Canari Terms of Service

Last Updated: August 13, 2019

PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY. TESTFIRE, INC. D/B/A TESTFIRE LABS (“TESTFIRE”/”CANARI”/“WE”/“US”/“OUR”) OWNS AND OPERATES THE WEBSITE LOCATED AT HTTPS://CANARI.AI/ (“WEBSITE”), AND ANY SUBDOMAINS USED IN CONNECTION WITH OR RELATED TO THE SAME, AND THE CANARI MOBILE APPLICATION (THE “APP”). THESE TERMS OF SERVICE APPLY TO ALL USERS OF THE WEBSITE, INCLUDING USERS WHO UPLOAD ANY MATERIALS TO THE WEBSITE, USERS WHO USE SERVICES PROVIDED THROUGH THIS WEBSITE, USERS WHO DOWNLOAD THE APP AND USERS WHO SIMPLY VIEW THE CONTENT ON OR AVAILABLE THROUGH THIS WEBSITE.

YOU MUST BE AT LEAST NINETEEN (19) YEARS OLD IN QUEBEC, OR EIGHTEEN (18) YEARS OLD IN THE REST OF CANADA, TO USE THE WEBSITE AND APP. BY ACCESSING, BROWSING AND USING THIS WEBSITE AND/OR THE APP, YOU INDICATE THAT YOU HAVE READ AND ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, THEN DO NOT USE THE APP OR THIS WEBSITE OR ANY OF THEIR CONTENT OR SERVICES. THE TERM “YOU” OR “YOUR” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU’RE REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

PLEASE BE AWARE THAT SECTION 18 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF ALBERTA, CANADA WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.

IF YOU ARE ACCEPTING THESE TERMS OF SERVICE ON BEHALF OF A CORPORATION OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY RIGHT AND AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE ON BEHALF SUCH CORPORATION OR ENTITY AND TO BIND SUCH CORPORATION OR ENTITY TO THESE TERMS OF SERVICE.

PLEASE NOTE THAT THESE TERMS OF SERVICE ARE SUBJECT TO CHANGE BY TESTFIRE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Testfire will make a new copy of the Terms of Service available at the Website and within the App and any new, supplemental terms will be made available from within, or through, the affected Service on the Website or within the App. We will also update the “Last Updated” date at the top of the Terms of Service. If we make any material changes, and you have registered with us to create an account we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms of Service. Any non-material change (such as clarifications) to this Terms of Service will be effective on the date the change is posted. Any material changes will be effective immediately for new Users of the Website, the App and/or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to registered Users (defined in Section 2 below). Testfire may require you to provide consent to the updated Terms of Service in a specified manner before further use of the Website, the App and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the App and/or the Services. Otherwise, your continued use of the Website, the App and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS

  1. The Service. The Canari service enables users to journal growth of and diagnose plant health issues. Users can choose to share their grow progress with others.

  2. Registration. You must provide your full legal name, a valid email address and any other information requested in order to complete the signup process and access certain features of the Website, App and/or Service. You may also access the Website, App and/or Service by accessing certain social networking services (“SNSs”) through which you have connected to the Website (each such account, a “Third-Party Account”), or an account with the provider of the App for the User’s mobile device. Any personal information provided by you as part of the sign up process for the Service will be used and stored in accordance with the Canari Privacy Policy. We may also collect email addresses from any users of the Service (the “User”) that downloads content from the Website. If you access the Website, App and/or Service through a SNS as part of the functionality of the Website, the App and/or the Services, you may link your account with Third-Party Accounts, by allowing Testfire to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Testfire and/or grant Testfire access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Testfire to pay any fees or making Testfire subject to any usage limitations imposed by such third-party service providers. By granting Testfire access to any Third-Party Accounts, you understand that Testfire may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Website, App and/or Service (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Website, App and/or Service via your account. Unless otherwise specified in the Terms of Service, all SNS Content shall be considered to be User Content (defined in section 3) for all purposes of the Terms of Service. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your account on Website, App and/or Service. Please note that if a Third-Party Account or associated service becomes unavailable or the third-party service provider terminates Testfire’s access to such Third-Party Account, then SNS Content will no longer be available on and through Website, App and/or Service. If you decide at any time that you no longer wish to have your Third-Party Account linked to your account, please contact us at privacy@testfirelabs.com. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND TESTFIRE DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Testfire makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Testfire is not responsible for any SNS Content.

  3. Content. All information, data, text, software, music, sound, photographs, graphics, video, messages or other materials, whether publicly posted or privately transmitted to the Website and App by viewers or users (“User Content”), is the sole responsibility of such viewers or users. This means that the viewer or user, and not Testfire, are entirely responsible for all such material uploaded, posted, emailed, transmitted or otherwise made available by using the Service. Testfire does not control or actively monitor User Content and, as such, does not guarantee the accuracy, integrity or quality of such content. Users acknowledge that by using the Service, they may be exposed to materials that are offensive, indecent or objectionable. Under no circumstances will Testfire be liable in any way for any materials, including, but not limited to, for any errors or omissions in any materials or any defects or errors in any printing or manufacturing, or for any loss or damage of any kind incurred as a result of the viewing or use of any materials posted, emailed, transmitted or otherwise made available via the Service.

  4. Restrictions on User Content and Use of the Service. Testfire reserves the right at all times (but will have no obligation) to remove or refuse to distribute any User Content and to terminate users or reclaim usernames. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of our users and the public. In using the Website, App and/or Service You shall not:

    1. unless otherwise expressly authorized, display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service

    2. use the Service for any of the following uses unless you obtain Canari’s prior written approval:

      1. the sale of access to the Service or any User Content;

      2. the sale of advertising, sponsorships, or promotions placed on or within the Service or User Content;

      3. the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing User Content delivered via the Service, unless other material not obtained from Canari appears on the same page and is the basis for such sales

    3. collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes

    4. solicit, for commercial purposes, any users of the Service with respect to their User Content

    5. copy any content unless expressly permitted to do so herein;

    6. upload, post, email, transmit or otherwise make available any material that:

      1. is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially or ethnically objectionable, encourages criminal behavior, gives rise to civil liability, violates any law, or is otherwise objectionable;

      2. You do not have a right to make available under any law or under a contractual relationship;

      3. infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party (including privacy rights);

      4. use communication features of the Service (or other functionality made available through the Service) to transmit unsolicited or unauthorized advertising, solicitations for business, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

      5. contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or the Website or that of any users or viewers of the Website or that compromises a user’s privacy; or

      6. contains any falsehoods or misrepresentations or create an impression that You know is incorrect, misleading, or deceptive, or any material that could damage or harm minors in any way;

    7. impersonate any person or entity or misrepresent their affiliation with a person or entity;

    8. forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted to or through the Website or impersonate another person or organization;

    9. interfere with or disrupt the Website or servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Website or probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;

    10. intentionally or unintentionally violate any applicable local, state, national or international law or regulation;

    11. collect or store personal data about other users or viewers;

    12. license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Website or App; or

    13. modify, translate, make derivative works of, disassemble, duplicate, adapt, hack, decompile, reverse compile, modify or reverse engineer any part of the App or any software provided as part of the Service or to falsely imply that another website is associated with the Service, Canari or any other Testfire service, except to the extent the foregoing restrictions are expressly permitted by applicable law.

      You also agree not to access the Website or App in a manner that utilizes the resources of the Website or App more heavily than would be the case for an individual person using a conventional web browser. If your bandwidth usage exceeds reasonable levels, or significantly exceeds the average bandwidth usage (as determined solely by Testfire) of other Canari users, we reserve the right to immediately disable your account and/or throttle your usage until you can reduce your bandwidth consumption. Notwithstanding the foregoing, operators of public search engines may use spiders or other bots for the purpose of creating publicly available searchable indices of the materials on this Website.

  5. License of Content to Testfire. By submitting, posting or displaying User Content on or through the Service, you grant us (and our agents) a non-exclusive, royalty-free, perpetual, irrevocable, worldwide, fully paid license (with the right to sublicense) to use, copy, modify, transmit, display and distribute such User Content (a) to the extent necessary to provide the Services; and (b) to create aggregated and anonymized market research statistics and insights in respect of the users that use Canari. We will not share any Confidential Information, including end user data, with any third parties, except as set out in our Privacy Policy. Testfire will not be responsible or liable for any use of User Content in accordance with these Terms of Service. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any User Content that you submit.

  6. End User License. Except for User Content, the App, this Website, and the information and materials contained therein, are the property of Testfire and its licensors, and are protected from unauthorized copying and dissemination by copyright law, trademark law, and other intellectual property laws. Subject to these Terms of Service, Testfire grants you a non-transferable, non-transferable, non-exclusive, revocable license to (a) use the Website for your use, and (b) download, install and use one copy of the App on a mobile device that you own or control for your use (the “License”). Furthermore, with respect to any application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. The App is licensed to you and not sold. Nothing in the Terms of Service gives you a right to use the Testfire or Canari names, trademarks, logos, domain names, and other distinctive brand features without our prior written consent. You shall not attempt to override or circumvent any of the usage rules or restrictions on the Website. Any future release, update, or other addition to functionality of the Website or App shall be subject to the terms of these Terms of Service.

  7. Feedback. If You provide Testfire with any suggestions, comments or other feedback relating to any aspect of the Website, App and/or Service (“Feedback”), Testfire may use such Feedback in the Website, App, Service and/or in any other Testfire products or services (collectively, “Testfire Offerings”). Accordingly, You agree that: (a) Testfire is not subject to any confidentiality obligations in respect to the Feedback, (b) the Feedback is not confidential or proprietary information of You or any third party and You have all of the necessary rights to disclose the Feedback to Testfire, © Testfire (including all of its successors and assigns and any successors and assigns of any of the Testfire Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any Testfire Offerings, and (d) You are not entitled to receive any compensation or re-imbursement of any kind in respect of the Feedback.

  8. Advertising. You acknowledge and agree that the Website and App may contain advertisements. If You elect to have any business dealings with anyone whose products or services may be advertised on the Website or App, You acknowledge and agree that such dealings are solely between You and such advertiser and You further acknowledge and agree that Testfire shall not have any responsibility or liability for any losses or damages that You may incur as a result of any such dealings.

  9. Links & Third-Party Websites and Integrations; Contests. The Website and App (including User Content) may contain links to other websites that are not owned or controlled by Testfire or may make it possible for you to elect to use third party services with the Service where such third party service providers have integrated with the Service (“Third Party Integration Partners”). In no event shall any reference to any third party, third party product or service be construed as an approval or endorsement by Testfire of that third party, third party product or service. Testfire is also not responsible for the content of any linked websites or for the delivery of any product or service offered by third parties including Third Party Integration Partners. In order to receive access to a Third Party Integration Partner’s products or services, you will need, in most cases, to sign-up directly with the Third Party Integration Partner. Any third-party websites or services (including those offered by Third Party Integration Partners) are subject to the terms and conditions of those websites and or services and You are responsible for determining those terms and conditions and complying with them. The presence of a link to any other website(s) does not imply that Testfire endorses or accepts any responsibility for the content or use of such websites, and You hereby release Testfire from all liability and/damages that may arise from Your use of such websites or receipt of services from any such websites. While Testfire does not prohibit linking to third party websites and content, it does not wish to be linked to or from any third-party web site which contains, posts or transmits any of the prohibited content in Section 8 of these Terms of Service. Testfire reserves the right to prohibit or remove (or require You to remove) any link to the Website, including, without limitation, any link which contains or makes available any content or information of the foregoing nature, at any time. Testfire may from time to time offer promotions, sweepstakes, giveaways and contests on the Website. Participation in such initiatives requires your agreement to the contest rules that govern the specific promotional event.

  10. App Stores. You acknowledge and agree that the availability of the App and the Service is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (each an “App Store”). You acknowledge that the Terms of Service are between you and Testfire and not with the App Store. Testfire, not the App Store, is solely responsible for the Website, App and Service, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Website, App and Service. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Website, App and Service. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms of Service and will have the right to enforce them.

  11. DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS. THE WEBSITE, SERVICE, APP AND ALL MATERIALS PROVIDED THEREIN ARE PROVIDED “AS IS” AND TESTFIRE DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT RESULTS OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED. IN ADDITION, TESTFIRE SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM DOWNLOADING OR USING ANY SUCH MATERIAL. TESTFIRE DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE WEBSITE OR IN RESPECT TO ANY WEBSITE THAT CAN BE REACHED FROM A LINK ON THE WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING ON THE WEBSITE, AND TESTFIRE SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY. TESTFIRE WILL NOT BE LIABLE FOR ANY TYPE OF CONTENT EXCHANGED BY MEANS OF THE SERVICE.

  12. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL TESTFIRE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THIS WEBSITE, APP OR THE SERVICE, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES IN THE MATERIALS ON THE WEBSITE, OR (IV) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE WEBSITE. THESE LIMITATIONS SHALL APPLY EVEN IF TESTFIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TESTFIRE’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) AMOUNTS YOU’VE PAID TESTFIRE IN THE PRIOR 12 MONTHS (IF ANY). THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

  13. INDEMNIFICATION. YOU SHALL INDEMNIFY AND HOLD TESTFIRE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, AND EMPLOYEES, HARMLESS FROM ALL CLAIMS, ACTIONS, PROCEEDINGS, DEMANDS, DAMAGES, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), INCURRED IN CONNECTION WITH ANY MATERIALS SUBMITTED, POSTED, TRANSMITTED OR MADE AVAILABLE BY YOU THROUGH THE SERVICE AND/OR ANY VIOLATION BY YOU OF THESE TERMS OF SERVICE, THE RIGHTS OF ANY THIRD PARTY, OR ANY APPLICABLE LAW OR REGULATION. This provision does not require you to indemnify Testfire for any unconscionable commercial practice by Testfire or for Testfire’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.

  14. Termination. You are solely responsible for properly cancelling your account. You can cancel your account at any time by calling us and notifying us of your desire to cancel your account. Testfire may, under certain circumstances and without prior notice, immediately terminate Your ability to access the Website or App or portions thereof. Cause for such termination shall include, but not be limited to, (a) breaches or violations of these Terms of Service or any other agreement that You may have with Testfire (including, without limitation, non-payment of any fees owed in connection with the website or otherwise owed by You to Testfire), (b) requests by law enforcement or other government agencies, © discontinuance or material modification to the website (or any part thereof), (d) unexpected technical, security or legal issues or problems, and/or (e) participation by You, directly or indirectly, in fraudulent or illegal activities; or (f) verbal, physical, written or other abuse (including threats of abuse or retribution) of any Canari user, Testfire employee, member or officer will result in immediate termination of Your account. Termination of Your access to the Website or App may also include removal of some or all of the materials uploaded by You. You acknowledge and agree that all terminations may be made by Testfire in its sole discretion and that Testfire shall not be liable to You or any third-party for any termination of Your access to the Website or App or for the removal of any of the materials uploaded by You to the Website. Any termination of these Terms of Service by Testfire shall be in addition to any and all other rights and remedies that Testfire may have.

  15. Availability & Updates. Testfire may alter, suspend, or discontinue the Website, App and/or Service at any time and for any reason or no reason, without notice, but will endeavor to provide notice of the same. The Website, App and/or Service may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. Testfire may periodically add or update the information and materials on this Website without notice. You may need to update third-party software from time to time in order to use the Website, App and/or Service.

  16. Security. Information sent or received over the Internet is generally unsecure and Testfire cannot and does not make any representation or warranty concerning security of any communication to or from the Website or any representation or warranty regarding the interception by third parties of personal or other information. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You are responsible for safeguarding the password that you use to access the Service and you are responsible for any activities or actions under your password. You agree to keep your password secure. Log-ins are intended for one user only and are not to be shared by multiple users. Testfire will not be liable for any loss or damage arising from your failure to comply with these requirements.

  17. Responses to Law Enforcement.

    1. Testfire will respond to all valid, legal requests to the extent permitted by our Terms of Service and Privacy Policy and Canadian law. All requests for disclosure of user information and account information should be directed to Testfire and marked “Legal” to our offices at #100 10130 106th St NW, Edmonton AB, T5J 0X6 Canada with a copy to legal@testfirelabs.com. A valid legal request will take the form of:

      1. A valid police request in the case of disclosure of basic subscriber information in relation to alleged crimes such as fraud by such subscribers.

      2. A binding court order compelling disclosure of certain records such as subscriber records and account details but not contents of communications; and/or

      3. A search warrant where contents of communications are sought

    2. Unless prohibited by applicable law or where the court order, subpoena or warrant requires no notification or delayed notification, Testfire may notify affected users when we receive legal process from a third party requesting that user’s data. Testfire may choose not to notify a user if Testfire deems, in its sole discretion that providing notice would be ineffective, prejudicial or might create a risk of injury or bodily harm to an individual or group, or to our property.

  18. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Testfire and limits the manner in which you can seek relief from us.

    1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website or App, to any products sold or distributed through the Website or App, or to any aspect of your relationship with Testfire, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Testfire may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.

    2. Arbitration Rules and Forum. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Testfire Labs, attn. Legal Department, #100 10130 106th St NW, Edmonton AB, T5J 0X6. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Testfire will pay them for you. In addition, Testfire will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

    3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Testfire. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.

    4. Waiver of Jury Trial.  YOU AND TESTFIRE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Testfire are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19(1) above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

    5. Waiver of Class or Other Non-Individualized Relief.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then claim must be severed from the arbitration and brought into the Provincial or Federal Courts located in the Province of Alberta. All other claims shall be arbitrated.

    6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: #100 10130 106th St NW, Edmonton AB, T5J 0X6 Canada, within 30 days after first becoming subject to this Arbitration Agreement and by email to Testfire at legal@testfirelabs.com. Your notice must include your name and address, your Canari username (if any), the email address you used to set up your Canari account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

    7. Severability. Except as provided in subsection 19(6), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

    8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Testfire.

    9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Testfire makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30 days of such change becoming effective by writing Testfire at the following address: #100 10130 106th St NW, Edmonton AB, T5J 0X6 Canada.

  19. General. These Terms of Service, together with the Canari Privacy Policy, constitutes the entire agreement between the parties relating to the Website and Service and all related activities. These Terms of Service shall not be modified except in writing signed by both parties or by a new posting of these Terms of Service issued by Testfire. If any part of these Terms of Service is held to be unlawful, void, or unenforceable, that part shall be deemed severed and shall not affect the validity and enforceability of the remaining provisions. The failure of Testfire to exercise or enforce any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Any waiver of any right or provision by Testfire must be in writing and shall only apply to the specific instance identified in such writing. You may not assign the Terms of Service, or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise without Testfire’s prior written consent. We may assign these Terms of Service without restriction. If you have any questions about these Terms of Service or if you wish to make any complaint or claim with respect to the Website, App or Service, please contact us at: info@testfirelabs.com.

Testfire Inc.
#100 10130 106th St NW
Edmonton AB, T5J 0X6
Canada