SERVICE AGREEMENT ("Agreement") is made and entered by and between the undersigned (“Client” or “You”) and Patient NEWS Publishing Ltd. (“Patient NEWS”).
WHEREAS, Patient NEWS is a full-service marketing agency;
WHEREAS, Client is in the business of dentistry;
WHEREAS, Client wishes to engage Patient NEWS; and
WHEREAS, the parties desire to set forth their respective rights, responsibilities, practices, and parameters with respect to various projects which Client may engage Patient NEWS, from time to time (each, a “Project”), to provide certain marketing and promotional services and/or execute promotional programs as the parties may agree (“Management Services”) pursuant to a Statement of Work (as defined below).
NOW, THEREFORE, in consideration of the above recitals which are incorporated herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged the parties agree as follows:
ACKNOWLEDGEMENT: Client hereby acknowledges that they are over the age of eighteen (18) years, and that all the information set forth in this Agreement is true, accurate, and a full and complete disclosure thereof. You hereby authorize any holder of this Agreement or any person, firm, or corporation requested to extend credit thereunder (including any employee or agent of any of them), to communicate with any person, firm or corporation including your employer, and any employee with the apparent authority to make payments due under this Agreement, for the purpose of reviewing the account, assessing potential increases to the credit, for the purpose of taking collection action on the account, or for other legitimate purposes associated with the account. You further authorize any holder of this Agreement, the creditor thereof, any attorney, debt collector or collection agency communicating any and all information concerning this application or debt to any credit reporting agency or other creditor. You further acknowledge and agree that you will notify the creditor or prospective creditor in writing of any changes in your name, address, or employment within a reasonable time thereafter. Client further acknowledges that (1) it has read Patient NEWS’ Terms & Conditions; (2) said Terms & Conditions are incorporated into this Agreement; (3) agrees to be bound by said Terms & Conditions, and; (4) to the extent there is a conflict between this Agreement and the Terms & Conditions, the terms of this Agreement shall control.
PROMISE TO PAY: Client promises to pay to Patient NEWS the Amount pursuant to the payment schedule and scope of work enclosed. Client also promises to pay all other amounts that may become due under the terms of this Agreement.
SCOPE OF WORK: Per agreed upon Statement of Work. Account Management, as well as editorial/design/production and support services, will be reserved based on this agreement.
PZ Connector terms and conditions, if applicable, can be found at patientnews.com/terms-conditions-pz-connector.
Service fees for tracking and/or scored marketing telephone numbers (in addition to 1-free with Acquisition/WebLift™ campaigns) are due upon activation. Scored lines include 35 calls/line/month. Additional calls $1.50 each.
Pricing: Pricing is subject to change at any time. Special pricing is provided based on campaign plan. Prices do not include any state and local taxes which may apply. Any such taxes are the responsibility of the client. Payment terms based on product type and deployment schedule. Non-refundable design/setup/deposit fees due upon signing. Print deposits will be credited against first campaign invoice. Monthly billing for campaigns commences upon approval or after 30-days (standard marketing campaign lead time), whichever is first. Print quantities/frequencies are subject to fluctuation. Acquisition list fluctuations of more/less 12% are flagged. Interruption and/or decrease to annual campaign will result in a pricing adjustment invoice to standard rates.
WebLift™: Patient NEWS cannot accept responsibility for damage caused by unauthorized access to client website during WebLift™ campaigns. Associated costs will be the sole responsibility of the client. Client will retain exclusive ownership of all rights, title, and interest in all content which the client provides to Patient NEWS. This includes website domain name (if domain was purchased and registered by Patient NEWS, Patient NEWS will take reasonable measures to assign the domain name to Client upon termination of agreement). For clarity, all other website elements including any/all licenses, plug-ins, stock licensed videos, new patient intake form, licensed stock imagery, managed social marketing, local SEO, licensed images, reputation monitoring, etc., will be owned by Patient NEWS upon termination of the agreement.
PREPAYMENT OF AGREEMENT: Client may prepay all or part of the unpaid part of the total amount due under this Agreement at any time without penalty. Partial prepayments will not change the due dates or amounts of subsequent monthly payments.
AGREEMENT TERM AND CANCELLATION: The initial term of this Agreement shall commence upon signing and continue twelve (12) months from when the first payment is due (the “Initial Term”). Client may cancel this Agreement prior to the date on which the design and/or content consultation between the parties is initially scheduled. After that initially scheduled date, Client may not cancel* the Agreement until the total amount of the initial term of this Agreement has been paid.
* Direct mail campaigns work best when they are executed consistently. Direct mail is the only medium to reach 100% of targeted homes, and when deployed monthly over time, builds practice awareness as people begin to recognize the brand, messaging, and services. Frequency builds recognition, trust, and confidence with consumers. When executed per plan, average direct mail campaigns generate a 6:1 ROI into year two and can be as high as 15:1. While we know this to be true in 98% of markets, we understand that some locations may be more challenging to penetrate due to higher levels of competition or other market forces. For this reason, a client may cancel their initial term after 7 months of mailing if 2:1 ROI is not achieved based on actual projected practice production pulled directly from your PMS into Practice ZEBRA.
RENEWAL: Once the Initial Term has been completed, the Agreement will either automatically renew for either: (1) another twelve (12) months; or (2) on a month-to-month basis, depending on Client election, unless Client provides Patient NEWS with a written notice at least 30 days prior to the completion of the Initial Term. Patient NEWS may cancel this Agreement with Client in the same manner or in the event of Default as set forth herein. Acceptable cancellation notices include email, fax, and written letter. After the Initial Term, campaigns will automatically renew unless Client provides Patient NEWS with written notice at least 30 days prior to the completion of the current Additional Term, your Agreement will continue to automatically renew for an additional twelve (12) month period following the completion of said Term. Patient NEWS may cancel this Agreement with Client in the same manner or in the event of Default as set forth herein. Acceptable cancellation notices include email, fax, and written letter.
DEFAULT: To the extent permitted by law, Client will be in default if: (1) Client fails to pay any payment within 5 calendar days of the scheduled payment date; (2) Client breaks any of your promises in this Agreement or the Terms of Service incorporated into this Agreement; (3) bankruptcy or insolvency proceedings are initiated by or against you, or (4) Patient NEWS, in good faith, believes that Client will be unable or unwilling to fulfill any of the Client obligations under this Agreement. If any event of default occurs, Patient NEWS may exercise any and all of our remedies against Client. All remedies are concurrent and cumulative.
REMEDIES: If Client is in default of this Agreement, Patient NEWS will have all of the remedies available by law, in equity, and by this Agreement. Those remedies include, but are not limited to: (1) liquidated damages, in a sum equal to the total amount owed under the Agreement, less credits for any timely payment previously made by You; (2) except as prohibited by law, sue Client for all amounts owing under the Agreement, as well as the liquidated damages; (3) charge interest at a rate of 18% per annum, or the maximum rate permitted by law, until all amounts due under this Agreement are paid in full; (4) to immediately terminate any services provided to Client under this Agreement, and; (5) exercise any and all remedies in the Terms of Service.
TRANSFER OF AGREEMENT: Patient NEWS may assign this Agreement to any third party without prior notice to Client. After an assignment, the third party will become the holder of this Agreement. If Patient NEWS assigns this Agreement, Client will receive notice of where to make your payments. Client agrees to make all payments provided for in the Agreement to such third party upon written notification to Client of the assignment.
WARRANTY OF AUTHORITY AND ACKNOWLEDGEMENTS: By signing the Proposal on behalf of the Client, the signer hereby affirmatively represents that he or she: (i) is over the age of eighteen (18) years; (ii) has provided true and accurate information to Patient NEWS in connection with this Agreement; (iii) has read this Agreement in its entirety, knows and understands its contents, and has resolved any questions pertaining to the agreement to the extent he or she deems necessary; (iv) has authority to execute this Agreement on behalf of Client and to legally bind the Client to the Agreement; and (v) executes this Agreement acting in said capacity.
CREDIT REPORT NOTICE: If signatory or Client is a consumer as defined by law, they are hereby notified that a negative credit report about your account may be submitted to a credit reporting agency if Client is late or misses a payment or have other defaults on account.
WAIVER OF CLASS ACTION: Client agrees that you waive your right to initiate or participate in a class action related to this Agreement.
GOVERNING LAW AND INTERPRETATION: This Agreement shall be construed, enforced, and interpreted under the laws of the Province of Ontario and the federal laws of Canada therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
SEVERABILITY OF TERMS: In the event that any word, part, paragraph, or other portion of this Agreement shall be invalid, unlawful, or unenforceable, the remainder of this Agreement shall be severable, valid, and effective as if such invalid, unlawful, or unenforceable part, paragraph, or other portion was not included as part of this Agreement. Client further authorizes Patient NEWS to correct any clerical error or omissions in this Agreement or any related document.
MODIFICATION: No modification, amendment, or waiver of this Agreement shall be effective unless approved, in writing, by all parties hereto.
WAIVER: The waiver by an authorized agent of Patient NEWS to any breach of any of the provisions of this Agreement shall not operate or be construed as a waiver of any subsequent or simultaneous breach.
FORCE MAJEURE. Any delay or failure of either party to perform its obligations hereunder shall be excused if, and to the extent that it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence, such as acts of God, actions by any governmental authority, fires, floods, windstorms, explosions, riots, natural disasters, wars, labor problems, inability to obtain power, network or electric failures, material, labor, equipment or transportation.
COMPLIANCE WITH THE LAW. Should this Agreement, or any provision hereof, violate any applicable federal, state or local law or regulation, then the parties shall negotiate in good faith in an effort to modify this Agreement to the extent necessary to bring about compliance with such law and/or regulation.
NOTICE: Any notice required or permitted to be given under this Agreement shall be sent by either email, fax, or certified mail, return receipt requested. If the notice is from You to Patient NEWS, it shall be sent to 5152 County Road 21, Box 822, Haliburton, ON K0M 1S0 Canada. If sent by Patient NEWS to Client, such notice shall be sent to last known email, fax number, or mailing address. Any notice sent under this paragraph shall be effective on the date emailed or faxed, or if sent by certified mail, two calendar days after being sent.
“Agreement” means these Terms and Conditions, the Order Form, Statement or Work and the Privacy Statement incorporated herein by reference. “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes the Client Data, information derived from or concerning the Service, the System, or the Documentation and the terms of this Agreement.
“Privacy Statement” means, Patient NEWS’ Privacy Statement as amended from time to time, the most current version of which shall always be available at https://patientnews.com/privacy-policy. “Service” means the on-line service delivered by Patient NEWS to Client using the System, through the Local Software or other mobile or web applications, as made available by Patient NEWS from time-to-time as specified in the Order Form. “System” means the technology, including hardware and software, used by Patient NEWS to deliver the Service to Client in accordance with this Agreement. “UserID” is defined in Section 3.1. “Users” means Client’s employees, representatives, consultants, contractors or agents who are authorized to use the Service on behalf of Client and have been supplied user identifications and passwords for this purpose.
Installation. The obligations of Patient NEWS are subject to Client ensuring that, prior to commencement of the Installation Services, all hardware and networking capabilities required for use of the Service or specified by Patient NEWS are installed and in working order at the location Client intends to access the Service and that all necessary personnel of Client are available during Patient NEWS’ regular business hours.
Support. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Patient NEWS shall use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that Patient NEWS will not have an obligation to provide a correction for all such nonconformities.
Privacy Statement. Subject to the terms of this Agreement, Patient NEWS will maintain the privacy of Client Data and the security of the Service as described in and in accordance with the Privacy Statement.
Third Party Software. The Service receives data from third-party software systems, which will be designated by Client in the process of setting up the Service. If Client elects to change, upgrade or materially alter the third-party software system from which Patient NEWS receives data, Patient NEWS does not guarantee that all Client Data or Service functionality will be preserved. Client is responsible for communicating any changes in data structure, management system, or hardware upgrades that may impact Patient NEWS’ ability to receive and process Client Data.
User. Users may only access and use the Service with the specific UserID. Client is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Client is responsible for any and all activity occurring under the UserIDs associated with Users. Client will promptly notify Patient NEWS of any actual or suspected unauthorized use of the Service. Patient NEWS may require that a UserID be replaced at any time.
Client Responsibilities and Restrictions. Client will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Service. Without limiting the generality of Section 3.1, Client agrees that Client will not, and will not permit any person to:
(2.a) use the Service other than as permitted by this Agreement;
(2.b) use the Service to violate, infringe, or appropriate any person’s privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contractual rights, or any other legal right;
(2.c) sublicense or transfer any of Client’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a servicer bureau;
(2.d) copy, modify, alter, change, translate, decrypt, obtain, or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble, or reverse compile any part of the Service;
(2.e) use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service;
(2.f) access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions, or graphics of the Service, or (iii) copy any ideas, features, functions, or graphics of the Service; or
(2.h) interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.
Client Data. Client is solely responsible for the Client Data and will not provide, post or transmit any Client Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Patient NEWS may take remedial action if Client Data violates this Section 3.3, however, Patient NEWS is under no obligation to review Client Data for accuracy or potential liability. Except as provided in this Agreement or as required by law, Patient NEWS shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data, or for the improper or erroneous upload or extraction of any Client Data. Patient NEWS reserves the right to withhold, remove, and/or discard Client Data without notice for any breach, including, without limitation, non-payment of Fees.
Email Compliance. Client agrees to comply with all elements of CAN-SPAM, CASL, and other safe sender email practices in using the Service. This includes but is not limited to including unsubscribe links, full contact information in all correspondence, and not releasing private and/or confidential information. Client may only use email services for those Clients with which Client has an existing business relationship and which have indicated that they accept correspondence from Client. Client may not attempt to spoof sender domains, send spam, or other offending email practices. Because of carrier technologies, Patient NEWS makes no expressed or implied warranty of individual message receipt. Patient NEWS is not liable for any issues associated with the content that Client provides to its Clients.
Text Message Compliance. Client agrees to only use text message services for those of its Clients with which Client has an existing business relationship and which have indicated that they accept correspondence from Client. For reliable delivery, Client agrees to adhere to message limitations including length and delivery. Client may not attempt to spoof sender domains, send spam or other offending text message practices. Because of carrier technologies, Patient NEWS makes no expressed or implied warranty of individual message receipt. Patient NEWS is not liable for any issues associated with the content that Client provides to its Clients.
Credit Card Authorization. By submitting credit/debit card (“Bank Card”) data to Patient NEWS, Client authorizes Patient NEWS in its complete discretion to submit a financial transaction(s) for the Fees to Client’s issuing bank for settlement. Client agrees that once Patient NEWS has approved or declined Client’s transaction, Patient NEWS has fully performed under the terms of this Agreement. Client agrees to contact Patient NEWS in the event that Client desires to cancel any recurring charge, prior to the next billing cycle. Should Client fail to contact Patient NEWS, Client agrees to indemnify and hold Patient NEWS harmless from any losses or damages that Client suffers as a result of a recurring charge. In the event the Client identifies an error on Client’s account, including an incorrect amount or unauthorized transaction, Client agrees to contact Patient NEWS prior to the next billing cycle. Upon proper notification, Patient NEWS, in its sole discretion may issue a credit to Client’s Bank Card.
Confidential Information. Obligation. Subject to Sections 6.2 and 6.3, each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
System and Technology. Client acknowledges that Patient NEWS retains all right, title, and interest in and to the System and all software, materials, formats, interfaces, information, data, content and Patient NEWS proprietary information and technology used by Patient NEWS or provided to Client in connection with the Service (the “Patient NEWS Technology”), and that the Patient NEWS Technology is protected by intellectual property rights owned by or licensed to Patient NEWS. Other than as expressly set forth in this Agreement, no license or other rights in the Patient NEWS Technology are granted to the Client, and all such rights are hereby expressly reserved by Patient NEWS.
Feedback. Client acknowledges that any ideas, suggestions, concepts, processes, techniques, enhancement requests, recommendations, test results, data information, and other output or feedback, provided or generated by Client or any User during the term of this Agreement, relating to the use or functionality of the Service or Patient NEWS’ business, and any and all metadata, anonymized data, raw data and other information reflecting the access or use of the Service by Client (the “Feedback”), will become Patient NEWS’ exclusive property without any compensation or other consideration payable to Client or User by Patient NEWS, and Client hereby assign all rights on a worldwide basis in perpetuity to Patient NEWS in any Feedback and, as applicable, waives any moral rights therein.
Use of Anonymized Content. Client hereby grants Patient NEWS a perpetual, exclusive, irrevocable, worldwide, royalty-free, sublicensable, and transferable license to use, host, reproduce, distribute, license, display, perform, modify, and create derivative works of any and all Client Data in aggregated anonymized form. Patient NEWS will periodically, at Patient NEWS’ discretion, provide Client with reports reflecting the access and/or use of the Service and/or Client Data. To the extent required, Client agrees to obtain such rights and permissions from Users and Client’s patients as may be required to grant Patient NEWS the necessary rights to such anonymized data.
Client Data. Subject to Section 6.3, Client retains all right, title, and interest in and to the Client Data. Patient NEWS will only use Client Data to provide the Service under this Agreement. Client will be solely responsible for providing all Client Data required for the proper operation of the Service. Client grants to Patient NEWS all necessary licenses in and to such Client Data solely as necessary for Patient NEWS to provide the Service to Client. Subject to Section 6.3, Patient NEWS will not knowingly use or access any Client Data unless authorized to do so by Client and, in such circumstances, Patient NEWS will access and use such Client Data only as required to perform requested services on behalf of Client.
The service and any other products and services provided by Patient NEWS to Client are provided “as is,” “as available,” with all faults and without any warranties, representations, or conditions of any kind. Patient NEWS hereby disclaims all express, implied, collateral, or statutory warranties, representations or conditions, whether written or oral, including any implied warranties of merchantability, title, non-infringement, security, reliability, completeness, quiet enjoyment, accuracy, quality, integration, or fitness for a particular purpose. Patient NEWS does not warrant that the service will operate without interruption or be error free. Without limiting the generality of any of the foregoing, Patient NEWS expressly disclaims any representation or warranty that any data or information provided to Client in connection with Client’s use of the service (including alerts and recommendations) is accurate, or can or should be relied upon by Client for any purpose whatsoever. Patient NEWS makes no warranties or representations of any kind about the accuracy or completeness of any sites, applications, pages, or services linked to or through the service. Patient NEWS does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third-party through the service or any hyperlinked service or website featured in any user submission, banner, sponsor message or other advertising. Patient NEWS shall not be a party to or in any way be responsible for monitoring any transaction between the Client and any other user of the service or any third-party providers of any product or service.
By Patient NEWS. If any action is instituted by a third party against Client based upon a claim that the Service or System, as delivered, infringes any third party intellectual property rights in the United States or Canada, Patient NEWS shall defend such action at its own expense on behalf of Client and shall pay all damages attributable to such claim which are finally awarded against Client or paid in settlement of such claim. Patient NEWS may, at its option and expense, and as Client’s exclusive remedy hereunder, (a) procure for Client the right to continue using the Service, (b) replace or modify the System or Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Client’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. Patient NEWS shall have no liability to Client for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Client or of the use of the Service or System (i) after it has been modified by Client or a third party without Patient NEWS’ prior written consent, or (ii) in combination with any other service, equipment, software, or process not provided by Patient NEWS. This Section 9 sets forth the entire obligation of Patient NEWS and the exclusive remedy of Client against Patient NEWS or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright, or other intellectual property right by the Service or System.
Exceptions. Patient NEWS will have no liability to Client pursuant to Section 9.1, or otherwise under this Agreement, for any claim under Section 9.1, if: (a) Client or any User is in breach of any term or condition of this Agreement; or (b) such claim relates in any way to Client’s or any User’s use of the Service: (i) after it has been modified by Client or a third party without Patient NEWS’ prior written consent; (ii) in combination with any other service, equipment, software, or process not provided by Patient NEWS; or (iii) after Patient NEWS has notified Client to cease use of the Service, due to such a claim.
By Client. If any action is instituted by a third party against Patient NEWS arising out of or relating to: (a) Client’s use of the System or Service (including claims by any Client or business partner of Client); (b) Client’s breach of any of Client’s obligations, representations or warranties under this Agreement; or (c) an allegation that the Client Data, or the use of Client Data pursuant to this Agreement, infringes the intellectual property, privacy, or other right of a third party or otherwise causes harm to a third party, Client will defend such action at its own expense on behalf of Patient NEWS and shall pay all damages attributable to such claim which are finally awarded against Patient NEWS or paid in settlement of such claim. Client shall have no obligation under this Section 9.3 for any claim or action that is described in Section 9.1 or arises out of a breach of this Agreement by Patient NEWS.
Conditions. Any party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
Limitation of Liability
The following provisions have been negotiated by each party, are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
Amount. In no event shall Patient NEWS and its officers, directors, employees, or agents, be liable to the Client for any indirect, incidental, special, punitive, or consequential damages or loss of revenue, income, profit, reputation, goodwill, or Clients whatsoever resulting from use of or access to the service or the system, including without limitation resulting from any: (i) errors, mistakes, inaccuracies, or omissions in the service; (ii) personal injury or property damage, of any nature whatsoever, resulting from access to or use of the service; (iii) unauthorized access to, or use of, the service, Patient NEWS’ servers, personal information, or other information stored therein or thereon; (iv) interruption or cessation of transmission to or from the service; (v) termination of access to the service or removal of or refusal to display content; (vi) bugs, viruses, trojan horses, or the like, which may be transmitted to or through the service by any third-party or otherwise; or (vii) errors, mistakes, inaccuracies, or omissions in any content or for any loss or damage of any kind relating to the content, whether based on warranty, contract, tort, misrepresentation, or any other legal theory, and whether or not the affected parties are aware or have been advised of the possibility of such damages. In no event shall Patient NEWS’ suppliers or licensors have any liability arising out of or in any way connected to this agreement.
In the event that any other provision shall fail of its essential purpose, the total aggregate liability of Patient NEWS for any and all claims related to this agreement shall be limited to direct damages suffered by the Client, not to exceed the portion of the fees actually received by Patient NEWS from the Client in respect of the three (3) month period immediately preceding the event giving rise to the claim pursuant to the order form in connection with which the claim arose, even if the payment received by Patient NEWS during such three (3) month period is for an annual subscription. All claims that the Client may have against Patient NEWS will be aggregated to satisfy this limit and multiple claims will not enlarge this limit. Any action commenced against Patient NEWS for any and all claims related to this agreement, shall be brought within twelve (12) months after such cause of action shall have first arisen. In no event shall Patient NEWS be liable for procurement or costs of substitute products or services.
Client agrees that, with respect to any dispute related to this agreement: (i) Client hereby gives up Client’s right to have a trial by jury; and (ii) Client hereby gives up the Client’s right to participate as a member of a class of claimants, in any lawsuit including but not limited to class action lawsuits involving any such dispute related to this agreement.
Extent of Limitations. All foregoing limitations and exclusions of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Publicity. Patient NEWS and Client may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. All public announcements by either party concerning this Agreement are subject to prior written approval by Client and Patient NEWS, which approval shall not be unreasonably withheld. The parties will use reasonable efforts to review and approve public announcements within three (3) days of submittal. Client agrees to allow Patient NEWS to use Client’s name in Client lists and other promotional materials describing Client as a Client of Patient NEWS and a user of the Service.
Assignment. Client may not assign this Agreement to a third party without Patient NEWS’ prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by, or is under common control with Client. Patient NEWS may assign this Agreement or any rights hereunder to any third party without Client’s consent. Any assignment in violation of this Section 11.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
Arbitration. Except for any dispute related to the intellectual property rights of a party, any dispute or claim arising out of or relating to this Agreement shall be referred to and finally resolved by binding arbitration before a single arbitrator under the International Commercial Arbitration Rules of Procedure.
Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth on the Order Form for Client and for Patient NEWS at [email protected] or 5152 County Road 21, Box 822, Haliburton, ON K0M 1S0 (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail, (c) sent via fax or email, or (d) sent by recognized air courier service.
Entire Agreement. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals, or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
Amendments. Patient NEWS reserves the right to modify this Agreement or its policies relating to the Service at any time, effective upon posting an updated version of this Agreement on its website and giving notice to Client. Unless Client terminates this Agreement pursuant to Section 7.2, continued use of the Service after notice is given to Client of any such changes shall constitute Client’s agreement to such changes.
Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture, or employee-employer relationship is intended or created by this Agreement.