Terms and Conditions

Last updated: August 2020

ONCALL HEALTH INC.

MASTER SUBSCRIPTION AND SERVICES AGREEMENT

PLEASE READ THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT (THIS “MSA”) CAREFULLY.

BY ACCEPTING A SERVICE ORDER (AS DEFINED HEREIN) THAT INCORPORATES THIS MSA, CUSTOMER (AS DEFINED HEREIN) AGREES TO FOLLOW AND BE BOUND BY THIS MSA (INCLUDING THE LINKED DOCUMENTS REFERENCED HEREIN).

EACH SERVICE ORDER WILL BE GOVERNED BY THE TERMS OF THIS MSA AND TOGETHER WITH THIS MSA, FORMS THE ENTIRE AGREEMENT OF THE PARTIES (“AGREEMENT”).

In consideration of the mutual promises contained herein, Customer and OnCall (as defined herein) hereby agree to the following:

1. DEFINITIONS.

• “API” means a set of programming instructions and standards intended to be used as an interface by software components to communicate with each other.
• “Customer” means a person, other than an Authorized User (as defined herein) or a Patient (as defined herein), who is authorized by OnCall to access and use the Services (as defined herein) pursuant to a Service Order
• “OnCall” means OnCall Health , a Canadian corporation with offices at 37 Bulwer St., Toronto, ON M5T1A1.
• “Personal Information” means personal information or personal health information (as defined by applicable privacy law).
• “Platform” means the OnCall standard software-as-a-service offering that is to be used by Customer and hosted by OnCall. The term “Platform” shall include any modifications, enhancements, APIs, integration or related applications thereto, including any that are further described in any applicable Service

2. SCOPE.

This MSA governs:

(a) Customer’s access to and use of OnCall’s online subscription services including any ancillary Customer support services (the “Subscription Services”) delivered as a subscription to an operating instance of OnCall’s online Web-based Platform (“Instance”), all as provided for in an order form executed by both parties (“Order”);

(b) OnCall’s provision of professional services related to the Subscription Services (the “Professional Services”) identified in a statement of work signed by both parties (“SOW”); and (c) OnCall’s provision of payment services to help Customer process payments from Patients (“Payment Services”). Subscription Services, Professional Services and Payment Services are collectively referred to as the “Services” and the Orders and SOWs are collectively referred to as the “Service Orders”.

3. SUBSCRIPTION SERVICES.

• Access to Subscription Services. OnCall will make the Instance and Services available to Customer pursuant to this Agreement during the Term (as defined herein), solely for the internal business purposes of Customer (the “Permitted Purpose”).
• User Access to Subscription Services. Subject to any usage limits (including those contractual service limits and quantities set forth in a Service Order), Customer may permit its employees, contractors or agents (“Authorized Users”) to access and use the Subscription Services for the Permitted Purpose in accordance with the Agreement. Additionally, Customer and/or Authorized Users may invite Customer’s patients to access the Instance to view, visit, post, or comment on Customer Data (as defined herein) or participate in activities and these individuals shall be referred to as “Patients”. Patients and Authorized Users shall be collectively referred to as the “Users”.
• User Accounts.
  • All Users (including Authorized Users) of the Subscription Services must sign up for an OnCall account (an “Account”). Users will submit the information, as OnCall may reasonably request, to the Instance.

    Customer is responsible for the creation, use and termination of, and for maintaining the confidentiality of all User log-in Account credentials and passwords (collectively, “IDs”) and will immediately notify OnCall of any unauthorized use of IDs or any other breach of security relating to the Subscription Services known to Customer. IDs cannot be shared or used by more than one User and OnCall will not be liable for any activities undertaken by anyone using a User’s ID.

    OnCall reserves the right, in its sole discretion, to change or disable any of the IDs used in connection with the Subscription Services where OnCall suspects there has been an attempted or actual security breach or to ensure the security of the Subscription Services.

  • There are three types of Accounts available to Authorized Users:
    • Admin – accounts of Authorized Users with the ability to manage schedules and access records for all Providers within Customer’s organization.
    • Coordinator – accounts of Authorized Users with the ability to manage schedules, availability and appointments on behalf of one or more Coordinators have limited access to Provider records.
    • Provider – accounts of Authorized Users with the ability to schedule, set availability, host appointments or interactions and, in some cases, store notes and files to the instance. 

• Restrictions. Customer will not, and will not permit any third party to, directly or indirectly:

  (a) access or use the Services, except for the Permitted Purpose;
  (b) allow any third party to access the Services, except as expressly permitted herein;
  (c) modify, adapt, alter or translate the Subscription Services;
  (d) sublicense, lease, sell, resell, rent, share, loan, distribute, transfer or otherwise commercially exploit the Subscription Services or allow the use of the Subscription Services on behalf of or for the benefit of any third party;
  (e) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Subscription Services;
  (g) create derivative works based on the Services or access or use the Services to develop or create a competitive service or product;
  (h) attempt to circumvent any security device or feature of the Subscription Services (including contractual service limits and quantities set out in a Service Order);
  (i) load or penetration test the Subscription Services, except as expressly permitted; and
  (j) use the Subscription Services to store or transmit any virus, worm, trap door, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, or to erase or otherwise harm a party’s software, hardware, systems or data (“Malicious Code”).

• OnCall Responsibilities. OnCall will:

  (a) provide Customer the support services (“Support Services”) set out in the Technical Support Policy found at: https://bit.ly/2Pt0kHC;
  (b) make the Subscription Services available to Customer in accordance with the applicable Service Orders and Service Level Agreement (“SLA”) found at https://bit.ly/2PnyVH8;
  (c) host the Subscription Services, provided that nothing herein shall be construed to require OnCall to provide, or bear any responsibility, for any telecommunications or computer network hardware required by Customer or any Authorized User to access the Subscription Services from the Internet;
  (d) provide the Services in accordance with laws and government regulations applicable to OnCall in its provision of the Services; and
  (e) be responsible for the performance of OnCall’s personnel (including employees, agents and contractors) and their compliance with OnCall’s obligations under this Agreement.

• Customer Responsibilities. Customer will:

  (a) ensure that any and all access and use of the Services is in compliance with the Acceptable Use Policy found at https://bit.ly/3keiXgC, this Agreement and laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to Customer (including applicable privacy, data protection and anti-spam laws);
  (b) be responsible for use of the Instance and the Services by Users; and
  (c) provide the information and assistance (if any) specified in the applicable Service Order to enable OnCall to provide the Services to Customer.

• API. OnCall provides access to its API as part of its Subscription Services at no additional fee during the Subscription Term of the applicable Order(s) only for the purpose of interacting with the Subscription Services as allowed by the API. Access to the API is subject to this MSA and any technical and functional information made available to Customer with the API.

  The API is provided on an ‘as is’ and ‘when available’ basis and OnCall has no liability to Customer because of any change, temporary unavailability, suspension or termination of access to the API. Furthermore, OnCall is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by, or transmission to, a Third Party Service (as defined herein) and is not responsible for the privacy, security or integrity of that Customer Data to the extent it is transmitted out of OnCall’s systems. When APIs are updated, Customer may be required to implement and use the most current version of the API.

  Access credentials may not be used by more than one individual but may be transferred from one individual to another if the original user is no longer using the API. Customer shall report to OnCall any security flaws discovered in the API or any actual or suspected unauthorized access to the API using Customer’s credentials. Where a third party is accessing the API without authorization, Customer will cooperate with OnCall in the enforcement and protection of OnCall’s rights and Customer’s access to such API may be suspended until such unauthorized activity is resolved to OnCall’s

4. THIRD PARTY SERVICES.

OnCall or third parties may make available to Customer for purchase access to or use of third party software services, applications or functionality that link to, interoperate with, are used in conjunction with, or are incorporated into and resold through the Subscription Services (“Third Party Services”).

Customer acknowledges and agrees that OnCall does not own or control such Third Party Services. The Third Party Services are made available as a convenience only and are not part of the “Subscription Services” or subject to any of the warranties (whether express or implied), service commitments or other obligations with respect to Subscription Services hereunder.

Moreover, the Third Party Services providers are not partners, agents or representatives of OnCall and it is up to Customer to decide whether to use or enable these Third Party Services and Customer must rely on its own skill and judgement in electing to do business with such third parties. OnCall has no obligation to monitor or maintain Third Party Services and may disable or restrict access to any Third Party Services at any time without notice.

Access to and use of any Third Party Services, including the availability thereof and uptimes related thereto, is at Customer’s own risk and is solely determined by the relevant Third Party Services provider and is subject to such additional terms and conditions applicable to such Third Party Services. Where applicable, Customer is solely responsible for maintaining appropriate accounts in good standing with the Third Party Services providers.

OnCall will have no liability or other obligation to Customer for such Third Party Services or Customer Data exported to a Third Party Service, including but not limited to any unavailability of any Third Party Services, or any Third Party Service provider’s decision to discontinue, suspend or terminate any Third Party services. 

5. PAYMENT SERVICES.

If Customer is using the Payment Services, then the following terms apply: https://bit.ly/3kf7lKA.

6. OWNERSHIP

• Rights in the Services. Subject to the limited rights expressly granted herein and excluding any Customer Data, (a) no other rights are granted to Customer hereunder and OnCall owns, retains and reserves all right, title and interest (including all copyright, patent, trade secrets and other intellectual property rights, whether registered or unregistered) in the Services, and to any concepts, methodology, project briefs, code, designs or other materials developed or created by OnCall, including modifications, improvements, developments, enhancements and derivative works howsoever created, even if unauthorized or on the request of or based on any Customer Data or any suggestion, idea or feedback, from Customer; and (b) no express or implied licence or right of any kind is granted to Customer regarding the Services, or any portion thereof, including any right to obtain possession of any source code, data or other technical material relating to the Services. Customer acknowledges that it is obtaining only a limited right to access and use the Services.
• Rights in the Deliverables. OnCall grants Customer a non-exclusive, worldwide, non-transferable right to use, solely for the Permitted Purpose associated with its access to the Services, and solely for the Term, the work product, reports and other materials developed or created by OnCall for Customer as a result of the Professional Services for which OnCall has received full payment (the “Deliverables”). Excluding any Customer Data, OnCall shall own all right, title and interest and any other intellectual property rights and ownership rights in and to the Deliverables.
• Rights in the Customer Data. As between the parties, Customer owns all right, title and interest in the content, information, materials and data collected on, submitted or uploaded to, or shared using the Subscription Services by or on behalf of Customer, including any materials provided by or belonging to Customer as used in the creation of an Instance and/or in the delivery of Professional Services and the content, information, materials and data submitted or generated by Users (the “Customer Data”).

  Customer is solely responsible for the accuracy, quality, reliability, content and legality of all Customer Data and for obtaining all the necessary licences, intellectual property rights, clearances, permissions, consents and authorizations for use of Customer Data in connection with the Services (and in particular as contemplated by this Section 6.3), including with any Third Party Services. Should OnCall deem any Customer Data either to be in breach of this MSA or to be reasonably expected to constitute grounds for OnCall’s exposure to civil or criminal liability, OnCall reserves the right, but does not assume the obligation, to remove such Customer Data from the Subscription Services or, if OnCall itself is unable to do so, to request the removal or editing of such Customer Data by Customer as OnCall sees fit.

  Customer will comply with any such request as soon as possible. Customer hereby grants OnCall a non-exclusive, worldwide, royalty-free right to (a) use, host, copy, store, transmit, modify, and display the Customer Data as necessary to exercise its rights under this Agreement and for the purpose of providing the Services (provided that any Customer Data that is or contains Personal Information is de- identified prior to such activities); and (b) to use the Customer’s trademarks, service marks, and logos as required to provide the Services (and in compliance with Customer’s branding guidelines).

  Without limiting the foregoing, OnCall will treat all Customer Data as Confidential informations.

• Rights in the Domain Name. For Customer-branded Instances, Customer is solely responsible for (a) ensuring that its chosen domain name for each Instance does not infringe or violate any trademark or intellectual property rights of others regardless of whether such domain name is conceived with the input or suggestion of OnCall; and (b) registering its chosen domain name.
• Publicity. Each party will obtain the other party’s prior written consent before making any public communication related to this Agreement or the Services.
• Usage Data/Statistical Data. To deliver, support, develop, test and improve the Services, OnCall may collect, store, analyze and interpret data elements associated with or provided in the use of the Services and APIs. OnCall will own all rights in such data and any algorithm, computational or cumulative results of such data. OnCall may use such data for the purpose of providing the Services, provided that it will aggregate and anonymize such data so that Customer or any person cannot be identified as the source of such data.

7. CONFIDENTIALITY, PRIVACY AND SECURITY

• Confidentiality. During the Term, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) non- public technical, business, marketing, proprietary, trade secret, Personal Information or other information in any form relating to the Disclosing Party’s business designated or reasonably understood to be confidential (“Confidential Information”).

  The Receiving Party agrees that it take reasonable precautions to protect the Confidential Information and will not use, or disclose it to any third party, except as expressly permitted in the Agreement. Access to Confidential Information will be limited to those of the Receiving Party’s employees and contractors who need such access for purposes consistent with the Agreement and who owe the Receiving Party an obligation of confidentiality with terms consistent with this MSA.

  Confidential Information excludes information that the Receiving Party can establish: (a) was known to it prior to receiving the same from the Disclosing Party, free of any restrictions; (b) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; (c) is acquired from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party. The foregoing exclusions do not apply to Personal Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is necessary to enforce its rights under the Agreement or is required by law or pursuant to a court or regulatory order, provided that (if permitted by law) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks a protective order.

• OnCall Security Obligations. OnCall will adhere to, in all material respects, its security processes and policies, and all privacy and data protection laws applicable to OnCall in its provisioning of the Services – noting that such compliance may depend on Customer’s compliance with Customer’s obligations hereunder, including pursuant to Section 3.6, 6.3 and 7.3). Unless expressly agreed to herein, OnCall will not be responsible for compliance with any specific requirements with respect to Customer’s industry.
• Customer Privacy Obligations. Customer is responsible for compliance with all privacy and data protection laws applicable to Customer and its use of the Services. Customer shall obtain the prior consent of each User to the collection, use and disclosure of their data in compliance with all applicable laws in all applicable jurisdictions of Customer and/or the Users. Subject to Section 7.2, OnCall disclaims any responsibility for the collection, use and/or disclosure of User data by Customer and its respective directors, officers, employees, contractors, agents and those for whom in law they may be responsible.
• Privacy Breach. If OnCall determines that there has been any incident of theft, loss or unauthorized use or disclosure of Personal Information forming part of the Customer Data, OnCall shall promptly notify Customer and provide reasonable cooperation with Customer in containing, investigating and remediating that incident.
• Prohibited Data. Customer will not upload to the Services or otherwise submit or make accessible to OnCall any financial account identifiers (e.g., credit card numbers or bank account numbers), government issued identifiers (e.g., social insurance numbers, health card numbers) or other types of sensitive data that is subject to specific or elevated data protection requirements (“Prohibited Data”), unless OnCall has expressly agreed that it can comply with such requirements. The foregoing shall not apply to health information for which the Services are intended.
• Express Consent. Customer consents to OnCall’s processing of Customer business contact information for business purposes including the provisioning of Authorized User Accounts, sending Service, sales and marketing communications and securing the Subscription Services.

8. FEES

• Fees. Customer will pay OnCall all fees and disbursements set forth in each Service Order (the “Fees”) in the currency specified in such Service Order.
• Payment Terms.
  • OnCall (or a third party payment processor) will charge Customer on a monthly basis for all Fees due with respect to the Services by credit card or by issuing an invoice. All amounts are due and payable as specified in the applicable invoice and if no payment terms are specified, payment terms are net 30 days from receipt of an invoice.
  • Where Customer pays the Fees by credit card, Customer’s payments may be processed on behalf of OnCall by a third party payment processor using their secure site. For greater certainty, where a third party payment processor is used, (i) Customer’s payment information will be sent to the third party payment processor; and (ii) Personal Information that Customer submits during the payment process is subject to the OnCall Privacy Statement  (Canada)(USA/International) (“Privacy Statement”). OnCall reserves the right at any time to reject, cancel or terminate any transaction, even if any payment in respect of any such transaction is accepted by OnCall’s third party payment processor.
  • All Fees are non-cancellable and non-refundable, except as expressly specified in this MSA. Quantities purchased cannot be decreased during the relevant Subscription Term. Unless otherwise expressly agreed by the parties in writing, any Fees paid will not offset any Fees due under any other Service Order. Non-payment or late payment of Fees which are not the subject of a written good faith dispute is a material breach of this MSA and, following the expiry of five days after written notice has been delivered to Customer, OnCall shall be entitled to withhold performance and discontinue the Services until all amounts due are paid in full. If any undisputed amount is overdue, those amounts may accrue interest at the rate of 1.5% per month of the outstanding balance or the maximum permitted by law, whichever is less, plus all expenses of collection.
• Taxes. The Fees are exclusive of, and Customer is responsible for payment of, all taxes, levies, duties, tariffs, assessments, export and import fees, or other similar local, state, provincial, federal or foreign jurisdiction governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes imposed by any jurisdiction arising from the payment of the Fees or OnCall’s provision of the Services, except taxes based on OnCall’s income, property or employees (collectively, the “Taxes”).

  If OnCall has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 8.3, OnCall will invoice Customer and Customer will pay that amount unless, prior to Customer’s purchase, Customer provides OnCall with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will make all payments of Fees to OnCall without reduction for any withholding taxes, except as required by law, and any such taxes imposed on payments of Fees to OnCall will be Customer’s sole responsibility and Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, OnCall receives an amount equal to the amount it would have received had no such deductions or withholding been made.

  Further, Customer will provide OnCall with official receipts issued by the appropriate taxing authority, or such other evidence as OnCall may reasonably request, to establish that such taxes have been paid.

9. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.

• By OnCall. OnCall represents and warrants to Customer that: (a) it has the power and authority to enter into the Agreement;
  (b) the Services and their use in accordance with the Agreement, in and of themselves, will not infringe any third party intellectual property rights; (c) it shall use commercially reasonable efforts, including deploying up-to-date anti-virus software on its servers, to protect Customer from receiving from the Services any Malicious Code; and (d) the Professional Services and Support Services will be performed with reasonable care and skill consistent with applicable professional standards.

• Remedies for Nonconformance. In the event of OnCall’s nonconformance with the warranties provided in Section 9.1, Customer will notify OnCall in writing of such nonconformance within 30 days of the nonconformance and OnCall shall (a) use commercially reasonable efforts to make available to Customer conforming Services for the warranty in Section 9.1(c) and if it fails to do so within 30 days of the notice and the nonconformity materially diminishes the value of the Services, Customer shall have a right to terminate the nonconforming Service in accordance with Section 12.3; (b) for the warranty in Section 9.1(b), Customer shall invoke the provisions of OnCall’s infringement indemnity in Section 10.1; and (c) re-perform the Professional Services at no cost to Customer for the warranty in Section 9.1(d) and if it fails to do so, Customer shall recover the Fees paid to OnCall for the nonconforming Professional Service. The foregoing remedies shall be Customer’s sole and exclusive remedies, except with respect to Section 1(c).
• By Customer. Customer represents and warrants to OnCall that: (a) it has the power and authority to enter into the Agreement; (b) the Customer Data shall not contain any Malicious Code; (c) the Customer Data shall not infringe any copyright, trademark or patent right or misappropriate any trade secret; (d) it will comply with applicable law in using the Services (including the collection, use and disclosure of Customer Data in accordance with applicable laws); and (e) it has obtained the prior consent of each User to the collection, use and disclosure of their data.
• Disclaimer. THE WARRANTIES SET FORTH IN SECTION 9.1 ARE MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS MSA, THE SERVICES (INCLUDING THE THIRD PARTY SERVICES) ARE PROVIDED “AS IS,” AND ONCALL MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. ONCALL DOES NOT WARRANT THAT THE SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES SATISFY THE CUSTOMER’S REGULATORY REQUIREMENTS. ONCALL DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL CORRECT ALL DEFECTS OR PREVENT UNAUTHORIZED ACCESS. ONCALL DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL BE COMPATIBLE WITH CUSTOMER’S COMPUTER SYSTEMS OR ANY INTERNET TECHNOLOGY. ONCALL DISCLAIMS ALL FAILURES, DELAYS AND OTHER PROBLEMS INHERENT WITH THE INTERNET AND IS NOT RESPONSIBLE FOR ANY CUSTOMER DATA DELAYED, LOST, ALTERED, INTERCEPTED OR STORED DURING THE TRANSMISSION ACROSS NETWORKS NOT OWNED OR CONTROLLED BY ONCALL. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

10. INDEMNIFICATION.

• By OnCall. OnCall shall indemnify and defend Customer against any third party claims brought against Customer alleging that the use of the Services as permitted hereunder infringes any copyright, trademark or patent right of such third party, and OnCall shall pay any losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim (“Costs”). If any portion of the Services becomes, or in OnCall’s opinion is likely to become, the subject of a claim of infringement, OnCall may, at OnCall’s option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that the Services become non-infringing; or (d) terminate the Agreement or the applicable Service Order, and refund any Fees pre-paid by Customer to OnCall for Services from the effective date of termination to the end of the Term, and upon such termination, Customer will immediately cease all use of the Notwithstanding the foregoing, OnCall shall have no obligation under this Section or otherwise with respect to any infringement claim based upon any (i) use of the Services not in accordance with this Agreement; (ii) use of the Services in combination with other products, equipment, software or data not supplied by OnCall; or (iii) modification of the Services by any person other than OnCall or its authorized agents. This Section 10.1 states the sole and exclusive remedy of Customer and the entire liability of OnCall, and any of the officers, directors, employees, shareholders, contractors or representatives of OnCall, for claims and actions described in this Section 10
• By Customer. Customer shall indemnify and defend OnCall against any third party claims brought against OnCall (a) alleging Customer Data infringes the intellectual property, privacy or other rights of such third party; (b) alleging breach of Section 3.4, 3.6, and 7; (c) arising from or in relation to Customer access to or use of the Services (including with respect to any goods or services that Customer may make available to Patients or other third parties via the Platform or otherwise); or (d) alleging Customer’s use of the Services, other than as authorized in the Agreement, violates applicable law or infringes the intellectual property, privacy or other rights of such third party, and Customer shall pay the Costs. This Section 10.2 states the sole and exclusive remedy of OnCall and the entire liability of Customer, and any of the officers, directors, employees, shareholders, contractors or representatives of Customer, for the claims and actions described in this Section 10.2.

• Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party promptly notifying the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (b) the indemnifying party having sole control of the defense or settlement of any claim or suit (provided the indemnifying party may not settle any claim without the indemnified party’s consent unless it unconditionally releases the indemnified party of all liability); and (c) the indemnified party (at the indemnifying party’s expense) reasonably cooperating with the indemnifying party to facilitate the settlement or defense of any claim or suit.
• General. Indemnification by either party under the Agreement may be reduced to the extent of loss actually proven as directly attributable to the breach of the Agreement, negligence or willful misconduct of the other party.

11. LIMITATION OF LIABILITY.

• ONCALL’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER AS A RESULT OF ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT (INCLUDING UNDER AN INDEMNITY), TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO ONCALL HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE FIRST EVENT GIVING RISE TO THE LIABILITY OCCURRED.

• IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ITS PERFORMANCE HEREUNDER, WHETHER THE ACTION IS IN CONTRACT (INCLUDING UNDER AN INDEMNITY) OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

• NOTHING IN THIS SECTION 11 WILL OPERATE TO EXCLUDE OR RESTRICT ONCALL’S LIABILITY (IF ANY) TO CUSTOMER FOR ANY MATTER FOR WHICH IT IS NOT PERMITTED BY LAW TO EXCLUDE OR LIMIT ITS LIABILITY, INCLUDING DEATH OR PERSONAL INJURY RESULTING FROM ONCALL’S NEGLIGENCE.

12. TERM AND TERMINATION..

• Term of MSA. This MSA commences on the Effective Date specified in the initial Service Order and remains in effect until all Service Orders have expired or been terminated in accordance with this MSA (“Term”).
• Term of Subscriptions. Each Subscription Service is provided for the set term designated in the applicable Order (a “Subscription Term”). Unless an Order specifies otherwise, the Subscription Term will automatically renew for successive periods equal to the expiring Subscription Term or one year, unless either party provides the other party at least 60 days’ written notice of non-renewal prior to the end of the then-current term. The pricing during any renewal term may increase by up to 10% above the applicable pricing in the prior Subscription Term, unless OnCall provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order, renewal of promotional or one-time priced Subscription Services will be at OnCall’s applicable list price at the time of the applicable renewal. Any changes in the Subscription Services being ordered in a renewal term will result in repricing at renewal without regard to the prior Subscription Term’s fees.
• Termination. Either party may, immediately upon written notice to the other party, terminate the Agreement (including all applicable Service Orders) if the other party: (a) where curable, fails to cure any material breach of the Agreement within 60 days after written notice of such breach; or (b) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 30 days thereafter). For greater certainty, “material breach” shall mean a violation of applicable law, infringement or misappropriation of the rights of any third party or a violation of a material term of this MSA. Failure to attain service levels as stated in the SLA shall not constitute a breach of this MSA and the award of service level credits is Customer’s sole remedy for any such failure. In the event Customer terminates an Order in accordance with this Section 12.3, Customer shall recover a refund of any pre-paid subscription fees from the effective date of termination to the end of the applicable Subscription Term.
• Customer Data Portability and Deletion. All Customer Data hosted and stored on the Subscription Services will be available to Customer for export or download during the Term and for a period of 30 days after the effective date of termination of the applicable Order or this After such 30 day period, OnCall will have no obligation to maintain or provide the Customer Data and will delete or destroy it in accordance with its standard practices, unless legally prohibited from doing so, and, upon request, an officer of OnCall will certify the same in writing.

• Effects of Termination. Immediately upon termination of the Agreement and any Service Order, (a) all applicable rights granted to either party shall terminate; (b) Customer will cease to use the applicable Services; and (c) (subject to Section 12.4) each party will return or destroy Confidential Information of the other party and, upon request, an officer of such party will certify the same in writing. Termination shall not relieve Customer’s obligation to pay all undisputed charges accrued and payable before the effective date of termination.
• Suspension Rights. In addition to its other rights under the Agreement, OnCall may, in its sole discretion, immediately suspend Customer’s access to the Services, until the situation giving rise to the suspension has been remedied to OnCall’s satisfaction, where:
  (a) Customer’s use of the Services poses a reasonable risk of harm or liability to OnCall or any third party and Customer is not taking appropriate action;
  (b) there has been a violation of Section 3.4, 3.6, or 7;
  (c) Customer is using the Services in violation of applicable law and/or fails to cooperate with OnCall’s investigation into any such alleged violation;
  (d) there has been an event of non-payment by Customer as contemplated in Section 8.2(c); or
  (e) a suspension is required by applicable law or governmental authority. Any such suspension by OnCall shall not relieve Customer of any of its payment obligations hereunder. Where reasonably practicable in the circumstances and unless prohibited by law, OnCall will, prior to suspending the Services, inform Customer of the concern as soon as reasonably possible.

13. WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS.

WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THIS AGREEMENT: (A) CUSTOMER HEREBY EXPRESSLY GIVES UP ITS RIGHT TO HAVE A TRIAL BY JURY; AND (B) CUSTOMER HEREBY EXPRESSLY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.

14. GENERAL

• Export Compliance. The Services, other OnCall technology, and derivatives of them may be subject to export laws and regulations of Canada, the United States and other Customer represents that it is not named on any Canadian or U.S. government denied-party list. Customer may not access or use the Services in a country named on Canada’s Area Control List under Canada’s Export and Import Permits Act, in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea), by persons or entities prohibited from receiving U.S. exports, or in violation of any Canadian or U.S. export law or regulation.

• Notice. Any notice or other communication provided under the Agreement will be effective upon electronic delivery via email to the applicable email address for OnCall or Customer set forth in the applicable Service Order. A party may change its notice designation by notice in writing to the other party in accordance with this Section 2.
• Governing Law. The Agreement has been made in and shall be construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles. 
• Arbitration. Any dispute or claim arising out of or relating to the Agreement will be referred to and finally resolved by binding arbitration pursuant to the Arbitration Act (Ontario) or the International Commercial Arbitration Act (Ontario), as applicable . The place of arbitration shall be Toronto, Ontario, Canada and the language of the arbitration shall be English. The number of arbitrators shall be one. The fees and expenses of the arbitrator will be borne equally between the parties. The arbitrator may order interest on any award and the arbitrator may award costs to either party. In the absence of any such award of costs, each of the parties will bear its own costs of the arbitration. Customer agrees that good faith negotiations and arbitration will all be without recourse to the courts and that the award of the arbitrator will be final and binding, except that: (a) either party may appeal an arbitration award to the courts of Ontario on a question of law; and (b) either party may apply to the courts of Ontario for an interim measure of protection or for any order for equitable relief which the arbitrator does not have the jurisdiction to provide.
• Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
• Assignment. Neither party shall assign the Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign the Agreement to any affiliate or to its successor in connection with any transaction or series of transactions pursuant to which all or a substantial part of the assigning party’s business (or the business which is the subject matter of the Agreement) is assigned to, or otherwise results in forming all or part of the business of such entity, whether by way of reorganization, merger, consolidation, amalgamation, arrangement, contribution, transfer, sale, change in control or otherwise by operation of law, and provided it promptly notifies the non-assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of the Agreement and assume the obligations of the assignor under the Agreement pursuant to this Section 14.6. The Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
• Force Majeure. Neither party shall be deemed to be in breach of the Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, third party strikes, failure of suppliers, fires, floods, earthquakes or Internet or telecommunications failures. In the event a force majeure event affecting a party continues for a period longer than 30 days, either party shall be entitled to terminate the Agreement as of the date specified in the written notice to the other party to that effect.

• Remedies. Customer acknowledges that the Services contain valuable trade secrets and proprietary information of OnCall, and that any actual or threatened breach by Customer of its obligations with respect to intellectual property rights of OnCall, will constitute immediately, irreparable harm to OnCall for which monetary damages would be an inadequate remedy. In such case, OnCall will be entitled to seek immediate injunctive relief without the requirement of posting bond.
• Independent Contractors. The parties are independent contractors and nothing in the Agreement shall be deemed to create any partnership, join venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
• Severability; Waiver. In the event any provision of the Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect. No delay or omission to exercise any right or remedy by either party hereunder shall constitute a waiver of that right. No waiver of any provision of the Agreement shall be valid unless in writing and signed by the waiving party.
• Survival. Those provisions of the Agreement that by their terms survive, or by their nature are intended to survive the termination of the Agreement, will survive any termination of the Agreement and remain in full force and effect.
• Entire Agreement. The Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes any prior or contemporaneous understandings or communications (oral or written) regarding such subject matter. In the event of a conflict between the terms in a Service Order and this MSA, the terms contained in this MSA shall control unless otherwise expressly stated in the applicable Service Order that it supersedes particular language in this MSA. The Agreement may be modified only by a written amendment executed by an authorized representative of each party, except that OnCall may update or amend documents incorporated into this MSA with a hyperlink and consents may be provided by a duly authorized representative in writing via e-mail provided that OnCall will not materially decrease the overall functionality or security of the Platform. Such provided amendments to this MSA will be deemed accepted and become part of this MSA 30 days after the date that such notice is given unless Customer informs OnCall that it does not accept such amendments. For clarity, material updates and amendments to hyperlinked documents shall be communicated to Customer by OnCall by email, or such other similar method as OnCall may utilize from time to time during the Term for communication of such matters.
• Interpretation. In the Agreement, (a) words importing the singular number only shall include the plural and vice versa and words importing the masculine gender shall include the feminine; (b) the headings are intended solely for convenience of reference and will be given no effect in the interpretation or construction of the Agreement; and (c) wherever the words “include”, “includes” or “including” (or similar variations) are used, they shall be deemed to be followed by the words “without limitation” and the words following “include”, “includes”, or “including” (or similar variations) shall not be considered to set forth an exhaustive list.