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Terms of Service

SOFTWARE AS A SERVICE AGREEMENT

THIS SOFTWARE AS A SERVICE AGREEMENT (THIS "AGREEMENT") IS RELATED TO AND DEEMED INCORPORATED INTO THE SUBSCRIPTION AGREEMENT WHICH IS COMPLETED ONLINE UPON SIGNING UP FOR IAPOTHECA’S SERVICES AND IS (THE "SUBSCRIPTION AGREEMENT") BETWEEN iAPOTHECA HEALTHCARE INC. ("iAPOTHECA") AND THE CLIENT SPECIFIED IN THE SUBSCRIPTION AGREEMENT ("CLIENT"). CLIENT’S SUBMISSION OF A SUBSCRIPTION AGREEMENT SHALL BE DEEMED CLIENT’S AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. DEFINITIONS

For the purposes of this Agreement, the terms below shall have the meanings defined below. Additional terms are defined in the preamble above and throughout this Agreement.

  • (a)    "Client Content" means any and all data, including Client patient and customer information and data, trade-marks, logos, files, images, text or other content that may be provided by Client or its Registered Users for use in conjunction with the Software or Services.
  • (b)    "Delivery Partner" means iApotheca’s network of independent delivery service providers.
  • (c)    "SaaS Term" means the period during which the Services and access to the Software will be provided by iApotheca to Client as set forth herein.
  • (d)    "Services" means the hosting, maintenance, system administration, system management and other services provided by iApotheca pursuant to the Subscription Agreement and this Agreement.
  • (e)    "Software" means iApotheca’s proprietary software specified in the Subscription Agreement.
  • (f)    "User Documentation" means the iApotheca user documentation relating to the Services and the Software.

2. WEB-BASED LICENCE

iApotheca grants to Client, and Client accepts, a non-transferable, non-exclusive licence and right to access the Software via the Internet and use the Software and the User Documentation only as authorized in this Agreement, for its own purpose and operations, during the SaaS Term. Client acknowledges that its access and use of the Software will be web-based and from time to time accessed through mobile apps only. The Software will not be physically provided to Client in any form of media and will not be installed on any servers or other computer equipment owned or otherwise controlled by Client. Rather, the Software will be hosted by or on behalf of iApotheca (as described in Section 3) and accessed and used by Client through the use of the Internet and Client’s computers.

3. ACCESSIBILITY

  • (a)    Software as a Service. iApotheca will make the Software available for Client’s use during the SaaS Term on Client’s computer systems that meet iApotheca’s system recommendations. iApotheca will provide Client with secure access to the latest supported version of the Software via the Internet from the hosting facility that iApotheca either owns or leases from a third party hosting provider during the availability periods described in this Agreement except for scheduled system back-up or other maintenance as described in this Agreement. iApotheca and Client agree to comply at all times with the terms of use of any third party hosting service providers.
  • (b)    Access by Registered Users. Access to the Software and use of the Service shall only be granted to registered users identified by Client (each, a "Registered User") and each Registered User shall create and register an account by providing an email address, username and password. By so registering to use the Software and the Service, each Registered User acknowledges (and it shall be the sole responsibility of Client to ensure) that it has read and understands and agrees to be bound by the terms of this Agreement.
  • (c)    Responsibilities of Registered Users with respect to Accounts. Each Registered User is solely responsible for maintaining the confidentiality and security of its username and password, and shall be responsible for all use of its username and password, and Client shall also be responsible for all activity emanating from such accounts whether or not such activity was authorized by Client. If a username or password is lost or stolen, or if Client believes that an account has been accessed by unauthorized third parties, Client shall notify iApotheca immediately. iApotheca reserves the right to disallow, cancel, remove or reassign certain usernames in appropriate circumstances, as determined by iApotheca in its sole discretion and may, with or without prior notice, suspend or terminate a Registered User or an account if activities occur on the account which, in iApotheca’s sole and absolute discretion, would or might constitute a violation of this Agreement or violation of any applicable laws or regulations or the rights of any third party.

4. FEES AND PAYMENT

Client shall pay a "Subscription Fee" during the SaaS Term as set forth in the Subscription Agreement. The Subscription Fee is fixed for the Initial Term (as defined below). The Subscription Fee for any Renewal Term (as defined below) may be subject to reasonable inflationary adjustments at the time of renewal, which will be disclosed to Client.

5. TERM AND TERMINATION

  • (a)    Initial Term; Renewal Terms. The SaaS Term will commence on the "Commencement Date" indicated in the Client and iApotheca’s acceptance of the Subscription Agreement. The SaaS Term shall continue in effect for the period set out in the Subscription Agreement following the Commencement Date (the "Initial Term"), unless sooner terminated as provided in this Agreement. Upon expiration of the Initial Term, the SaaS Term shall automatically renew for successive renewal terms equivalent to that of the initial subscription term length (each, a "Renewal Term") unless sooner terminated as provided in this Agreement, or unless either party gives written notice of termination to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term. Upon such termination of this Agreement, Client will have continued access to the Software only up to and including the date to which any fees have been paid by Client to iApotheca.
  • (b)    Termination for Breach. Notwithstanding Section 5(a), either Client or iApotheca may terminate the SaaS Term as a result of a material breach of this Agreement by the other party, if such party provides written notice to the other party of the material breach and such material breach is not resolved within thirty (30) days of notification, or, in the case of a failure to pay fees in a timely manner by Client, a ten (10) day period. For purposes of this Section 5(b), in addition to any failure to pay fees in a timely manner, a material breach shall also include (but not be limited to) a party’s assignment for the benefit of its creditors generally, or if such party is declared bankrupt, or if a petition in bankruptcy is filed against such party, or if such party files an assignment in bankruptcy or makes a proposal to its creditors or takes, or attempts to take, advantage of any legislation for the relief of bankrupt or insolvent debtors, or if a receiver, trustee, manager or any official having similar powers is appointed or assumes direction with respect to such party or any portion of its business affairs or property.
  • (c)    Consequences of Termination. Upon any termination of this Agreement, iApotheca reserves the right to delete any and all information in all Registered User accounts, at iApotheca’s sole discretion, at any time after the date that is thirty (30) days after the termination of this Agreement; provided that iApotheca, if requested by Client, shall return to Client any such information during such thirty (30) day period in a form reasonably requested by Client and at Client’s sole expense. Notwithstanding any other provision of this Agreement and without limiting Section 19 below relating to exclusion and limitation of liability, iApotheca will not be liable to Client for any cost, expense, damage or loss whatsoever for terminating this Agreement.

6. MAINTENANCE WINDOWS

iApotheca and/or its third party hosting or telecommunications providers may perform system maintenance, from time to time ("Maintenance Windows"), and iApotheca will announce all planned Maintenance (5) days in advance if it is going to disrupt the regular use of the platform. Notifications of planned system Maintenance Windows that affect the use of the platform shall be delivered to Client’s primary contact (designated in the Subscription Agreement) via email. Client understands that iApotheca reserves the right to conduct maintenance or updates that don’t affect the regular use of the platform at any time without notice. Client understands and agrees that there may be instances where iApotheca and/or its third party hosting or telecommunications providers need to interrupt access to the Software and Services without notice in order to protect the integrity of the Software or Services due to security issues, virus attacks, spam issues or other unforeseen circumstances.

7. AVAILABILITY

  • (a)    Hours of Operation. iApotheca’s standard hours of operation are weekdays between 9:00 a.m. and 5:00 p.m. EST. Any deadlines or Services as requested by Client requiring iApotheca to operate outside of the standard hours of operation will be subject to additional fees.
  • (b)    Performance Monitoring. iApotheca will monitor performance indicators on the systems and network infrastructure (its own and that of third party suppliers) in order to gauge the overall performance of its hosting services, and will take reasonable steps to address systems and network infrastructure as required to maintain application performance. iApotheca will use an internal system to measure whether the Software is available, and Client agrees that this system will be the sole basis for resolution of any dispute that may arise between Client and iApotheca regarding this Agreement. iApotheca will not systematically monitor Client Content, but iApotheca reserves the right to review Client Content from time to time in its discretion to ensure the performance of the systems, network infrastructure and the Software.
  • (c)    No Responsibility for Third Party Hosting Services. iApotheca shall not be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay or failure is due to termination of access to the servers of a third party hosting service contracted by iApotheca.

8. EXPORTS UPON CANCELLATION

iApotheca shall provide a Client Content export in accordance with the following: Data exports will be made available within ten (10) days of the date of the retrieval request made to iApotheca. Expedited requests will incur a fee. As mentioned in section 5 (c) above, iApotheca reserves the right to delete all client data (30) days after termination of its services.

9. SUPPORT

The Services shall include the support services (if any) from iApotheca, wherein iApotheca will provide online, telephone, and email support to Client during the SaaS Term.

10. UPGRADES

iApotheca will occasionally release new versions of the Software which will be deployed onto the platform. Some of these upgrades may result in a service outage to ensure a stable release. Some features released in these upgrades may only be available at a certain subscription tier, or for an additional cost. iApotheca will try to provide as much notice as possible to Clients when there is a planned outage. For upgrades or releases not expected to result in service outage, there may be no notice.

11. COMMUNICATIONS

  • (a)    Client Primary Contact. Client shall identify and name an appropriate individual, with corresponding contact information, including email address, as the "Primary Contact" with whom iApotheca should communicate matters regarding the Software and Services, such as maintenance notifications, and who has the authority to make Services requests including release of Client Content, restoration of data and other configuration changes. By default, the Client contact set forth in the Subscription Agreement shall be the Primary Contact.
  • (b)    Email Communications. In addition to general account, billing and service communications, iApotheca will, from time to time, issue email notifications relating to the Software and the Services including, but not limited to, newsletters, announcements, promotional offers, and surveys. By entering into this Agreement, Client is providing its consent to receive such email communications from iApotheca. Client may opt out of iApotheca’s mailing list at any time by following the ‘unsubscribe’ instructions contained within such communications.
  • (c)    Exceptions. Client will not be able to opt-out of critical service notifications, renewal, billing and account notifications, scheduled downtime notifications or any other communications deemed to be an essential part of the Software or the Services or the delivery thereof.

12. CLIENT RESPONSIBILITIES

Client is responsible for maintaining its computers or other devices which access the System and the Software and for providing Registered Users network access to the Software. Client is also responsible for ensuring that its Registered Users comply with this Agreement with respect to use of the Software and Services. Client shall provide connectivity and security to the Internet for its Location for purposes of providing adequate access to the Software. iApotheca shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by Client in accessing the Internet to access the Software. Client shall provide adequate industry “best practice” standards to ensure reasonable security for integration between Client’s Location and Software hosted by iApotheca. Client shall provide accurate input information in the manner reasonably prescribed by iApotheca in connection with the Software and Services provided under this Agreement. Client shall advise iApotheca of any changes to Client’s operations, Primary Contact, or other information that would require a change in the support, operation or configuration of the Software or delivery of the Services. Client shall be responsible for ensuring that any Client Content is accurate, not corrupt in any way, and does not contain any viruses.

13. OTHER RESTRICTIONS

Use of the Software and Services is restricted to use by the Client and its Registered Users only, and only for Client’s internal business purposes. Client may not use the Software for the benefit of any third parties or provide other access or use of the Software to third parties. In addition, Client may not, directly or indirectly: (a) violate, circumvent or attempt to violate or circumvent any data security measures employed by iApotheca or any third party hosting service contracted by iApotheca; (b) access or attempt to access data or materials which are not intended for Client’s use; (c) log into or attempt to log into a server or account which Client or a Registered User is not authorized to access; (d) attempt to scan or test the vulnerability of iApotheca’s servers or the servers of any third party hosting service contracted by iApotheca, system or network, or attempt to breach iApotheca’s data security or authentication procedures; (e) sell or transfer, or offer to sell or transfer, any account to any third party; (f) collect or attempt to collect personal data, or any other kind of information about other users including, without limitation, through spidering or any form of scraping; (g) sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the Software, the Services (or any portion thereof) or the User Documentation (or any portions thereof), to any third party, and any attempt to do so is null and void; (h) copy, reproduce, publish or distribute all or any part of the Software or the User Documentation; (i) use the Software or any part of it on a hosting, ASP, service bureau or similar basis to process the data of others; or (j) reverse engineer, disassemble, decompile or make any attempt to ascertain, derive or obtain the source code for the Software. The Software and Client Content shall not be used for any commercial purpose beyond the functionality driven by the Software. Client will not use the Software or Services to take any actions that: (k) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (l) violate any applicable law, statute, ordinance or regulation (including those regarding export control); (m) are defamatory, trade libelous, threatening, harassing or obscene; or (n) constitute unauthorized entry to any machine accessible via the network. Client shall not interfere with or disrupt network users, services or equipment with the intent to cause an excessive or disproportionate load on iApotheca’s or its third party vendor(s)’s infrastructure by means of (but not limited to) distribution of unsolicited bulk emails or chain letters, viruses, Trojan horses, worms or other similar harmful or deleterious programming routines. iApotheca may, in its sole discretion, revise these service use restrictions upon thirty (30) days’ prior notice to Client. Without limitation to any other rights or remedies of iApotheca under this Agreement, iApotheca reserves the right to investigate any situation that appears to involve any of the above, and may report such matters to, and co-operate with, appropriate law enforcement authorities in prosecuting any users who have participated in any such violations.

Client acknowledges that iApotheca is not a delivery company or a common carrier. Deliveries may be provided by iApotheca’s Delivery Partners. Delivery Partners have entered into agreements with iApotheca which require them to comply with all applicable federal, provincial and local laws, rules, and regulations including, without limitation, traffic laws, requirements of the applicable motor vehicle agency, and applicable insurance requirements. By accessing iApotheca’s web-based platforms and utilizing the Software for the delivery of products, the Client agrees and acknowledges that Delivery Partners are solely responsible for, and iApotheca shall not be liable or responsible for, the delivery services provided to the Client by any Delivery Partner or any subcontractor of Delivery Partners, or any acts, omissions, errors, or misrepresentations made by any Delivery Partner. For clarity, iApotheca shall not be responsible for any losses, fees or expenses whatsoever incurred by the Client in connection with the provision of (or the failure to provide) delivery services to the Client by any Delivery Partner.

14. INTELLECTUAL PROPERTY RIGHTS

  • (a)    iApotheca Ownership of Software and Services. Client acknowledges and agrees that the Software, Services and User Documentation are proprietary products and services and that all right, title and interest in and to the Software, Services and User Documentation, including all associated intellectual property rights, are and shall at all times remain with iApotheca and its third party licensors. The Software contains trade secret and proprietary information owned by iApotheca or its third party licensors and is protected by copyright laws and international trade provisions. Client must treat the Software like any other copyrighted material and Client may not copy or distribute the Software or the User Documentation, electronically or otherwise, for any purpose.
  • (b)    Client Ownership of Client Content. Client represents and warrants to iApotheca that Client owns or otherwise has the right to use the Client Content as contemplated by this Agreement. iApotheca acknowledges and agrees that Client owns all Client Content. iApotheca shall not use the Client Content except directly in furtherance of the purposes of this Agreement. iApotheca shall acquire no right, title or interest in Client Content as a consequence of this Agreement. All final data produced as a result of the input of Client Content into the Software shall be the sole and exclusive property of Client. Client shall be the sole owner of all such rights in any form and in all fields of use known or hereafter existing. Client may transfer such rights or use such rights for any purpose without further payment to iApotheca. Upon Client’s request, Client is entitled to, and iApotheca will provide Client, at Client’s expense, all Client Content, in a format reasonably requested by Client. Client Content will be hosted on secured iApotheca or third party servers in Canada who have contracted with iApotheca. Client Content shall be kept confidential by iApotheca in accordance with the terms of this Agreement, provided that iApotheca may disclose Client Content is in aggregate non-personally identifiable form.
  • (c)    Grant of Licence to Client Content. Client hereby grants to iApotheca a non-exclusive right to use all Client Content as necessary solely for the purposes of providing the Software and Services to Client and its authorized users pursuant to this Agreement.
  • (d)    iApotheca Ownership of Data. All data that is not Client Content belongs to iApotheca, it's partners, contractors, or service providers (collectively, the "iApotheca Data"). Client agrees that iApotheca owns all iApotheca Data. Client shall have a non-exclusive license to use the iApotheca Data during the term of SaaS Term only as necessary to use the Software and the Services. Notwithstanding anything set forth herein, Client shall not, as a result of this Agreement, acquire any property or other right, claim or interest, including any patent right or copyright interest in any data, information or technology which is proprietary to or has been licensed to iApotheca which is used to deliver the Services, the Software or other technology used to deliver the Software or Services, any interim data created therefrom or any of the information, systems, processors, equipment, computer software, derivative works, service marks or trademarks of iApotheca, whether created before, during or after the performance of this Agreement.

15. PERSONAL INFORMATION

  • (a)    Personal Information. Client hereby provides and grants iApotheca with the right to access, electronically process and otherwise use Personal Information, in the manner and to the extent that is specifically and expressly required to grant access to the Software and provide the Services. Client represents and warrants that Client has obtained the required consents concerning the Personal Information disclosed to Client and permitting its use by iApotheca as provided herein.
  • (b)    Client Ownership of Client Content. Client represents and warrants to iApotheca that Client owns or otherwise has the right to use the Client Content as contemplated by this Agreement. iApotheca acknowledges and agrees that Client owns all Client Content. iApotheca shall not use the Client Content except directly in furtherance of the purposes of this Agreement. iApotheca shall acquire no right, title or interest in Client Content as a consequence of this Agreement. All final data produced as a result of the input of Client Content into the Software shall be the sole and exclusive property of Client. Client shall be the sole owner of all such rights in any form and in all fields of use known or hereafter existing. Client may transfer such rights or use such rights for any purpose without further payment to iApotheca. Upon Client’s request, Client is entitled to, and iApotheca will provide Client, at Client’s expense, all Client Content, in a format reasonably requested by Client. Client Content will be hosted on secured iApotheca or third party servers in Canada who have contracted with iApotheca. Client Content shall be kept confidential by iApotheca in accordance with the terms of this Agreement, provided that iApotheca may disclose Client Content is in aggregate non-personally identifiable form.
  • (c)    Use, Collection and Disclosure by iApotheca. iApotheca will collect, use and disclose Personal Information provided by Client: (i) solely for the reasonable purposes of providing access to the Software and deliver of the Services; (ii) only to the extent that such collection, use or disclosure is necessary for such purposes; and (iii) otherwise in accordance with the Privacy Acts. For greater certainty, in performing their respective responsibilities hereunder, both Client and iApotheca will comply with the Privacy Acts as well as their own respectively internal privacy policies.

16. WARRANTIES

  • (a)    Mutual Warranties. Each party represents and warrants that: (i) it has the right and power to enter into this Agreement; and (ii) it will comply with any applicable laws and regulations pertaining to this Agreement.
  • (b)    iApotheca Limited Warranty. During the SaaS Term, iApotheca represents and warrants
    • (i)    the Software will perform substantially in accordance with the functional specifications contained in the User Documentation or otherwise provided to the Client (the "Software Warranty").
    • (ii)    the Services shall be provided by qualified professionals and performed in a professional and workmanlike manner in accordance with recognized industry standards (the "Services Warranty").
  • (c)    Client Content Warranty. Client represents and warrants that all Client Content will be accurate, complete, and current.
  • (d)    Remedies. During the SaaS Term, if the Software fails to comply with the Software Warranty, iApotheca’s entire liability and Client’s exclusive remedy will be to repair or replace the Software. This limited warranty is void if failure of the Software has resulted from accident, abuse, misuse or negligence of any kind in the use, handling or operation of the Software, including any use not consistent with the User Documentation or iApotheca training. iApotheca’s entire liability and Client’s exclusive remedy for any breach of the Services Warranty shall be iApotheca repeating the Services performed.
  • (e)    Disclaimers. EXCEPT AS PROVIDED IN THIS SECTION 16, THE SOFTWARE AND THE SERVICES HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. CLIENT RECOGNIZES THAT THE “AS IS” CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH iAPOTHECA WOULD NOT HAVE AGREED TO ENTER INTO THIS AGREEMENT. iAPOTHECA DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT IN USING THE SOFTWARE OR THE SERVICES, OR THAT THE SOFTWARE OR THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE AND THE DELIVERY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. iAPOTHECA EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE AND THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING THE SOFTWARE OR THE SERVICES SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF iAPOTHECA WHATSOEVER. CLIENT ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.

17. CONFIDENTIAL INFORMATION

  • (a)    Definition. The term "Confidential Information" shall mean: (i) any and all information which is disclosed by either party ("Owner") to the other party ("Recipient") verbally, electronically, visually or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms including, without limitation, the pricing of the Software and/or the Services and any proposals or other documents that preceded this Agreement. Confidential Information may include, but not be limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, client lists, employee information, financial information, confidential information concerning any of Owner’s past, current or possible future programs, and confidential information concerning Owner’s business or organization, as Owner has conducted it or as Owner may conduct it in the future. In addition, Confidential Information may include information concerning any of Owner’s past, current, or possible future products or methods, including information about Owner’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing and/or software (including third party software).
  • (b)    Treatment of Confidential Information. Owner’s Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient to any third party, except as authorized by the Owner. This Agreement imposes no obligation upon the parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (i) was in the possession of, or was rightfully known by, the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (ii) is or becomes generally known to the public without violation of this Agreement; (iii) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to the Owner and provided further that diligent efforts are undertaken to limit disclosure.
  • (c)    Rights and Duties. Recipient shall not obtain, by virtue of this Agreement, any right, title or interest in any Confidential Information of Owner. Within fifteen (15) days after termination of the SaaS Term, each party shall certify in writing to the other that all copies of Confidential Information in any form, including partial copies, have been destroyed, returned or used solely as Owner so directs.
  • (d)    Survival. The terms of this Section 17 shall survive termination of the SaaS Term. If the parties have executed a separate agreement that contains confidentiality terms prior to or contemporaneously with entering into the Subscription Agreement (and thereby, this Agreement), those separate confidentiality terms shall remain in full force to the extent they do not conflict with this Agreement.

18. INDEMNITY

  • (a)    By iApotheca. iApotheca shall indemnify and hold Client harmless from and against any third party claims that the Software made available to Client by iApotheca infringes any Canadian patent or copyright during the SaaS Term, provided that iApotheca is given prompt notice of such claim and is given information, reasonable assistance and the sole authority to defend or settle said claim. In the defence or settlement of any claim relating to infringing Software, iApotheca shall, in its reasonable judgment and at its option and expense: (i) obtain for Client the right to continue using the Software; (ii) replace or modify the Software so that it becomes non-infringing while giving substantially equivalent functionality; or (iii) if iApotheca determines the remedies in (i) or (ii) are not commercially reasonable, as its sole obligation, terminate the SaaS Term. iApotheca shall have no liability to indemnify Client to the extent: (iv) the alleged infringement is based on infringing information, data, software, applications, services or programs created or furnished by or on behalf of Client; (v) the alleged infringement is the result of a modification made by anyone other than iApotheca; or (vi) Client uses the Software other than in accordance with this Agreement or any documentation delivered by iApotheca. This Section 18(a) states iApotheca’s entire liability and Client’s sole and exclusive remedy for claims relating to infringement.
  • (b)    By Client. Client shall indemnify and hold iApotheca harmless from and against any third party claims: (i) resulting from Client’s use of the Software or Services; (ii) that any Client Content infringes or violates any rights of third parties including, without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licences; or (iii) arising from or relating to Client’s or its users’ failure to comply with this Agreement.
  • (c)    Mutual Indemnity. Each party ("Indemnifying Party") shall indemnify and hold the other party ("Indemnified Party") harmless against any third party claim, including costs and reasonable lawyer’s fees, in which the Indemnified Party is named as a result of the negligent or the intentional acts or omissions by the Indemnifying Party, its employees or agents, while performing its obligations under this Agreement. This indemnification obligation is contingent upon the Indemnified Party providing the Indemnifying Party with prompt written notice of such claim, information, all reasonable assistance in the defence of such action and sole authority to defend or settle such claim.
  • (d)    Survival. The terms of this Section 18 shall survive the termination of the SaaS Term.

19. LIMITATION OF LIABILITY

EXCEPT FOR THE INDEMNIFICATION FOR THIRD PARTY CLAIMS PROVIDED IN SECTION 18, iAPOTHECA’S MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT, CONTRACT OR OTHER FORM OF LIABILITY, SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT DURING THE ONE-YEAR PERIOD PRECEDING NOTICE TO iAPOTHECA OF CLIENT’S LOSS. IN NO EVENT SHALL iAPOTHECA BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST DATA, LOST PROFITS, OPPORTUNITIES OR CONTRIBUTIONS, LOSS OF USE, GOODWILL, BUSINESS INTERRUPTION OR OTHER PECUNIARY OR NON-PECUNIARY LOSS, HOWEVER ARISING, EVEN IF iAPOTHECA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN. CLIENT ACKNOWLEDGES THAT THE FEES PAID BY IT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT iAPOTHECA WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

20. AUDIT RIGHTS

iApotheca shall have the right to audit Client’s use of the Software and compliance with this Agreement at Client’s premises from time to time in iApotheca’s sole discretion. Client agrees to permit iApotheca to have access to its facilities and personnel during normal business hours for the purpose of conducting such audits. In the event such audit reveals Client is exceeding the scope of use permitted by this Agreement, then Client shall pay iApotheca’s additional fees for such use (at the then-current list price) and reimburse iApotheca for the costs of the audit.

21. GENERAL

  • (a)    Deliveries. In calculating the number of deliveries the client has used per monthly period, let it be understood that the term includes all attempted and successful deliveries; accidental entries into the platform that are subsequently deleted will not be added to the number of deliveries used. In the event that this should be called into question, iApotheca reserves the right to audit client accounts to ascertain proper use of deliveries within the platform.
  • (b)    Notices. Any notice or other communication required or permitted to be given in this Agreement shall be in writing and shall be delivered in person, transmitted by electronic mail or sent by registered mail, charges prepaid, to the addresses contained in the Subscription Agreement. Any such notice or other communication shall be deemed to have been given and received on the day on which it was delivered or transmitted or, if mailed, on the third business day following the date of mailing; provided, however, that if at the time of mailing or within three business days thereafter there is or occurs a labour dispute or other event that might reasonably be expected to disrupt the delivery of documents by mail, any notice or other communication hereunder shall be delivered or transmitted by means of electronic mail as described. Either party may at any time change its address for service from time to time by giving notice to the other parties in accordance with this Section 21(a).
  • (c)    Assignment. Neither party shall assign this Agreement without the prior written consent of the other party, which consent may be unreasonably withheld. Any purported assignment in contravention of this Section 21(b) is null and void. Subject to the foregoing, this Agreement will bind and enure to the benefit of any permitted successors or assigns.
  • (d)    Entire Agreement. This Agreement together with the Subscription Agreement (including any reference to such other agreements, documents, and/or policies incorporated therein) constitutes the entire agreement between the parties with respect to all of the matters herein and that this Agreement supersedes all prior agreement or contemporaneous agreements or representations, written or oral, regarding such matters.
  • (e)    Amendments. Except as expressly provided in this Agreement, no amendment, supplement, restatement, replacement or termination of any provision of this Agreement is binding unless it is in writing and signed the parties.
  • (f)    Relationship of Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and Client does not have any authority of any kind to bind iApotheca in any respect whatsoever.
  • (g)    Waiver. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all the parties to this Agreement entitled to grant the waiver. No failure to exercise and no delay in exercising, any right or remedy, under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision.
  • (h)    Severability. If any Section or any portion of any Section of this Agreement is determined to be unenforceable or invalid for any reason whatsoever that unenforceability or invalidity shall not affect the enforceability or validity of the remaining portions of this Agreement and such unenforceable or invalid Section or portion thereof shall be severed from the remainder of this Agreement.
  • (i)    Governing Law. All questions concerning the validity, interpretation and performance of this Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement shall be governed by and decided in accordance with the laws of the Province of Ontario, as such laws are applied to contracts between Ontario residents that are entered into and performed entirely within the Province of Ontario.
  • (j)    Jurisdiction and Venue. The parties hereby submit and consent to the exclusive jurisdiction of any court located within the Province of Ontario and irrevocably agree that all actions or proceedings relating to this Agreement, shall be litigated in such courts, and each of the parties waives any objection which it may have based on improper venue or forum non conveniens to the conduct of any such action or proceeding in such court.
  • (k)    Headings for Convenience Only. The division of this Agreement into sections, subsections, paragraphs, subparagraphs and clauses and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
  • (l)    Number and Gender. Unless otherwise specified, words importing the singular include the plural and vice versa and words importing gender include all genders.