EQUICARE HEALTH INC.
TERMS OF SERVICE FOR EQUICARE CONNECT™
EFFECTIVE: MAY 1, 2020
EQUICARE HEALTH INC. (“EQUICARE”, “WE”, “OUR” OR “US”) IS WILLING TO GRANT YOU A SUBSCRIPTION LICENSE TO ACCESS AND USE OUR WEB-BASED COMMUNICATION PLATFORM KNOWN AS EQUICARE CONNECT™ AND ALL RELATED WEBSITES, SERVICES, PRODUCTS AND SOFTWARE (COLLECTIVELY, THE “SERVICES”) ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THESE TERMS OF SERVICE (“TERMS”). PLEASE READ THESE TERMS CAREFULLY. BY CLICKING ON “I ACCEPT THE TERMS OF SERVICE”, "SIGN UP", "SIGN IN" OR “LOGIN”, YOU WILL INDICATE YOUR AGREEMENT WITH THEM, INCLUDING YOUR AGREEMENT TO ARBITRATE CLAIMS. THESE TERMS ARE A LEGAL CONTRACT BETWEEN EQUICARE AND THE SUBSCRIBER (DEFINED BELOW). IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY OR PERSON, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR PERSON TO THESE TERMS AS THE SUBSCRIBER. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY OR PERSON AS SUBSCRIBER, THEN EQUICARE IS NOT WILLING TO GRANT YOU ACCESS TO OR USE OF THE SERVICES.
1. Defined Terms. In addition to the terms defined elsewhere in these Terms, the following terms have the following meanings:
(a) “Authorized User” means each unique identifiable individual (e.g., health practitioner, staff, patient) who is authorized to access and use the Services, as determined by the Subscriber; and
(b) “Subscriber” means anyone who subscribes to and pays for the Services.
2. Application of Terms. These Terms apply to the access to and use of the Services by the Subscriber and each Authorized User and are separate from, and not in addition to or in replacement of, the terms of any other agreement between the Subscriber and Equicare, except that if the Subscriber’s use of the Services requires Equicare to process any Protected Health Information (as defined in the BAA), then and to that extent the existing Business Associate Agreement (“BAA”) between the Subscriber and Equicare, as amended or replaced from time to time, is incorporated into and forms part of these Terms. If the BAA applies to the Services, then to the extent there is any conflict with or inconsistency between the terms of that BAA and these Terms, the terms of the BAA will prevail to the extent of such conflict or inconsistency.
3. System Requirements. Use of the Services requires one or more compatible devices, Internet access (fees may apply) and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software and Internet access, the Subscriber’s and each Authorized User’s ability to access and use the Services may be affected by the performance of these factors. High-speed Internet access is recommended. These system requirements, which may be changed from time to time, are the Subscriber’s responsibility.
4. Services. Equicare will provide the Services substantially as described on its website from time to time. Equicare may, in its sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice.
5. Subscription and Fees.
(a) The Subscriber can subscribe to the Services by creating an online account and paying the applicable fees. Subscriptions run on a monthly basis.
(b) Fees are charged monthly in arrears, based on actual use of the Services by each Authorized User, and calculated on a metered basis. The Subscriber can review the usage details by viewing reports available in the Equicare Connect Service. The Subscriber agrees that Equicare may charge to the Subscriber’s credit card, or other payment mechanism offered by Equicare and selected by the Subscriber, all amounts due and owing for the Services, including all fees and applicable taxes.
(c) Equicare reserves the right to change its fees for the Services in the future. If Equicare increases its fees for the Services, then it will provide notice of the change by email to the Account Owner (defined below) at least 30 days before the change is to take effect. The Subscriber’s continued use of the Services after the price change goes into effect constitutes the Subscriber’s agreement to pay the changed amount.
(d) The Account Owner (defined below) may update the Subscriber’s billing information or cancel the subscription at any time by contacting us at: customerservice@equicarehealth.com.
(e) If the Subscriber wishes to dispute any charges, then the Subscriber must advise Equicare within 30 days after the date that those charges are paid to Equicare. In all other cases, all amounts paid are non-refundable.
6. Subscriber Accounts.
(a) Account Owner. The individual who signs up for a subscription on behalf of a Subscriber is the “Account Owner” and is authorized to administer the account for the Subscriber. This includes authorizing additional user accounts for Authorized Users, and granting and revoking user access rights and permissions. Each Subscriber will have only one Account Owner. All questions about a Subscriber’s subscription and its user account(s) should be directed to the Account Owner. A Subscriber may change its Account Owner through its account settings.
(b) Authorized Users. The Subscriber is responsible for the activities of all Authorized Users who access or use the Services through the Subscriber’s account and the Subscriber agrees to ensure that any such Authorized User abides by these Terms and any Equicare policies. Equicare assumes no responsibility or liability for violations.
(c) User Accounts. Subscribers and each Authorized User must provide accurate, current and complete information when creating their user accounts. Subscribers are responsible for all activities that occur under their user accounts and for any issues, claims or disputes arising out of the conduct of their Authorized Users. Subscribers must take appropriate steps to protect their user accounts.
(d) Exclusion. Equicare will not be liable for any losses or damages caused by the failure of a Subscriber or any Authorized User to maintain the confidentiality of a user account or any account credentials. If the Subscriber discovers or suspects any unauthorized access to or use of its or an Authorized User’s user account, please reset your password immediately and notify us at customerservice@equicarehealth.com.
7. Use of Services. A Subscriber can only use the Services pursuant to these Terms. The Subscriber is solely responsible for its and its Authorized Users’ use of the Services and must abide by, and ensure compliance with, all applicable laws and regulatory requirements (“Laws”) in connection with the Subscriber’s and each Authorized User’s use of the Services, including but not limited to Laws related to recording, intellectual property, privacy, personal health information, and export control. Use of the Services is void where prohibited.
(a) Subscriber Content. The Subscriber is solely responsible for the content ("Content") sent or transmitted by the Subscriber or any Authorized User or displayed or uploaded by the Subscriber or any Authorized User in using the Services and for compliance with all Laws pertaining to the Content, including, but not limited to, Laws requiring the Subscriber or any Authorized User to obtain the consent of a third party to collect or use the Content and to provide appropriate notices of third party rights. The Subscriber represents and warrants that it has the right to collect, use and upload the Content and that such collection and use does not violate or infringe on any rights of any third party. Except to the extent expressly provided in the BAA between Equicare and the Subscriber, under no circumstances will Equicare be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content.
(b) Prohibited Use. The Subscriber will not use, and will not permit any Authorized User to use, the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts Equicare’s networks, any user accounts or the Services; (iii) engage in activity that is illegal, fraudulent, false or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable Law; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of Equicare or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or Equicare’s security systems; (ix) use the Services in violation of any Equicare policy or in a manner that violates any Law, including but not limited to anti-spam, export control, privacy or anti-terrorism laws and regulations or Laws requiring the consent of subjects of audio and video recordings, and the Subscriber agrees that it solely responsible for compliance with all such Laws.
(c) Limitations on Use. The Subscriber has no right to reproduce, resell or distribute the Services or any reports or data generated by the Services for any purpose unless the Subscriber has been specifically permitted to do so under a separate agreement with Equicare. The Subscriber may not offer or enable any third parties to use the Services purchased by it, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by the Subscriber or an Authorized User) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
8. Third-Party Services. Portions of the Services may require or result in integrations with third-party services, such as email services and payment processing services. The Subscriber’s use of such third-party services is governed by the legal terms of those third parties, and not by these Terms. Equicare is not responsible for those third-party services and will not be liable to the Subscriber for any damages suffered or incurred by the Subscriber as a result of its use or inability to use (a) any such services, or (b) the Services, to the extent such damages relate to or result from the Subscriber’s use or inability to use any third party services.
9. Privacy. If the BAA between Equicare and the Subscriber applies to the Services, then Equicare will process all Protected Health Information in compliance with the BAA and otherwise in compliance with all applicable Laws.
10. Anonymized Data. Equicare may use computer-generated algorithms to gather anonymous and aggregated information any information collected, entered, created or otherwise provided by the Subscriber and its Authorized Users in the course of using the Services in order to assist in our continued development and improvement of the Services, and for research, data analysis, benchmarking, statistics or trend analysis. Equicare will ensure that none of the information we gather identifies, or could be used to identify, any Authorized User. Equicare may share such anonymized information with Subscribers and others.
11. Ownership of the Services. Equicare owns, or has obtained the rights to use, all intellectual property rights in the Services. This includes the underlying software and technology that operates the Services, all materials and content posted or made available on our website or through the Services, and the trademarks EquicareTM and Equicare ConnectTM.
12. Feedback. Equicare welcomes your feedback on the Services and wants to include your feedback in the Services where possible. To ensure we have the proper rights to do this, you grant Equicare a non-exclusive, royalty-free, worldwide, perpetual and irrevocable right and license to use your feedback and contributions, including incorporating them into the Services and sharing them with other users. Please note that providing feedback or contributions does not make you an author, inventor or contributor of the Services and does not entitle you to any compensation or to any ownership rights in the Services.
13. Government Rights. The software and related materials comprising the Services are commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a) – Rights in non-commercial computer software and non-commercial computer software documentation (1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of these Terms as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defence (“DOD”), the U.S. Government acquires this commercial computer software and / or commercial computer software documentation subject to the terms of these Terms as specified in 48 C.F.R. 227.7202 3 – Rights in commercial software or commercial computer software documentation of the DOD FAR Supplement (“DFAR”) and its successors.
14. Termination
(a) Non-Payment of Fees. If the Subscriber fails to pay any fee (including by reason of any payment method provided by Subscriber being declined or otherwise unavailable to Equicare) within 15 days after the due date for those fees, then Equicare may, without limiting its other rights and remedies, suspend or terminate the Subscriber’s access to the Services until the overdue amounts are paid in full. Equicare will provide at least 7 days prior notice that fees are overdue before it takes such action, and Equicare will not exercise this right if the Subscriber is disputing the applicable fees reasonably and in good faith and is cooperating diligently to resolve the dispute.
(b) Termination by Subscriber. The Subscriber may terminate the Services at any time upon giving written notice to Equicare at customerservice@equicarehealth.com. Termination will be effective on the last day of the month following Equicare’s receipt of the Subscriber’s termination notice.
(c) Termination by Equicare. Equicare may terminate or suspend access to the Services, or suspend or deactivate a Subscriber’s or an Authorized User’s account, if the Subscriber or any Authorized User breaches any obligations under these Terms. Equicare may also terminate a Subscriber’s subscription if Equicare discontinues the Services. Equicare will use its reasonable efforts to notify the Subscriber in advance of any suspension or termination; however, there may be some cases where Equicare needs to suspend access immediately in order to prevent harm to others.
(d) Termination does not relieve a Subscriber of its obligation to pay fees for any period prior to the effective date of termination.
15. Export Restrictions. The Subscriber acknowledges that the Services, or portion thereof may be subject to the export control laws of the United States and other applicable country export control and trade sanctions laws and regulations (“Export Control and Sanctions Laws”). The Subscriber and its Authorized Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any Export Control and Sanctions Laws. The Subscriber represents and warrants that (a) the Subscriber and its Authorized Users are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria and the Crimea) and that the Subscriber and its Authorized Users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (b) the Subscriber and its Authorized Users are not identified on any U.S. government restricted party lists (including without limitation the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons and Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Denied Parties List, Entity List, and Unverified List, and the U.S. Department of State proliferation-related lists); and (c) that no Content created or submitted by the Subscriber or any Authorized User is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. The Subscriber is solely responsible for complying with the Export Control Laws and monitoring them for any modifications.
16. Exclusions
(a) THE SERVICES ARE PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS, AND EQUICARE, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM, AND THE SUBSCRIBER EXPRESSLY WAIVES, ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EQUICARE, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO REPRESENTATION, WARRANTY OR CONDITION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT THE SUBSCRIBER’S SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT THE SUBSCRIBER’S OWN DISCRETION AND RISK. THE SUBSCRIBER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE SUBSCRIBER, ANY AUTHORIZED USER OR ANY THIRD PARTY, INCLUDING ANY PATIENT, RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH THE SUBSCRIBER. EQUICARE DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS.
(b) THE SERVICES ARE A TOOL TO ASSIST THE SUBSCRIBER AND ITS AUTHORIZED USERS IN PROVIDING HEALTH CARE SERVICES AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL ADVICE, MEDICAL CARE, DIAGNOSIS OR TREATMENT OBTAINED FROM A PHYSICIAN OR OTHER PROFESSIONAL HEALTHCARE PROVIDER. EQUICARE CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM ANY CLINCIAL OR OTHER USE OF THE SERVICES. ALL USE, INCLUDING ANY CLINICAL USE, OF THE SERVICES IS AT THE SUBSCRIBER’S OWN RISK.
(c) UNDER NO CIRCUMSTANCES WILL EQUICARE BE LIABLE FOR ANY DATA OR OTHER CONTENT VIEWED WHILE USING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY SUCH DATA OR CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF, ACCESS TO, OR DENIAL OF ACCESS TO ANY DATA OR CONTENT.
17. Limitation on Liability. SUBJECT TO EQUICARE’S OBLIGATIONS WITH RESPECT TO PROTECTED HEALTH INFORMATION UNDER THE BAA:
(a) IN NO EVENT WILL EQUICARE BE LIABLE UNDER CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL LOSSES OR DAMAGES OR FOR ANY LOSSES OR DAMAGES RESULTING FROM LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR DAMAGE TO DATA, COST OF SUBSTITUTE GOODS, OR DAMAGES FOR PURE ECONOMIC LOSS, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, EVEN IF EQUICARE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
(b) THE TOTAL LIABILITY OF EQUICARE TO THE SUBSCRIBER UNDER THESE TERMS WILL NOT EXCEED THE TOTAL AMOUNT THE SUBSCRIBER PAID TO EQUICARE FOR THE SERVICES IN THE 3 MONTH PERIOD PRE-DATING THE DATE OF THE CLAIM, OR CA$100 IF THE SUBSCRIBER DID NOT HAVE ANY PAYMENT OBLIGATION TO EQUICARE DURING THAT 3 MONTH PERIOD.
18. Disputes
(a) Governing Law. All matters relating to access to and use of the Services will be governed by the laws of the Province of British Columbia, Canada, without regard to its conflict of laws provisions.
(b) Agreement to Arbitrate; Waiver of Class Action. The Subscriber agrees to resolve disputes only on an individual basis, through arbitration pursuant to the provisions of Exhibit A to these Terms. The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity.
19. Miscellaneous
(a) Notices. Equicare provide Subscribers with notices, alerts and communications regarding the Services and these Terms electronically to the email address on file for your Account Owner. Account Owners may update their account information at any time by using their account settings. Any notice the Subscriber is required or wishes to provide to Equicare may be provided to the email address and office address set out in Section 20 below.
(b) Waiver and Severability. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of these Terms will remain in full force and effect.
(c) General Provisions. These Terms embody the entire understanding and agreement between the Subscriber and Equicare respecting the Services and supersede any and all prior understandings and agreements between the parties respecting such subject matter, except that if the Subscriber has executed a separate written agreement in addition to the BAA governing use of the Services, then that agreement will control to the extent that any provision of these Terms conflict with the terms of that agreement. Equicare may elect to change or supplement the terms of these Terms from time to time at its sole discretion. Equicare will use commercially reasonable business efforts to provide notice to the Subscriber of changes to these Terms. If the Subscriber does not agree with the changes, then the Subscriber should discontinue using the Services. If the Subscriber continues using the Services after receiving such notice (or after the effective date of any change specified in such notice, whichever is later), then the Subscriber will be deemed to have accepted the changes to the terms of these Terms. These Terms have been prepared in the English language and this version will be controlling in all respects and any non-English version of these Terms that may be posted or provided to the Subscriber are solely for accommodation purposes.
20. How to Contact Equicare. If you have any questions regarding the Services or these Terms, please contact us at: customerservice@equicarehealth.com. Equicare’s address is as follows:
Equicare Health Inc.
Suite 200 - 210 West Broadway
Vancouver, BC V5Y 3W2
EXHIBIT A
BINDING ARBITRATION
This Exhibit A to the Terms describes the further provisions which apply to the Binding Arbitration and Class Action Waiver in Section 18(b) above.
(a) Disputes. A dispute is any controversy between the Subscriber and Equicare concerning the Services, any software related to the Services, the price of the Services, the Subscriber’s account, billing, or any term of these Terms, under any legal theory including contract, warranty, tort, statute or regulation, except disputes relating to the enforcement or validity of Equicare’s intellectual property rights or any dispute that is subject to the provisions of the BAA. As part of the best efforts process to resolve disputes, and prior to initiating arbitration proceedings, each party agrees to provide notice of the dispute to the other party, including a description of the dispute, what efforts have been made to resolve it and what the disputing party is requesting as resolution.
(b) Small Claims Court Available. The Subscriber may initiate an action in its local Small Claims Court if the Subscriber meets the court’s requirements. However, if such a claim is transferred, removed or appealed to a different court, then Equicare reserves the right to require arbitration.
(c) Arbitration Procedure. Disputes not resolved pursuant to Section (a) or (b) in this Exhibit will be resolved through arbitration. The American Arbitration Association (“AAA”) will conduct any arbitration under its Commercial Arbitration Rules. Arbitration hearings will take place in Vancouver, BC, Canada. A single arbitrator will be appointed. The arbitrator must: (i) follow all applicable substantive Law; (ii) follow applicable statutes of limitations; (iii) honor valid claims of privilege; (iv) issue a written decision including the reasons for the award. The arbitrator may award damages, declaratory or injunctive relief, and costs (including reasonable attorneys’ fees). Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction. Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim; however, a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.
(d) Conflict with AAA Rules. These Terms govern if there is a conflict with the AAA’s Commercial Arbitration Rules.
(e) Requirement to File Within One Year. Notwithstanding any other statute of limitations, a claim or dispute under these Terms must be filed in Small Claims Court or noticed for arbitration within one year of when it could first be filed, or that claim will be permanently barred.
(f) Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will be resolved in court, with the balance resolved through arbitration. If any provision of this Exhibit A is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to as nearly as possible achieve the original intent of this Exhibit, inclusive of the severed provision.
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