NK Media Inc Website and Marketing Agreement
NK Media Inc (and its divisions Healthcare Marketing, The Dental SEO Company, The Plastic Surgery SEO Company), is Canadian corporation at 236-1231 Pacific Blvd, Vancouver, BC, V6Z 0E2 (“Healthcare Marketing” “we”, “us” or “our”) provides the Healthcare Marketing Services to Client (each as defined below).
These Terms of Service (the “Terms”) governs Client’s acquisition and use of the Healthcare Marketing Services, are incorporated by reference into and made a part of any Order Form (as defined below) and govern the relationship between you and Healthcare Marketing. All Order Forms are subject to acceptance by Healthcare Marketing, in its sole discretion. The Order Form, the Terms, and any documents or links referenced in such documents are together referred to as the “Agreement”.
If you are accepting these Terms on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to these Terms, (ii) you have read and understand these Terms, and (iii) you agree, on behalf of Client, to these Terms
Any Client who subscribes to one of our website and / or marketing agreements is bound by this agreement.
“Agreement” means these Terms, including its schedules and the Order Form to which these Terms are attached or referenced.
“Confidential Information” means (i) any and all information disclosed by one party to the other which is marked “confidential” or “proprietary”, or similar designation or which the recipient knows or has reason to know is regarded by the disclosing party as confidential, including information shared verbally and (ii) any “Personal Information”, as defined by applicable privacy and personal information protection laws, disclosed by End Users to Client. “Confidential Information” does not include any information that the receiving party can demonstrate: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such a disclosure; (d) is independently developed by the receiving party; (e) has been approved for release by the disclosing party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
“Documentation” means any manuals, instructions or other documents or materials that Healthcare Marketing provides or makes available to Client in any form or medium and which describe the functionality, components, features or requirements of the Healthcare Marketing Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Employee” means an individual or contractor who works for or provides services for Client.
“End User” means an individual who Client contacts or connects with using the Healthcare Marketing Service, either via web or mobile (through SMS email or another mean), to communicate with Client in respect of Client’s Services.
“Fees” means the fees payable by Client to Healthcare Marketing for the right to receive access to and use the Healthcare Marketing Service and Support Services including all subscription fees as outlined in the Order Form.
“Initial Term” means the initial length of time that Client has subscribed to the Healthcare Marketing Service for, as outlined in the Order Form.
“Client Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Client or an End User by or through the Healthcare Marketing Service.
“Offering” has the meaning provided in Section 2.4.
“Order Form” means an ordering document or online order specifying the Healthcare Marketing Services to be provided hereunder that is entered into between Healthcare Marketing and Client
“Client” means in the case of an individual accepting these Terms on his or her own behalf, such individual, or in the case of an individual accepting these Terms on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting these Terms.
“Renewal Term” has the meaning provided in Section 8.1.
“Technology” has the meaning provided in Section 2.6.
“Term” has the meaning providing in Section 8.1.
“Website” means www.healthcaremarketing.ca , nkmedia.ca, or such other URLs as Healthcare Marketing shall provide for the Healthcare Marketing Service from time to time
- SERVICES AND RESPONSIBILITIES
2.1 Provision of Healthcare Marketing Service. Subject to and conditional on compliance with the terms and conditions of this Agreement by Client and its End Users, during the Term, Healthcare Marketing shall use commercially reasonable efforts to provide to Client and its End Users the Healthcare Marketing Service described in the Order Form and this Agreement. Generally, Healthcare Marketing is in the business of providing website design, hosting, maintenance and marketing services; and the Client wishes to retain Healthcare Marketing to design, host, maintain and market their website.
2.2 Healthcare Marketing Platform Access. Subject to the terms and conditions of this Agreement, Healthcare Marketing grants to Client and its Employees during the Term a non-exclusive, non-transferable right to access to use the Healthcare Marketing Platform to access and use the Healthcare Marketing Service for Client’s internal business purposes. The license granted herein is granted solely to Client and not, by implication or otherwise, to any parent, subsidiary, or affiliate of Client.
2.3 Account Access. Client shall be provided with login details enabling direct access to its database of Client Data, analytics and reports based on the same. Client shall have the ability to edit and add to content which is in its database and account. Client is responsible for all activities that occur in Employee accounts and for maintaining the security and confidentiality of any login details to such accounts.
2.4 Client Responsibilities.
(a) Client understands that any payments, purchases, charges, promotions, rewards, credits, loyalty points, offers or other offerings (“Offerings”) that they offer to their End Users through the Healthcare Marketing Service or Healthcare Marketing Platform are solely Client’s responsibility. Healthcare Marketing cannot, will not and is not liable in any circumstance, for any change, misrepresentation or termination of the Offerings. Client understands and acknowledges that all payment transactions will be processed through a third-party payment processor, as described below. Healthcare Marketing will provide Client with a secure link to upload payment details. Client understands that if they elect not to provide details through this secured link and/or directly with third party payment providers, Healthcare Marketing disclaims all responsibility and liability for any and all losses resulted from misuse of the said information and Client agrees to hold Healthcare Marketing harmless and to indemnify Healthcare Marketing from any claim arising due to failure to use such secured link or otherwise provide the information directly to the third party payment providers. Any dispute between the End User and Client related to an Offering is the sole liability of Client. Client understands and agrees that some of the Healthcare Marketing Services are intended to allow Client to send transactional and/or informational messages to Client’s own current End Users only. Should Client elect to use the Services to send any messages that constitute advertising or telemarketing, or to communicate with anyone other than Client’s current End Users, Client will only do so in compliance with all local, provincial, state, national and international laws, regulations and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions and any applicable prohibitions on unsolicited communications legislation (which may include without limitation the CAN-SPAM Act and Canada’s Anti-Spam Legislation).
(b) Client understands that they have twenty one (21) days to complete both of the questionnaires sent by Healthcare Marketing. If the client fails to submit both questionnaires in 21 days, Healthcare Marketing reserves the right to use their best judgment on content and design inspiration. The client will be charged for any request changes or additional set up fees.
2.5 Healthcare Marketing Service Responsibilities:
(a) Healthcare Marketing shall use commercially reasonable efforts to (i) maintain the security and integrity of the Healthcare Marketing Service and Client Data; and (ii) make the Healthcare Marketing Service available eighteen (18) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by a force majeure event as defined in section 10.8.
(b) Healthcare Marketing will do everything they can to complete the website within 2-4 weeks of the questionnaire’s being completed. Healthcare Marketing will notify the client if the expected completion date is outside of four (4) weeks.
2.6 Use Restrictions. Client shall not (and shall not allow any person to):
- a) copy, modify, translate, reverse engineer, decompile, disassemble, decode, adapt or create derivative works based on the Healthcare Marketing Service or Website or access the Healthcare Marketing Service or Website in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions of the Healthcare Marketing Service;
- b) circumvent any user limits or other timing or use restrictions that are built into the Healthcare Marketing Service or attempt to gain unauthorized access to parts of the Healthcare Marketing Service or Healthcare Marketing Platform which are not made available to Client by Healthcare Marketing;
- c) input or access data from the Healthcare Marketing Service while navigating a vehicle which is in motion or other dangerous or illegal use;
- d) resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Healthcare Marketing Service (or any of its components) available to any third party without Healthcare Marketing’s prior written consent;
- e) use the Healthcare Marketing Service to (1) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (2) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights;
- f) otherwise access and use the Healthcare Marketing Service beyond the scope of Section 2.2; or
- g) attempt to deliberately damage or undermine the legitimate operation of any third-party payment processing services used in connection with the Healthcare Marketing Service, which could be a violation of criminal or civil laws.
Should any such an attempt be made, Healthcare Marketing reserves the right to seek remedies and damages to the fullest extent permitted by law.
2.7 Liquidated Damages for Unauthorized Use of Intellectual Property: In the event that the Client, either directly or indirectly, or through a third party, attempts to copy, recreate, reverse engineer, decompile, disassemble, decode, adapt, or create derivative works of the website developed by Healthcare Marketing, or provides the code or any part of the intellectual property to any third party for such purposes, the Client agrees that the damage to Healthcare Marketing may be substantial, yet difficult to quantify. Therefore, the Client agrees that if they breach this provision, Healthcare Marketing shall be entitled to liquidated damages in the sum of $50,000 USD.
The Client acknowledges that this liquidated damages amount is not a penalty, but rather a reasonable measure of damages, based upon the parties’ experience and given the nature of the losses that may result from such a breach. The Client agrees that the liquidated damages represent a fair and reasonable estimate of the damages that Healthcare Marketing would incur in such an event.
The rights and remedies provided to Healthcare Marketing in the case of such a breach by the Client shall be cumulative and in addition to any other rights and remedies available to Healthcare Marketing at law or in equity. The payment of liquidated damages shall not limit Healthcare Marketing from seeking injunctive relief against the Client, nor shall it limit the pursuit of any additional remedies available to Healthcare Marketing for such a breach, including, but not limited to, actual damages incurred by Healthcare Marketing due to such unauthorized use.
2.8 Google, Facebook & Other Third-Party Services. Client understands that use of the Healthcare Marketing Service to connect with Google, Facebook or other third party services (“Third Party Services”) is at their own discretion and Client assumes all responsibility for abiding by each respective Third Party Service terms and conditions, and for paying all amounts that may be owing in respect of any use of such third Party (including without limitation where Healthcare Marketing is granted administrative access to such Third Party Services and undertakes any actions on behalf of Client). If an integration is included in the Healthcare Marketing Service, Client grants Healthcare Marketing the right to access Client’s information or CRM system directly or through the applicable Third-Party Service for the purposes of fulfilling Healthcare Marketing’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting Healthcare Marketing such right. Healthcare Marketing will not be held liable for any consequences of false and/or inaccurate content published to an online review or ratings website through Healthcare Marketing by Client or its End Users. Additionally, Healthcare Marketing may make arrangements with third-party providers, or facilitate Client making arrangements with third-party providers, who provide products or services in connection with the Healthcare Marketing Services described in this Agreement. If Client uses third-party products in connection with the Healthcare Marketing Service, those products may make third-party content available to Client and may access Client’s instance of the Healthcare Marketing Service, including Client Data. Healthcare Marketing does not warrant or support third-party products or third-party content (whether or not these items are designated by Healthcare Marketing as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Healthcare Marketing Service, including their modification, deletion, disclosure or collection of Client Data. Healthcare Marketing is not responsible in any way for Client Data once it is transmitted, copied or removed from the Healthcare Marketing Service.
2.10 Erroneous or Fraudulent Transactions. Client acknowledges and agrees that it is solely responsible for any and all losses incurred due to erroneous or fraudulent transactions. Client is solely responsible for the nature and quality of the products or services purchased by the End User. Client affirms that it is solely responsible for delivery, support, refunds, returns, reversals, duplicate transactions, discrepancies, disputes and claims in relation to the products or services. Healthcare Marketing is not responsible for and has no liability in relation to Client products or services purchased using the Healthcare Marketing Service.
2.11 Timing of Transactions. Healthcare Marketing does not make any representation, warranty, condition or guarantee regarding the time it will take for a transaction to be processed.
2.12 Refusal to Complete a Transaction. Healthcare Marketing, acting in its sole discretion, may refuse to complete a transaction if Healthcare Marketing believes that there is a risk, such as a potential breach of a law or regulation, associated with completing the transaction.
2.13 Prohibited Countries. Stripe Services may not be available to End Users residing in certain prohibited countries, or countries where Stripe is not supported.
2.14 Change of Third-Party Payment Processor. From time to time, Healthcare Marketing may change the third-party payment processor it uses to support the Healthcare Marketing Service, or Healthcare Marketing may elect to itself perform some or all of the services that were previously provided by the third-party payment processor, if so, Client may be required to agree to additional terms imposed by Healthcare Marketing.
2.15 Stripe Services. Healthcare Marketing is not responsible or liable to Client for any indirect, punitive, incidental, special consequential, or exemplary damages resulting from the use or inability to use the Stripe Services or for the unavailability of the Stripe Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to Stripe Services. Healthcare Marketing is not responsible or liable for any damages or losses arising from or relating to hacking, tampering or any other unauthorized access or use of the Stripe Services.
- PROPRIETARY RIGHTS
3.1 Ownership and Proprietary Rights.
(a) This Web Design Project uses a third party WordPress theme whereby a license will be purchased by the Healthcare Marketing. The Client understands that this WordPress theme was not developed by the Healthcare Marketing and that the use of such third party theme does not grant the Client or the Healthcare Marketing ownership or interest in any website development code. The Healthcare Marketing may also have purchased additional third-party intellectual property (such as royalty-free illustrations or photos) whereby the Client is responsible for respecting any usage limitations placed on the property by its creator.
(a) Except for the rights and licenses granted in this Agreement, Healthcare Marketing owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights) in the Healthcare Marketing Service, (including the underlying software and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof) and the Resultant Data. Client acknowledges that Healthcare Marketing shall have the sole right to maintain, enhance or otherwise modify the Healthcare Marketing Service.
3.2 Branding. The Healthcare Marketing Service shall be branded according to the requirements of Healthcare Marketing. Client may use Healthcare Marketing’s branding solely for purposes of marketing and providing the Healthcare Marketing Service; provided, however, that Client shall comply with any trademark use guidelines communicated by Healthcare Marketing to Client. Client shall promptly inform Healthcare Marketing in writing of any known violation of Healthcare Marketing’s branding. Any use of Healthcare Marketing’s branding shall inure to the benefit of Healthcare Marketing. Client agrees it will not use, register or otherwise appropriate any name, mark or logo which is similar to or may be confused with any of Healthcare Marketing’s branding apart from agreed branding that incorporates the Healthcare Marketing name.
3.3 Reservation of Rights. Except as set forth in Section 2, Healthcare Marketing reserves all rights and grants Client no licenses of any kind hereunder, whether by implication, estoppel, or otherwise.
3.4 Publicity. All press releases and other public announcements under this Agreement shall be approved by both parties in writing prior to release, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Healthcare Marketing may identify Client as a customer of Healthcare Marketing Services through use of Client’s logo and/or written description on the Healthcare Marketing website and within its sales and marketing materials.
- PAYMENT TERMS & TAXES
4.1 Fees and Payment Terms. Client will pay all Fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) Client will pay a website set up fee which is non-cancelable and Fees paid are non-refundable, (ii) Fees are based on subscriptions purchased and not actual usage (iii) Client will pay a monthly hosting or maintenance fee (based on package choice); and (iv) all Fees are exclusive of applicable taxes. All currency and payments are calculated in the currency as indicated on the Order Form.
4.2 Payment Agreement. Client agrees to pay the Fees as outlined on the Order Form. Client authorizes Healthcare Marketing to charge Client for all outstanding Fees, taxes and charges and outstanding account balances due under this Agreement, and this constitutes Healthcare Marketing’s good and sufficient authority for so doing. Client is solely responsible for all charges incurred under Client’s account by Client.
4.3 Monthly License Fee. The Client is responsible to find and purchase all royalty free images and provide them to the Developer. If the Client would like the Developer to find and purchase royalty free images, the Client will be invoiced by the Developer for all licensing fees.
4.4 Administrative Costs. To the extent that Client does not fulfill its obligations under sections 4.1-4.3, resulting in non-payment or returned or rejected payments, Healthcare Marketing may bill Client a re-activation, re-billing or other related fees to reinstate the Healthcare Marketing Service. All administrative charges charged to Client must be indicated on the Order Form.
4.5 Late Charges. Payments shall be made to Healthcare Marketing in full without set-off, counterclaim or deduction. Past due amounts shall bear an overdue payment charge, until paid, at the rate of one- and one-half percent (1.5%) per month.
4.6 Hosting, Maintenance, and Marketing Fees.
(a) All web and marketing plans have a monthly fee. The limitations of Healthcare Marketing responsibilities are based on the package chosen by the client. Fees will automatically be billed to the clients credit card each month. All web and marketing packages have a one year minimum contract length and will automatically be renewed on a month to month basis after one (1) year. The client is responsible for providing 30 days written notice for any subscription modifications or cancellations.
(b) Client is responsible for all domain registration and for securing an account with a Host Provider for their email. If the Client would like Healthcare Marketing to host their email additional fees may apply. The client is responsible for following any directions when it comes to pointing their “A” record to Healthcare Marketing’s servers and additional fees may apply if the Client request Healthcare Marketing’s help.
(c) All pay-as-you-go websites are owned by Healthcare Marketing. The client may be responsible for paying a set up fee based on the scope of the project and is always responsible for paying monthly hosting/maintenance fees (based on monthly package selected as outlined above). Pay-as-you-go websites are required to be hosted by Healthcare Marketing. The client understands that Healthcare Marketing is a hosting re-seller and as such is not liable for damages related to hosting downtime, speed, or other server related issues. The client also understands that Healthcare Marketing is not responsible or liable for any website hacks, code breaks, or other technical issues if the client has access to the backend of their website.
4.6 Client Requested Third Party Access & Buy Out.
(a) A client may wish to buy out their website files. The buy-out price will be determined by Healthcare Marketing and is non-negotiable.
(b) Healthcare Marketing does not give Third Party access to any of the client’s website files including but not limited to FTP access, Database access, or access to Client’s hosting panel on the Client’s request. If Client wishes to obtain their files or access, they must purchase the buy out their website files as outlined in Section 4.6 (a) above.
4.7 Taxes. Healthcare Marketing’s Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder. If Healthcare Marketing has the legal obligation to pay or collect Taxes for which Client is responsible under this section, Healthcare Marketing will invoice Client and Client will pay that amount unless Client provides Healthcare Marketing with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Healthcare Marketing is solely responsible for taxes assessable against it based on its income, property and employees.
4.8 Additional Fees.
(a) All additional development or marketing services will be billed separately at an agreed upon rate.
(b) The scope of the Client’s Web Design Project will be based on the package they purchase. Healthcare Marketing will ultimately determine what is best for the client within the package they choose. Additional work including pages, functionality, or time invested by the developer outside of the clients package choice will result in additional set up fees. If Healthcare Marketing is unable or unwilling to make changes outside the scope of the web project, they will not be considered to be in breach of this contract.
- CONFIDENTIALITY & PRIVACY
5.1 Obligation. Neither party shall use any Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, service partners, customers, consultants and legal advisors who need access to such Confidential Information in order to affect the intent of the Agreement and who have entered into written confidentiality agreements with it at least as restrictive as those in this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information. This Article shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof which must be stored by the receiving party, its affiliates or its advisors according to provisions of mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein.
5.2 Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
5.3 Compliance with Privacy Laws. Client shall comply with all privacy and personal information protection laws that are applicable to End User Personal Information if such information is provided to Client. Client acknowledges and agrees that any breach by Client of its obligation to comply with all privacy and personal information protection laws would result in significant damage to Healthcare Marketing that would not be completely compensable monetarily, and hereby agrees that Healthcare Marketing shall be entitled to injunctive relief in a court of appropriate jurisdiction in the event of the violation or threatened violation by Client of any privacy and/or personal information protection laws.
5.5 Notification of Security Breach. Client shall notify Healthcare Marketing as soon as possible of any suspected or actual breach of Client’s security of which Client becomes aware that may compromise the safeguarding of Confidential Information and/or Client Data, including, without limitation, any unauthorised access to or entry into Client’s premises, computer systems or databases or security incidents involving Employees.
5.6 Client Data
- a) Rights in Client Data. As between the parties, Client retains all right, title and interest (including any intellectual property rights) in and to Client Data. Client hereby grants Healthcare Marketing a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of Client Data solely to the extent necessary to provide the Healthcare Marketing Service and related services to Client and as otherwise provided herein.
- b) Resultant Data. Client agrees that Healthcare Marketing will have the right to generate Resultant Data. The parties agree that Resultant Data is Healthcare Marketing intellectual property, which Healthcare Marketing may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Healthcare Marketing’s products and services and to create and distribute reports and other materials). Healthcare Marketing will not distribute Resultant Data in a manner that personally identifies Client or its End Users, or that would otherwise violate applicable law. If Client and Healthcare Marketing have entered into a BAA, Healthcare Marketing will use the Resultant Data only in conformity with the terms of such agreement.
- c) Monitoring. Client understands and agrees that Healthcare Marketing, and any third-party platform(s) Client uses or accesses in connection with the Healthcare Marketing Service, may monitor and analyze Client Data submitted by Client and its End Users (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Healthcare Marketing Service or third-party platform; to improve Client’s experience using the Healthcare Marketing Services or third-party platform; to customize and communicate informational or product offerings and promotions to Client; to ensure compliance with the acceptable use policy (including taking corrective action permitted therein); and/or to make the Healthcare Marketing Services, or third-party platform more helpful or useful to Client and other users.
- d) Security. Healthcare Marketing agrees to maintain physical, technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. Healthcare Marketing takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section unless the Client has separately entered into a Business Associate Agreement with Healthcare Marketing. If Client shares any protected health information using Healthcare Marketing’s platform absent a BAA, Client does it at their own risks.
- e) Storage. Healthcare Marketing does not provide an archiving service. During the Initial Term, Client acknowledges that Healthcare Marketing may delete Client Data no longer in active use. Except for requirements that are included in any BAA entered into between Healthcare Marketing and Client, Healthcare Marketing expressly disclaims all other obligations with respect to storage.
- WARRANTIES AND DISCLAIMERS
6.1 Mutual Warranties. Each party represents and warrants that: (a) it has all requisite power, financial capacity and authority to execute, deliver and perform its obligations under this Agreement; and (b) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of that party.
6.2 Healthcare Marketing Warranties. Healthcare Marketing represents and warrants that during the Term (i) it will provide the Healthcare Marketing Service and Support Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) the Healthcare Marketing Service shall perform materially in accordance with the Documentation. For greater certainty, Healthcare Marketing does not warrant that use of the Healthcare Marketing Service will be error-free or uninterrupted.
6.3 Client Warranties. Client represents and warrants to Healthcare Marketing that: (i) it has licenses, approvals and authority necessary to provide Client services to End Users; (ii) Client services meet all relevant safety and inspection standards and Client maintains in place valid and appropriate insurance coverage; (iii) any information or content submitted to Healthcare Marketing or through the Healthcare Marketing Platform does not infringe the intellectual property or personal rights of any third party. Specifically – The Client represents to the Healthcare Marketing and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Healthcare Marketing for inclusion in the Client’s web site are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements; and (iv) Client will comply with these Terms of Service, and, if applicable, the Healthcare Marketing Restricted Business Policy; (v) Client will comply with all applicable laws and be responsible for the provision of Client services to End Users In particular, and without limitation, Client warrants and represents that it will not use the Service in a manner that would violate any obligation with respect to CASL, CANSPAM, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999 and any other applicable federal, state, or international law and amendments thereto.
6.4 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE HEALTHCARE MARKETING PLATFORM, HEALTHCARE MARKETING SERVICE AND SUPPORT SERVICE ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND AND HEALTHCARE MARKETING DISCLAIMS ANY AND ALL STATUTORY REPRESENTATIONS AND/OR WARRANTIES AGAINST NON-INFRINGEMENT AND ANY AND ALL IMPLIED REPRESENTATIONS AND/OR WARRANTIES OF CLIENTABILITY, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. HEALTHCARE MARKETING DOES NOT WARRANT THAT USE OF THE HEALTHCARE MARKETING PLATFORM OR HEALTHCARE MARKETING SERVICE WILL BE ERROR-FREE, UNINTERRUPTED OR WILL MEET CLIENT OR END USER’S EXPECTATIONS.
7.1 Indemnification by Healthcare Marketing. Healthcare Marketing shall defend and indemnify Client against any loss, damage or costs (including reasonable attorneys’ fees) awarded to a third party against Client by a court of competent jurisdiction in any claims, demands, suits, or proceedings made or brought against Client for third party claims alleging that the use of the Healthcare Marketing Service as contemplated hereunder infringes the Canadian or US patent or copyright of a third party (“IP Claims”), subject to the condition that Client (a) promptly gives written notice of any IP Claim to Healthcare Marketing; (b) gives Healthcare Marketing sole control of the defense and settlement of each IP Claim; and (c) provides to Healthcare Marketing, at Healthcare Marketing’s cost, all reasonable assistance in respect to each IP Claim.
7.2 Mitigation. If (a) Healthcare Marketing becomes aware of an actual or potential IP Claim, or (b) Client provides Healthcare Marketing with notice of an actual or potential IP Claim, Healthcare Marketing may (or in the case of an injunction against Client, shall), at Healthcare Marketing’s sole option and determination: (I) procure for Client the right to continue to use the Healthcare Marketing Service; or (II) replace or modify the Healthcare Marketing Service (or the affected components) with equivalent or better functionality so that Client’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Healthcare Marketing Service and refund to Client any pre-paid Fees for any periods after the termination of the Healthcare Marketing Service, less any outstanding moneys owed by Client to Healthcare Marketing.
7.3 Exclusions. The indemnity in Section 7.1 does not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Healthcare Marketing Service furnished by Healthcare Marketing with other products, software or services not provided by Healthcare Marketing; (2) any IP Claim related to any Client Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Healthcare Marketing Service outside the scope of the rights granted in this Agreement.
7.4 Client Indemnity. Client shall indemnify, defend, and hold Healthcare Marketing (including its officers, directors, agents, and employees) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, and/or judgments (collectively “Claims”), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from Healthcare Marketing by reason of any Claim arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property caused by any act, error or omission, or misconduct of Client or its Employees; (b) violation of any law or regulation by Client (including, without limitation, any privacy or personal information protection law or regulation); or (c) breach of any warranties or other terms in these Terms of Service or Restricted Business Policy by Client; and (d) provision of Client’s Services or Offering. Healthcare Marketing shall notify Client promptly of any Claims, permit Client to control the defense and settlement of such Claims (provided that Healthcare Marketing may participate with counsel of its own choosing, at its own expense), and assist Client, at Client’s expense, in defending or settling such Claims.
- TERM AND TERMINATION
8.1 Term. Unless terminated earlier pursuant to Section 8.2 below, this Agreement shall commence on the Effective Date and shall remain in force for the Initial Term.
(a) There is a minimum one (1) year contract for all Healthcare Marketing web development and marketing packages. Thereafter, the term of the Agreement will be automatically continue (any such subsequent on-going term referred to in this Agreement as a “Renewal Term”)
(b) Either party can terminate the Agreement at any time.
- Should Healthcare Marketing terminate the Agreement, the Client will be entitled fifty percent (50%) reimbursement of the Set Up Fee (as described in Section 4.1)
- Should Client terminate this Agreement, the Client is responsible for the remaining portion of the first year term and it will become due and must be paid immediately by Client. Client understands and agrees that all Fees paid are non-refundable, including without limitation any Fees paid during any configuration or set-up period where the full functionality of the Healthcare Marketing Services may not be available.
8.2 Suspension of Service. Healthcare Marketing may suspend Client’s access to the Healthcare Marketing Service if: (i) Client’s account is overdue or (ii) Client has exceeded its Scope of Use limits. Healthcare Marketing may also suspend Client’s access to the Healthcare Marketing Service, remove Client Data or disable third-party products if it determines that: (a) Client has breached the provision of the Agreement or (b) suspension is necessary to prevent harm or liability to other Client or third parties, including any third-party payment processor, or to preserve the security, stability, availability or integrity of the Healthcare Marketing Service. Healthcare Marketing will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period. However, unless this Agreement has been terminated, Healthcare Marketing will cooperate with Client to restore access to the Service once it verifies that Client has resolved the condition requiring suspension.
8.3 Effect of Termination. Upon any expiration or termination of this Agreement: (i) Client’s license rights shall terminate and it must immediately cease use of the Healthcare Marketing Service and delete (or, at Healthcare Marketing’s request, return) any and all copies of any Healthcare Marketing documentation, scripts, passwords or access codes and any other Healthcare Marketing Confidential Information in Client’s possession, custody or control and (ii) Client’s right to access any Client Data in the applicable Service will cease and unless otherwise precluded by a BAA, Healthcare Marketing may delete any such data in its possession at any time. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
8.5 Survival. The following sections shall survive the termination or expiration of this Agreement for any reason: 1, 3.1, 3.3, 5-7, 8.4, 9 and 10 and any payment obligations incurred prior to the expiration or termination of this Agreement. In the event that Healthcare Marketing is acquired, sold or re-named, the surviving or acquiring entity shall not be relieved of its obligations under this Agreement.
- LIMITATION OF LIABILITY
9.1 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, IN NO EVENT WILL HEALTHCARE MARKETING OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; (d) BREACH OF DATA OR SYSTEM SECURITY; OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3 IN NO EVENT SHALL HEALTHCARE MARKETING, ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS BE LIABLE TO CLIENT IN AGGREGATE FOR MORE THAN THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES UP TO THE FEES PAID TO HEALTHCARE MARKETING BY CLIENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE
9.3 NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK.
- GENERAL PROVISIONS
(a) This Agreement shall not be assigned or transferred by Client, whether voluntarily or involuntarily or by operation of law, in whole or in part, without the prior written consent of Healthcare Marketing.
(b) Healthcare Marketing reserves the right to assign certain subcontractors to parts of this project to ensure the right fit for the job. The Developer warrants all work completed by the subcontractors for this project.
Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any assignment in violation of this Section 10.1 shall be null and void from the beginning and shall be deemed a material breach of this Agreement.
10.2 Waiver and Amendment. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy. We may revise this Agreement from time to time and the most current version will always be at https://www.Healthcare Marketing.com/terms/. If the revision, in our sole discretion, is material we will notify you via an update or e-mail to the email associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Agreement
10.3 Choice of Law. This Agreement shall be governed by the laws of the Province of British Columbia, Canada excluding all conflict of laws provisions and excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods. The courts of British Columbia shall have exclusive jurisdiction to resolve any dispute arising pursuant to this Agreement.
10.4 Compliance with Laws. Each party agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries, and will not transfer, or authorize the transfer, directly or indirectly, of the Healthcare Marketing Service, the Healthcare Marketing materials or any direct product of any of the foregoing to a prohibited country or otherwise in violation of any such restrictions or regulations.
10.5 Notices. Standard communications may be delivered by email. All formal notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to Client’s address set forth on the Order Form. Healthcare Marketing’s address is 325 Front St West, 4th Floor, Toronto, British Columbia, Canada, M5V 2Y1. Notice shall be considered delivered and effective on the earlier of actual receipt or: (a) the day following transmission if sent by email when followed by written confirmation by registered overnight carrier or certified mail; or (b) four (4) days after posting when sent by certified mail.
10.6 Independent Contractors.
(a) The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
(b) Client understands that Healthcare Marketing sells its services to a range of customers and some of them may be a direct or indirect competitor.
(c) Healthcare Marketing is not responsible for providing any training to Client, parent, subsidiary, or affiliate of Client. If Client wishes to have Healthcare Marketing provide training services to one of their employees, it is at the sole discretion of Healthcare Marketing and training services will be billed at $150 USD per hour.
10.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, 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 of this Agreement shall remain in full force and effect.
10.8 Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes, Global Pandemic’s (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than forty-five (45) days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the commencement of such force majeure event.
10.9 Client Referral Commission Program. Healthcare Marketing recognizes ‘word-of-mouth’ advertising as a powerful form of marketing. As such, the Healthcare Marketing will reward the Client with a commission up to $200 for any direct referrals to any individual, business, or organization that ultimately results in a new client establishing a paying contract with Healthcare Marketing. Final compensation payable to the Client for a referral will be entirely determined by the Healthcare Marketing.
10.10 Headings and References. The headings and captions used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement
10.11 Entire Agreement. This Agreement sets forth the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes any and all negotiations, discussions, agreements, or understandings, oral and written, between the parties as to the subject matter of this Agreement.