This agreement is made between Equinoxe Corporation (“Equinoxe”), and you (“You”, “Your” and other similar words). Your access to and use of the Software and System is governed solely by the terms of this Agreement which supersedes and replaces the terms of any other prior agreement, writing or understanding between You and Equinoxe. “You” includes all your heirs, trustees, administrators and other legal representatives.
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.
Equinoxe May Amend the Agreement. 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 to all such changes.
Terms and Conditions
Definitions. As used in this Agreement:
- “Anonymized Data” means any data provided by You or a provider about You in the Software (or generated by Equinoxe about You) through the use of the System, not including Personal Information. Anonymized Data will not contain any personally identifiable information about You. Anonymized Data will be created through the removal of any personal identifiers.
- “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.
- “Email Address” means a single valid email address provided by You.
- “Personal Information” means information about an identifiable individual that is collected, used and disclosed in the course of delivering the System.
- “Software” means the on-line 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.
- “Your Data” means any data, information or information submitted by You or Your provider with whom you connect through the Software, and includes, without limitation, Personal Information.
- Subscription to the Software. Subject to You complying with each term of this Agreement, Equinoxe hereby grants to 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 will 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 Specifically denies any responsibility or liability for any loss, damages or claim arising out of, or related to, any unavailability or speed of the software (or part thereof) at any time.
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. Those 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 if Your Data violates this Section 3.2; however, Equinoxe is under no obligation to review any data, information, content or material on the System for accuracy or potential liability.
- Use Restrictions. You are responsible for all activities that occur under Your account. You will not, and will not 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 Equinoxe System; (e) otherwise use the Software or access the System in any manner that exceeds the scope of use permitted under Section 2.1; (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 the Your Use. 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.
- Examples of Services We Need the License For. As examples only, the license in Section 3.6 allows Equinoxe to use and disclose Your Personal Information in providing the Services: (a) to schedule a visit with a treating provider and to send any appropriate records to the treating provider; (b) to ensure that Your clinical data is stored on electronic medical record systems in use in the applicable jurisdiction; (c) for administration of billing, such as through government operated plans or private insurers; (d) to other providers involved in Your care including and not limited to other providers, clinic operators, specialists, pharmacists, lab technicians, nutritionists, physiotherapists, and occupational therapists; and (e) where the disclosure is required by law such as reporting infectious diseases pursuant to statutory obligation, to law enforcement agencies in certain circumstances, to comply with a subpoena or court order or records, or for other statutory or legal purposes.
- 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.
Your Warranties and Promises to Equinoxe
- Your 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 the 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.
- Your Data. You retain all ownership in and to Your Data that is Personal Information. Equinoxe will use Your Data to provide the Software under this Agreement. You will be solely responsible for providing all Your Data required for the proper operation of the Software. You grant to Equinoxe all necessary licenses in and to Your Data solely as necessary for Equinoxe to provide the Software to You and as otherwise described in Section 3.6. Equinoxe retains the sole right to own any Anonymized Data.
- Anonymous/Aggregated Data. Notwithstanding Section 5.3 or any other term of this Agreement, during the term of this Agreement and afterwards, Equinoxe may use Anonymized Data and may transfer, convey, sell, manipulate and otherwise exploit such Anonymized Data.
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 You the Software (or any portion of it) 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 always to the laws of the Province of British Columbia and applicable laws of Canada therein. 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 not to 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.
- Warranty Disclaimed. Equinoxe makes no 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” 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.
- 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 or Software (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 (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 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 arising from or in connection with this agreement (under any legal theory including claims in contract or tort), the software and the system, will not exceed the amounts actually paid to Equinoxe, if any, by you in the six 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.
- 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. Subject to the foregoing limitation, this Agreement shall inure to the benefit of and shall be binding on the heirs, legal representatives, successors and assignees of the parties.
- Disputes. 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 and System. To the extent permitted by law, You agree that You will not bring a claim under this Agreement more than 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 the mandatory arbitration provision, 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 [email protected] 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 enure 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].
This policy is dated October 10, 2014.