These terms of service (the “Terms of Service”) constitute a legally binding agreement between you and Equinoxe Virtual Clinic Corp. (“Equinoxe”) regarding your access to and use of the Software and System. In these Terms of Service, “you”, “your” and other similar words or expressions refer to you as user of the services provided by Equinoxe.
Description of Service. Equinoxe provides a web-based service for applications, video conferencing messaging and scheduling to connect patients and providers for non-emergency medical related issues. If you have a medical emergency, please seek medical attention immediately by phoning your emergency medical system (9-1-1 in many jurisdictions) and/or by going to a hospital.
Amendments. Equinoxe reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software and the System at any time, effective upon posting of an updated version of this Agreement. You are responsible for regularly reviewing this Agreement. Continued use of the Software and access to the System after any such changes means that you agree and consent to any and all such changes.
Terms and Conditions
- Definitions. As used in this Agreement:
“Confidential Information” means all information regarding Equinoxe’s business, including, without limitation, the Software, the System, any software and other confidential or proprietary information, disclosed under this Agreement.
“Data” means any data or information submitted by you or your provider with whom you connect through the Software, and includes, without limitation, Personal Information.
“De-Identified Information” means information provided by you or collected by Equinoxe through the provision of the Services, including Personal Information, and processed to remove all identifying information from it so that it does not identify you and until there is no reasonable basis to believe that the information can be used to identify you.
“Email Address” means a single valid email address which you have provided to Equinoxe.
“Personal Information” means information about an identifiable individual and that allow that individual to be identified.
“Services” means the services provided to you by Equinoxe, including but not limited to the use of the System and the delivery of the Software.
“Software” means the online software delivered by Equinoxe to you using the System, as made available by Equinoxe from time-to-time.
“System” means the technology, including hardware and software, used by Equinoxe to deliver the Software to you in accordance with this Agreement.
“User System” means the technology, including hardware and software used by you to receive or access the Software.
- Subscription to the Software. Subject to your compliance with the terms and conditions of this Agreement, Equinoxe hereby grants you a revocable, personal, non-sub-licensable, non-transferable, non-exclusive right to access and use the Software in accordance with this Agreement solely for personal reasons and not for resale or to provide services to third parties.
- No Sharing. Your access to the Software cannot be shared with anyone. You will maintain a single user account represented by your Email Address on the System. You will only use the Software and access the System under this single identity and will not share your password with any other person or permit another person to interact with the Software using your account information or password.
- Software. Equinoxe shall use commercially reasonable efforts to (a) maintain the security of the Software; and (b) make the Software available in accordance with this Agreement. The Software may be unavailable from time to time for regularly scheduled and other maintenance and updates. Equinoxe does not guarantee any uptime, speed or availability of the Software to you and you hereby acknowledge and agree that Equinoxe shall not be held liable for any special, incidental, indirect or consequential damages arising out of or in connection with your use of the Software, any unavailability or speed of the software, under any legal theory including claims in contract, tort (including negligence), strict liability, breach (fundamental or otherwise) or otherwise.
- Communication Service – No Advice Given. You acknowledge and agree that the Services provided by Equinoxe under this Agreement are limited only to facilitating communication between you and a care provider (similar to a telephone service) and to providing access to the Software, and that the Software operates from within Canada.
- Your use of the Equinoxe Software
- Access and Security Guidelines. You will create your own password to use in association with your Email Address for access to and use of the Software. You are solely responsible for ensuring the security and confidentiality of your password. You shall not share your password with anyone at any time. You will prevent unauthorized access to or use of the Software, and notify Equinoxe promptly of any such unauthorized use. You shall ensure that the User System is secure and uses an up-to-date commercially available anti-virus and security software. Equinoxe has no responsibility whatsoever for any User System. You will not use your access to the System to: (a) harvest, collect, gather or assemble information or data regarding the System or information or data of other Equinoxe users without their consent; (b) access, modify or copy any data or information of the System or other Equinoxe users without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the System or the data contained therein; or (d) harass or interfere with another of Equinoxe’s user’s use and enjoyment of the System. You will, at all times, comply with all local, regional and federal laws of Canada when using the Software and accessing the System. Equinoxe makes no representations that the Software or System is appropriate, legal or available for use in other jurisdictions. Any person who access or use the Software and System from other jurisdictions do so at their own volition and risk, and are responsible for compliance with all applicable law (local, domestic and foreign).
- Your Data. You are solely responsible for your data that you provide and you will not provide, post or transmit any data, information, content or material that: (a) infringes, misappropriates or violates any intellectual property rights, publicity/privacy rights or other rights of any third party, or any law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Equinoxe may take any remedial action, including injunctive relief, if your data violates this Section 3.2. You hereby agree that the violation of this Section 3.2 would cause irreparable harm to Equinoxe, for which the damages suffered by Equinoxe would be difficult to quantify and establish, and that Equinoxe shall be entitled to injunctive relief to prevent or restrain any such breach. You agree that Equinoxe is under no obligation to review any data, information, content or material provided by you or available on the System, and that Equinoxe is not making any representation or warranty to you as to the accuracy or completeness of such data, information, content or material.
- Use Restrictions. You are responsible for all activities that occur under your account. You will not do or attempt to do any of the following: (a) reverse engineer, disassemble or decompile any component of the System; (b) interfere in any manner with the operation of the Software, or the System or the hardware and network used to operate the Software; (c) transfer any of your rights under this Agreement, use the Software or access the System for the benefit of a third party or operate a service bureau; (d) modify, copy or make derivative works based on any part of the System; (e) otherwise use the Software or access the System in any manner that exceeds the scope of use permitted under this Section 3.3; (f) use the Software or access the System in any way that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; (g) use the Software or access the System in any way that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, provincial, national or international law; (h) use the Software or access the System in any way that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party anywhere in the world; (i) use the Software or access the System in any way that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; (j) use the Software or access the System in any way for unsolicited promotions, political campaigning, advertising or solicitations; (k) use the Software or access the System in any way that introduces or spreads viruses, corrupted data or other harmful, disruptive or destructive files in to the Software or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information; or (l) use the Software or access the System in any way that, in the sole judgment of Equinoxe, is objectionable or which restricts or inhibits any other person from using or enjoying the System, or which may expose Equinoxe or its users to any harm or liability of any type, or creates or imposes an inappropriate load or creates large bandwidth-consuming transactions on the System.
- No Competitive Use. You may not subscribe for, use or access the Software if you are (or are engaged by) a competitor of Equinoxe, except with Equinoxe’s prior written consent. In addition, you may not subscribe for, use or access the Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
- Suspension or Cancellation of Services. In addition to any other right or remedy that Equinoxe may have under this Agreement or at law, Equinoxe may terminate or suspend (partially or completely) your access and use of the Software without prior notice for any reason, but Equinoxe will confirm such termination or suspension by subsequent notice to you.
- Content. Equinoxe takes no responsibility and assumes no liability for any content posted, stored or uploaded by you, any user of the System or any third party on, in or to the System, or for any loss or damage arising therefrom, nor is Equinoxe liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of the system is at your own risk of being exposed to such material.
- Representations and Warranties of User
- Representations and Warranties. You hereby represent and warrant to Equinoxe now and at all times during your access and use of the Software, and Equinoxe is relying on your representations and warranties in allowing you to use and access the Software, that: (i) you are a resident of a jurisdiction in which the Software, and your use of the Software is not contrary to law; (ii) any information that you provide at any time to Equinoxe is true, accurate, and complete; (iii) you have all necessary rights to provide any of your Data, or any other information, data, materials or content to Equinoxe for the purposes described in this Agreement; (iv) at all times during this Agreement, you shall not communicate with any provider that (a) is not in compliance with all applicable laws (local, domestic or foreign) or (b) without limiting the foregoing, communicates to you through or on any non-compliant technology such as, but not limited to, email, texting, Skype, Facetime or other similar messaging or communication system or service; and (v) you agree to hold Equinoxe’s Confidential Information in strict confidence and not to use such Confidential Information for any purpose except as expressly permitted hereunder.
- Security Vulnerability. In order to maintain the Software as secure as possible, you must not disclose any security vulnerability to any person except Equinoxe. 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 Software), you must notify us by contacting [email protected]
- Equinoxe System and Technology. Equinoxe exclusively owns and retains all right, title and interest in and to the Software, System and all software, materials, formats, interfaces, information, data, content, Equinoxe’s Confidential Information, and Equinoxe proprietary information and technology used by Equinoxe or provided to you in connection with the System (the “Equinoxe Technology”). The Equinoxe Technology is protected by intellectual property rights owned by or licensed to Equinoxe. Other than as expressly licensed to you in this Agreement, no license or other rights in the Equinoxe Technology are granted to you, and all such rights are hereby expressly reserved by Equinoxe. Equinoxe shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by you, relating to the Software.
- Term and Termination
- Term. The term of this Agreement will commence on the date you sign up for the Software or begin to use the System and continues until terminated in accordance with the provisions of this Agreement.
- Termination. You may cease using the Software at any time. Equinoxe may cease providing the Software (or any portion of it) to you at any time without notice. As well, you or Equinoxe 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 days after written notice of such breach. Upon the termination of this Agreement for any reason, (a) the license granted to Equinoxe in respect of your Data survives for so long as Equinoxe is required by law to retain such information; (b) Equinoxe will cease providing and you will cease using the Software; and (c) Equinoxe will be entitled to retain and use your Data in accordance with the terms of this Agreement, subject to applicable laws. Equinoxe agrees that upon any early termination of this Agreement, Equinoxe will allow (free of charge) you to access, without the right to modify, enhance or add to, your Data (either through on-line access or an off-line mechanism provided by Equinoxe) for a reasonable period of time after termination which shall not exceed thirty (30) days. Thereafter, Equinoxe will remove all your Data from the System and store it offline. Equinoxe 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 under Sections 3.6, 4, 5, 6.2, 7, 8, 9, and 10 will survive the termination or expiration of this Agreement.
- No Representation or Warranty. Equinoxe makes no representation or warranty concerning the System or Software. Accordingly, the software, the system and all other data or materials provided in connection with this Agreement by Equinoxe and its suppliers are provided “as is, where is” and “as available” without representations or warranties of any kind. Equinoxe 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. Equinoxe does not warrant that the software will be error-free, accurate, timely, uninterrupted, completely secure, or virus-free.
- Advice. Equinoxe does not provide advice of any kind. Equinoxe does not endorse or recommend any provider available through the system, or any care, advice, recommendation or product recommended by any provider. Any and all advice or care you obtain (and any results or lack of results from following or not following such advice or care) from any provider is the responsibility of the responsible provider providing advice or care, and you. 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 Equinoxe has no liability whatsoever however arising under any theory of law for any advice, result or lack of result from such advice or care obtained from any provider.
- The Software permits you to link to other websites or resources on the internet, and other websites or resources may contain links to Equinoxe’s websites. These other websites are not under Equinoxe’s control. You acknowledge that Equinoxe 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 Equinoxe or any association with its operators. You further acknowledge and agree that Equinoxe 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.
- By You. If any action is instituted against Equinoxe (a) arising out of or relating to your use of the System, Software or Services (including any claims by you, including, without limitation, any claims relating to any violation by you or a provider of any law, regulation or order (local, domestic or foreign) in relation to the use of the Software or through the System or Services); or (b) alleging that your Data, or the use of your Data pursuant to this Agreement, infringes, violates or misappropriates any intellectual property rights or other right of a third party or otherwise causes harm to a third party, you will indemnify, defend and hold harmless Equinoxe from such action at your own expense on behalf of Equinoxe and shall pay all damages, fees, costs (including legal fees) or other amounts attributable to such claim. You shall have no obligation under this Section for any claim or action that arises solely and directly out of a material breach of this Agreement by Equinoxe.
- Conditions. You may settle or compromise a claim without Equinoxe’s prior approval of any such settlement or compromise only if (a) such settlement involves no finding or admission of any breach by Equinoxe of any obligation to you or any third party, (b) such settlement has no effect on any defense that Equinoxe may assert in any such claim, and (c) such settlement does not impose any condition or obligation on Equinoxe of any kind (including, without limitation, any financial obligation). Upon your assumption of the defense of such claim, Equinoxe will cooperate with you in such defense, at your expense, except to the extent that Equinoxe has any adverse or different interest than you.
- Limitation of Liability
- Equinoxe’s total cumulative liability to you for any and all claims, expenses, damages or injury or loss of any nature arising from or in connection with this Agreement (under any legal theory including claims in contract, tort (including negligence), strict liability, breach (fundamental or otherwise) or otherwise), the Software and the System, will not exceed the total amount actually paid to Equinoxe, if any, by you or on behalf of you in the six (6) month period immediately preceding your formal written notice of the claim for liability hereunder. All claims that you may have against Equinoxe will be aggregated to satisfy this limit and multiple claims will not enlarge this limit. In no event will Equinoxe be liable for special, incidental, indirect or consequential damages arising out of or in connection with this Agreement (under any legal theory including claims in contract or tort), 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 software, even if Equinoxe has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy provided herein. Equinoxe does not provide advice or recommendations and does not recommend, endorse or warrant any provider, or any advice received or not received through use of the system.
- General Provisions
- Publicity. Equinoxe may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement, the System and the Software.
- 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 Equinoxe. You agree that Equinoxe may subcontract certain aspects of the System to qualified third parties, provided that any such subcontracting arrangement will not relieve Equinoxe of any of its obligations hereunder.
- Entire Agreement. This Agreement constitutes the entire agreement between you and Equinoxe relating to your access to and use of the Software and System, supersedes and replaces the terms of any other prior agreement, writing or understanding between you and Equinoxe.
- Disputes. To the extent permitted by law and except for any issue related to Equinoxe’s intellectual property rights, all disputes arising out of or in connection with this Agreement will be referred to and finally resolved by arbitration under the rules of the British Columbia International Commercial Arbitration Centre. The appointing authority will be the British Columbia International Commercial Arbitration Centre. The case will be administered by the British Columbia International Commercial Arbitration Centre in accordance with its domestic rules by a single arbitrator. The place of arbitration will be Vancouver, British Columbia, Canada. The language of the arbitration will be English. Subject to mandatory arbitration, you agree that any action at law or in equity arising out of or relating to this Agreement shall be filed only in the provincial and federal courts located in Vancouver, British Columbia 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 Software, System or Services. To the extent permitted by law, you agree that you will not bring a claim under this Agreement more than twelve (12) months from when your claim first arises.
- Injunctions. Notwithstanding the foregoing, if you breach or threaten to breach any provision of this Agreement you acknowledge that irreparable harm will result to Equinoxe 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 Equinoxe 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.
- Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada without giving effect to conflict of laws principles. 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 British Columbia, Canada, except for applications for injunctive relief by Equinoxe which Equinoxe may bring in any jurisdiction. You hereby irrevocably submit to the jurisdiction and venue of such court in any such action or proceeding.
- Waiver of Jury Trial and Class Action Rights. To the extent permitted by law, and subject to Section 10.4 (Disputes), you acknowledge, agree and understand that, with respect to any dispute with Equinoxe, 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.
- 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 Equinoxe and Equinoxe may send any notice to you at the Email Address. Notices will be deemed to have been given upon the next full business day in the Province of British Columbia after being sent.
- 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 will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. 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.
- Enurement. All covenants, representatives, warranties and agreements of the parties contained herein will be binding upon and will ensure to the benefit of the parties and their respective successors, permitted assigns, legal representatives, heirs and trustees.
- Questions or Additional Comments. If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to [email protected]
These Terms of Service are dated February 15, 2019.