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PRODUCT LICENSE AGREEMENT AND END USER LICENSE AGREEMENT
The following summary (“Summary of Terms”) is subject to the terms and conditions set out in the schedules to this agreement (and together, this Summary of Terms and all schedules are the “Agreement”).
If any End-User does not agree to this Agreement, such End-User shall agree to not use the Product (defined below in Schedule A) and in doing so shall not be granted a license to the Product. See “Acceptance of the Terms”, below.
Last Modified Date: 2022-04-13
Effective Date: 2022-04-13
This Agreement is between:
1. Sentry Health Inc. a company incorporated under the Federal laws of Canada (the “Company”), and
2. The “Client” or “End-User” who has registered for the use of the Product, and together with the Company, each a “Party”, and collectively the “Parties”).
Acceptance of The Agreement in Order to Use the Site.
Client and/or End-User further agree to abide by all the terms in the Google Play Store and the Apple App Store (each a "Distribution Platform") end user licensing agreement, or any other applicable Distribution Platform agreement, so long as such agreement does not conflict with the terms herein.
SENTRY HEALTH INC. IS NOT PROVIDING ANY MEDICAL ADVICE OF ANY KIND. CLIENT AND/OR END-USER USE OF THE PRODUCT ARE AT CLIENT'S OWN RISK. INFORMATION REGARDING HEALTH, MEDICATIONS OR ANY MEDICAL ADVICE ARE PROVIDED BY THIRD PARTIES. SENTRY HEALTH INC. DOES NOT REPRESENT, WARRANT OR ACCEPT ANY LIABILITY WITH RESPECT TO ANY AND ALL CONTENT, ADVICE, NOTIFICATIONS OR OTHER INFORMATION RECEIVED THROUGH THE USE OF THE PRODUCT.
Any information received through use of the Product that is not part of an authorized session with your healthcare professional is purely informational and does not amount to medical advice. Do not use any information received through the use of the Product to diagnose or treat a medical condition or health concern.
No Substitute for Professional Advice.
The Company Product is not intended to be a substitute for professional advice. Under no circumstances will we be liable for any loss or damage caused by your reliance on information obtained through the Company Product. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Company Product. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice or other content. Never disregard professional advice, including medical advice, or delay in seeking it, because of something you have read on the Company Product.
Summary of License Terms.
During the Initial Term or subsequent Renewal Term (as defined below), the Company grants to the End-User a non-exclusive, non-transferable, non-sub licensable, revocable license to the Product, the features of which are described in Schedule “B” to this Agreement.
The license can be revoked for breach of the Agreement and/or for any of the Prohibited Uses as defined below in Schedule “C” to this Agreement, examples of which are submission to the Company or any other End-Users of objectionable content, and/or acts of abuse to the Company or to any other End-Users, and/or of any Prohibited Use of the product, among others).
Complete license terms are contained in Schedule “A” to this Agreement.
Fees and Timeline
Fees and Expenses:
The Fees for use of the Product as amended from time to time are set out at sentryhealth.ca.The Product may have been provided to the Client and/or End-User for use free of charge.
This Agreement shall apply to each Client and/or End-User commencing from the time that such End-User first registers to use the Product (the “Effective Date”) and, subject to the clauses that survive this agreement, until the termination of the Agreement at the conclusion of a one-year period (the “Initial Term”). The Agreement will renew automatically on a year-to-year basis thereafter (each a “Renewal Term”) until such time as it is terminated in accordance with the termination provisions of this Agreement.
For support inquiries, or to report objectionable content, please contact the Company at: email@example.com
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Terms and Conditions to the Product Licence Agreement
1. PARTIES ACCESSING THE SOFTWARE AGREE TO BE BOUND BY OUR TERMS
This Agreement will govern the Client and End-User access of the Sentry Health products, including but not limited to the Sentryhealth.ca, whether accessed: (a) on a computer connected to the internet at Sentryhealth.ca (the “Website”); (b) on the Company social media properties including Facebook, Linkedin, Instagram, Youtube and any other social platforms that the Company may use from time to time; and/or (c) by downloaded on a mobile hardware device (individually and collectively, (a), (b), and (c) are the “Product”), as owned and operated by the Company.
No End-User may use the Product or accept this Agreement if such End-User is not of a legal age to form a binding contract with us. In accepting this Agreement, each End-User represents that such End-User has the capacity to be bound by them, and/or if such End-User is acting on behalf of the Client, that such End-User has the authority to bind such company or entity (and in which case Client will refer to the company or entity).
It is important that you read these Terms carefully. If you do not agree to these Terms, please do not use the Product. By accessing or using the Product, you represent, warrant and signify that:
if you are a health professional or therapist ("Health Care Provider"), you are currently compliant, and agree to remain in compliance in the future, with all laws applicable to you, including (as applicable) the Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A (“PHIPA”), the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) etc., all as amended from time to time, including any regulations thereto (individually and collectively shall be included in the definition of “Applicable Laws”);
that you have read, understood and agree to be bound by these Terms as they may be amended from time to time;
if you are a Health Care Provider you have obtained any applicable consents required from your patients’ relating to the dissemination of personal health information and your potential use of third-party service providers, such as Sentry Health; and
You may not use the Product or Services nor accept these Terms if you are not of a legal age to form a binding contract with us. If you accept these Terms, you represent that you have the capacity to be bound by them, or if you are acting on behalf of a company or entity, that you have the authority to bind such company or entity (and in which case “you” and “your” will refer to the company or entity).
Pursuant to the amendment restrictions set out in Applicable Law (defined below), the Company may add to, discontinue or revise this Agreement or any aspect, mode, design, or service provided under the Product which include but are not limited to the:
scope of the features;
timing of the features;
software/hardware required for access to the Product; and
geographic locations or jurisdictions in which certain features may be available.
The Company may amend this Agreement without notice for non-material amendments. In the event of a material change during the Initial Term or prior to a Renewal Term, we will provide the End-User with thirty (30) days’ notice (or the minimum notice period as required under Applicable Law, whichever is greater) of any such change (including changes in pricing) via e-mail to the e-mail address supplied to the Company by the Client and/or End-User, setting out:
the new or amended agreement terms;
how such terms read formerly;
the date of the coming into force of the amendment;
the means in which to respond to the notice of amendment and the effects of not responding;
the option to either terminate the agreement or retain the existing agreement unchanged; and
the language of this provision with reference to the applicable consumer protection legislation rules for amending this Agreement and making any additional requirements for amendments as prescribed by law (if any).
It is the Client and/or End-User’s responsibility to send such notices of material changes to all End-Users associated with the End-User’s account. The Company highly recommends that each Client and/or End-User read any amendments carefully. Unless explicit consent is required by the law, the Company has the right to assume that each Client and/or End-User accessing the Product through the Product registration has accepted the change to this Agreement, unless such Client and/or End-User notifies the Company to the contrary, no later than thirty (30) days after the amendment comes into force (or the minimum number of days as required under Applicable Law, whichever is greater), that such Client and/or End-User desires to cancel the contract or deregister or unsubscribe from access to the Product.
The Company will post the most current terms to this Agreement conspicuously within the Product and the Client and/or End-User’s use of the Product will be subject to the most current terms as posted on the Product at such time. It is the Client and/or End-User’s responsibility to visit this page to find any updates that may have been made to the Agreement. Each Client and/or End-User hereby agrees that the Company shall not be liable to such End-User for any amendments to the Agreement.
3. PAYMENT TERMS
All payments shall be made and managed through a third-party payment service provider or Distribution Platform utilized by the Company. We will notify the Client and/or End-User of any price changes in accordance with the Amendment provision set out below ("Payment Method"). The Product may be available for use free of charge if a free trial period is offered to the Client and/or End-User at the Company's discretion and upon written agreement. In the event a free trial period is offered, the Client and/or End-User shall be required to provide a Payment Method and will not be charged unless otherwise set out in section 4 (Suspension and Termination). Payment from Client and/or End-Users will be due upon registration or delivery of an electronic invoice from the Company to the Client and/or End-User, as applicable, and such payment shall be processed through a third-party payment service provider subject to the terms herein. If there are any paid components of the Product, any amounts payable by the Client and/or End-User hereunder which remain unpaid thirty (30) days after an invoice is delivered shall bear interest at the rate of one (1%) percent per month (up to a maximum of twelve (12%) percent per annum, or the maximum amount allowable by law, such interest to be calculated on a daily basis from the date that the payment first becomes overdue until the date payment is made in full. It is solely the Client's and/or End-User's responsibility to ensure and determine the eligibility of any amounts payable with their insurance company. Certain insurance companies offer direct billing. The Client and/or End-User may submit insurance claims directly to their insurance company or provide the Company with direct billing information for their insurance company if the company offers direct billing. It is the Client's and/or End-User's responsibility to ensure that such direct billing information is accurate and up to date. In the event that the Client and/or End-User debit or credit card information cannot be processed on the date of payment due, the Company may at the Company’s discretion, periodically attempt to process payment.
All payment is exclusive of any taxes or duties imposed by applicable tax laws in each Client’s and/or End-User’s tax jurisdictions, and the Company will not be responsible for any taxes or duties owed by the Client and/or End-User.
4. SUSPENSION AND TERMINATION
Client and/or End-Users may terminate their relationship with the Company by notifying the Company via email at firstname.lastname@example.org The Client acknowledges that more than one End-User may be registered on behalf of the Client who are not responsible for payment, and therefore that services provided by the Product and the applicable fees shall continue until the Client has notified the Company of the Client’s desire to unsubscribe from the Product, to close all End-User accounts associated with the Client, and to cease the Client and End-User’s use of the Product.
In the event that there is a time-limited period of free access and/or a trial period, Clients and End-Users acknowledge that the free trial period lasts for 30 days, or as otherwise specified during sign-up. Free trials are for new and certain former members only. The Company reserves the right, in its absolute discretion, to determine your free trial eligibility. The Company will begin billing your Payment Method for monthly Membership Fee at the end of the free trial period of your membership unless you cancel prior to the end of the free trial period.
The Company may suspend provision of the Product in the event that the Client and/or End-User fails to make any payment when due hereunder, the Client ceases to carry on its business in the normal course, or if an event of Prohibited Use (as described in Schedule “C” to this Agreement) occurs, or if Client or End-User is in material breach of the Agreement. Suspension shall have no effect on the payment obligations of the Client and/or End-User during the Agreement Term or Renewal Term. A suspension event shall be included in the definition of Client and/or End-User material breach. The Client and/or End-User agrees to pay the Company’s reasonable expenses, including lawyer and collection agency fees, incurred in enforcing the Company’s right to payment.
At the Company’s discretion, the Company may terminate this Agreement immediately at any time and for any reason including, but not limited to:
a) an End-User or Client material breach of this Agreement, including failure to make payments when due;
b) in the event that amounts payable by the End-User remain unpaid thirty (30) days after an invoice is delivered, the Company may terminate the End-User’s subscription to the Product;
c) if the Client and/or End-User has not adhered to any or all the provisions of the Agreement (such as a failure to pay fees when due) or if it appears that the Client and/or End-User does not intend to or is unable to comply with the Terms, such determination to be made solely at the Company’s discretion;
d) for prolonged inactivity of any unpaid accounts if the Client and/or End-User has not logged into the End-User’s account for a period greater than 1 year. ;
e) if the Company is required to terminate the relationship by law;
f) if the Company receives any notice of or discovers any event of Prohibited Use;
g) if provision of the Product is no longer commercially viable for the Company; and/or
Upon termination of this Agreement with the Client and/or End-User, the Company immediately revokes the End-User’s license and/or the Client’s license, respectively, to use the Product and may block all access to the End-User’s account, and may delete all data and information associated with the End-User’s account for 30 days after such termination.
Warranty Period and Termination:
A Limited Warranty period may be provided to the Client and/or End-User, as described in the Summary of Terms. During this Limited Warranty period, the End-User may terminate this Agreement upon written notice within the Limited Warranty period for any reason. During the Limited Warranty period the Client and/or End-User will receive a refund for any amounts paid. No refunds will be provided for early termination outside of the Limited Warranty period, and the End-User will pay the Fees and Expenses in full for the Product provided by the Company up to and including the last day of the month following the termination date.
5. USE OF THE PRODUCT
In order to use the Product, the Client and/or End-User must register using the Company’s registration page located within the app or on the Company's website. The End-User understands and agrees that a representative of the Client’s organization may register the End-User for an account.
The End-User agrees and understands that the End-User is responsible for maintaining the confidentiality of the End-User’s password, which, together with the End-User’s name and e-mail address (“User ID”), allows the End-User to access the Product. The End-User ID and password, together with any other contact information the End-User provides the Company at the time of signing up for the Product comprise the End-User’s “Registration Information.” The End-User agrees that all Registration Information provided to the Company will be accurate and up-to-date. The End-User agrees to keep the End-User’s password secure. The Company will not be liable if the Company is unable to retrieve or reset a lost password. If the End-User becomes aware of any unauthorized use of the End-User’s password or account, the End-User agrees to notify the Company via e-mail at email@example.com as soon as possible.
The Client and/or End-user may not open an account if the Client and/or End-User is a competitor of the Company, as determined in the Company's discretion. The Company reserves the right to terminate without notice any accounts it determines, in its sole discretion, to be associated with a competitor and may take legal action against the competitor company.
The Client and/or End-User agrees to use the Product only for purposes that are permitted, both by the Agreement and by any applicable law, regulation, or generally accepted practices or guidelines, in relevant local, national, and international jurisdictions. The Client and/or End-User agrees to adhere to any applicable privacy of personal information laws and regulations.
The Client and/or End-User agrees to only access (or try to access) and use the Product through interfaces provided by us. The Client and/or End-User shall not access (or try to access) and use the Product through any automated means, including, but not limited to, scrapers, scripts, robots, or web crawlers. The Client and/or End-User agrees not to use or attempt to use another End-User’s account. The Client and/or End-User agrees not to impersonate any person or entity, or falsely state or otherwise misrepresent the Client and/or End-User, the Client and/or End-User’s personal information, or the Client and/or End-User’s affiliations with any person or entity.
Moderation of content created by the End-User
The Client and/or End-User understands and agrees that although the Company is not required to moderate the End-User’s use of the Product, it may in its sole judgment review and delete any content in whole or in part, for any reason whatsoever, which without limitation, violate this Agreement or which might be objectionable, offensive, indecent, illegal, or that might violate the rights, harm, or threaten the safety of others.
Objectionable content created by others
The Client and/or End-User understands that when using the Product, the End-User may come across material that the End-User finds objectionable, offensive or indecent and agree that the End-User is using the Product at the End-User’s own risk. The End-User may alert the Company by using the support contact information contained herein.
The Client and/or End-User agrees that the Client and/or End-User is solely responsible for any breach of the End-User’s obligations under the Agreement and for the consequences of any such breach. The Company has no responsibility to the Client and/or End-User or to any third party for such breaches or the consequences of such breaches (including losses or damage that we may incur).
Use of the Product requires internet access through the End-User’s device. The End-User may be required to have the most up-to-date operating system to use the Product, and some features of the Product may not be accessible with such technologies disabled.
User Responsibility for Equipment
The End-User agrees to be responsible for obtaining and maintaining any software, browsers, hosting services, other equipment and ancillary services needed to connect to, access or otherwise use the Product.
7. THIRD PARTY LINKS
The Product may link to third-party websites and/or resources. Such links are provided as a convenience to the End-User only and do not imply an endorsement, warranty or guarantee by the Company of any such linked website or the company it purports to represent. The Company does not assume any responsibility or liability for the availability or accuracy of such links, and/or the content products or services provided at the destinations of such links. The Client and/or End-User is solely responsible for use of any such websites or resources and compliance with their policies. Should the End-User elect to enter into a binding contract with any such third party website and/or resource, the Client and/or End-User agrees to hold the Company harmless and hereby release the Company from any liability whatsoever, whether arising out of contract, tort or otherwise, for any liability, claim, injury, loss or damage suffered as a result of the Client and/or End-User’s actions or the actions of any Client and/or End-User associated with the Client and/or End-User’s account, offering to accept or having accepted any products or services that are available from those sites.
8. INTELLECTUAL PROPERTY AND RIGHTS
Rights to content provided by us
The Client and/or End-User acknowledges and understands that we own all right, title and interest in: (a) the Product and all improvements, enhancements or modifications thereto; (b) the Product and any associated data files; and (c) all computer software; advertisements; sponsored content; and intellectual property associated with the Product (all such information, individually and collectively, being the “Product Content”), which the Client and/or End-User may have access to when using the Product.
Subject to the provisions hereof respecting confidentiality and intellectual property, the Company shall be free to use any ideas, concepts or know-how developed or acquired by the Company during the provision of the Product under this Agreement to the extent obtained and retained by the Company’s personnel as impressions and general learning (the “Know-How”). Nothing in this Agreement shall be construed to preclude the Company from enhancing the Product based on the accumulation of Know-How.
The Client and/or End-User is not required to provide the Company with any comments, suggestions, recommendations, bug reports, requests or any other feedback (“Feedback”). In the event that the Client and/or End-User do provide the Company with Feedback, the Company may use such feedback to improve the Product or for any other purpose. Furthermore, the Company shall own such Feedback and the Company and its affiliates, licensees, clients, partners, third-party providers and other authorized entitled may use, license, distribute, reproduce and commercialize the Feedback, and the Client and/or End-User hereby assigns, irrevocably, exclusively and on a royalty-free basis, all such Feedback to the Company.
The Company hereby grants the Client and/or End-User a non-exclusive, non-transferable, revocable, limited license to use the Product in accordance with this Agreement and the License Restrictions set out in the Summary of Terms. This limited license is subject to full payment of the Fees when due. This license may be revoked by the Company upon breach of this Agreement by the Client and/or End-User and shall automatically be revoked upon termination or expiration of this Agreement.
The Company may, now or in the future, own rights to trade-marks, trade names, services marks, logos, domain names and other distinctive brand features which we use in connection with the operation of the Product (each such feature being a “Brand Right” and collectively being the “Brand Rights”). The Company does not grant the Client and/or End-User any right or license to use any Brand Right other than as expressly set out in this Agreement and in other licenses between the Client and/or End-User and the Company.
Licence to Brand Marks
The Company and Client and/or End-User agree and understand to grant to each other a perpetual, non-exclusive, royalty-free licence to use one another’s name, logos, and/or trademark (individually and collectively described as the “brand”) for the purposes of any press release, advertising, webpage, blog or other promotional, advertising or marketing material so long as no confidential information is disclosed, and such license shall be revocable upon written notice provided in the other in the brand owner’s sole discretion, such discretion to be reasonably exercised. None of the parties shall not do or allow to be done any act or thing that will in any way impair the rights of the other party’s brand.
9. LIMITATION OF LIABILITY
The Client and the End-Users representing such Client individually and collectively hereby agree to release, remise and forever discharge the Company and the Company’s directors, employees, officers, and the Company’s affiliates, partners, service providers, vendors, and contractors and each of their respective agents, directors, officers, employees, and all other related persons or entities from any and all manner of rights, losses, costs, claims, complaints, demands, debts, damages, causes of action, proceedings, liabilities, obligations, legal fees, costs and disbursements of any nature whatsoever, and for any special, indirect or consequential, incidental or exemplary damages, including but not limited to damages for loss of profits, goodwill, use data, or other intangible losses (collectively, a “Claim”), whether in contract or tort, whether known or unknown, which now or hereafter arise from, to the maximum extent allowed by law, that relate to, any use of the Product whatsoever. THE CLIENT AND END-USER ACKNOWLEDGES AND AGREES THAT: (A) THE PRODUCT IS TO BE USED “AS-IS”, WITH NO WARRANTIES ON FITNESS FOR THE PURPOSE, MERCHANTABILITY OR OF ANY OTHER KIND, WHETHER EXPRESSED OR IMPLIED; AND THE END-USER ACKNOWLEDGES, AGREES AND UNDERSTANDS THAT THE END-USER USES THE PRODUCT AT THE END-USER’S OWN RISK; (B) THE COMPANY IS HEREBY RELEASED FROM ANY AND ALL LIABILITY FOR USE OF THE PRODUCT; AND (C) THE CLIENT AND END-USER HAS REVIEWED THE FOLLOWING LIST OF POTENTIAL EVENTS SPECIFICALLY DISCLAIMED AS EXAMPLES FOR WHICH THE CLIENT AND END-USER HAS SPECIFICALLY RELEASED THE COMPANY FROM ANY AND ALL LIABILITY FOR (AMONG OTHERS):
For non-Product failures: responsibility for any failure of, or damages to, any hardware devices, equipment or networks or internet access, content or data, or third-party applications used by the Client and/or End-User in connection with the Product;
For communication failures or Product downtime: whether due to maintenance or other reasons, any error, inaccuracy, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Product content, End-User User Data, use of Product and/or any communications between the End-Users and the Product;
For loss of access as a result of failure to receive payment: account suspension or termination as a result of the End-User’s insufficient funds to make payment or payment processing issues that are beyond the Company’s control (such as but not limited to, power outages, interruptions of cellular service, overzealous fraud protection rules applied by the User’s payment card brand or acquirer bank, or any other interface from an outside force);
For content inaccuracy: any inaccuracy in content and/or recommendations by the Company in the Company content and/or the End-User and/or Client User Data, and the Client and End-User is responsible for ensuring that that the information entered into the Company’s system by such End-User is accurate, reliable and complete, and agrees that the provision or storage of End-User Data through the Product does not constitute the Company’s endorsement or warranty as to the accuracy of such content;
For compliance with law: the compliance of such End-User Data with applicable legislation including privacy legislation, and Client and End User agree that the provision or storage of End-User Data through the Product does not constitute the Company’s endorsement or warranty as to compliance with laws;
For online discussions: responsibility or liability for any user-generated commentary including but not limited to user posts, interactions between users, interaction between users and Company employees, ratings or reviews of the Client and/or End-User and/or an employee of a Client and/or End-User posted to the Product, or any consequences as a result of the ratings or reviews of an employee, including but not limited to termination of an employee, and ratings and reviews posted to the Product DO NOT reflect the Company’s views;
For Health Care Provider engagements: The Health Care Provider is solely responsible for the information provided during any counseling session. The Company does not support, endorse or certify whatsoever any information provided during any Health Care Provider-User engagement The Company shall not be liable whatsoever for any damages that may arise resulting from any and all Health Care Provider-User engagements.
For monitoring: liability for monitoring the Product or for unauthorized or unlawful content on the Product or use of the Product by any of the Product’s Client and/or End-User;
For non-infringement: direct or indirect, express or implied representation or warranty as to title and non-infringement of intellectual property in relation to the Product.
For processing of content: liability for any damages that may arise by the Client’s use and/or direct or third-party processing of Client and/or End-User Data, and the Client and/or End-User further agrees and acknowledges that the Company is not liable for any damages that may arise if Client and/or End-User Data is misdirected in error, subject to, subject to the Company’s legal requirements relating to the protection of personal information under Applicable Law;
For communications directly or through the Company’s Product: liability for any damages that may arise for communications received to the Client and/or End-User through the User’s access to the Product and/or for the posting of information on the Product, Website, blog, account or any affiliated social media, including but not limited to, Client and/or End-User Data, pictures, written reviews, personal information, psychometric scales and/or comments made from the End-User’s personal point of view;
For unauthorized activities: unauthorized activities directed towards the Product or its Client and/or End-Users including identity theft, fraud or unauthorized access; viruses, denial of service attacks, and any items that are included in the definition of Prohibited Use as set out as Schedule “C” to this Agreement;
For force majeure: any force majeure event as described in this Agreement and/or any matter beyond the Company’s reasonable control;
For health content: any services provided by any health professional, therapist or merchant who has provided any content for the Company Product or in any Company Social Media Properties;
(o) For actions of health professionals: the activities or actions, legal or otherwise, of any health professional, therapist or merchant who has provided any content or advertising for the Company Product or in any Company Social Media Properties;
(p) For complaints of health professionals: all complaints/disputes relating to the quality of health professionals or therapists or any other merchant’s products/services;
(q) For claims or disputes made by health professionals: inquiries/claims/disputes regarding payment processing, payments or refunds made via health professionals or therapists or merchant accounts through the Company Product; and/or
(r) For reliance on content: your reliance on any content contained in the Company Product or in any Company Social Media Properties.
In the event that there is a finding of liability pursuant to the dispute resolution provisions of this Agreement that is contrary to the foregoing, the Client and End-Users agree that such damages shall be limited in the aggregate for all Claims related to all of the End-Users registered on behalf of a Client and the Client itself (individually and collectively, the Claimants) to the fees or charges which the Claimants have paid for the Product, if any, in the previous invoice for the services giving rise to the claim, whether or not any or all of the Claimants have been advised of the possibility of such damages or such Claim was reasonably foreseeable and notwithstanding the sufficiency or insufficiency of any remedy provided for herein.
To the extent permitted by applicable laws, the Client and/or End-User agree that the Client and/or End-User will defend, indemnify and hold harmless the Company and the Company’s officers, directors, shareholders, employees, agents and representatives, from and against any and all damages, judgments, liability, costs and expenses (including without limitation any reasonable legal fees), in whole or in part arising out of or attributable to: (a) generally, for the Client and/or End-User’s breach of this Agreement; the End-User’s access to and/or use of the Product; and any loss of, or damage to, any property, or injury to, or death of, any person (including the Client and/or End-User) caused by the Client and/or End-User’s access to and/or use of the Product; and (b) specifically, for the End-User’s breach of the intellectual property rights of any third party to this Agreement; and/or (c) for any Prohibited Use.
The Client and/or End-User agrees that the Client and/or End-User will be solely responsible for all activities that occur under the End-User’s account, whether the End-User is aware of them or not. The Client and/or End-User agrees to hold the Company harmless and release the Company from any loss or liability whatsoever that the Client and/or End-User may incur as a result of someone other than the Client and/or End-User using the Client and/or End-User’s password or account, either with or without the Client and/or End-User’s knowledge. The Client and/or End-User agrees to indemnify the Company for any damages, third party claims or liabilities whatsoever that the Company may incur as a result of activities that occur on or through the Client and/or End-User’s account, whether or not the Client and/or End-User were directly or personally responsible.
11. GOVERNING LAW AND FORUM OF DISPUTES
The Client and/or End-User agree that the laws of the province of Ontario and the federal laws of Canada as applicable therein, without regard to the principles of conflict of laws (“Applicable Law”), will govern this Agreement and any dispute of any sort that may arise between the Client and/or End-User and us. With respect to any disputes or claims, the Client and/or End-User agree not to commence or prosecute any action in connection therewith other than in the province of Ontario, and the Client and/or End-User hereby consent to and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the provincial courts of Ontario. The Client and/or End-User agree to pay reasonable attorneys' fees and court costs incurred by the Company to collect any unpaid amounts owed by the Client and/or End-User.
Other than in the event of a dispute, in which case the apportionment of expenses shall be determined pursuant to the dispute resolution rules, each Party shall be responsible for its own legal fees and other expenses incurred in connection with the negotiation of these terms (if any) and the performance of any of such Party’s obligations hereunder.
13. FORCE MAJEURE
The Client and/or End-User agree that the Company are not liable for a delay or failure in performance of the Product or the provisions of this Agreement caused by reason of any occurrence of unforeseen events beyond the Company’s reasonable control, including but not limited to, acts of God, natural disasters, power failures, server failures, third party service provider failures or service interruptions, embargo, labour disputes, lockouts and strikes, riots, war, floods, insurrections, legislative changes, and governmental actions.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
The insertions of headings are for convenient reference only and are not to affect the interpretation of this Agreement.
16. ASSIGNMENT OF AGREEMENT
The Client and/or End-User may not, without the Company’s prior written consent, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Company may assign this Agreement to a third party at any time in the Company’s sole discretion. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
The Client and/or End-User agrees that if the Company does not exercise or enforce any legal right or remedy which is contained in this Agreement or which the Company has the benefit of under any Applicable Law, this will not be taken to be a formal waiver of the Company’s rights and that those rights or remedies will still be available to us. Waivers must be in written form and signed by an authorized representative of the Company.
18. SURVIVAL OF AGREEMENT
All covenants, agreements, representations and warranties made in this Agreement shall survive the End-User’s acceptance of this Agreement and the termination of this Agreement.
19. ENTIRE AGREEMENT
By providing the Company with the End-User’s e-mail address, whether provided directly by the End-User or by the Client on behalf of the End-User, the End-User agrees to receive all required notices electronically, to that e-mail address or by mobile notifications via the Product. It is the End-User’s responsibility to update or change that address, as appropriate.
If the Client and/or End-User have any questions or comments regarding this Agreement, please contact the Company’s head office by email at firstname.lastname@example.org.
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Product Scope and Features
The Product, is limited to the following features and License Restrictions contained in the version available during the Initial Term and subsequent Renewal Terms, and includes:
Automated data intake/capture;
Clinical workflow tools; and
the ability to submit feedback to improve Product's offerings.
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The Client and/or End-Users may use the Product only for lawful purposes, and may not use the Product in any manner that:
breaches any applicable local, national or international law or regulation;
may in any way be considered harassment to another person or entity;
may in any way be unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
may in any way damage, disable, overburden, and/or impair the Product server, or any network connected to the Product server, and/or interfere with any other party’s use or enjoyment of the Product;
is in any way abusive, defamatory, misleading, fraudulent, pornographic or otherwise explicit in nature or written in bad faith;
harms or attempts to harm minors in any way;
will abuse either verbally, physically, written or other abuse (including threats of abuse or retribution) of any Product customers, employees, contractors, subcontractors, members, or officers;
will cause sensitive personal information records of any individual (including, but not limited to, credit card information, personal health records, military information, and passport information) to be attained or used illegally or in an unauthorized manner;
will decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying the Product;
will modify, rent, lease, loan, sell, distribute or create any derivative products or services (or parts of services products or services) based on the Product Content that the End-User does not own or to which the End-User has rights, or to create derivative works based on the Product;
will infringe upon the Company’s intellectual property or adapt, reproduce, publish or distribute copies of any information or material found on the Product in any form (including by e-mail or other electronic means), without the Company’s prior written consent;
is for the benefit of or permit a third party, who is not a registered End-User, to use the Product;
will attempt to gain unauthorized access to, or disrupt the integrity or performance of the Product or the data contained therein;
will use the Product to upload, post, link to, email, transmit, or otherwise make available any material that 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 any telecommunications equipment
will the post or distribute any computer program that damages, detrimentally interferes with, surreptitiously intercepts, or expropriates any system, data, or personal information
will disrupt the functioning of the Product, in any manner; and/or
in the event that the Product is being used on a mobile device, shall not be used in a way that distracts the End-User and/or prevents the End-User from obeying traffic or safety laws,
and any of the foregoing (“Prohibited Uses”) may, once investigated, result in immediate account termination for an End-User account and agreement and/or termination of an agreement with the Client who has registered the account for such End-User.
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