Highmark Interactive Client Subscription Agreement
These Terms and Conditions (the “Agreement”) set out the provisions pursuant to which Highmark Innovations Inc. (“HII”) will provide to the Client (as identified on the Order Form) access the proprietary Highmark Interactive EQ platform.
In addition to those capitalized terms defined throughout these terms and conditions, the following terms shall have the following meaning:
- “Client Data” means the personal information and other data about Client, Client’s patients, employees, students, or other End Users, that is uploaded to or collected through the use of the Platform, including any personal health information.
- “End User” means any individual for which Client creates a profile on the Platform and may include students, patients, parents, teachers and/or coaches.
- “Intellectual Property Rights” or “IPR” means all intellectual property rights wherever in the world, whether registrable or not, registered or unregistered, including any application or right of application for such rights, including copyright and related rights, software, code, data, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, ideas, improvements, inventions, patents, and any other rights that would be considered intellectual property rights.
- “Order Form” means the Order Form executed by Client in respect of Client’s subscription.
- “Platform” means HII’s proprietary concussion monitoring and digital therapy software platform.
- “Services” means the provision of access to the Platform and any training and/or support services that may be provided by HII to Client under this Agreement.
- “Subscription Period” means the period set out in the Order Form.
- NO MEDICAL ADVICE (DISCLAIMER)
The Services being provided by HII to Client and the information on the Platform do not constitute medical advice, diagnosis, or treatment. Client agrees to seek the advice of a physician or other qualified health provider with any questions regarding a concussion, medical condition and/or medical symptoms. CLIENT ASSUMES ALL RISKS IN RESPECT TO ITS USE OF THE PLATFORM AND SERVICES, INCLUDING RELIANCE ON ANY RESULTS GENERATED FROM THE PLATFORM, DURING THE SUBSCRIPTION PERIOD.
- PLATFORM LICENSE.
- Restrictions. Client shall not (and shall not allow any third party to): (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Platform; (ii) circumvent any user limits or other timing or use restrictions that are built into the Platform; (iii) remove any proprietary notices, labels, or marks from the Platform; (iv) frame or mirror any content forming part of the Platform; or (e) access the Platform in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Platform.
- Audit Rights. HII shall have the right to use the capabilities of the Platform and third-party services to confirm the number of users using the Platform and Client’s compliance with this Agreement.
- Client Responsibilities. In exchange for the license granted under Section 3(a), Client agrees to (i) abide by all applicable laws and regulations in connection with the use of the Platform and Services, including applicable privacy laws; (ii) ensure that Client has the requisite consent to disclose Personal Information of End Users to other End Users; (iii) ensure that all End Users (or, if the End User is under 16 years old, such End User’s legal guardian) are presented with and execute a Medical Waiver in the form of Schedule A.
- Fees. Client shall pay the Platform License fees and any other Services fees, as set out in Order Form, if applicable, plus any applicable taxes (collectively, “Fees”).
- Payment. Client shall pay all Fees within 30 days of execution of this Agreement. Unless otherwise specified in the applicable Order Form, all payments under this Agreement shall be made within thirty (30) days after the receipt of the applicable invoice and the applicable fees shall be billed in accordance with the times specified in the Order Form. Any amounts not paid when due shall accrue interest at the lesser of one and one half percent (1.5%) per month (19.57% annually) or the maximum rate allowed by law.
- Taxes. Unless otherwise stated, HII’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). Client is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on HII’s net income or property. If HII has the legal obligation to pay or collect Taxes for which Client is responsible under this section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides HII with a valid tax exemption certificate authorized by the appropriate taxing authority.
- PROPRIETARY RIGHTS.
- Exclusive Ownership. Except for the rights and licenses granted in this Agreement, Client acknowledges and agrees that any and all Intellectual Property Rights to or arising from the software, technology and database used to provide the Platform and Services shall remain the exclusive property of HII and its licensors. Nothing in this Agreement is intended to transfer any such IPR to, or to vest any such Intellectual Property Rights in, Client. Client is only entitled to the limited use of the IPR granted to Client in this Agreement. Client will not take any action to jeopardize, limit or interfere with HII’s IPR.
- Client Data. As between Client and HII, Client owns and retains ownership of all Client Data. Client hereby grants HII a perpetual, worldwide, royalty-free, and non-exclusive license to access, use, store and process Client Data in order (i) to provide the Services; (ii) improve and develop the Platform and Services for both Client and HII’s other clients and prospective clients; and (iii) generate Analytics Data, as defined below.
- Analytics. Client acknowledges and agrees that HII compiles and analyzes Client Data to create useful, aggregated information about client service delivery and performance and accordingly HII requires the right to generate data about the use and operation of the Platform and delivery of the Services, from reports generated pursuant to this Agreement and raw Client Data (“Analytics Data”). Client hereby grants HII a perpetual, worldwide, non-exclusive, royalty-free license to create Analytics Data from Client Data and combine it in whole or in part with data derived through the use of the Services and with other data at HII’s discretion. For the avoidance of doubt, Analytics Data will not include any raw Client Data, including any personal information or personal health information, and will not be distributed in a manner which identifies Client. HII shall have exclusive ownership of any Analytics Data and the exclusive right to use the same for any purpose without restriction.
- Suggestions. HII shall exclusively own any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the Platform and operation of the Services during the Trial Period (“Suggestions”). Client hereby assigns all right, title and interest in any Suggestions, including any IPR therein, to HII. Client hereby irrevocably waives all moral rights it may have in any Suggestions.
- Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
- Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner as it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies may be inadequate.
- DISCLAIMER. THE PLATFORM AND SERVICES ARE PROVIDED BY HII TO CLIENT ON AN ‘AS IS’ BASIS. HII MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THE PLATFORM OR SERVICES. HII (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. HII (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM AND SERVICES WILL MEET ANY OR ALL OF CLIENT’S PARTICULAR REQUIREMENTS, THAT THE PLATFORM WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE SERVICE CAN BE FOUND OR CORRECTED.
- INDEMNITY AND RELEASE
- Indemnification by HII. Subject to this Agreement, HII shall defend, indemnify and hold Client harmless against any loss, damage or costs (including reasonable attorneys' fees) awarded to a third party against Client by a court of competent jurisdiction in any claims, demands, suits, or proceedings made or brought against Client by a third party alleging that the use of the Platform as contemplated hereunder infringes the intellectual property rights of a third party (“IP Claims”); subject to the condition that Client (a) promptly gives written notice of each IP Claim to HII; (b) gives HII sole control of the defense and settlement of each IP Claim (provided that HII may not settle or defend any IP Claim unless it unconditionally releases Client of all liability); and (c) provides to HII, at HII’s cost, all reasonable assistance in respect to each IP Claim.
- Mitigation. If (a) Client becomes aware of an actual or potential IP Claim, or (b) Client provides HII with notice of an actual or potential IP Claim, HII may (or in the case of an injunction against Client, shall), at HII’s sole option and determination: (I) procure for Client the right to continue to use the Platform; or (II) replace or modify the Platform with equivalent or better functionality so that Client’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Platform and refund to Client any pre-paid fees for any periods after the termination of the Service, less any outstanding moneys owed by Client to HII.
- Exclusions. The indemnity in Section 8.1 does not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Platform furnished by HII with other products, software or services not provided by HII; (2) any IP Claim related to any Client Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
- Client Indemnity. Client agree to indemnify, defend and hold harmless HII its shareholders, members, principals, partners, owners, transferees, directors, managers, officers, employees, servants, successors, agents, attorneys, distributors, vendors, suppliers and representatives (collectively, the “HII Parties”) from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable legal fees) arising from: (i) Client’s use of and access to the Platform and Services; and (ii) Client’s violation of any of the terms of this Agreement.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALL HII BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR ECONOMIC DAMAGES INCURRED OR SUFFERED BY CLIENT ARISING AS A RESULT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF HII HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE TOTAL LIABILITY OF HII FOR ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO THIS AGREEMENT, OR TO ANY ACT OR OMISSION OF HII, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF $500 CDN OR THE FEES PAYABLE BY CLIENT IN THE 12 MONTHS LEADING UP TO THE EVENT THAT GAVE RISE TO LIABILITY.
- Term. This Agreement shall be in force beginning on the Effective Date and continuing until the expiration of the Subscription Period. ”). Thereafter, the term of the Agreement shall be automatically renewed for additional renewal terms in equal length to the initial Subscription Period, unless otherwise specified on the Order Form (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Subscription Period or any Renewal Term hereof. Collectively, the Subscription Period and any subsequent Renewal Terms shall constitute the “Term”.
- Material Breach. HII may, by notice in writing to Client, terminate this Agreement in the case of a material breach by Client which has not been cured to HII’s satisfaction within ten (10) days of a written request for the same.
- Expiration. Upon the expiry of the Subscription Period, this Agreement shall terminate Client’s license and access to the Services and Platform unless otherwise agreed in writing between the Parties.
- Effect of Termination. Upon termination, Client will have no further rights to access the Platform or Services. Each Party agrees that it will destroy any Confidential Information disclosed to it by the other Party within 10 days of termination. The following terms will survive termination of this Agreement: Sections 5 (Proprietary Rights), 6 (Confidentiality), 7 (Disclaimer), 8 (Indemnities) and 9 (Limitation of Liability).
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to HII shall be addressed to the attention of the Legal Department. Notices to Client shall be addressed to Client’s signatory of this Agreement unless otherwise designated below.
- Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
- Venue; Waiver of Jury Trial. The provincial and federal courts located in Toronto, Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
- Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
- Export. Client acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Client shall comply with all export and import control regulations of such countries. Client shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Client shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.
- Entire Agreement. This Agreement, including all schedules, exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto or any Order Form, the terms of such schedule, exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
- Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
SCHEDULE A – LIABILITY WAIVER AND RELEASE
I HEREBY ASSUME ALL OF THE RISKS ASSOCIATED WITH MY USE OF THE HIGHMARK SOFTWARE PLATFORM, including by way of example and not limitation, any risks that may arise from negligence or carelessness on the part Highmark or its shareholders, members, principals, partners, owners, transferees, directors, managers, officers, employees, servants, successors, agents, attorneys, distributors, vendors, suppliers and representatives (collectively, the “Highmark Parties”), from defective software, analysis or recommendations made by the software platform.
I understand that the Highmark software does not provide any medical diagnosis, advice or treatment and is not intended to be a substitute for professional medical advice, diagnosis, or treatment. I understand that I should always seek the advice of a physician or other qualified health provider with any questions regarding a medical condition and/or medical symptoms.
I HEREBY WAIVE, RELEASE, AND IRREVOCABLY DISCHARGE the Highmark Parties from any and all actions, causes of action, liabilities, suits, debts, obligations, dues, accounts, bonds, covenants, contracts, claims, demands, indemnities, losses, costs (including professional fees), damages and proceedings whatsoever, whether in law or in equity which I have ever had or may hereafter have, whether known or unknown, including but not limited to, liability arising from the negligence or fault of the Highmark Parties for any death, disability, personal injury, property damage, or actions of any kind which may hereafter occur to me during my use of the Highmark Platform.
I INDEMNIFY, HOLD HARMLESS, AND AGREE NOT TO SUE the Highmark Parties in the above paragraph from any and all liabilities or claims made as a result of my use of the Highmark software, whether caused by negligence or otherwise.
IF A MINOR CHILD (Under 16 years of age) IS BEING ASSESSED USING THE SOFTWARE PLATFORM, the parent and legal guardian does hereby represent that he/she is, in fact, acting in such capacity, has consented to his/her child or ward's use of the Highmark software, and has agreed individually and on behalf of the child or ward, to the terms of the Liability Waiver and Release supplied by Highmark. Parent/Legal Guardian is fully responsible and indemnifies and holds harmless all Highmark Parties.
I agree that this Waiver shall be binding on my estate, heirs, representatives, successors and assigns.
I CERTIFY THAT I HAVE READ AND FULLY UNDERSTAND THIS DOCUMENT AND ITS CONTENTS. I AM AWARE THAT THIS IS A RELEASE OF LIABILITY AND IMPOSES BINDING LEGAL OBLIGATIONS ON ME (INCLUDING INDEMNIFICATION OBLIGATIONS) AS WELL AS A CONTRACT AND I ACCEPT THE TERMS OF IT OF MY OWN FREE WILL.
(Signature of User or Guardian)
Guardian name (if applicable):