Terms of Use

1. Definitions.

In addition to terms which are defined throughout this Agreement, the following terms have the following meanings:

2. Services.

2.1. Software License, Access and Use. Subject to and conditioned on Licensee's and its Authorized Users' compliance with the terms and conditions of this Agreement, Licensor hereby grants Licensee:

2.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties:

2.3. Reservation of Rights. Except as expressly set forth in Section 2.1, nothing in this Agreement grants any right, title, or interest in or to (including any license under) any IP Rights in or relating to, the Software, Services, or other Licensor Materials, whether expressly, by implication, estoppel, or otherwise. Except as expressly set forth in Section 2.1, all right, title, and interest in and to the Software, Services and the other Licensor Materials, are and will remain with Head Licensor, Licensor and their Affiliates.

2.4. Changes. Head Licensor and Licensor reserve the right, in their sole discretion, to make any changes to the Services and Licensor Materials that they deem necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Head Licensor's or Licensor’s services to its Licensees, (ii) the competitive strength of or market for Head Licensor's or Licensor’s services, or (iii) the cost efficiency or performance of the Services; or (b) to comply with applicable Law.

2.5. Suspension or Termination of Services. Licensor may, directly or indirectly, suspend, terminate, or otherwise deny access to, or use of, all or any part of the Services or Licensor Materials by Licensee, any Authorized User or any other Person, without incurring any resulting obligation or liability, if: (a) Head Licensor or Licensor receives any order or notice from a governmental authority which expressly or by reasonable implication requires Licensor to do so; (b) Licensor believes, in its sole discretion, that: (i) Licensee or any Authorized User has failed to comply with, any term of this Agreement, accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation or (ii) Licensee or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (c) this Agreement expires or is terminated. This Section 2.5 does not limit any of Licensor's other rights or remedies, whether at Law, in equity, or under this Agreement.

3. Use Restrictions; Service Usage and Data Storage.

3.1. Use Restrictions. Licensee shall not, and shall not permit any other Person to, access or use the Software, Services, or other Licensor Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Licensee shall not, except as this Agreement expressly permits:

4. Licensee Obligations.

4.1. Licensee Systems and Cooperation. Licensee shall at all times during the Term:

4.2. Effect of Licensee Failure or Delay. Licensor is not responsible or liable for any delay or failure of performance caused in whole or in part by Licensee's delay in performing, or failure to perform, any of its obligations under this Agreement.

4.3. Corrective Action and Notice. If Licensee becomes aware of any actual or threatened activity prohibited by Section 3.1, Licensee shall, and shall cause its Authorized Users to, immediately:

5. Backups.

In the event of any loss, alteration, destruction, damage, or corruption of Licensee Data caused Data Backup. Head Licensor, its Affiliates and third party service providers perform routine data by the Licensor Systems or Services, Licensor will, as its sole obligation and liability and as Licensee's sole remedy, use commercially reasonable efforts to restore the Licensee Data from Licensor's then most current backup of such Licensee Data.

6. DataPrivacy and Security.

6.1. Information Security Obligations. Head Licensor and Licensor will employ security measures in accordance with applicable Law.

6.2. Licensee Control and Responsibility. Licensee has and will retain sole responsibility for: (a) all Licensee Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Licensee or any Authorized User in connection with the Software or Services; (c) Licensee Systems; and (d) all access to and use of the Software, Services and other Licensor Materials directly or indirectly by or through the Licensee Systems, with or without Licensee’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

6.3. Access and Security. Licensee shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) protect against any unauthorized access to, or use of, the Software, Services or other Licensor Materials; and (b) control the content and use of Licensee Data, including the uploading or other provision of Licensee Data for Processing.

7. Fees and Payment.

7.1. Fees.

7.2. Late Payment. If Licensee fails to make any payment when due, then, in addition to all other remedies that may be available:

7.3. No Deductions or Set-Offs. All amounts payable to Licensor under this Agreement shall be paid by Licensee to Licensor in full without any set-off, recoupment, counterclaim, deduction, debit, or withholding for any reason.

7.4. Reimbursable Expenses. Licensee shall reimburse Licensor for any out-of-pocket expenses incurred by Licensor in connection with performing the Services (the "Reimbursable Expenses").

8. Intellectual Property Rights.

8.1. Licensor Materials. All right, title, and interest in and to the Software, Services and Licensor Materials, including all IP Rights therein, are and will remain with Head Licensor, Licensor and their Affiliates. Licensee acknowledges and agrees that it has no right, license, or authorization with respect to any of the Licensor Materials or Third-Party Materials (including any IP Rights therein). All other rights in and to the Licensor Materials and Third-Party Materials are expressly reserved by Head Licensor, Licensor, their Affiliates and their licensors. In furtherance of the foregoing, Licensee hereby unconditionally and irrevocably grants to Head Licensor and Licensor an assignment of all right, title, and interest in and to the Resultant Data, including all IP Rights relating thereto.

8.2. Licensee Data. As between Licensee and Licensor, Licensee is and will remain the sole and exclusive owner of all right, title and interest in and to all Licensee Data, including all IP Rights relating thereto, subject to the rights and permissions granted in Section 8.3.

8.3. Consent to Use Licensee Data. Licensee hereby irrevocably grants all such rights and permissions in or relating to Licensee Data as are necessary or useful to Head Licensor, Licensor, their Affiliates and the Licensor Personnel to enforce this Agreement and exercise Licensor's, its Affiliates, and the Licensor Personnel's rights and perform Licensor's and the Licensor Personnel's obligations hereunder. Without limiting the foregoing, Licensee confirms that Licensor shall have access to all Licensee Data and may make use of such Licensee Data in the course of serving as the medical clinic and/or physician of Licensee.

9. Confidentiality.

9.1. Confidential Information. In connection with this Agreement each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 9.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of, or relating to, the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, Licensees, and pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential". Without limiting the foregoing, all Licensor Materials and the financial terms of this Agreement are the Confidential Information of Licensor.

9.2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records:

9.3. Protection of Confidential Information. Subject to Section 9.4, as a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for 5 years:

9.4. Compelled Disclosures. Notwithstanding Section 9.3, (a) the Receiving Party will comply with all of its obligations under Law with respect to any Confidential Information and (b) may disclose any Confidential Information to the extent it is compelled to do so under applicable Law, provided that, to the extent permitted by applicable Law, the Receiving Party shall notify the Disclosing Party of such compelled disclosure and provide the Disclosing Party, at the Disclosing Party's sole cost and expense, with reasonable assistance in opposing such disclosure or seeking an injunction, a protective order, or other limitations on disclosure.

10. Term and Termination.

10.1. Initial Term. The initial term of this Agreement commences as of the Effective Date and will, unless terminated earlier under any of this Agreement's express provisions, continue for the term set out on Schedule B (the “Term”).

10.2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

10.3. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement,

10.4. Survival. The rights and obligations of the parties set forth in this Section 10.4, and Section 3.1 (Use Restrictions), Section 8 (Intellectual Property Rights), Section 9 (Confidentiality) Section 10.3 (Effect of Termination or Expiration), Section 11 (Representations and Warranties), Section 12 (Indemnification), Section 13 (Limitation of Liability), Section 14 (Audit Rights), Section 15 (Miscellaneous) and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

11. Representations and Warranties.

11.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:

11.2. warrants, and covenants to Licensee that it or Head Licensor will perform the Services using in a professional and workmanlike manner.

11.3. Additional Licensee Representations, Warranties, and Covenants. Licensee represents, warrants, and covenants to Licensor that Licensee owns or otherwise has, and will have, the necessary rights and consents in and relating to the Licensee Data so that, as received by Licensor and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any IP Rights, or any privacy or other rights of any third party or violate any applicable Law.

11.4. DISCLAIMER OF CONDITIONS AND WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, SECTION 11.2, AND SECTION 11.3, ALL SOFTWARE, SERVICES AND LICENSOR MATERIALS ARE PROVIDED "AS IS" AND LICENSOR HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SOFTWARE, SERVICES OR LICENSOR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (a) MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (c) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION; OR (d) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

12. Indemnification.

12.1. Licensor Indemnification. Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, disbursements, and charges (collectively, “Losses”) incurred by Licensee arising out of or relating to any claim, action, cause of action, demand, lawsuit, or proceeding (collectively “Action”) by a third party (other than an Affiliate of Licensee) to the extent that such Losses arise from any allegation in such Action that Licensee's use of the Services (excluding Licensee Data and Third-Party Materials) in compliance with this Agreement (including the Documentation) infringes an IP Right protected in the Territory. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:

12.2. Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and permitted assigns (each, a "Licensor Indemnitee") from and against any and all Losses incurred by such Licensor Indemnitee in connection with any Action by a third party (other than an Affiliate of a Licensor Indemnitee) to the extent that such Losses arise out of or relate to any:

12.3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified under Section 12.1 or Section 12.2, as the case may be. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defence and investigation of such Action and shall employ counsel to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12.3 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

12.4. Mitigation. If any of the Software, Services or other Licensor Materials are, or in Head Licensor or Licensor's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party IP Right (including if Licensor ceases to be entitled to use any Licensor Materials held by Licensor’s Affiliates), or if Licensee's or any Authorized User's use of the Software, Services or Licensor Materials is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense:

THIS SECTION 12 SETS FORTH LICENSEE'S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND LICENSOR MATERIALS) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD PARTY IP RIGHT.

13. Limitations of Liability.

13.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL LICENSOR OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE LICENSORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE, UNAVAILABILITY, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA; (d) BREACH OF DATA OR SYSTEM SECURITY; (e) INACCURATE, INCORRECT, INCOMPLETE, UNTIMELY, INEFFECTIVE, IRRELEVANT, INAPPLICABLE, OR UNVALIDATED SERVICES INCLUDING WITHOUT LIMITATION ANY LICENSEE OR AUTHORIZED USER GENERATED ASSESSMENT OR REPORT OR ANY PORTION THEREOF; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE, OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LICENSOR AND ITS AFFILIATES, LICENSORS, SERVICE LICENSORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE FEES PAID TO LICENSOR BY LICENSEE IN THE PRECEDING 3 MONTHS THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

14. Audit Rights.

14.1. Audit Procedure. Head Licensor, Licensor or their nominee (including their accountants and auditors) may, in their sole discretion, inspect and audit Licensee’s use of the Software and Services at any time during the Term and for one year following the termination or earlier expiration of this Agreement. Licensee shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of Head Licensor or Licensor with respect to such audit.

14.2. Cost and Results of Audit. If the audit determines that Licensee’s use of the Software and Services exceeded the usage permitted or reported under this Agreement (as contemplated in more detail in Schedule B), Licensee shall pay to Licensor (a) all amounts due for such excess use of the Software and Services, plus interest on such amounts, as calculated under Section 7.2(a) and (b) all costs incurred by Head Licensor or Licensor in conducting the audit. Licensee shall make all payments required under this Section 14.2 within 10 days of the date of written notification of the audit results.

15. Miscellaneous.

15.1. Further Assurances. Each Party shall, upon the reasonable request, of the other Party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.

15.2. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

15.3. Public Announcements. Either Party shall be permitted to confirm to third parties that it is in business with the other (provided that neither Party is disparaging in its comments in respect of theother). Without limiting the foregoing, Licensor may, include Licensee's name and/or other indicia in its lists of Licensor's current or former Licensees of Licensor in promotional and marketing materials.

15.4. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement shall be in writing and shall be deemed to have been given (a) if delivered by hand, when delivered (with written confirmation of receipt); (b) if sent by a nationally recognized overnight courier (receipt requested), when received by the addressee; or (c) if sent by email, on the day a return email is received from the recipient (which email cannot be a ‘bounce-back email’). Such communications must be sent to the respective Parties at the last known addresses for such Party.

15.5. Interpretation. For purposes of this Agreement: (a) the words "include", "includes", and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein", "hereof", "hereby", "hereto", and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. Unless otherwise stated, all dollar amounts referred to in this Agreement are stated in United States currency.

15.6. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

15.7. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

15.8. Assignment. Licensee may not assign this Agreement, or any of its rights or obligations under this Agreement, without Licensor's prior written consent. Licensor may assign this Agreement, or any of its rights or obligations under this Agreement, without Licensee’s prior written consent.

15.9. Successors and Assigns. This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective permitted successors and permitted assigns.

15.10. Amendments and Modifications. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto.

15.11. Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

15.12. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

15.13 Governing Law. This Agreement and all exhibits and schedules attached hereto and all matters arising out of or relating to this Agreement are governed by and construed in accordance with the Laws of the Province of Alberta and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Alberta or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Alberta.

15.14. Binding Arbitration. Binding arbitration will be used to settle any claim, dispute or controversy of any kind (whether in contract, tort or otherwise) in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, which arbitration will be conducted in accordance with the below.

15.15. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 9 (Confidentiality) or, in the case of Licensee, Section 3.1 (Use Restrictions), Section 4.3 (Corrective Action and Notice), or Section 6.2 (Licensee Control and Responsibility) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

15.16. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.