MedStack Customer Agreement

Last updated: August 6, 2019
This MedStack Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Services (as defined below) and is an agreement between you or the entity you represent (“you” or “your”) and MedStack Inc., an Ontario corporation (“MedStack”, “we”, “us”, or “our”). This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms or, if earlier, when you use any of the Services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 14 for definitions of certain capitalized terms used in this Agreement.

1. Services

a. Right to use. We grant you the right to access and use the Services in accordance with this agreement. We reserve all other rights. You will comply with the terms of this Agreement and all laws, rules and regulations applicable to your use of the Services.

b. Your Account. To access the Services, you must have a MedStack account associated with a valid email address.

c. Preview releases. Previews are provided “as-is,” “with all faults,” and “as-available,” and are excluded from the SLAs and all limited warranties provided in this agreement. Previews may not be covered by customer support. We may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into general availability.

2. Changes

a. To the Services. We may change or discontinue any of the Services from time to time. We will provide you at least 12 months’ prior notice if we discontinue material functionality of a Service that you are using, or materially alter a customer-facing API that you are using in a backwards-incompatible fashion, except that this notice will not be required if the 12 month notice period (a) would pose a security or intellectual property issue to us or the Services, (b) is economically or technically burdensome, or (c) would cause us to violate legal requirements.

b. To the Service Level Agreement. We may change, discontinue or add to the Service Level Agreement from time to time in accordance with Section 12.

3. Security and privacy

a. Our security. Without limiting Section 10 or your obligations under Section 4a, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.

b. Regions. You may specify the regions in which Your Content will be stored. You consent to the storage of Your Content in, and transfer of Your Content into, the regions you select.

c. Our access or use of Your Content. We will not access or use Your Content except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body.

d. Our compliance with law. We will not (a) disclose Your Content to any government or third party or (b) move Your Content from the regions selected by you; except in each case as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order referred to in this Section.

e. Our use of your Account Information. We will only use your Account Information in accordance with the Privacy Notice, and you consent to such usage. The Privacy Notice does not apply to Your Content.

4. Your responsibilities

a. Your accounts. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.

b. Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Services will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.

c. Your Security. You are responsible for properly configuring and using the Services and otherwise taking appropriate action to secure and protect your accounts and Your Content in a manner that will provide appropriate security and protection.

d. Responsibility for your accounts. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials or any security incident related to the Services.

e. End Users. You control access by End Users, and you are responsible for their use of the Services in accordance with this agreement. For example, you will ensure End Users comply with the Acceptable Use Policy.

5. Fees and payment

a. Service Fees. We calculate and bill fees and charges monthly. You will pay us the applicable fees and charges for the use of the Services as described on the MedStack Site using one of the payment methods we support. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the MedStack Site, unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services you are using by giving you at least 30 days’ prior notice. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

b. Taxes. Prices are exclusive of any taxes. All value-added, goods and services, sales or other transaction taxes, fees, charges or surcharges (collectively, “Taxes”) are payable by you, excluding only taxes based on our net income. You agree to pay the fees without deduction of any Taxes; provided, you may deduct Taxes as required by law only to the extent: (i) you actually pay such Taxes to the applicable tax authorities on our account; and (ii) the amount so withheld and paid does not exceed the minimum percentage required to be withheld under applicable law. Within sixty (60) days of making any such payment on our account, you must provide us with official tax receipts documenting such payment in order to avoid remitting such payment to us in connection with an invoice therefor.

6. Suspension

a. Generally. We may suspend your or any End User’s right to access or use any portion or all of the Services immediately upon notice to you if we determine:

i. your or an End User’s use of the Services (i) poses a security risk to the Services or any third party, (ii) could adversely impact our systems, the Services or the systems or Content of any other MedStack customer, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent;

ii. you are, or any End User, is in breach of this Agreement;

iii. you are in breach of your payment obligations under Section 5; or

iv. you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

b. Effect of suspension. If we suspend your right to access or use any portion or all of the Services:

i. you remain responsible for all fees and charges you incur during the period of suspension; and

ii. you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.

7. Term and termination

a. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 7. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 7.b.

b. Termination.

i. Termination for Convenience. You may terminate this Agreement for any reason by providing us notice and closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 90 days’ advance notice.

ii. Termination for Cause.

1. By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. No later than the Termination Date, you will close your account.

2. By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause if we have the right to terminate under Section 6, (B) if our relationship with a third-party partner who provides software or other technology we use to provide the Services expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, or (C) in order to comply with the law or requests of governmental entities.

c. Effect of Termination.

i. Generally. Upon the Termination Date:

1. except as provided in Section 7.c.ii, all your rights under this Agreement immediately terminate;

2. you remain responsible for all fees and charges you have incurred through the Termination Date and are responsible for any fees and charges you incur during the post-termination period described in Section 7.c.ii;

3. you will immediately return or, if instructed by us, destroy all MedStack Content in your possession; and

4. Sections 7-14 inclusive will continue to apply in accordance with their terms.

ii. Post-Termination. Unless we terminate your use of the Services pursuant to Section 7.b.ii, during the 30 days following the Termination Date:

1. we will not take action to remove from the MedStack systems any of Your Content as a result of the termination; and

2. we will allow you to retrieve Your Content from the Services only if you have paid all amounts due under this Agreement.

8. Proprietary Rights

a. Your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you (or your licensors) to Your Content.

b. Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Suggestions; (b) you have all rights in Your Content and Suggestions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content or End Users’ use of Your Content or the Services will violate the Acceptable Use Policy.

c. Services License. We or our licensors own all right, title, and interest in and to the Services, and all related technology and intellectual property rights. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to do the following: (a) access and use the Services solely in accordance with this Agreement; and (b) copy and use the MedStack Content solely in connection with your permitted use of the Services. Except as provided in this Section 8.c, you obtain no rights under this Agreement from us, our affiliates or our licensors to the Services, including any related intellectual property rights. Some MedStack Content and Third-Party Content may be provided to you under a separate license, such as an open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the MedStack Content or Third-Party Content that is the subject of such separate license.

d. License Restrictions. Neither you nor any End User will use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Services (except to the extent Content included in the Services is provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services (except to the extent applicable law doesn’t allow this restriction), (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Services.

e. Suggestions. If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.

9. Indemnification

a. General. If a third party asserts a claim against you that a Service licensed under this Agreement infringes a patent or a copyright, we will defend you against that claim and pay you all amounts finally awarded by a court against you or included in a settlement approved by us, provided that you (i) promptly notify us in writing of such claim, (ii) supply all information requested by us regarding the claim, and (iii) allow us to assume control of the defense and settlement of such claim and to cooperate in any mitigation efforts.

b. Non-MedStack services or products. MedStack has no responsibility for any claims based on non-MedStack services or products, for any violation of law or third party rights caused by your content, software, materials, designs or specifications or for any use of services or products other than in accordance with this Agreement.

c. Process. You will defend and hold harmless MedStack against any claim by any arising out of or in connection with your breach of the terms of this Agreement and further, in the case of any claim by a third party against us, you will indemnify us against all costs, damages, and other liabilities (including but not limited to reasonable legal fees) that result from the defence of the claim. We will promptly notify you in writing of the claim and give you information, reasonable assistance and authority to defend the claim with a lawyer acceptable to us, but (i) our failure to give prompt notice will not affect the indemnification provided by you except to the extent that any failure or delay actually prejudices you; and (ii) you will not settle any claim without our approval.

10. Disclaimers

a. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDSTACK DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT. MEDSTACK DOES NOT WARRANT THE SERVICES WILL MEET YOUR REQUIREMENTS NOR DOES IT GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES.

b. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THE SERVICES MAY RELY UPON THIRD-PARTY SOFTWARE AND HARDWARE FOR CERTAIN FUNCTIONS AND MEDSTACK MAKES NO REPRESENTATION, WARRANTY, PROMISE OR GUARANTEE TO YOU THAT SUCH SOFTWARE OR HARDWARE WILL BE ERROR FREE, ACCOMPLISH A SPECIFIED PURPOSE OR PERFORM IN ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL OR METRIC AND WE WILL NOT BE LIABLE TO YOU FOR ANY FAILURE THEREOF. YOU ACKNOWLEDGE AND AGREE THE SERVICES ARE NOT INTENDED TO REPLACE YOUR PROFESSIONAL SKILLS OR JUDGEMENT. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, AND YOU ASSUME ALL LIABILITY FOR OUTCOMES BASED THEREON.

11. Limitations of Liability

a. Our entire liability for all claims related to this Agreement will not exceed the lesser of: (a) $250,000, and (b) the amount of actual direct damages incurred by you up to the amounts paid for the service that is the subject of the claim during the most recently completed 12-month period prior to any claim, regardless of the basis of the claim. We will not be liable for indirect, special, consequential or economic damages of any nature whatsoever, including loss of business, lost profits, value, revenue or goodwill. These limitations apply, collectively, to us, our suppliers, contractors and affiliates.

12. Modifications to the Agreement

a. We may modify this Agreement (including any Policies) at any time by posting a revised version on the MedStack Site or by otherwise notifying you in accordance with Section 13.e; provided, however, that we will provide at least 90 days’ advance notice in accordance with Section 13.e for adverse changes to any Service Level Agreement. Subject to the 90 day advance notice requirement with respect to adverse changes to Service Level Agreements, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the MedStack Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.

13. Miscellaneous

a. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario as applied to transactions taking place wholly within Ontario between Ontario residents.

b. Assignment. This Agreement may be assigned, and any term of this Agreement may be amended or waived only with the written consent of the parties.

c. Sole Agreement. This Agreement, including any schedules hereto, constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.

d. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.

e. Notice.

i. To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the MedStack Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the MedStack Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

ii. To Us. To give us notice under this Agreement, you must contact us in writing and notice will be considered given when actually received. We may update the address for notices to us by posting a notice on the MedStack Site. Notices to us shall be sent to: MedStack, Inc., 600-10 Dundas St E, Toronto ON M5B 2G9, Canada.

f. Confidentiality. You may use MedStack Confidential Information only in connection with your use of the Services as permitted under this Agreement. You will not disclose MedStack Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of MedStack Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.

14. Definitions

a. “Acceptable Use Policy” means the policy located at https://medstack.com/legal/aup (and any successor or related locations designated by us), as it may be updated by us from time to time.

b. “Business Associate Agreement” means the HIPAA Business Associate Addendum located at https://medstack.com/legal/baa (and any successor or related locations designated by us), as may be updated by us from time to time.

c. “Content” means software (including machine images), data, text, audio, video or images.

d. “End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Services under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own MedStack account, rather than under your account.

e. “MedStack Confidential Information” means Medstack Content, the terms of this Agreement and any information disclosed by us that relates to MedStack and that reasonably should be known by you to be confidential or proprietary to MedStack under the circumstances of disclosure or in light of the nature of the information disclosed.

f. “MedStack Content” means Content we or any of our affiliates make available in connection with the Services or on the MedStack Site to allow access to and use of the Services, including APIs; Documentation; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by our personnel). MedStack Content does not include the Services or Third-Party Content.

g. “MedStack Site” means https://medstack.com (and any successor or related site designated by us), as may be updated by us from time to time.

h. “Policies” means the Acceptable Use Policy, Privacy Notice, the Site Terms, the Terms of Service, all restrictions described in the MedStack Content and on the MedStack Site, and any other policy or terms referenced in or incorporated into this Agreement, but does not include whitepapers or other marketing materials referenced on the MedStack Site.

i. “Privacy Notice” means the privacy notice located at https://medstack.com/legal/privacy (and any successor or related locations designated by us), as it may be updated by us from time to time.

j. “Service” means each of the services made available by us or our affiliates. Services do not include Third-Party Content.

k. “Service Level Agreement” means all service level agreements that we offer with respect to the Services and post on the MedStack Site, as they may be updated by us from time to time. The service level agreements we offer with respect to the Services are located at https://medstack.com/legal/service-level-agreements/ (and any successor or related locations designated by us), as may be updated by us from time to time.

l. “Site Terms” means the terms of use located at https://medstack.com/legal/siteterms (and any successor or related locations designated by us), as may be updated by us from time to time.

m. “Suggestions” means all suggested improvements to the Services that you provide to us.

n. “Term” means the term of this Agreement described in Section 7.

o. “Termination Date” means the effective date of termination provided in accordance with Section 7, in a notice from one party to the other.

p. “Third-Party Content” means Content made available to you by any third party on the MedStack Site or in conjunction with the Services.

q. “Your Content” means Content that you or any End User transfers to us for processing, storage or hosting by the Services in connection with your MedStack account and any computational results that you or any End User derive from the foregoing through their use of the Services. Your Content does not include Account Information.