Sciteline Inc. Master Services Agreement

This is a Master Subscription Agreement between the Customer identified and Sciteline Inc. (“Company”). By accessing and/or using the Services, the Customer is agreeing, on behalf of an individual or legal entity, to be bound by the terms of this Agreement.

1. Definitions

(a) Agreement means this Master Subscription Agreement, any Subscription Order(s) executed by Customer and any other documents incorporated herein by reference;

(b) Authorized Users means an individual that is authorized by Customer to access the Services through Customer’s assignment of a single user identification credentials (including user ID and password);

(c) Company means Sciteline Inc. or any of its affiliated entities providing the Services under this Agreement;

(d) Customer means the legal entity or individual that has ordered any Services from the Company;

(e) Customer Content means any content or data uploaded to Customer’s account for storage or data in Customer’s computing environment to which the Company is provided access in order to perform the Services;

(f) Fees means all Company fees applicable to the Services;

(g) Privacy Policy means the privacy policy applicable to a specific Service, if any, which may be updated periodically and viewed at https://sciteline.com/terms-and-privacy-policy/. Such policies are incorporated by reference herein.

(h) Reference Content means any content or data templates or reference tools provided by the Company or other Clients of the Company as a part of the Services, each of which are intended for reference purposes only;

(i) Services means the generally available Company software-as-a-service offerings inclusive of any services delivered through any unified, hosted Company service delivery platform, including any on-premise components (e.g. client software, tools, on-premise software with hybrid licenses), and Updates, all as further described in on https://sciteline.com The Company may update the Services with Updates at any time in its sole discretion, and all Services may not be available to all customers. Services are of an electronic nature delivered to Customer remotely via a technology infrastructure with minimal or no human intervention;

(j) Subscription Order means any initial or subsequent ordering document, auto renewal (if applicable to the Service) and/or online request for access to the Service(s) submitted to, or processed by, the Company, a Company authorized reseller, and/or through Company product websites; and

(k) Updates means any corrections, bug fixes, new features or functions add to or removed from the Services, but shall not include any new Service(s) not generally not included within the Services purchased. Updates shall not substantially diminish or eliminate the core functionality of the Services.

2. Right to Use Services for Business

(a) Subject to these terms, the Company, will provide the Services set forth in any Subscription Order that the Company has accepted for Customer’s use in accordance with this Agreement. Customer may use Services only for business and professional purposes and as expressly granted in this Agreement. The Company hereby grants Customer a limited, personal, non-exclusive, non-transferable license to use the Services up to the number of subscriptions purchased and in accordance with the license model(s) purchased in a Subscription Order.

(b) Unless otherwise stated in a Subscription Order, technical support for the Services is provided as set forth in the applicable Services description at https://sciteline.com. Updates to the Services are managed by the Company and included in the Fees. Customer shall use the then-current version of the Services, including any Updates, as made available by the Company. To the extent that affiliates of the Customer use the Services, Customer warrants that it has the authority to bind under this Agreement those affiliates. Customer will be liable to the Company in the event any affiliate of the Customer fails to comply with any term or condition of this Agreement.

3. License Limitations; Proprietary Rights.

(a) Except to the extent permitted by applicable law, Customer agrees, on behalf of itself and its Authorized Users, not to:

(i) use the Services for any purposes other than the internal business purposes of the Customer unless otherwise provided for in a Subscription Order or as a part of the intended use of the Services;

(ii) use the Services to offer outsourcing, data processing, service bureau, time-sharing or other services to third parties, or to sell, rent, sublicense, publish, display, loan, distribute, lease, sublease, or otherwise share with any third party the benefit of the Services, except as expressly provided otherwise in this Agreement unless otherwise provided for in a Subscription Order or as part of the intended use of the Services;

(iii) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Services and/or the Company technology;

(iv) knowingly or negligently access or use the Services in a manner that abuses or disrupts the Company’s networks, security systems, Authorized User accounts, or Services of the Company or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means;

(v) transmit through or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise objectionable or unlawful;

(vi) use the Services to send unsolicited or unauthorized advertising, junk mail, or spam;

(vii) harvest, collect, or gather information or data regarding other users without their consent unless permitted by applicable law;

(viii) transmit through or post on the Services any material that may infringe the intellectual property rights or other rights of third parties, including, without limitation, trademark, copyright, data privacy or right of publicity;

(ix) transmit or post on the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs;

(x) if the Customer is a competitor of the Company for the relevant Services, use the Services directly or indirectly for competitive benchmarking or other competitive analysis, unless permitted under applicable law; or

(xi) use or access the Services or permit an Authorized User to use or access the Services in a manner that violates the terms of this Agreement.

Except for infringement Claims, Customer agrees to indemnify and hold the Company harmless against any third party Claim and/or liability resulting from Customer’s use of the Services.

(b) Except for the limited use rights expressly granted herein, Customer has no right, title or interest in or to the Services or any components provided by the Company in connection with the Services or Reference Content or any intellectual property rights related thereto. Customer acknowledges that the Company or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with the Services and Reference Content and any components, including, without limitation, all modifications, improvements, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto. This includes any information that the Company and its service providers collect and analyze in connection with the Services, such as usage patterns, Authorized User feedback, and other information to improve and enhance the Services.

(c) Customer hereby grants the Company a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense, to use, reproduce, perform, display, disclose, distribute, modify, prepare derivative works of, and otherwise exploit any User feedback without restriction in any manner now known or in the future conceived, and to make, use, sell, offer to sell, import and export any product or service that incorporates the feedback. No other rights with respect to the Services, any related Company product, or any related intellectual property rights are implied.

(d) Unless otherwise provided for in a Service Order, with respect to the Company’s consulting services, all intellectual property rights in all deliverables, pre-existing works and derivative works of such pre-existing works, as well as developments, made, conceived, created, discovered, invented or reduced to practice in the performance of consulting services, are and shall remain the sole property of the Company, subject to a worldwide, non-exclusive license to Customer for internal use.

4. Term and Termination

(a) Term. The initial term of an Order Form and any associated Services Schedule(s) is the period of time that begins on the Order Begin Date and, unless terminated sooner as provided herein, will continue until the Order End Date. At the conclusion of the Order End Date, this Agreement will automatically renew for successive one (1) year periods (each such period being a “Renewal Term”). Both dates as specified on the Order Form or any applicable Renewal Term shall collectively be referred to as the “Term”. In the case of a SOW for Professional Services, if no end date is specified in the SOW, then the SOW shall expire upon completion of Professional Services or early termination as permitted by this Agreement. The term of this MSA and this Agreement shall continue as long as an Order Form or SOW referencing or incorporated into this MSA remains valid and in effect. Prior to the Order Begin Date, the Company may, upon mutual agreement, start providing Professional Services and/or provide Customer access to the Services, which will be governed by this Agreement. Termination or expiration of any Order Form or SOW shall leave other Order Forms or SOWs unaffected.

(b) Termination for Cause. If either Party commits a material breach under this Agreement, then the other Party may terminate this Agreement in its entirety by giving the defaulting Party written notice of termination, unless the material breach is cured within thirty (30) days after the defaulting Party receives notice thereof. The Company may terminate the Agreement immediately for any violation by Customer of the Company’s or the Company’s licensors Intellectual Property Rights. Either Party may terminate this Agreement in its entirety upon written notice if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or an assignment for the benefit of creditors.

(c) Post-Termination Obligations. If this Agreement expires or is terminated for any reason: (a) Customer will pay to the Company any amounts that have accrued and remain unpaid as of the effective date of the expiration or termination; (b) any and all liabilities of either Party to the other Party that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer with respect to the Services and Intellectual Property will immediately terminate; (d) the Company’s obligation to provide any further Services to Customer under this Agreement will immediately terminate, and (e) the Parties’ rights and obligations under Sections 5d, 4c, 9, 8d and 10 through 23 will survive.

5. Service Orders, Fees & Payments

(a) Customer may order Services using the Company’s then-current ordering processes. Customer’s purchase of a multi-year subscription for any Service(s) is a purchase for the full value of all years of the subscription, even if required payments are annual.

(b) All Service Orders, including auto renewals, are subject to acceptance by the Company in its discretion. All Customer information provided by or on behalf of Customer must be current, complete and accurate, and Customer is responsible for keeping such information updated. Service Order information is subject to automatic processing by the Company for the purposes of managing Customer’s account.

(c) Customer may order additional Services at any time using a Service Order. Additional Services may not be available on a co-terminus basis with previously ordered Services.

(d) Customer is responsible for all Fees and applicable taxes. All payments shall be made without setoff or deduction for any amount and shall be made in the currency provided for in the applicable Subscription Order, by way of cheque or electronic funds transfer payable to the Company or such other affiliate of the Company as the Company may specify from time to time. All purchases are final with no right to a refund, except as expressly provided under this Agreement.

(e) The Company reserves the right, in its discretion, to suspend or terminate the Services or any portion thereof for non-payment of Fees.

(f) Upon sixty (60) days prior written notice by the Company, the fees payable hereunder may increase annually on the anniversary of the Effective Date of a Service Order to a maximum of 2% as an approximation of Consumer Price Index.

(g) Any amount that is not received on the date on which it is due shall bear interest from such date until the date that payment is made, at a compounded rate of 1.5% per month (19.6% per year). The Customer shall reimburse the Company for all reasonable expenses incurred by the Company to enforce payment.

6. Privacy & Personal Health Information

(a) The Company may act for or on behalf of the Customer in respect of the collection, use or disclosure of Personal Health Information (“PHI”) for the purposes of the Customer and not the Company’s own purposes. The Company will not disclose PHI to any person other than the Customer or the Customer’s Authorized Users except in accordance with the Privacy Policy.  The Company will direct all requests for PHI, other than those requests made by Authorized Users, to the Customer.  Notwithstanding the foregoing, in order to deliver certain of the Services, the Company may transmit PHI or other personal information or data between Customer and another research site, or between Customer and a patient as part of the intended use of the Services.

(b) The Customer is at all times responsible for ensuring patient consent and authorization for the collection, use and disclosure of PHI under this Agreement.

(c) Each Party agrees to conform to the requirements of any applicable local, state, provincial or federal privacy legislation, laws or regulations as they relate to the Services.

(d) Customer acknowledges and agrees that PHI received from the Customer that is not used in respect of the Services will be deleted ninety (90) days after the end of the Term, and that the Company’s databases will retain historical data, including without limitation PHI. During the course of the contract, the Company will establish a file transfer process to provide the collected data as per an agreed schedule with the client for storage in clients primary book of record. Client has the option to request additional data storage services from the Company during and beyond the term of the contract.

(e) The Company and its service providers may collect and use data and related information, including, but not limited to, technical information about devices, systems, related software, services, or peripherals associated with Customer’s use of the Services for purposes of facilitating the Services, including securing, managing, measuring and improving the Services or the Reference Content, and for other purposes specified in the Privacy Policy applicable to such Service, if any. Such data may be used for purposes not specified in this Section only in aggregate form.

7. Customer’s Obligations & Rights

(a) Customer is solely responsible for:

(i) the operation, performance and security of Customer’s equipment, networks and other computing resources used to connect to the Services;

(ii) ensuring all Authorized Users exit or log off from the Services at the end of each session;

(iii) maintaining the confidentiality of Customer’s accounts, user id’s, passwords and/or personal identification numbers used in conjunction with the Services;

(iv) to immediately suspend access to the Services for any Authorized User who is suspended, terminated, on leave, or otherwise no longer an Authorized User of the Customer; and

(v) all uses of the Services that occur using Customer’s password or account.

The Company reserves the right to suspend the Services or terminate the Agreement if Customer misuses or otherwise shares login credentials among Authorized Users or other individuals. Customer will notify the Company immediately of any unauthorized use of its account or any other breach of security and/or privacy.

(b) The Customer account owner and Authorized Users will have access to information in the Customer account. The Company will not provide access to any other individual at any time. Customer agrees that the Company may rely on instructions given by the account owner either through the account dashboard or via email from the address on file for the Customer account owner. The Company shall bear no responsibility for any spoofed or otherwise fraudulent email instructions relating to Customer’s account. In the event of a dispute regarding Customer account data, the Company will only release information to another party other than the Customer account owner pursuant to a court order or other notarized waiver and release as determined by the Company.

(c) Customer shall provide level I basic troubleshooting support to Authorized Users, including but not limited to:

(i) ensuring the Customer’s hardware and software are functioning normally;

(ii) ensuring the Authorized User has correct versions of software and that hardware meets the minimum system requirements for the Services;

(iii) ensuring the Authorized User has internet connectivity; and

(iv) determining the scope of the troubleshooting issue;

(v) provide remote access to the Company’s authorized support personnel to assist with the installation, support, testing and maintenance of the Services; and

(vi) provide the Company with remote access to a workstation configured for testing the Services and its integration features with Customer’s electronic medical record or information systems in a testing or sandbox environment, if applicable.

(d) Customer retains all rights to any and all of its Customer Content, subject to a non-exclusive, worldwide, royalty-free, license to the Company as necessary to provide the Services hereunder. Each Party shall apply reasonable technical, organizational and administrative security measures, as appropriate relative to the Services, to keep Customer Content protected in accordance with industry standards. Service interaction with Customer Content varies depending on the nature of the Service. Customer shall at all times retain a current copy of Customer Content, if any, outside the services for backup and archival purposes. Customer shall comply with all intellectual property laws and obligations related to the Customer Content, as well as all legal duties applicable to Customer by virtue of using the Services, including providing all required information and notices and obtaining all required consents. The Company has no obligation to maintain Customer Content following expiration or termination of the Agreement or the affected Services.

8. Warranty

(a) The Company warrants that the Services, including without limitation any software components delivered with Services, will materially conform to the Service descriptions on https://sciteline.com. The Company’s entire liability and Customer’s exclusive remedy under this warranty will be, at the Company’s sole option and subject to applicable law, to provide conforming services, including replacement software components as required, or to terminate the non-conforming services, and provide a prorated refund of any unused pre-paid Fees from the period of any non-conformance, and relief from any subsequent annual payments due, with respect to such service. The Company shall provide consulting services, or Support Services, if purchased, in a professional and workmanlike manner.  The Company’s entire liability and Customer’s exclusive remedy under this warranty is re-performance of the consulting services, or if re-performance is not possible, or conforming, then the Company shall refund the amount paid for the non-conforming consulting services.

(b) The Company shall use commercially reasonable efforts to make the Services available to Customer over the Internet with a minimum of 99.9% uptime per year, provided that the calculation of such uptime does not include the scheduled maintenance periods contemplated under subsection (b) below. In the event that a Service is not available for more than 99.9% of the time in any given year due to any act or omission directly attributable to the Company and otherwise within the Company’s control, the Company, upon request by the Customer, shall refund Fees as follows [(Fees) x [(downtime percentage – 0.001%) / 100%]].

(c) The Company may wish to make all or any part of the Services unavailable for scheduled maintenance on a periodic basis for short periods of time. Such scheduled maintenance will be performed at times selected to minimize inconvenience to the Customer and its Authorized Users.

(d) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNLESS OTHERWISE EXPRESSLY STATED HEREIN, THE SERVICES AND ALL SUPPORT SERVICES HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND THE COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, DATA ACCURACY OR RELIABILITY, OR QUIET ENJOYMENT, AND ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS ARISING FROM STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

(e) Other than as provided for herein, the Company does not endorse any third party software, hardware, databases, or other products or services required or desirable in the operation of the Services and the Company will not be responsible for the failure of, or incomplete or inaccurate data provided by, any such third party software, hardware, database, or other products or services or the incompatibility of such third party software, hardware, database, or other products or services with the Services.

9. Confidentiality

Each Party acknowledges that it may acquire certain information and it may be necessary for the Parties to disclose or make available to each other information belonging to, relating to or otherwise concerning the Parties including without limitation, methodologies, content, notes, reports, studies, summaries, trade secrets, analyses, compilations, data, business practice and other materials or documents, including the pricing and terms of this Agreement and including PHI prepared by the Parties (collectively the “Confidential Information”) that may be confidential or proprietary or may contain valuable trade secrets.  For greater certainty, and without limiting the generality of the foregoing, the Parties agree that Confidential Information includes any and all information relating to the design, operation, programming, code, structure, content, commercial and business practices, and technical specifications of the Services and the substance of any Reference Content licensed hereby.  For greater certainty and notwithstanding subsection (c) below, the Services and any Derivative Works are Confidential Information of the Company.  Each Party recognizes that the protection of Confidential Information belonging to the other by each of them is of vital importance to the Parties.  Each Party shall:

(i) keep and ensure that their directors, officers, affiliates, employees, contractors, agents and representatives keep secret and confidential and in strictest confidence all Confidential Information belonging to the other Party and if a Party has any doubt about whether information is Confidential Information, it will treat such information as if it were Confidential Information;

(ii) use the Confidential Information belonging to the other Party only in accordance with this Agreement and not disclose such Confidential Information to any third party except in accordance with this Agreement. The relevant Party will direct its directors, officers, affiliates, employees, contractors, agents and representatives, including all health care practitioners, not to, directly or indirectly, use any of such Confidential Information for their own benefit or for any purpose not in accordance with this Agreement;

(iii) without limitation to their obligations under subsections 9(i) and 9(ii), use the same degree of care to protect the Confidential Information belonging to the other Party as it would protect its own confidential information of a like nature and in any event using a standard no less than a reasonable degree of care;

(iv) disclose the Confidential Information belonging to the other Party only to its directors, officers, affiliates, employees, contractors, agents and representatives who have a need to know or to others in accordance with this Agreement; and

(v) provide written notice to the other Party immediately upon becoming aware that any unauthorized access, copying, disclosure, use or disposition of any Confidential Information belonging to the other Party has occurred or is likely to occur and make a commercially reasonable effort to limit the scope and consequences of any such access, copying, disclosure, use or disposition.

(b) Each Party acknowledges that Confidential Information belonging to the other is of value to the other Party and that any unauthorized copying, use, disclosure, access or disposition of such Confidential Information will cause irreparable injury to the other Party. Consequently, the Parties acknowledge and agree that in addition to any other remedies that they may have, they will be entitled to seek injunctive relief, as a matter of right, to prevent the breach or the further breach of this Agreement.

(c) Confidential Information does not include information which:

(i) is or at any time becomes in the public domain other than by a breach of this Agreement or breach of a similar agreement between any Party and a third party;

(ii) prior to disclosure by a Party, was already known to the other Party (as substantiated by cogent and reliable written evidence) free of any restrictions at the time of disclosure;

(iii) is independently developed by the relevant Party through individuals who have not had either direct or indirect access to the other Party’s Confidential Information; or

(iv) is disclosed to a Party by a third party who had a right to make such disclosure.

The foregoing exclusions do not apply to Confidential Information that is PHI.

(d) No Party shall be liable for disclosure of Confidential Information belonging to the other Party if (i) disclosure is required by applicable law, provided that such Party gives the other Party reasonable notice of such disclosure so that such other Party may seek a protective order or other relief and shall take all reasonable steps available to maintain the information in confidence, or (ii) disclosure is made to the Party’s professional legal or accounting advisors, for the purpose of receiving advice, provided that such advisors agree to maintain the confidentiality of the Confidential Information.

10. Limitation of Liability

(a) The aggregate and cumulative liability of the Company and its directors, officers, affiliates, employees, contractors, partners, licensors, agents or representatives (collectively the “Company Parties”) for any and all alleged or actual claims, proceedings, suits, actions, causes of action, deeds, debts, duties accounts, bonds, covenants, contracts, demands, damages (known or unknown), losses, liabilities, costs and expenses (whether accrued, actual, contingent or otherwise) and all reasonable legal fees arising out of or in any connection with this Agreement or any licenses hereunder, or any services provided hereunder, whether for negligence (including the Company’s own negligence), breach of contract, misrepresentation or otherwise (the “Claims”), is limited in the aggregate to the sum of Fees paid for the applicable Service during the twelve (12) months immediately preceding the incident giving rise to the liability.

(b) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS ARISING FROM OR RELATING TO (A) THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER PRODUCT OR SERVICE RELATING THERETO OR OTHERWISE PROVIDED BY THE COMPANY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) THIS AGREEMENT OR ANY BREACH THEREOF, WHETHER THE CLAIM IS IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEPT FOR ANY CLAIM ARISING FROM SUCH PARTY’S OWN FRAUD, WILFUL MISCONDUCT OR GROSS NEGLIGENCE.

(c) The Customer acknowledges and agrees that the Services are not intended to provide, or be the basis for, or otherwise contribute in any manner to the development of, any treatment decisions for individual patients or groups of patients. In acknowledgement of the foregoing, the Customer acknowledges and agrees that it must review, contextualize, authorize and approve for its own clinical use, any such Services, Reference Content or Customer Content, and hereby indemnifies, releases and forever discharges the Company Parties of and from all manner of Claims whatsoever both in law and in equity against the Company which the Customer ever had, now has or hereafter can, shall or may have for or by reason of the use of or omission to use the Services, decision support tool or software tool or any other product or service of the Company Parties.  The Customer shall, and shall ensure that its health care providers using the Services under this Agreement: (1) apply reasonable clinical judgement when using the Services and/or any results or outputs from such Services; and (2) do not rely exclusively on the Services and/or any results or outputs from such Services when applying such reasonable clinical judgement.

(d) The Customer acknowledges that information added by the Company’s other clients, their directors, officers, affiliates, employees, contractors, agents and representatives (collectively the “Clients”) in the Company’s Reference Content libraries accessible through the Services do not constitute diagnostic or treatment recommendations for individual patients or groups of patients. The Customer hereby releases and forever discharges the Clients of and from all manner of Claims against Clients which the Customer ever had, now has or hereafter can, shall or may have for or by reason of the use of or omission to use any information provided by Clients.

(e) The Customer shall defend, indemnify and hold harmless the Company Parties from and against any liability for any and all Claims made in respect of the Services, licenses, and other services provided hereunder or otherwise relating hereto, including any Claim with respect to negligence, malpractice, personal injury, death, property damage and/or other Claims resulting from a negligent act, omission, fraud, or wilful misconduct by the Customer under this Agreement.

(f) Subject to the other provisions in this Section 10, the Company hereby indemnifies, defends and holds harmless the Customer and its directors, officers, employees, contractors, partners, licensors, agents and representatives for any and all losses, claims, damages, costs, expenses and other liabilities, including reasonable attorney’s fees and court costs, in connection with any third party claim that the Services or any portion thereof infringes on any patent, copyright, or trademark, or other intellectual property right of any third party in the jurisdictions in which the Customer has licensed the Services, provided that the Customer:

(i) promptly notifies the Company, in writing, of the claim; and

(ii) allows the Company to control, at its own cost, and cooperates with the Company in, the defence of any such claim and any related settlement negotiations.

11. Notices

(a) All notices, demands or other communications required or permitted by this Agreement to be given to any Party shall be in writing and shall be: (i) personally delivered; (ii) sent by registered mail or prepaid courier; or (iii) sent by electronic mail; at or to the applicable address or electronic mail address set out in Section 1 of the Agreement for the Customer, or to the Company at:

Attn:

Sciteline Inc.

351 King Street East

Toronto, Ontario M5A 0L6

chad.walsh@sciteline.com

or at or to such other address or electronic mail address for a Party as may be designated to the other Party in such manner.

(b) Any notice shall be deemed to have been given, delivered and received (i) if personally delivered, on the day of such delivery if such day is any Monday to Friday, other than a statutory holiday observed by the Company (a “Business Day”) and such delivery was made prior to 5:00 p.m. and otherwise on the next Business Day following such day of delivery; or (ii) if by registered mail or prepaid courier on the second Business Day following the day on which it is mailed; or (iii) if by electronic mail, on the day the sender receives confirmation of receipt by return electronic mail from the recipient, if such day is a Business Day and if such confirmation was received prior to 5:00 p.m. and otherwise, on the next Business Day following the day such confirmation was received. In the event of a general discontinuance or disruption of postal service, notice must be given by means other than mail.

12. Voice and Data Charges

Customer is responsible for all fees and charges imposed by Customer’s telephone carriers, wireless providers, and other voice and/or data transmission providers arising out of access to and use of the Services.  Standard data fees and text messaging rates may apply based on Customer’s plan with its mobile phone or other applicable carrier. 

13. Assignment

Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party, except as part of a corporate reorganization, or to a third party in connection with a merger, amalgamation, consolidation, business combination or other similar transaction, or a sale of substantially all of its assets or business.  The Company may subcontract all or part of its obligations hereunder to one or more third parties in its sole discretion, but remains liable for any breach of this Agreement.  This Agreement and all of the provisions contained hereunder shall be binding upon and ensure to the benefit of the Parties and their successors and permitted assigns.

14. Force Majeure

Except as expressly provided otherwise in this Agreement, no Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control that could not have been avoided by the exercise of reasonable foresight, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, terrorism, labour shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of the Party relying on such failure or delay), provided that the Party affected by such failure or delay gives the other Party prompt notice of such cause, and uses its reasonable commercial efforts to promptly correct such failure or delay in performance.

15. Entire Agreement

This Agreement (including any Subscription Order(s)) contains the entire understanding and agreement between the Parties and replaces any other or previous oral or written negotiations between the Parties. For any conflict between these terms and supplementary Business Associate Agreement (BAA) terms related to PHI, if any, this Agreement shall control.  The terms of this Agreement may be superseded by the terms of a Service Order.

16. Independent Contractors

The Parties are independent contractors, and nothing herein shall be construed as creating a relationship of partners, principal and agent, employer and employee, joint venturers or any other relationship or to impose any liability upon them as such except as independent contractors.  Except as otherwise expressly provided in this Agreement, no Party shall have any authority to act for, or assume any obligation or responsibility on behalf of, the other Party.

17. Severability

If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provisions and all other provisions hereof shall, to the extent reasonably possible, continue in force and effect.

18. Governing Law, Attornment

This Agreement is to be governed by and construed in all respects in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.  The Parties hereby attorn to the jurisdiction of the courts of the Province of Ontario for the conduct of any legal proceedings under, or related to, this Agreement.

19. Amendment

This Agreement may not be amended or modified in any respect except by written agreement signed by the Company and the Customer.

20. Waiver

Any purported waiver of any default, breach, or non-compliance under this Agreement is not effective unless in writing and signed by the Party to be bound by the waiver.  No waiver shall be inferred from or implied by any failure to act or delay in acting by a Party in respect of any default, breach, or non-observance or by anything done or omitted to be done by the other Party.  The waiver by a Party of any default, breach, or non-compliance under this Agreement shall not operate as a waiver of that Party’s rights under this Agreement in respect of any continuing or subsequent default, breach, or non-observance (whether of the same or any other nature).

21. Headings

The headings of sections of this Agreement are for convenience only and shall not define or limit any of the terms or provisions thereof. 

22. Compliance with Laws

Each Party will comply with all federal, state, provincial and local laws, regulations and orders applicable to the Services under this Agreement.

23. Survival

The provisions of Sections 1 (Definitions), 3 (License Limitations; Proprietary Rights), 4(c) (Effects of Termination), 5 (Service Orders, Fees & Payments), 6 (Privacy & Personal Health Information), 9 (Confidentiality), 10 (Limitation of Liability), 11 (Notices), 18 (Governing Law), 20 (Waiver), 22 (Compliance with Laws) shall survive any termination of the Agreement.

 

Last Updated: November 12, 2020