Terms and Conditions
This Software as a Service Agreement (“Agreement”) is between you (“Customer”) and NOTERRO INC. (“Noterro”), with its principal place of business at 5-519 Dundas Street West, Suite 305 Oakville, ON, L6M 5K3; whenever you use services provided under the Agreement you are agreeing that the following terms and conditions apply to the services provided under this Agreement.
Last updated: May 2018
1. DEFINITIONS
2. SAAS SERVICES
3. RESTRICTIONS
4. CUSTOMER RESPONSIBILITIES
5. FEES & PAYMENT
6. TERM AND TERMINATION
7. WARRANTIES
8. LIMITATIONS OF LIABILITY
9. INDEMNIFICATION
10. CONFIDENTIALITY
11. GENERAL PROVISIONS
12. SCHEDULE A
13. SCHEDULE B
1. DEFINITIONS
"Administrator User" means the User designated by Customer to serve as technical administrator of the SaaS Services on Customer’s behalf.
"Customer Content" means all data and materials provided by Customer or by Users to Noterro or uploaded to the Host by the Customer or by Users for use in connection with the SaaS Services, including, without limitation, customer applications, data files, graphics, Personal Information, and Personal Health Information;
"Documentation" means the user guides, online help, release notes, training materials and other documentation provided or made available by Noterro to Customer regarding the use or operation of the SaaS Services;
"Fees" means any fees under this Agreement including without limitation the Implementation Fee and the fees set out in Schedule "A";
"Host" means the computer equipment on which the Software is installed, which is owned and operated by Noterro or its subcontractors;
"Implementation Fee" has the meaning ascribed to it in section 4.1;
"Initial Upload" has the meaning ascribed to it in section 4.1;
"Maintenance Services" means the support and maintenance services provided by Noterro to Customer pursuant to this Agreement;
"Other Services" means, exclusive of either the SaaS Services or the Maintenance Services, any services, including without limitation, all technical and non-technical services performed or delivered by Noterro under this Agreement, implementation services and other professional services, training and education services. Noterro may provide such Other Services at such times or during such periods, as Noterro may determine in its sole and absolute discretion;
"Personal Information" means information that is not ordinarily publicly available about an identifiable individual, including without limitation Customer employees;
"Personal Health Information" has the meaning set out in Schedule "B";
"Renewal Term" has the meaning ascribed to it in section 6.2;
"Schedule" means any written document identified as a "schedule" and attached to this Agreement;
"Software" means the Noterro-branded software as more particularly described in Schedule "A";
"SaaS Services" refer to the specific Noterro's internet-accessible Software that is hosted by Noterro or its services provider and made available to Customer over a network on a term-use basis;
"Term" has the meaning ascribed to it in section 6.1;
"User" means any individual or entity who uses the account designated to the Customer for the SaaS Services including without limitation any Administrator User, administrator assistant, administrator, practitioner, and patient.
2. SAAS SERVICES
2.1 During the Term and the Renewal Term, if any, Customer will receive a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, personal, revocable, right to have its Users located worldwide access and use the SaaS Services solely in respect of a single clinic of the Customer, which may have multiple geographical locations, as determined by Noterro in its sole and absolute discretion, all subject to the terms of this Agreement.
2.2 Customer acknowledges that this Agreement is a services agreement and Noterro will not be delivering copies of the Software to Customer as part of the SaaS Services.
2.3 Upgrades. Upgrades to the Software will be made available as and when Noterro determines. Noterro does not warrant that there will be any upgrades to the Software.
2.4 Backup. Noterro shall have performed at least twice daily incremental and periodic full backup of the Customer Content. Noterro shall store all data in a secure facility. Backup data will be encrypted in transit, at rest and will be replicated to multiple secure locations.
2.5 Availability. Noterro intends that the Software shall be available 99% of the time, except that network maintenance shall occur for approximately four (4) hours per month and excluding the following events which do not represent Software service outage or downtime: (i) Noterro's or a User’s hardware failure; (ii) Internet failure or telecommunication failure; or (iii) any force majeure event.
3. RESTRICTIONS
Customer shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than authorized Users, (iii) modify or create derivative works based upon the SaaS Services or Documentation, (iv) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (v) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, or (vi) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Noterro shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this Agreement, including without limitation all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it has, had, or may in the future have in the foregoing to Noterro or as Noterro may direct.
4. CUSTOMER RESPONSIBILITIES
4.1 Assistance. Noterro may provide assistance to the Customer in the migration of Customer data and information to the Software.
4.2 Compliance with Laws. Customer shall comply with all applicable local, provincial, state, national and foreign laws in connection with its use of the SaaS Services, including without limitation those laws related to data privacy, international communications, and the transmission of technical, health, or personal data. Customer acknowledges that Noterro exercises no control over the content of the information transmitted by Customer or Users through the SaaS Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first properly and legally obtaining the permission of the owner of such rights.
4.3 Unauthorized Use; False Information. Customer shall: (a) notify Noterro immediately of any unauthorized use of any password or user identification or any other known or suspected breach of security, (b) report to Noterro immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any User, and (c) not provide false identity information to gain access to or use the SaaS Services.
4.4 User Access. Customer shall be solely responsible and liable under the law and under this Agreement for the acts, omissions, negligence, and default of its Users, including without limitation in respect of the Users use of the SaaS Services. Noterro shall not be liable for any loss of data, Customer Content, or functionality caused directly or indirectly by the Users. Any User use of the SaaS Services including but not limited to any interaction with Personal Information is deemed to be the use of the Customer.
4.5 Customer Input. Customer is solely responsible for collecting, inputting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party; or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious; or (iii) cause Noterro or Customer to be in non-compliance without any law, rule, or regulation including but not limited to privacy laws and laws concerning Personal Health Information. Customer shall: (i) notify Noterro immediately of any unauthorized use of any password or user identification or any other known or suspected breach of security; (ii) report to Noterro immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer or any User; (iii) not provide false identity information to gain access to or use the Service; and (iv) notify Noterro immediately of any actual or suspected non-compliance of Noterro or the Customer with any applicable law, rule, or regulation including but not limited to privacy laws and laws concerning Personal Health Information.
4.6 License from Customer. Subject to the terms and conditions of this Agreement, Customer grants to Noterro a limited, non-exclusive and non-transferable license, to use, copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer.
4.7 Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. Noterro or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under the Agreement. Third party technology that may be appropriate or necessary for use with some Noterro programs is specified in the program Documentation or Software as applicable. Customer’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by Noterro and not under the Agreement.
4.8 Suggestions. Noterro shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, relating to the operation of the SaaS Services.
5. FEES & PAYMENT
5.1 Fees, Invoicing, and Payment. Except as otherwise stated in Schedule "A", in consideration for the SaaS Services and the use of the Software Customer shall pay Noterro the Fees by way of credit card. Noterro shall charge the credit card of the Customer for the Fees immediately upon the signing of this Agreement, subject to any costless trial period of the SaaS Services that Noterro may offer from time to time if any. Upon any other Fees becoming incurred, Noterro may charge the credit card of the Customer for such other Fees immediately. All Fees are due immediately. Except as expressly provided otherwise, fees are non-refundable. For Customers, in respect of clinics located in Canada, as determined by Noterro in its sole and absolute discretion, all fees are stated in Canadian Dollars and must be paid by Customer to Noterro in Canadian Dollars. For Customers, in respect of clinics located outside of Canada, as determined by Noterro in its sole and absolute discretion, all fees are stated in US Dollars and must be paid by Customer to Noterro in US Dollars.
5.2 Expenses. At the request of the Customer for Noterro to provide Other Services and Noterro accepting such request, Customer will reimburse Noterro for its reasonable, out-of-pocket travel, telephone, fax, express mail, courier, facilities and equipment rentals, bulk printing and photocopying, and related expenses incurred in performing the Other Services.
5.3 Taxes. Noterro shall bill Customer for applicable taxes as a separate line item on each invoice. Taxes shall be charged in addition to Fees. Customer shall be responsible for payment of all applicable sales and use taxes, Harmonized Sales Tax (HST), value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services.
6. TERM AND TERMINATION
6.1 Term of Agreement. The term of this Agreement shall begin on the first (1st) day that the Customer subscribes for the SaaS Services and shall end thirty (30) days after such subscription unless terminated earlier pursuant to this Agreement (the "Term").
6.2 Renewal. This Agreement shall automatically renew for successive one (1) month periods (the "Renewal Term") indefinitely following the expiry of the Term, until this Agreement is terminated in accordance with its terms. The terms of this Agreement shall apply to any Renewal Term, except that some terms may be changed as permitted by this Agreement.
6.3 Termination. Either party may terminate this Agreement immediately: (a) upon a material breach by the other party that has not been cured within ten (10) days after receipt of notice of such breach; or (b) upon the other party becoming insolvent or bankrupt or upon the other party initiating any proceeding to cease its existence; (c) Noterro may terminate this Agreement immediately upon any person using the account designated to the Customer who is not a User; or (d) upon providing the other party with thirty (30) days’ written notice of its wish to terminate.
6.4 Termination for Non-Payment. Noterro reserves the right to immediately terminate the SaaS Services if the credit card the Customer has provided to Noterro may not be charged in respect of the Fees. Termination of the SaaS Services shall not release Customer of its payment obligations under this Agreement. Customer agrees that Noterro shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to termination of the SaaS Services resulting from Customer’s nonpayment.
6.5 Suspension for Ongoing Harm. Noterro reserves the right to suspend delivery of the SaaS Services if Noterro reasonably concludes that Customer or a User’s use of the SaaS Services is causing immediate and ongoing harm to Noterro or others. In the extraordinary case that Noterro must suspend delivery of the SaaS Services, Noterro shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Noterro shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section 6.5. Nothing in this Section 6.5 will limit Noterro's rights under Section 6.6 below.
6.6 Effect of Termination
(a) Upon termination of this Agreement or expiration of the Term or Renewal Term, as the case may be, Noterro shall immediately cease providing the SaaS Services and all usage rights granted under this Agreement shall terminate.
(b) If Noterro terminates this Agreement due to a breach by Customer, then Customer shall immediately pay to Noterro all amounts then due under this Agreement and to become due during the remaining term of this Agreement, but for such termination. If Customer terminates this Agreement due to a breach by Noterro, then Noterro shall immediately repay to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date.
(c) Upon termination of this Agreement and upon subsequent written request by Noterro, the Customer shall immediately return any Confidential Information of Noterro or destroy such information and provide written certification of such destruction.
(d) Upon termination of this Agreement, Noterro shall retain all Confidential Information of the Customer, which Customer shall be entitled to review on a read-only-basis.
7. WARRANTIES
7.1 Warranty. Noterro represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation. For any breach of a warranty, Customer’s exclusive remedy shall be as provided in Section 6.
7.2 Noterro WARRANTS THAT THE SAAS SERVICES WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION. Noterro DOES NOT GUARANTEE THAT THE SAAS SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT Noterro WILL CORRECT ALL SAAS SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT Noterro DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING WITHOUT LIMITATION THE INTERNET, AND THAT THE SAAS SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY Noterro (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER Noterro NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL Noterro OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER CONTENT OR CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS. Noterro DOES NOT WARRANT THAT THE CUSTOMER’S OR ANY USER’S USE OF ANY FUNCTION OR FEATURE OF THE SOFTWARE OR THAT THE SOFTWARE ITSELF COMPLIES WITH THE REQUIREMENTS OF ANY LAW, RULE, OR REGULATION INCLUDING BUT NOT LIMITED THE REQUIREMENTS OF PRIVACY LAWS.
8. LIMITATIONS OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, Noterro AND ITS DIRECTORS, OFFICERS, AND SHAREHOLDERS (NOR ANY LICENSOR OR OTHER SUPPLIER OF Noterro OR SUBCONTRACTOR OF Noterro) SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, ADMINISTRATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA, CUSTOMER CONTENT, OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. INDEMNIFICATION
9.1 Indemnification by Noterro. If a third party makes a claim against Customer that the SaaS Services infringes any patent, copyright or trademark, Noterro shall defend Customer and its directors, officers and employees against the claim at Noterro's expense and Noterro shall pay all losses, damages and expenses (including without limitation reasonable legal fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Noterro, to the extent arising from the claim. Noterro shall have no liability for any claim based on (a) the Customer Content, (b) modification of the SaaS Services not authorized by Noterro, or (c) use of the SaaS Services other than in accordance with the Documentation and this Agreement. Noterro may, at its sole option and expense, procure for Customer the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Agreement and repay to Customer any amount paid by Customer with respect to the Term or Renewal Term, as the case may be, following the termination date.
9.2 Indemnification by Customer. If a third party makes a claim against Noterro that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, or is being or has been collected, held, used, disclosed, or stored contrary to any law, rule, or regulation, Customer shall defend Noterro and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including but not limited to reasonable legal fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
9.3 Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
10. CONFIDENTIALITY
10.1 Definition. "Confidential Information" means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as "confidential" or "proprietary," (b) if disclosed verbally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be "confidential" or "proprietary" within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this Agreement, Customer Content is deemed Confidential Information of Customer. Noterro software and Documentation are deemed Confidential Information of Noterro.
10.2 Confidentiality. During the Term and any Renewal Term of this Agreement, as the case may be, and for five (5) years thereafter (perpetually in the case of Software, Personal Information, and Personal Health Information), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party. Notwithstanding any other provision of this Agreement, Noterro is permitted to store Confidential Information of the Customer on Hosts located outside of Canada without breaching the terms of this Agreement or any other agreement between the parties.
10.3 Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.
10.4 Right-To-Be Forgotten. Notwithstanding any other term in this Agreement, Noterro shall comply with all applicable legal and regulatory requirements that apply or govern the SaaS Services, as determined by Noterro in its sole and absolute discretion, concerning the right or power of a Customer or the right or power of a patient of a Customer in respect of Customer Content about a patient on the Host, including without limitation, Noterro shall delete and destroy all information about the Customer or a patient that is on the Host if such request is provided to Noterro in accordance with all applicable legal requirements, provided however that Noterro shall retain all Customer records that Noterro requires to comply with any legal obligations of Noterro, for example, as required under tax and accounting laws.
11. GENERAL PROVISIONS
11.1 Non-Exclusive Service. Customer acknowledges that SaaS Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Noterro's ability to provide the SaaS Services or other technology, including without limitation any features or functionality first developed for Customer, to other parties.
11.2 Customer Content. Customer hereby acknowledges and agrees that Noterro's performance of this Agreement may require Noterro to process, transmit and/or store Customer Content. By permitting Users to submit Customer Content to Noterro, Customer agrees that Noterro and its affiliates may process, transmit and/or store Customer Content only to the extent necessary for, and for the sole purpose of, enabling Noterro to perform its obligations under this Agreement. In relation to all Customer Content provided by or through Customer to Noterro including without limitation by Users, Customer will be responsible for complying with all applicable data protection or similar laws. Customer agrees to obtain all necessary consents and make all necessary disclosures before including information in Customer Content and using it in respect of the SaaS Services. Customer confirms that Customer is solely responsible for any Customer Content, including without limitation any information which any User uses with the SaaS or which any User shares with third parties on Customer’s behalf or with the assent of the Customer. Customer is solely responsible for determining the purposes and means of processing Customer Content by Noterro under this Agreement, including without limitation that such processing according to the terms of this Agreement will not place Noterro in breach of applicable law, rule, or regulation, including without limitation privacy laws. Customer is solely responsible for ensuring that the SaaS Services meet any restrictions or special requirements of any law, rule, or regulation concerning the Customer Content.
11.3 Noterro Personal Data Obligations. Noterro confirms that Hosts on which the Software will be stored are located inside and outside of Canada and consequently such Hosts are subject to the laws applicable in the relevant countries. Noterro confirms that Hosts on which the Customer Content will be stored are located inside of Canada and consequently such Hosts are subject to the laws applicable in Canada. Noterro will only process Customer Content in a manner that is reasonably necessary to provide SaaS Services and only for that purpose. Noterro will only process Customer Content in delivering SaaS Services. Customer agrees to provide any notices and obtain any consent related to Noterro's use of the Customer Content for provisioning the SaaS Services in any manner not generally stipulated in this Agreement. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and retains ownership of all of the Customer Content.
11.4 Assignment. Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Noterro may employ subcontractors in performing its duties under this Agreement.
11.5 Notices. Except as otherwise permitted in this Agreement, notices under this Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered mail, (b) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent: (i) to Noterro at the address set forth on the cover page of this Agreement; and (ii) to Customer at the address the Customer provides to Noterro when it contracts for the SaaS Services.
11.6 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
11.7 Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach./p>
11.8 Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.
11.9 Entire Agreement. This Agreement (including without limitation all Schedules and the Privacy Policy) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement.
11.10 Amendments. This Agreement may be amended solely in a writing signed by both parties.
11.11 Survival. Sections 1, 3, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 6, 7, 8, 9, 10, and 11 of this Agreement shall survive the expiration or termination of this Agreement for any reason.
11.12 Export Regulations. Export laws and regulations may apply to the SaaS Services. Customer agrees to comply with any such applicable export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
11.13 No Third Party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
11.14 Independent Contractor. The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
11.15 Statistical Information. Noterro may anonymously compile statistical information related to the performance of the SaaS Services for purposes of improving the SaaS Services, provided that such information does not include Personal Information or Personal Health Information or any information that may be reasonably capable of identifying a particular individual. [NTD: see privacy policy for comment on this matter.]
11.16 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, excluding its conflict of law principles. The parties hereby attorn to the jurisdiction of the courts of Ontario to adjudicate any dispute concerning this Agreement.
11.17 Signatures. This Agreement may be executed in multiple counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (including via pdf) will be effective as delivery of a manually executed counterpart.
11.18 Interpretation. Any pluralized words shall include the singular form and vice versa. Any words denoting a particular gender shall be deemed to include all genders. The Schedules to this Agreement form an integral part of this Agreement.
SCHEDULE A
SOFTWARE
This Schedule "A" contains particulars of the SaaS Services for which Customer is subscribing pursuant to the Agreement dated May 2018, between Noterro and the Customer.
1. Fees and Payment
A. Implementation Fee
The Implementation Fee is $0.00.
B. Transaction Fees
This Schedule "A" contains particulars of the SaaS Services for which Customer is subscribing pursuant to the Agreement dated May 2018, between Noterro and the Customer.
C. Text Message and Phone Call Sending Maximums
Text Message Maximums
The maximum number of SMS messages that your clinic can send in a 30-day period. This is calculated on a rolling time period. Every time your clinic tries to send an SMS message, Noterro determines the number of SMS messages that your clinic has sent in the previous 30 days. As long as the total number of SMS messages that you have sent in the past 30 days is less than this 30-day maximum, your message will be sent. Canada/US: $10/month for a 30-day sending maximum of 500 messages. Outside Canada/US: $10/month for a 30-day sending maximum of 100 messages.
Phone Call Maximums
The maximum number of phone calls that your clinic can make in a 30-day period. This is calculated on a rolling time period. Every time your clinic tries to make a phone call, Noterro determines the number of phone calls that your clinic has made in the previous 30 days. As long as the total number of phone calls that you have made in the past 30 days is less than this 30-day maximum, your phone call will be made. Canada/US: $5/month for a 30-day calling maximum of 1,000 calls. Outside Canada/US: $10/month for a 30-day calling maximum of 100 calls.
2. Support and Maintenance Services
Standard Support & Maintenance is included in the Fees, except as other specified in this Agreement.
*All fees are in USD with the exception of Customers that operate in Canada the fees will be in CAD.
**Pricing and limits based on Canada and United States. Worldwide prices and limits may vary.
SCHEDULE B
DEFINITION OF "PERSONAL HEALTH INFORMATION"
"Personal health information" has the meaning ascribed to it under the Personal Health Information Protection Act, 2004, S.O. 2004, ch. 3 ("PHIPA"), as such statute may be amended from time to time.
For ease of reference, the following is section 4 of PHIPA.
4 (1) In this Act,
"Personal health information", subject to subsections (3) and (4), means identifying information about an individual in oral or recorded form, if the information,
(a) Relates to the physical or mental health of the individual, including information that consists of the health history of the individual’s family,
(b) Relates to the providing of health care to the individual, including the identification of a person as a provider of health care to the individual,
(c) Is a plan of service within the meaning of the Home Care and Community Services Act, 1994 for the individual,
(d) Relates to payments or eligibility for health care, or eligibility for coverage for health care, in respect of the individual,
(e) Relates to the donation by the individual of any body part or bodily substance of the individual or is derived from the testing or examination of any such body part or bodily substance,
(f) Is the individual’s health number, or
(g) Identifies an individual’s substitute decision-maker.
Identifying information
(2) In this section,
"Identifying information" means information that identifies an individual or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual. 2004, c. 3, Sched. A, s. 4 (2). Mixed records
(3) Personal health information includes identifying information that is not personal health information described in subsection (1) but that is contained in a record that contains personal health information described in that subsection. 2009, c. 33, Sched. 18, s. 25 (3).
Exception
(4) Personal health information does not include identifying information contained in a record that is in the custody or under the control of a health information custodian if,
(a) The identifying information contained in the record relates primarily to one or more employees or other agents of the custodian; and
(b) The record is maintained primarily for a purpose other than the provision of health care or assistance in providing healthcare to the employees or other agents.
