This agreement (“Agreement”) is made between ORBCARE Inc. (the “Corporation”) and you (“You”, “Your” and other similar words). Your access to and use of the Service and Site is governed solely by the terms of this Agreement which supersedes and replaces the terms of any other prior agreement, writing or understanding between You and the Corporation. Under this Agreement, the Corporation provides a web-based service for applications, video conference and scheduling to connect patients and physicians for non-emergency medical related issues. IF YOU HAVE A MEDICAL EMERGENCY, PLEASE GO TO A HOSPITAL IMMEDIATELY. The Corporation reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service or Site at any time, effective upon posting of an updated version of this Agreement at Edocreferral.com. You are responsible for regularly reviewing this Agreement. Continued use of the Service or Site after any such changes shall constitute Your agreement to such changes. BY SUBSCRIBING FOR THE SERVICE OR USING THE SERVICE OR THE SITE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
2) Service. a) Subscription to the Service. Subject to You complying with each term of this Agreement, the Corporation hereby grants to You a revocable, personal, non-sublicensable, non-transferable, non-exclusive right to access and use the Service and Site in accordance with this Agreement solely for personal reasons and not for resale or to provide services to third parties. b) No Sharing. Your access to the Services cannot be shared with anyone. You shall maintain a single user account represented by Your Email Address on the System. You shall only use the Service under this single identity and shall not share Your login password with any other person or permit another person to interact with the Service while You are using the Service. c) Service. The Corporation shall use commercially reasonable efforts to (a) maintain the security of the Service; and (b) make the Service available in accordance with this Agreement. The Corporation reserves the right at any time and from time to time to modify, update, add to or discontinue, temporarily or permanently, features of the Service or Site, upon providing You with written notice of same. This right includes but is not limited to our ability to implement regularly scheduled maintenance updates, fixes and new releases. The Service and Site will be unavailable from time to time for such regularly scheduled and other maintenance and updates.
5) Term and Termination. a) Term. The term of this Agreement shall commence on the Effective Date and continue until terminated in accordance with the provisions of this Agreement. b) Termination. You may cease using the Service at any time. The Corporation may cease providing You the Service (or any portion of it) at any time without notice. As well, You or the Corporation may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within ten (10) days after written notice of such breach. Upon the termination of this Agreement for any reason, (a) the license granted to us in respect of Your Data survives for so long as the Corporation is required by law to retain such information; and (b) the Corporation shall cease providing and You shall cease using the Service; and (c) the Corporation shall be entitled to retain and use Your Data in accordance with the terms of this Agreement, subject always to the laws of the province or territory of Your residence and applicable laws of Canada therein, and, to the extent applicable, the College of Physicians in Canada. The Corporation agrees that upon any early termination of this Agreement, the Corporation will allow You to access free of charge, without the right to modify, enhance or add to, Your Data (either through on-line access or an off-line mechanism provided by the Corporation for a reasonable period of time after termination not to exceed thirty (30) days. Thereafter, the Corporation will remove all Your Data from the System and store it offline. The Corporation will provide Your Data that is offline at a reasonable fee to cover its costs of providing such information. The rights and duties of the parties hereto under Sections 3.f), 4, 5, 6, 7, 8, 9, 10, and 11 shall survive the termination or expiration of this Agreement.
6) Your Representations and Warranties. a) Your Warranties. You hereby represent and warrant to the Corporation now and at all times during Your access and use of the Service, and the Corporation is relying on Your representations and warranties in allowing You to use and access the Service, that: (i) You are a resident of Canada covered by a provincial or territorial medical services plan; (ii) You are physically located in the Canada during the period of any use of any portion of the Service, including but not limited to any conference, interaction or communication (electronically or otherwise) with any provider; (iii) any information that You provide at any time to the Corporation is true, accurate, and complete; and (iv) You have all necessary rights to provide any of Your Data, or any other information, data, materials or content to the Corporation for the purposes described in this Agreement. b) Security Vulnerability. In order to maintain the Service as secure as possible, You must not disclose any security vulnerability to any person except the Corporation. As soon as possible upon discovering any issue or problem that may be pose a risk to the security or use of the system or to Your Data (or any data of any other user of the Service), You must notify us by contacting us at Ttydoc.com.
7) Confidential Information. a) Obligation. You agree to hold the Corporation’s Confidential Information in strict confidence and not to use such Confidential Information for any purpose except as expressly permitted hereunder.
8) Warranty Disclaimer. a) SERVICE WARRANTY DISCLAIMED. THE CORPORATION MAKES NO WARRANTY CONCERNING THE SYSTEM OR SERVICE. ACCORDINGLY, THE SERVICE, THE SYSTEM AND ALL OTHER DATA OR MATERIALS PROVIDED IN CONNECTION WITH THIS AGREEMENT BY THE CORPORATION AND ITS SUPPLIERS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. THE CORPORATION AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. THE CORPORATION DOES NOT WARRANT THAT THE SERVICE SHALL BE PROVIDED ERROR-FREE, ACCURATE, TIMELY, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE. IN ADDITION, THE CORPORATION DOES NOT GUARANTEE ANY UPTIME, SPEED OR AVAILABILITY OF THE SERVICE TO YOU AND SPECIFICALLY DENIES ANY RESPONSIBILITY OR LIABILITY FOR ANY LOSS, DAMAGES OR CLAIM ARISING OUT OF, OR RELATED TO, ANY UNAVAILABILITY OR SPEED OF THE SERVICE (OR PART THEREOF) AT ANY TIME. b) MEDICAL ADVICE. THE CORPORATION DOES NOT PROVIDE MEDICAL ADVICE OF ANY KIND. THE CORPORATION DOES NOT ENDORSE OR RECOMMEND ANY Provider OR OTHER MEDICAL ADVISOR AVAILABLE THROUGH THE SERVICE, OR ANY ADVICE OR PRODUCT RECOMMENDED BY ANY Provider OR ADVISOR. ANY AND ALL ADVICE YOU OBTAIN (AND ANY RESULTS OR LACK OF RESULTS) THROUGH THE SERVICE IS THE RESPONSIBILITY OF THE RESPONSIBLE PHYSICIAN PROVIDING ADVICE OR CARE. WITHOUT LIMITING THE APPLICATION OF ANY OTHER LIMITATION OR EXCLUSION OF LIABILITY UNDER THIS AGREEMENT OR AT LAW, YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE CORPORATION HAS NO LIABILITY WHATSOEVER HOWEVER ARISING FOR ANY ADVICE, RESULT OR LACK OF RESULT FROM SUCH ADVICE OBTAINED FROM ANY PHYSICIAN THROUGH USE OF THE SERVICE. c) THE SERVICE PERMITS YOU TO LINK TO OTHER WEBSITES OR RESOURCES ON THE INTERNET, AND OTHER WEBSITES OR RESOURCES MAY CONTAIN LINKS TO THE CORPORATION’S WEBSITES. THESE OTHER WEBSITES ARE NOT UNDER THE CORPORATION’S CONTROL. YOU ACKNOWLEDGE THAT THE CORPORATION IS NOT RESPONSIBLE OR LIABLE FOR THE CONTENT, FUNCTIONS, ACCURACY, LEGALITY, APPROPRIATENESS OR ANY OTHER ASPECT OF SUCH WEBSITES OR RESOURCES. THE INCLUSION OF ANY SUCH LINK DOES NOT IMPLY ENDORSEMENT BY THE CORPORATION OR ANY ASSOCIATION WITH ITS OPERATORS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT HE CORPORATION SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH WEBSITE OR RESOURCE. d) The Corporation does not pre-screen any of the content submitted, uploaded or contributed by users of the Service. You acknowledge and agree that neither the Corporation, nor any of its employees, officers, directors, shareholders, consultants or advisors bear any liability whatsoever for what You or a third party submits, uploads or contributes to the Service. You agree that the Corporation has the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Service.
9) Indemnity. a) You shall defend the Corporation against any claim, demand, suit or proceeding made or brought against the Corporation by a third party alleging that Your Data or the use of Your Data, or Your use of the Service or System infringes or misappropriates the rights of a third party or violates any applicable law, and You shall indemnify the Corporation for any damages finally awarded against, and for reasonable expenses, including but not limited to legal fees, incurred by the Corporation in connection with any such claim, demand, suit or proceeding; provided, that the Corporation (a) promptly gives You written notice of the claim, demand, suit or proceeding; (b) gives You sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that You may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases the Corporation of all liability); and (c) provides to You all reasonable assistance, at Your sole expense. If for whatever reason You do not defend such claim, demand, suit or proceeding, the Corporation may elect to defend itself, and You shall then indemnify the Corporation for any damages finally awarded against, and for reasonable expenses, including but not limited to legal fees, incurred by the Corporation in connection with any such claim, demand, suit or proceeding.
10) Limitation of Liability. a) The Corporation ‘s total cumulative liability to You for any and all claims arising from or in connection with this Agreement, the Service and the System, shall not exceed the amounts actually paid by You to the Corporation, if any, in the 12 month period immediately preceding Your formal written notice of the claim for liability hereunder. All claims that You may have against the Corporation shall be aggregated to satisfy this limit and multiple claims shall not enlarge this limit. In no event shall the Corporation be liable for special, incidental, indirect or consequential damages arising out of or in connection with this Agreement, including but not limited to, interrupted communications, lost data or lost profits, and damages that result from inconvenience, delay or loss of use of any information or data or of the System or Service, even if the Corporation has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy provided herein. The Corporation does not provide medical advice or recommendations and does not recommend, endorse or warrant any Provider, or any advice received or not received through use of the Service.
11) General Provisions. a) Technical support is available via chat on the Site at the following: OrbCare.com. Such support is only available in English and is only guaranteed to registered account holders. b) Publicity. The Corporation may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the Service, its partnerships and user-based ratings. c) Assignment. You may not assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the Corporation. You agree that he Corporation may subcontract certain aspects of the Service to qualified third parties, provided that any such subcontracting arrangement shall not relieve the Corporation of any of its obligations hereunder. Subject to the foregoing limitation, all terms, conditions, covenants, representatives and warranties under this Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their respective successors, permitted assigns, legal representatives, heirs and trustees. d) Disputes. Except for any issue related to the Corporation’s intellectual property rights, all disputes arising out of or in connection with this Agreement shall be dealt with as follows: a) Firstly, the parties agree to seek to resolve the dispute or controversy through mediation with ADR Chambers before pursuing any other proceedings. Nothing herein shall preclude either party hereto from seeking injunctive relief in the event that said party perceives that without such injunctive relief, serious harm may be done to the party. Either party to the dispute may serve notice on the other of its desire to resolve a particular dispute by mediation. The mediator shall be appointed by agreement between the parties or, if the parties cannot agree within five (5) days after receipt of the notice of intention to mediate, the mediator shall be appointed by ADR Chambers. The mediation shall be held at Toronto, Ontario and conducted in English. The parties agree to attempt to resolve their dispute at mediation. The costs of the mediator shall be shared equally by the parties. If the dispute has not been resolved within thirty (30) days of the notice of desire to mediate, either party may terminate the mediation and proceed to arbitration as set out below; b) Secondly and subject to the mediation provisions set out above, the parties agree that the dispute shall be resolved by arbitration at ADR Chambers pursuant to the general ADR Chambers Rules for Arbitration. Either party may serve notice of its desire to refer a dispute to arbitration. There shall be three (3) arbitrators selected for such arbitration. Each party hereto shall select one arbitrator within five (5) days of receipt of notice of a request for arbitration. The third arbitrator shall be selected by the first two arbitrators. The arbitration shall be held in Toronto, Ontario and conducted in English. The arbitration shall proceed in accordance with the provisions of the Arbitration Act (Ontario). The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie therefrom. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitration shall be divided equally between the parties; and c) Finally, the dispute, if filed, shall be filed only in the provincial and federal courts located in Toronto, Ontario and You hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement or Your use of the Service. To the extent permitted by law, You agree that You shall not bring a claim under this Agreement more than 12 months from when Your claim arises. e) Waiver of Jury Trial and Class Action Rights. TO THE EXTENT PERMITTED BY LAW, AND SUBJECT TO THE MANDATORY ARBITRATION PROVISION, YOU ACKNOWLEDGE, AGREE AND UNDERSTAND THAT, WITH RESPECT TO ANY DISPUTE WITH THE CORPORATION, OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, ARISING OUT OF OR RELATING TO THIS AGREEMENT: (I) YOU HEREBY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and (II) YOU HEREBY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE. f) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein without giving effect to principles of conflict of laws. Subject to the mandatory arbitration provisions, any action or proceeding arising from or relating to this Agreement must be brought in a court sitting in Toronto, Ontario, except for applications for injunctive relief by the Corporation which the Corporation may bring in any jurisdiction. You irrevocably submit to the jurisdiction and venue of such court in any such action or proceeding. g) Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party. You may send notices to OrbCare.com and the Corporation may send any notice to You at the email address provided by You upon subscribing for the Service. Notices shall be deemed to have been given upon the next full business day in the Province of Ontario after being sent. Confirmation of receipt by email by a receiving party shall not be required to confirm receipt. h) Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement shall remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. i) Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. j) Injunctions. You acknowledge that irreparable harm shall result to the Corporation if You breach any obligation under this Agreement and You acknowledge and agree that such a breach would not be properly compensable by an award of damages. Accordingly, You agree that the Corporation shall be entitled to, in addition to other available remedies and damages, injunctive relief or other equitable relief enjoining such breach at the earliest possible date. k) No Joint Venture. Nothing in this Agreement shall be construed or interpreted to make You and the Corporation partners or joint venturers or affiliates of any kind, or to make either one an agent or representative of the other, or to afford any rights to any third party other than as expressly provided herein. You are not authorized to bind the Corporation to any contract, agreement or understanding. l) Questions or Additional Comments. If You have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to contact@OrbCare.com.