END USER LICENSE AND SERVICES AGREEMENT
PLEASE CAREFULLY READ THE TERMS AND CONDITIONS SET OUT IN THIS END USER LICENSE AND SERVICES AGREEMENT. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THIS APPLICATION YOU AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AND SERVICES AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO USE THE APPLICATION OR THE SERVICES AND YOU MUST NOT DOWNLOAD, INSTALL OR USE THE APPLICATION OR USE OR RECEIVE THE SERVICES, AND, IF YOU HAVE ALREADY USED, DOWNLOADED OR INSTALLED THE APPLICATION, YOU MUST PROMPTLY DELETE OR OTHERWISE REMOVE THE APPLICATION.
1. PLATFORM NOT A SUBSTITUTE FOR HEALTH SERVICES AND ADVICE
The Platform is intended to enhance your patient experience and cannot, nor is it intended to, replace the relationship that you have with your regular health care providers. Your regular health care providers will retain primary responsibility for your ongoing medical care and follow-up. We are providing access to the Platform to you at the request of your health care providers. The Platform is not, and should not be considered, a substitute for medical advice from a physician or other licensed health care professional. The Platform does not, nor is it intended to, replace or overrule the judgment or diagnosis of a physician or licensed health care professional and must not be used as the basis for making any diagnosis or treatment decision except by and to the extent determined by a physician or other licensed health care professional. We are not involved with monitoring information or data that you provide to your health care provider through the Platform. It is up to your health care provider to determine how they choose to monitor this information. You should always talk to your medical professional for diagnosis and treatment, including, without limitation, information regarding which treatment may be appropriate for you. We make no representation or warranty that any particular treatment is safe, appropriate, or effective for you. You acknowledge that any health advice you receive through the Platform is not provided by us and not endorsed by us.
IF AT ANY TIME YOU ARE CONCERNED ABOUT YOUR CARE OR TREATMENT, OR IF YOU THINK YOU HAVE A MEDICAL OR PSYCHIATRIC EMERGENCY, CALL 911 OR GO TO THE NEAREST OPEN CLINIC OR EMERGENCY ROOM.
2. INTELLECTUAL PROPERTY
You acknowledge and agree that you have no right, title, or interest in or to any intellectual property or other proprietary rights in or relating to the Platform, other than as expressly set out in this Agreement. You further acknowledge and agree that no title to the Platform, or any part of the Platform, is granted pursuant to this Agreement. You agree not to remove any trademark, copyright, or other proprietary notices on or in any portion of the Platform as delivered and to reproduce all such notices on and in all authorized copies.
3. GRANT OF LICENSE; APPLICATION
The Application is licensed and not sold to you under this Agreement. If the Platform made available to you by Seamless involves access and use of an Application, we hereby grant you a personal, non-commercial, revocable, non-exclusive and non-transferrable license (the “License”) to: (a) access electronically, download, install, display, and/or use one copy of the Application on your web and/or mobile devices; and (b) use such Application to access and receive the Platform.
Unless otherwise expressly permitted pursuant to Section 3 above, you will not: (a) make any copies of the Platform, to the extent applicable, other than archival copies; (b) modify or create any derivative works of the Platform; (c) decompile, disassemble, reverse engineer, except as permitted by applicable law, or otherwise attempt to recreate or derive the source code, underlying ideas, or algorithms of software comprising the Platform, or in any way ascertain, decipher, or obtain the communications protocols for accessing the Platform; (d) copy, reproduce, reuse the Platform in another product or service, or modify, alter, or display in any manner any files or images, or parts thereof, included in the Platform; (e) attempt to gain unauthorized access to the Platform, accounts, computer systems or networks associated with the Platform; (f) remove or alter any trademark, logo, copyright or other notices, legends, symbols or labels in the Platform; (g) use the Platform in any manner that could damage, disable, overburden, or impair the Platform or interfere with any other party’s use and enjoyment of it; (h) use the Platform in any way that is in breach of this Agreement or any law; (i) use the Platform in any way that infringes, violates, or misappropriates the rights of any third-party; (j) use the Platform in any way to transmit, directly or indirectly, any unsolicited bulk communications (such e-mails, voice, photos, video, chat or SPAM instant messages); or (k) authorize or assist any third-party to do any of the things described in this paragraph.
You understand and agree that: (i) the Platform is not designed or customized for distribution or use, as applicable, in any specific country or jurisdiction (“Territory”); and (ii) the Platform is not intended for distribution to, or use by, any person or entity in any Territory where such distribution or use would be contrary to local law or regulation. You must use the Platform in a manner that is compliant with local laws.
You are obligated to inform any and all users of the Platform of the terms and conditions of this Agreement. Your rights in the Platform will be limited to those expressly granted in this Agreement.
If the Platform made available to you by Seamless requires the download or access to one of our Applications, the Application will enable access from your computer, mobile device or other device (“Device”) to the Platform. Use and access to the Platform will require internet access and, depending on the Device you use, access to your mobile device carrier or other service provider network. Please be advised that data, network, SMS and related charges may apply when using or accessing the Platform through your Device. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS OR USE THE PLATFORM THROUGH YOUR DEVICE. We reserve the right to change, suspend, remove, or disable your access to or use of the Platform at any time without notice. In no event will we be liable for the removal of or disabling of your access to or use of the Platform. We may also impose limits on the use of or access to the Platform, without notice or liability. We are not responsible for the security of any information stored or transmitted on or by your Device, your Device carrier or your Device network. It is your responsibility to secure your Device.
6. REGISTRATION AND USE OBLIGATIONS
You are responsible for maintaining the confidentiality of your User Account and for restricting access to any account that you may have with us. You are solely responsible for any activity related to any such account or password. If you suspect any unauthorized use of your account or password, you will notify us immediately. You acknowledge and agree that we have the right to maintain, disclose, use and otherwise provide User Data to any person to the extent: (a) required to do so by law or if we reasonably determine that such maintenance, use, disclosure or distribution is reasonably necessary to enforce this Agreement, respond to claims against us that your access to, or use of, the Platform, or any User Data or Contributed Content (as defined below) violates, infringes, or misappropriates any right of any person; or (b) required to protect the rights, property, or personal safety of us, our users, or the public.
Your use of the Platform is contingent on you, or persons for whom you are the parent or legal guardian of, being a patient at a hospital or under the care of a physician that: (i) is authorized by us to use the Platform as part of your care; and (ii) agrees to use the Platform as part of your care. Otherwise, you must not or must cease to use the Platform immediately and promptly delete or otherwise remove the Application from your Device.
7. CONTRIBUTED CONTENT
Notwithstanding any other provision of this Agreement, during the term of this Agreement and afterwards, Seamless may use your Contributed Content anonymized or aggregated so that it is no longer personally identifiable for any purpose and may use, disclose, distribute and otherwise exploit such anonymized or aggregated Contributed Content.
The Platform may contain or provide access to links to internet sites maintained or suggested by your physician, healthcare team or primary health care facility (“Linked Sites”). We provide access to Linked Sites solely as a convenience to you, and at the request of your health care providers that are responsible for your care. We have no control over Linked Sites and you acknowledge and agree that the inclusion of Linked Sites does not imply endorsement by us of such Linked Sites or of any content, advertising, products or other material available from the Linked Sites. Your correspondence or dealings with, reliance upon information, or participation in promotions of, other users, advertisers, or partners found on or through the Linked Sites, and any other terms, conditions, warranties, or representations related to such dealings, are solely between you and such user, advertiser, partner, or other person.
10. TERM; TERMINATION
This Agreement commences when you first access the Platform and will continue in effect unless otherwise terminated in accordance with the terms of this Agreement. If you breach any term or condition of this Agreement, we may immediately terminate this Agreement or any other agreements between you and us, or cease providing any Services to you and/or terminate your access to the Platform. In addition to the foregoing, we may terminate this Agreement or immediately cease to provide any Services to you if: (a) we are prevented from providing any Services to you due to any law, regulation, directive, or ruling from any governmental or regulatory authority; (b) in our sole discretion, we determine that it is in our interest to stop providing any or all Services; (c) you use the Platform in a manner inconsistent with this Agreement; or (d) your health care provider stops supporting your use of or access to the Platform. We will provide you with notice of any termination if you have provided us with current and accurate contact information.
Upon the expiration or termination of this Agreement, we will take steps to prevent your access to the Platform and you will immediately cease to use or otherwise access the Platform, and you will immediately delete all copies of the Application in your possession or control.
11. DISCLAIMER OF OTHER WARRANTIES
You expressly acknowledge and agree that you solely assume all risk as to satisfactory quality, performance, accuracy, and effort in respect of the Platform.
We disclaim any and all warranties regarding viruses and other destructive software with respect to the download of any part of the Platform to your Device or your use of the Platform.
We make commercially reasonable efforts to secure our network and the systems we control, but we cannot warrant or represent that you will not suffer any loss or damage to your Device or other data stored to your Device if you download or use the Platform.
We cannot warrant or represent that the Platform will be available on a continuous and uninterrupted basis, and do not assume responsibility for third party hardware, software and systems, and services beyond our control, including, without limitation, your Device, Device carrier, Device network or other third parties responsible for the transmission or receipt of communications to and from your Device and physician or other licensed health care professionals.
Your use of the Platform and your reliance on any data provided by the Platform is at your own risk.
You acknowledge and agree that you will not rely on the Platform to make health decisions, and that none of the feedback or data provided in the Platform or pursuant to your use of the Services will be interpreted as providing any medical or psychological diagnosis.
We cannot guarantee that the data provided by the Platform will be accurate or complete, nor that such data will provide an objective or direct measure of any specific state.
THE PLATFORM, AND ALL INFORMATION, PRODUCTS (INCLUDING, WITHOUT LIMITATION, SOFTWARE), MATERIALS, CONTRIBUTED CONTENT, AND ANY OTHER CONTENT CONTAINED IN, OR THAT CAN OTHERWISE BE OBTAINED ON, FROM, OR THROUGH, THE PLATFORM, ARE PROVIDED “AS IS” WITHOUT ANY CONDITIONS, REPRESENTATIONS, OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, TITLE, OR NON-INFRINGEMENT.
WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR: (A) ANY ERRORS, OMISSIONS, OR INACCURACIES IN PROVIDING OR MAKING AVAILABLE THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY ERRORS, OMISSIONS, OR INACCURACIES IN THE CONTENT OR OTHER INFORMATION MADE AVAILABLE ON, FROM, OR THROUGH THE PLATFORM; AND (B) YOUR DEATH, SICKNESS, DISEASE OR INJURY OF ANY KIND BASED UPON, OCCASIONED BY OR ATTRIBUTABLE TO YOUR FAILURE TO CORRECTLY USE THE PLATFORM AS REQUIRED BY THE PLATFORM OR YOUR HEALTH CARE PROVIDER; (C) ANY LOSS, DAMAGE OR INJURY THAT MAY BE SUFFERED OR INCURRED BY YOU IN CONNECTION WITH OR ARISING OUT OF YOUR ACCESS TO OR USE OF THE PLATFORM, OR THE CONTENTS OR INFORMATION OBTAINED BY YOU ON, FROM, OR THROUGH THE PLATFORM.
12. LIMITATION OF LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO OR USE OF THE PLATFORM OR ANY CONTENT OR INFORMATION THAT MAY BE OBTAINED ON, FROM, OR THROUGH THE PLATFORM (INCLUDING, WITHOUT LIMITATION, ANY CONTRIBUTED CONTENT) IS AT YOUR SOLE RISK.
WE AND OUR PROVIDERS, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, AND OTHER REPRESENTATIVES WILL NOT BE RESPONSIBLE OR LIABLE TO YOU IN ANY MANNER, ARISING FROM, IN CONNECTION WITH, OR RELATING TO YOUR ACCESS TO OR USE OF THE PLATFORM OR ANY CONTENT OR INFORMATION OBTAINED BY YOU ON, FROM, OR THROUGH THE PLATFORM, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, DEATH, LOSS OF DATA REPUTATION OR GOODWILL, OR ECONOMIC LOSS, ANTICIPATED OR OTHERWISE, AND IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION OR CLAIM, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
WE AND OUR PROVIDERS, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, AND OTHER REPRESENTATIVES WILL NOT BE RESPONSIBLE OR LIABLE TO YOU IN ANY MANNER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE.
IF DESPITE THE DISCLAIMERS AND LIMITATION OF LIABILTIY PROVISIONS UNDER SECTION 11 AND THIS SECTION 12, WE ARE FOUND LIABLE TO YOU BY A COURT OF COMPETENT JURISDICTION OF FINAL JUDGMENT, OUR LIABILITY TO YOU WILL BE LIMITED TO DIRECT DAMAGES AND THE GREATER OF THE SUM PAID BY YOU TO ACCESS THE SERVICES (IF ANY) AND THE SUM PAID TO US BY YOUR PRIMARY CARE PROVIDER TO MAKE THE PLATFORM AVAILABLE TO YOU.
13. RELEASE OF CLAIMS
To the maximum extent permitted by applicable law, you hereby release and waive all claims against us and all of our respective officers, directors, members, managers, employees, independent contractors, representatives and agents from any and all liability for claims, costs, and expenses (including, without limitation, litigation costs and lawyer’s fees) of any kind and nature arising from or in any way related to the Platform, and this Agreement.
You agree to indemnify, defend and hold us, our subsidiaries, affiliates, officers, directors, shareholders, agents, and other partners and employees, harmless from and against any and all loss, expense, liability, claim, or demand, including, without limitation, reasonable litigation costs and lawyer’s fees, arising out of, resulting from or in connection with: (a) your use or misuse of the Platform; or (b) any Contributed Content or User Data used or provided by you.
15. APP STORE PROVIDERS
Regarding Apple, Inc., Google Inc. and other App Store Providers. You acknowledge that this Agreement is between you and Seamless and not with Apple, Inc. (“Apple”), Google Inc. (“Google”) or any sponsor or provider of any application marketplace (each an “App Store Provider”) and that Seamless (not the applicable App Store Provider) is responsible for the Application. YOU ACKNOWLEDGE AND AGREE THAT NO APP STORE PROVIDER MAKES ANY WARRANTIES OR HAS ANY OBLIGATIONS WHATSOEVER UNDER THIS AGREEMENT OR HAS ANY WARRANTY OBLIGATIONS WITH RESPECT TO THE APPLICATION OR THE SERVICE. If you are using the Mobile App on any iOS-based device, this license is granted to you only as permitted by and subject to any applicable Usage Rules set forth in the Apple App Store Terms and Conditions and Apple and its subsidiaries, are third party beneficiaries of this Agreement. If you are using the Mobile App on any Android-based device, this license is granted to you only as permitted by and subject to any applicable Android Market Terms of Service established by Google.
This Agreement is the entire agreement between you and us and supersedes all prior agreements between the parties regarding the subject matter contained herein.
This Agreement will enure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns. If any provision of this Agreement is held to be invalid or unenforceable to any extent, then the provision will be deemed to be severed from this Agreement and the remainder of this Agreement will continue in full force and effect.
You may not assign this Agreement or the rights under this Agreement. We may assign this Agreement and our rights under this Agreement without your consent.
The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of this Agreement, or to exercise any right under this Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and will remain in full force and effect. No consent or waiver by any party to or of any breach or default by any other party in its performance of its obligations under this Agreement will be effective unless it is in writing and signed by all parties, and, unless otherwise provided, will be limited to the specific default or breach waived.
The parties have expressly requested and required that this Agreement and all other related documents be drawn up in the English language.
By using the Application or the Services, you consent to receiving electronic communications from us. These communications will include notices about your account and information concerning or related to the Services. You agree that any notice, agreements, disclosure, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Seamless will be excused for any failure to perform to the extent that its performance is prevented by any reason outside of its control.
This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, and each party further consents to the exclusive jurisdiction of the courts of Ontario.
The terms and conditions contained in this Agreement that are necessary for the interpretation hereof, or the nature and intent of which is to survive termination or expiration of this Agreement, will survive termination or expiration of this Agreement.
17. QUESTIONS AND NOTICES.
All demands, notices, questions, or other communications will be in writing and will be sent to:
Seamless Mobile Health Inc.
Up to date as of November 18, 2020