Last Updated: January 1, 2023 Openscreen Inc.
Terms of Service
Openscreen provides companies, individual end users and software developers (our “Clients”) with a range of tools and capabilities (including QR Code creation, contact management, data collection, reporting, API & documentation) to create QR Codes and QR Code based applications (the “Platform”). We also provide Openscreen-developed and 3rd party-developed applications (the “Apps”) that our Clients can use for QR Code based business capabilities. The Platform and Apps and any such capabilities, applications, documentation, support services and features offered by Openscreen are referred to in these Terms of Service as the “Service(s)”
1. Amendments to these Terms of Service
1.1. Amendments to these Terms of Service. Openscreen may modify or adapt these Terms of Service at any time. Openscreen will provide notice of any substantial modification of the Terms of Service by sending an email to the Administrator Email Address of every account impacted by a change in Terms of Service. 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, Clients will be asked to create an Openscreen 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, Client representatives (“Authorized Users”) must provide a full name, email address and create a password. Authorized Users may access the Platform and Services for the purposes of using the Platform, Apps and/or developing a Client Application on the Platform. Clients 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 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 Services; (ii) use the Services, strictly in accordance with these Terms of Service for the purposes of developing and making available to your end-users, applications that use 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 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 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 Platform, Apps and API, may change over time provided, however, Openscreen will not materially decrease the overall functionality of the Services. If you are directly and programmatically using the Openscreen API for a Client Application, it is your responsibility to ensure each Client Application 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:
- (a) be responsible for all activities you conduct using or in connection with the Services;
- (b) comply with these Terms of Service, any acceptable use or other policies adopted by Openscreen and communicated to you from time to time, and all applicable laws relating to your use of the Services and any content and materials that are made available to you via the use of the Services, including any Third-Party Platform Content (the "Platform Content");
- (d) ensure that the collection, use, storage, processing, disclosure or communication of any electronic data or information entered, submitted or communicated by the Client or any End-User (as defined below) though the Client Application (“Client Data”), including any and all personal information, personal data or personally identifying information through any Client Application, is compliant with applicable law, including without limitation that all appropriate consents have been obtained and notices given to any individual concerned;
- (e) be responsible for providing, at your cost, all equipment and communications capabilities necessary to establish a connection to the Platform and access and use the Services
- (f) be solely responsible for all use of the Services and Documentation under your account, including the collection, use and disclosure of any Client Data and other data and other information made available to Openscreen by or for you through the use of the Platform or the Services under these Terms of Service and each Client Application;
- (g) not transfer, resell, or make available to third parties any Openscreen Services, except to your End Users as part of the Client Applications or services you offer;
- (h) do your best to prevent unauthorized access to or use of the Platform or Services and notify Openscreen promptly of any such unauthorized access or use;
- (i) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and
- (j) comply with the representations and warranties you make in Section 12 (Representations and Warranties).
4.2. Unauthorized Use. Openscreen is not liable for any loss or damage arising from unauthorized use of your account.
4.3. Assignment of Account. Your account may not be assigned without Openscreen’s prior written consent.
4.5. 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.
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. Services 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. The Service Plan will either be (a) as published and selected by Client at www.openscreen.com (“Online Service Plan(s)”) or as documented and executed by Client and Openscreen via a SaaS Service Agreement (“Custom Service Plan(s)”).
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) in the case of a Custom Service Plan, invoiced by Openscreen to the Client address set out on the Service Plan in advance of each billing period or (b) in the case of an Online Service Plan 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. Openscreen shall not use your name or logo on the Openscreen website or marketing or promotional materials without prior written approval from you.
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 your account registration is complete.
- (a) You may terminate these Terms of Service at any time by cancelling your account or by providing written notice to Openscreen.
- (b) Openscreen may terminate these Terms of Service and terminate your access to the Services for any reason, or for no reason, at any time, by giving prior written notice of thirty (30) days to this effect. In the event of a violation of Openscreen’s Acceptable Use Policy, Openscreen may terminate these Terms of Service and terminate your access to the Services immediately.
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), 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).
15.4. Effects of Termination. Other than as provided in Section 9.2 (retrieval of Client Data), 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. 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.
17. QR Code Trademark
17.1. QR Code is a registered trademark of DENSO WAVE INCORPORATED in the United States and other countries.
Data Protection Addendum
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
a. 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.
b. 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
a. The Client hereby appoints Openscreen as its service provider for the purposes of providing the Client with the Services in accordance with the Terms of Service and this DPA, and Openscreen hereby accepts such appointment.
b. Client authorizes Openscreen to use, store, communicate and disclose the Personal Data included in the Client Data as necessary to perform the Services in accordance with the Terms of Service and this DPA, as otherwise instructed by the Client, or as required by law.
c. Openscreen acknowledges and agrees that Personal Data included in the Client Data shall at all times remain in the control of Client and that Openscreen acquires no independent right to such Personal Data.
d. Subject to any contractual or legal obligations, Openscreen agrees to provide Client with unfettered access to Personal Data that is included in the Client Data to the extent necessary for Client to fulfill its obligations under applicable Privacy Legislation.
e. Client has the obligation to ensure that it has obtained all appropriate consents and given all notices required to be given to any individual concerned to allow the collection by Client of any Personal Data included in Client Data and its use, storage, processing, disclosure or communication by Openscreen on behalf of Client in accordance with the Terms of Service, including this DPA, in accordance with applicable law and shall indemnify, defend and hold harmless Openscreen for any damages or costs incurred by Openscreen in relation to any failure to do so.
f. Client acknowledges that Openscreen may collect Client Personal Data from Client, and Client’s employees and independent contractors as necessary for the purposes of providing the Services to Client.
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:
- a. not use the Personal Data for any purpose other than as necessary to perform the Services except that Openscreen may de-identify the Personal Data and may use and disclose the de-identified data for any lawful purpose;
- b. not disclose the Personal Data to any person except:
- i. as expressly permitted or instructed by Client; or
- ii. as required to comply with applicable laws or regulations or a valid court order or other binding requirement of a competent governmental authority, provided that in any such case:
- 1. Openscreen immediately notifies Client in writing of any such requirement (and in any event prior to disclosure of the Personal Data); and
- 2. Openscreen provides all reasonable assistance to Client in any attempt by Client to limit or prevent the disclosure of the Personal Data;
- 3. use reasonable physical, organizational and technological security measures that are appropriate having regard to the sensitivity of the information, and that meet requirements of privacy laws, to protect such Personal Data against loss, theft and unauthorized access, disclosure, copying, use, modification or disposal;
- 4. restrict access to Personal Data to only those authorized employees and permitted agents and subcontractors that require access to such information to fulfil their job requirements and that are subject to binding obligations of confidentiality and data protection consistent with those of this DPA; and
- 5. inform Client at the first reasonable opportunity after becoming aware of any unauthorized access to, or use or disclosure of, Personal Data (“Incident”), provide the Client with all relevant particulars of the Incident, and work with the Client to take reasonable steps to contain and remediate the Incident and to prevent future Incidents.
a. Openscreen shall provide necessary and reasonable information and co-operation to Client and to any regulatory or other governmental bodies or authorities with jurisdiction or oversight over Privacy Legislation in connection with any investigations, audits or inquiries relating to the processing of Personal Data included in the Client Data under this DPA.
b. Openscreen shall provide reasonable and necessary information and documentation to Client to allow Client to verify Openscreen’s compliance with this DPA.
c. Openscreen shall designate an individual to be accountable for Openscreen’ compliance with this DPA.
d. Openscreen shall not subcontract, assign or delegate to any third party its obligations with respect to the collection, use, disclosure, storage, handling or processing of Personal Data in connection with the Services without obtaining written contractual commitments of such third party substantially the same as those of this DPA.
e. Openscreen shall manage its business including to maintain business records for reasonable periods, enforce our agreements, and collect amounts owing to us.
f. Openscreen shall optimize the performance of its platform, given the Clients’ nature and frequency in using the Service.
g. Ensure the security and authorized use of our platform, and to protect our Clients against unauthorized use of the Service.
F. Retention and Destruction of Personal Data
a. Openscreen shall retain Personal Data included in the Client Data in accordance with the terms of the Terms of Service.
a. Openscreen shall comply with its obligations under Privacy Legislation in providing the Services.
b. 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.
c. Client may terminate the Terms of Service upon written notice if Openscreen materially fails to comply with the provisions of this DPA.
d. 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.