Date: March 31, 2022
IF YOU DO NOT UNEQUIVOCALLY AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK “I AGREE” OR USE THE PRODUCT, AND DELETE THE APP OR THE PORTAL FROM YOUR DEVICE.
IMPORTANT NOTICE: UNLESS YOU ARE A QUEBEC RESIDENT, YOUR USE OF OUR PRODUCT IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 11.6 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 11.6 OF THIS AGREEMENT FOR MORE INFORMATION.This Agreement is between AYOGO Health Inc.(“Ayogo,” “We” “Us,” or “our”) and any person (“User,” “you” or “your”) who accesses or otherwise uses the Product and governs your access and use of the Product. Ayogo and User are each a “Party” and collectively, the “Parties” to this Agreement.
- License Grant and Access Rights.
- Scope of License. Subject to the terms of this Agreement and subject to any additional terms set forth in the Client Terms (defined below) or in any third-party licenses applicable to our Product, Ayogo hereby grants to User a limited, nonexclusive, non-transferable, non-sublicensable license and right to access and use the Product solely (1) for non-commercial personal purposes only in accordance with applicable laws, rules and regulations or (2) in connection with matters relating to or arising out of your relationship with our Client (defined below). If you do not comply with this Agreement, We reserve the right to revoke any license granted in this Agreement and limit your access to our Product. Any use of our Product that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use our Product.
- Client Terms. Your access to our Product may also be bound by the legal relationship between you and one or more of our commercial or governmental partners, customers, or clients (each, our “Client”). Our relationship with our Client is separately governed by terms and conditions between Ayogo and our Client (the “Client Terms”) which are hereby incorporated herein by reference. Without limiting other terms and conditions in this Agreement, your right to access and use our Product will immediately terminate in the event the Client Terms are terminated or expire. Further, at any time, our Client may cause your access to our Product to be terminated immediately, subject to the terms of the Client Terms. The disclaimers, terms, and conditions in this Agreement may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that We or our Client disclose. In the event of a conflict between the Client Terms and this Agreement, the Client Terms shall prevail. For clarity, if you are using our Product in your individual capacity without a relationship to a Client, references to “Client” and “Client Terms” throughout this Agreement shall have no effect on your receipt or use of our Product until such time as you use our Product under or in connection with a legal relationship with one or more of our Clients.
- Ownership; Reservation of Rights. The access granted hereunder is licensed and not sold to User. User shall not, by virtue of this Agreement or otherwise, acquire any rights in the App, the Portal, or the Product aside from the limited licenses granted herein, and User hereby expressly disclaims any other rights therein. Ayogo and its licensors and service providers, reserve and retain all of their respective rights, title, and interest in and to the App, the Portal and the Product as well as any software, modifications or enhancements made thereto, and all Intellectual Property Rights therein. “Intellectual Property Rights” mean any and all rights, title, and interest in and to (a) copyrights, derivative works and moral rights thereof; (b) trademarks, service marks, logos, and trade dress, including all goodwill associated therewith; (c) trade secrets, know-how, compositions, techniques; and (d) patents and inventions whether patentable or patentable, as they exist anywhere in the world.
- Account. In order to access the Product, each User may be asked to complete a series of questions and provide certain information, including setting up an account using email and a password. This helps Ayogo to create the appropriate access for you to the Product. You agree to provide truthful and accurate information that belongs to you or the patient during onboarding. You agree to promptly update your account if your email address or any other information associated with your account changes. By providing your email address, you agree to receive emails from Us that may include any notice, disclosure, statement, survey, or newsletter in connection with the Product. If you access the Product using your mobile device, you understand that your network provider may charge you fees for your use of its network while accessing or using the Product, for data downloading, or roaming, and you further understand and agree that YOU ARE SOLELY RESPONSIBLE FOR SUCH FEES AND CHARGES. User further agrees that User is solely responsible for acquiring and maintaining its own technology equipment necessary to access and use the Product, including internet access, and all costs or expenses associated with accessing and using the Product.
- Unauthorized Use and Information Changes. You must immediately notify us if you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. We may refuse to grant you a particular username for any reason, including, without limitation, if We have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
- Storing Credentials. Our Product may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access our Product. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to Ayogo or our Product resulting from unauthorized access to our Product from your account and We will have no liability to you or any third party for damages or loss related to such unauthorized access or use.
- Updates. You acknowledge that Ayogo is under no obligation to provide any updates to the Product; however, Ayogo may provide updates to the App, which may correct errors, add new features, or modify or delete certain features or functionality of the App. You acknowledge that such updates are intended to keep the App functioning and agree to download and install all updates as soon as available.
- Feedback. We welcome your comments, feedback, information, or materials regarding our Product or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback. In the event you provide any Feedback, you hereby make the following additional representations and warranties to us: (1) you are owner of such Feedback or otherwise have the right to grant us the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.
- CKD LifePlan™ Content. All content and materials, including text, graphics, logos, button icons, images, audio clips, illustrations, photographs, digital downloads, or other materials (collectively, “CKD LifePlan™ Content”) and all Intellectual Property Rights therein, are the property of Ayogo or its third party licensors and protected by U.S. and international property laws, and no right, title, or interest in any CKD LifePlan™ Content is transferred to you as a result of your use of the Product. You are not acquiring any rights in or to the CKD LifePlan™ Content other than a non-exclusive right to access and use the CKD LifePlan™ Content solely in accordance with the terms of this Agreement and solely in connection with your use of our Product. Except as expressly provided for herein, User may not copy, reproduce, republish, store, upload, transmit, adapt, reformat, print, distribute, commercially exploit, or publicly display the Intellectual Property Rights of Ayogo, the Product, or any portion thereof. You may not obscure or remove any proprietary rights notices contained in or on the CKD LifePlan™ Content.
- Client Materials. As between Client and Ayogo, Client and its licensors remain, and will remain, the sole and exclusive owner(s) of all right, title and interest in and to all documents, data and other materials provided by Client to Ayogo in connection with this Agreement (“Client Materials”). For clarity, Client Materials includes personal information submitted by Client’s authorized users and excludes the Usage Data (as defined in s.7.3). Ayogo will have a right and license to use the Client Materials but only to the extent necessary to provide Services to Client under this Agreement.
- Usage Data. Except as expressly set out in a Client Order Form, Ayogo will remain the sole and exclusive owner(s) of all right, title and interest in and to all user activity, usage, and behavioural data collected by Ayogo in performance of the Services.
- Removal of Access. Your access to our Product is provided on a temporary basis with no guarantee of future availability or continued right to access. You agree that We may immediately suspend or terminate your access to our Product or any part thereof. Cause for such measures include, without limitation: (1) breach or violation of this Agreement, the Client Terms, or other incorporated agreements or guidelines; (2) discontinuance or material modification to our Service; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.
- Defects and Availability. We use commercially reasonable efforts to maintain our Product, but We are not responsible for any defects or failures associated with our Product, any part thereof, or any damages (such as lost profits or any other consequential or indirect damages) that may result from any such defects or failures. Our Product may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which We may undertake from time to time; or (3) causes beyond our reasonable control or which We could not reasonably foresee. You understand that our Product is provided over the Internet, so the quality and availability of our Product may be affected by factors outside of our control. Our Product is not intended to be available 100% of the time and We do not make any representations, warranties, or guarantees regarding the reliability or availability of our Product. We do not represent, warrant, or guarantee that our Product will always be available or are completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to our Service being unavailable.
- Children. BY ACCESSING, USING AND/OR SUBMITTING INFORMATION TO OR THROUGH OUR SERVICE, YOU REPRESENT THAT YOU ARE NOT YOUNGER THAN AGE 13. IF YOU ARE UNDER THE AGE OF 13, DO NOT USE THIS PRODUCT. IF YOU ARE BETWEEN AGE THIRTEEN (13) AND THE AGE OF EIGHTEEN (18), YOU MAY USE OUR SERVICE ONLY UNDER THE SUPERVISION OF YOUR PARENT OR LEGAL GUARDIAN. IF YOU ARE THE PARENT OR LEGAL GUARDIAN AND CONSENT TO YOUR MINOR CHILD’S ACCESS TO AND USE OF OUR SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT ON BEHALF OF YOURSELF AND YOUR MINOR CHILD. WE ENCOURAGE YOU TO INVESTIGATE COMMERCIALLY-AVAILABLE PARENTAL CONTROL PROTECTIONS (SUCH AS COMPUTER HARDWARE, SOFTWARE OR FILTERING SERVICES) THAT MAY ASSIST YOU IN LIMITING ACCESS TO MATERIAL CONSIDERED HARMFUL TO MINORS.
- Conduct and Prohibitions.You agree to use the Product only for lawful purposes and to follow all applicable laws and regulations of Canada and any province in which you reside when using the Product. Ayogo reserves the right to revoke User’s privilege to use the Product or take any appropriate measures to enforce the guidelines set forth herein, if violations are brought to its attention. We reserve the right to investigate and prosecute violations of any of the below to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement. While using the Product, you agree that you must not:
- License, sublicense, sell, resell, rent, lease, time-share, publish, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of the Product;
- Use the Product in a service bureau, outsourcing, time-sharing, or other similar arrangement;
- Copy, modify, correct, adapt, alter, translate, enhance, or otherwise create derivative works or improvements of the Product;
- Reverse engineer, decompile, disassemble, or otherwise attempt to learn or gain access to the source code, structure, or ideas upon which the Product is based;
- Promote illegal activities, fraudulent schemes, sexual, or “adult” conduct, child abuse, drugs, or anything objectionable (as determined by us) or otherwise violate any applicable law;
- Stalk, harass, threaten, or invade the privacy of or engage in predatory behavior towards another User or any other person;
- Post, upload or otherwise transmit any content or information that is unlawful, harmful, abusive, tortious, profane, indecent, sexually explicit, hateful, or racially, ethnically or otherwise objectionable or intended to offend any person or that is otherwise objectionable to Ayogo, in its sole discretion;
- Use the Product to post, use, upload, or disseminate content, files, graphics, software, or other material that infringes or misappropriates any trade secret or intellectual property rights, rights of publicity, rights of privacy, or proprietary rights of any party;
- Take any action to circumvent, compromise, or defeat any security measures implemented on the App or the Portal, including to gain access to any portion of the Product;
- Use any manual or automated software, devices, or other processes to “crawl” or “spider” any web pages contained in the App (including, without limitation, the use of robots, bots, spiders, scrapers or any other means to extract pricing, product, service or other data from the Product);
- Upload or otherwise transmit content or information that contains software viruses or any other malicious code, files, or programs designed to interrupt, disrupt, disable, erase, alter, harm or limit the functionality of the Product or any software, firmware, data, hardware, or computer networks;
- Decrypt, transfer, create Internet links to our Product, or frame, mirror or otherwise simulate the appearance or functions of the Product or any portion thereof;
- Use the Product to gain competitive intelligence about us or develop a competing Product or service;
- Harvest or otherwise collect, store or use information about other Users;
- Use or merge our Product or any component thereof with other software, databases, or services not provided or approved by us;
- Develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with our Product;
- Delete, modify, hack, or attempt to change or alter our Product;
- Connect to or access any Ayog or computer system or network other than our Product;
- Impersonate any person or entity or otherwise misrepresent its affiliation with a person or entity; or
- Authorize or assist a third party to do any of the foregoing.
3.1 User Data Restrictions. You may not upload, post, or transmit any User Data that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of Ayogo, our Client, or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; (4) puts in jeopardy the security of your account, Ayogo, our Client, or our Service; or (5) promotes or displays any of the following content: (a) pornography; (b) violence; (c) racial intolerance or advocacy against any individual, group, or organization; (d) profanity; or (e) illicit drugs and drug paraphernalia. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove any and all User Data from the Product. You understand and expressly acknowledge that by using our Product you may be exposed to content that you find offensive, indecent, or objectionable and that We will not be liable to you or any other person or entity for your consumption of any content on our Product.
- Third Party Sites and Materials. Ayogo the Product, or third parties may provide or enable links to other websites or resources (“Third Party Sites”). Ayogo has no control over such Third Party Sites or any content, information, advertising, products, or materials available or included on such Third Party Sites (“Third Party Materials”), and User acknowledges and agrees that Ayogo does not endorse and is not responsible for (a) any such external Third Party Sites; (b) the privacy policies and other practices of such Third Party Sites; or (c) Third Party Materials or other services on or available from such Third Party Sites. User further acknowledges and agrees that Ayogo shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Material available on or through any Third Party Site. By using this Product, User acknowledges that User may need to accept additional terms of service of such Third Party Sites and expressly relieves Ayogo from any and all liability arising from User’s use of any Third Party Sites and Third Party Materials.
- No Medical Advice. THE INFORMATION, PROGRAMS, CKD LifePlan™ CONTENT, OR OTHER CONTENT PROVIDED THROUGH THE PRODUCT IS FOR INFORMATIONAL AND LEARNING PURPOSES ONLY AND NOT A SUBSTITUTE FOR MEDICAL ADVICE, SERVICES, DIAGNOSIS, OR TREATMENT. INDIVIDUALS SHOULD ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING ANY MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT PLAN.
- Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY THE LAW THAT APPLIES IN YOUR JURISDICTION, THE PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE PRODUCT IS AT USER’S SOLE RISK. AYOGO DOES NOT WARRANT THAT USER’S USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES AYOGO MAKE ANY WARRANTY AS TO THE SUITABILITY OF THE PRODUCT FOR ITS INTENDED USE. AYOGO, FOR ITSELF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION, ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING, TITLE, NON-INFRINGEMENT, OR TIMELINESS, SUITABILITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE PRODUCT. USER IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN IN RELIANCE ON THE PRODUCT OR ANY INFORMATION OR CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE INFORMATION.TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE MAKE NO WARRANTY THAT OUR PRODUCT WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON OUR PRODUCT WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF OUR PRODUCT WILL BE CORRECTED, THAT OUR PRODUCT AND ANY CONTENT OR INFORMATION FOUND ON OUR SERVICE WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH OUR PRODUCT WILL MEET YOUR EXPECTATIONS. AYOGO WILL HAVE NO LIABILITY REGARDING ANY LOSS OF DATA.
AYOGO AND ITS SERVICE PROVIDER USE REASONABLE EFFORTS TO MAINTAIN THE PRODUCT BUT ATOGO IS NOT RESPONSIBLE FOR ANY DEFECTS OR FAILURES ASSOCIATED WITH THE PRODUCT, OR ANY PART THEREOF, ANY CONTENT POSTED USING THE PRODUCT, OR ANY DAMAGES (SUCH AS LOST PROFITS OR OTHER CONSEQUENTIAL DAMAGES) THAT MAY RESULT FROM ANY SUCH DEFECTS OR FAILURES. THE PRODUCT MAY BE INACCESSIBLE OR INOPERABLE FOR ANY REASON, INCLUDING WITHOUT LIMITATION: (A) EQUIPMENT MALFUNCTIONS; (B) PERIODIC MAINTENANCE PROCEDURES OR REPAIRS; OR (C) CAUSES BEYOND THE CONTROL OF AYOGO OR WHICH ARE NOT FORESEEABLE BY AYOGO.
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE FOREGOING LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETIES.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT WILL AYOGO, ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, ARISING FROM OR RELATING TO THIS AGREEMENT, THE PRODUCT, OR USER’S ABILITY OR INABILITY TO USE THE PRODUCT, ANY INACCURACY OR INCOMPLETENESS OF INFORMATION CONTAINED IN THE PRODUCT, ANY DELAY OR FAILURE OR ALTERATION OF ANY TRANSMISSION OR DATA, EVEN IF AYOGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER AYOGO NOR ITS AFFILIATES OR SUBSIDIARIES’ TOTAL LIABILITY FOR ALL DAMAGES, CLAIMS, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE) SHALL EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OR USING THE PRODUCT. USER AGREES THAT IF USER IS DISSATISFIED WITH THE PRODUCT, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE PRODUCT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 9.
- Release; Indemnification. You hereby agree to release Ayogo its parent, affiliates, subsidiaries members, officers, directors, employees, licensors, service providers, and agents from any and all liability and obligations whatsoever in connection with or arising out of your use of the Product. If at any time you are not satisfied with the Product, your sole remedy is cessation of use of the Product. User agrees to indemnify, defend, and hold harmless Ayogo, its licensors, affiliates, or subsidiaries and any members, officers, directors, employees, and agents of the foregoing, from and against any action, cause, claim, damage, debt, expenses, demand or liability, including reasonable costs and attorneys’ fees asserted by any person or entity, arising out of or relating to: (a) this Agreement or User’s violation of the terms of this Agreement; (b) User’s use of the Product, including any User content, data, communication, or information transmitted or received by User; (c) gross negligence, fraud, violation of law or any intentional or negligent act or omission by User; and (d) User’s violation of any third party rights, including any intellectual property or privacy right.
- Term; Termination. This Agreement is effective upon your acceptance and continues until terminated in accordance with the terms herein. You agree that We may terminate this Agreement at any time without notice if User breaches any term of this Agreement. User may terminate this Agreement by terminating access to the Product and notifying Ayogo using the contact information below. Upon termination, User shall terminate use of and access to the Product and all related content or information and delete all copies of the App from User’s mobile device. Ayogo reserves the right to discontinue or suspend any aspect of or access to the Product at any time. Ayogo further reserves all rights or remedies available at law or in equity.
- Entire Agreement. This Agreement, the Client Terms (if any) and any hyperlinked policies constitute the entire agreement between the Parties hereto concerning the subject matter hereof and supersedes any prior or contemporaneous agreements concerning such subject matter.
- Amendment. Ayogo may amend or modify the terms of this Agreement at any time. Your acceptance of the modified terms or continued access or use of the Product after the terms of this Agreement are revised, constitutes your express consent to the modified Agreement. Notwithstanding the foregoing, no amendment, change, or extension to this Agreement is valid or binding, unless approved in writing by Ayogo.
- Waiver. No delay or failure by either Party to exercise or enforce at any time any right or provision of this Agreement will be considered a waiver thereof or of such Party’s right thereafter to exercise or enforce each and every right or provision of this Agreement.
- Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and the offending provision shall be deemed automatically modified by the minimum necessary to render it valid and enforceable under applicable law, with the nature and extent of the modifications to be determined by a court of competent jurisdiction.
- Governing Law. Subject to the Client Terms, you agree that this Agreement and any dispute arising out of or in connection with this Agreement or Product will be construed and governed by the laws of the province where you reside and the laws of Canada applicable therein. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Unless you reside in the province of Quebec, you consent to the exclusive jurisdiction of the court of the province of British Columbia in connection with all actions arising out of or in connection with this Agreement, and you waive any objections that venue is an inconvenient forum. If you reside in Quebec, you consent to the exclusive jurisdiction of the courts of the province of Quebec in connection with all actions arising out of or in connection with this Agreement.
- Publicity. Neither Party may, without the express prior written consent of the other Party, in any manner (including, but not limited to, advertising or marketing literature, web sites, press releases, social media, or any other document or communication (in electronic or paper form)): (i) disclose or publish the fact that it has any relationship with the other Party; or, (ii) use or display a trade name, official mark or trademark of the other Party. Notwithstanding the foregoing:
- Ayogo may list Client’s name (in name or logo form) in customer lists, and Client may list Ayogo’s name (in name or logo form) in vendor lists. Each Party hereby agrees to only use logos provided by the other Party for such purposes.
- if a Party, in the opinion of counsel, is compelled to disclose or publish the fact that it has a relationship with the other Party in order to comply with the requirements of applicable law, the Party will, to the extent practicable, consult with the other Party prior to making such disclosure or publication and each Party will use all reasonable efforts, acting in good faith, to agree upon the timing and content of such disclosure or publication. The Party subject to the legal requirement will have the final determination as to the timing and content of such disclosure or publication, to the extent that the timing and content are part of the legal requirement.
- If a Party provides express written consent to (i) disclose or publish the fact that it has any relationship with the other Party; or, (ii) use or display a trade name, official mark or trademark of the other Party, such consent is subject to all conditions communicated by the consenting Party, and the consenting Party will have the right to withdraw its consent for any reason, including but not limited to if that Party believes that a use or display of its trade name, official mark or trademark reflects unfavourably upon the reputation of the consenting Party, or the goodwill attaching to its trade name, official mark or trademark.
- Dispute Resolution; Arbitration Agreement. THIS SECTION DOES NOT APPLY TO RESIDENTS OF QUEBEC. THIS SECTION AFFECTS YOUR RIGHTS – PLEASE READ CAREFULLY BEFORE AGREEING TO THIS AGREEMENT.
- Dispute Resolution. To the extent feasible, the Parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to our Product or CKD LifePlan™ Content, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The Parties agree to attempt to resolve any Disputes by negotiation with the other Party (by phone, electronic correspondence, or written correspondence). If We are not able to resolve any Dispute ourselves, you and Ayogo agree to resolve such Dispute through confidential binding arbitration as set forth below.
- Mandatory Arbitration. The Parties agree that any dispute, claim, controversy, action, or proceeding arising out of or relating to this Agreement or your use of the Product under this Agreement (a “Dispute”) will be determined exclusively by binding arbitration. Arbitration may be conducted by telephone, based on written submissions, or in person where you live or at another mutually agreeable location. The American Arbitration Association (“AAA”) will administer the arbitration in accordance with the AAA rules. The claimant party filing a demand for arbitration with the administrator of AAA and serving the demand on the opposing party will initiate the arbitration. You and Ayogo will select an arbitrator in accordance with the applicable AAA rules within thirty (30) calendar days of the date the demand for arbitration is filed. Except as otherwise required by law, neither you, Ayogo, nor the arbitrator may disclose the existence, contents, or results of any arbitration under this Agreement without the prior written consent of you and Ayogo. Any award of the arbitrator will be accompanied by a statement of the reasons upon which the award is based. Judgment on the arbitration award may be entered in any court having jurisdiction.
- No Class Action. YOU AGREE THAT ANY CLAIM YOU MAY HAVE AGAINST US MAY ONLY BE BROUGHT INDIVIDUALLY AND YOU WILL NOT JOIN SUCH CLAIM WITH CLAIMS OF ANY OTHER PERSON OR ENTITY OR BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION AGAINST US. BY ACCEPTING THESE TERMS, YOU AND AYOGO ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN OR BRING A CLASS ACTION.
- Time to File. ANY DISPUTE THAT YOU MAY HAVE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DISPUTE ACCRUES, OTHERWISE, SUCH DISPUTE IS PERMANENTLY BARRED WHERE PERMITTED BY LAW.
- Conflict. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the code of procedure established by the AAA, the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.
- Equitable Relief. Notwithstanding anything herein to the contrary, User acknowledges that any breach of the terms of this Agreement, including your use of the Product in violation of the rights granted herein or infringement upon or misappropriation of any intellectual property rights of Ayogo or its licensors, would cause irreparable harm and significant injury to Ayogo and/or its licensors. As such, the Parties agree that Ayogo has the right to enforce the terms of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice and in addition to any other rights and remedies that may be available to Ayogo.
- Export Control. Unless otherwise specified, the Product, content, and other related materials for the Product are available for use in Canada. Ayogo makes no representations or warranties that the Product, App, or other related material accessible via the Product is appropriate or available outside of Canada.
- Headings. The headings used herein are for convenience only and will not limit the interpretation of any section hereof.
- Force Majeure. Neither Party shall be liable for failure to fulfill its obligations under this Agreement due to any major unforeseeable event beyond the control of, and not caused by the fault or negligence of, such Party or its agents, including, without limitation, an act of God, fire, earthquake, flood, explosion, action of the elements, war, terrorism, insurrection, riot, mob violence, sabotage, inability to procure equipment, facilities, materials, or supplies in the open market, failure of power, failure of telecommunications systems or infrastructure, strike, lockout, action of labor unions, condemnation, requisition, law or order of government, civil or military authorities; provided that the Party failing to perform in such event shall promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.
- Consent to Do Business Electronically. We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor Ayogo will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.
- Assignemnt. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.
- Survival. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
- Contact InformationIf you have any questions regarding these terms and conditions, you may contact us at:
Ayogo Health Inc.
ATTN: Privacy Officer
577 Great Northern Way, Suite #230
Canada V5T 1E1