Life Support Mental Health Inc. (Life Support)
In addition to any specified terms defined elsewhere in these ToU, the following words capitalized in these ToU shall have the meanings set forth below:
1.1 “Account” means the unique, individual Life Support patient account created for You to enable your access to and use of the Services upon completion of the Account registration process.
1.2 “Account Credentials” means your Account access credentials, including your user ID and password. You are responsible for the creation, use and termination of, and for maintaining the confidentiality of your Account Credentials at all times. You must immediately notify Life Support of any unauthorized use of your Account or Account Credentials that You suspect or become aware of, or any other breach of security relating to the Services and the Site known to or suspected by You. Your Account and Account Credentials cannot be shared or used by any party other than You and Life Support is not responsible for any unauthorized access to your Account or Account Credentials even if You have advised Life Support of such. You are responsible for all activities that occur under your Account or Account Credentials, whether or not such activities have been authorized by You. Life Support reserves the right, but does not assume the obligation, in its sole discretion, to change or disable your Account or Account Credentials where Life Support suspects there has been an attempted or actual security breach or to ensure the security of the Platform.
1.3 “Force Majeure” means the occurrence of an event or circumstance (“Force Majeure Event”) that prevents or impedes a party from performing one or more of its obligations under the terms of this Agreement, but does not include lack of finances or inability to perform because of a party’s financial condition, if and to the extent that the party affected by the impediment (the “Affected Party”) proves:
a) That such impediment is beyond its reasonable control; and
b) That it could not reasonably have been foreseen at the time of the conclusion of the Agreement; and
c) That the effects of the impediment could not reasonably have been avoided or overcome by the Affected Party acting in a commercially reasonable manner.
In the absence of proof to the contrary, the following events affecting a party shall be presumed to fulfil conditions (a) and (b) above, and the Affected Party only needs to prove that condition (c) is satisfied:
a) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilization;
b) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage, or piracy;
c) Malicious Code or other malicious software attacks, system intrusion, or cyber-attack;
d) currency and trade restriction, embargo, sanction;
e) act of authority whether lawful or unlawful, compliance with any applicable law or governmental order, expropriation, seizure of works, requisition, nationalization;
f) plague, epidemic, natural disaster, or extreme natural event;
g) explosion, fire, destruction of equipment, interruption or break-down of transport, internet, telecommunication, information system or energy; or,
h) general labour disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises.
Whether similar or dissimilar to any of the foregoing
1.4 “Life Support” means Life Support Mental Health Inc., an Alberta corporation with a registered and records office at Suite 1100, 225 – 6th Avenue S.W., Calgary, Alberta T2P 1N2.
1.5 “Mental Health Check Assessment” means any mental health assessment made available to Patients for use or completion on the Platform.
1.6 “Mental Health Check Assessment Fee” means any fee charged to You directly, or indirectly through your health insurer, for access to a Mental Health Check Assessment made available on the Platform. Life Support, acting in its sole discretion, may change the fee from time-to-time to reflect prevailing market conditions and demand for a Mental Health Check Assessment or other similar services. You, collectively with your health insurer (where applicable), are responsible for payment of any Mental Health Check Assessment Fee due in advance of and in relation to your access to Life Support’s online Mental Health Check Assessment Service. In any event, You are solely responsible for payment of any or all amounts owing in respect of the Mental Health Check Assessment Fee, including any amounts submitted to but not paid by your health insurer.
1.7 “Mental Health Check Assessment Service” means provision on the Platform of a Mental Health Check Assessment made available by Life Support for access and use by You and your designated Practitioner. Life Support does not provide the practitioner review and Practitioner is not an employee of Life Support.
1.8 “Payment Services” refers to any payment services provided by the Third-Party Payment Processor and made accessible through the Platform by Life Support for use by Life Support or You for the purpose of processing the payment of any fees or other amounts related to your use of the Services. Any access to and use of Payment Services shall be governed by and in accordance with the Third-Party Payment Processor’s terms and conditions and policies.
1.9 “Permitted Purpose” means the assessment and treatment of You.
1.10 “Personal Information” means personal information that identifies You and includes your personal health information (as defined by applicable law).
1.11 “Platform” means Life Support’s proprietary on-line Mental Health Check Assessment portal.
1.12 “Practitioner” means a licensed or certified medical or mental health practitioner utilizing the Services for the Permitted Purpose.
1.13 “Referee” means a Practitioner that offers psychotherapy services and has subscribed and consented to participate in Life Support’s Referral Service.
1.14 “Referral Service” means any service made available by Life Support to a Referee that serves to facilitate a request for referral to that Referee.
1.15 “Services” means the Platform and any Mental Health Check Assessment Service, Referral Service, Virtual Services, Third-Party Services or Payment Services, individually or collectively as the context may require, offered by Life Support to the User.
1.16 “Site” means Life Support’s website at https://lifesupport247.com
1.18 “Virtual Services” means any subscription-based web and/or mobile based solutions hosted and supported by the Virtual Services Provider and utilized by your Practitioner for the Permitted Purpose. Your Practitioner, at their option, may subscribe for access to Virtual Services to provide both You and your Practitioner access to additional functionality including, but not limited to, secure video conferencing, instant messaging, secure file sharing, interactive forms, and online scheduling. There is no cost to You for use of Virtual Services when utilized by your designated Practitioner.
1.20 “User” means You or a Practitioner, either individually or collectively, and interchangeably as the context may require.
1.21 “You” means you, an individual invited by a Practitioner to create an Account, or an individual that has ‘self-referred’ for an Account to access the Platform, for the purposes of completing a Mental Health Check Assessment and to specially interact with a Practitioner, to select a Referee, or to view, visit, post, or comment on select User Data, all in furtherance of the assessment and treatment of the individual.
2. LIFE SUPPORT SERVICES.
2.1 Services Description. The Platform is a proprietary online portal that hosts Life Support’s Mental Health Check Assessment Services and Referral Services among other services and functionality that collectively comprise Life Support’s service offering. The Platform and Life Support’s Services are designed and provisioned to allow medical and mental health professionals who have a subscription to use the Platform and Services to assess and treat their patients and interact online in a private, convenient environment. Certain Services offered on the Platform, including Life Support’s Mental Health Check Assessment Service, may require the payment of fees by You. Fee based services will be displayed on the site along with detailed information where applicable.
2.3 Restrictions. You will not, directly or indirectly: (a) access or use the Services, except for the Permitted Purpose; (b) allow any third-party to access the Services, except as expressly permitted herein; (c) contravene any applicable laws relating to acceptable online conduct, behaviour, usage, or content; d) modify, adapt, alter or translate the Services; (e) sublicense, lease, sell, resell, rent, share, loan, distribute, transfer or otherwise commercially exploit the Services or allow the use of the Services on behalf of or for the benefit of any third-party; (f) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (g) create derivative works based on the Services or access or use the Services to develop or create a competitive service or product; (h) attempt to circumvent any security device or feature of the Services; (i) load or penetration test the Services; (j) use automated devices (such as robots or spiders) to scrape or index the Services or User Data or record or mine User Data pertaining to other another User; and (k) use the Services to store or transmit any virus, worm, trap door, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, or to erase or otherwise harm a party’s software, hardware, systems or data (“Malicious Code”).
2.4 Life Support Rights. Life Support reserves the right at all times, without obligation, to remove or refuse to distribute any User Data on the Site and/or Platform and to terminate or reclaim User Accounts. Life Support also reserves the right, where permitted by law, to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce the Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to User support requests, or (e) protect the rights, property or safety of its Users and the public. For greater certainty, Life Support will fully cooperate with any legal obligation to disclose the identity of anyone posting threatening, libelous, obscene, pornographic, profane, or otherwise offensive or illegal materials. You acknowledge that You alone are responsible for the User Data that you post to the Services and the consequences thereof.
2.5 Life Support Responsibilities. Life Support will: (a) provide You the support services set out in the Technical Support Policy (“Support Services”); (b) make the Platform available to You in accordance with the Agreement and Life Support’s Service Level Agreement (“SLA”); (c) provide the Services in accordance with laws and government regulations applicable to Life Support in its provision of the Services.
2.6 Your Responsibilities. You will: (a) ensure that any and all access to and use of the Platform is in compliance with the Agreement and all laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to You (including applicable privacy, data protection and anti-spam laws); (b) provide the information and assistance (if any) required to enable Life Support and your designated Practitioner to provide the Services to You; and, (d) provide all telecommunications or computer network hardware or network services required by You to access the Services.
3. THIRD-PARTY SERVICES. Life Support or third parties may make available to You for purchase, subscription, access, or use, certain third-party software services, applications or functionality, including Virtual Services, that link to, interoperate with, are used in conjunction with, or are incorporated into and delivered through the Platform (“Third-Party Services”). You acknowledge and agree that Life Support does not own or control such Third-Party Services and that the Third-Party Services are provided as a convenience only. While Third-Party Services may be bundled as part of Life Support’s service offering, they are not subject to any of the warranties (whether express or implied), service commitments or other obligations that apply to Life Support’s provision of the Services hereunder. MOREOVER, THE THIRD-PARTY SERVICES PROVIDERS ARE NOT PARTNERS, AGENTS OR REPRESENTATIVES OF LIFE SUPPORT AND IT IS UP TO YOU TO DECIDE WHETHER TO USE OR ENABLE THESE THIRD-PARTY SERVICES AND YOU MUST RELY ON YOUR OWN SKILL AND JUDGEMENT IN ELECTING TO DO BUSINESS WITH SUCH THIRD PARTIES. Life Support is not responsible or liable to You or the third-party respecting your use of or inability to use or access any Third-Party Services using an application programming interface or in the event of any change, temporary unavailability, suspension or termination of access to an application programming interface which affects availability of the Third-Party Services. Furthermore, Life Support is not responsible or liable for any disclosure, modification, corruption or deletion of User Data resulting from access by, or transmission to, a Third-Party Service and is not responsible or liable for the privacy, security, or integrity of any User Data that is transmitted or transferred out of Life Support’s systems. YOU HEREBY IRREVOCABLY WAIVE, RELEASE, AGREE NOT TO SUE, AND FOREVER DISCHARGE LIFE SUPPORT FROM ALL CLAIMS YOU NOW HAVE OR IN THE FUTURE MAY HAVE AGAINST LIFE SUPPORT WHETHER SUCH CLAIMS ARISE BY CONTRACT, BY TORT, OR IN EQUITY, AND ANY LOSSES YOU MAY SUSTAIN OR INCUR THAT ARISE FROM, OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE THIRD-PARTY SERVICES. Life Support has no obligation to monitor or maintain Third-Party Services and may disable or restrict access to any Third- Party Services at any time without notice. Your direct access to and use of any Third-Party Services, including the availability thereof and uptimes related thereto, is: (a) only subject to the Third-Party Services provider’s terms and conditions; (b) at your own risk; and (c) subject to the relevant Third-Party Services provider’s discretion. Where applicable, You are solely responsible for maintaining appropriate accounts in good standing with the Third-Party Services providers. To the maximum extent permitted by law, Life Support will have no responsibility or liability or other obligation to You for your: (i) use of or inability to use such Third-Party Services, or (ii) export of any User Data to a Third-Party Service, including but not limited to any unavailability of such Third-Party Services, or any Third-Party Service provider’s decision to discontinue, suspend or terminate any Third-Party Services.
4.1 Rights in the Services. Subject to the limited rights expressly granted to You herein: (a) no other rights are granted to You and nothing in the Agreement shall be construed as or deemed to be a grant of, or as an undertaking to subsequently grant any right, immunity, title, license or interest in or to Life Support’s intellectual property rights in the Services, whether by implication, estoppel or otherwise; (b) Life Support owns, retains and reserves all right, title and interest (including all copyright, patent, trade secrets and other intellectual property rights, whether registered or unregistered) in: (i) the Services; (ii) all modifications, improvements, developments, enhancements and derivative works in and to the Services, howsoever created; (iii) any concepts, data, analysis, know-how, methodology, code, designs or other information or materials developed or created by or for Life Support and all intellectual property rights therein, even if on the request of or based on any User Data or any suggestion, idea or feedback from You, and in such case Life Support shall have no duty to account to You whatsoever.
4.2 Rights in the User Data. As between the parties, You own all right, title and interest in the content, information, materials, and data collected on, submitted, uploaded to, shared or created by You when using the Platform (the “User Data”). You are solely responsible for the accuracy, completeness, suitability, quality, and legality of all User Data. Should Life Support deem any User Data either to be in breach of the Agreement or to be reasonably expected to constitute grounds for Life Support’s exposure to regulatory, civil or criminal liability, Life Support reserves the right acting in its sole discretion, but does not assume the obligation, to remove such User Data from the Platform or Services or, if Life Support itself is unable to do so, to request the removal or editing of such User Data by You as Life Support deems necessary (acting in its sole discretion) and You will promptly comply with any such request. You hereby grant Life Support a non-exclusive, worldwide, royalty-free, transferrable (subject to section 11.5), non-sub-licensable right and license to (a) use, host, copy, store, transmit, share, modify, and display the User Data as necessary to exercise its rights and provide the Services hereunder. Without limiting the foregoing, Life Support will treat all User Data as Confidential Information.
4.3 Usage Data/Statistical Data. To deliver, support, develop, test, correct and improve the Services, Life Support may collect, store, analyze and interpret data or other elements associated with or derived from your use of the Services. Life Support will own all rights, title and interests in such information, data, and any computational or aggregated results of such information and data and any know-how derived therefrom. Life Support may use all such information, data and know- how for the performance of similar services to the Services for third parties, provided that it will aggregate and anonymize such information and data so that You or any person cannot be identified as the source of such information or data.
5. CONFIDENTIALITY, PRIVACY AND SECURITY.
5.1 Confidentiality. During your use of the Services, Life Support may acquire from You certain nonpublic Personal Information or other information of a confidential nature, in writing, orally, or any other form (“Confidential Information”). Life Support agrees to take reasonable precautions to protect the Confidential Information against disclosure to any third-party except as expressly permitted in the Agreement or in keeping with any expressed or informed consent you may provide while using the Services. Access to Confidential Information will be limited to those of Life Support’s employees, contractors and agents who need such access for the exercise of Life Support’s rights or the performance of its obligations hereunder, and who owe Life Support an obligation of confidentiality with written terms no less stringent that those set out herein. Confidential Information excludes information that Life Support can reasonably establish by written evidence kept in the normal course of its business: (a) was known to it prior to receiving the same from You, and was not acquired directly or indirectly from You, (b) was rightfully acquired by Life Support from a third-party on a non-confidential basis, so long as the third-party is not, after due inquiry, known by Life Support to be bound by an obligation of confidentiality that was applicable to the information; or (c) is or becomes part of the public domain through no fault or action of Life Support in breach of the Agreement. The foregoing exclusions do not apply to Personal Information. Life Support may disclose your Confidential Information in the event that Life Support is legally required to disclose any of the Confidential Information by a court or government authority having jurisdiction over Life Support. Before making such disclosure Life Support shall, to the extent legally permissible, provide You with prompt written notice of same so that You may seek a protective order or other appropriate remedies. Such written notice shall, to the extent legally permissible, include identification of the particular Confidential Information of yours to be so disclosed and a copy of the order or written requirement from the applicable court or government authority. Except as provided elsewhere in the Agreement, Life Support shall only disclose Confidential Information of yours to the limited extent legally required, in the reasonable opinion of its legal counsel, by the applicable court or government authority.
5.2 Life Support Security Obligations. Life Support will materially adhere to its security processes and policies, and all privacy and data protection laws applicable to Life Support in its provisioning of the Services (if any) subject to your compliance with your obligations hereunder, including pursuant to Section 2.6 (Your Responsibilities), 4.2 (Rights in the User Data) and 5.3 (Your Privacy Obligations).
5.3 Your Privacy Obligations. You hereby agree to assist Life Support with its compliance with all health information, privacy and data protection laws applicable to Life Support and You in connection with your use of the Services, including your provision of consent to the collection, use and disclosure of your Personal Information on the Platform for the Permitted Purpose and in connection with the provision of Services to You by Life Support or your designated Practitioner. Subject to Section 5.1 and to the maximum extent permitted by law, Life Support disclaims any responsibility for the collection, use and/or disclosure of an your Personal Information by any other User.
5.4 Prohibited Data. You will not upload to the Services or otherwise submit or make accessible to Life Support any financial account identifiers (e.g., credit card numbers or bank account numbers), government issued identifiers (e.g., social insurance numbers, health card numbers) or other sensitive Personal Information (“Prohibited Data”), not specifically requested by Life Support as part of the Account registration process, or unless Life Support expressly agrees otherwise. The foregoing shall not apply to health information for which the Services are intended.
5.5 Disclaimer. THE SERVICES (INCLUDING THE THIRD-PARTY SERVICES) ARE PROVIDED “AS IS,” AND LIFE SUPPORT MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, QUALITY, SUITABILITY, ACCURACY, RELEVANCE, COMPLETENESS AND FITNESS FOR A PARTICULAR PURPOSE. LIFE SUPPORT DOES NOT WARRANT THAT THE SERVICES WILL MEET ALL OF YOUR REQUIREMENTS. LIFE SUPPORT DOES NOT WARRANT THAT ALL ERRORS CAN OR WILL BE CORRECTED, OR THAT OPERATION OF THE SITE, PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL PREVENT UNAUTHORIZED ACCESS. LIFE SUPPORT DOES NOT WARRANT THAT THE SERVICES WILL BE COMPATIBLE WITH YOUR COMPUTER SYSTEMS OR ANY INTERNET TECHNOLOGY. LIFE SUPPORT DISCLAIMS ALL FAILURES, DELAYS AND OTHER PROBLEMS INHERENT WITH THE INTERNET AND IS NOT RESPONSIBLE OR LIABLE FOR ANY USER DATA DELAYED, LOST, ALTERED, INTERCEPTED OR STORED DURING THE TRANSMISSION ACROSS NETWORKS NOT OWNED OR CONTROLLED BY LIFE SUPPORT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6.1 By Life Support. Life Support shall indemnify and defend You against any third-party claims brought against You alleging that the use of the Services as permitted hereunder infringes any Canadian copyright, trademark, or patent right of such third-party, and Life Support shall pay any losses, damages, costs, and expenses finally awarded by a court to such third- party or otherwise agreed to in settlement of such claim. If any portion of the Services becomes, or in Life Support’s opinion is likely to become, the subject of a claim of infringement, Life Support may, acting in its sole discretion: (a) procure for You the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that the Services become non-infringing; or (d) terminate the Services, and refund any fees pre-paid by You to Life Support for the Services and You will immediately cease all use of the Services. Notwithstanding the foregoing, Life Support shall have no obligation under this Section 7.1, or otherwise, with respect to any infringement claim based upon any (i) use of the Services not in accordance with the Agreement; (ii) use of the Services in combination with other products, equipment, software, information or data (including User Data) not supplied by Life Support; or (iii) modification of the Services by any person other than Life Support or its authorized agents. This Section 7.1 states your sole and exclusive remedy and the entire liability of Life Support, and any of the officers, directors, agents, employees, contractors, shareholders, affiliates, subsidiaries, third-party partners or representatives of Life Support, and their respective successors and assigns, for claims described in this Section 7.1.
6.2 By You. You shall defend and indemnify Life Support and its officers, directors, agents, employees, contractors, shareholders, affiliates, subsidiaries, third-party partners or representatives of Life Support, and their respective successors and assigns, against any third-party claims brought against Life Support (a) alleging User Data infringes the intellectual property, privacy or other rights of such third-party; (b) alleging breach of any of Sections 2.3 (Restrictions), 2.6 (Your Responsibilities), and 5 (Confidentiality, Privacy and Security); (c) arising from or in relation to your access to or use of the Services (including with respect to any goods or services that a Practitioner or third-party may make available to You via the Platform or otherwise); (d) alleging your use of the Services, other than as authorized in the Agreement, violates applicable law or infringes the intellectual property, privacy or other rights of such third-party.
6.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party promptly notifying the indemnifying party in writing of any threatened or actual claim, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (b) the indemnifying party having sole control of the defense or settlement of any claim or suit (provided the indemnifying party may not settle any claim without the indemnified party’s consent unless it unconditionally releases the indemnified party of all liability); and (c) the indemnified party (at the indemnifying party’s expense) reasonably cooperating with the indemnifying party to facilitate the settlement or defense of any claim.
7. LIMITATION OF LIABILITY.
7.1 Life Support does not endorse and does not take any responsibility for the content or links accessible through Third-Party Services. Third-Party Services may contain third-party content and links and Life Support’s officers, directors, agents, employees, contractors, shareholders, affiliates, subsidiaries, third-party partners or representatives of Life Support, and their respective successors and assigns, do not have any responsibility or liability for, nor do they, unless explicitly stated on the Services, recommend or endorse any information or brand of products or services that may be available through
such content or links. Life Support may remove any link to Third-Party Services from the Platform without notice.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LIFE SUPPORT AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, CONTRACTORS, SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, THIRD-PARTY PARTNERS OR REPRESENTATIVES OF LIFE SUPPORT, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY DIRECT, SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGES: (I) CAUSED BY RELIANCE ON PRACTITIONERS OR MEDICAL OR MENTAL HEALTH CARE PROVIDERS ADVICE OR FAILURE TO SEEK APPROPRIATE MEDICAL OR MENTAL HEALTH SUPPORT INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, DEATH, IMPROPER DIAGNOSIS, INACCURATE INFORMATION OR IMPROPER TREATMENT UNLESS SUCH HARM IS CAUSED BY THE NEGLIGENCE OF LIFE SUPPORT OR ITS EMPLOYEES; OR (II) OTHER LOSSES INCURRED IN CONNECTION WITH YOUR USE, MISUSE OR RELIANCE UPON THE SERVICES OR THEIR CONTENT, OR YOUR INABILITY TO USE THE SERVICES, ANY LOSS OF DATA REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER LEGAL THEORY WHATSOEVER, OR OTHERWISE. THE FOREGOING LIMITATION SHALL APPLY EVEN IF LIFE SUPPORT KNEW OF OR OUGHT TO HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
7.3 LIFE SUPPORT’S MAXIMUM AGGREGATE LIABILITY TO YOU AS A RESULT OF ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY YOU TO LIFE SUPPORT HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE FIRST EVENT GIVING RISE TO THE LIABILITY OCCURRED.
7.4 NOTHING IN THIS SECTION 8 WILL OPERATE TO EXCLUDE OR RESTRICT LIFE SUPPORT’S LIABILITY (IF ANY) TO YOU FOR ANY MATTER FOR WHICH IT IS NOT PERMITTED BY LAW TO EXCLUDE OR LIMIT ITS LIABILITY, INCLUDING FOR DEATH OR PERSONAL INJURY RESULTING FROM LIFE SUPPORT’S NEGLIGENCE.
7.5 THIS LIMITATION UPON LIABILITY SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.1 Termination. Either party’s rights and obligations under the Agreement shall terminate, effective immediately, if the other party: (a) where curable, fails to cure any material breach of the Agreement within thirty (30) days after written notice of such breach; (b) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within thirty (30) days thereafter). If the breach is not susceptible to cure, then the non-breaching party’s obligations under the Agreement shall terminate with immediate effect upon ten (10) days written notice of such breach. For greater certainty, “material breach” shall include a violation of applicable law, infringement or misappropriation of the intellectual property or privacy rights of the other party or any third-party. Failure to attain service levels as stated in the SLA shall not constitute a breach of the Agreement. In any event, Life Support’s obligations under the Agreement shall automatically expire twelve (12) months following the last use or access of the Platform or Services from your Account at which time the Agreement shall expire.
8.2 User Data Deletion., Life Support will have no obligation to maintain or provide the User Data associated with your Account beyond thirty (30) days following the termination or expiry of its obligations under the Agreement. Following this thirty (30) day period, Life Support will delete or destroy any User Data associated with your Account in accordance with its standard practices unless legally prohibited from doing so and, upon request, an officer of Life Support will certify the same in writing. Life Support retains the right to refuse to provide You access to your User Data if advised to prohibit such access by a qualified health professional and shall incur no liability as a result of acting upon such advice from same qualified health professional.
8.3 Effects of Expiry or Termination. Immediately upon the expiry or termination of either party’s obligations under the Agreement: (a) all applicable rights granted to either party shall terminate; (b) You will cease to use the Services; and (c) (subject to Section 9.2) Life Support will destroy your Confidential Information and, upon request and where applicable, an officer of Life Support will certify the same in writing. Unless expressly stated otherwise herein, the expiry or termination of either party’s rights and obligations under the Agreement shall not affect any rights or obligations which have accrued under the Agreement and shall not relieve either party from its obligations which may have arisen before such termination.
8.4 Suspension Rights. In addition to its other rights under the Agreement, Life Support may, acting in its sole discretion, immediately suspend your access to the Services, until the situation giving rise to the suspension has been remedied to Life Support’s satisfaction, where: (a) Your use of the Services poses a reasonable risk of harm or liability to Life Support or any third-party and You are not taking appropriate action; (b) there has been a violation of Sections 2.3 (Restrictions), 2.6 (Your Responsibilities) and 5.1 (Confidentiality, Privacy and Security); (c) You are using the Services in violation of applicable law and/or fail to cooperate with Life Support’s investigation into any such alleged violation; (d) any payment due and owing by You to Life Support is past due; or (e) a suspension is required by applicable law or governmental authority. Any such suspension by Life Support shall not relieve You of any of your payment obligations hereunder. Where reasonably practicable in the circumstances and unless prohibited by law, Life Support will, prior to suspending the Services, inform You of its right to suspend Services and its basis for asserting its suspension rights as soon as reasonably practicable.
9. WAIVER OF CLASS ACTION RIGHTS. WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THE AGREEMENT YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHTS TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
10.1 Governing Law. The Agreement has been made in and shall be construed and enforced in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to conflict of laws principles. The application of the 1980 United Nations Convention on Contracts for the Sale of Goods is expressly excluded.
10.2 Forum Selection. Any action or proceeding between the Parties will be resolved exclusively by the courts of the Province of Alberta in the City of Calgary. Each party hereby irrevocably accepts and submits to the exercise of personal jurisdiction over such party by such courts, agrees that venue shall be proper in such courts and irrevocably waives and releases any and all defenses in such courts based on lack of personal jurisdiction, improper venue and/or forum non conveniens. In any action or proceeding to enforce rights under the Agreement, the prevailing party shall be entitled to recover costs and legal fees on a full indemnity basis.
10.3 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
10.4 Force Majeure. Except for any obligation to make payments, any delay or failure of any party to perform its obligations pursuant to the Agreement will be excused if, and only to the extent that, the delay or failure is caused by a Force Majeure Event, provided that such party uses reasonable efforts to perform that obligation all the same. In the event that the Force Majeure Event lasts for thirty (30) days or longer, the unaffected party will have the option to terminate the Agreement upon written notice to the Affected Party. Notwithstanding anything else in the Agreement, if a Force Majeure Event occurs on the part of Life Support, You will have no obligation to pay fees for Services that Life Support fails to provide in accordance with the Agreement. Where Services are partially performed or provided or Service Levels are not met because of a Force Majeure Event, the fees for the duration of the Force Majeure Event will be adjusted on an equitable basis considering, among other things, the duration and level of Service and Service Level degradation.
10.5 Remedies. You acknowledge that the Services contain Confidential Information of essential value to Life Support, including trade secrets, and that any actual or threatened breach by You of your obligations with respect to the intellectual property rights of Life Support will constitute immediate, irreparable harm to Life Support for which monetary damages would be an inadequate remedy. In such case, Life Support will be entitled to seek immediate injunctive relief without having to prove the sufficiency of damages and without the requirement of posting bond or other form of security.
10.6 Relationship of the Parties. Practitioners shall be solely and exclusively in control of all aspects of the provision of health care services, including but not limited to the practice of medicine or mental health. To be granted access to and use of the Services You must be or become a patient of a Practitioner, not of an employee of Life Support. Notwithstanding anything to the contrary contained in the Agreement, Life Support shall not have or exercise any control or direction over the manner or methods with which a Practitioner provisions medical or mental health care services or interfere in any way with the exercise of any Practitioner’s professional judgment regarding the provision of such services. In no event shall Life Support be deemed to be engaged in the practice of medical or mental health care services. Practitioners are independent contractors and nothing in the Agreement shall be deemed to create any partnership, joint venture, or agency relationship between Life Support and Practitioners on the Platform.
10.7 Severability; Waiver. In the event any provision of the Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect. No delay or omission to exercise any right or remedy by either party hereunder shall constitute a waiver of that right. No waiver of any provision of the Agreement shall be valid unless in writing and signed by the waiving party.
10.8 Survival. Sections 2.3, 2.6, 3 through 7, 8.1 through 8.3, 9 and this section 10 together with any provisions necessary for the interpretation and construction of the Agreement shall survive and continue notwithstanding any expiry or termination of the Agreement.
10.9 Entire Agreement. The Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes any prior or contemporaneous understandings or communications (oral or written) regarding such subject matter. Life Support, at its sole discretion, may modify, update or amend the policies incorporated into the Agreement with a hyperlink and You hereby consent to Life Support’s right to make any such modification, update or amendment it deems necessary. Life Support shall provide You with electronic notification of any material changes to the Agreement and You shall have thirty (30) days from the date of the notice to notify life Support that You do not accept the changes, failing which You shall be deemed to have accepted the changes. For clarity, Life Support shall notify You of any material updates and amendments to its polices by electronic notification on the Platform, email, or such other similar method as Life Support may utilize from time to time to communicate of such matters.
10.10 Extended Meanings. In the Agreement,
a) Words importing the singular number only shall include the plural and vice versa;
b) Words importing the masculine gender shall include the feminine and neuter, and vice versa;
c) The headings are intended solely for convenience of reference and will be given no effect in the interpretation or construction of the Agreement;
d) Wherever the words “include”, “includes” or “including” (or similar variations) are used, they shall be deemed to be followed by the words “without limitation” and the words following “include”, “includes”, or “including” (or similar variations) shall not be considered to set forth an exhaustive list;
e) The words “herein”, “hereof “, and “hereunder” and other words of similar import refer to the Agreement as a whole and not to any particular Section or other subdivision of, or Schedule to, the Agreement; and,
f) The language in the Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against either party to the Agreement. Any rule of construction that any ambiguities are to be resolved against the drafting party to the Agreement shall not be employed in the interpretation of the Agreement.
10.11 Further Assurances. The parties shall execute and deliver to each other any additional instruments and take any additional steps that may be required to give full effect to the intent expressed in the Agreement.
10.12 Exclusive Remedies. Except as otherwise expressly set out in the Agreement, the remedies set forth in the Agreement comprise the exclusive remedies available to You at law or in equity.
BY CLICKING “I ACCEPT” OR SIMILAR ELECTRONIC ACCEPTANCE, YOU ARE AGREEING TO BE BOUND BY THE TERMS DESCRIBED HEREIN, AND YOU AGREE THAT YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS. IF YOU DO NOT ACCEPT ALL OF THE AGREEMENT, YOU MUST NOT SIGN-UP FOR OR USE OR ACCESS THE SERVICES. LIFE SUPPORT RESERVES THE RIGHT TO REVISE THE AGREEMENT AT ANY TIME BY POSTING THE MOST RECENT VERSION OF THE TERMS ON THE SITE. USE OF THE SERVICES AFTER SUCH CHANGES ARE POSTED WILL SIGNIFY YOUR ACCEPTANCE OF THE REVISED TERMS.