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Canada Health Infoway Interoperability Solutions Subscription Agreement

USER AGREEMENT (the "Agreement")

THIS USER AGREEMENT is entered into this day (the "Effective Date"), between CANADA HEALTH INFOWAY INC. ("Infoway") and YOU (the "User") (collectively, the "Parties", and each a "Party") as of the Effective Date. This Agreement comprises the terms and conditions contained herein, as supplemented by Exhibit A ("General Terms and Conditions") and Exhibit B ("Definitions"). Whenever used in this Agreement, or in Exhibit, amendment or restatement hereto or thereto, or in any communication required or permitted to be given hereunder, capitalized terms shall have the meanings set forth in this Agreement or in Exhibit B, unless the context requires otherwise.

THE PROVISIONS OF THIS AGREEMENT, AND ITS EXHIBITS, APPLY TO ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES (AS SUCH TERM IS DEFINED IN SECTION 1 BELOW). HOWEVER, IT IS POSSIBLE THAT USER MAY HAVE ACCESS TO CONTENT OR AREAS FOR WHICH THE SPECIFIC LICENSING TERMS (RIGHTS AND RESTRICTIONS ON USE) ARE DIFFERENT THAN THOSE CONTAINED HEREIN. DIFFERENT LICENSING TERMS AND CONDITIONS WILL APPLY, WITHOUT LIMITATION, TO THE USE BY USER OF SNOMED© CT, HL7 AND LOINC. WHENEVER DIFFERENT LICENSING TERMS AND CONDITIONS APPLY TO THE USE OF CERTAIN CONTENT OR AREAS, USER WILL BE NOTIFIED OF THE APPLICABLE LICENSING TERMS AND CONDITIONS, AND WILL HAVE TO ACCEPT THEM. THESE DIFFERENT TERMS AND CONDITIONS WILL TAKE PRECEDENCE AND SUPERSEDE THE TERMS OF THIS AGREEMENT ONLY AS IT RELATES TO THE LICENSING TERMS AND CONDITIONS, AND ONLY TO THE EXTENT THAT THERE IS AN INCOMPATIBILITY BETWEEN THEM AND THIS AGREEMENT. FOR CLARITY, ALL OTHER TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT THAT DO NOT DIRECTLY SET OUT THE SCOPE OF LICENSING RIGHTS WILL CONTINUE TO APPLY INCLUDING, WITHOUT LIMITATION, ALL OF THE PROVISIONS RELATED TO OWNERSHIP OF CONTENT, CONTENT MANAGEMENT, REPRESENTATIONS, WARRANTIES, INDEMNITIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY. WHENEVER SUCH DIFFERENT TERMS AND CONDITIONS GOVERNING THE SCOPE OF LICENSING RIGHTS FOR CERTAIN SPECIFIC CONTENT AND AREAS ARE DISCLOSED TO THE USER, USER IS SOLELY RESPONSIBLE TO REVIEW SUCH TERMS AND CONDITIONS AND TO ABIDE BY THEM.

FOR IMPORTANT ADDITIONAL TERMS AND CONDITIONS PART OF THIS AGREEMENT, PLEASE REVIEW AND EXPRESSLY CONSENT TO EXHIBIT A AND EXHIBIT B ATTACHED HERETO.

USER HEREBY ACKNOWLEDGES HAVING REVIEWED AND UNDERSTOOD THE TERMS AND CONDITIONS SET FORTH IN EXHIBIT A AND EXHIBIT B WHICH INCLUDE, WITHOUT LIMITATION, THE TERMS AND CONDITIONS GOVERNING THE OWNERSHIP AND USE OF ANY INFORMATION, DATA, CODE, standards, EXECUTABLE PROGRAMS, WEB-BASED PLATFORMS OR ANY OTHER MATERIALS PROVIDED TO User BY INFOWAY AS PART OF THIS SERVICE.

THE PROVISIONS OF THIS AGREEMENT, AND ITS EXHIBITS, APPLY TO ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES (AS SUCH TERM IS DEFINED IN SECTION 1 BELOW). HOWEVER, IT IS POSSIBLE THAT USER MAY HAVE ACCESS TO CONTENT OR AREAS FOR WHICH THE SPECIFIC LICENSING TERMS (RIGHTS AND RESTRICTIONS ON USE) ARE DIFFERENT THAN THOSE CONTAINED HEREIN. DIFFERENT LICENSING TERMS AND CONDITIONS WILL APPLY, WITHOUT LIMITATION, TO THE USE BY USER OF SNOMED© CT, HL 7 AND LOINC. WHENEVER DIFFERENT LICENSING TERMS AND CONDITIONS APPLY TO THE USE OF CERTAIN CONTENT OR AREAS, USER WILL BE NOTIFIED OF THE APPLICABLE LICENSING TERMS AND CONDITIONS, AND WILL HAVE TO ACCEPT THEM. THESE DIFFERENT TERMS AND CONDITIONS WILL TAKE PRECEDENCE AND SUPERSEDE THE TERMS OF THIS AGREEMENT ONLY AS IT RELATES TO THE LICENSING TERMS AND CONDITIONS, AND ONLY TO THE EXTENT THAT THERE IS AN INCOMPATIBILITY BETWEEN THEM AND THIS AGREEMENT. FOR CLARITY, ALL OTHER TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT THAT DO NOT DIRECTLY SET OUT THE SCOPE OF LICENSING RIGHTS WILL CONTINUE TO APPLY INCLUDING, WITHOUT LIMITATION, ALL OF THE PROVISIONS RELATED TO OWNERSHIP OF CONTENT, CONTENT MANAGEMENT, REPRESENTATIONS, WARRANTIES, INDEMNITIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY. WHENEVER SUCH DIFFERENT TERMS AND CONDITIONS GOVERNING THE SCOPE OF LICENSING RIGHTS FOR CERTAIN SPECIFIC CONTENT AND AREAS ARE DISCLOSED TO THE USER, USER IS SOLELY RESPONSIBLE TO REVIEW SUCH TERMS AND CONDITIONS AND TO ABIDE BY THEM.

FOR IMPORTANT ADDITIONAL TERMS AND CONDITIONS PART OF THIS AGREEMENT, PLEASE REVIEW AND EXPRESSLY CONSENT TO EXHIBIT A AND EXHIBIT B ATTACHED HERETO.

USER HEREBY ACKNOWLEDGES HAVING REVIEWED AND UNDERSTOOD THE TERMS AND CONDITIONS SET FORTH IN EXHIBIT A AND EXHIBIT B WHICH INCLUDE, WITHOUT LIMITATION, THE TERMS AND CONDITIONS GOVERNING THE OWNERSHIP AND USE OF ANY INFORMATION, DATA, CODE, standards, EXECUTABLE PROGRAMS, WEB-BASED PLATFORMS OR ANY OTHER MATERIALS PROVIDED TO User BY INFOWAY AS PART OF THIS SERVICE.

Except as otherwise expressly set forth herein, any and all notices to be given by Infoway to User shall be sent via e-mail to the e-mail address provided by User at the time of subscribing for the Services. User is responsible for providing to Infoway any updated e-mail address.

  1. SERVICE DESCRIPTION

"Service" or "Services" collectively means one or more of the following services, which are all remotely accessible to User online:

All of the above-described Services may contain Infoway Content, Provider Content and/or User Content, as those terms are defined hereafter.

"Infoway Content" is used herein to refer collectively to all materials that are either owned by Infoway and/or materials for which Infoway holds a license to make such materials available as part of the Services including, without limitation, information, data, code, web-based platforms and executable programs related to the implementation and use of electronic medical records and electronic health records, standards, developers' guides, specifications and implementation guides, HL7 standards, SNOMED CT, information on jurisdictional standards, code samples, as well as any educational, promotional or other materials related to any of the foregoing. For the sake of clarity, part of the Infoway Content may be provided or licensed to Infoway by third parties such as international standards development organizations.

"Provider Content" is used herein to refer collectively to all materials that are made available through the Services and which are provided by government entities and other organizations involved in the development and adoption of electronic medical records and electronic health records, which government entities or organizations may use the Services to distribute materials that are either owned by them and/or materials for which they hold a license to distribute including, without limitation, standards, developer's guides, information on jurisdictional standards, as well as code samples.

"User Content" is used herein to refer collectively to materials generated by Users to the Services that are not Infoway Content or Provider Content, for which the property of the materials is intended to reside with each individual User (and not with a broader organization or entity) and for which a license is granted to Infoway pursuant to the terms of this Agreement including, without limitation, postings, comments, case studies and other similar contribution or information made available by Users in their individual capacity through the Services. User Content should however not include, and User should not submit, modifications to standards made available through the Services.

The Services are made available online via Infoway owned or controlled websites (collectively the "Infoway Platform"). The uniform resource locator (URL) for each of the Services may be changed by Infoway from time to time, which change shall not affect the applicability and enforceability of the terms and conditions of this Agreement.

User (at its sole cost and expense), is solely responsible for providing, procuring and maintaining, and for ensuring that all hardware, software, electrical and other physical requirements for User's use of the Services, including telecommunications and internet access connections and links, web browsers, bandwidth or other equipment, programs and services required to access and/or use the Services, are compatible with the Services and the Infoway Platform.

Subject to Section 5 ("Support and Technical Assistance Services"), Infoway may at any time, in its sole discretion, modify, change, alter, enhance, suspend, disable, terminate or discontinue the Services, without any liability to User.

User hereby confirms and warrants that it is not a consumer accessing the Infoway Platform and/or using the Services in such a capacity. User hereby confirms and warrants that it is accessing the Infoway Platform and/or using the Services for business, professional or Educational purposes only. If you are not entering into this Agreement for business, professional or Educational purposes, you may not enter into this Agreement and access and/or use the Services or the Infoway Platform.

  1. SERVICE USE AND ACCESS RIGHTS

During the Term (as hereinafter defined in section 8 hereof) and subject to the terms and conditions of this Agreement, Infoway grants to User, and User hereby accepts, a non-exclusive, personal, non-assignable and non-sub-licensable, license to access and/or use (remotely via an Internet connection provided by User), the Infoway Platform and the Services (including the Infoway Content, the Provider Content and the User Content), the whole solely for User's business, professional or educational purposes.

For the sake of clarity, the license granted to User in the preceding paragraph does not grant the User a license to use the names, words, titles, logos, graphics or designs which constitute trade-marks, service marks or trade names available as part of the Services (collectively the "Marks"), no matter whether such Marks are the property of Infoway or of any third party.

USER IS HEREBY REFERRED TO THE SECOND PARAGRAPH OF THIS AGREEMENT FOR AN IMPORTANT NOTICE REGARDING THE DIFFERENT LICENSING TERMS AND CONDITIONS GOVERNING THE USE OF CERTAIN CONTENT WHICH MAY BE ACCESSIBLE TO USER AS PART OF THIS SERVICE.

  1. USER ACCOUNT AND PASSWORD

User must provide all required registration information in order to create an account to access and/or use any of the Services. User represents and warrants to Infoway that User shall: (i) provide current, true, accurate and complete information as required for registration of User's account; and (ii) maintain and promptly update any registration information required of User. Upon completing the registration process, User will be provided with a password and account designation. Each User who accesses and/or uses the Services shall have its own account and in no event shall an account be used by multiple users. User agrees not to access and/or use any of the Services by any means other than through the account, password and Infoway Platform provided by Infoway and as set out in this Agreement. User is solely responsible for maintaining the confidentiality of User's password and of the account, and is fully responsible for all activities that occur under User's password or account including, without limitation, in relation to any content incorporated into the Services using the User's password or account. User shall not disclose User's password or account information to any third party without the prior written consent of Infoway. If any unauthorized use of User's account or password occurs, User must notify Infoway immediately by email so that Infoway may take appropriate measures. The User agrees to the publication of its User name and online status as well as additional information voluntarily provided, including the profile image.

User can request the creation or update of an account to access and/or use the Services by completing the access request form currently available at https://infocentral.infoway-inforoute.ca/access.

There are currently three (3) possible levels of authorization available to access and/or use the Services, namely: (i) read-only; (ii) read and write; and (iii) read, write and delete pages. The authorization level to be attributed to User is at the sole discretion of Infoway and, as such, Infoway shall have the right to attribute to User a different level of authorization than the one requested by User. Infoway shall also have the right to change User's authorization level from time to time, as Infoway deems appropriate. If User is part of an organization, Infoway will generally attribute to such User the level of authorization that was determined and communicated to Infoway by the organization's management, unless Infoway has reasonable grounds to object to such authorization level. There is no limit to the number of Users within the same organization that can request an account to access the Infoway Platform and/or use the Services provided, however, Infoway reserves its right to limit the number of accounts or enter into discussions with the organization's management regarding potential cost-recovery measures if the creation of a significant number of accounts for one (1) organization causes Infoway to be liable for additional licensing fees, costs or expenses.

  1. AVAILABILITY OF SERVICE

User understands and agrees that from time to time, the Infoway Platform and/or any of the Services may be inaccessible, unavailable or inoperable for any reason, including: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Infoway may undertake from time to time; or (iii) causes beyond the reasonable control of Infoway or which are not reasonably foreseeable by Infoway. While Infoway will attempt for the Infoway Platform and/or the Services to be available on a continuous basis, User acknowledges and agrees that Infoway cannot ensure or guarantee the availability of any of the Services on a continuous or uninterrupted basis. User also understands and agrees that Infoway is not responsible for any functionality of any of the Services, and that Infoway has no responsibility in respect thereof. In addition, Infoway's performance under this Agreement (including, but not limited to, the quality of the Infoway Content, the Provider Content and/or the User Content) is conditioned and dependent upon, and subject to the performance and services quality of various third parties, including other Users who will post or include Provider Content and/or User Content into the Services, and Infoway shall be relieved and excused of any deficiency to perform hereunder (including, but not limited to, any data-related quality issues).

  1. SUPPORT AND TECHNICAL ASSISTANCE SERVICES
    1. Hours of Operation and Procedure

Infoway will provide support services to User during Infoway's normal business hours, 9 a.m. to 5 p.m. Eastern Time (Standard or Daylight Savings Time, as applicable) on normal business day (as Infoway is closed on both Canadian and Ontario public holidays). Where emergency support is offered by Infoway by virtue of a separate agreement with User, such emergency support shall only be provided between 5 p.m. and 7:30 p.m. Eastern Time (Standard or Daylight Savings Time, as applicable) on normal business days. Support services will be provided primarily through e-mails sent to our Contact Us form. Support services to Users who submit Provider Content will also be available via telephone, or by direct submission to Infoway's online issue tracking system; details on how to obtain such support services will be communicated directly to Users who submit Provider Content.

E-mails sent to Infoway for support and technical assistance services should include at least: (i) the User's account information; (ii) the name and contact information of the person responsible to follow-up on the technical problem on behalf of User; and (iii) a detailed description of the technical problem encountered by User including details of any error notification received, circumstances in which the error occurred and the frequency of the error's occurrence.

  1. Emergency After Hours support

Emergency After Hours support is only available to User experiencing one or more of the following, with respect to the Infoway Platform:

  1. a Service is unavailable;
  2. a Service does not respond to normal attempts at access; or
  3. a Service responds with an error that cannot be bypassed and which prohibits the User from completing the actions he/she is attempting.

Each such support request received by Infoway during the Emergency After Hours support period shall be evaluated by Infoway upon receipt, on a case by case basis, and Emergency After Hours support shall only be provided to User if Infoway believes, in its entire discretion, that the support request qualifies under the Emergency After Hours support conditions as set forth herein. Any support request which Infoway believes, in its entire discretion, does not qualify for Emergency After Hours support, shall be dealt with according to Infoway's regular support conditions.

  1. Scheduled Maintenance

Infoway reserves the right to do maintenance of the Infoway Platform and/or the Services whenever necessary. Infoway will strive to limit downtime during normal business hours on normal business days as outlined in Sub-section 5(a)hereof. Maintenance will normally be scheduled on weekends, late evening or early morning hours, except when emergency maintenance is required.

User should be aware that Provider Content may be subject to additional maintenance windows, which may differ from those of Infoway. User acknowledges that Infoway has no control over the maintenance of Provider Content and that Infoway has no liability to User in that regard.

  1. Scope of Support and Technical Assistance Services

Infoway only provides to User support and technical assistance services for access to the Infoway Platform and/or use of the Services. User (at its sole cost and expense), is solely responsible for obtaining independent support for all hardware, software, electrical and other physical requirements for User's access and/or use of the Services.

  1. Response Time

Infoway will use commercially reasonable efforts to respond to requests for support and technical assistance sent to the e-mail address specified in Sub-section 5(a)by the end of the next business day of receipt of such request by Infoway. The response time specified in the preceding sentence only constitutes an undertaking on the part of Infoway to acknowledge the receipt of User's request for support and technical assistance, and does not constitute a deadline for resolution of the technical problem(s) disclosed to Infoway by User.

  1. Termination of Support and Technical Assistance Services

Infoway currently plans to support, maintain and operate the Infoway Platform and the Services, using commercially reasonable efforts, until March 31, 2022. Should Infoway decide or be required to terminate the operation of the Infoway Platform and/or the Services prior to March 31, 2022, Infoway will provide a six (6) month prior notice of such early termination to User.

In such later circumstances, Infoway will take commercially reasonable measures to assist Users who have submitted Provider Content in migrating such Provider Content to the same technological platform (e.g. software) as used by Infoway at the time of migration, such technological platform to be licensed directly by the Users who have submitted Provider Content. It is hereby agreed and understood that Infoway's assistance in migrating the Provider Content will be offered on a best effort basis and does not constitute a guarantee that such migration will be successfully completed. For the sake of clarity, if User is not a provider of Provider Content, Infoway shall have no obligation towards User in the event of termination of the Services and/or the Infoway Platform.

  1. FINANCIAL TERMS

Except for certain areas and/or functionalities of the Services that are currently restricted to users with HL7 International Access (a program of Infoway the details of which are available here https://infocentral.infoway-inforoute.ca/en/standards/standards-access) the Services and the Infoway Platform are offered to User free of charge. However, Infoway reserves its right to charge fees for access to the Infoway Platform and/or use the Services. Should Infoway elect to charge fees for access to the Infoway Platform and/or use of the Services, Infoway shall advise User that such fees will be applicable by: (i) posting a notice on the Infoway Platform; and (ii) sending an e-mail to the e-mail address associated with the User's account for the Services. Infoway shall also suspend the User's account and its access to the Infoway Platform and/or use of the Services until all information required for Infoway to collect the fees have been provided by User (e.g. credit card information). Should Infoway elect to charge fees for access to the Infoway Platform and/or use the Services, all users (including the User) shall have to pay such fees, irrespective of their date of subscription to the Services; for the sake of clarity, no user (including the User) will have prior rights or be "grandfathered" to access and/or use the Services free of charge.

 

Should Infoway elect to charge fees for access to the Infoway Platform and/or use the Services, such fees shall exclude, and shall be paid in addition to and without any reduction for, any and all applicable sales, goods and services, use and similar taxes, duties, withholdings, tariffs, levies or other governmental charges or expenses (including any value added taxes), but excluding any taxes on Infoway's net income (collectively the "Taxes"), which shall be billed to and paid by User at the same time as any applicable fees. Should User fail to pay any fees due (and related Taxes), Infoway shall be entitled, in addition to Infoway's other rights or remedies hereunder or at law, in equity or otherwise, at its option, to: (i) terminate this Agreement immediately; and/or (ii) suspend, in whole or in part, the provision of the Services, the Infoway Platform or other benefits hereunder, until such time as User's account is in good standing again. Infoway may also assess, and User shall then also pay, a finance charge of the lesser of 1.5% per month (18% annually) or the highest amount allowed by law on all past due amounts. If fees are charged for access to the Infoway Platform and/or use of the Services, such fees shall be non-refundable. Infoway may also assess, and User shall then also pay, fees in respect of any re-activation of User's account following a termination or suspension.

  1. PRIVACY

In no circumstances should the User access the Infoway Platform and/or use the Services (or attempt to do any of the foregoing) to gain access to personally identifying information or health-related personal information. If User accesses the Infoway Platform and/or uses the Services to gain access to any such information, User agrees that it shall assume all liability arising therefrom and indemnify and hold Infoway harmless of any potential claim related thereto as per the terms of Section 4 of Exhibit A.

Infoway shall have the right to disclose any information about User, including registration data, in order to comply with any applicable laws and/or requests under legal process, to operate the Services properly, to protect Infoway's property or rights, or otherwise pursuant to Infoway's Privacy Policy available at: www.infoway-inforoute.ca/privacy-policy.

  1. TERM AND TERMINATION

This Agreement becomes effective upon the Effective Date and shall continue in effect and be renewed from month to month until terminated in accordance with its terms (the "Term"). If User violates the terms of this Agreement, User's right to access the Infoway Platform and/or use the Services shall automatically terminate. Notwithstanding any other provisions hereof, Infoway may also at any time terminate the Services and/or this Agreement for convenience on e-mail notice to User. User may also terminate this Agreement and its right to access the Infoway Platform and/or use of the Services at any time for convenience by providing written notice of termination to Infoway by email. User's termination notice shall be effective upon receipt by Infoway; provided that, if User terminates this Agreement and Infoway has elected to charge fees for access to the Infoway Platform and/or use of the Services pursuant to Section 6, User's account will be deemed terminated on the last day of User's billing cycle during which Infoway receives such notice of termination in accordance with this Agreement. If fees are charged for access to the Infoway Platform and/or use of the Services pursuant to Section 6, User shall pay to Infoway all amounts due, payable or outstanding upon any termination of this Agreement. In addition, but subject to Sections 5and 6, upon termination of User's access to the Infoway Platform and/or use of the Services, any Provider Content or User Content included or available through the Services by User shall no longer be available to User. It is User's sole responsibility to make copies of any Provider Content or User Content, from time to time, as he or she deems appropriate.

***

BY CLICKING on the button at the TIME OF SIGNING UP FOR this SERVICE OR AT ANY TIME THEREAFTER, OR BY ACTUALLY SIMPLY ACCESSING OR OTHERWISE USING this SERVICE, User SHALL BE DEEMED TO HAVE IRREVOCABLY AGREED TO BE BOUND BY ALL of the TERMS AND CONDITIONS OF THIS AGREEMENT.

USER ALSO ACKNOWLEDGES THAT AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ACCESSING the Infoway platform and/or using THE SERVICES, EFFECTIVELY CREATE AN ONGOING BUSINESS RELATIONSHIP BETWEEN Infoway and User, AS EVIDENCED BY THIS WRITTEN AGREEMENT, WHICH BUSINESS RELATIONSHIP SHALL LAST SO LONG AS USER CONTINUES TO ACCESS and/or use THE SERVICES. USER HEREBY ACKNOWLDGES THAT INFOWAY MAY SEND TO USER ELECTRONIC MESSAGES RELATED TO THE SERVICES WHILE USER'S ACCOUNT REMAINS ACTIVE, AND USER EXPRESSLY CONSENTS TO RECEIVING SUCH ELECTRONIC MESSAGES.

EXHIBIT A – GENERAL TERMS AND CONDITIONS

1. INTELLECTUAL PROPERTY

1.1 LICENSE FOR PROVIDER CONTENT AND USER CONTENT

Subject to the second paragraph of this Section 1.1 of Exhibit A, User hereby grants to Infoway: (a) an irrevocable, perpetual, royalty-free, fully paid up, non-exclusive, assignable and sub-licensable worldwide license, to use the Provider Content and the User Content (whether or not such content is protectable by Intellectual Property Rights) provided by User to be available through the access of the Infoway Platform and/or use of the Services; for the sake of clarity, the license being granted by User to Infoway in relation to the Provider Content and the User Content shall include, without limitation, the right to use, reproduce, copy, adapt, modify, create derivative or other original works in relation thereto, convert, publish, disseminate, translate, index, summarize, distribute or otherwise make available to the public any such Provider Content and User Content, in any form, media, or technology now known or hereafter developed, on terms and conditions consistent with those set forth in this Agreement. As between the Parties, all rights, titles and interest in and to any and all derivative or original works created by Infoway or any third party, in relation to any Provider Content or User Content (including, without limitation, any summaries, indexing or translation of any such Provider Content or User Content), are and shall be the sole and exclusive property of Infoway or any such third party.

The preceding paragraph may not apply to a User who acts on behalf of an entity that has entered into a separate written agreement with Infoway, pursuant to which the said entity provides Provider Content to be included and/or made available through the access and/or use of the Services. If this is the case and the submission of Provider Content by User to the Services is governed by a separate written agreement with Infoway, then: (i) the terms and conditions contained in the separate agreement entered into by Infoway and User (or the entity for which the User is acting) shall prevail in the event of any inconsistency with this Agreement; and (ii) that separate agreement and this Agreement shall be considered to supplement and complement each other to the extent that there is no inconsistency between their respective terms and conditions. In the absence of a separate written agreement between Infoway and the User, any content submitted by User for inclusion in the Infoway Platform or the Services shall be considered to be governed by the first paragraph of this Sub-section 1.1 of Exhibit A.

1.2 OWNERSHIP OF CONTENT

As between the Parties, and except for content or material used by Infoway under license from a third party, Infoway shall be deemed to be the sole and exclusive owner of all Infoway Content (whether or not such content is protectable by Intellectual Property Rights), and in each case any and all components thereof, but excluding, for greater certainty, any such items that are considered Provider Content or User Content. User’s rights to use any Infoway Content, if any, are limited to and are as expressly set forth in this Agreement, and are strictly personal and temporary utilization license rights as further set forth in this Agreement. Except as expressly set forth in this Agreement, User has no rights with respect to the Infoway Content or any component thereof. No property, ownership or real right or interest in any Infoway Content, or any component thereof, is granted, assigned, conveyed, transferred or sold to User by virtue of this Agreement or otherwise. Without limitation, User may not, directly or indirectly, alter, destroy or remove any copyright, trade secret, patent, trademark or other proprietary or legal markings or notices placed upon or contained within any Infoway Content.

As between the parties, User shall at all times be considered the owner of the Provider Content and the User Content which User makes available through access to the Infoway Platform and/or use of the Services. For the sake of clarity, the ownership of the Provider Content shall not lie with the individual User, but rather with the organization or entity for which the User is acting when submitting Provider Content for inclusion in the Infoway Platform or in the Services.

Except for the personal and temporary utilization license granted in this Agreement, User has no right, title or interest in and to the Provider Content and the User Content which is made accessible by other Users through the Infoway Platform and the Services. Without limitation, User may not, directly or indirectly, alter, destroy or remove any copyright, trade secret, patent, trademark or other proprietary or legal markings or notices placed upon or contained within any Provider Content or User Content which is made accessible by other Users as part of the Services.

 

2. CONTENT MANAGEMENT

2.1           CODE OF CONDUCT

When accessing and/or using the Services, User shall abide by the Code of Conduct set out below (the "Code of Conduct"), the terms and conditions of this Agreement, and any other rules which may be published from time to time by Infoway. Without limiting the generality of the foregoing, User shall abide by the Code of Conduct when submitting Provider Content or User Content for inclusion in the Services. Infoway may, but is not obligated to, monitor or review activity on the Infoway Platform and the Services. Infoway reserves the right, in its sole discretion, to terminate the privilege of any User to contribute to the Infoway Platform and the Services if such User violates this Agreement, including the Code of Conduct.

Subject to Infoway’s Privacy Policy (available at: www.infoway-inforoute.ca/privacy-policy), and subject to the other terms and conditions of this Agreement, should you submit any Provider Content or User Content to be included in the Services, such content shall be deemed to be non-confidential. By submitting Provider Content and/or User Content, User agrees, acknowledges, represents and warrants that such content contains no personal information and that it is non-confidential. Notwithstanding the foregoing, functionalities of the Services could allow for certain information to be posted on access-controlled areas of the Services, and Infoway undertakes to put into place adequate control measures to restrict access to such access-controlled areas. Notwithstanding any other provisions hereof, User should never disclose personally-identifying information or health-related personal information while accessing and/or using the Services or use the Services to gain access to such personally-identifying information or health-related personal information. If User chooses to submit such personally identifying information or health-related personal information, User acknowledges and agrees that it is solely responsible to ensure that the consent of the person(s) to whom the information relates has been obtained. User acknowledges and understands that all Provider Content and User Content are accessible to the public through the Services (unless such content is in an access-controlled area).

As a condition of User’s continued access to the Infoway Platform and/or use of the Services, User hereby agrees to abide by all applicable federal, provincial, state, territorial and other laws and regulations. In addition, without limiting the generality of the foregoing, User agrees not to:

  1. modify (and post modifications to) the standards made available to User as part of the Services, except in accordance with Section 1 of the Agreement;
  2. upload, post, e-mail, link or otherwise transmit any Provider content or User Content that:
    1. constitutes unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation;
    2. infringes any patent, trade-mark, trade secret, copyright or other proprietary or privacy rights of any party;
    3. is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, racially, ethnically or otherwise objectionable;
    4. contains any form of destructive software such as a virus, worm, Trojan horse, time bomb, cancelbot, or any other harmful components or any other computer file, program or code, designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
  3. access the Infoway Platform and/or use the Services otherwise than for the purpose of and in accordance with this Agreement;
  4. disassemble, decompile, or reverse engineer the Services, or any portion thereof;
  5. harvest or otherwise collect or store any information (including personal information) about other users of the Infoway Platform and the Services, including e-mail addresses, without the express consent of such users;
  6. mislead others by creating a false identity of the sender or the origin of a message, or otherwise;
  7. impersonate any person or entity, including, but not limited to, an Infoway employee, or falsely state or otherwise misrepresent User’s affiliation with a person or entity;
  8. attempt to gain unauthorized access to the Infoway Platform or the Services, or other computer systems or networks owned and/or used by Infoway in connection with the Services, through password mining or any other means;
  9. interfere with or disrupt networks or servers connected or used in connection with the Services;
  10. use, download or otherwise copy, or provide to any person or entity any user directory or other user or usage information, available through the Services or any portion thereof other than in the context of User’s use of the Services; and
  11. facilitate or encourage any of the above conduct.

2.2 CONTENT MANAGEMENT

User acknowledges and understands that Infoway does not monitor, author, edit, or change any information contained in any Provider Content or User Content, and User agrees that Infoway does not have any such responsibility in relation to the Provider Content and the User Content. However, Infoway has the right and may, in its sole discretion, (i) refuse to accept Provider Content or User Content (or modifications or additions thereto) posted by a user, or (ii) remove Provider Content or User Content made available through the Services and/or the Infoway Platform.

3. REPRESENTATIONS AND WARRANTIES FOR PROVIDER CONTENT AND USER CONTENT

With respect to Provider Content and User Content, User hereby represents and warrants to Infoway that: (i) User owns  all right, title and interest of every kind in and to such content or holds a license sufficient to grant the rights granted to Infoway under this Agreement, and User is fully entitled to make the representations, warranties, covenants and waiver set out in this Agreement and to grant such right, title and interest to Infoway, free and clear of any encumbrances or adverse claims whatsoever; (ii) no part of such content will violate or infringe upon the Intellectual Property Rights or any other rights of any third party including, without limitation, any copyright, patent rights, trade secrets, privacy rights, or trade-mark rights; (iii) such content will not constitute a libel or slander against any person, firm or entity, nor contain any matter which is obscene or in any other way unlawful; (iv) such content is appropriate for the specific purpose for which other users may need or access it; (v) User has not done anything, whether by act, omission, agreement or other means, to conflict with this Agreement or to impair the rights granted to Infoway hereunder or to interfere with the full enjoyment by Infoway of such rights; and (vi) User is not aware of any claim, litigation or other proceeding, pending or threatened, which could impair, limit or diminish the rights granted to Infoway under this Agreement or constitute a source of liability for Infoway as a result of the inclusion of the Provider Content or the User Content as part of the Services.

4. INDEMNITY

User agrees to fully indemnify and hold harmless Infoway, its licensees, successors and assigns, and its and their officers, shareholders, directors, parents, employees, agents and representatives (the "Indemnified Parties"), from and against any and all actions, claims, losses, damages (whether direct, indirect or otherwise), judgments, reasonable legal fees (including outside attorneys’ fees) and disbursements and any other liabilities and expenses that they may incur in consequence of: (i) the inclusion in the Services of Provider Content or User Content submitted by User; or (ii) a breach by User of the Code of Conduct or any breach of the warranties, representations, undertakings and obligations of User under this Agreement including, without limitation, the representations and warranties contained in Section 3 of this Exhibit A related to Provider Content and User Content; or (iii) without limiting the generality of (ii) above, and for further clarity,  the use by the User of the Infoway Platform or the Services to access or use any personally identifying information or health-related personal information.

5. NO WARRANTIES

5.1 GENERAL DISCLAIMER.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL Infoway Content, PROVIDER CONTENT, USER CONTENT AND ALL OTHER MATERIALS, PRODUCTS OR SERVICES MADE AVAILABLE, PERFORMED, LICENSED OR PROVIDED TO User BY Infoway HEREUNDER, AND ANY AND ALL INTELLECTUAL PROPERTY RIGHTS THEREUNDER ARE FURNISHED "ASIS", WITH ALL FAULTS AND WITHOUT WARRANTY, REPRESENTATION, OR CONDITION OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, LEGAL, STATUTORY, CONTRACTUAL, EXTRA-CONTRACTUAL, DELICTUAL, OR IN TORT, WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATIONS WITH ONE ANOTHER, OR WHETHER ARISING AS RESULT OF THE NATURE OF THIS AGREEMENT OR IN CONFORMITY WITH USAGE, EQUITY OR LAW, OR OTHERWISE, INCLUDING ANY AND ALL WARRANTIES, REPRESENTATIONS, OBLIGATIONS, RIGHTS OR CONDITIONS OF TITLE, OWNERSHIP (INCLUDING BUT NOT LIMITED TO THE WARRANTY THAT THE RELEVANT PROPERTY IS FREE OF ANY OTHER RIGHTS OR CHARGES), NON-INFRINGEMENT, SATISFACTORY QUALITY, CURRENCY, ACCURACY, COMPLETENESS, APPROPRIATENESS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR A GENERAL PURPOSE, WORKMANSHIP, HIDDEN DEFECTS, PEACEFUL ENJOYMENT, SECURITY, DELIVERY, GOOD STATE OF REPAIR, WARRANTY AGAINST EVICTION, WARRANTY AND DUTY TO INFORM, DUTY TO ACT IN THE BEST INTEREST OF THE OTHER PARTY, OR OTHERWISE, EACH OF WHICH ARE HEREBY EXPRESSLY DENIED AND DISCLAIMED.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Infoway DOES NOT WARRANT THAT Infoway Content, PROVIDER CONTENT, or USER CONTENT made AVAILABLE THROUGH THE SERVICES AND/OR THE INFOWAY PLATFORM will BE ERROR FREE, OR UNINTERRUPTED OR THAT IT WILL PERFORM OR FUNCTION APPROPRIATELY OR PRODUCE A DESIRED RESULT, THAT THE SERVICES AND/OR THE INFOWAY PLATFORM MEET USER’S REQUIREMENTS OR THAT THEY WILL SATISFY ITS OR ANY PARTICULAR BUSINESS, TECHNOLOGICAL, SERVICE OR OTHER NEEDS OR REQUIREMENTS, OR THAT ANY DEFECTS, PROBLEMS, BUGS OR ERRORS OF THE SERVICES AND/OR THE INFOWAY PLATFORM COULD BE DETECTED AND/OR CORRECTED

THE VIEWS OF Users, AS EXPRESSED IN THE PROVIDER CONTENT OR THE user CONTENT, ARE THOSE OF SUCH users ONLY AND NOT THAT OF INFOWAY. BY MAKING AVAILABLE THE PROVIDER CONTENT OR THE user CONTENT, INFOWAY DOES NOT IN ANY WAY APPROVE OR ENDORSE THE VIEWS OF users EXPRESSED THEREIN. user SHALL BE SOLELY RESPONSIBLE TO COMPLETE HIS OR HER OWN DUE DILIGENCE TO DETERMINE IF ALL Infoway Content, PROVIDER CONTENT, user CONTENT AND ALL OTHER MATERIALS, PRODUCTS OR SERVICES MADE AVAILABLE, PERFORMED, LICENSED OR PROVIDED TO user BY Infoway HEREUNDER, AND ANY AND ALL INTELLECTUAL PROPERTY RIGHTS THEREUNDER, ARE adequate FOR user’s INTENDED USE.

WITHOUT LIMITING THE GENERALITY OF THE PRECEDING PARAGRAPH, AND FOR THE SAKE OF CLARITY, SOME OF THE SCENARIOS PRESENTED ON THE SERVICES MAY INCLUDE DESCRIPTIONS OF MEDICAL CONDITIONS AND THEIR TREATMENTS. THE INTENDED USE OF SUCH MATERIALS IS NOT TO PROVIDE MEDICAL ADVICE, BUT RATHER TO PROVIDE EXAMPLES CONSISTENT WITH THE SCENARIOS PRESENTED; SUCH MATERIALS ARE PROVIDED "ASIS", AND WITHOUT WARRANTY, REPRESENTATION, OR CONDITION OF ANY KIND. Infoway URGES User TO CONSULT WITH A QUALIFIED PHYSICIAN FOR DIAGNOSIS AND FOR ANSWERS TO ANY MEDICAL QUESTIONS.

5.3 LINKING DISCLAIMER.  THE INFOWAY PLATFORM AND THE SERVICES MAY CONTAIN LINKS TO OTHER SITES ON THE INTERNET THAT ARE OWNED AND OPERATED BY THIRD PARTIES AND THEREFORE NOT AFFILIATED WITH Infoway. User HEREBY AGREES AND ACKNOWLEDGES THAT SUCH LINKED WEBSITE ARE INDEPENDENT FROM Infoway AND THAT Infoway HAS NO CONTROL OVER THE CONTENT OF SUCH WEBSITE. ANY SUCH LINKS ARE PROVIDED BY Infoway WITHOUT WARRANTY, REPRESENTATION, OR CONDITION OF ANY KIND AND User AGREES AND ACKNOWLEDGES THAT Infoway CANNOT IN ANY WAY BE HELD LIABLE FOR user’s ACCESS TO SUCH LINKED WEBSITE. The INCLUSION OF LINKS ON THE INFOWAY PLATFORM OR AS PART OF THE SERVICES DO NOT IMPLY THAT Infoway SPONSORS, ENDORSES OR IS AFFILIATED OR ASSOCIATED WITH, OR HAS BEEN LEGALLY AUTHORIZED TO USE ANY TRADEMARK, TRADE NAME, SERVICE MARK, DESIGN, LOGO, SYMBOL OR OTHER COPYRIGHTED MATERIALS DISPLAYED ON OR ACCESSIBLE THROUGH SUCH LINKED WEBSITES.

6. LIMITATIONS OF LIABILITY

6.1 LIMITATION.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING CONTRARY IN THIS AGREEMENT, Infoway’S TOTAL MAXIMUM AGGREGATE CUMULATIVE LIABILITY (INCLUDING THAT OF ITS AFFILIATES AND REPRESENTATIVES) FOR ALL PAST, PRESENT OR FUTURE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTIONS, REQUESTS, LAWSUITS, JUDGMENTS, DAMAGES, COSTS, EXPENSES, PREJUDICES OR LOSSES ("CLAIMS") IN RELATION TO OR ARISING UNDER THIS AGREEMENT, ANY Infoway Content, OR THE ACCESS TO THE INFOWAY PLATFORM AND/OR USE OF THE SERVICES (INCLUDING WITHOUT LIMITATION, FOR BREACH OF CONTRACT, STRICT OR STATUTORY LIABILITY, EXTRA-CONTRACTUAL OR DELICTUAL LIABILITY, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY), SHALL BE LIMITED TO the lesser of: (i) ACTUAL AND DIRECT DAMAGES suffered by User, if any; or (ii) one hundred canadian dollars (cad $100); or (iii) if fees are payable to infoway by User for access AND/OR USE OF the services, the total of FEES ACTUALLY PAID BY User during User’s last month of subscription.

6.2 NO LIABILITY OF INFOWAY FOR COPYRIGHT INFRINGMENT. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SUB-SECTION 6.1 OF EXHIBIT A, AND FOR GREATER CERTAINTY, User ACKNOWLEDGES AND AGREES THAT Infoway MAKES NO REPRESENTATIONS OR WARRANTIES, IN RESPECT OF ANY AND ALL Content available THROUGH THE ACCESS TO THE INFOWAY PLATFORM AND/OR USE OF the services, AND THAT Infoway ACTUALLY DISCLAIMS, THAT Infoway HAS OBTAINED ANY OR ALL NECESSARY AUTHORIZATIONS, LICENSES, CONSENTS AND AGREEMENTS THAT MAY BE OR ARE NECESSARY TO ALLOW Infoway TO USE such content AS CONTEMPLATED IN THIS AGREEMENT OR AS PART OF ITS BUSINESS. AS A RESULT, Infoway ASSUMES NO LIABILITY WHATSOEVER UNDER OR IN RELATION TO THIS AGREEMENT (AND Infoway PROVIDES NO INDEMNIFICATION IN RESPECT OF OR IN RELATION TO), FOR OR IN RELATION TO ANY CLAIM BY OR OF ANY PERSON THAT the content available THROUGH THE ACCESS TO THE INFOWAY PLATFORM AND/OR USE OF the services, OR THAT Infoway’S USE OF ANY such content, INFRINGES ANY COPYRIGHT OR OTHER RIGHTS OF ANY SUCH PERSON.

6.3 EXCLUSION OF CONSEQUENTIAL DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER Infoway NOR ITS AFFILIATES OR REPRESENTATIVES, WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES  OR DAMAGES FOR LOSS OF PROFITS OR REVENUES ARISING IN RELATION TO OR UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE.

7. MISCELLANEOUS

7.1 ASSIGNMENT.  Infoway may assign its rights and obligations under this Agreement without the other Party’s consent: (i) to an Affiliate (that remains an Affiliate thereafter), or (ii) in connection with a merger, dissolution, amalgamation or sale of all or a substantial part of its business or assets; provided that in the case of (i) (assignment to an Affiliate), the assigning Party shall remain responsible hereunder, and that in the case of (ii), the assigning Party shall be relieved of its obligations hereunder on a going forward basis, such assignment operating novation.

7.2 APPLICABLE LAW.  The validity, interpretation and performance of the Agreement and its attached appendices shall be governed by the laws of Quebec without regards to its conflict of law provisions.

7.3 JURISDICTION AND VENUE.  The courts of the province of Quebec or the federal courts of Canada situated therein, as applicable, shall have sole and exclusive jurisdiction over any action, Claim, demand, proceeding or lawsuit whatsoever arising under or in relation to this Agreement or its subject matter. The parties irrevocably agree, consent and submit themselves to the subject matter and personal jurisdiction of the courts of the Province of Quebec and of the federal courts of Canada situated therein for such purposes.

7.4 ENTIRE AGREEMENT.  This Agreement and all other documents incorporated herein by reference constitute the Parties’ entire agreement concerning the subject matter hereof, and supersede any other prior and contemporaneous communications.

The preceding paragraph may not apply to a User who acts on behalf of an entity that has entered into a separate written agreement with Infoway, pursuant to which the said entity provides Provider Content to be included as part of the Services. If this is the case and the submission of Provider Content by User to the Services is governed by a separate written agreement with Infoway, then: (i) the terms and conditions contained in the separate agreement entered into by Infoway and User shall prevail in the event of any inconsistency with this Agreement; and (ii) that separate agreement and this Agreement shall be considered to supplement and complement each other to the extent that there is no inconsistency between their respective terms and conditions. In the absence of a separate written agreement between Infoway and the User, the terms and conditions of this Agreement shall govern the User’s access and/or use of the Services.

This Agreement will be modified and updated as necessary to reflect any change to the Services. Any update of this Agreement will be effective as of: (i) the posting a notice on the Infoway Platform; or (ii) the transmission of a notification to the e-mail address associated with the User account for the Services.  

7.5 COMPLIANCE WITH LAWS.  Except as otherwise expressly set forth in this Agreement, each Party agrees, in respect to its respective obligations and activities under this Agreement, to comply with all applicable international and national laws that apply to its operations or activities, including the U.S. Export Administration Regulations, the Export and Import Permits Act (Canada), and any other related, relevant or applicable export controls or restrictions, in each case of any governmental authority in any relevant jurisdiction.

7.6 FORCE MAJEURE.  Apart from the payment of any amounts due, neither party shall be liable for performance delays due to causes beyond its reasonable control, provided that the affected Party promptly notifies the other Party of the delay and uses due diligence to overcome the effects of the force majeure.

7.7 LANGUAGE.  It is the express wish of the parties that this Agreement and all related documents be drawn up in English / C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient redigés en anglais.

EXHIBIT B – DEFINITIONS

Whenever used in the Agreement, the following words and terms have the meanings set forth below:

"Affiliate" means, when used with reference to a specific Person, any Person that, directly or indirectly, or through one or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or common control with, such specific Person; and "owner", "owned" and "ownership", for the purposes of the definition of "Affiliate", means the beneficial ownership of at least fifty percent (50%) of the equity securities or interest of the Person; and "control" includes the contractual right to control management of such entity under terms of a partnership agreement, limited liability company agreement, or otherwise. The term "thirdparty", with reference to a Person, does not include Affiliates of that Person;

"Claims" has the meaning set forth in Section 6.1 of Exhibit A of this Agreement;

"Code of Conduct" has the meaning set forth in Section 2 of Exhibit A of this Agreement;

"Definitions" means Exhibit B of this Agreement;

"Effective Date" has the meaning set forth in the preamble of this Agreement;

"Educational purposes" means for education to benefit the User, including for personal study or for educational activities or to benefit other educators or students.

"General Terms and Conditions" means Exhibit A of this Agreement;

"Includes" and "including", where is used in this Agreement, mean "including (or includes) without limitation";

"Indemnified Parties" has the meaning set forth in Section 4 of Exhibit A of this Agreement;

"Infoway" means CANADA HEALTH INFOWAY INC.;

"Infoway Content" has the meaning set forth in Section 1of this Agreement;

"Infoway Platform" has the meaning set forth in Section 1of this Agreement;

"Intellectual Property Rights" means all patents, copyright, industrial designs, trade-names, trade-marks and services marks, trade secrets and other intellectual property rights, whether registered or not, in any jurisdictions;

"Marks" has the meaning set forth in Section 2of this Agreement;

"Party" or "Parties" means Infoway and/or User, as the context requires;

"Person" means an individual, corporation, company, cooperative, partnership, trust, unincorporated association, entity with juridical personality or governmental authority or body, and pronouns that refer to a Person shall have a similarly extended meaning;

"Provider Content" has the meaning set forth in Section 1of this Agreement;

"Service" or "Services" has the meaning set forth in Section 1of this Agreement;;

"Taxes" has the meaning set forth in Section 6of this Agreement;

"Term" has the meaning set forth in Section 8of this Agreement; and

"User Content" has the meaning set forth in Section 1of this Agreement.

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