Online Services Subscription Agreement
This Online Services Subscription Agreement (the “Agreement”) is by and between Livecare Health Canada Inc., with business offices located at 502-13737 96 Ave, Surrey, British Columbia, V3V 0C6, Canada (“Livecare”), and you (the “Subscriber”). This Agreement shall be effective as of the date of signup (“Effective Date”). Each of Livecare and Subscriber is a “Party” and together they are the “Parties”.
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING OR REGISTERING FOR THE SERVICES. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF YOU SHALL BE CONSTRUED AS INFERENCE TO THE CONTRARY. THE REGISTRATION BY YOU TO THE SERVICES (DEFINED BELOW) IS EXPRESSLY MADE CONDITIONAL ON YOUR CONSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF AND ACCESS TO THE SERVICES.
By accessing or using the Services, or any part thereof, or by establishing an account (“Account”) to use the Services, you agree to this Agreement. When creating an Account (if applicable), you represent and warrant that all information provided to Livecare in connection with such Account is true, accurate and correct and that, when Subscriber is an entity, the person creating any such Account on behalf of the Subscriber is authorized to do so on behalf of the Subscriber.
WHEREAS, Livecare has developed and maintains an integrated suite of services related to remotely delivering healthcare services by means of telecommunications technology (“Telehealth based services”) thereby allowing subscribers to consult with patients online (collectively, the “Services”);
WHEREAS, these Services are provided by Livecare under the trade names “Livecare Virtual Clinic” and “Livecare Connect” (note that LIVECARE CONNECT is also a trademark owned or licensed by Livecare) and are described in greater detail on Livecare’s web site, www.Livecare.ca (the “Site”);
WHEREAS, the Services may at least in part be delivered via a videoconferencing application branded as “Livecare Connect”, and the Services may at least in part be delivered via the “Livecare Virtual Clinic” application which allows patients to connect with physicians and caregivers via a network system;
WHEREAS, Livecare is the proprietor of or has the rights to license the Livecare Connect application and the Livecare Virtual Clinic application;
WHEREAS, Subscriber wishes to utilize the Services provided through the Site in connection with Subscriber’s organization, and Livecare has agreed to provide such Services pursuant to the terms and conditions of this Agreement which may be updated from time to time by Livecare; NOW, THEREFORE, the Parties hereto, for good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
- License Grant.
- License to Use Service. Livecare hereby grants to Subscriber a nonexclusive, non-transferable, license (the “License”) to access and use the Services in accordance with this Agreement. All rights not expressly granted to Subscriber under the License are reserved by Livecare. The License granted to Subscriber pursuant to this Agreement will permit use of the Services by the number of Providers or caregivers (“End-users”) specified in the payment summary screen. If there are any conflicts between this Agreement and the details of the license in the payment summary screen, the details of the license in the payment summary screen shall prevail. Subscriber may increase the number of End-users during the Initial or Subsequent Terms (as defined in Section 9a) of this Agreement for an additional prorated fee at the then-current fee rate to be determined by Livecare in its sole discretion. Any Subscriber “Affiliate” may also be added by Subscriber as a registered End-user under this Agreement. An “Affiliate”, with respect to either Party, shall mean any entity, including and without limitation, any individual, corporation, company, partnership, limited liability company, or group, that directly, or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Party. SUBSCRIBER SHALL BE RESPONSIBLE FOR THE FAILURE OF ANY SUBSCRIBER AFFILIATE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
- Password. Each End-user will be issued an individual user name and password. The License to use the Services by each End-user, and any associated passwords, may not be shared or used by more than one individual, but may be re-issued from time to time to new End-users upon prior notification to and acceptance by Livecare. Any unauthorized access, use of passwords or Services, or other abuse or impermissible activity on Livecare’s Site or in connection with Livecare’s Services may result in immediate suspension or termination of End-user accounts pursuant to Section 9 of this Agreement. Subscriber will: (i) notify Livecare immediately of any unauthorized use of any password(s) or account(s) or any other known or suspected breach of security; and (ii) report to Livecare immediately and use reasonable efforts to stop immediately any copying or distribution of Site content (“Content”) that is known or suspected by Subscriber’s End-users.
- Limitations on Use. The content on the Site and within the Services (collectively, the “Content”) is for use only by Subscriber and its assigned End-users. Except as permitted by this Agreement, the Content may not be decompiled, reverse engineered, disassembled, transferred, distributed, resold, sublicensed, or used to create any derivative works. Subscribers may not use any network monitoring or discovery software to determine the Site’s or Service’s architecture, or extract information about usage or individual identities of users. Subscriber may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Site, Services, or its Content, without first receiving Livecare’s prior written consent. Subscriber may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any non-End-user third party the Services or the Content in any way; (ii) modify or make derivative works based upon the Site, Services, or the Content; (iii) create Internet “links” to the Site or Services or “frame” or “mirror” any Content on any other server or wireless or Internet-based device. Subscriber may use the Site and Services only for its internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or material in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Site, Services, or the data contained therein; or (v) attempt to gain unauthorized access to the Site, Services, or its related systems or networks.
- Service Details.
- Livecare Cloud Storage Services. Livecare Cloud Storage Services is only a storage user interface for calendar appointments. All storage requests must pass through Livecare. Subject to Section 8(a), Livecare does not, at any time, save or store any of Subscriber’s Patient Data (as defined in Section 8) and has no access rights to such Patient Data. Accordingly, Section 11 (Disclaimer of Warranties) and Section 12 (Limitation of Liability) apply in full.
- Professional and Support Services. During the term of this Agreement and as stated in the applicable payment summary screen, Livecare shall provide maintenance and support services for the Services around initial setup, deployment, bugs and errors (the “Support Services”), which are available at no extra charge to Subscriber. In addition, Livecare offers back-end support services (“Professional Services”) to select Subscriber’s upon request. Subscribers wishing to add Professional Services to their license shall incur additional charges calculated at Livecare’s then-current rates.
- Fees and Payments.
- Subscription Fees. The fees for use of Livecare’s Services (the “Subscription Fees”) are described in detail in the payment summary screen and are calculated, as specified, based on either the number of End-users or volume of usage. Subscription Fees based on volume of usage include the following: (i) number of consults; or (ii) number of minutes. Unless advised otherwise by Livecare, the Subscriber shall pay to Livecare all of the fees specific in the Order Forms.
- Additional End-users / Increase in Usage. Upon written agreement with Livecare, Subscriber may increase Service usage or add End-user licenses at any time during the Initial or Subsequent Terms. Subscriber will be charged in full, according to the pricing set forth in the payment summary screen, for any portion of a calendar month during which usage of Services has been increased or End-user licenses have been added. Additional usage increases or End-user license will be coterminous with the other usage or End-user licenses in the then-current Initial or Subsequent Terms. Subscriber may decrease usage or End-user licenses at any time but there will be no refunds issued in the event of prepayment and any related Subscription Fees will continue to be due through the end of the Initial or Subsequent Terms.
- Payment of Subscription Fees. Payment of Subscription Fees shall be made in monthly or annual installments, the first of which is invoiced and due on the Effective Date.
- Increases in Subscription Fees. End-user Subscription Fees contained in the payment summary screen will be fixed for a period of twelve (12) months following the Effective Date, and thereafter may be increased by Livecare prior to the Effective Date of the Subsequent Term and not more often than once per year, upon providing Subscriber thirty (30) days prior written notice. Any increases in Subscription Fees after the Initial Term shall not exceed the greater of any actual increases in costs to Livecare for the continued delivery of its Services that are beyond its reasonable control or 5% of the total Subscription Fees paid in the previous twelve (12) months. All pricing terms are confidential, and Subscriber agrees not to disclose them to any third party unless required by law or court order.
- Taxes and Duties. Livecare’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Subscriber will be responsible for payment of all such taxes, levies, or duties.
- Payment and Billing Information. Subscriber agrees to provide Livecare with complete and accurate billing and contact information at all times. This information includes Subscriber’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. All fees are payable in Canadian dollars. Livecare reserves the right to determine acceptable methods of payment for the use of its Services. If Subscriber believes any bill is incorrect, Subscriber must contact Livecare in writing within 90 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Subscriber will pay the undisputed portion of the invoice, and Subscriber and Livecare will cooperate to promptly resolve the invoice dispute.
- Service Level Performance Criteria.
- Service Uptime and Maintenance. Livecare shall provide to Subscriber 99.7% system Uptime per month (scheduled maintenance or upgrades to the Services will not count against uptime). “Uptime” is defined as time when End-users have the ability to access and use the Services. Livecare shall provide Subscriber with at least forty-eight (48) hours’ notice of any scheduled maintenance on the Services and Livecare will use commercially reasonable efforts to conduct maintenance during non-Business Hours only (as defined below). This notice period shall not apply in the event Subscriber wants an immediate change to the service to accommodate any internal, sales and/or compliance changes. Should the Services not be accessible 99.7% of the month, Livecare will refund to Subscriber the percentage difference in uptime of the monthly amount due. If the service is unusable for more than 8 hours during any given business day (8am PT – 5pm PT), Livecare will refund to Subscriber any Subscription Fees at the prorated cost calculated as a percentage of monthly subscriptions divided by number of weekdays in the month multiplied by days of unavailability. “Downtime” is defined in Section 4e herein. In the event that Livecare is unable to provide forty-eight (48) hours notice of any planned or unplanned outages or unavailability of Services, Livecare shall use good faith efforts to promptly notify Subscriber of any outages or downtime that it anticipates or discovers during the Term of this Agreement.
- Average Response Time. “Average Response Time” will be defined as the amount of time from Livecare’s outer firewall to Livecare’s internal servers and back to Livecare’s outer firewall and shall be server response time, not network transmission time, which shall not exceed a maximum of three (3) seconds, the measurement of which will not include any application response time.
- Availability. Availability of Services will be based on a percentage of service Uptime from an End-user perspective. Planned outages are counted against Uptime in this respect, but downtime resulting from Subscriber requests will not be counted against Uptime.
- Uptime. The determination of Uptime will be calculated using a historical percentage of Service Uptime. Scheduled maintenance is not counted against Service Uptime.
- Support Procedures. Support shall be available to Subscriber during the term of this Agreement on a twenty-four (24) hour basis pursuant to the following:
- Downtime. Downtime is defined as the inability of most users to access the servers and majority of applications of the Service. Specifically excluded from the definition of downtime are:
- Downtime resulting from Subscriber requests;
- Network errors outside of the control of Livecare or agents of Livecare;
- Server errors and limitations set by third-party service providers, including, but not limited to, R U Networks;
- Planned maintenance announced at least forty-eight (48) hours prior;
- Maintenance that is performed between 10 pm and 2 am PT;
- Outages resulting from the actions of Subscriber, its employees and agents other than normal operation of the Site or Services; and
- Any other unavailability caused by circumstances beyond reasonable control, including, without limitation, acts of God, acts of government, floods, fires, earthquake, civil unrest, acts of terror, strikes or other labor problems (other than those involving Livecare’s employees), Internet service provider failures or delays, or denial of service attacks.
- Commencement of Services. The performance of Services outlined herein will only commence upon the launch of service and after full acceptance by Subscriber and payment in full of the Initial Subscription Fee. There is an initial implementation period during which there will be no availability, followed by a test period of limited availability. For initial launch of Services, and where required, Livecare may work with Subscriber in a Sandbox or Development Organization to test Services prior to migrating Services to a Livecare Production Organization.
- Livecare References to Subscriber. Upon execution of this Agreement, Livecare may make references to Subscriber and Subscriber’s URL and may use Subscriber’s designated trademark and logo for the limited purpose of publishing it on Livecare’s current list of subscribers located on the Site. Livecare may also respond to any inquiry regarding whether Subscriber is a licensee and user of the Services.
- Livecare Proprietary Information. The Site, Services, and its Contents (“Livecare IP”) are owned or licensed by Livecare and protected by Canadian and international copyright, trademark, service mark, patent and/or other proprietary rights and laws. Except as expressly provided in this Agreement, nothing contained herein shall be construed as conferring to Subscriber any license or right under copyright or other intellectual property right law. No part of the Livecare IP may be altered, copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, except as specifically provided in this Agreement. Subscriber shall not take any action that shall interfere with or diminish Livecare’s right, title, or interest in, to, or associated with any of the Livecare IP.
- Subscriber Proprietary Information.
- Subscriber acknowledges that Livecare’s Services do not, at any time, manipulate, store, or alter native content within Subscribers documents. Subscriber, and not Livecare, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use its own Patient Data, and Livecare shall not be responsible or liable for the failure to store, deletion, correction, destruction, damage, or loss of any Patient Data except to the extent caused by Livecare’s gross negligence or willful misconduct.
- In the event this Agreement is terminated, Livecare will permanently remove all, if any, of Subscriber’s Patient Data from its files and servers. Livecare reserves the right to withhold, remove and/or discard any Patient Data without notice for any material breach, including without limitation, non-payment of license fees within the Cure Period defined in Section 9b. Any requests by Subscriber for the return of any Patient Data, if any, within Livecare’s control shall be made within fourteen (14) days of termination of this Agreement.
- Term, Suspension, and Termination.
- Term. Unless terminated earlier pursuant to this Section 9 of this Agreement, the initial term (“Initial Term”) of this Agreement shall be for a period of twelve (12) months from the Effective Date and shall thereafter automatically continue under this Agreement for a subsequent twelve-month (12) term (“Subsequent Term”).
- Suspension with Right to Cure. In addition to any other rights and remedies outlined in this Agreement, Livecare reserves the right to suspend the License and Subscriber’s access to the Services upon ten (10) days’ written notice to Subscriber (“Cure Period”) if Subscriber’s account becomes delinquent by non-payment for more than fifteen (15) days and such delinquency is not cured within the Cure Period. Delinquent invoices are subject to interest of one percent (1.0%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged for the remainder of the term for any delinquent accounts. Subscriber acknowledges and agrees that Livecare has no obligation to retain Patient Data and that such Patient Data, if any, may be irretrievably deleted and this Agreement may be terminated in Livecare’s sole discretion if Subscriber’s account is delinquent for a period of ninety (90) days or more.
- Termination by Either Party for Any Reason. Either Party may terminate this Agreement at any time upon twenty (20) business days’ prior written notice for any reason (“Termination for Convenience”), provided that Subscriber may not terminate this Agreement while it is curing a breach, including, but not limited to, delinquent accounts, pursuant to written notice from Livecare while it is under suspension. If Subscriber terminates this Agreement pursuant to this Section 9c, Subscriber is not entitled to any refund of Subscriber Fees. If Livecare terminates this Agreement pursuant to this Section 9c, Subscriber shall receive a refund equivalent to any unused portion of the Initial or Subsequent Term. Any unauthorized access, use of passwords or Services, or other abuse or impermissible activity on Livecare’s Site or in connection with Livecare’s Services may result in immediate suspension or termination of End-user accounts with no refund and without limitation of any other available legal remedies.
- Remedies Not Limiting. The remedies provided in this Section 9 are in no way limiting of one another or of any other rights and remedies granted to Livecare under this Agreement. Livecare may choose to, but is not required to, place Subscriber’s Account on suspension in lieu of termination where termination is permitted under the terms of this Agreement or take other appropriate action.
- Survival. Sections 9d (Remedies Not Limiting), 10 (Representations and Warranties), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Indemnification), 14 (Receipt of Confidential Information), 15 (Additional Miscellaneous Provisions), and this “Survival” provision, shall survive termination of this Agreement regardless of the manner in which this Agreement was terminated.
- Representations and Warranties.
- Mutual. Each Party represents, warrants, and covenants, as applicable, to the other Party that: (i) it has all right, title, and authority to enter into this Agreement; and (ii) its execution of this Agreement and its engagement hereunder do not constitute a breach of any contract, agreement or understanding, oral or written, to which it is a party or by which it is bound.
- Updates. (i) All updates shall, at a minimum, be consistent with then-existing and released industry standards; (ii) no update will materially degrade the functionality, capabilities, or features of the Services at the time of release of such update; and (iii) all updates shall be backward compatible with the data structures, databases, and system architectures employed with previous versions of the Services licensed by Subscriber.
- Disclaimer of Warranties. Livecare will make commercially reasonable efforts to ensure a virus free environment, a reliable operational schedule and to provide timely correction of Content known to be inaccurate. Notwithstanding Section 10 (Representations and Warranties), Livecare does not represent or warrant that this Site, Services, or the Content will be error-free, or free of viruses or other harmful components. The Site, Services, and the Content are provided on an “as is”, “as available” basis, and Livecare expressly disclaims all warranties, including the warranties of merchantability, and fitness for a particular purpose and non-infringement. Livecare disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to: (a) any errors in or omissions from this Site, Services, and the Content, including but not limited to technical inaccuracies and typographical errors; (b) the unavailability of this Site, Services, or any portion thereof; (c) Subscriber’s use of this Site, Services, or the Content; (d) Subscriber’s use of any equipment or software in connection with the Site, Services, or the Content; or (e) any third party web sites or content therein directly or indirectly accessed through links contained on the Site or through the Services.
- Limitation of Liability.
- THE LIABILITY OF LIVECARE AND SUBSCRIBER TO EACH OTHER FOR ANY AND ALL CAUSE(S) OF ACTION, REGARDLESS OF THE FORM OF ACTION (INCLUDING CONTRACT, TORT, NEGLIGENCE OR ANY OTHER), ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AVERAGE MONTHLY SUBSCRIPTION FEES CONVERTED TO AN ANNUALIZED BASIS.
- NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR DAMAGES FROM LOST PROFITS, LOST USE, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THIS SITE, SERVICES, OR THE CONTENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- NOTWITHSTANDING THE FOREGOING, SECTION 12a and SECTION 12b WILL NOT APPLY TO (I) CLAIMS FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR CRIMINAL ACTS OR OMISSIONS, (II) BREACH OF CONFIDENTIALITY, (III) ANY THIRD PARTY CLAIMS SUBJECT TO THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT.
- Livecare shall indemnify, defend and hold harmless Subscriber, its officers, directors, and employees from and against all Losses resulting from or in connection with: (i) any breach of any obligation of Livecare under Section 14 (Confidential Information); (ii) any breach by Livecare of any of its warranties and representations under Section 10 (Representations and Warranties); (iii) violation of any applicable laws by Livecare, its officers, directors, or employees (“Livecare Responsible Parties”); (iv) any loss, damage, corruption, or destruction of the Services by Livecare Responsible Parties or any breach of security relating to the same; or (v) any infringement of intellectual property rights of any third party; provided, however, that Livecare is not liable for any Losses arising under this Subsection 13(b)(v) to the extent that Subscriber modified the Livecare IP, unless such modifications were approved by Livecare, or the Losses are based on a use for which the applicable Livecare IP was not designed.
- Indemnification under subsections (a) and (b) hereof will be provided only on the conditions that: (i) the indemnifying party is given written notice within fifteen (15) calendar days after the indemnified party receives notice of the subject action; (ii) the indemnifying party has sole control of the defense and all related settlement negotiations, provided any settlement that would impose any monetary or injunctive obligation upon the indemnified party shall be subject to such party’s prior written approval and unconditionally releases the indemnified party of all liability; and (iii) the indemnified party provides cooperation and information in furtherance of such defense, as reasonably required by the indemnifying party at the indemnifying party’s expense. The indemnifying party shall not be relieved of its indemnification obligations herein for the indemnified party’s failure to comply with such requirements, except to the extent that the indemnifying party has been prejudiced by the indemnified party’s actions or inactions.
- Receipt of Confidential Information.
- Confidentiality. Each Party agrees to maintain the confidentiality of the other Party’s Confidential Information as defined herein. “Confidential Information” means all information concerning a Party’s business not generally known to the public, whether or not marked as confidential. By way of illustration only, Confidential Information may include this Agreement, trade secrets, know-how, inventions, contractual disclosures, techniques, processes, algorithms, software programs, schematics, software source documents, contracts, Patient Data, financial information, sales and marketing plans, information and business plans and other proprietary information, whether or not such information is marked as confidential. Confidential Information shall not include, even if it is marked as such, information that: (i) is already known to the receiving Party at the time of disclosure, which knowledge the receiving Party shall have the burden of proving; (ii) is, or, through no act or failure to act of the receiving Party, becomes publicly known; (iii) is readily observable and / or duplicable by the public; (iv) is legally received by receiving Party from a third party without restriction on disclosure; (v) is independently developed by receiving Party without reference to the Confidential Information of the disclosing Party; or (vi) is approved for release by written authorization of the disclosing Party. In maintaining the confidentiality of the other Party’s Confidential Information, each Party shall use at least the same standard that Party uses for its own confidential information of similar type, and shall take necessary precautions not to disclose such information to any person except its officers, employees or subcontractors, who have a need to know in order to comply with the obligations of this Agreement. Each Party’s officers, employees, and subcontractors shall be bound by the terms of this Section or a similar written agreement with terms no less protective of either Party’s Confidential Information than this Agreement. Each Party acknowledges that any actual or threatened violation of this Section may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain, and therefore agrees that the disclosing Party shall be entitled to seek injunctive relief in addition to all other remedies available at law and/or in equity. Nothing in this Section shall prohibit Livecare from disseminating aggregated information that contains no identifiable Subscriber Confidential Information.
- Destruction and Return of Confidential Information. Upon request of the disclosing Party or upon termination of this Agreement, all materials containing Confidential Information will be destroyed or returned to the disclosing Party and the receiving Party will retain no copies or reproductions of the Confidential Information unless required by law, except the receiving Party may retain one record copy, subject to the reasonable instructions of the disclosing Party with respect to such copy.
- Cooperation. In the event of any unauthorized use or disclosure or loss of any Confidential Information of the disclosing Party, the receiving Party shall promptly, at its own expense: (i) notify the disclosing Party in writing; (ii) take such actions as may be necessary or reasonably requested by the disclosing Party to minimize the violation or the damage resulting therefrom; and (iii) cooperate in all reasonable respects with the disclosing Party to minimize the violation and any damage resulting therefrom.
- Limitation. Notwithstanding the provisions of this Section, Livecare may disclose Subscriber’s Confidential Information, which includes personally identifying information and End-user activity: (i) in accordance with a judicial or other governmental subpoena, warrant or order; provided that Livecare shall comply with any applicable protective order or equivalent and, unless prohibited by law, Livecare will employ commercially reasonable efforts to provide Subscriber with prior written notice, so that Subscriber has an opportunity to intervene at its own expense and to protect the confidentiality of its information; (ii) to law enforcement officials and regulators if it reasonably suspects unlawful activity; and (iii) to other Parties that are identified by Subscriber for that purpose.
- No Intellectual Property. THE RECEIVING PARTY ACQUIRES NO INTELLECTUAL PROPERTY RIGHTS FROM THE DISCLOSING PARTY UNDER THIS AGREEMENT, except for the restricted right to use disclosing Party’s Confidential Information for the express, limited purposes described above.
- Assignments. This Agreement shall be binding upon and shall be for the benefit of Livecare and Subscriber and both Parties’ respective legal representatives, successors, and permitted assigns. Subscriber shall not be entitled to assign, sublicense, or delegate this Agreement, in whole or in part, without Livecare’s prior written consent. Any attempted assignment, delegation, or assumption of this Agreement not in accordance with this Section will be of no force or effect.
- Entire Agreement; Waiver; Relationship of the Parties. This Agreement and the Exhibits hereto constitute the entire agreement between the Parties as to the subject matter hereof, and supersede all prior and/or contemporaneous agreements, representations, and understandings between them, whether orally or in writing, except as may be expressly incorporated by reference into this Agreement. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency, or employment relationship between the Parties, and neither Party shall have any right to bind the other or incur any obligation on the other’s behalf without the other’s prior written consent. Except as expressly provided for herein, this Agreement is not for the benefit of any third party, but nothing in this Agreement shall prevent or interfere with any consumer bringing an action against Subscriber for violation of law.
- Severability of Terms. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
- Notices and Contact Information. Any demand, notice, or other communication required or permitted hereunder shall be effective if in writing and either (i) hand-delivered to the addressee; or (ii) deposited in the mail (registered or certified) or delivered to a private express company. Notices must be addressed as follows: (A) if to Livecare, at the mailing address or email set forth in the “Contact Us” section of the Site; or (B) if to Subscriber, at the mailing address or email set forth in the Subscriber registration page. Email notice shall be effective upon confirmation of receipt by the receiving Party. Either Party may change its notice address by providing the other Party with notice of the change.
- Force Majeure. Neither Party shall be in default of this Agreement owing to any failure or delay in the performance of any obligation under this Agreement where such failure or delay arises out of any “cause” beyond the reasonable control, and without the fault or negligence of such Party. Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, strikes or other labor unrest, epidemics or pandemics, quarantine, embargoes and other governmental actions or regulations that would prohibit either Party from ordering or furnishing products or from performing any other obligations hereunder. During the continuance of such cause(s), such Party’s obligations hereunder shall be excused so long as and to the extent that such cause(s) prevent or delay performance and such party exercises reasonable diligence in attempting to fulfill its obligations notwithstanding such cause(s).
- Governing Law. Irrespective of the country or other location in which Subscriber is located or in which the Subscriber uses the Service, Client agrees this Agreement shall be governed by the provincial laws of British Columbia and the federal laws of Canada applicable therein, without regard to conflict of laws rules. The Parties hereby attorn to the exclusive jurisdiction of the provincial and federal courts located in the Province of British Columbia with respect to any action arising out of or related to this Agreement.
- Export Control. Subscriber shall comply with all applicable government trade and export control laws and regulations with respect to the Services. Subscriber agrees that no part of the Service will not be transferred or exported into any country or used in any manner prohibited by any applicable laws in any jurisdiction.