These TERMS AND CONDITIONS (the “Terms”) represent a legal agreement that explains your rights and obligations around your Use of the Fawkes Biodata Intelligence Inc. website at www.FawkesBiodata.com (the "Site") through which Vital offers its Services, all Content, and any new features or tools that may be added to them.PLEASE READ THESE TERMS CAREFULLY.Capitalized terms used in this Overview are defined in the Detailed Terms and Conditions BY BROWSING THE SITE OR BY CLICKING “I ACCEPT” WHEN YOU OPEN AN ACCOUNT TO USE AND TO SUBSCRIBE TO OUR SERVICES, YOU:1. REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD, ARE OF SOUND MIND, AND ARE OTHERWISE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT;2. AGREE THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS AND THAT YOU WILL BE LEGALLY BOUND BY THESE TERMS, AND ANY OTHER AGREEMENTS THAT THESE TERMS REFERENCE, SUCH AS OUR PRIVACY NOTICE;3. ACKNOWLEDGE THAT DISPUTES RELATED TO THESE TERMS WILL BE SETTLED BY BINDING ARBITRATION IN ONTARIO, CANADA IF BROUGHT WITHIN A SET TIME; and4. ACKNOWLEDGE THAT YOU WAIVE YOUR RIGHTS TO A JURY TRIAL AND TO CLASS ACTIONS LAWSUITS FOR ANY MATTER RELATED TO THESE TERMS.IF YOU DO NOT ACCEPT ALL THESE TERMS AS PROVIDED DO NOT ACCESS OR USE THIS SITE AND DO NOT OPEN AN ACCOUNT TO SUBSCRIBE TO OUR SERVICES.We may make some changes to or update these Terms from time to time without notice. It is your responsibility to check the Change Log on the last page of the Terms from time to time. If we make significant changes to these Terms, we will notify you of those changes and the date on which they will come into effect by posting an alert on the Site and the WebbApp and we may also send you the notice by email.WHEN YOU USE OR ACCESS THE SITE, YOU ARE BOUND TO THE TERMS IN EFFECT ON THE DATE OF YOUR VISIT.The currency date of these Terms is posted at the top of this page and the first page of the Detailed Terms and ConditionsIf you have questions about the Site, or our Services, please contact us at support@fawkesbiodata.com.DETAILED TERMS AND CONDITIONSTable of Contents1. 1. INTRODUCTION2. 2. ADDITIONAL TERMS3. 3. OUR SERVICES1. 4. SCOPE2. 5. CHANGES TO SITE AND SERVICES3. 6. ACCURACY OF CONTENT1. 7. PRIVACY NOTICE2. 8. ACCESSIBILITY3. 9. LOCATION1. 10. CASL AND CONSENT TO RECEIVE EMAIL2. 11. DEFINITIONS3. 12. ACCESS AND RESTRICTIONS ON USE1. 13. SUBMITTING INFORMATION TO US2. 14. INTELLECTUAL PROPERTY RIGHTS AND LICENSES3. 15. ACCOUNTS1. 16. HYPERLINKS AND THIRD-PARTY SITE2. 17. THIRD-PARTY PAYMENT PROCESSORS3. 18. FOR USERS AND CUSTOMERS LOCATED IN THE EUROPEAN ECONOMIC AREA (EEA)1. 19. DISCLAIMERS2. 20. LIMITATION OF LIABILITY3. 21. INDEMNIFICATION1. 22. DISPUTE RESOLUTION2. 23. WAIVER OF JURY TRIAL AND CLASS ACTIONS SUITES3. 24. CHANGES TO THESE TERMS1. 25. GENERAL
1. INTRODUCTION
These TERMS AND CONDITIONS (the “Terms”) represent a legal agreement that explains your rights and obligations around your Use of the Fawkes Biodata Intelligence Inc. website at www.FawkesBiodata.com (the "Site"), through which Vital offers its Services, all Content, and any new features or tools that may be added to them.
PLEASE READ THESE TERMS CAREFULLY.
BY BROWSING THE SITE OR BY CLICKING “I ACCEPT” WHEN YOU OPEN AN ACCOUNT TO SUBSCRIBE TO OUR SERVICES YOU:1. REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD, ARE OF SOUND MIND, AND ARE OTHERWISE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT; and2. AGREE THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS AND THAT YOU WILL BE LEGALLY BOUND BY THESE TERMS AND ANY OTHER AGREEMENTS THAT THESE TERMS REFERENCE, SUCH AS OUR PRIVACY NOTICE; IF YOU DO NOT ACCEPT ALL THESE TERMS AS PROVIDED DO NOT ACCESS OR USE THIS SITE AND DO NOT OPEN AN ACCOUNT TO SUBSCRIBE TO OUR SERVICES.
2. ADDITIONAL TERMS
These Terms may be supplemented by additional terms related to specific Content or Service options we may make available on the Site ("Additional Terms"). REFERENCE TO THESE TERMS SHALL BE INTERPRETED TO INCLUDE THE TERMS AND ANY ADDITIONAL TERMS. We will notify you of any Additional Terms and prompt you to review and accept them before you engage with the specific Content or Service option to which they may apply. If there are inconsistencies between these Terms and the Additional Terms, then the Additional Terms will control.
3. OUR SERVICES
We empower individuals to engage in their health journey and enhance their medical emergency readiness by securely acquiring their health records from their current and former healthcare providers, make their records available and allow them to grant access to their records, at their discretion, to their caregivers and the healthcare professionals involved in their care (the “Services”).
4. DEFINITIONS
“Account” means one of a Heath Account, a Dependent Account, or a Caregiver Account.
“Account Record” means the Personal Information, Personal Health Information, (each as defined in the Privacy Notice) collected in the course of Onboarding, the health records collected in the process of providing the Services, and all other information in an Account.“Affiliates” means the legal entities that (directly or indirectly) control, are controlled by, or are under common control with the named party. For purposes of this definition, “control” means (a) having, direct or indirect, or the power to direct the management or policies of an entity or (b) having beneficial ownership of at least 50% of the voting securities or other ownership interest or other comparable equity interests of an entity.
“Caregiver” means an individual who assists a Dependent but who does not him/herself subscribe to the Services and may include a Substitute decision Maker.
“Caregivee” means an individual who is not a Legal Dependent who authorizes a Caregiver to assist him/her through a Caregiver Account.
“Caregiver Account” means an account managed by a Caregiver on behalf of a Dependent where the Caregiver Onboards and has full custody of the Dependent’s Account Record and can grant temporary access to the Dependent’s health records to a third party, such as a healthcare provider.
"Client" means an individual who subscribes to receive Services through a Heath Account or a Dependent Account.
"Content" means text, data, statistics, images, documents, forms, guidelines, video, audio or other multimedia content, software, or other information or material we provided on the Site and includes your Account Record.
“Dependent Account” means an account for a Dependent whose health records are acquired, but whose Account Record is managed by a Substitute Decision Maker or a Caregiver under a Caregiver Account or a Health Account.
“Feedback” means all comments and suggestions for improvement that you may provide to us by any means.
“Health Account” means an account managed by an individual whose health records are acquired, who Onboards him/herself, has full access and custody of his/her health records, and can grant temporary access to his/her health records to a third party, such as a healthcare provider.
“Intellectual Property” means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including ideas, formulae, algorithms, concepts, techniques, processes, procedures, protocols, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source materials), tools, products knowledge, know-how, trade secrets, unpublished patent applications, and other materials or things, trademarks, trade names, and domain names;“Intellectual Property Rights” means any and all legal protection now recognized by law or that in the future may be recognized by law anywhere in the world – whether by statute, at common law, or otherwise – relating to the Intellectual Property including patent law, copyright law and moral rights, trademark law, design patent or industrial design law, semiconductor chip or mask work law, trade secret law, confidential information, or any other statutory provision or common law principle applicable to these Terms that may provide a right in either the Intellectual Property or the expression or use of the Intellectual Property and all other applications, registrations, or grants of rights analogous to them, and including the right to apply for the any of them;
“Legal Dependent” means an individual who is less than 18 years old or an adult who authorized another individual to act on his or her behalf under a Power of Attorney for Personal Care.
“Member Content” means any text, data, images, documents, video, audio or other multimedia content that you submit to or upload onto the Site other than Personal Information and Personal Heath Information.
“Onboard” means providing the consents required to open and Account and to complete an onboarding questionnaire.
“Person” means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, incorporated association, joint venture or similar entity or organization, including a government or department or agency of a government.
“Purpose” to provide or receive (as applicable) the Services.
“Substitute Decision Maker” means a parent, guardian, or a holder of a Power of Attorney for Personal Care who acts on behalf of a Legal Dependent.
“Use” or “Using” means to access, read, review, print, or download.
“User” means any Person who Uses the Site, and includes Clients, Caregivers, and any Person who has been granted temporary access health records under an Account.
"we", "us" or "our" means Fawkes Biodata LLC. (“Fawkes Biodata”) and any of its Affiliates.
"you" or "your" means a Person who Uses the Site, or the Content as a visitor, a prospective or current Client, a Caregiver, and any Person who has been granted temporary access to a Client’s health records under an Account.
5. SCOPE
THE SITE, SERVICES, AND CONTENT ARE PROVIDED FOR YOUR GENERAL INFORMATION ONLY, DO NOT CONSTITUTE MEDICAL, SCIENTIFIC, LEGAL, OR ANY OTHER TYPE OF ADVICE, AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, ASSESSMENT AND EVALUATION. YOU SHOULD NOT RELY ON ANY OF THEM TO TAKE OR NOT TO TAKE ANY ACTION OR TO MAKE OR NOT MAKE ANY DECISIONS ABOUT YOUR MEDICAL CONDITIONS OR YOUR HEALTH WITHOUT CONSULTING A QUALIFIED PROFESSIONAL IF YOU RELY ON ANY CONTENT ON THE SITE YOU DO SO AT YOUR OWN RISK, BUT NOTHING IN THESE TERMS IS INTENDED TO LIMIT YOUR STATUTORY RIGHTS.
6. CHANGES TO SITE AND SERVICES
We reserve the right to, at any time and for any reason to: (1) modify, suspend, or terminate the Site, and the Services and to reprice our Services, all without notice to you and without liability to you or to any third-party; (2) refuse to offer Services to any Person, or in any jurisdiction; and (3) to report verbal or written abuse of any kind (including threats of abuse or retribution) you make toward another User our Clients, directors, officers, employees, contractors, or our third-party service providers to the authorities.
7. ACCURACY OF CONTENT
We, and any other Persons involved in the management of the Site may make changes to the Content at any time and without notice. While we make commercially reasonable efforts to ensure that the Content is accurate, current, and free of typographical and other errors, occasionally some Content on our Site may be inaccurate, incomplete, or may contain typographical or other errors (together “Errors”). We reserve the right, but we do not have an obligation to correct Errors or to change the Content, except as required by law. You should not take any updates to these Terms to indicate that such Errors have been corrected.
8. PRIVACY NOTICE
We are committed to protect the privacy of your Account Record. You acknowledge and agree that your Use of the Site, and our Services and our collection, Use, and disclosure of your Account Record is governed by our Privacy Notice. Our Privacy Notice is hereby included by reference in these Terms. If there are inconsistencies between the Terms and the Privacy Notice, then these Terms will control.
9. ACCESSIBILITY
We seek to make the Site accessible to all. If you have any problems Using the Site, or the Content please contact us at support@fawkesbiodata.com.
10. LOCATION
We operate the Site and offer Services from Ontario, Canada. OUR SERVICES ARE ONLY MADE AVAILABLE WHERE THEY CAN BE LEGALLY OFFERED FOR SALE AND WE DO NOT REPRESENT OR WARRANT THAT ANY CONTENT IS LEGAL FOR USE IN ANY OTHER LOCATIONS.
IF YOU USE THE SITE OR SERVICES FROM ANOTHER LOCATION, YOU MUST COMPLY WITH ALL PROVINCIAL, STATE, OR FEDERAL LAWS APPLICABLE IN THE LOCATION FROM WHICH YOU ACCESS THEM.
11. CASL AND CONSENT TO RECEIVE EMAIL
We comply with Canada’s Anti-Spam Legislation (“CASL”) and the General Data Protection Regulation (“GDPR”) applicable to Users located in the European Economic Area (EEA). We will ask for your explicit consent before we send you any marketing or promotional emails, newsletters, invitations to participate in surveys, or other reasons that are not central to the Purpose. You may provide your consent for such email communications in the Consent Center available in your Account dashboard, and you may withdraw your consent through the Consent Center, by using the “Unsubscribe” link available in any of our emails to you, or by contacting us at support@fawkesbiodata.com
You acknowledge and agree that by opening an Account we may contact you by email without your explicit consent for any purpose directly related to our legal rights, our obligations, and our ability to provide our Services to you such as: (i) providing you with information you requested from us or information we must send to you; (ii) operational communications about your Account or your subscription to our Services; (iii) changes to our Site, or changes to our Privacy Notice, our Terms of Service or our Cookie Policy; (iv) any questions, reminders, notifications related to your Account or your use of your Account or addressing customer service issues and troubleshooting problems with your Account; (v) to notify and alert you about data breaches, and other fraud or security-related activities; and (vi) legal disclosures, communications about and arising from any manner of legal action; and any other reason notifications and alerts may be required by law.
12. ACCESS AND RESTRICTIONS ON USE
a. Permitted Use You may access and Use the Site and the Content only for the Purpose, according with these Terms and any Additional Terms, and according to all applicable laws and regulations in the location from which you are Using them.
b. Prohibited Uses You acknowledge and agree that, if you engage in any of the following activities when Using the Site the Content, or the Services, we have the right to terminate your Account and your subscription to the Services. Therefore, you agree that you:i. Will not adjust, circumvent, or remove or try to adjust, circumvent, or remove any Intellectual Property Rights notices on the Site or the Content in whatever medium and as it initially appeared on the Site or Content, such as copyright notices and any digital rights or other security technology embedded in any Content;
ii. Will not Use the Site, the Content, or the Services or any Fawkes Biodata API for any purpose and in any manner that is, explicitly or implicitly, prohibited by these Terms, that is inconsistent with our Privacy Notice; will not post, display, distribute, upload, or expose Content that contravenes our Privacy Notice or violates the privacy, Intellectual Property Rights, or contractual rights of any Person, or that facilitate or promote activities that contravene, or is otherwise prohibited by applicable law in the location from which you Use them; will not defame or disparage anyone associated with us, or make any obscene, derogatory or offensive comments about us, the Site or the Content or any other User, so as to bring us or any third party into disrepute or to cause us to be liable to any third party; will not Use the Site or the Content to promote or condone hate or violence on any grounds;
iii. Will not reverse engineer, decompile, copy, modify, distribute, transmit, license, sublicense, display, revise, perform, transfer, sell, or otherwise provide to any third party or otherwise publish, deep-link, create derivative works from or exploit the Site, Web App, Services, or Content except as these Terms allow, or as permitted under laws of the jurisdiction in which you Use the Site, Services or Content; will not use any methods or tools to access, scrape, crawl or spider any pages of the Site, the Services or the Content or systematically collect, store, transmit, distribute, or retrieve data or other content from our Site, Content, or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, in any way; will not transfer the Content or any part of it without our express written consent, which is not granted in these Terms or any Additional Terms.
iv. Will not damage, abuse, disable overburden, impair, or interfere with the security or the functioning of the Site, the Services or the Content such as by distributing viruses or malware of any kind or other similar harmful software code; or transmitting unsolicited commercial electronic messages, collecting;
v. will not sell, reproduce, modify or attempt to modify the Site, or Content in any way, or reproduce, display, perform, distribute, or Use the Site, or any Content in public or for any public or commercial activities; and will not copy any HTML or other programs that are available on the Site.
vi. Will not represent or suggest that we endorse any other business, product or service unless we have separately agreed to do so with you in writing; and will not impersonate another Person or User, or otherwise misrepresent yourself or your affiliation with any Person; forge any TCP/IP packet header or any part of the header information in any email, or in any way Use the Site, Services, Feedback, or Member Content to send altered, deceptive, false source-identifying information; or attempt to obtain unauthorized access to the Site or portions of either of them that are restricted from general access; open and Account using an e-mail address that you do not own; or submit any incomplete, false or inaccurate information, including without limitation incomplete, false or inaccurate biographical information during Onboarding;
vii. Will not Use, display, mirror, or frame the Site, or the Content, or any part of them, Use our name or any of our trademarks, logs or other proprietary information, or the layout and design of any page or forms of the Site without our express written consent;
viii. Will not access, tamper with, or Use non-public areas of the Site; attempt to probe, scan, or test the vulnerability of any of our systems or networks, or to breach or attempt to breach any security or authentication measures; avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure we use to protect the Site, Services, or the Content.
ix. are solely responsible for all costs and expenses you may incur in relation to your engagement in any of the above activities.
13. SUBMITTING INFORMATION TO US
a. General
You should not share through email, post on the public area of the Site, or in any Feedback, any material that contains Personally Information and Personal Health Information (both as defined in the Privacy Notice).
b. Member Content
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit (“Make Available”) Member Content on the Site and you acknowledge and agree that you are solely responsible for all Member Content that you Make Available on the Site.
Accordingly, you represent and warrant that (i) you either are the sole and exclusive owner of the Member Content or that you have all the licenses, consents, and releases necessary to Make it Available; and (ii) that the Member Content, your use of it, or your Making it Available, does not infringe, misappropriate or violate a third party's Intellectual Property Rights or any rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Member Content is not confidential information and we will not be liable for any Use and/or disclosure of such Member Content. If you post or upload any Member Content to the Site, you acknowledge and agree that, subject to our Privacy Notice, we may Use such information as we see fit, including to reproduce, transmit, publish, and post it, on any medium anywhere in the world for free.You hereby grant to Fawkes Biodata a world-wide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to Use, copy, adapt, modify, distribute, license, publicly display, publicly perform, transmit, stream, broadcast, and otherwise exploit any Member Content Made Available on the Site and you hereby waive your Moral Rights in the Member Content.
c. Feedback
We welcome and encourage your Feedback. You acknowledge and agree that all Feedback you give us is the sole and exclusive property of Fawkes Biodata and you hereby irrevocably assign to Fawkes Biodata all your right, title, and interest in and to the Feedback and all Intellectual Property Rights in it and hereby waive any moral rights you may have in the Feedback. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain our intellectual property rights and other legal protections for the Feedback.
14. INTELLECTUAL PROPERTY RIGHTS AND LICENSES
a. Ownership
Fawkes Biodata LLC, (or its licensors), own the right, title, and interest in and to Site, the Content, the Services and the Intellectual Property Rights in each of them.All trademarks, service marks, logos, trade names and any other proprietary designations of Fawkes Biodata used in/on/with any Content on the Site are common law or registered trademarks of Fawkes Biodata. Any other trademarks, service marks, logos, trade names and any other proprietary designations used in/on/with any Content on the Site are owned, or operated under license, by the respective third parties. Nothing in these Terms grants you any rights, title, or interest in the Site, the App, the Content, or the Services, other than as explicitly provided below.
b. Licenses
Subject to these Terms, Fawkes Biodata hereby grant you a non-exclusive, non-transferable, revocable, limited license to Use the Site, the Services, and the Content solely for the Purpose and your personal, non-commercial use. This license does not a transfer Fawkes Biodata’s or its licensors’ right, title, and interest in the Site, the Servicers, or Content from Fawkes Biodata or its licensors to you.
15. ACCOUNTS
Eligibility
To open an Account, you must be are at least eighteen (18) years old, of sound mind, otherwise legally able to be bound by these Terms, and have read these Terms and the Privacy Policy
Registration
You can register for a Health Account, a Dependent Account, or a Caregiver Account. To subscribe to the Services, you must register for a Health Account or a Dependent Account.You represent and warrant that you will provide accurate, current, and complete information and to update such information from time to time to keep it accurate, current and complete. We reserve the right to suspend or terminate your Account and your subscription to the Services (as applicable) if any information you provided during registration and Onboarding or any time thereafter proves to be inaccurate, fraudulent, outdated, or incomplete.
Identity Verification
For our protection, we reserve the right but do not have an obligation to verify your identity through background checks and other identity verification services at our sole discretion.
Account Login credentials
Your Account login credentials will be created at registration. It is vital that you keep your login credential safe and not share them with anyone. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE RESPONSIBLE FOR SAFEGUARDING YOUR LOGIN CREDENTIALS AND ARE SOLELY RESPONSIBLE FOR ANY ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIONS. IF YOU SUSPECT THAT YOUR LOGIN CREDENTIALS MAY HAVE BEEN LOST, STOLEN, OR COMPROMISED, YOU MUST NOTIFY US IMMEDIATELY BY EMAIL AT support@fawkesbiodata.com.
Fees
Service subscription fee under an Account are payable either monthly or yearly beginning at Account activation and are payable at the beginning of the following applicable billing period after the activation date. If a Subscription is cancelled during a pay period, the cancellation shall take effect at the next billing period for a monthly account. Refunds for yearly subscription cancelled during the billing period will be refunded for the number of full months remaining in that billing period. All one-time fees or setup fees are non-refundable.If a membership is cancelled within six months of registration, the member will be charged $150 per smart device received.
Account Suspension, Deactivation, or Termination
We may, at our discretion, with or without prior notice to you, and at any time, limit, suspend, deactivate or cancel your Account if we determine or suspect that you have engaged in a Prohibited Act, violated any other provisions of these Terms, or failed to pay an overdue invoice within 30 days of receiving our notice that your account is in arrears. You may cancel your Account or a subscription for Services at any time via the "Delete Account" feature or by sending us an email. Upon cancellation of an Account or a subscription for Services, your Account Record will be subject to our data retention and destruction policies outlined in our Privacy Notice.
16. HYPERLINKS AND THIRD-PARTY SITE
The Site may contain hyperlinks or references to third-party websites that we provide for your convenience only, and do not constitute our endorsement of those sites, their operators, or any products or services that may be sold on those sites. If we are associated with any third-parties which we hyperlink on our Site we will so state. If you click on a link to a third-party site you will leave this Site and you will be subject to the terms and conditions of those sites. We have no control over these third-party websites and we accept no responsibility for any content, material or information on them, or for your use or reliance on any of it.
17. THIRD-PARTY PAYMENT PROCESSORS
We do not collect or store your payment information. We use Stripe to automatically debit your subscription fee until you cancel your subscription to the Services. All transactions are subject to Stripe’s Service Agreement and Privacy Policy. We will take steps to rectify any payment processing errors that are brought to our attention. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payment. Our Privacy Notice addresses the data security measures commonly employed by payment processors.
18. FOR USERS AND CUSTOMERS LOCATED IN THE EUROPEAN ECONOMIC AREA (EEA)
Definitions. In this section, the following terms have the following meaning:
a) “Data Protection Legislation” means European Directives 95/46/EC and 2002/58/EC, and any legislation and/or regulation implementing or made under them, or which amends or replaces any of them (including the General Data Protection Regulation, Regulation (EU) 2016/679);
b) “Data Processor”, “Data Subject”, “Processor”, “Processing”, and “Subprocessor” shall have the meaning ascribed to them in the Data Protection Legislation;
c) “Personal Data” as used in this section means information relating to an identifiable or identified Data Subject who visits or engages in transactions through our Site (a “Client”), which we process as a Data Processor while providing you our Services. Notwithstanding the foregoing sentence, Personal Data does not include information we process as part of our Services that we provide directly to a Client;
d) “Data Concerning Health” means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status; and(d) All other capitalized terms in this Section shall have the same definition as in these Terms.When we Process Personal Data and Data Concerning Health while providing the Services, we:a) Are Processing such data as a Data Processor on your behalf only to provide Services;b) Will notify you, unless prohibited by law to do so, when we need to Process Personal Data or Data Concerning Health for any other purpose;c) Will notify you promptly, to the extent permitted by law, if we receive an inquiry or complaint from a Data Subject or Supervisory Authority about or Processing of your Personal Data or Data Concerning Health;You acknowledge and agree that while offering the Site and providing our Services, we may use Subprocessors in the United States to process your Personal Data or Data Concerning Health. Our Sub-processor must comply with the terms of any Data Collection and Sharing Agreement we have with them or have self-certified for compliance with the EU-U.S. Privacy Shield and the Swiss-U.S. Privacy Shield Framework.
Additional details about our Personal Data or Data Concerning Health handling practices are available in or Privacy Notice.
19. DISCLAIMERS
WE PROVIDE THE SITE, ACCOUNTS, CONTENTS, AND SERVICES ‘AS IS’ AND ‘AS AVAILABLE’. WE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AND CONDITIONS THAT THE SITE, SERVICES, ACCOUNTS, AND CONTENT WILL BE OF SATISFACTORY OR MERCHANTABLE QUALITY; FIT FOR ANY PARTICULAR PURPOSE; NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; FUNCTION OR BE AVAILABLE UNINTERRUPTED, SECURE, ERROR-FREE, ACCURATE, CURRENT, OR COMPLETE; OR ANY IMPLIED REPRESENTATIONS OR WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, OR THE COURSE OF USAGE OR TRADE.
20. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, ACCOUNT, SERVICES, AND CONTENT REMAINS WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES WITH WHOM YOU MAY COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, ACCOUNT, OR SERVICES, INCLUDING, BUT NOT LIMITED TO, CAREGIVERS AND ANY PERSONS TO WHOM YOU MAY PROVIDE TEMPORARY ACCESS TO YOUR RECORDS AND YOU AGREE TO TAKE REASONABLE PRECAUTIONS TO PROTECT YOUR ACCOUNT INFORMATION IN ALL SUCH REGARDS.IF YOU ARE DISSATISFIED WITH THE SITE, YOUR ACCOUNT, SERVICES, THE CONTENT, THESE TERMS, OR ANY ADDITIONAL TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP USING THE SITE, CONTENT, ACCOUNT, AND SERVICES.WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, RELIANCE, SPECIAL OR OTHER DAMAGES, HOWEVER THEY ARISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR INCONVENIENCE, HARM TO BUSINESS OR PERSONS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR PROGRAS, OR OTHER DATA ON YOUR DEVICE ARISING, DIRECTLY OR INDIRECTLY FROM (1) YOUR USE OF, OR THE INABILITY TO USE YOUR ACCOUNT, THE SITE, THE SERVICES, OR THE CONTENT, FOR ANY REASON; (2) YOUR USE OR RELIANCE ON ANY CONTENT, INFORMATION, PRODUCTS, OR SERVICES ON ANY LINKED SITES, (3) THE ACTS OR OMISSIONS OF ANY THIRD-PARTY, INCLUDING OUR SERVICE PROVIDERS, (4) YOUR COMMUNICATIONS OR INTERACTIONS WITH ANY OTHER USERS OF THE SITE, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, SERVICES, INCLUDING ANY PERSONS TO WHOM YOU MAY GRANT TEMPORARY ACCESS TO YOUR HEALTH RECORDS, OR (5) ANY ERRORS OR OMISSIONS IN THE CONTENT, THE SITE, OR YOUR ACCOUNT; (6) OUR OR YOUR TRANSMISSION OF CONFIDENTIAL INFORMATION, PERSONALLY IDENTIFIABLE INFORMATION, PERSONAL HEALTH INFORMATION, PERSONAL DATA, DATA CONCERNING HEALTH, OR OTHER SENSITIVE INFORMATION THOUGH THE INTERNET, INCLUDING BY EMAIL, TO OR FROM THE SITE, OR YOUR ACCOUNT; ALL WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY OF LIABILITY, AND WHETHER OR NOT WE HAD BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN THAT REGARD.IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOREGOING EXCEED THE TOTAL SUBSCRIPTION AMOUNT YOU PAID OVER THE PAST 12 MONTHS.
21. INDEMNIFICATION
You agree to release, defend, indemnify, and hold us and our Affiliates and subsidiaries, and our and their respective officers, directors, employees, contractors, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, made by a third party and arising, directly or indirectly, from (a) your Use or reliance on the Site, Services, Account, or Content, (b) your breach of these Terms, and any Additional Terms, or the Privacy Notice; (c) your Member Content; (d) your violation of any rights of a third-party, (e) your use, reliance on, or engagement of any kind with any of our service providers and (f) your use or reliance upon any sites linked on the Site, or your commercial or other relationship with the operators of those sites and any contract for products or services of those parties that you may have entered.
22. DISPUTE RESOLUTION
You and we agree to settle any dispute, claim, or controversy arising directly or indirectly from the enforcement, interpretation, validity, breach, and termination of these Terms, any Additional Terms, or the Privacy Notice (collectively, "Disputes") though good faith negotiations after providing to the other a written Notice of Dispute. If we cannot find a resolution within 21 business days from the Notice of Dispute, then the Dispute will be settled by binding arbitration, except that we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our Intellectual Property Rights.
YOU AND WE MUST FILE A NOTICE OF DISPUTE FOR ARBITRATION (EXCEPT INTELLECTUAL PROPERTY DISPUTES) WITHIN ONE YEAR FROM THE DATE WHEN THE MATTER AT ISSUE FIRST AROSE, OTHERWISE NEITHER OF US WILL ABLE TO INITIATE ARBITRATION OR SEEK LEGAL RECOURSE FOR THAT MATTER.
If you are located in Canada
Any Dispute shall be determined by arbitration administered by the International Centre for Dispute Resolution (ICDR) Canada in accordance with its Canadian Arbitration Rules (the “Rules”). The arbitration shall be conducted in Ontario Canada, in the English language, by a single arbitrator appointed under the Rules. The arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of any class or representative proceeding. The arbitration will include a written confidential record of the arbitrator’s findings, which shall be final. An award of arbitration may be entered in a court of competent jurisdiction.
If you are located outside Canada
Any Dispute shall be determined by arbitration administered by the International Centre for Dispute Resolution (ICDR) in accordance with its International Arbitration Rules (the “Rules”). The arbitration shall be conducted in Ontario Canada, in the English language, by a single arbitrator appointed under the Rules. The arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of any class or representative proceeding. The arbitration will include a written confidential record of the arbitrator’s findings, which shall be final. An award of arbitration may be entered in a court of competent jurisdiction. This section will survive any termination of your Account or your subscription to Services.
23. WAIVER OF JURY TRIAL AND CLASS ACTIONS SUITES
You acknowledge and agree that, subject to the Dispute Resolution provision, you and we each hereby waive our respective rights to a trial by jury and your waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding against us. This section will survive any termination of your Account or your subscription to Services.
24. CHANGES TO THESE TERMS
We may make some changes or updates to these Terms from time to time without notifying you. A log of such changes will appear in the Change Log on the last page of these Terms. The changes will come into effect on the day they are made. It is your responsibility to check these Terms and the Change Log from time to time.
If we make significant changes to these Terms or replace them completely, we will post a notification banner on the Site to alert you to the changes and the date on which they will come into effect. We may, but is not required to, also notify you by e-mail about such significant changes to these Terms. WHEN YOU USE OR ACCESS THE SITE, YOU ARE BOUND TO THE TERMS IN EFFECT ON THE DATE OF YOUR VISIT.
25. GENERAL
These Terms, any applicable Additional Terms, the Privacy Notice and the Cookie Policy, and any other documents incorporated by reference in these Terms, contain the entire understanding and agreement between us and you in relation to your Use of the Site, Content and the subscription to and Use of the Services, and supersede any prior agreements between you and us, including, but not limited to, any prior versions of these Terms.
We are not liable to you for our breach of these Terms caused by any event or circumstance beyond our reasonable control including, without limitation, strikes, lock-outs, and other industrial disputes, breakdown of systems or network access, flood, fire, explosion, accident, cyber or terrorist attacks.
If any part of these Terms is found void and unenforceable by a court or arbitrator of competent jurisdiction, then that provision shall be severed from these Terms, then the rest of these Terms will remain valid and enforceable.
If we choose not to enforce any right that we have against you at any time, this does not prevent us from later exercising or enforcing that right.
You may not assign, sub-license or otherwise transfer any of your rights and obligations in these Terms to any other Person without our prior written consent, which we may give or withhold, at our sole discretion. We may assign these Terms without notice to you or consent from you.
These Terms shall be governed by and interpreted under the laws of the Province of Ontario and the laws of Canada applicable in Ontario, without regard to principles of conflicts of laws that may impose the laws of another jurisdiction.
Subject to the Dispute Resolution provisions, you and we irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario regarding any dispute or claim that may arise from or in connection with these Terms. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and is excluded.
These Terms will be binding upon and inure to your and our benefit and to the benefit of your or our respective heirs, successors, permitted assigns and legal representatives, as applicable.
Any provisions of these Terms that require or contemplate performance after termination and by their nature must survive the termination of your Account or your subscription for Services, will so survive such termination.
If you have any questions about these Terms should please contact us at support@fawkesbiodata.com.
These Terms are in effect as of May 6, 2024.