Terms and Conditions

1. SAAS SERVICES AND SUPPORT

1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative username and password for Customer's Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.

1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company's standard practice.

1.3 Subject to the terms hereof, Customer gives Company consent to communicate with Customer's caregivers through either SMS or phone calls, to collect necessary information required to perform the Services. Customer represents and warrants that it has obtained all consents required under applicable law, including Canada's Anti-Spam Legislation (S.C. 2010, c. 23) ("CASL") and the Unsolicited Telecommunications Rules, for Company to send such communications to Customer's caregivers on Customer's behalf, and that each such communication may include any identification and unsubscribe information required by CASL.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

2.2 Customer may not export or re-export the Services, Software or anything related thereto, or any direct product thereof, in violation of any applicable export control laws or regulations, including those of Canada (including the Export and Import Permits Act (R.S.C., 1985, c. E-19) and regulations administered by Global Affairs Canada) and of the United States (including restrictions of the United States Department of Commerce and the United States Department of Treasury Office of Foreign Assets Control), or of any other applicable jurisdiction.

2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company's standard published policies then in effect (the "Policy") and all applicable laws and regulations, including all federal and provincial laws applicable to Customer's operation of home care or health care services in Canada. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of Services. Although Company has no obligation to monitor Customer's use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services ("Customer Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. For greater certainty, the five (5) year limit does not apply to Personal Information (as defined in Section 8), which shall remain protected for as long as it is in the Receiving Party's possession or control.

3.2 Customer shall own all right, title, and interest in and to the Customer Data. Company shall own and retain all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Implementation Services or support, (c) any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, and (d) all intellectual property rights related to any of the foregoing.

3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, provided that any de-identification is performed in accordance with applicable Canadian privacy law and the de-identified data cannot reasonably be expected to identify an individual. No rights or licenses are granted except as expressly set forth herein.

4. PAYMENT OF FEES

4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the "Fees"). If Customer's use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company's customer support department.

4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month (19.56% per annum) on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Service. Fees are exclusive of all applicable taxes. Customer shall be responsible for all applicable federal and provincial sales and use taxes, including Goods and Services Tax (GST), Harmonized Sales Tax (HST), Quebec Sales Tax (QST) and provincial sales taxes (PST), and any other taxes, levies or duties associated with the Services, other than taxes based on Company's net income.

5. TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the "Term"), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days' notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, privacy obligations, warranty disclaimers, and limitations of liability. Upon termination, Company will, at Customer's option, return or securely destroy Personal Information in its possession or control, except where retention is required by law.

6. WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company's reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

7. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. PRIVACY AND REGULATORY COMPLIANCE (CANADA)

8.1 Definitions. "Personal Information" means information about an identifiable individual, as defined under the Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5) ("PIPEDA"), and includes "personal health information" as defined under applicable provincial health privacy legislation, including Ontario's Personal Health Information Protection Act, 2004 ("PHIPA"), Alberta's Health Information Act, British Columbia's Personal Information Protection Act and E-Health Act, and Quebec's Act respecting the protection of personal information in the private sector as amended by Law 25 (collectively, "Canadian Privacy Laws").

8.2 Roles of the Parties. As between the parties, Customer is the organization with control of the Personal Information (and, where applicable, the "health information custodian" or equivalent under provincial law), and Company processes Personal Information solely as a service provider or agent on Customer's behalf and on Customer's instructions. Where PHIPA or equivalent provincial legislation applies, Company shall act as an "electronic service provider" or "agent" of Customer within the meaning of such legislation.

8.3 Company Obligations. Company shall: (a) collect, use, and disclose Personal Information only as necessary to provide the Services or as required by law; (b) implement physical, organizational, and technological safeguards appropriate to the sensitivity of the information, consistent with PIPEDA's safeguarding principles; (c) notify Customer without unreasonable delay upon becoming aware of any breach of security safeguards involving Personal Information under Company's control, and provide reasonable assistance to enable Customer to meet its breach reporting and notification obligations to the Office of the Privacy Commissioner of Canada, provincial privacy commissioners, and affected individuals; (d) provide reasonable assistance to Customer in responding to individuals' requests for access to or correction of their Personal Information; and (e) ensure that any subcontractor with access to Personal Information is bound by obligations at least as protective as those in this Section 8.

8.4 Customer Obligations and Consent. Customer is responsible for obtaining all consents and providing all notices required under Canadian Privacy Laws for the collection, use, and disclosure of Personal Information in connection with the Services, including consents from clients, patients, and caregivers. Customer shall not provide Company with Personal Information beyond what is necessary for the provision of the Services.

8.5 Records and Audit. Upon Customer's reasonable written request, no more than once per year, Company shall make available information reasonably necessary to demonstrate its compliance with this Section 8.

8.6 Government Programs. If Customer receives funding under any federal or provincial health program (including provincial home and community care programs), Customer is responsible for accurately reporting any discounts or benefits received under this Agreement to the extent required by the applicable funding body.

9. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions, provided that nothing in this Agreement derogates from Customer's obligations, or Company's obligations as a service provider, under Canadian Privacy Laws or other Canadian laws of mandatory application. Customer agrees to participate in a case study upon request. Company may use Customer's name and logo to identify Customer as a customer of Company. Company's use of the name and logo does not create any ownership right therein and all rights not granted to Company are reserved by Customer. The parties confirm that it is their express wish that this Agreement and all related documents be drawn up in English. Les parties confirment leur volonté expresse que cette convention ainsi que tous les documents s'y rattachant soient rédigés en anglais.