TASSONE HEALTH INNOVATIONS INC.
MASTER SUBSCRIPTION AGREEMENT FOR URU PROGRAM
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF TASSONE HEALTH INNOVATIONS INC.’s (hereinafter “THI”) SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
AS PART OF THE SERVICE, THI WILL PROVIDE YOU WITH USE OF THE URU PROGRAM, INCLUDING A BROWSER INTERFACE, TRANSMISSION, ACCESS AND PRINTING CAPABILITY.
IF A FREE TRIAL IS AVAILABLE AND OFFERED TO YOU BY THI, AND YOU SUBSEQUENTLY REGISTER FOR A FREE TRIAL FOR THI’S SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
This Agreement was last updated on November 27, 2017. It is effective between You and THI as of the date of You accepting this Agreement.
In this Agreement, unless the context otherwise requires, the following terms have the following meanings:
- “Authorized User” means the TCM Practitioner who is authorized to use the Services and has been supplied with a user identification and password;
- “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Patient Data. THI’s Confidential Information includes the Content, THI’s Technology and the Services. Confidential Information of each party includes the terms and conditions of this Agreement and all Membership Agreements (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that:
- is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
- was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
- is received from a third party without breach of any obligation owed to the Disclosing Party; or
- was independently developed by the Receiving Party;
- Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Services;
- “Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date you begin using the Services;
- “Enhancements” means any change, translation, abridgement, condensation, retrenchment, revision, upgrade, improvement, enhancements, customizations, expansion, additions or other modification made to the URU PROGRAM;
- “Initial Term” means the initial period during which you are obligated to pay for the Services equal to the term of the Membership Agreement selected by you during the subscription process;
- “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
- “License” means the license granted to an Authorized User;
- “Initial Term(s)” means the period(s) during which the Authorized User is licensed to use the Services pursuant to the Membership Agreement;
- “Membership Agreement” means the form, once accepted by THI evidencing the initial subscription for the Services and any subsequent order forms specifying, among other things, the right to obtain URU PROGRAM’s and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Membership Agreement to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Membership Agreement, the terms of this Agreement shall prevail);
- “Patient Data” means the aggregate of the material, content and information inputted, provided and submitted by You in order to generate an URU PROGRAM and for greater certainty includes any reports, data, databases resulting therefrom;
- “Services” means the specific services identified during the ordering process and known as URU PROGRAM, developed, operated, and maintained by THI, accessible via https://uruprogram.com or another designated web site or IP address, or offline products and services provided to you by THI, to which you are being granted access under this Agreement, including the THI Technology and the Content;
- “TCM Practitioner” means the individual who is licensed by the relevant governmental agency to practice acupuncture or provide other services associated with the practice of traditional Chinese medicine;
- “THI” means collectively Tassone Health Innovations Inc., a corporation incorporated under the laws of the Dominion of Canada, having its principal place of business at 1120 Finch Ave. West, Suite 701, Toronto, Ontario, M3J 3H7; and
- “THI Technology” means all of THI’s proprietary technology (including URU PROGRAM, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by THI in providing the Services.
- PRIVACY; DISCLOSURE
2.2 Neither party will disclose the terms of this Agreement or any Membership Agreement to any third party other than its legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its legal counsel or accountants will remain responsible for such legal counsel’s or accountant’s compliance with this Section 2.2. Notwithstanding the provisions of this Section 2.2, if THI is required by any applicable law or regulation or by legal process to disclose any of Your Confidential Information, THI shall provide You with prompt notice of such request or requirement in order to enable You:
(a) to seek an appropriate protective order or other remedy;
(b) to consult with THI with respect to taking steps to resist or narrow the scope of such request or legal process;
(c) to waive compliance, in whole or in part, with the terms of this Agreement; or
(d) In the event that such protective order or other remedy is not obtained, or You waive compliance, in whole or in part, with the terms of this Agreement, THI shall use good faith efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to ensure that all Confidential Information that is so disclosed will be accorded confidential treatment to the fullest extent available. Provided that THI has complied fully with the provisions of this paragraph, such disclosure may be made by it without any liability hereunder.
To the extent that any Confidential Information may include material subject to the solicitor-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that the use by THI of the Patient Date in order to produce the URU PROGRAM is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the solicitor-client privilege, work product doctrine or other applicable privilege. All Confidential Information that is entitled to protection under the solicitor-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges to the fullest extent available under applicable law. Nothing in this Agreement obligates any party to reveal material subject to the solicitor-client privilege, work product doctrine or any other applicable privilege. The disclosure obligations contained herein shall continue for a period of ten (10) years after expiration or termination of this Agreement.
- GRANT OF LICENSE AND RESTRICTIONS
3.1 THI hereby grants to You a non-exclusive and non-transferable license during the Term, to use Services and to input Patient Data in the manner contemplated herein solely for Your own internal business purposes, subject to the terms and conditions of this Agreement. You may not access the Services if you are a direct competitor of THI, except with THI’s prior written consent. The license granted does not permit You to, and You will not:
- license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Content in any way;
- provide, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use the Services for their own benefit or for the benefit of third parties;
- modify, incorporate into or with other service, or create a derivative work of any part of the Services;
- create Internet “links” to the Services or “frame” or “mirror” any Content on any other server or wireless or Internet-based device;
- access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or
- copy, reproduce, duplicate, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Services by any means whatever.
3.2 You will also be asked to choose a username and a password for each Authorized User. THI may change any username and password for any Authorized User at any time, with notice to You following any such change. Each Authorized User must use his or her own username and password and shall not disclose them to anyone else. You shall immediately notify THI of any unauthorized disclosure. You are responsible for:
(a) each Authorized User’s compliance with this Agreement;
(b) any person to whom You have given access to the Services; and
(c) any person who gains access to Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
- FREE TRIAL
If You register on our website for a free trial, THI will make one or more Services available to You on a trial basis free of charge until the earlier of:
(a) the end of the free trial period for which you registered to use the applicable Services(s);
(b) the start date of any Services subscriptions ordered by You for such Services(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY PATIENT DATA YOU ENTER DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SERVICES OR EXPORT SUCH PATIENT DATA, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTION 13 (REPRESENTATIONS, DISCLAIMERS, LIMITED WARRANTY AND EXCLUSIVE REMEDIES), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. Please review the terms during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments must be made monthly in advance unless otherwise mutually agreed upon in the Membership Agreement. All payment obligations are non-cancelable and all amounts paid are non-refundable. You are responsible for paying for the License ordered for the entire Initial Term chosen by You upon the execution of the Membership Agreement, whether or not such Licenses are actively used. You must provide THI with approved Membership Agreement information as a condition to signing up for the Services.
- YOUR RESPONSIBILITIES
You are responsible for all activity occurring under your Authorized User accounts and shall abide by all applicable local, provincial, state, federal, territorial, national and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. You shall:
(a) notify THI immediately of any unauthorized use of any password or account or any other known or suspected breach of security;
(b) report to THI immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Authorized Users; and
(c) not impersonate another THI user or provide false identity information to gain access to or use the Services.
- YOUR INFORMATION
THI does not own any Patient Data. You, not THI, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Patient Data, and THI shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to save any Patient Data.
Subject to the terms and conditions of the Agreement, You grant to THI a limited, revocable, non-transferable and non-exclusive license to use the Patient Data for the sole purpose of providing the Services hereunder.
THI shall implement reasonable and appropriate technical, physical and organizational security procedures consistent with prevailing industry standards to protect the Patient Data against unauthorized, unlawful or accidental access, collection, use, loss, theft, threats, alteration, disclosure, copying, destruction or disposal, and provide a level of security for the Patient Data that is appropriate to the sensitivity of the Patient Data. Without limiting the generality of the foregoing, THI shall comply with any security and privacy-related requirements explicitly agreed upon in writing by the parties to this Agreement. However, THI cannot guarantee that unauthorized third parties will never be able to defeat those measures to access your data for improper purposes. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, confidential information and property.
THI will attempt to provide continuous availability and access to Services. In the event that we are unable to provide access for reasons beyond our control, we will communicate the reasons for the outage and expected duration of the outage clearly and explicitly to You. These outages could be due to third parties that the Services depends on.
- INTELLECTUAL PROPERTY OWNERSHIP
THI alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the THI Technology, the Content and the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the THI Technology or the Intellectual Property Rights owned by THI. The THI name, the THI logo, and the product names associated with the Services are trademarks of THI or third parties, and no right or license is granted to use them.
- BILLING AND RENEWAL
THI charges and collects in advance for use of the Services. THI will issue an invoice to you each month in advance of the month end, or as otherwise mutually agreed upon. Should you wish to renew the Membership Agreement at the end of the Initial Term, the renewal fees payable by You will be based on THI’s then current license fees in effect. Fees for other services will be charged on an as-quoted basis. THI’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
You agree to provide THI with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, THI reserves the right to terminate your access to the Services in addition to any other legal remedies. Unless THI in its discretion determines otherwise Authorized Users will be billed in Canadian dollars and subject to Canadian payment terms and pricing schemes.
If you believe your bill is incorrect, you must contact us in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
- NON-PAYMENT AND SUSPENSION
In addition to any other rights granted to THI herein, THI reserves the right to suspend or terminate this Agreement and your access to the Services if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for the License during any period of suspension. If you or THI initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with section 9 above BILLING AND RENEWAL. You agree that THI may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
THI reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Services. You agree and acknowledge that THI has no obligation to retain Patient Data and that such Patient Data may be irretrievably deleted if your account is 30 days or more delinquent.
- TERMINATION UPON EXPIRATION
This Agreement commences on the Effective Date. The Initial Term will be as mutually agreed upon in a Membership Agreement, commencing on the date you agree to pay for the Services, or on the start date of the Membership Agreement. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term at THI’s then current fees. Either party may terminate this Agreement effective only upon the expiration of the then current Initial Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term.
In the case of free trials, notifications provided through the Services indicating the remaining number of free URU PROGRAM’s available in the free trial shall constitute notice of termination. You agree and acknowledge that THI does not save, nor has the obligation to retain, the Patient Data, after it is inputted by you into the Services.
- TERMINATION FOR CAUSE
Any breach of your payment obligations or unauthorized use of the THI Technology or Services will be deemed a material breach of this Agreement. THI, in its sole discretion, may terminate your password, account or use of the Services if you breach or otherwise fail to comply with this Agreement. In addition, THI may terminate a free account at any time in its sole discretion. You agree and acknowledge that THI has no obligation to save or retain the Patient Data after it is inputted by you into the System.
- REPRESENTATION, DISCLAIMERS, LIMITED WARRANTY AND EXCLUSIVE REMEDIES
13.1 Each party represents and warrants that it has the legal power and authority to enter into this Agreement. THI represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will perform substantially in accordance with the online THI help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Services and that your billing information is correct.
13.2 Except as set forth in Section 13.1, THI makes no representations, warranties or conditions, express, statutory or implied, with respect to uninterrupted or error free service, accessibility, privacy of files, security. THI expressly disclaims all representations, warranties or conditions, including without limitation any implied or statutory warranties or conditions of merchantability, title, non-infringement or fitness for a particular purpose. THI does not warrant that the Services will meet Your requirements or that they will be error free. THI makes no representation or warranty regarding accessibility to, or the privacy or security of, any of Your information, files or data. You assumes the entire risk as to the results and performance of the Services. The You acknowledges that it has or will have independently determined that the Services meets your business requirements and that you have not relied on any representation by THI as to the suitability of any item for any particular purpose. THI does not represent or warrant that the Services will be capable of achieving any particular result or results in Your business or operations. Except as expressly stated otherwise in this agreement, the Services provided and licensed on an “as is” basis without warranty or representation of any kind. THI’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
13.3 Notwithstanding anything herein to the contrary, THI’s entire liability, and Your sole and exclusive remedy, for a breach by THI of this Agreement and the license herein granted or Services herein provided shall be, at THI’s sole option, for THI to:
- return the Fees paid by You for the current Term; or
- use all commercially reasonable efforts to promptly correct the breach.
Further, in no event whatsoever will THI, its directors, officers, employees, agents, contractors or affiliates, be liable for any claim for:
(c) punitive, exemplary or aggravated damages;
(d) damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of computer resources or any stored data, including Your Information;
- indirect, consequential or special damages of any kind;
- contribution, indemnity or set-off in respect of any claims against You by any third party; or
- any damages whatsoever relating to interruption, delays, errors or omissions.
13.4 Without limiting the generality of Sections 13.2 through 13.3 inclusive, the maximum total liability of THI, and its directors, officers, agents, representatives, shareholders and employees, for any claim whatsoever, under any circumstances, regardless of the cause of action and including without limitation claims for breach of contract, tort, negligence or otherwise, and Your sole remedy therefore, shall be strictly limited to an award for direct, provable damages not to exceed the amount of Fees paid by You to THI hereunder for the current Term. No action, regardless of form, arising out of this Agreement may be brought by You more than twelve (12) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by, You.
13.5 Certain jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
14.1 You agree to indemnify and hold THI, its directors, officers, employees, agents, contractors and affiliates, harmless from and against any loss, damage or liability, including reasonable legal costs that THI may suffer or incur as a result of or in connection with any of the following:
- Your use of the Services;
- any claim or suit made by any of Your clients;
- any breach by You of the obligations under this Agreement;
- Your use of the Services in any manner not contemplated by the documentation or the modification or unauthorized use of the Services; or
- Your use of the Services in connection with any activity that is illegal, offensive or immoral or that infringes on the rights of privacy or publicity, or any intellectual or proprietary rights of any third party.
14.2 THI agrees to indemnify and hold You, its directors, officers, employees, agents, contractors and affiliates, harmless from and against any loss, damage or liability, including reasonable legal costs, that You may suffer or incur as a result of or in connection with any claim in which it is determined by an arbitrator, a court of competent jurisdiction, or admitted in writing by THI, that the use by You of the Services provided by THI in accordance with the terms of this Agreement has infringed the trademark, patent, copyright or other similar intellectual property rights of any third party.
- EXPORT CONTROL
You will not use or access the Services in a country other than the country identified in the Membership Agreement if that country appears on the Export Control List maintained by the Department of Foreign Affairs, Trade and Development Canada, or such other department who subsequently maintains and controls said list, without the prior written consent of THI.
THI may give notice by means of a general notice on the Services, electronic mail to your e-mail address on record in THI’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in THI’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to THI (such notice shall be deemed given when received by THI) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to THI at the following addresses: 1120 Finch Ave. West, Suite 701, Toronto, Ontario, M3J 3H7; addressed to the attention of: The CEO.
- MODIFICATION TO TERMS
THI reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement on the Services. You are responsible for regularly reviewing this Agreement. Continued use of the Services after any such changes shall constitute your consent to such changes.
- ASSIGNMENT; CHANGE IN CONTROL
This Agreement may not be assigned by you without the prior written approval of THI but may be assigned without your consent by THI to: (a) a parent or subsidiary, (b) an acquirer of assets, or (b) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of THI directly or indirectly owning or controlling 50% or more of you shall entitle THI to terminate this Agreement for cause immediately upon written notice.
- GENERAL PROVISIONS
19.1 The termination of expiration of this Agreement will not affect the survival and enforceability of any provision of this Agreement which is expressly or impliedly intended to remain in force after such termination or expiration.
19.2 Except for THI’s rights of termination, any dispute regarding the interpretation, compliance with or breach of this Agreement will be settled by binding arbitration in accordance with the provisions of the Arbitration Act (Ontario), with all hearings to take place in the Province of Ontario, unless otherwise agreed by the parties. Any judgment, decision or award rendered by such arbitrator shall be final and binding and shall not be the subject of any further court proceeding except in connection with the enforcement of any such award by a court of competent jurisdiction. The costs of arbitration, including legal fees and disbursements of the parties, shall be allocated by the arbitrator in the manner that the arbitrator, in his or her discretion, considers appropriate. This section does not affect the rights of the parties to seek injunctive relief when appropriate to enforce their respective rights hereunder.
19.3 This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. Each party hereby submits to the non-exclusive jurisdiction of the Province of Ontario in connection with this Agreement.
19.4 This Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective successors, affiliates and permitted assigns.
19.5 THI will have no obligation to provide Services to the extent and for the period that THI is prevented from doing so by reason of force majeure or any cause beyond its reasonable control.
19.6 Upon execution of this Agreement, THI shall be entitled to represent that You are a licensee of THI products and THI shall be permitted to use Your business name and logo to identify You as a licensee of THI products provide a link to Your website from THI’s website.
19.7 The communications between You and THI use electronic means, whether You visit the Website or send us emails, or whether THI posts notices on the Services or communicates with you via email. For contractual purposes, You:
(a) consent to receive communications from THI in an electronic form; and
(b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that THI provides to You electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waiveable rights.