Terms of Use

CLOUD PRACTICE INC.

LICENCE AGREEMENT

THE TERMS AND CONDITIONS which follow govern the relationship between you (the "User") and Cloud Practice Inc. ("CPI"), a British Columbia company having a place of business in Victoria, British Columbia. By registering with CPI and using CPI's electronic medical record system distributed under the name "Oscar Host", you agree that these terms and conditions are legally binding upon you. Please read these terms in their entirety.


WHEREAS:
  1. CPI owns all right, title and interest to a centrally hosted electronic medical record system distributed under the name "Oscar Host";

  2. the User has requested, and CPI has agreed to supply the user with limited access to Oscar Host for the Permitted Use, together with certain documentation, media, manuals and other technical information including an online help system related to Oscar Host (the "Related Material") for use by the User subject to the terms and conditions of this Agreement.

IN CONSIDERATION of the premises and the mutual covenants and agreements contained in this Agreement, described in detail on the registration page completed by the User, the receipt and sufficiency of which the User has acknowledged, the User agrees with CPI as follows:


  1. Section 1 - Interpretation

    1. 1.1

      In this Agreement:

      "Permitted Use" means use of Oscar Host in connection with the User's medical practice, subject to any rules, regulations, policies and procedures for access to and use of Oscar Host, as amended from time to time and published on the Oscar Host web site.

  2. Section 2 - Term

    1. 2.1

      This Agreement will take effect on the Effective Date and continue in full force and effect until terminated in accordance with this Section.

    2. 2.2

      Either party may otherwise terminate this Agreement for any reason on written notice delivered to the other, which notice will be effective on the last day of the period for which the User has paid for service.

    3. 2.3

      Forthwith upon termination of this Agreement: (a) CPI will terminate access, and the User and those for whom it is responsible in law will cease to access or use Oscar Host; and (b) the User will pay to CPI all sums due and owning in accordance with this Agreement.

    4. 2.4

      Notwithstanding any other term of this Agreement, the provisions of Sections 3, 5 and 6 will survive expiration or termination of this Agreement, howsoever caused.

  3. Section 3 - Grant of Licence

    1. 3.1

      During the term of this Agreement, and subject to strict compliance with these terms, CPI grants to the User a limited, revocable, non-exclusive and non-assignable license to permit the User and the User's employees to use and access Oscar Host and the Related Materials, subject to such other and further restrictions specified both in this Agreement and in any Schedules annexed to this Agreement.

    2. 3.2

      The User acknowledges and agrees that Oscar Host is centrally hosted, and all data created or input into Oscar Host will be stored on computer systems owned and operated by CPI, and may be accessed only by way of an authorized web browser.

    3. 3.3

      The User covenants and agrees that it will not:

      1. (a)

        use Oscar Host in a service business, network, timesharing, interactive, multiple CPU or multiple user arrangement with any person who is not expressly authorized or licensed by CPI;

      2. (b)

        alter or modify Oscar Host for use in a manner not contemplated or expressly authorized by this Agreement, or in a manner which competes with CPI;

      3. (c)

        lease, sell, sublicense, assign or otherwise transfer the any right to use or access Oscar Host to any other person;

      4. (d)

        use, distribute, duplicate, reproduce, disclose, publish or transfer Oscar Host except as expressly authorized by this Agreement;

      5. (e)

        make available any part of the Oscar Host to any third party, other than the User's own properly authorized employees except as required in accordance with applicable laws;

      6. (f)

        remove or obscure CPI's copyright, trade-mark, trade secret or other proprietary notices or legends from Oscar Host;

      7. (g)

        permit any third party to have access to Oscar Host without the prior written agreement of CPI, except as required in accordance with applicable laws; or

      8. (h)

        undertake or permit any unlawful use of Oscar Host, or take any action that would render the operation or use of Oscar Host unlawful.

    4. 3.4

      The User covenants and agrees that it will:

      1. (a)

        comply with all applicable laws, including laws relating to maintenance of privacy, security, and confidentiality of patient and other health information;

      2. (b)

        ensure that any use of Oscar Host (including making health information available through Oscar Host) complies with applicable law, including all laws relating to maintenance of privacy, security, and confidentiality of patient and other health information;

      3. (c)

        implement and maintain appropriate administrative, physical and technical safeguards to protect information within Oscar Host from unauthorized access, use or alteration;

      4. (d)

        be responsible for the use of Oscar Host by the User and those for whom the User is responsible, in law;

      5. (e)

        immediately notify CPI of any breach or suspected breach of the security of Oscar Host of which the User becomes aware, to take such action to mitigate the breach or suspected breach as CPI may direct, and to cooperate with CPI in investigating and mitigating the breach;

    5. 3.5

      The User acknowledges and agrees that it acquires no right to Oscar Host except as expressly granted by this Agreement.

    6. 3.6

      The User acknowledges and agrees that, without prejudice to any other right arising under this contract, at law or in equity, CPI may suspend or terminate access to Oscar Host in the event of any breach of this Agreement, or in the event CPI determines in its sole discretion that access to or use of Oscar Host by the User or any person for whom the User is responsible in law might adversely affect (a) Oscar Host; (b) the confidentiality, privacy, security, integrity or availability of information within Oscar Host; or (c) the rights of any third party.

  4. Section 4 - Payment

    1. 4.1

      During the Term of this Agreement, User will pay fees to CPI in the amounts and in the manner specified from time to time on the CPI website.

    2. 4.2

      All fees are exclusive of excise, sales or similar taxes now in force or enacted in the future, which the User will pay in addition to the fees.

    3. 4.3

      Interest on any amount not paid when due will accrue at the rate of 18% per annum, compounded annually (1.5% per month.)

  5. Section 5 - Ownership

    1. 5.1
      1. (a)

        Oscar Host offers access to a version of OSCAR. OSCAR is free, open source software, made available by McMaster University and the Oscar Canada Users Society, subject to the terms and conditions of GNU General Public Licence Version 2. OSCAR can be freely downloaded from http://oscarcanada.org. Modifications to OSCAR undertaken by CPI for use on Oscar Host are also subject to the terms and conditions of GNU General Public Licence Version 2, and may obtained by sending a request to info@oscarhost.ca. GNU General Public Licence Version 2 may be obtained from http://www.gnu.org/licenses/gpl-2.0.html.

      2. (b)

        The Related Materials and all intellectual property rights of CPI in the same, including any new releases, modifications, updates or enhancements to the Related Materials are and will remain the property of CPI. The User acknowledges that it does not, under this Agreement, acquire any interest whatsoever in or to the Related Materials.

    2. 5.2

      No copies of the Related Materials shall be made by the User or its employees.

    3. 5.3

      The User will use its best efforts to keep in confidence and protect the Related Material from disclosure to third parties. The User acknowledges that the unauthorized distribution or disclosure of the Related Materials may cause substantial economic loss to CPI. No printed Related Materials in the possession, custody or control of the User will not be copied, in whole or in part. User will immediately notify CPI if they become aware of any unauthorized use of the whole or any part of the Related Materials by any person, or party.

    4. 5.4

      CPI acknowledges and agrees that:

      1. (a)

        it will not own any right, title or interest in or to any data entered into Oscar Host by the User (the "User Data");

      2. (b)

        except as required by any applicable law or by the order of a Court of competent jurisdiction, it will not disclose to any third party or otherwise make any use of the User Data without the express prior written consent of the User; and

      3. (c)

        upon termination of this Agreement, for any reason, CPI will assist the User in exporting the User Data (in mysql format) for use by the User.

  6. Section 6 - Warranties, Representation and Disclaimers

    1. 6.1

      Subject to the rights of any Third Party Licensors, CPI warrants that it is the lawful owner of Oscar Host and has the full right and authority to grant a license to use Oscar Host.

    2. 6.2

      CPI does not warrant that Oscar Host will meet all requirements of the User or that operation of Oscar Host will be uninterrupted or error-free. CPI is not responsible for problems caused by changes in or modifications to the operating characteristics of any computer hardware or operating system for which Oscar Host is procured, nor is CPI responsible for problems which result from the use of Oscar Host in conjunction with software of third parties or with hardware which is incompatible with environment for which Oscar Host is being procured.

    3. 6.3

      ACCESS TO OSCAR HOST AND THE INFORMATION CONTAINED IN OSCAR HOST IS PROVIDED "AS IS", AND "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE USER IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON OSCAR HOST OR THE INFORMATION IN OSCAR HOST, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL CPI BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, OR LOSS OF INFORMATION OR DATA, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF CPI HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. CPI WILL NOT BE DEEMED TO BE IN VIOLATION OF THIS AGREEMENT UNLESS THE USER HAS FIRST GIVEN CPI WRITTEN NOTICE SPECIFYING THE NATURE OF THE DEFAULT, AND CPI HAS FAILED WITHIN THIRTY (30) DAYS OF RECEIPT OF THE NOTICE EITHER TO CURE THE DEFAULT OR, IF CURE WITHIN SUCH PERIOD IS NOT PRACTICABLE, TO BE DILIGENTLY PROCEEDING TO CURE THE DEFAULT. THE USER ACKNOWLEDGES THAT OTHER PERSONS HAVE ACCESS TO OSCAR HOST, AND THAT THE ACTIONS OF SUCH OTHER PERSONS ARE BEYOND THE CONTROL OF CPI. ACCORDINGLY, CPI DOES NOT ASSUME LIABILITY FOR OR RELATING TO ANY IMPAIRMENT OF THE PRIVACY, SECURITY, CONFIDENTIALITY, INTEGRITY, AVAILABILITY, OR RESTRICTED USE OF ANY INFORMATION ON OSCAR HOST. FURTHERMORE, CPI IS NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OSCAR HOST OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF ANY DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION STORED IN OSCAR HOST, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. THE USER IS SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING THE USER’S DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES, INCLUDING ROUTINE BACKUP PROCEDURES. THE USER HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES. CPI IS NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH OSCAR HOST.

    4. 6.4

      In no event will CPI be liable for any damages whatsoever (including without limitation, direct or indirect damages for personal injury, loss of business profits, business interruption, loss of business information or any other pecuniary loss) arising out of the use of or inability to use Oscar Host, even if CPI has been advised of the possibility of such damages. The entire liability under any provision of this Agreement or otherwise for negligence or generally will be limited to the amount actually paid by the User in accordance with Section 4 of this Agreement.

    5. 6.5

      No party will be liable for any delay, interruption, or failure to perform its duties, covenants, and obligations herein if caused by an event of Force Majeure. For clarity, an event of Force Majeure includes, but is not limited to acts of God or of the public enemy; changes in the laws of Canada or British Columbia; acts of civil or military authorities; governmental restrictions or controls on imports, exports, or foreign exchange; wars, declared or undeclared; revolution; riot; insurrection; civil disturbances; fires; floods; storms; slides; explosions; earthquakes; epidemics; quarantine restrictions; strikes or lockouts, including work stoppages or slow-downs; labour shortages; freight embargoes; power failure; mechanical or electrical breakdown or non-availability of any machinery, equipment, or service provided by any person or corporation not a party to this Agreement; delay, interruption, or failure, occasioned by a computer software or hardware problem, and delays by carriers, suppliers or materials shortages. Lack of money, financing, or credit will not be and will not be deemed to be an event of Force Majeure.

    6. 6.6

      CPI may provide information to assist the User in clinical decision-making, but such information is are not intended to constitute professional advice, diagnosis or treatment, or to substitute for the User’s professional judgment. CPI is not responsible for the accuracy or completeness of information available from or through Oscar Host. The User agrees that CPI is not responsible or liable for any claim, loss, or liability arising from any use of the information.

    7. 6.7

      The User and not CPI will be responsible for ensuring that any information stored in Oscar Host may properly be disclosed in accordance with all laws relating to maintenance of privacy, security, and confidentiality of patient and other health information. The User covenants and agrees that it will (a) not make available through Oscar Host any information subject to any restriction on such use or disclosure; (b) obtain any necessary consents, authorizations or releases from individuals required for making their health information available through Oscar Host; (c) include such statements (if any) in the User’s notice of privacy practices as may be required in connection with any use of Oscar Host; and (d) not place in Oscar Host any information that is false or materially inaccurate.

    8. 6.8

      The User agrees to indemnify, defend, and hold CPI and its affiliates, officers, directors, and agents harmless from and against any claim, cost or liability, including reasonable legal fees, arising directly or indirectly out of: (a) the use of Oscar Host by the User or any person for whom the User is responsible in law; (b) any breach by the User or any person for whom the User is responsible in law of any representations, warranties or agreements contained in this Agreement; and (c) the negligent or willful misconduct of the User or any person for whom the User is responsible in law.

  7. Section 7 - General

    1. 7.1

      This Agreement will be construed in accordance with and governed by the laws of the Province of British Columbia. The User irrevocably attorns to the courts of the jurisdiction of the Province of British Columbia, and agrees that the British Columbia Courts will have exclusive jurisdiction to entertain any proceeding in respect of this Agreement. User agrees that any mediation, arbitration, or litigation, which may arise hereunder, will be commenced exclusively within the Judicial District of Victoria, in the Province of British Columbia.

    2. 7.2

      Any notice required or permitted to be sent under this Agreement shall be sent to CPI at the address specified on the CPI website, from time to time, and to the User at the address specified by the User at the time of registration with CPI (or to such other address of which the User may provide written notice to CPI, from time to time) by prepaid registered mail, return receipt requested. Notice so sent will be deemed effective on the fifth day following mailing except in the case of a mail strike or disruption of postal services. In the case of an actual or apprehended mail strike or disruption of mail services, notice shall be delivered by hand (and shall be signed for by the recipient) or by courier service.

    3. 7.3

      No term, provision, covenant or condition of this Agreement will be deemed waived by CPI and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by an authorized representative of CPI. No waiver by CPI of any default or breach of any of the terms, provisions, covenants or conditions of this Agreement shall constitute a waiver by of any prior, concurrent or subsequent default or breach of the same or any other term, provision, covenant or condition hereof.

    4. 7.4

      No amendment or other modification of this Agreement will be valid or binding on either party unless reduced to writing and executed by the parties hereto.

    5. 7.5

      This Agreement may not be assigned by the User without the express written consent of CPI, which consent may be unreasonably an arbitrarily withheld.

    6. 7.6

      In the event that any term, provision, covenant or condition of the Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction, then the Agreement with respect to the enforceable terms, provisions, covenants or conditions will continue in force, and any unenforceable section, paragraph, or subparagraph will be severed from the remainder of this Agreement, which will continue to be valid to the fullest extent permitted by law.

    7. 7.7

      This Agreement constitutes the entire agreement between the parties with respect to the obligations of CPI, and supersedes all prior representations, negotiations, understandings, and agreements, oral or written, between the parties, with respect thereto. All purchase orders, forms of acceptance, invoices and other documentation respecting the subject matter of the Agreement will be issued or be deemed to have been issued or given by each of the parties for administrative purposes, and any and all terms and conditions contained therein will be of no force and effect except and to the extent the information contained therein is required in accordance with the provisions of this Agreement. No director, officer, employee or agent of CPI has any authority to make any warranty, representation or promise not contained in this Agreement, and the User agrees that it has executed this Agreement without reliance upon any such warranty, representation or promise.