Life Support Mental Health Inc.
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. “API” means a set of programming instructions and standards intended to be used as an interface by software components to communicate with each other.
1.2. “Authorized User” means those of Subscriber’s employees, contractors and agents for whom Subscriber has assumed responsibility by requesting or creating a User Account for access to and use of the Services.
1.3. “Deliverables” means all work product, reports, object code and other materials developed or created by Life Support for the User as a result of Professional Services.
1.4. “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
1.5. “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.
1.6. “Mental Health Check Assessment” means any mental health assessment made available to Patients for use or completion on the Platform.
1.7. “Mental Health Check Assessment Fee” means any fee charged to Patients directly, or indirectly through their health insurer, for Patient 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. Patient, collectively with Patient’s health insurer (where applicable), are responsible for payment of any Mental Health Check Assessment Fees due in advance of and in relation to access to Life Support’s online Mental Health Check Assessment Service. Patient shall be held solely responsible for full 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 the Patient’s health insurer.
1.8. “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 Patients and Users, including any facilitation of assessment review services by Practitioners.
1.9. “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, a User, or a Patient for the purpose of processing the payment of any Fees or other amounts related to the provision or use of the Services by User or amounts payable in relation to any SOW or Change Order (defined below). 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.
1.10. “Patient” means an individual invited by a User to create an Account, or an individual that ‘self-refers’ for an Account to access the Platform, for the purposes of completing a Mental Health Check Assessment and to specially interact with a User, 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.
1.11. “Permitted Purpose” means the assessment and treatment of a Patient.
1.12. “Personal Information” means information about an identifiable individual or personal health information (as defined by applicable law).
1.13. “Practitioner” means a User who is also a licensed or certified medical or mental health practitioner.
1.14. “Professional Services” refers to any provision by Life Support of the services identified in any SOW or Change Order.
1.15. “Referee” means a Practitioner on the Platform that offers psychotherapy services and has subscribed and consented to receive Patient referrals through Life Support’s Referral Services.
1.16. “Referral Services” means any service made available by Life Support to Referees that serves to facilitate the potential referral of a Patient to a Referee.
1.17. “Services” means the Platform and any Subscription Services, Mental Health Check Assessment Services, Referral Services, Professional Services, Virtual Services, Third-Party Services or Payment Services, individually or collectively as the context may require, offered by Life Support to the User.
1.18. “Statement of Work” means an agreement signed by both parties outlining the terms for the provision of Professional Services by Life Support to a Subscriber and incorporated herein.
1.21 “User” means a Subscriber or an Authorized User, either individually or collectively, and interchangeably as the context may require.
2. SUBSCRIPTION SERVICES.
2.1 Access to the Subscription Services. Subject to the terms of this Agreement, Life Support hereby grants the Subscriber and its Authorized Users a non-exclusive, fee bearing, worldwide, non-transferrable, non-sub-licensable, personal right to access and use the Subscription Services, including to the extent possible any available Third-Party Services, solely for the Permitted Purpose for the Term and in accordance with the User’s Account Type.
2.2 Restrictions. The User 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) modify, adapt, alter or translate the Services; (d) 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; (e) 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; (f) create derivative works based on the Services or access or use the Services to develop or create a competitive service or product; (g) attempt to circumvent any security device or feature of the Services (including contractual service limits and quantities set out in an Order Form); (h) load or penetration test the Services; and (i) 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”).
2.3 Life Support Responsibilities. Life Support will: (a) provide Subscriber and its Authorized Users the support services set out in the Technical Support Policy (“Support Services”); (b) make the Platform available to Subscriber and its Authorized Users 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.
2.4 User’s Responsibilities. User will: (a) ensure that any and all access to and use of the Services is in compliance with the Agreement and all laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to User (including applicable privacy, data protection and anti-spam laws); (b) in the case of a Subscriber, be responsible for the use of the Services by its Authorized Users; (c) provide the information and assistance (if any) specified in any applicable Order Form, SOW or Change Order to enable Life Support to provide the Services to Subscriber; and, (d) provide all telecommunications or computer network hardware or network services required by User to access the Services.
2.5 API. Upon request Life Support may, acting in its sole discretion, provide access to its API as part of the Services for the exclusive purpose of interacting with the Services as allowed by the API. Access to the API is subject to the terms of this Agreement and any technical and functional information made available to the User with the API. The API is provided on an ‘AS IS’ and ‘AS AVAILABLE’ basis and Life Support is not responsible or liable to User respecting their use of or inability to use the API or in the event of any change, temporary unavailability, suspension or termination of access to the API. 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 (as defined herein) 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. Following any updates to Life Support’s API, the User may be required to implement and use the most current version of the API. Account Credentials for the API may not be used by anyone other than a designated individual, but may be transferred to another designated individual if the original user is no longer using the API. User shall promptly report to Life Support any security flaws the User reasonably suspect(s) or becomes aware of in the API or any actual or suspected unauthorized access to the API using User’s Account Credentials. Where a third-party is accessing the API without authorization, the User will cooperate with Life Support in the enforcement and protection of Life Support’s rights and access by User to such API may be suspended until such unauthorized activity is resolved to Life Support’s satisfaction. THE USER HEREBY IRREVOCABLY WAIVES, RELEASES, AGREES NOT TO SUE, AND FOREVER DISCHARGES LIFE SUPPORT FROM ALL CLAIMS IT NOW HAS OR IN THE FUTURE MAY HAVE AGAINST LIFE SUPPORT WHETHER SUCH CLAIMS ARISE BY CONTRACT, BY TORT, OR IN EQUITY, AND ANY LOSSES USER MAY SUSTAIN OR INCUR THAT ARISE FROM, OR IN CONNECTION WITH USER’S USE OF OR INABILITY TO USE THE API.
3. THIRD-PARTY SERVICES. Life Support or third parties may make available to Subscriber 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”). User acknowledges and agrees 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 Subscription Services hereunder. MOREOVER, THE THIRD-PARTY SERVICES PROVIDERS ARE NOT PARTNERS, AGENTS OR REPRESENTATIVES OF LIFE SUPPORT AND IT IS UP TO USER TO DECIDE WHETHER TO USE OR ENABLE THESE THIRD-PARTY SERVICES AND USER MUST RELY ON ITS OWN SKILL AND JUDGEMENT IN ELECTING TO DO BUSINESS WITH SUCH THIRD PARTIES. 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. User’s 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 User’s own risk; and (c) subject to the relevant Third-Party Services provider’s discretion. Where applicable, User is 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 User for its: (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 User herein: (a) no other rights are granted to User and nothing in the terms of this 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 User, and in such case Life Support shall have no duty to account to User whatsoever.
4.2 Rights in the Deliverables. Subject to Life Support’s receipt of full payment from Subscriber for amounts due hereunder, Life Support agrees to grant and hereby grants Subscriber and its Authorized Users a non-exclusive, revocable, fully paid-up, worldwide, non-transferable, non-sub-licensable, personal right to use the Deliverables solely for the Permitted Purpose and solely for the limited Term. Except for the limited rights granted Subscriber and its Authorized Users in this Section 4.2, Life Support shall own all rights, title, and interests in and to the Deliverables and all intellectual property rights therein.
4.3 Rights in the User Data. As between the parties, User owns all right, title and interest in the content, information, materials, and data collected on, submitted, uploaded to, shared or created using the Subscription Services by User, including any information or materials provided by or belonging to User and used in the delivery of the Professional Services (the “User Data”). User is solely responsible for the accuracy, completeness, suitability, quality, and legality of all User Data and for obtaining all the necessary licenses, intellectual property rights, clearances, permissions, consents, authorizations and waivers for use of User Data in connection with the Services, including with any Third-Party Services. Should Life Support deem any User Data either to be in breach of the terms of this 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 User as Life Support deems necessary (acting in its sole discretion) and User will promptly comply with any such request. User hereby grants Life Support a non-exclusive, worldwide, royalty-free, transferrable (subject to section 12.5), non-sub-licensable right and license to (a) use, host, copy, store, transmit, modify, and display the User Data as necessary to exercise its rights and provide the Services hereunder; and (b) to use User’s trademarks, service marks, pictures and logos as required to provide the Services, subject to compliance with User’s branding guidelines provided to Life Support in writing. Without limiting the foregoing, Life Support will treat all User Data as Confidential Information.
4.4 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 User’s 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 User or any person cannot be identified as the source of such information or data.
5. CONFIDENTIALITY, PRIVACY AND SECURITY.
5.1 Confidentiality. During the Term, each party (the “Receiving Party”) may acquire from the other party (the “Disclosing Party”) certain nonpublic technical, business, financial, marketing, trade secret, Personal Information or other information, in writing, orally, visually by inspection or demonstration or any other form, relating to the Disclosing Party’s business and identified as confidential at the time of disclosure by the Disclosing Party or otherwise disclosed or acquired in a manner such that a reasonable person would understand its confidential nature (“Confidential Information”). The Receiving Party agrees to take reasonable precautions to protect the Confidential Information against disclosure to any third-party except as expressly permitted in the terms of this Agreement. Access to Confidential Information will be limited to those of the Receiving Party’s employees, contractors and agents who need such access for the exercise of the Receiving Party’s rights or the performance of its obligations hereunder, and who owe the Receiving Party an obligation of confidentiality with written terms no less stringent that those set out herein. Confidential Information excludes information that the Receiving Party 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 the Disclosing Party, and was not acquired directly or indirectly from the Receiving Party, (b) was rightfully acquired by Receiving Party from a third-party on a non-confidential basis, so long as the third-party is not, after due inquiry, known by Receiving Party 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 the Receiving Party in breach of the Agreement. The foregoing exclusions do not apply to Personal Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information in the event that Receiving Party is legally required to disclose any of the Confidential Information by a court or government authority having jurisdiction over the Receiving Party. Before making such disclosure Receiving Party shall, to the extent legally permissible, provide the Disclosing Party with prompt written notice of same so that Disclosing Party 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 Disclosing Party 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 this Agreement, Recipient shall only disclose Confidential Information of Disclosing Party 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 User’s compliance with User’s obligations hereunder, including pursuant to Section 2.4 (User Responsibilities), 4.3 (Rights in the User Data) and 5.3 (User Privacy Obligations). Unless otherwise expressly agreed to herein, Life Support will not be responsible for compliance with any of User’s industry specific privacy and data security customs, practices, or requirements.
5.3 User Privacy Obligations. User is responsible for compliance with all health information, privacy and data protection laws applicable to User in connection with the use of the Services, including obtaining the prior consent from the individual to the collection, use and disclosure of Personal Information. 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 individual’s Personal Information by User and its respective directors, officers, employees, contractors, agents, and those for whom in law they may be responsible.
5.4 Prohibited Data. User 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 User Account registration process, or unless Life Support expressly agrees otherwise. The foregoing shall not apply to health information for which the Services are intended.
6. PROFESSIONAL SERVICES.
6.1 Re-Performance of Defective Professional Services. Life Support will perform any Professional Services set out in a relevant SOW or Change Order in a professional and workmanlike manner, using reasonable skill and care and in accordance with the SOW or Change Order, applicable law and industry practice. Subscriber will have fourteen (14) days from the date of completion of any Professional Services to notify Life Support of any defect in the Professional Services. Within thirty (30) days following receipt of any such notice from Subscriber, Life Support will re-perform any non-conforming Professional Services at Life Support’s sole cost. Absent any such notice within the specified time period, Subscriber shall be deemed to have accepted the Professional Services.
6.2 Exclusive Remedy. Notwithstanding anything to the contrary in the terms of this Agreement, the re-performance of the Professional Services set out in Section 6.1 constitutes Subscriber’s sole and exclusive remedy and Life Support’s entire liability arising from or in connection with any defective Professional Services.
6.3 Change Request. If the Subscriber wishes to order additional Professional Services or make a change to the Professional Services detailed in a SOW (a “Change”):
a) The Subscriber may submit to Life Support a change request in writing via email, detailing the change in the Professional Services being requested (a “Change Request”);
b) Life Support will respond to the Subscriber in writing via e-mail within fifteen (15) business days of receipt of the Change Request, stating whether the Change may be made, and if so, specifying the estimated cost and time required to implement the Change and the impact, if any, of the Change on the Professional Services and related SOW (the “Estimate“);
c) The Subscriber may respond to Life Support in writing via e-mail within fifteen (15) business days of receipt of the Estimate by either advising Life Support to proceed with the Change based on the estimated cost and time schedule specified in Life Support’s response or by providing written notice that the Subscriber is withdrawing the Change Request (the “Withdraw“). If the Estimate is agreed to, then Life Support shall issue a change order recording the Change (“Change Order”), which shall be signed by the Subscriber and Life Support. For greater certainty, if Life Support does not receive the Subscriber’s Withdrawal seven (7) days within delivery of the Estimate, then Life Support shall deem the Change Request to have been withdrawn by the Subscriber; and,
d) If Subscriber requests Life Support provide an Estimate and subsequently Withdraws the Change Request, Life Support shall be reimbursed for its reasonable and demonstrated costs incurred and Life Support shall issue a Change Order for these costs which Subscriber agrees to sign.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.
7.1 By Life Support. Life Support warrants to Subscriber that:
a) It has the power to enter into and perform its obligations under the terms of this Agreement and all necessary corporate and other action has been taken to authorize delivery and performance of the Services hereunder;
b) It will use commercially reasonable efforts to prevent the occurrence of and eliminate Malicious Code from the Platform and where any such Malicious Code is found, shall use commercially reasonable efforts to remedy the same and to reduce interruptions to the Subscriber and it Authorized Users that may result from such Malicious Code; and
c) The Professional Services performed by Life Support under the Agreement shall be performed in a professional and workmanlike manner using reasonable skill and care and in accordance with industry standards in Canada and in conformity with the relevant SOW, Change Order and applicable law.
7.2 Remedies for Nonconformance. In the event of Life Support’s nonconformance with the warranties provided in sub-Sections 7.1(b) and (c), Subscriber will notify Life Support in writing of such nonconformance within thirty (30) days of the nonconformance and Life Support shall:
a) Use commercially reasonable efforts to make available to Subscriber conforming Services for the warranty in Section 7.1(b) and if it fails to do so within thirty (30) days of the notice and the nonconformity materially diminishes the value of the Services, Subscriber shall have a right to terminate the nonconforming Services in accordance with Section 10.1; and,
b) For the warranty in Section 7.1(c), Life Support shall re-perform the Professional Services at its sole cost and if it fails to do so, Subscriber shall recover the Fees paid to Life Support for the nonconforming Professional Services.
The foregoing remedies constitute Subscriber’s sole and exclusive remedies and Life Support’s entire liability arising from or in connection with its breach of the warranties in Section 7.1.
7.3 By Subscriber. Subscriber represents and warrants to Life Support that:
a) It has the power to enter into and perform its obligations under the Agreement and all required corporate and other action has been taken to authorize receipt and use of the Services hereunder;
b) It shall promptly provide such information, feedback, sign-offs and other assistance as may be reasonably required by Life Support and co-operate with and act in good faith towards Life Support to enable it to properly and efficiently discharge its duties under the Agreement and provide all technical and business information and assistance reasonably required by Life Support;
c) Subscriber and its Authorized Users shall perform their obligations under the Agreement in conformity with the Agreement and applicable law (including the collection, use and disclosure of User Data);
d) Subscriber and its Authorized Users shall apply best practice in the management and security (including anti-virus and anti-malware protection) of its internal systems and networks and internet, intranet and extranet sites from which the Services are to be accessed;
e) The User Data shall not contain any Malicious Code;
f) Subscriber and its Authorized Users consent, and that all other necessary and adequate consents or notices have and will be provided and authorizations from individuals to which Personal Information pertains have and will be obtained to provide consent to the collection and use of such Personal Information by Life Support and to the disclosure of such Personal Information to Life Support and any Third-Party Services, and by Life Support, as may be necessary to deliver the Services;
g) The User Data shall not infringe any copyright, trademark, patent right, privacy right or misappropriate any trade secret of any third-party; and,
h) Subscriber and its Authorized Users will obtain the prior consent of each Patient to the collection, use and disclosure of their information, including Personal Information.
7.4 Disclaimer. THE WARRANTIES SET FORTH IN SECTION 7.1 ARE MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. THE SERVICES (INCLUDING THE THIRD-PARTY SERVICES) ARE PROVIDED “AS IS,” AND EXCEPT AS EXPRESSLY SET OUT IN SECTION 7.1 ABOVE 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 AND FITNESS FOR A PARTICULAR PURPOSE. LIFE SUPPORT DOES NOT WARRANT THAT THE SERVICES WILL MEET ALL OF SUBSCRIBER’S OR ITS AUTHORIZED USERS’ REQUIREMENTS, OR THAT THE SERVICES SATISFY THE SUBSCRIBER’S OR ITS AUTHORIZED USERS’ REGULATORY 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 USER’S 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 SUBSCRIBER OR ITS AUTHORIZED USERS.
8.1 By Life Support. Life Support shall indemnify and defend Subscriber against any third-party claims brought against Subscriber 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 Subscriber 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 Agreement or the applicable SOW or Change Order, and refund any Fees pre-paid by the Subscriber to Life Support for Services from the effective date of termination to the end of the Term, and upon such termination, Subscriber and its Authorized Users will immediately cease all use of the Services. Notwithstanding the foregoing, Life Support shall have no obligation under this Section 8.1, 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 8.1 states the sole and exclusive remedy of Subscriber and the entire liability of Life Support, and any of the officers, directors, employees, shareholders, contractors, or representatives of Life Support, for claims described in this Section 8.1.
8.2 By Subscriber. Subscriber and its Authorized Users shall defend and indemnify Life Support 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), 2.5 (User Responsibilities), 5 (Confidentiality) and 7.3 (Subscriber’s Representations and Warranties); (c) arising from or in relation to Subscriber’s or its Authorized Users’ access to or use of the Services (including with respect to any goods or services that Subscriber or its Authorized Users may make available to Patients or other third parties via the Platform or otherwise); (d) alleging Subscriber’s or its Authorized Users’ 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. (e) arising from Subscriber’s or its Authorized Users’ failure to obtain prior consent from each individual to the collection, use and disclosure of their information or data (including Personal Information).
8.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (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.
9. LIMITATION OF LIABILITY.
9.1 LIFE SUPPORT’S MAXIMUM AGGREGATE LIABILITY TO SUBSCRIBER AND ITS AUTHORIZED USERS 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 SUBSCRIBER 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.
9.2 IN NO EVENT WILL LIFE SUPPORT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING LOST PROFITS OR LOST DATA) ARISING OUT OF 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, EVEN IF LIFE SUPPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 NOTHING IN THIS SECTION 9 WILL OPERATE TO EXCLUDE OR RESTRICT LIFE SUPPORT’S LIABILITY (IF ANY) TO SUBSCRIBER OR ITS AUTHORIZED USERS 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.
9.4 THIS LIMITATION UPON LIABILITY SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
10.1 Termination. Either party may, effective immediately upon written notice to the other party, terminate the Agreement (which automatically terminates any applicable SOW or Change Order) 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 may terminate the Agreement with immediate effect upon written notice to the other party. 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 and the award of service level credits is Subscriber’s sole remedy and Life Support’s sole liability for any such failure. Effective upon seven (7) days prior written notice, Subscriber may terminate a SOW or Change Order for its convenience and in that event Life Support shall refund to Subscriber any pre-paid, unused Fees for that SOW or Change Order.
10.2 User Data Portability and Deletion. All User Data hosted and stored on the Platform will be made reasonably available to User for export or download during the Term and for a period of thirty (30) days after the expiry or effective date of termination of the Agreement. After such thirty (30) day period, Life Support will have no obligation to maintain or provide the User Data and will delete or destroy it 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 User access to 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.
10.3 Effects of Expiry or Termination. Immediately upon the expiry or termination of the Agreement, (a) all applicable rights granted to either party shall terminate; (b) User will cease to use the Services; and (c) (subject to Section 10.2) each party will return or destroy Confidential Information of the other party and, upon request and where applicable, an officer of such party will certify the same in writing. Unless expressly stated otherwise herein, the termination of the Agreement or any SOW or Change Order 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.
10.4 Suspension Rights. In addition to its other rights under the Agreement, Life Support may, acting in its sole discretion, immediately suspend User’s access to the Services, until the situation giving rise to the suspension has been remedied to Life Support’s satisfaction, where: (a) User’s use of the Services poses a reasonable risk of harm or liability to Life Support or any third-party, including a Patient, and User is not taking appropriate action; (b) there has been a violation of Sections 2.3 (Restrictions), 2.5 (User Responsibilities), 5 (Confidentiality) and 7.3 (Subscriber’s Representations and Warranties); (c) User is using the Services in violation of applicable law and/or fails to cooperate with Life Support’s investigation into any such alleged violation; (d) any payment due and owing by Subscriber 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 Subscriber of any of its payment obligations hereunder. Where reasonably practicable in the circumstances and unless prohibited by law, Life Support will, prior to suspending the Services, inform User of its right to suspend Services and its basis for asserting its suspension rights as soon as reasonably practicable.
12. WAIVER OF CLASS ACTION RIGHTS. WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THE AGREEMENT USER HEREBY EXPRESSLY GIVES UP THEIR RIGHTS TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
13.1 Export Compliance. The Services, other Life Support technology, and derivatives of them may be subject to export laws and regulations of Canada, the United States, and other jurisdictions. User represents that it is not named on any Canadian or U.S. government denied-party list. User may not access or use the Services in a country named on Canada’s Area Control List under Canada’s Export and Import Permits Act, in a U.S. embargoed country or region (as of the Effective Date being Cuba, Iran, North Korea, Sudan, Syria or Crimea), by persons or entities prohibited from receiving U.S. exports, or in violation of any Canadian or U.S. export law or regulation.
13.2 Governing Law. The Agreement and each of the documents contemplated by or delivered under or in connection with the Agreement have 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.
13.3 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.
13.4 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.5 Assignment. Neither party shall assign the Agreement without the other party’s prior written consent, which consent shall not be unreasonably conditioned, withheld or delayed. Notwithstanding the foregoing, either party may assign the Agreement to any affiliate or to its successor in connection with any transaction or series of transactions pursuant to which all or a substantial part of the assigning party’s business (or the business which is the subject matter of the Agreement) is assigned to, or otherwise results in forming all or part of the business of such entity, whether by way of reorganization, merger, consolidation, amalgamation, arrangement, contribution, transfer, sale, change in control or otherwise by operation of law, conditional upon (a) it promptly notifies the non-assigning party in writing of the assignment; (b) the assignee agrees in writing to be bound by the terms of the Agreement and assume the obligations of the assignor under the Agreement; (c) the assignor is not in default under any of the terms of the Agreement; and (d) if Subscriber is the assignor, there are no payments past due. The Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
13.6 Force Majeure. Except for any obligation to make payments, any delay or failure of any party to perform its obligations pursuant to the terms of this 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, Subscriber will have no obligation to pay Fees for Services that Life Support fails to provide in accordance with this 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.
13.7 Remedies. User acknowledges that the Services contain Confidential Information of essential value to Life Support, including trade secrets, and that any actual or threatened breach by User of its 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.
13.8 Relationship of the Parties. Subscriber and its Authorized Users 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. All Patients who are granted access to and use of the Services shall be or become patients of a Practitioner, not an employee of Life Support. Notwithstanding anything to the contrary contained in this 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. The parties are independent contractors and nothing in the Agreement shall be deemed to create any partnership, joint venture, or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
13.9 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.
13.10 Survival. Sections 7.6, 7.7, 7.8, 7.11, 7.12, 8 and 12 through 15 of the Order Form and Sections 2.2, 2.4(b), 2.5, 3, 4, 5, 6.1, 6.2, 7.2,7.4, 8, 9, 10.1 through 10.3, 11, 12 and this Section 13 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.
13.11 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. In the event of a conflict between the terms in an Order Form, SOW, Change Order and these ToU, the terms contained in these ToU shall control unless expressly stated otherwise in the applicable Order Form, SOW or Change Order. The Agreement may be modified only by a written amendment executed by an authorized representative of each party, except that Life Support may update or amend the policies incorporated into these ToU with a hyperlink and Subscriber’s consent to any such updates or amendment may be provided by Subscriber’s duly authorized representative by e-mail or by online acceptance of the revised terms. Life Support shall provide Subscriber with electronic notification of any changes to these ToU and Subscriber shall have thirty (30) days from the date of the notice to notify Life Support that it does not accept the changes, failing which Subscriber and its Authorized Users shall be deemed to have accepted the changes. For clarity, Life Support shall notify Subscriber of any material updates and amendments to its polices by electronic notification, email, or such other similar method as Life Support may utilize from time to time to communicate of such matters.
13.12 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 each Order Form, SOW, Change Order and the terms of this 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.
13.13 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.