Practitioner Terms of Service
The following policy is for practitioners. If you are a merchant, please see our merchant terms of service. if you are a merchant, please see our customer terms of service.
​
1. GENERAL
1.1 TERMS OF SERVICE
These Terms of Service ("Terms of Service") govern your access to and use of Prescrypt Ltd. (the "Company", "us", "we", and "our") services including the Prescrypt Platform and any other services, plans, features, products, content, applications, software, maintenance and training offered by us from time to time (collectively the "Services") identified in one or more Company subscription agreements ("Subscription Agreement" or "Subscription Agreements") or made available by us from time to time.
1.1 ACCEPTANCE
By using or visiting the Services or Prescrypt Platform, you accept and agree to be bound by (i) these Terms of Service, (ii) all Subscription Agreements which are incorporated herein by reference and (iii) our Privacy Policy, found at https://www.prescrypt.ca/privacy-policy (the "Privacy Policy") which is incorporated herein by reference (collectively referred to as the "Agreement"). This Agreement constitutes a binding agreement between the client ("Practitioner", "you", and "your") and the Company. This Agreement represents the parties' entire understanding regarding the Services and shall govern over any prior oral or written agreement or discussions or different or additional terms or conditions of any purchase order, invoice or other non-Company ordering document. No other terms or conditions of any purchase order, invoice or other non-Company ordering document shall apply to the Services.
2. OUR SERVICES
2.1 SUBSCRIPTION SERVICE
Unless otherwise provided in the Subscription Agreement, Services are purchased by Practitioners and provided as subscriptions. Subject to your compliance with this Agreement and your payment of any applicable fees, the Company grants you a non-transferable, non-exclusive, worldwide right to access and use the purchased Services during the subscription term set out in a Subscription Agreement ("Subscription Term").
2.2 NOT PROFESSIONAL ADVICE
We provide online tools and materials to assist you with the preparation, execution and storage of your own loyalty programs and related information, and we may (if provided for in the Subscription Agreement) provide advice regarding the design, strategy and use of such programs and information. However, the documents and other materials available through the Services and any advice provided, (collectively, the "Service Materials") are for informational purposes only; they are not guaranteed to be correct, complete or up-to-date, and all final decisions about the design, strategy and use of any program will be yours. We do not review the Service Materials or any information you input or provide to us for accuracy or sufficiency. You understand that our providing of the Services to you does not constitute any guarantee of a particular outcome or otherwise make us responsible in any way for the success or failure of any program you undertake in connection with the Services.
2.3 PASSWORDS AND SECURITY
In order to use the Service, you will have to register and create an Account with us and provide one or more names, email addresses, login usernames and passwords (together, "ID"). You are responsible for maintaining the confidentiality of your IDs (especially the login usernames and password). You agree not to use your IDs, usernames or passwords of any third party or disclose your IDs, usernames or passwords to any third party. You are responsible for any and all activity that occurs on your Account. If you suspect any unauthorized use with your Account, you must notify us immediately. You agree to provide us with correct and complete Account information at all times and inform us of any changes to the information you have provided. We will, in accordance with our Privacy Policy, keep your usernames and passwords confidential.
2.4 USAGE LIMITS
Services that we provide may be subject to usage limits and restrictions, which may be specified in the Subscription Agreement including, without limitation, the locations at or through which you can use the Services, the number of allowable users, usage volumes, limits on the number of recipients, etc. You agree to use the Services within the usage limits set out in the Subscription Agreement. It is your responsibility to ensure that you do not exceed those limits and restrictions. We have the right, but not the obligation, to monitor or remotely audit your use of any Service. Extra charges will apply if you exceed any usage limits at our then-current usage fees.
2.5 NECESSARY EQUIPMENT TO USE THE SERVICES
You are responsible for obtaining and maintaining all telecommunications, broadband, computer hardware, software, equipment and services needed to connect to, access and use the Services.
2.5 NON CIRCUMVENTION
The Practitioner will not in any way attempt to circumvent the Platform by responding to prescription/authorization requests in any other system. If a Customer requests a prescription/authorization through the Prescrypt Platform the Practitioner may only fulfill the request through the Prescrypt Platform, except with prior written consent from the Company.
3. FEES AND PAYMENT
3.1 FEES
Practitioner agrees to pay “Fees” which will be the greater of:
(i) 25% commission,
(ii) $5 per prescription/authorization
to the Company on all earnings that result from responding to prescription/authorization requests presented by the Company to the Practitioner.
Fees will be deducted from earnings
All fees are non-cancellable and non-refundable. For the avoidance of doubt, you shall not be entitled to any refund in the event of unused Services.
3.2 PAYMENT TERMS
Company will collect payments at a rate agreed between the Practitioner and Company per prescription/authorization fulfilled. Company will calculate the total owed to the practitioner on the monthly anniversary of the Practitioner’s signup date, subtract any owed Fees and notify the Practitioner of the final amount to be paid to them.
Payment will then be made to the Practitioner within 30 days in the form of a cheque, direct deposit or wire transfer.
3.3 FEE CHANGES
Company reserves the right to change any fees upon 60 days of written notice to the Practitioner.
3.4 SUSPENSION RIGHTS
The Company reserves the right to immediately terminate the Services if:
(i) the billing or contact information provided by you is false or fraudulent; or
(ii) you fail to represent yourself or your credentials accurately; or
(iii) your required licenses expire or any other prerequisite to your being able to legally use our platform to write prescriptions is no longer valid.
Any suspension of the Services by us under this section shall not relieve you of your payment obligations under this Agreement. We will not be liable to you nor to any third party for any suspension of the Services resulting from your non-payment of fees.
Additionally, any payments owed to you from the Company will be held indefinitely by the Company for a period of up to 180 days from the date of the suspension.
4. CONTENT AND LICENSE
4.1 CONTENT
The Services contains Content owned by the Company, its suppliers or licensors ("Content"). The Company, its suppliers and licensors own and retain all rights, including all intellectual property rights, in and to the Services and the Content. The Services and Content are protected by copyright, trademark, patent, trade secret and other laws.
4.2 OWNERSHIP AND LICENSE
The Services are licensed and not sold to you. All rights not expressly granted to you in this Agreement are reserved and retained by us. You may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, use or sell any Content or other Content (other than Customer Content) appearing on or through the Services. You must not modify, build upon or block any portion or functionality of the Services. We grant you a limited, revocable, non-sublicensable license to reproduce and display the Content (excluding software code) in connection with using the Services during the Subscription Term. No Service, nor any part of any Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not misuse the Services. You may use the Services only as permitted by law. The licenses granted by us terminate if you do not comply with this Agreement.
4.3 DOCUMENTATION
The Company hereby grants to Practitioner a non-exclusive, non-transferable, worldwide right during the Subscription Term to access and use the user documentation relating to the operation and use of the Services that are provided by the Company to Practitioner under this Agreement, as updated by the Company from time to time ("Documentation"). The Company, its suppliers and licensors own and retain all rights in the Documentation. The Documentation is protected by copyright, trademark, patent, trade secret and other laws.
4.4 SOFTWARE
We may provide the Company software products ("Software") for use in connection with the Service. We grant you a limited, personal, worldwide, non-sublicensable, non-transferable, non-exclusive license to install and execute the Software on machines operated by or for you solely to permit you to use the Services during the Subscription Term. Any Software is licensed and not sold. Software may include code that is licensed under third party license agreements, including open source, made available or provided with the Software, as applicable. The Company, its suppliers and licensors own and retain all rights in the Software. The Software is protected by copyright, trademark, patent, trade secret and other laws.
4.5 RESTRICTIONS
Practitioner shall not (and shall not permit others to): (i) license, sub-license, sell, transfer, distribute or share the Services, Software or Documentation or make any of them available for access by third parties; (ii) create derivative works based on or otherwise modify the Services, Software or Documentation; (iii) disassemble, reverse engineer or decompile the Services or Software or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services; (iv) access the Service, Software or Documentation in order to develop a competing product or service; (v) use the Service, Software or Documentation to provide a service for others; (vi) use the Prescrypt Platform to operate more or different type of applications than permitted under the applicable Subscription Agreement; (vii) remove or modify a copyright or other proprietary rights notice on or in the Services, Software or Documentation; (viii) use a computer or computer network to cause physical injury to the property of another; (ix) violate any applicable law or regulation; (x) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Services; (xi) include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Services; (xii) cause a computer to malfunction, regardless of how long the malfunction persists; or (xiii) alter, disable, or erase any computer data, computer programs or computer software without authorization.
4.6 FEEDBACK
If you or any of your customers ("Customers") sends information to us, for example feedback, comments or suggestions, you grant us a perpetual, sub-licenseable, royalty-free, transferable license to use, modify and incorporate this information into our products and Services. You also agree to waive all moral rights in and to that information.
4.7 MODIFICATIONS
We are entitled to modify or update the Services from time to time in order to adapt it technically, to change menu guidances or layouts or to expand or limit functionality.
5. PRACTITIONER CONTENT AND LICENSE
5.1 PRACTITIONER CONTENT
As an Account holder, you may submit and publish Practitioner Content on the Prescrypt Platform. Practitioner Content is the Content that you upload to the Service. You are exclusively responsible for all Practitioner Content and the consequences of submitting and publishing your Content on the Service. Please choose carefully the Content that you post on the Service. We do not verify the accuracy, quality, content or legality of Practitioner Content. We may, but are under no obligation to, monitor, view, analyze or edit any Practitioner Content. We are not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with Applicable Laws. The Company will not be liable, directly or indirectly, in any way for any damage or loss caused or alleged to be caused by or in connection with Practitioner Content.
5.2 RESPONSIBILITY TO OBTAIN CONSENTS
You are responsible for obtaining all necessary consents, licenses and waivers required to create, record, submit, publish and use Practitioner Content in connection with the Services. These may include consents, licenses and waivers from copyright, trademark and other intellectual property owners, and any other individuals involved in creating Practitioner Content. In addition, you are responsible to pay all applicable royalties, fees and other amounts owing to any Person in connection with the use of any Practitioner Content.
5.3 OWNERSHIP AND LICENSE
As between you and us, you retain all rights of ownership in the Practitioner Content, but content uploaded or created by Customers (patients) remains their ownership. By uploading, displaying or publishing your Content to the Service, you grant us a worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable and transferable license to use, reproduce, modify, distribute, display and perform your Content in connection with the Services. This license is necessary for the Company to perform the Services. For example, without the right to modify Practitioner Content, we would not be able to format Content to satisfy technical requirements for online display. This license allows us to: (i) deliver Practitioner Content in accordance with the preferences set by Practitioner utilizing the Prescrypt Platform; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of Practitioner Content; (iii) use, enhance, personalize, exhibit, broadcast, publish, publicly display, publicly perform, distribute, create derivate works of, promote, copy, store, and/or reproduce (in any form) Practitioner Content on or through the Service; and (iv) utilize Practitioner Content to test the Company's internal technologies and processes. You also grant us, and allow us to grant each Customer or other user of the Services, a non-exclusive license to view Practitioner Content through the Service. We reserve the right to retain (but not display, distribute or publish) server copies of Practitioner Content that have been removed or deleted from the Services.
5.4 REPRESENTATIONS AND WARRANTIES
You represent and warrant that:
(i) you own or have the necessary licenses, rights, consents and permissions to use and publish the Content you submit, write prescriptions and authorize substances; and
(ii) the uploading of your Content on the Service and the licenses granted to the Company under this Agreement do not and will not violate the rights of any Person; and
(iii) you own or have the necessary and up-to-date licenses, rights, consents and permissions to fulfill prescription requests, write prescriptions and authorize substance usages to patients; and
(iv) no payments of any kind shall be due by the Company to any organization for the use or distribution of Practitioner Content.
5.5 PROHIBITED CONTENT
Some Content is prohibited on the Service. You agree that you will not upload or use in connection with the Service any prohibited Content including, without limitation, Content that:
(i) is pornographic, sexually explicit or offensive or contains a link to an adult website;
(ii) contains graphic or gratuitous violence;
(iii) conveys a message of hate against any individual or group;
(iv) encourages or glorifies drug use;
(v) is predatory in nature, or is submitted for the purpose of harassment or bullying;
(vi) is highly repetitive and/or unwanted including "Spam" messages;
(vii) promotes or incites racism, bigotry, hatred or physical harm of any kind against any group or individual;
(viii) constitutes or promotes information that Practitioner knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
(ix) furthers or promotes criminal activity or provides instructional information about illegal activities; or
(x) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any Person.
We reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates these provisions including removing the offending Content without prior notice, terminating or suspending Practitioner's Account or access to the Service and/or reporting such Content or activities to law enforcement authorities.
5.6 CONTENT PRESERVATION AND DISCLOSURE
We may preserve and store Practitioner Content and/or disclose Practitioner Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
(i) comply with legal processes;
(ii) comply with this Agreement;
(iii) respond to claims that any Practitioner Content violates the rights of any Person; or
(iv) protect the rights, property, or personal safety of the Company, Customers and/or the public.
5.7 CONTENT REMOVAL
We reserve the right to at any time remove the content that does not abide by the rules in this agreement, including but not limited to:
-
No Spam: Content this is irrelevant, repetitive, or nonsensical text is not allowed.
-
Put Contact Info In Its Place: Reviews must not contain phone numbers, email addresses and links to other websites. It can only be contained in the designated fields and made available with permission from the reviewer.
-
No PII: Reviews should not contain any highly PII (personally identifiable information), including but not limited to full names, credit card information, national insurance number, driving license information, etc.
-
No Obscenity: Obscene, profane, or highly offensive content may be removed in some cases. We remove reviews that include personal attacks.
-
Be Honest: Reviews that are dishonest, misleading, have conflicts of interest and/or have been written by employees or people with a vested interest in the product are prohibited. Paid for may also be removed.
-
Keep it Legal: Content may not contain illegal things or link to unlawful content, such as links that facilitate the sale of prescription drugs without a prescription.
-
Respect Copyrights: Content that infringes on others' rights, including copyright is prohibited. For more information or to file a Digital Millennium Copyright Act (DMCA) request.
-
No Plagiarism: Appropriation of other people's content is not allowed.
-
Keep it PG-13: Content that contains sexually explicit material whatsoever is prohibited.
-
No Hate: Content like hate speech that may not advocate against groups of people based on their race or ethnic origin, nationality, religion, disability, gender, age, veteran status, sexual orientation, or gender identity.
-
Don't Incite Violence: Content that clearly incites violence against any particular groups is strictly prohibited.
-
No Cross Promotion: Cross promotion of other products/websites is not allowed. Content should not include promotional content for other websites, products, services, etc when unrelated to the current Practitioner's site.
-
Keep it On-topic: Content should be on-topic and about the product, service or store it is reviewing.
-
Reviews Should be 1st Hand: Reviews must be submitted as first-hand experiences.
-
Don't Impersonate: People claiming to be someone that they are not are prohibited from using our platform.
-
Avoid Incorrect Languages: Reviews should show in the original language they are written in, unless translated by a 3rd party service or product (like Google Translate).
-
Don't Duplicate: Each review should only appear once in your site. The same review should not be appearing in feeds from different retailers.
6. ANONYMIZED USER DATA
6.1 ANONYMIZED USER DATA
In using the Services you hereby grant the Company full rights to anonymize your Service Data and information so that it does not identify you as a user, identify specific transactions carried out by you, or contain any other confidential user information ("Anonymous Data"). You agree that the Company: (i) has full ownership over Anonymous Data; (ii) has full license to create derivative works and extract information from Anonymous Data; (iii) has full license to combine Anonymous Data (hereafter "Aggregate Data"); (iv) has the right to use the Aggregate Data on an Aggregate Basis (as defined below) only in the furtherance of the Company's business; and (v) may disclose, sell and publish Aggregate Data on an Aggregate Basis to any party through any means. "Aggregate Basis" refers to the combination of parts of information collected or processed from the user, not containing the user's name, with other information from any or all other users of the Services. The Company asserts that user information used on an Aggregate Basis will not be used in a manner that discloses any individually identifiable information about the user or any specific transactions in which the user has engaged. The Company is prohibited from disclosing user information other than on an Aggregate Basis (as defined below), except in accordance with the Privacy Policy or with your express consent.
6.2 RESPONSIBILITY TO OBTAIN CONSENTS
You are exclusively responsible for obtaining all necessary rights, releases and consents from Customers and other third parties to allow Practitioner Data and Customer Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant the Company the rights set out in this Agreement to us. We rely on you to obtain all consents from, and provide all disclosures to, Customers as required under Applicable Law. By using the Services, you represent and warrant to the Company that you have obtained all necessary rights, releases and consents from Customers and other third parties to allow Practitioner Data and Customer Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant us the rights set out in this Agreement.
7. PRIVACY AND SECURITY
7.1 PRIVACY POLICY
Our collection and use of your information and information regarding Customers is governed by our Privacy Policy. You understand that through your use of the Services, you consent to the collection and use of this information, including the transfer of this information to Canada and/or other countries for storage, processing and use by us. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Account.
7.2 SECURITY
The Services are provided by us from data center facilities to which Users have remote access via the internet in conjunction with certain offline components provided by us under this Agreement. We may use third party service providers to provide limited parts of the Services from time to time, including data storage and processing, and you consent to us subcontracting these services to those third parties. We implement security procedures to help protect your Customer Data from security attacks. However, you understand that use of the Services necessarily involves transmission of your Practitioner Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your Practitioner Data lost, altered, intercepted, copied or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Practitioner Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers. If you become aware of any security breach in the Services, you agree to promptly notify us. We agree to notify you in the event of a detected security breach. All data at rest is encrypted and all data in transit is encrypted.
7.3 NETWORKS
Technical processing and transmission of the Service, including Practitioner Content, may involve: (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Use of or connection to the internet provides the opportunity for unauthorized Persons to circumvent security precautions and illegally gain access to the Service, the Practitioner Data, the Customer Data or the Practitioner Content. We do not guarantee the privacy, security or authenticity of any content, data or information transmitted over or stored in any system connected to the internet.
7.4 MAINTENANCE AND REPAIRS
We use commercially reasonable efforts to ensure that availability of the Services will be uninterrupted and that transmissions will be error-free. However, due to the nature of the internet, this cannot be guaranteed. Also, your access to Services may be occasionally suspended or restricted to allow for repairs, maintenance or the introduction of new facilities or services. We will attempt to limit the frequency and duration of any such suspension or restriction, and we will use commercially reasonable efforts to alert or notify you in the event of any scheduled or non-scheduled suspension of Services. Due to the nature of technical outages, we cannot guarantee notice prior to unplanned outages. We will not be held responsible for any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause which is beyond our reasonable control.
7.5 THIRD PARTY SERVICES
The Services contain features or functionality designed to interact and/or integrate with software, applications or services that are provided by a Person other than the Company ("Third Party Services"). To use these features, you may be required to obtain access to such Third Party Services from their providers, pay fees to the provider of such Third Party Services and/or agree to separate license agreements or terms with those providers. In order to use the Services, you may be required to grant us access to your Accounts to such Third Party Services. You expressly permit us to share Practitioner Content in conjunction with the Third Party Services and Practitioner Data with Third Party Service providers. The Third Party Services may import or export data related to your Account, activity and/or content and otherwise gather data from you and your Customers.
7.6 RESPONSIBILITY
We are not responsible for any Third Party Services or for any act or omission of any third party. The Company does not own, operate or endorse any Third Party Services and does not warrant any Third Party Services. You agree to assume all risks and liabilities associated with the use of any Third Party Services. Third Party Services are operated independently of us and we do not guarantee the availability of any Third Party Services. If the provider of any such Third Party Services ceases to make the Third Party Services available for interoperation with Services, the Company may cease providing such features or functionality without entitling Practitioner to any refund, credit or other compensation. You agree to use the Services only in compliance with the terms and conditions associated with any Third Party Services. We advise you to check the terms of use and privacy policies for all Third Party Services to ensure compliance and determine how they may use your information.
7.7 ACCESS TO DATA BY THIRD PARTIES
If you use Third Party Services, your data may be transmitted outside of the Company system and the provider of the Third Party Services may be able to obtain access to your Practitioner Data in the Company's systems through the Company application programming interface. This may result in the disclosure, modification or deletion of your Practitioner Data by the Third Party Service provider. The Third Party Service provider and its agents may collect and use data pertaining to your configuration and use of the Third Party Service. We are not responsible for any transmission, collection, disclosure, modification, use or deletion of your Practitioner Data, as described in this section, by or through Third Party Services or their providers or any of its agents and partners.
8. DISCLAIMER OF WARRANTIES
8.1 DISCLAIMER OF WARRANTIES
All Services are provided "as is" and on an "as available" basis. Neither the Company nor its suppliers or representatives make any warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or noninfringement. The Company makes no representation, warranty or guarantee that the Services will meet Practitioner's or any Customer's requirement or expectation, that will be accurate, complete or preserved without loss, or that the Services will be timely, secure, uninterrupted or error-free. The Company does not guarantee that security measures will be error-free and will not be responsible or liable for unauthorized access beyond its reasonable control. The Company will not be responsible or liable in any manner for any Practitioner properties, third party products, third party content, or non-Company services (including for any delays, interruptions, transmission errors, security failures, and other problems caused by these items), for regulated data received from the Practitioner in breach of this Agreement, for the collection, use and disclosure of Data authorized by this Agreement or for decisions or actions taken (or not taken) by Practitioner based upon the Services. Practitioner acknowledges that the Company is not a business associate or subcontractor. The disclaimers in this section shall apply to the maximum extent not prohibited by applicable law, notwithstanding anything to the contrary herein. Practitioner may have other statutory rights. However, any statutorily required warranties under applicable law, if any, shall be limited to the shortest period and maximum extent permitted by law.
9. INDEMNIFICATION
9.1 BY THE COMPANY
We will indemnify, defend and hold harmless Practitioner from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against the Practitioner to the extent based on an allegation that the Company's technology used to provide the Services to the Practitioner infringes or misappropriates any copyright, trade secret, patent or trademark right of a third party that is issued or registered in Canada.
In no event will we have any obligations or liability under this section arising in whole or in part from any content, information or data provided by Practitioner, Customer or other third parties. The Company shall not be required to indemnify Practitioner in the event of: (a) modification of the Services by Practitioner, its employees, or contractors in conflict with Practitioner's obligations or as a result of any prohibited activity as set forth herein; (b) use of the Services in a manner inconsistent with the Documentation; (c) use of the Services in combination with any other application, product, or service not provided by the Company if such claim would not have occurred without such combination; or (d) use of the Services in a manner not otherwise contemplated by this Agreement; or (e) any patient issues that result from prescriptions written or substances authorized with our platform.
9.2 CLIENT INDEMNIFICATION
Practitioner shall indemnify, defend and hold harmless the Company from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against the Company or its affiliates regarding: (i) Practitioner Content, Practitioner Data or Customer Data; (ii) failure by the Practitioner to obtain any of the necessary consents required by Customers under this Agreement; (iii) Practitioner's use of the Services in violation of this Agreement; and/or (vi) violations of Practitioner's obligations of privacy to any Person, or (v) any patient problems that result from misdiagnoses, prescriptions that should not have been written or substance authorizations that should not have been authorized to a Customer.
9.3 POSSIBLE INFRINGEMENT
If we believe the Services infringe or may be alleged to infringe a third party's intellectual property rights, then we may: (i) obtain the right for you (at our expense) to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If we do not believe that the options described in this section are commercially reasonable, then we may suspend or terminate Practitioner's use of the affected Services (with a pro-rata refund of prepaid fees for the Services).
9.4 PROCESS
The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other party may join the defense with its own counsel at its expense.
9.5 EXCLUSIVE REMEDY
The indemnities above are the Company's and Practitioner's only remedy under this Agreement for third party infringement claims and actions.
10. LIMITATIONS OF LIABILITY AND DAMAGES
10.1 LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, MEDICAL HARM OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY'S TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO THE COMPANY FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 11 EXCLUDES EITHER PARTY'S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY'S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 11 SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 11 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY COMPANY TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. CONFIDENTIAL INFORMATION
11.1 CONFIDENTIAL INFORMATION
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (together "Confidential Information" of the Disclosing Party). Such information includes, without limitation, information relating to pricing of Services, Practitioner Data and your ID. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as permitted in this Agreement) or divulge to any third person such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can demonstrate that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without any obligation of confidentiality to a third party or breach of any obligation of confidentiality to the Disclosing Party; (iv) was independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information; or (v) is required by law. The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party.
12. TERM AND TERMINATION
12.1 TERM
This Agreement shall commence on the date set out in the first Subscription Agreement and shall remain in effect through the end of the Subscription Term in any current Subscription Agreement, unless terminated earlier pursuant to the terms of this Agreement (the "Initial Term").
12.2 TERMINATION
Either party may terminate this Agreement effective immediately upon written notice: (i) if the other party materially breaches a material obligation under this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement or an assignment for the benefit of creditors.
12.3 EFFECT OF TERMINATION
Upon expiration or other termination of the Service for any reason, your right to access and use the Service shall terminate. If you terminate this Agreement or any Subscription Agreement solely due to a material breach of this Agreement by us.. If we terminate this Agreement or any Subscription Agreement for your material breach, all fees set out on such Subscription Agreement shall be immediately due and payable.
12.4 RETURN OF CLIENT DATA
At the end of the Subscription Term, you will be entitled to extract Practitioner Content stored using the Services, Practitioner Data and Non-Anonymized Customer Data for a period of seven (7) days following termination (the "Extraction Grace Period"). Following the Extraction Grace Period, the Company shall have the right to delete all of Practitioner Content, Practitioner Data and Non-Anonymized Customer Data at any time and cancel your Account with us. You acknowledge and agree that archived versions of the Services may include archived copies of Practitioner Content, Practitioner Data and Non-Anonymized Customer Data which may be retained by us for an archive cycle.
12.5 SURVIVAL
Upon termination of this Agreement for any reason, Practitioner shall pay all amounts owed hereunder. Sections 3.3, 4.1, 4.6, Article 9, Article 10, Article 11, Article 12, Article 13 and Article 14 of this Agreement, together with any other provision required for their construction or enforcement, shall survive termination of this Agreement for any reason.
13. GENERAL PROVISIONS
13.1 DEFINITIONS
Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, shall have the following meanings: "Account" means the Prescrypt account, which includes a username and password, used by Practitioner to access and use the Service. "Applicable Laws" means all statutes, codes, rules, regulations, by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, policies, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the Person referred to in the context in which such word is used. "Business Partners" means affiliates, licensors, or clients, customers, other users and other third parties that the Company does business with. "Practitioner Data" means non-anonymized electronic data pertaining to Practitioner, the Users and the Customers that is collected and/or processed using the Service, including personal information, login credentials, and other information that relates to such parties' use of the Service. "Content" means any all content, data and other materials including, without limitation, images, trademarks, html e-mail codes, live streams, documentation, reports, materials, files, text, logos, artwork, graphics, pictures, advertisements, works, works of authorship or any other intellectual property contained in any such materials. "Customer" means any customer that uses or views the Practitioner Content, including your customers. "Customer Data" means the electronic data concerning the characteristics and activities of Customer (including personal information of such Customer) collected and analyzed by the Service relating to such Customer use or viewing of the Practitioner Content. "Person" means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any person acting in a representative capacity. "Product Overview" means the overview of the Services to be provided to a Practitioner set out in the Subscription Agreement. "Users" means Practitioner's employees, representatives, consultants, contractors or agents who are authorized to use the Services for Practitioner's benefit and have unique user identifications and passwords for the Services. "Prescrypt Platform" means the code, technology and servers used in the operation and provision of the Services and includes the Documentation and Software.
13.2 ASSIGNMENT
You may not assign this Agreement, nor any of the rights or obligations arising thereof, in whole or in part, to any third party without our prior written consent. We may assign this Agreement, as well as any of our obligations or rights, to a successor entity resulting from a merger, acquisition or consolidation involving the Practitioner.
13.4 CONFLICT
In the event of any conflict between these Terms of Service and a Subscription Agreement, the terms of the Subscription Agreement shall govern.
13.5 NOTICE
Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by an internationally recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by email, except that email shall not be sufficient for notices of termination or regarding a Claim. Notices shall be sent to the parties as set forth on the signature page of this Agreement or as otherwise agreed to by the parties in writing.
13.6 PUBLICITY
You permit us to list you as a client and use your standard logo for our promotional and marketing use during the Subscription Term.
13.7 FORCE MAJEURE
Except for your obligation to pay fees for the Services, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include, without limitation, accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism or the stability or availability of the Internet or a portion of it.
13.8 WAIVER AND AMENDMENT
A waiver of any right is only effective if it is in writing and only against the party who signed such writing and for the circumstances given. Any modification of this Agreement must be in writing and signed by both parties.
13.9 RELATIONSHIP OF THE PARTIES
The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship.
13.10 GOVERNING LAW; VENUE; TIME FOR BRINGING ACTION
This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable in that Province. Any action or proceeding arising from or relating to this Agreement may only be brought in the courts located in Kitchener, Ontario and each party irrevocably submits to such exclusive jurisdiction and venue. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement. No cause of action arising hereunder or relating hereto may be brought more than one (1) year after it first accrues. It is the express will of the parties that this agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
13.11 INTERNATIONAL USERS
The Services are controlled, operated and administered by the Company (or its licensees) from its offices within Canada and is not intended to subject the Company to the laws or jurisdiction of any state, country or territory other than those of Canada. Those who choose to access the Services do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You are also subject to Canadian export controls and are responsible for any violations of such controls, including without limitation any Canadian embargoes or other federal rules and regulations restricting exports. Additional charges such as customs, fees, taxes, and import duties are the responsibility of the buyer. Without limiting the foregoing, the Company may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion. If you have any questions about these Terms of Service or if you wish to provide any feedback with respect to the Services, please contact us at: help[*@*] Prescrypt dot – c then “a”.