Your agreement and responsibilities.
2) User Responsibilities. Each User acknowledges and agrees that it is responsible for:
– The setup and maintenance of all financial reporting and recording aspects of the Software. You must ensure that all settings and accounts are set up in accordance with the Documentation to ensure consistent financial reporting;
– Ensuring that all computers and workstations on which the Software is installed contain adequate virus and malware protection and remain connected to the internet;
– Proper training of your staff regarding use of the Software and that they exercise sufficient care to ensure that all data is input correctly; and
– Providing AKITU access the workstations and your computers as required for the purpose of ensuring proper Software functionality.
– SMS functionality. The number of inbound and outbound text messages are counted toward the User’s maximum quota per subscription month as set forth in your Proposal. To the extend you use the Software for SMS/Text Messaging with your patients, you agree that it shall to only use the SMS/Text Messaging feature for your User Service Management (“CSM”) including but not limited to confirming appointments, follow-up messaging, patient satisfaction, etc. You acknowledge and agree that you or your staff will not use the SMS/Text Messaging feature to send unsolicited messages, marketing, or promotions to your patients or prospective patients in violation of any law or regulation. Additionally, you acknowledge that you are solely responsible for compliance with all privacy, marketing and solicitation laws and regulations including but not limited to CASL, US CAN-SPAM, and other laws or regulations requiring opt-in, opt-out or other recipient consent prior to sending any SMS/Text Messages through the Software.
– You are responsible for reviewing proposed use cases for any SMS/Text Messaging usage to ensure compliance with all applicable laws. You agree to take the following steps prior to using the SMS/Text Messaging features of the software: (1) Obtain opt-in consent from each patient, prospective patient or other recipient before sending any SMS/Text Message as required by law or regulation; (2) Only send SMS/Text Messages during the recipient’s normal business hours, unless it is an urgent message related to the health or treatment of your patient; (3) All SMS/Text Messaging communications must include support HELP/STOP messages and similar messages; and (4) Shall not contact any patients or prospective patients that are on do-not-call or do-not-disturb registries without their specific prior authorization or consent.
– You acknowledge and agree that you remain solely responsible for your professional services and your duty of care to patients. You acknowledge and agree that AKITU only provides the Software as a service and does not provide medical or dental advice or treatment. The Software or your use of it shall is not intended as a substitute for your professional advice to or treatment of patients.
Term and Termination
3) Term. This Agreement is binding from the date of your first use of the Software and each time you use or access the Software until terminated in accordance with these TOU.
4) Termination By User. You may terminate this Agreement at any time by sending sixty days’ notice by email to AKITU at firstname.lastname@example.org before the expiration of the then-current term.
5) Termination for Cause. Either party may terminate this Agreement if the other party commits a material breach by providing thirty (30) days prior written notice. If the breaching party does not cure the material breach within thirty (30) days of receipt of the written notice specifying the nature of the breach and identifying the measures required to correct the breach, then the Software Agreement shall terminate 30 days after receipt of the written notice. Notwithstanding the foregoing, AKITU may terminate this Agreement or deny access to the Software, or any Services provided by AKITU immediately if it has reason to believe that the User has violated its responsibilities under the TOU, or for non-payment of fees when due.
6) Effect of Termination. Termination of this Agreement for any reason shall terminate your rights to any use, or license to use or access to the Software and Services. Termination shall not affect the obligation of User to pay all fees that have accrued or are otherwise owed by User under this Agreement or any license or subscription to Software and Services and shall not affect the right of any party to pursue a claim for breach of this Agreement which accrued prior to the date of termination. On Termination by either party:
– AKITU will retain all User Data for a period of thirty (30) days from the date of termination (“Retention Period”), during which time User may request a final copy of any User Data that is hosted or stored on AKITU servers (the “Final Copy”). AKITU shall provide the Final Copy to User, by way of a secure method of file transfer to be agreed upon by the parties, within ten (10) business days from receipt of the User’s request for same. The Final Copy shall be provided to User in a format and type which may, in some cases, only be accessed through the use of the Software, and AKITU takes no responsibility for transforming or altering the data into any other User is solely responsible for any format conversion of the Final Copy.
– User acknowledges that any and all User Data is permanently deleted upon expiration of the Retention Period and that such data may be unrecoverable at any time thereafter. User agrees and acknowledges that Company has no obligation to retain User Data following the expiration of the Retention Period and may delete User Data in accordance with applicable legislation and data retention policies without prior
Maintenance and Support
7) AKITU will provide basic software maintenance and support services on the terms and conditions described in your Proposal.
8) Maintenance and support services may include provision of updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates“) as AKITU makes available free of charge to all users of the Software entitled to maintenance and support services. AKITU may develop and provide Updates in its sole discretion, and User agrees that AKITU is not obligated or required to develop or provide any Updates. User further agrees that all Updates and corresponding documentation are deemed part of the Software and Documentation and subject to all terms and conditions of this Agreement. User acknowledges that AKITU may provide some or all Updates via download from a website designated by AKITU and that access to the Updates will require an internet connection which remains the User’s sole responsibility. AKITU has no obligation to provide Updates via any other media or means. Maintenance and support services do not include any new version or new release of the Software that AKITU may issue as a separate or new product. AKITU shall determine in its sole discretion whether any issuance qualifies as a new version, new release, or Update.
9) AKITU will provide training, installation, data extraction, transformation, loading (“ETL”) and setup services (collectively, “Implementation Services”), and training and support services (“Support Services”) as specified in the Proposal and in accordance with the Support Policy in effect on the date such Implementation or Support Services are provided, provided User is then entitled to use the Software and Services. Unless specified in the Proposal, User is responsible for payment for any Implementation or Support Services at AKITU’s then-current hourly rates. Notwithstanding any work or assistance provided by AKITU with respect to configuring or setting up the Software, AKITU shall not be responsible for the performance, operation, or maintenance of User’s system unless agreed-to in a separate agreement. User assumes all responsibility for providing its staff with sufficient training on the use of the Software and must exercise sufficient care to ensure that the system, software, and data are inputted correctly and used properly.
10) User may submit requests for feature changes and modifications in writing to AKITU for consideration for inclusion in AKITU’s Updates. The decision to include any change requests in an Update is solely in AKITU’s discretion. AKITU shall retain all ownership and rights in and to any changes, modifications, improvements to the Software.
11) Software maintenance does not include custom software modifications. Any custom software modification may be provided at AKITU’s sole discretion under the terms of a separate agreement at AKITU’s then current rates.
12) Software Updates may include specifications (“Update Specifications”) pertaining to hardware, operating systems and third-party software which may exceed the original system requirements for the Software. Features of updates may require that the Update Specifications be met in order to function. User is responsible for upgrading its hardware, operating systems and third-party software as may be required to meet any Update Specifications.
13) Change notes and end-user documentation will be provided with Software Updates. Any training or support that is requested on new features will be chargeable at the rate in effect at time such Services are provided.
14) System backup. As an additional benefit, Data uploaded to the AKITU production server is automatically backed up nightly on a separate server and retained for 30 days. AKITU will not delete User data from the production server unless otherwise provided in this Agreement. You assume all responsibility and release AKITU from any claims related to any User data not uploaded to the AKITU server, including but not limited to X-ray images, financial or other records or data.
Data Accuracy and Security
15) Data Accuracy. User is solely responsible for the accuracy of the inputs to and the outputs from the Software, as well as ensuring the parameters of the Software are set correctly for the administration, processing of data and calculations in accordance with User’s applicable legal, accounting, or tax requirements. User acknowledges that the provision of care to its patients is solely and exclusively its responsibility, and that the Software or Services are intended only as a supplement to User’s existing office processes and procedures. User will not rely on the Software or Services for the provision of proper care to its patients. User’s remains responsible for ensuring its processes and procedures fulfill its obligations to its patients.
17) Data ETL Limitations. User must provide data in electronically readable format. The AKITU database resulting from import of User’s data reflects the quality of data provided or input by the User. AKITU is not responsible for delays or inability to perform services due to improperly formatted or corrupt files, viruses on media provided, or incompatible backup media or software. User acknowledges that transferring data is subject to the possibility of human and machine errors, omissions, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. AKITU shall not be liable for any such errors, omissions, or losses, except that which is a direct result of AKITU’s negligence or willful misconduct. User is responsible to adopt reasonable measures to limit the impact of such problems, including backup of User’s original data. User remains responsible for reviewing and ensuring the accuracy of all imported data. User is also responsible for complying with all local, provincial, and federal laws pertaining to the use and disclosure of any data.
18) Third-Party Security. User agrees to access the Software and to store and retrieve data using only AKITU approved third-party software. Should User elect to use unapproved third-party products or services, any exchange of data between User and such third-party provider is solely between User and the applicable third-party vendor or provider. AKITU does not warrant third- party products or services, whether or not they are designated by AKITU as “approved” or otherwise, except to the extent directly caused by the willful misconduct or negligence of AKITU. AKITU in its sole discretion may provide limited support for approved third party software. No purchase of third-party products or services is required to use the Software except as specified in the System Requirements.
19) Data Security. AKITU agrees to maintain the security of User Data using current industry-standard data security protocols, and other methods deemed reasonably adequate for secure business data and to notify User in the event of a breach of security involving User Data. User agrees to keep their User Account usernames and passwords strictly confidential and not shared with any other person or entity. User Accounts are personal to each individual and may not be shared. Users are responsible for any and all actions taken using their User Account, and User expressly, irrevocably, unconditionally, and absolutely agrees to immediately notify AKITU of any unauthorized use of the User Account in each instance about how AKITU collects, uses, and protects its Users’ Personal Information
Indemnification and Warranties.
20) Infringement Indemnity. AKITU will defend and indemnify User against a claim that the Software infringes a copyright or patent, in accordance with the indemnity provisions contained in the License
21) Services Warranty. AKITU warrants that the Services will be performed consistent with generally accepted industry standards. AKITU does not guarantee any specific results from the Software or Services.
22) Specified Use. User acknowledges that the Software and Services are not clinical decision-making tools. Any clinical decision made on behalf of a patient is the sole responsibility of the legally responsible clinical service provider, notwithstanding that the practice may use the Software to store and display information about a patient.
23) Software Warranty. Solely with respect to Software the User has fully paid AKITU any required License Fee or other payment, AKITU warrants that, during the Term of the License:
(a) the Software will substantially contain the functionality described in the Documentation and when properly installed on a computer meeting the Software’s system specifications and operated in accordance with the Documentation.
(b) The warranties will not apply and will become null and void if User materially breaches any material provision of this Agreement or if User or any other person provided access to the Software by User whether or not in violation of this Agreement: (i) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by AKITU in writing; (ii) modifies or damages the Software; (iii) misuses the Software or uses the Software other than as specified in the Documentation.
(c) During the Term, if any Software covered by the warranty fails to perform substantially in accordance with the Documentation, and the failure is not excluded from warranty under this Agreement, AKITU will either repair or replace the Software provided that User provides AKITU with all information AKITU requests to resolve the reported failure, including sufficient information to enable AKITU to recreate the claimed failure.
24) Except for the limited warranty set forth in this Agreement, the Software and Documentation are provided on an “As Is” basis with all faults and defects without condition or warranty of any kind. To the maximum extent permitted under applicable law with respect to the Software and Documentation AKITU expressly disclaims all conditions and warranties, whether express, implied, statutory, or otherwise, including all implied conditions and warranties of merchantability, fitness for a particular purpose, title, quiet possession and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice. Without limiting the foregoing, AKITU provides no condition, warranty, or undertaking, and makes no representation of any kind that the licensed Software will meet the User’s requirements, achieve any intended results, be compatible or work with any other software, applications, systems, or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected. AKITU strictly disclaims all conditions and warranties, with respect to any third-party materials.
25) User Liability. User is responsible and liable for its use of the Software, Services, and Documentation and for any use by any employee, agent, contractor, or other persons allowed by User. User remains responsible and liable for all actions or inactions with respect to the Software, Services, and Documentation by any other person that User allows to use.
26) User Indemnity. User agrees to defend, indemnify, and hold AKITU, its subsidiaries, owners, officers, directors, employees, partners, and affiliates harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses, including attorneys’ fees, arising out of or in connection with: (a) any claim alleging that any User Data, whether provided by User or its affiliates, infringes the rights of, or has caused harm to a third party; (b) any claim that constitutes a violation by User of its representations and warranties under this Agreement; (c) any breach by User of this Agreement; (d) any claim arising from User’s violation of any applicable law or regulation; (e) any claim arising from any products or services that User offers on or through the Services; or (f) any third‐party claim arising from User’s use of the Services.
27) Exclusive Remedies. For any breach of the warranties under this Agreement, except with respect to the Software subject to the terms of the License Agreement, User’s exclusive remedy and AKITU’s entire liability shall be, at AKITU’s sole discretion, the performance of the Services provided that User notifies AKITU in writing of any defects in the Services within thirty (30) days of their performance. Any error not reported to AKITU within thirty (30) days of its discovery shall be deemed waived and accepted by User. In the event AKITU cannot reproduce the claimed error, it will have no further obligation to remedy.
28) Indemnifiable Proceedings. In the case of any Indemnifiable Proceeding, the party receiving notice of such Proceeding will inform the other party within two (2) Business Days following which the indemnified party will have the right to: (i) conduct the defense of such Proceeding at the indemnifying party’s sole cost and expense; or (ii) require the indemnifying party to defend such Proceeding at the indemnifying party’s sole cost and expense; provided, however, that in no event may the indemnifying party settle any Proceeding without first securing AKITU’s written approval. AKITU may settle any Proceeding on such terms as AKITU determines in its sole and absolute discretion, at the indemnifying party’s sole cost and expense. Indemnifiable Proceedings include any civil, criminal, regulatory, or administrative action, suit, proceeding, claim, judgment, inquiry, investigation, assessment, reassessment, liability, loss, expense, or cost of any nature or kind alleged, threatened or enforced against, or incurred or suffered by, or otherwise involving directly or indirectly the indemnified party, or to which the indemnified party is made a party for any reason, in relation to, arising out of or otherwise involving in any manner, directly or indirectly: (i) a breach, alleged breach or threatened breach of this Agreement by User; (ii) a breach of any warranty, representation or agreement made by the indemnifying party under this Agreement, or by virtue of any exercise of any rights granted or conferred on AKITU under this Agreement; (iii) any claim in connection with User Data; (iii) any action to establish a right to indemnification under the this Agreement in favor of an indemnified party; (iv) in connection with any other matter for which an indemnified party is entitled to be indemnified pursuant to the provisions of this Agreement.
Fees and Payment.
29) Fees. Payment for all fees related to the Software and Services shall be in accordance with the applicable Proposal. Fees that are fixed, such as Subscription Fees, are payable monthly in advance and due in full by no later than the first day of each month. Payments for all other Services that are variable and dependent on actual usage are due upon receipt of the service. AKITU reserves the right to refuse to commence performance of Services if one-time Service fees have not been paid. Subscription Fees shall be due five (5) business days after a Proposal is signed. An administrative late charge of $35.00 per invoice per month will be charged for any invoice not paid by the due date and which remains unpaid each 30 days thereafter, including any electronic transaction that is declined and any returned cheques. Additionally, any amounts payable by User hereunder which remain unpaid after the due date shall be subject to a finance charge equal to the lesser of 1.5% per month or the maximum amount permitted under Applicable Law, from the due date until such amount is paid. AKITU reserves the right to reasonably increase Fees to account for any cost increases. User will be notified no less than sixty (60) days prior to any such increase taking effect. All fees are NON-REFUNDABLE.
30) Deposit. AKITU may in some instances require a refundable deposit which will be specified in the Proposal. The Deposit shall be applied to any Fees to be paid pursuant to this Agreement (as provided in the Proposal) or may be returned to User in accordance with the terms of this Agreement. Amounts held on deposit will not accrue interest unless required by law.
31) Taxes. All fees listed in this Agreement and any Proposal do not include taxes; if AKITU is required to pay sales, use, property, value-added, GST, HST, withholding, excise or other taxes, duties, or governmental charges based on the rights granted or Services provided under this Agreement or on User’s use of Software or Services, then such taxes, duties, or governmental charges shall be billed to User and immediately due and payable.
32) Required Records. User agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder.
33) Audit. AKITU may at any time, in AKITU’s sole discretion, audit User’s use of the Software to ensure User’s compliance with this Agreement on a regular and consistent basis through the use of system monitoring tools. AKITU also may, in its sole discretion, audit User’s systems within six (6) months after the end of the Term to ensure User has ceased use of the Software and removed all copies of the Software from such systems as required hereunder. The User shall fully cooperate with AKITU’s personnel conducting such audits and provide all reasonable access requested by AKITU to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. AKITU may conduct audits only during User’s normal business hours and in a manner that does not unreasonably interfere with the User’s business operations. If after any audit, AKITU determines that the User’s use of the Software exceeds or exceeded the use permitted by this Agreement, User shall, within thirty (30) days following the date of such determination by User or AKITU’s written notification thereof, pay to AKITU the retroactive License Fees for such excess use and obtain and pay for valid License(s) to bring User’s use into compliance with this Agreement. In determining the User Fee payable in accordance with the foregoing, (a) unless User can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by AKITU hereunder and continued uninterrupted thereafter, and (b) the rates for such Licenses shall be determined without regard to any discount to which User may have been entitled had such use been properly licensed before its commencement (or deemed commencement). AKITU’s remedies under this section are cumulative and are in addition to, and not in lieu of, all other remedies AKITU may have at law or in equity, whether under this Agreement or otherwise.
Limitation of Liability.
35) Limited liability. In no event shall AKITU, its parent, subsidiaries, officers, directors, employees, partners, or affiliates be liable to User for any indirect, special, consequential, or incidental, exemplary, or other damages arising from or related to this agreement, including but not limited to loss of data, loss of income, loss of opportunity, lost profits, and costs of recovery or any other damages, however caused and based on any theory of liability, and including, but not limited to, breach of contract, tort (including negligence and strict liability), statute, or otherwise, and whether or not company has been advised of the possibility of such damages. To the extent permitted by applicable law, the total aggregate liability of company shall be limited to the amount paid to AKITU by User during the three months immediately preceding the first event giving rise to the claim. Some jurisdictions do not allow exclusion or limitations of liability as set forth above or require exclusions or limitations of liability that are different than those set forth above. In these jurisdictions, the exclusions or limitations of liability set forth above will be excluded only to the minimum extent required to conform with applicable law in each such jurisdiction (as applicable in the circumstances) and AKITU will adhere solely to the minimum requirements in each such jurisdiction, such that the exclusions and limitations of liability applicable in the circumstance will be those that are permissible to the greatest extent under such applicable laws. These exclusions and limitations of liability will survive and apply even if any limited or unlimited remedy specified in the User terms is found to have failed of its essential purpose.
36) AKITU’s Intellectual Property (“IP). AKITU’s IP includes its Services, Documentation, all ownership, rights, title, and interest in and to any patent, copyright, trademark, trade secret, database, domain names, or other intellectual property provided to User under this Agreement. AKITU IP includes data and information related to User’s use of the Software or Services that is used by AKITU in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services and any information, data, or other content derived from AKITU’s monitoring of User’s access to or use of the Services but does not include User Data. (“Aggregated Statistics”) User acknowledges that AKITU owns all right, title, and interest, including all intellectual property rights to AKITU’s IP and, with respect to Third-Party Products, the applicable third-party owns all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
37) Data. AKITU acknowledges that User owns all right, title, and interest, including all intellectual property rights, in and to the User Data. User hereby grants to AKITU a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the User Data and perform all acts with respect to the User Data as necessary to provide the Services to User, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display User Data incorporated within the Aggregated Statistics. User may not use any AKITU logo or trademark without prior written approval from AKITU. This includes use on printed materials of any kind and electronic mediums such as internet web pages, social media, email or other platforms. Furthermore, The use of the “AKITU” name or any derivative in User’s URL, business name, or the names of any add-on products or services User may offer independent of AKITU is strictly prohibited. Using the AKITU name in paid targeted keyword advertising campaigns on search engines is also prohibited.
38) Feedback. If User, or any of its employees or contractors, sends or transmits any communications or materials to AKITU by mail, email, telephone, text message, social media, or otherwise, suggesting or recommending changes to the AKITU IP, including without limitation, new features or functionality, or any comments, questions, suggestions, (“Feedback“), AKITU is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing Feedback. User assigns to AKITU on User’s, and its employees, contractors and agents behalf, all right, title, and interest in any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback for any purpose. User agrees that AKITU is free to use the Feedback without any attribution or compensation to any party.
39) Personal Information and Personal Health Information. “Personal Information” means any information about an identifiable individual, which includes information that can be used on its own or with other information to identify, contact, or locate a single person as such term is defined in the Personal Information Protection and Electronic Documents Act (Canada), S.C. 2000, c.5, , Personal Information Protection Act (British Columbia), S.B.C. 2003, c.63, Personal Information Protection Act (Alberta), S.A. 2003, c. P-65, An Act respecting the Protection of personal information in the private sector (Quebec), R.S.W. c. P-39.1, and any other applicable law relating to the protection of personal information in the private sector, as then in effect. “Personal Health Information” means biometric, genetic, health, or medical data, including without limitation, all health information and personal health information as defined under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, Health Information Act, R.S.A. 2000, c. H-5, The Personal Health Information Act, S.M. 1997, c. 51, C.C.S.M., c. P33.5, Personal Health Information Privacy and Access Act, S.N.B. 2009, c. P-7.05, Personal Health Information Act, S.N.L. 2008, c. P-7.01, Personal Health Information Act, S.N.S. 2010, c. 41, Health Information Act, S.N.W.T. 2014, c. 2, Act respecting the sharing of certain health information, CQLR, c. P-9.0001, The Health Information Protection Act, S.S. 1999, c. H-0.021, and Health Information Privacy and Management Act, S.Y. 2013, c. 16, collectively, the “Health Privacy Legislation”.
40) Order of Precedence. To the extent there is a conflict or inconsistency between any of the documents forming part of the TOU, the parties agree to the following order of precedence (highest to lowest):
42) Entire Agreement. This Agreement including all attached schedules and other documents incorporated by reference constitutes the sole and entire binding agreement between User and AKITU and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
43) Confidential Information. Under this Agreement each party may disclose or make available Confidential Information to the other party. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for two years after termination of this Agreement for any reason, subject to any legal obligations imposed on the User by freedom of information and privacy legislation. In the event that either party is requested or required for the purposes of legal, administrative, or arbitration to disclose any Confidential Information, the party receiving such disclosure request will provide the other party with immediate written notice of any such request or requirement so that such party may seek an appropriate protective order or other relief.
44) Canadian Anti-Spam Legislation (CASL). As required by CASL or any other laws or regulations, User consents to receiving commercial electronic messages from AKITU, subject to User’s ongoing right to withdraw such consent at any time upon notice to AKITU via the unsubscribe mechanism provided in the communications. As provided in this Agreement, User further agrees that it will comply with CASL and any other law or regulation regarding phone, email or text messaging with its patients when using the Software. User specifically represents and warrants that it has obtained or will obtain valid consent of its patients or prospective patients prior to sending any commercial electronic messages as required by CASL. User shall maintain required records of consents from each patient sent commercial electronic messages and any unsubscribe requests received and provide these records to AKITU upon request. User agrees to defend, indemnify, and hold harmless AKITU from any claims, complaints or legal or administrative action or proceedings alleging AKITU violated CASL or any applicable privacy or electronic communications law or regulations, including without limit, all costs, expenses, legal fees, fines, damages, or awards against AKITU related to such alleged violations.
45) Subcontractors. AKITU may use subcontractors and permit them to exercise AKITU’s rights, but AKITU remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
46) Patient Consent. User is solely responsible for obtaining authorization and consent from their its patients to enable AKITU to perform its obligations under this Agreement. User warrants and represents that it has received, or will receive, the necessary authorization or consent from its patients in this regard.
47) Notice. User agrees to notify AKITU of any changes to User’s business address and contact information within ten (10) days of any change. All notices required or permitted under this Agreement shall be given in writing or as specifically set forth in the applicable section of this Agreement. User agrees that AKITU may treat documents emailed by User to AKITU as original documents, except that either party may require the other to exchange original signed documents to evidence an order for Software or Services. This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument.
48) Amendments and Modifications. The parties may amend, modified, or supplement this Agreement only in writing signed by each party unless otherwise permitted pursuant to this Agreement.
49) Construction. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against AKITU.
50) Waiver. Any Party may waive the benefit of any term, condition, warranty, or covenant in this Agreement or any right or remedy under Applicable Law, but only in writing signed by the Party to be charged. No waiver by any Party of any breach will be deemed a waiver of any preceding, continuing or subsequent breach.
51) Relationship of Parties. AKITU and User are independent contractors, and this Agreement shall not constitute or be deemed to constitute a partnership, agency, or joint venture between the Parties, and neither Party nor any of its respective directors, officers, employees, or agents will, by virtue of the performance of any obligations under the User Terms, be deemed to be an agent or employee of the other Party. Neither Party is authorized to act on behalf of the other Party, and each will act as an independent contractor at its own risk.
52) Assignment. This Agreement is binding upon and inures to the benefit of the Parties. User may only assign or transfer its rights, privileges, and obligations under the User Terms with AKITU’s prior written consent, in accordance with AKITU’s License Transfer policies and procedures. AKITU may delegate or assign all or any portion of its rights, benefits, and obligations under the User Terms at any time in its sole discretion.
53) Severability. If any provision of this held to be invalid or illegal under Applicable Law, such provision will be curtailed and limited only to the extent necessary to bring it within the legal requirements and such curtailment or limitation will not affect the validity of the remainder of this Agreement or any other provisions.
54) Force Majeure. AKITU will not be liable for any default or delay in the performance of its obligations under this Agreement or for the Software and Services if and to the extent the default or delay is caused by circumstances beyond AKITU’s reasonable control including but not limited to fire, flood, earthquake, elements of nature, acts of God, epidemic, pandemic or major health related event, government lockdown or restrictions, explosion, war, terrorism, revolution, civil commotion, acts of public enemies, or any act or order of government or legal body having jurisdiction, or labour unrest such as strikes, slowdowns, picketing or boycotts, failure or delay of any public or private utility, Partner Products, information technology systems including the Internet or internet service providers.
55) Cumulative Remedies. Except as expressly provided in this Agreement to the contrary, the exercise or obtaining of any right, remedy, or relief by AKITU, including the exercise of a right of termination, is without prejudice to any other right, remedy or relief available to AKITU pursuant to Applicable Law or under this Agreement.
56) Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the province of Ontario and the federal laws of Canada. Applicable governing law shall also include all statutes and regulations pertaining to Personal Information, electronic documents, privacy, data and the like, including the Digital Millennium Copyright Act (United States), California Consumer Privacy Act (United States) General Data Protection Regulation (EU), Personal Information Protection and Electronic Documents Act (Canada), Canada’s Anti-Spam Legislation (CASL), and Health Privacy Legislation (as defined herein); (iii) all statutes or regulations or directives or political policies pertaining to export laws, including those pertaining to Canadian, European Union, British, United States or United Nations embargo, sanction or restricted trade countries or parties, including, but not limited to, OFAC’s List of Specially Designated Nationals and Other Blocked Persons, the U.S. State Department’s Nonproliferation Sanctions lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List, or subject to end destination export control regulations, such as, but not limited to, the U.S. Export Administration Regulations and EU Dual-Use Regulation EC 428/2009; and (iv) all statutes and regulations pertaining to applicable anti-corruption and anti-bribery and anti-money laundering. User expressly, irrevocably, unconditionally, and absolutely submits to the exclusive personal jurisdiction of the courts situated in the province of Ontario and waives any claim that such courts are an inconvenient forum.
57) Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Ontario before one arbitrator. The arbitration shall be administered by Arbitration and Mediation Institute of Canada. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration, or for injunctive or other equitable relief to restrain a breach or threat of breach, of intellectual property rights, confidentiality protection, or other breach or violation of rights for which injunctive or equitable relief is appropriate. Except for action for nonpayment or breach of AKITU’s proprietary rights in the Software, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has occurred.
58) Language. Except as expressly stated, all communications and all goods and services governed by the this Agreement will be in the English language. The Parties hereto have required that the TOU and all documents or notices relating the Software, Services and this Agreement are to be drafted in the English language.
59) Provisions Necessary. The provisions of this Agreement are necessary to protect the trade, commercial and financial interests of AKITU. User expressly, irrevocably, unconditionally, and absolutely acknowledges and agrees that any breach whatsoever of the covenants, provisions, obligations, and restrictions contained in this Agreement will constitute a material breach of User’s obligations to AKITU which may cause serious damage and injury to AKITU which cannot be fully or adequately compensated by monetary damages. User accordingly agrees that in addition to any other available remedies, AKITU may seek, obtain, and enforce interim or permanent equitable relief, including interim, interlocutory, and permanent injunctive relief, in the event of any breach or anticipated breach of this Agreement. All such rights and remedies will be cumulative and in addition to any and all other rights and remedies whatsoever to which AKITU may be entitled.
60) Survival. The obligations (including indemnification), licenses and grants of rights made by User, and other provisions this Agreement that by their nature are intended to survive the termination or expiration of this Agreement will survive and User expressly, irrevocably, unconditionally, and absolutely agrees to such survival.
CLOUD SERVER LICENSE AGREEMENT
This Cloud Server License Agreement applies to Users who have purchased or subscribed to AKITU One Software
This Cloud Server License Agreement, including the TOU which by this reference is incorporated (“License Agreement“), is between AKITU and the purchaser (“User,” “you,” “your”) identified on the applicable proposal or order form(“Proposal”).
AKITU provides the Software and Services solely on the terms and conditions set forth in this License Agreement. By using the Software and Services you accept this License Agreement and agree that you are legally bound by its terms and represent and warrant that you are of legal age to enter into a binding agreement and if User is a corporation, governmental organization, or other legal entity, you have the right, power, and authority to enter into this License Agreement and legally bind the User to its terms. If User does not agree to the terms of this License Agreement, AKITU will not and does not license the Software to User and you must not use the software or documentation.
Notwithstanding anything to the contrary in this License Agreement or the TOU, no license is granted ,express or implied, under this License Agreement, and this License Agreement expressly excludes any right concerning any Software that User did not acquire lawfully or that is not a legitimate, authorized copy of AKITU’s Software.
1) Access and Use.
– Provision of Access. Subject to and conditioned on User’s payment of Fees and compliance with all other TOU, AKITU hereby grants User a non-exclusive, non-transferable right to access and use the Software and the Services during the Term, solely for use by User and its Authorized Users in accordance with the TOU and this Agreement. User agrees that any use is strictly limited to User’s own internal use and no attempt shall be made to share, license, rent or otherwise allow any unauthorized user to access the Software. AKITU shall provide to User the necessary passwords and network links or connections to allow User to access the Software and Services. There is no limit on the number of User’s computers on which the Software is installed, except that if the User uses the Software simultaneously in excess of the Concurrent User Maximum under the Proposal and this License, AKITU will adjust the subscription fees to account for the additional Users and User agrees to pay the adjusted subscription fees effective from the month excess use
– Documentation License. Subject to the terms and conditions contained in this License Agreement, AKITU grants to User a non-exclusive, non-sublicensable, non-transferable License to use the Documentation during the Term solely for User’s internal business purposes in connection with its use of the Software and Services.
– Use Restrictions. User agrees that it shall not use the Software or Services for any purposes beyond the scope of the access granted in this License Agreement or in contravention of the Authorized Use Policy. User shall not at any time, directly or indirectly, and shall not permit any of its Authorized Users to: (i) copy, modify, or create derivative works of the Software, Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, Services, or Documentation, in whole or in part; (iv) remove any proprietary notices from the Software, Services or Documentation; or (v) use the Software, Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable
– Reservation of Rights. AKITU reserves all rights not expressly granted to User in this License Agreement. Except for the limited rights and Licenses expressly granted under this License Agreement, nothing in this License Agreement grants, by implication, waiver, estoppel, or otherwise, to User or any third party any intellectual property rights or other right, title, or interest in or to the AKITU
– AKITU will provide User with access to and retrieval of User Data in connection with use of the Software indicated in the Proposal.
– User is solely responsible for obtaining access to the Internet, and necessary software and hardware that meet the minimum requirements, including security requirements, as set forth in AKITU’s published System Requirements available at https://www.akituone.com/requirements. User is solely responsible for ensuring that User systems meet or exceed the System Requirements.
– Notwithstanding anything to the contrary in this License Agreement or the TOU, AKITU may temporarily suspend User’s and any of its Authorized User’s access to any portion or all of the Software or Services if: (i) AKITU reasonably determines that (A) there is a threat or attack on any of the AKITU IP, (B) User’s or any of its Authorized Users use of the AKITU IP disrupts or poses a security risk to the AKITU IP or to any other User or vendor of AKITU, (C) User, or any of its Authorized Users, is using the AKITU IP for fraudulent or illegal activities, (D) subject to Applicable Law, User has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) AKITU’s provision of the Services to User or any Authorized User is prohibited by Applicable Law; (ii) any vendor of AKITU has suspended or terminated AKITU’s access to or use of any third-party services or products required to enable User to access the Services; or (iii) in accordance with the TOU. AKITU shall use commercially reasonable efforts to provide written notice of any suspension of Service to User and to provide updates regarding resumption of access to the Services following any suspension of Service. AKITU shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the suspension of Service is cured. AKITU will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that User or any Authorized User may incur as a result of a Service Suspension.
3) Access and Security.
– User shall designate user account names and passwords for Authorized Users associated with User. AKITU will deem any communication, data transfer, or use of the Software received under User’s account names and passwords to be for User’s benefit and use. User agrees to notify AKITU if any account names or passwords are lost, stolen, or are used in an unauthorized manner, and to fully indemnify AKITU for any losses, damages, or expenses it incurs as a result of any unauthorized use of User account names or passwords. User represents and warrants that it has the rights to all User Data, including the right to upload User Data to AKITU’s servers in connection with its authorized use of the Software or
– User is responsible for ensuring appropriate software access, feature access, and privacy protections are established in the Authorization Manager component of the
– User agrees that the User Data and its use do not infringe the rights of any third party and agrees to indemnify and holds AKITU harmless from any third-party claims of infringement under the same terms and conditions set forth in the TOU for AKITU’s infringement indemnity.
4) Intellectual Property Rights.
User acknowledges and agrees that the Software and Documentation are provided under License and not sold to User does not acquire any ownership interest in the Software or Documentation under this License Agreement or any other rights other than to use the Software and Documentation in accordance with the License granted and subject to all terms, conditions, and restrictions under this License Agreement. AKITU reserves all rights, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the User in this License Agreement. User shall use commercially reasonable efforts to safeguard all Software, including any copies, from infringement, misappropriation, theft, misuse, or unauthorized access. User shall promptly notify AKITU if User becomes aware of any infringement of AKITU’s Intellectual Property Rights in the Software and fully cooperate with AKITU in any legal action taken by AKITU to enforce its Intellectual Property Rights.
5) No Implied Rights.
Except for the limited rights and Licenses expressly granted under this License Agreement, nothing in this License Agreement or the TOU grants, by implication, waiver, estoppel or otherwise to User or any third party any Intellectual Property Rights or license, nor other right, title, or interest in or to the Software or Documentation, and AKITU’s Confidential
6) Aggregated Statistics.
Notwithstanding anything to the contrary in this License Agreement, AKITU may monitor User’s use of the Services and collect and compile Aggregated All rights, title, and interest in Aggregated Statistics and all related intellectual property rights belong to and are retained solely by AKITU. User acknowledges that AKITU may compile Aggregated Statistics based on User Data input into the Services. User agrees that AKITU may make Aggregated Statistics publicly available in compliance with Applicable Law, and use Aggregated Statistics to the extent and in the manner permitted under Applicable Law; provided that such Aggregated Statistics do not identify User, User’s Confidential Information, or any Personal Health Information.
7) Third-Party Materials.
The Software may include software, content, images, data, or other materials, including related documentation, which are owned by third parties that are provided to User under the TOU are in addition to and different from those contained in this License Agreement (“Third-Party Licenses“). A list of all materials, if any, included in the Software and provided under Third-party Licenses, and the applicable Third-party Licenses are accessible via links. Ownership of all Intellectual Property Rights in such Third-Party Materials remains with the respective owners thereof. User is bound by and shall comply with all Third-party Licenses. Any breach by User or any of its Authorized Users of any Third-party License is also a breach of this License Agreement.
AUTHORIZED USE POLICY
This Authorized Use Policy (“AUP“) governs your use of the Software and Services including Documentation for use pursuant to and subject to the TOU between AKITU and User and the applicable License Agreement.
1) Use Restrictions. You shall not, directly, or indirectly:
– use the Software, Services or Documentation except as set forth in the License Agreement;
– copy the Software, Services or Documentation, in whole or in part;
– modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software, Services or Documentation or any portion thereof.
– combine the Software, Services or Documentation or any portion thereof with, or incorporate the Software or any portion thereof in, any other programs;
– reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software, Services or Documentation or any portion thereof;
– remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices included on or in the Software, Services or Documentation, including any copies thereof;
– rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Software or any features or functionality of the Software, Services or Documentation, for any reason, to any other person or entity, including any subcontractor, independent contractor, affiliate, or service provider of User, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
– use the Software, Services or Documentation in violation of any Applicable Law; or
– use the Software, Services or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to AKITU’s commercial disadvantage, or to otherwise compete with AKITU.
2) Compliance Measures. The Software may contain copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against use of the Software beyond the scope of the License granted or as prohibited by this AUP. User shall not attempt to or remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security