End user license agreement (EULA)
Date effective : 21 November 2017
THIS APP IS NOT INTENDED FOR USE BY INDIVIDUALS UNDER THE LEGAL AGE OF MAJORITY.
This End-User License Agreement (“Agreement”) sets forth the terms and conditions upon which you may download and use the Portable EHR software application, related services, and all updates and upgrades provided to you by us under the same terms (collectively, “App”) and related documents provided to you by us (“Documents”) by 9302913 Canada Inc, Inc. (hereinafter “Portable EHR”, “We”, “our” or “us”) and/or its authorized distributors. “You”, “your”, “yourself”, and “End-user” means you, as an individual. This Agreement does not apply to future versions of the Portable EHR software application that we provide to you under a separate or different agreement, and such future versions shall be governed by the applicable agreement that we provide or otherwise make available at the time.
PLEASE READ THIS AGREEMENT CAREFULLY IN ITS ENTIRETY BEFORE USING THE APP. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT OR DO NOT HAVE AUTHORITY TO AGREE TO ANYTHING IN THIS AGREEMENT, PLEASE DO NOT USE THE APP. THIS APP IS NOT INTENDED FOR USE BY INDIVIDUALS UNDER THE LEGAL AGE OF THE MAJORITY (IN SOME PROVINCES THIS IS 18 YEARS OF AGE, IN OTHER PROVINCES IT IS 19 YEARS OF AGE). THIS AGREEMENT CONTAINS DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT PORTABLE EHR’s LIABILITY TO YOU. BY USING THE APP, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, THE PROVISIONS, DISCLOSURES, AND DISCLAIMERS SET FORTH IN THIS AGREEMENT ARE FAIR AND REASONABLE, AND YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THIS AGREEMENT IS VOLUNTARY AND IS NOT THE RESULT OF FRAUD, DURESS, OR UNDUE INFLUENCE EXERCISED UPON YOU BY ANY PERSON OR ENTITY.
BY INSTALLING OR OTHERWISE USING THE APP OR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO AGREE TO ANYTHING IN THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION, YOU MUST NOT INSTALL OR MAKE ANY USE OF THE APP, THE DOCUMENTS OR THE SERVICES.
As more specifically set out below, we grant you a non-transferable, non-exclusive license to use of the App and Documents, subject to your compliance with this Agreement and subject to any rules or policies applied by the AppleTM or AndroidTM application store (each an “App store”, as the case may be) from whose site the End-user downloaded the App (“App Store Rules”). The App and/or Documents are not being sold or assigned to you. We and/or the owners of the App and Documents remain the owners of the App and Documents at all times, including all right, title and interest therein.
- By downloading the App from the appropriate App Store and clicking on the "Accept" button below you agree to the terms of the license, which will bind you. The terms of the license include, in particular, limitations on liability in condition 11.
- If you do not agree to the terms of this license, we will not license the App and Documents to you and you must stop using the App and remove it from your device(s).
1.1 The terms of this Agreement apply to the App, the Documents and any of the services accessible through the App (“Services”), including any updates or supplements to the App or any Service, unless they come with separate terms, in which case those terms apply unless stated otherwise in writing by us.
1.2 We may change these terms at any time by sending you an SMS or other electronic message (including email) with details of the change or notifying you of a change when you next start the App. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the App and/or Services. In any case, your continued use of the App or the Services will be considered acceptance of any changes to this Agreement.
1.3 From time to time updates to the App may be issued through the App Store. Depending on the update, you may not be able to use the App or the Services until you have downloaded or streamed the latest version of the App and accepted any new terms.
1.4 You will be assumed to have obtained permission from the owners of the mobile telephone or handheld devices, which are controlled but not owned by you and described in condition 2.2(a) (“Devices”), to download or stream a copy of the App onto the Devices. You and they may be charged by your and their service providers for internet access on the Devices. You accept responsibility in accordance with the terms of this Agreement for the use of the App, the Documents or any Service on or in relation to any Device, whether or not it is owned by you.
1.5 By using the App or any of the Services or Documents, you consent to us collecting and using technical information about the Devices and related software, hardware and peripherals for Services that are internet-based or wireless to improve our products and to provide any Services to you.
1.6 The App or any Service or Document may contain links to other independent third-party websites (“Third-party Sites”). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgment regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
1.7 Any words following the terms “including”, “include”, “in particular” or “for example” or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
2. GRANT AND SCOPE OF LICENSE
2.1 Subject to the terms and conditions of this Agreement, we grant you a non-transferable, non-exclusive, personal, non-commercial license to download from an applicable App Store and install and use the App on a Device running an applicable version of the iOSTM or AndroidTM operating system, subject to the terms of this Agreement and the App Store Rules (collectively, the “License”). You may only install and use the App on multiple Devices if and to the extent that we expressly permit this with respect to the particular version of the App that you download or that we otherwise may provide as an update.
2.2 You may:
- (a) download the App onto your device(s) and view, use and display the App on the Devices for your personal, non-commercial purposes only; and
- (b) use the Documents for your personal, non-commercial purposes only.
2.3 If a fee is required via the App Store at the time of downloading the App, the License shall be of no force or effect unless you promptly pay the required fee in accordance with the applicable payment provisions of that App Store.
2.4 The App shall only be used on Devices running at all times the version of the iOSTM operating system or AndroidTM operating system identified by Portable EHR as the minimum version required for the App to run unless and except where Portable EHR provides any future update to the App to adapt the App to a newer version of the iOSTM operating system or AndroidTM operating system.
2.5 We reserve all right, title, and interest in the App and other Portable EHR technology, including intellectual property and proprietary rights in the Portable EHR software application, related services, Documents, and all updates and upgrades.
3. PATIENT INFORMATION
4. NO MEDICAL ADVICE OR TREATMENT
Portable EHR does not provide medical advice, diagnosis, or treatment. You acknowledge and agree that the App and Services are merely a conduit of information related to yourself and general medical information. You acknowledge and agree that independent third party healthcare providers including physicians, physician assistants, practitioner nurses, nurses, paramedics, emergency care responders, other physician extenders, healthcare systems, healthcare facilities, or other providers of healthcare services (collectively, “Healthcare Providers”) are solely responsible for and will have complete authority, responsibility, supervision, and control over the provision of all medical services, advice, instructions, treatment decisions, and other professional health care services performed, and that all diagnoses, treatments, procedures, and other professional health care services will be provided and performed exclusively by or under the supervision of Healthcare Providers as they, in their sole discretion, deem appropriate. You further acknowledge and agree that Portable EHR does not provide or endorse any medical advice on or through the App and no information obtained through the App can be so construed or used. Portable EHR will have and exercise absolutely no control, authority, or supervision over the provision of any medical services or other professional health care services. The use of the App, the Services, the Documents, all text, graphics, images, audio content, audiovisual content, data, other materials and any other information provided on or entered into or made available through the App, including all healthcare related information, provided by Healthcare Providers, or other third parties (collectively, “Content”) is solely your responsibility. Portable EHR will make all reasonable efforts in accordance with applicable laws and agreements to safeguard the integrity and availability of the Content. Further, when using the App, information may be transmitted over a medium that may be beyond the control and jurisdiction of Portable EHR and its suppliers. Accordingly, Portable EHR assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of the App that is reasonably determined to be beyond Portable EHR’s control. Nothing under this section lessens, nor shall be construed to lessen, Portable EHR’s obligations to comply with applicable privacy laws.
Upon registration, you agree to provide current, accurate, and complete information about you as is required to register to use the App and at other points as may be required in the course of using the App, including your complete legal name, street address, phone number(s), email address, a mobile phone number, and such other information as may be requested by Portable EHR (“Registration Data”). Further, you agree to maintain and update your Registration Data as required to keep it current, accurate, and complete. You acknowledge and agree that Portable EHR may store and use the Registration Data you provide in connection with your use of the App. Portable EHR has the right, but not the duty, to confirm or otherwise verify or check, in its sole discretion, the truth and accuracy of any registration information at any time. Verification of your registration information, specifically, your name, address and/or tax identification number, against a third party database may be considered to constitute a “credit check” under certain laws. Portable EHR is not making, and will not otherwise make, any type of inquiry to any third party regarding any individual’s credit history and personal financial information without first obtaining such individual’s express authorization to do so. Portable EHR may terminate your rights to the entire App, if any information you provide is false, incomplete or inaccurate.
6. LICENSE RESTRICTIONS (“License Restrictions”)
(a) not to (i) copy the App or Documents except where such copying is incidental to normal operation of the App in accordance with this Agreement; or (ii) use the App or Documents to provide any medical advice or to use any of same in place of medical advice from official and properly trained Healthcare Providers;
(b) not to rent, lease, sub-license, loan, market, distribute, export, or resell, translate, merge, adapt, create derivative works of or transfer the right of use to the App or Documents;
(c) not share, disclose, or make available to another person or any third party, the App or Documents, in whole or in part, except to the extent expressly permitted elsewhere in this Agreement;
(d) not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs;
(e) not to reverse engineer, de-compile, disassemble, or otherwise attempt to discover the source code of the App, in whole or part, or transmit or communicate the App over a network or to any third party;
(f) not to disable or circumvent, or attempt to disable or circumvent, any access control or related code, device, process or procedure related to the App;
(g) not to develop, sell, or distribute applications that are capable of launching, being launched from, or are otherwise integrated with, the App or content accessed through the App without Portable EHR’s express written permission;
(h) to keep all copies of the App secure and to maintain accurate and up-to-date records of the number and locations of all copies of the App;
(i) to include our copyright notice on all entire and partial copies you make of the App on any medium;
(j) not to provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
(k) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service (Technology), together License Restrictions.
7. ACCEPTABLE USE RESTRICTIONS (“Acceptable Use Restrictions”)
You must not do any of the following:
(a) use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Service or any operating system;
(b) infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service (to the extent that such use is not licensed and permitted by this Agreement);
(c) transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
(d) use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
(e) collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service;
(f) intentionally or unintentionally violate any applicable local, state, national or international Law, including laws relating to securities exchange and any regulations, requirements, procedures or policies in force from time to time relating to the App;
(g) use the App while driving; and/or
(h) endanger yourself or others.
8. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
8.1 You acknowledge that: (a) all right, title, and interest in and to the App, the Documents, other Portable EHR technology (including, but not limited to, any and all images, photographs, animations, video, audio, music, text, applets, source code and any other computer readable code incorporated into the App and other Portable EHR technology), and any and all associated intellectual property and proprietary rights, anywhere in the world belong to us or our licensors, (b) rights in the App and Documents are licensed (not sold) to you, and (c) you have no rights in, or to, the App, the Documents, the related technology, or any associated intellectual property or proprietary rights, other than the right to use each of them in accordance with the terms of this Agreement.
8.2 You acknowledge that you have no right to have access to the App in source-code form.
9. SUPPORT SERVICES AND FEEDBACK
9.2 You may, from time to time, provide suggestions, contributions, ideas, works, improvements, fixes, innovations, comments or feedback to Portable EHR concerning or relating to your experience with or use of the App or other Portable EHR technology (the "Feedback") including, if applicable, providing such Feedback to Portable EHR, including usage data and qualitative feedback from you and your staff and users. You agree that Portable EHR shall be free to use, compile, process, adapt, disclose, reproduce, license, distribute, and otherwise exploit the Feedback as Portable EHR sees fit in its sole and absolute discretion, without obligation or restriction of any kind. Portable EHR will not be liable to you for any ideas incorporated into its business (including without limitation, product, service or advertising ideas) and will not incur any liability as a result of any similarities that may appear between the Feedback and future Portable EHR products, services or operations.
10.1 You expressly acknowledge and agree that use of the App and any Documents and Services provided is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
10.2 To the maximum extent permitted by applicable law, the App and Documents and Services are provided "as is" and “as available”, with all faults and without warranty of any kind, and we hereby disclaim all warranties and conditions with respect to the App, Documents and Services, either express, implied or statutory, including, but not limited to, any implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, non-infringement of third party rights or warranties arising by course of dealing or custom or trade. We do not warrant against interference with your enjoyment of the App or Documents or Services, that the functions contained in the App or Services will meet your requirements, that the operation of the App or Services will be uninterrupted or error-free, or that defects in the App or Services will be corrected. No oral or written information or advice given by us or our authorized representative shall create a warranty. Should the App or Services prove defective, you assume the entire cost of all necessary servicing, repair or correction.
11. LIMITATION OF LIABILITY
11.1 You acknowledge and agree that the App has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the App as described in the Documents meet your requirements. 11.2 We only supply the App and Documents for domestic and private use. You agree not to use the App and Documents for any commercial, business or resale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
11.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PORTABLE EHR, ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRATORS AND/OR LICENSORS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUE, SALES, DATA, INTERRUPTION OF BUSINESS AND/OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OR INABILITY TO USE THE DEVICES, THE APP, THE DOCUMENTS, THE PORTABLE EHR TECHNOLOGY OR ANY RELATED SERVICES, THE PERFORMANCE OR NON-PERFORMANCE OF ANY OF SAME, OR ANY ERRORS, DEFECTS, DELAYS OR FAILURES RELATING TO ANY OF SAME, IN ALL CASES EVEN IF PORTABLE EHR AND/OR ITS AFFILIATES ARE ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. IN ANY CASE, OUR MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL IN ALL CIRCUMSTANCES BE LIMITED TO CAD $5.00. THIS DOES NOT APPLY TO THE TYPES OF LOSS SET OUT IN CONDITION 11.4.
11.4 The foregoing exclusions and limitations of liability will apply to the fullest extent permitted by law and will survive termination of this Agreement. Nothing in this Agreement shall limit or exclude our liability for any liability that cannot be excluded or limited by applicable law.
12.1 We may terminate this Agreement immediately:
- (a) if you commit a breach of this Agreement which you fail to remedy (if remediable) within 14 days after written notice requiring you to do so;
- (b) if you breach any of the License Restrictions or the Acceptable Use Restrictions; or
- (c) on thirty days notice.
12.2 On termination for any reason:
- (a) all rights, privileges, and licenses granted to you under this Agreement shall cease;
- (b) you must immediately cease all activities authorized by this Agreement;
- (c) you must immediately delete or remove the App from all Devices;
- (d) you must immediately destroy all copies of the App and Documents in your possession, custody or control and certify to us that you have done so. Portable EHR shall not be liable to you, or any third party, for damages of any sort resulting from termination of this Agreement in accordance with its terms.
13. COMMUNICATION BETWEEN US
13.1 If you wish to contact us in writing, or if any condition in this Agreement requires you to give us notice in writing, you can send this to us by e-mail at email@example.com. We will confirm receipt of this by contacting you in writing, normally by e-mail.
13.2 If we have to contact you or give you notice in writing, we will do so by e-mail to the email address you provide to us in your registration for the App.
14. EVENTS OUTSIDE OUR CONTROL
14.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by any act or event beyond our reasonable control, including without limitation, failure of public or private telecommunications networks, denial of service/access attacks, acts or omissions of licensee, acts of government, war, strikes, lockouts, embargoes, or acts of nature (“Event Outside Our Control”).
14.2 If an Event Outside Our Control takes place that affects the performance of our obligations under this Agreement:
- (a) our obligations under this Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
- (b) if the Event Outside Our Control continues for more than 14 days, we can terminate this Agreement with notice to you.
15. OTHER IMPORTANT TERMS
15.1 We may transfer our rights and obligations under this Agreement to another organization, but this will not affect your rights or obligations under this Agreement.
15.2 You may only transfer your rights or obligations under this Agreement to another person if we agree in writing.
15.3 If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights under this Agreement and will not mean that you do not have to comply with those or any other obligations under this Agreement. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
15.4 Each of the conditions of this Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
15.5 Please note that this Agreement, its subject matter and its formation, are governed by Canadian law. You and we both agree that the courts of Canada and the province of Quebec will have non-exclusive jurisdiction.
15.6 The provisions of this Agreement, whether or not contained in the same section, are independent and separable. If any of the provisions of this Agreement shall be invalid or unenforceable under the laws of the jurisdiction where enforcement is sought, or to the extent that the validity, legality, or enforceability of any limitations on and disclaimers of liability are affected by local consumer protection legislation, such invalidity, illegality or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid, illegal or unenforceable provision or provisions and the rights and obligations of the parties shall be construed and enforced accordingly, with the invalid, illegal or unenforceable provision modified so as to be enforced to the fullest extent possible under the laws of that jurisdiction.
15.7 The rights and remedies of Portable EHR set forth in this Agreement are in addition to any rights or remedies Portable EHR may otherwise have at law or in equity.
15.8 If you are entering this Agreement on behalf of a company, you warrant that you have authority to do so.
15.9 The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the parties hereto. Any rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. The headings contained in this Agreement are used solely for convenience and do not constitute a part of the Agreement, nor should they be used to aid in any manner in the construction or interpretation of this Agreement.
15.10 This Agreement shall constitute the entire agreement between you and Portable EHR with respect to the subject matter hereof and supersede all previous communications, representations, warranties, understandings, and agreements, whether electronic, oral, or written, between you and Portable EHR relating to the subject matter hereof.
15.11 The parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture or agency relationship between parties. Neither party shall have the right to obligate or bind the other party in any manner to any third party.