User agreement for the olive application

This Olive Application User Agreement is entered into by and between OLIVE INC, a corporation incorporated under the Canada Business Corporations Act, having its head office at 4980 route de l’Aéroport, St-Hubert, Quebec, J3Y 8Y9 (hereinafter referred to as: “Olive“), and your organization as defined in the identification steps (hereinafter referred to as: “You“) (each “Party” together, the “Parties“). The Parties hereby agree to abide by the terms and conditions of this Agreement.

1.        DEFINITIONS. The following terms, when used in this Agreement, shall have the meanings set forth in this Section 1. Other terms are defined where used. Definitions shall be deemed to refer to the singular or plural, as the context requires.

1.1.      “Application” means the Olive application through which the Services are rendered;

1.2.     “Agreement” means this agreement to use the Application;

1.3.     “Affiliated Entity” means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” includes both the power to direct the management or affairs and the ownership of 50% or more of the voting stock or other equivalent voting power of an entity;

1.4.     “Registration” means your access to the Olive Application upon signing this Agreement;

1.5.     “Professionals” means the healthcare professionals designated by Olive to perform the telemedicine services of the Application;

1.6.     “Services” means the services made available through the Application;

1.7.     “User” means a person under your corporate control who has validated credentials to access and use the Services. Users may include, for example, your affiliated entities, employees, consultants, contractors, and agents, as applicable.

2.        PURPOSE OF THE AGREEMENT. This Agreement governs the Services throughout Canada following your Registration hereunder. You are responsible for compliance with this Agreement by all Users. Any use of the Services by you and your Users must be consistent with the obligations of this Agreement and solely for the benefit of you or your Affiliated Entities.

3.        ACCESS TO THE APPLICATION

3.1.     Versions. Olive provides you with access to the App in iOS and Android mobile versions only. It is your or your users’ responsibility to make necessary updates to the App when they become available. You will be notified when an update is available. Olive does not guarantee the support or performance of the Services under any previous version of the App.

3.2.     Geographic Limitations. As part of this Agreement, the Services are accessible and may be used in Quebec. You agree not to use the Application outside of Quebec and you understand and agree that Olive is not responsible for the use of the Application outside of these limits.

3.3.     Limitations on Use. As part of this Agreement, the Services are always accessible by Users and Olive retains the right to suspend a member’s use of the Services in the event of excessive and abusive use of the Services during the Term.

3.4.     Suspension. Olive has no obligation to monitor or moderate the content you upload to the Application. In the event of any misuse of the Application by you or contrary to this Agreement that may affect the availability, integrity or viability of the Application, Olive may suspend your access to the Services immediately, without refund and without notice.

4.        LICENSE. This Agreement grants you a license to use the Application, including its software components, strictly in accordance with this Agreement. The Application is not sold to you and Olive reserves all rights not expressly granted to you by this Agreement. This license is limited, non-exclusive, non-transferable, and revocable.

5.        YOUR DATA

5.1.     Ownership. Olive does not claim any ownership rights in the personal data you upload or enter into the Application (hereinafter “Your Data”) and Olive acknowledges that there is no assignment of your rights in such data to Olive under the Agreement. Olive will not share Your Data with any third party without your consent other than with the following providers: (i) Airmedic Inc; (ii) Branch.i.o Inc; (iii) EMR MYLE Inc; (iv) Mixpanel Inc; (v) Twilio Inc. and (vi) Clinia Inc. You agree that Olive may share Your Data with these service providers to the extent that such sharing is necessary to provide the Services to you.

5.2.     License. You grant Olive a non-exclusive, worldwide, royalty-free license to reproduce, use and modify Your Data solely as necessary to provide you with the Services and the functionality of the Application and support provided pursuant to this Agreement. You agree that Olive may use Your Data (i) to perform internal analyses regarding the use of the Application, (ii) for research and development purposes in accordance with Olive’s Privacy Policy (available always on your profile in the Application), and (iii) to send you targeted advertising messages free of sensitive data.

5.3.     Hosting. As part of this Agreement, Your Data will be processed in Canada and the United States on secure servers but will only be hosted in Canada. You hereby consent to the processing and hosting of Your Data in these countries.

5.4.     Retention. Upon termination of the Agreement, Olive will retain Your Data on the Application in accordance with applicable laws and regulations. Upon your written request, Olive will provide you with a copy of Your Data in the format available within a reasonable time. Notwithstanding the foregoing, Olive may delete Your Data that does not comply with this Agreement or that Olive considers inappropriate in its sole discretion. Upon request, Olive will delete Your Data that is not essential to the provision of the Services within a reasonable time. Unless you indicate otherwise and notwithstanding its legal archiving obligations, Olive will delete all of Your Data within a reasonable period of time and no later than that required by law.

6.        TERMS OF PAYMENT

6.1.     Fees. The fee for use of the Application is a base monthly fee of $199 plus $5.75/month per User, plus applicable taxes (the “User Fee”). You agree to pay all fees as set forth herein. In the event that any payment due by you is thirty (30) days or more past due, Olive shall have the right, in its sole discretion, to suspend your access to the Services and/or the Application until payment is made. Such suspension shall not terminate this Agreement and fees shall continue to accrue and be due until cancelled hereunder.

6.2.     User Additions. If you add Users beyond your Usage Fee in the preceding paragraph during your Term, Olive will charge you for the additional number of Users in accordance with Olive’s then-current rates beginning the month following such addition.

6.3.     Taxes. The fees you pay under this Agreement exclude any taxes or duties payable on the Services in the jurisdiction where the fees are incurred. To the extent Olive pays any such taxes or duties, you shall pay Olive the amount of such taxes or duties in addition to the applicable fees due under this Agreement.

7.        DURATION AND TERMINATION

7.1.     Term. The parties agree that this Agreement shall be in effect for a period of twelve (12) months from the date of its inception, subject to termination in accordance with this Agreement.

7.2.      Termination for Default. Either Party may terminate this Agreement prior to the expiration of the Term if the other Party is in material breach of any of the terms of this Agreement and fails to cure such breach within thirty (30) days of written notice of such breach. Either Party may also terminate this Agreement prior to the expiration of the Term if the other Party ceases operations, declares bankruptcy, becomes insolvent or is otherwise unable to meet its financial obligations. If you terminate this Agreement pursuant to this paragraph, Olive will refund to you the pro rata amount of prepaid and unused fees for the Services that were to apply for the remainder of the unexpired Term, calculated from the date of termination to the date of the unexpired Term.

7.3.     Termination at Convenience. You expressly and irrevocably waive your right to terminate the Agreement pursuant to Article 2125 of the Civil Code of Quebec. In the event of a breach of this paragraph, Olive may, at its sole discretion, declare all amounts due or becoming due during the remaining Term of the Agreement to be immediately payable and claim such amounts as damages.

7.4.     Survival of Obligations. Termination of this Agreement terminates any license or sublicense granted to you and Olive’s obligation to provide you with the Services and access to the Application. All provisions hereof which by their nature are intended to survive any termination or expiration of this Agreement shall survive.

8.        YOUR COMMITMENTS

8.1.     Capacity. You represent and warrant that you have the legal power and authority to enter into this Agreement, and that, this Agreement is being entered into by a representative of this Party with all necessary authority to bind him or her to the terms and conditions of this Agreement.

8.2.     Information. You agree to provide, upon Olive’s request, all relevant information about Users, such as first and last names and email addresses. 

8.3.     Obligations. You represent and warrant that (i) you will use the Application in accordance with this Agreement; and (ii) all of Your Data, and the transfer and use of Your Data by Olive in accordance with this Agreement, is at all times in compliance with all applicable laws and regulations and does not infringe the rights of any third party, including any intellectual property or privacy rights. You represent and warrant that you will not submit any payment card information or payment card transaction information to the Application. You are fully responsible for your use of the Application and any breach of your obligations under this Agreement.

8.4.     Settings. You are solely responsible for the proper setting of your account, the data associated with it and any consequences of such setting. You must choose a strong and secure password and not disclose it to anyone.

8.5.     Restrictions. You agree not to: (i) Use or access the Application in any manner or for any purpose that could interfere with the proper working of the Application, overburden the Application, cause a security risk, or damage the Application; (ii) Use any robot or other automated process to log in, copy information, or otherwise use the Application; (iii) Use the Application for commercial purposes or for the benefit of any third party, except in a Person in Charge situation; (iv) decompile or reverse engineer the Application or use any other process or action to obtain or infer the source code of the Application or any other proprietary information or material of Olive; (v) misrepresent yourself, including impersonating any person or entity; (vi) share your account with any other person; (vii) record and/or distribute in any manner or form the Services without the written permission of Olive.

8.6.     Advertising. You authorize Olive to use your company name and/or logo on Olive’s website and in any other marketing materials, such as brochures or presentations. This permission is valid for an unlimited period of time during the Term of this Agreement, unless you notify us otherwise.

8.7.     Emergencies. You represent and agree that the Services are not intended for use in an emergency and should not be used for medical emergencies. If you have a medical emergency in a jurisdiction covered by public services, you should contact the emergency services in your area or go to the nearest hospital or health center.

9.        COMMITMENTS OF OLIVE

9.1.     Technical Support. Subject to Section 10 below, Olive will provide you with technical support by telephone at 1-844-906-5483 or by email at [email protected] during normal business hours (Monday through Friday) (9:00 am to 5:00 pm Quebec time). Outside of normal business hours, you will need to contact Olive by email.

9.2.     Availability. Olive will use commercially reasonable efforts to maintain adequate availability of the Application in Quebec. Notwithstanding the foregoing, certain threats or technical problems affecting the Application may require Olive to suspend the Services in order to protect the Application and Your Data and Olive will notify you as soon as possible and take reasonable steps to minimize disruption of access to the Application.

9.3.     Security. Olive is committed to implementing commercially reasonable security procedures to help protect Your Data from security attacks. Olive cannot guarantee that its security procedures will be error-free, that transmissions of Your Data will always be secure, or that unauthorized third parties will never be able to circumvent its security measures or those of third-party service providers. If you have any questions about the security of Your Data, you can contact the Olive Data Protection Officer at securité@olivemedic.com.

9.4.     Monitoring of Professionals. Olive agrees to investigate within a reasonable time the Services provided by a Professional following a complaint to [email protected]. Following such investigation, Olive may, in its sole discretion, remove the Professional from the Services and/or refund your Usage Fee for the applicable month.

10.        LIMITED WARRANTIES

10.1.     Application. You acknowledge and agree that the application is provided “As is” and “As available”. To the extent permitted by law, olive makes no representations or warranties of any kind, express or implied, as to the operation of the application or the information, content, materials or products and services included or referred to therein. To the fullest extent permitted by law, olive disclaims all warranties and conditions, express or implied, including, but not limited to, warranties or conditions of merchantability or satisfactory quality or non-infringement of third-party rights or of the ready availability of professionals. Olive does not warrant that the application will be free of problems or viruses or other harmful components, that you will not lose your data or that the application will meet your requirements. Your use of the application is at your own risk. You are solely responsible for any damage to your devices or appliances caused by the application. In no event shall olive be liable for any delays, interruptions, failure of service or other problems inherent in the use of the internet, electronic communications, telecommunications networks or other systems or networks beyond olive’s reasonable control.

10.2.     Professionals. You acknowledge and agree that olive provides you with a technology platform that links you to professionals who are fully responsible for and have all control, authority and oversight over all health care services they provide to you on the application, including but not limited to medical advice, diagnosis, treatment and all medical procedures performed through the platform and consultations. Neither olive nor any of its affiliated entities shall be liable for any health care services provided by a professional. You therefore agree that olive shall not be held responsible in any way for the actions of professionals during services and the consequences thereof.

11.        PROPERTY RIGHT

11.1.     Ownership. The Application is available under license. No ownership rights are assigned to you. Olive retains all right, title and interest, including all tangible or intellectual property, whether protected or not, and trade secrets in and to the Application, the overall look and feel of the Application, any associated or underlying technology, and any modifications or derivative works of the Application created by or for Olive.

11.2.     Suggestions. From time to time, you may submit comments, information, questions, data, ideas, process descriptions or other information to Olive, which may then be anonymized (such communications, when anonymized, constitute “Submissions”). Olive may use, copy, disclose, license, distribute and exploit any Submission in any way without obligation, royalty or restriction based on intellectual property rights or otherwise. Suggestions specifically exclude Your Data and nothing in this Agreement limits Olive’s right to independently use, develop, evaluate or market Services, whether or not they incorporate Your Suggestions.

11.3.     Performance Indicators. Notwithstanding any other term or condition of this Agreement, Olive is permitted to use Your Data, which has been previously anonymized, to aggregate it with data collected from other Olive customers and to use the aggregated data for analytical and statistical purposes (“Performance Indicators”). The Performance Indicators may be disclosed to any person at Olive’s sole discretion.

12.        CONFIDENTIALITY

12.1.     Confidential Information. Each party agrees that any inventions, know-how, technical, financial, medical and commercial information or information specifically designated as confidential or that may reasonably be understood to be confidential or proprietary disclosed to such party (the “Recipient Party“) by the disclosing party (the “Disclosing Party“) is the confidential property of the Disclosing Party (the “Confidential Information“). The Receiving Party shall use reasonable efforts (which shall be no less than the efforts used to protect its own Confidential Information of a similar nature) to prevent disclosure of the Disclosing Party’s Confidential Information for purposes other than those permitted by this Agreement, except as authorized by the Disclosing Party. 

12.2.     Exceptions. Notwithstanding the foregoing, this Agreement shall not apply to Confidential Information that has been excluded in writing from the application of this Agreement, that is publicly known or subsequently becomes publicly known other than through acts or omissions in violation of this Agreement, or that has been lawfully obtained by either party from independent sources lawfully in possession of such information that would otherwise constitute Information for purposes hereof.

13.        INDEMNIFICATION. You agree to indemnify, defend and hold harmless Olive and its Affiliates, directors, officers, shareholders, and employees from and against any and all damages, claims, liabilities, losses, costs, claims, fines, penalties, and indebtedness, including reasonable legal fees and expenses that Olive and its Affiliates may suffer or be required to pay, either directly or as a result of a third party claim, arising out of or in connection with (a) your use of the Application (b) any use of Your Data authorized by this Agreement; or (c) any other alleged breach by You of this Agreement.

14.        LIMITATION OF LIABILITY

14.1.     Consequential Damages. To the extent permitted by law, neither party shall be liable for indirect, special, punitive, incidental, or consequential damages of any kind, regardless of the form of action, whether in contract, tort, strict liability or otherwise, even if advised in advance of the possibility of such damages.

14.2.     Direct Damages. To the extent permitted by law and subject to the disclaimer above, Olive’s total liability for any damages shall not exceed the amount paid by you to Olive for the Application in the twelve (12) months immediately preceding the claim. Notwithstanding the foregoing, you release Olive from any and all liability relating to your use of, and inability to use, the Application. If you are dissatisfied with the Application, your sole and exclusive remedy is to discontinue using the Application.

14.3.     Exceptions. Notwithstanding any of the foregoing, but subject to Section 10, Sections 14.1 and 14.2 shall not apply to (i) gross negligence or willful misconduct of either party, (ii) indemnity obligations, (iii) any personal injury and pain and suffering, and (iv) any breach of your covenants under Section 8.

15.        GENERAL PROVISIONS

15.1.     Notice. Any notice or other communication required or permitted under this Agreement must be in writing and will be considered properly given or made if (i) delivered by hand, (ii) mailed by first class mail, or (iii) emailed to the addresses listed on this Agreement or in a user account. 

15.2.     Amendment of Agreement. Except as otherwise provided herein, this Agreement may be amended only by a writing signed by a duly authorized representative of each Party.

15.3.     Arbitration. In the event of a dispute or claim arising out of this Agreement, the Parties shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a mutually satisfactory resolution. If the Parties fail to reach a settlement within 60 days, any unresolved dispute or claim arising out of this Agreement shall be submitted to binding arbitration. The parties shall seek to mutually appoint an arbitrator. If the Parties cannot agree on a single arbitrator, there shall be three (3) arbitrators: one selected by each Party and a third by the first two.

15.4.     Severability. This Agreement constitutes the entire agreement between the parties with respect to the Services and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Services or any other subject matter covered hereunder. If any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, that provision shall be severed, and the remainder of this Agreement shall continue in full force and effect and shall be construed to effect the intent of the parties to the greatest extent possible.

15.5 .     Force Majeure. Olive shall not be liable to you for any delay or failure to perform an obligation under this Agreement if the delay or failure is due to force majeure or unforeseen events beyond Olive’s reasonable control.

15.6.     Assignment. Your rights and obligations under this Agreement may not be assigned without the prior written consent of Olive. Olive may assign any or all its rights and obligations under this Agreement.

15.7.     Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein. 

15.8.     Independent parts. The parties hereto are independent. This Agreement shall not be construed as creating a partnership relationship between the parties or as creating any other form of legal association that would give either party the right, power, or authority, express or implied, to create a duty or obligation to the other party.

15.9.     Prevailing Version. In the event of any inconsistency or discrepancy between the provisions of the English version and the French version of this Agreement, the parties agree that the French version shall prevail.