TERMS OF SERVICE

Effective Date:  May 22, 2020

 

GENERAL

These Terms of Service (“Terms”) govern your access to and use of the COVID Symptom mobile application (the “App”).  The App is made available by the New Jersey Technology Council Inc. (“NJTC”), and is developed by Kirusa, Inc. (“Developer”) (collectively, “we”, or “us”).  These Terms are a legal contract between you and us, so it is important that you review them carefully before accessing or using the App.  As used in these Terms, “you” or “User” refers to individuals accessing or using the App.  By accessing or using the App, you accept, and agree that your use of the App is subject to, these Terms. 

1. RESEARCH DATA

1.1. By using the App, you expressly acknowledge and agree that we have your permission, but no obligation, to provide data about your symptoms and any other data you submit through the App (“User Data”) in a form that is not linked to your name, email address, or other similar identifiers (“Research Data”) to third parties for research, public health, education, and other similar purposes (such parties, “Third Party Researchers”).  By way of example, the Research Data includes, but is not limited to, current symptoms, symptom history, and segmentation data such as age/gender, and certain exacerbating medical conditions in a form that is not tied to the personal identifiers described above.  You will not be compensated for the donation of this Research Data, and there are unlikely to be specific benefits to you, although the Research Data may lead to information and resources that are generally useful to the public.

1.2. With respect to User Data and Research Data, you grant us and, with respect to Research Data, the Third Party Researchers, a worldwide, perpetual, irrevocable, royalty-free, transferable, and non-exclusive license to use, reproduce, display, and create derivative works of such User Data and Research Data to manage, provide, monitor, repair, improve, analyze and operate the App, for research, public health, education purposes, and for other lawful purposes.

1.3. Research can lead to new discoveries (e.g., tests, medical treatments). Researchers, research sponsors, and other entities, including companies, may potentially benefit from the use of the discoveries or data.  You will not have rights to these discoveries or any proceeds from them.

1.4. When we create the Research Data, we remove personal identifiers like your email address and store the data in a separate repository from your other User Data.  It will not be possible for us to delete or allow you to withdraw your consent to the use and sharing of Research Data that you have previously consented to share, at a later time.  You may always withdraw consent to share data in the future.

2. INTELLECTUAL PROPERTY RIGHTS

 

2.1. As between us and you, we own the App, which includes, without limitation, all software, text, graphics, tools, links, recommendations, or other content or material provided in or through the use of the App and all associated services, and all worldwide intellectual property rights in the foregoing.

 

2.2. You are granted limited personal, revocable, non-transferable, and non-exclusive right and license to access and use the App for your personal and non-commercial use for the term of these Terms.  Any software provided through or used to operate the App is licensed, not sold, to you by us.  We may notify you, by notice within the software or otherwise, that the software contains software governed by the license of a third party, and you agree to abide by the terms and conditions of the same.  Except as expressly permitted herein, you must not rent, lend, sell, redistribute, sublicense, copy, reverse engineer, decompile, translate, modify, use as a service bureau, lease, distribute copies of, adapt, create derivative works based on, or otherwise use the App.

 

2.3. Any trademark, service mark, logo, or trade name, whether or not appearing in large print or with the trademark symbol, belongs exclusively to us or our licensors, and you may not use or display such trademarks without our permission.  Nothing in these Terms grants you any right to use any trademark, service mark, logo, or trade name belonging to us or any third parties.

3. REGISTRATION: ACCOUNT USAGE

 

3.1. You represent and warrant that you are at least eighteen (18) years of age, or the age of majority in your jurisdiction, and have the legal right and ability to agree to these Terms.  When you access your account, you agree to provide true, accurate, current and complete information about yourself as prompted by the registration form or otherwise requested during the term of your agreement to these Terms and to maintain and promptly update that information so as to keep that information true, accurate, current and complete.  You consent and authorize us to verify the information that you provide.

 

3.2. You agree to keep your user details secure and not share them with anyone else. You accept responsibility for all activities that occur under your account or from your devices. You further agree to notify us immediately if any unauthorized use, or suspected unauthorized use, of your account occurs or if any other breach of security occurs.

 

3.3. The App allows you to share User Data with third parties using e-mail, text message, and other communications applications available on your device.  You use this functionality at your own risk.  We do not control the security or other practices of the third parties with which you share User Data.  You are responsible for selecting the third parties and evaluating their security practices. In addition, these functionalities allow you to transmit User Data using modes of communication that may not be encrypted or secure.  You are responsible for selecting a suitable mode of communication in light of the sensitivity of the User Data at issue.

 

3.4. The App may provide links or access to third-party websites, services, or applications  (“Third-Party Links”).  The Company does not control such Third-Party Links, and we are not responsible for their content, practices, or standards.  Your use of Third-Party Links is at your own risk and subject to the terms and conditions of use for such Third-Party Links.

 

4. PERMITTED USE

You are prohibited from any conduct that restricts or inhibits any person from using or enjoying the App and from any other activity or conduct that is unlawful or that could foreseeably result in harm to Us, the App, or other persons, including without limitation:

  • Selling, sublicensing and/or otherwise commercializing any App material;

  • Using this App in any way that is or may be damaging to this App;

  • Using this App in any way that impacts user access to this App;

  • Using this App contrary to applicable laws and regulations, or in any way may cause harm to the App, or to any person or business entity;

  • Submitting or posting any material that is vulgar, hurts religious or community sentiments, pornographic or otherwise prohibited by law;

  • Submitting or posting any material that you do not have a right to make available or that infringes the rights of any other person or entity;

  • Engaging in any data mining, data harvesting, data extracting or any other similar activity in relation to this App;

  • Using this App to engage in any advertising or marketing;

  • Using the App in any form of illegal activity including but not limiting to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any malicious computer software.

  • Making any statement regarding your use of our service that suggests partnership with, sponsorship by or endorsement by us prior written approval. Violating any applicate local, state, federal, or international law.

5. TERMINATION

5.1. You may delete your account and/or the App from your mobile device or computer system at any time. We have no obligation to retain any User Data upon account deletion.  We will not delete Research Data derived from your User Data upon your deletion of the App or deletion of your account.

 

5.2. We reserve the right to terminate these Terms and/or your access to the App immediately for any reason, including without limitation, where we have reasonably ground to do so based on: (i) your breach of these Terms; (ii) a request by law enforcement or other government agency; (iii) our discontinuation of or material modification to the App; (iv) an unexpected technical or security issue or problem; and (v) your inactivity.  Termination of your account may include (i) removal of access to all offerings within the App, (ii) deletion of User Data associated with or inside your account, and (iii) barring further use of the App.  You agree that any such suspension, change, or termination by us may be made in our sole discretion and that, to the fullest extent permitted by applicable law, we shall not be liable to you or any third party for any suspension, change, or termination of your account or access to the App for any reason.

 

6. DISCLAIMER AND WARRANTIES

 

6.1. THIS APP IS PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY OF DATA, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE APP (INCLUDING ANY CONTENT OR MATERIAL ACCESSIBLE WITHIN THE APP) SHALL BE AVAILABLE AT ALL TIMES OR IS FREE OF ERROR; ABOUT THE SECURITY OF THE APP; OR ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, CURRENTNESS, SUITABILITY, OR TIMELINESS OF INFORMATION OR OTHER MATERIAL AVAILABLE THROUGH THE APP.  WITHOUT LIMITATION, YOU AGREE THAT WE AND THE OTHER COMPANY PARTIES ARE NOT LIABLE FOR THE CORRECTNESS OF INFORMATION ON OUR APP, CORRECTNESS OF SYMPTOM HISTORY OR OTHER USER DATA VISIBLE IN THE APP OR SHARED FROM THE APP, THE SECURITY OF ANY INFORMATION YOU USE THE APP TO RECORD AND/OR SHARE WITH OTHERS, OR THE CONTENT OF THIRD-PARTY APPS OR WEBSITES WE MAY LINK TO.

 

6.2. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT THIS APP DOES NOT PROVIDE OR INTEND TO PROVIDE MEDICAL ADVICE, AND THAT SUCH ADVICE IS THE RESPONSIBILITY OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONAL.  THE APP IS NOT INTENDED TO BE USED IN PLACE OF PROFESSIONAL MEDICAL ADVICE, JUDGMENT, DIAGNOSIS, OR TREATMENT.  SHOULD YOU HAVE ANY HEALTH RELATED ISSUED OR QUESTIONS DURING YOUR USE OF THE APP, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY.  THE APP DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT, OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND THE COMPANY PARTIES.  NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF YOUR USE OF THE APP OR DUE TO SOMETHING YOU READ OR LEARNED THROUGH THE APP.  DO NOT USE THE APP FOR ANY EMERGENCY MEDICAL NEEDS.  IF YOU EXPERIENCE SEVERE SYMPTOMS OR A MEDICAL EMERGENCY, CALL 911 (OR, IF LOCATED OUTSIDE THE USA, YOUR LOCAL EMERGENCY HOTLINE) IMMEDIATELY.  IF YOU NEED NON-EMERGENCY MEDICAL TREATMENT, PLEASE CONTACT YOUR PHYSICIAN DIRECTLY.

 

6.3. YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING THE APP, INCLUDING WITHOUT LIMITATION ANY DAMAGE RESULTING FROM ANY VIRUS.  THE APP ALLOWS YOU TO TRANSFER USER DATA FROM THE APP TO THIRD PARTIES, SUCH AS YOUR HEALTHCARE PROVIDER.  WE ARE NOT RESPONSIBLE FOR THE SECURITY PRACTICES OF ANY THIRD PARTIES.  IN ADDITION, YOUR DATA MAY NOT BE ENCRYPTED OR SECURE DURING TRANSITION.  THERE IS A RISK THAT THE USER DATA MAY BE LOST OR INTERCEPTED BY OTHER PARTIES.  YOU AGREE THAT THE COMPANY PARTIES CANNOT BE HELD RESPONSIBLE FOR ANY LOSS ARISING FROM THE TRANSMISSION OF USER DATA.

 

7. LIMITATION OF LIABILITY

 

7.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NJTC, THE DEVELOPER, AND THEIR RESPECTIVE REPRESENTATIVES, ADMINISTRATORS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, AND THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, “COMPANY PARTIES”) DISCLAIM AND WILL NOT BE LIABLE FOR ANY DAMAGE (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, OR OTHER ECONOMIC ADVANTAGE)) ARISING OUT OF OR IN CONNECTION WITH (A) YOUR ENTRY OF USER DATA INTO THE APP, (B) ANY STATEMENT OR CONDUCT OF ANY THIRD PARTY RELATING TO THE APP, (C) STOPPAGE OF USE BY YOU DURING OR AFTER COMMENCEMENT OF USE OF THE APP, (D) THE USE OR INABILITY TO USE THE APP, (E) ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, EFFECT, DELAY OR DEFECT IN OPERATION OR TRANSMISSION, VIRUS, LINE SYSTEM FAILURE, OR LOSS OF USE RELATED TO THE APP, OR (F) OTHERWISE ARISING OUT OF OR RELATING TO THESE TERMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND EVEN IF THE COMPANY OR ANY COMPANY PARTY HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES.  IF YOU ARE DISSATISFIED WITH THE APP OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DELETE YOUR ACCOUNT AND REMOVE THE APP FROM YOUR MOBILE DEVICE AND DISCONTINUE ITS USE.  UNDER NO CIRCUMSTANCES WILL WE OR ANY COMPANY PARTY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE APP OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.  UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE IF YOU CONSIDER ANY INFORMATION SHARED ON THIS APP AS MEDICAL ADVICE OR ANY ALTERNATE TO MEDICAL ADVICE.  IN NO EVENT SHALL OUR AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATING TO THE APP EXCEED THE PAYMENT MADE BY USER TO THE COMPANY IN THE SIX MONTHS PRECEDING THE DATE OF RAISING SUCH A CLAIM.

 

7.2. YOU AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTY BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY DEALING WITH ANY HEALTHCARE PROVIDER OR OTHER ENTITY THAT YOU USE OR CONSULT WITH.

 

8. INDEMNIFICATION

You agree to defend, indemnify, and hold harmless the Company and its subsidiaries, agents, licensors, managers, third parties, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from or related to:

  1. your violation or alleged violation of any term of these Terms

  2. your violation of any applicable law, rule or regulation;

  3. any of your data that is transmitted via your account;

  4. any other party’s access and use of the service with your unique username, password or other appropriate security code.

9. SEVERABILITY

If any provision of these Terms is found to be invalid or unenforceable under any applicable law, such provisions shall be deleted without affecting the remaining provisions herein.

10. NO WAIVER

Our failure or delay to assert exercise or enforce any right or benefit under these Terms shall not constitute a waiver of such right or benefit nor operate to prevent or limit the future exercise or enforcement of that right or provision.

11. ASSIGNMENT

We are allowed to assign, transfer, and subcontract our rights and/or obligations under these Terms, in whole or in part, without any notification to you or your prior consent.  However, you agree not to assign, transfer, or subcontract any of your rights and/or obligations under these Terms.

12. GOVERNING LAW & DISPUTE RESOLUTION

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS.  BY AGREEING TO MANDATORY, BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE.

These Terms will be governed by, and interpreted in accordance with, the laws of the United States and the State of New Jersey, without regard to the conflicts of law principles thereof. For any dispute arising in connection with your use of the App, you agree to first contact us at help@covidsymptom.org, and attempt to resolve the dispute with us. Any claims arising in connection with your use of the App should be reported to us as soon as possible in a written statement delivered to [X]. To the maximum extent permitted by applicable law, you permanently and irrevocably waive your rights to bring any claim in connection with your use of the App unless you bring it within one (1) year of the data of the event giving rise to such claim.

TO THE FULLEST EXTENT PERMITTED BY LAW, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND THE COMPANY OR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS, OR OTHER COMPANY PARTIES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR APPOINTED BY THE COMPANY INSTEAD OF IN A COURT BY A JUDGE OR JURY.

YOU AGREE THAT THE COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU FURTHER AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS ONLY; AND THAT CLASS ARBITRATIONS, CLASS ACTIONS, AND/OR OTHER REPRESENTATIVE ACTIONS ARE NOT PERMITTED. YOU ARE AGREEING TO GIVE UP THE ABILITY TO BRING OR PARTICIPATE IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION IN COURT OR ARBITRATION.

The arbitration will be administered by the American Arbitration Association (the “AAA”) under the Consumer Arbitration Rules (the “AAA Rules”) (available from the AAA at adr.org), as amended by these Terms. The arbitration will take place in New Jersey [or another location that is reasonably convenient to the parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination will be made by the AAA or by the arbitrator]. Each party will be responsible for paying any arbitration filing, administrative, or arbitrator fees in accordance with the AAA Rules.  The arbitrator will be bound by these Terms, when not in conflict with applicable law, and the arbitrator’s decisions will be binding and final, subject only to limited right of judicial review, provided under the Federal Arbitration Act.   The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. If the arbitrator decides that either the substance of your claim or the remedy you asked for is frivolous or brought for an improper purpose, we may use the applicable AAA Rules to determine whether you are responsible for the filing, administrative and arbitrator fees. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local government agencies, or from seeking public injunctive relief in court where that right cannot be waived under applicable state law. 

10. QUERIES: Please direct any inquiries about the functionality of the App to help@covidsymptom.org.

 

Please direct any inquiries about health related issues or questions during your use of the App to your physician or other healthcare provider promptly.  If you experience a medical emergency, call 911 immediately (or, if located outside the USA, your local emergency hotline).  If you need non-medical emergency care, please contact your physician or other healthcare provider directly.

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