.
6 DISCLAIMER OF WARRANTIES.
6.1 YOU ACKNOWLEDGE AND AGREE THAT THE APP, INCLUDING ALL CONTENT CONTAINED THEREIN, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APP AND THE SERVICES IS AT YOUR SOLE RISK AND DISCRETION. AWARE 360, ITS AFFILIATES, LICENSORS, RESELLERS, SUPPLIERS AND ADMINISTRATION PARTNERS (Client specified administrators) HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS AND GUARANTIES REGARDING THE APP AND THE SERVICES, WHETHER IN FACT OR IN LAW, ORAL, EXPRESS, IMPLIED OR STATUTORY, AND WHETHER ARISING BY LAW, EQUITY, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE OF THE PARTIES, OR THE NATURE OR CONTEXT OF THIS AGREEMENT, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. FURTHERMORE, AWARE 360, ITS AFFILIATES, LICENSORS, RESELLERS, SUPPLIERS AND ADMINISTRATION PARTNERS (Client specified administrator) MAKE NO WARRANTY THAT: (I) THE APP OR THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APP OR THE SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR-FREE; OR (III) ANY ERRORS IN THE APP OR SERVICES WILL BE CORRECTED. YOU ACKNOWLEDGE THAT NEITHER AWARE 360, NOR ITS AFFILIATES, LICENSORS, RESELLERS AND SUPPLIERS HAVE ANY OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APP.
6.2 THE APP IS NOT DESIGNED OR INTENDED TO BE USED IN ACTIVITIES THAT REQUIRE FAULT-TOLERANT PERFORMANCE. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOU MUST DETERMINE WHETHER THE APP SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. AWARE 360 WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA, INCLUDING DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
6.3 You understand and agree that Aware 360 will not be liable for any such injury, death, damage or loss, data security breach, and You release Aware 360, its affiliates, licensors and suppliers and waive all claims with respect thereto.
7 LIMITATION OF LIABILITY
7.1 UNDER NO CIRCUMSTANCES SHALL AWARE 360 BE LIABLE FOR ANY EVENT(S), CONDITION(S) OR CIRCUMSTANCE(S) THAT: (I) PREVENTS, DELAYS OR RESTRICTS, IN WHOLE OR IN SUBSTANTIAL PART, THE PERFORMANCE BY AWARE 360 OF SOME OR ALL OF ITS OBLIGATIONS HEREUNDER; AND (II) ARE BEYOND THE REASONABLE CONTROL OF AWARE 360, INCLUDING, FOR EXAMPLE, ANY ACTS OR OMISSIONS OF A TELECOMMUNICATIONS CARRIER WHOSE FACILITIES ARE USED TO ESTABLISH THE NECESSARY CONNECTIONS FOR AWARE 360 TO PROVIDE THE SERVICES, OR ANY SUPPLIERS OF HOSTING, COMMUNICATION, SOFTWARE PLATFORMS OR OTHER COMPONENTS OF THE SERVICES.
7.2 EXCEPT TO THE EXTENT PROHIBITED BY LAW, AND IN ADDITION TO THE RIGHTS OF AWARE 360 UNDER SECTION 4, UNDER NO CIRCUMSTANCES SHALL THE AWARE 360 PARTIES, BE LIABLE FOR ACCIDENTS, PROPERTY DAMAGE, PERSONAL INJURY, DEATH, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DISTRIBUTION OF, THE PERFORMANCE OR NON-PERFORMANCE, OR YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE AWARE 360 APP OR THE SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AWARE 360’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT YOU PAID TO AWARE 360 FOR THE SERVICES, IF ANY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.3 FURTHER INDEMNIFICATION. You shall indemnify, defend and hold harmless the AWARE 360 Parties from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including fees for attorneys and other professional advisors on a full indemnity basis) arising out of or in connection with the following: (i) Your breach of this Agreement; (ii) Your violation of law; (iii) Your negligent acts or omissions or willful misconduct; or (iv) Your violation of the rights of a third party. You will promptly notify Aware 360 in writing of any third-party claim arising out of or in connection with Your access to or use of the App or the Services.
8 MISCELLANEOUS
8.1 Governing Law; Venue; This Agreement shall be deemed to have been made in the Province Alberta and shall accordingly be governed by and construed in accordance with the laws in the Province of Alberta, excluding its conflicts of law principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The courts located in the Province of Alberta shall have the non-exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, and You hereby consent to the non-exclusive jurisdiction of such courts.
8.2 Waiver of Jury Trial. YOU AND AWARE 360 HEREBY WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
8.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable with respect to a party, the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
8.4 Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.
8.5 Modification or Amendment. Aware 360 may modify or amend the terms of this Agreement at any time, with or without notice to You, by posting a copy of the modified or amended Agreement available through the Aware 360 App. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Aware 360 App following the date in which the modified or amended Agreement is made available through the Aware 360 App.
8.6 Survival. The following sections will survive termination of this Agreement: Sections 2, 4, 5, 6, and 7.
8.7 Third Party Beneficiaries. Except as explicitly provided in this Agreement, nothing contained in this Agreement is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.
8.8 No Transfer by You. You may not rent, lease, lend, sublicense, assign or transfer the App, this Agreement or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect. These obligations survive termination of this Agreement. Aware 360 may assign this Agreement without restriction.
8.9 Acknowledgement. You acknowledge that You have been given the opportunity to obtain independent legal advice and have either obtained such advice or waived the need for such advice. You hereby voluntarily accept the terms of this Agreement.
8.10 Entire Agreement. This Agreement including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the App licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.
8.11 Contact Us. Our contact information is as follows:
Aware 360 Ltd
#250, 1201 Glenmore Trail SW
Calgary, AB T2V 4Y8
1-877-352-8522