Terms Of Service
OVERVIEW of TERMS AND CONDITIONS AND END USER LICENSE AGREEMENT
Last updated on December 2, 2019
These TERMS AND CONDITIONS AND END USER LICENSE AGREEMENT (the “Terms”) represent a legal agreement that explains your rights and obligations around your Use of the Phoenix Digital Health Inc. (“Phoenix DH”) website at http://www.phoenix.ca (the “Site”) and its web application (“WebApp”) available through the Site through which Phoenix DH offers its Services, all Content, and any new features or tools that may be added to them.
PLEASE READ THESE TERMS CAREFULLY.
Capitalized terms used in this Overview are defined in the Detailed Terms.
BY BROWSING THE SITE OR BY CLICKING “I ACCEPT” WHEN YOU OPEN AN ACCOUNT TO USE THE WEBAPP AND TO SUBSCRIBE TO OUR SERVICES, YOU ACCEPT THESE TERMS, CONSENT TO THE TRANSMISSION OF CERTAIN INFORMATION DURING ACCOUNT ACTIVATION AND DURING YOUR USE OF THE SITE, WEBAPP, ACCORDING TO OUR PRIVACY NOTICE, AND YOU:
1. REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD, ARE OF SOUND MIND, AND ARE OTHERWISE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT;
2. AGREE THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS AND THAT YOU WILL BE LEGALLY BOUND BY THESE TERMS, AND ANY OTHER AGREEMENTS THAT THESE TERMS REFERENCE, SUCH AS OUR PRIVACY NOTICE;
3. ACKNOWLEDGE THAT DISPUTES RELATED TO THESE TERMS WILL BE SETTLED BY BINDING ARBITRATION IN ONTARIO, CANADA IF BROUGHT WITHIN A SET TIME (Section 27);
4. ACKNOWLEDGE THAT YOU WAIVE YOUR RIGHTS TO A JURY TRIAL AND TO CLASS ACTIONS LAWSUITS FOR ANY MATTER RELATED TO THESE TERMS;
5. ACKNOWLEDGE AND AGREE TO USE RESTRICTIONS IN SECTION 14; DISCLAIMER IN SECTION 22, LIMITATION OF LIABILITY IN SECTIONS 23; AND EXPORT RESTRICTIONS SECTION 25.
IF YOU DO NOT ACCEPT ALL THESE TERMS AS PROVIDED DO NOT ACCESS OR USE THIS SITE AND DO NOT OPEN AN ACCOUNT TO SUBSCRIBE TO OUR SERVICES OR USE THE WEBAPP.
We may make some changes to or update these Terms from time to time without notice. It is your responsibility to check the Change Log on the last page of the Terms from time to time. If we make significant changes to these Terms, we will notify you of those changes and the date on which they will come into effect by posting an alert on the Site and we may also send you the notice by email.
WHEN YOU USE OR ACCESS THE SITE AND THE WEBAPP YOU ARE BOUND TO THE TERMS IN EFFECT ON THE DATE OF YOUR VISIT.
The current date of these Terms is posted at the top of this page and the first page of the Detailed
Terms.If you have questions about the Site, the WebApp, or our Services, please contact us at support@phoenix.ca.
DETAILED TERMS AND CONDITIONS AND END USER LICENSE AGREEMENT LAST UPDATED: December 2, 2019
Table of Contents
1. INTRODUCTION
2. ADDITIONAL TERMS
3. OUR PLATFORM AND SERVICES
4. DEFINITION
5. SSCOPE
6. CHANGES TO SITE AND SERVICES
7. ACCURACY OF CONTENT
8. PRIVACY NOTICE
9. ACCESSIBILITY
10. LOCATION
11. CASL AND CONSENT TO RECEIVE EMAIL
12. INTELLECTUAL PROPERTY RIGHTS AND LICENSES
13. SOFTWARE UPDATES AND UPGRADES
14. ACCESS AND RESTRICTIONS ON USE
15. SUBMITTING INFORMATION TO US
16. ACCOUNTS
17. TERMS FOR DOCTORS
18. TERMS FOR PATIENTS
19. MESSAGING SYSTEM
20. HYPERLINKS AND THIRD–PARTY SITE AND THE WEBAPP
21. THIRD-PARTY PAYMENT PROCESSORS
22. DISCLAIMERS
23. LIMITATION OF LIABILITY
24. INDEMNIFICATION
25. EXPORT RESTRICTIONS
26. OPEN SOURCE SOFTWARE
27. DISPUTE RESOLUTION
28. WAIVER OF JURY TRIAL AND CL ASS ACTIONS SUITES
29. CHANGES TO THESE TERMS
30. GENERAL
1. INTRODUCTION
These TERMS AND CONDITIONS AND END USER LICENSE AGREEMENT (the “Terms”) represent a legal agreement that explains your rights and obligations around your Use of the Phoenix Digital Health Inc. (“Phoenix DH”) website at http://www.phoenix.ca (the “Site”) and its web application (“WebApp”) available through the Site which Phoenix DH offers its Services, all Content, and any new features or tools that may be added to them.
PLEASE READ THESE TERMS CAREFULLY.
BY BROWSING THE SITE OR BY CLICKING “I ACCEPT” WHEN YOU OPEN AN ACCOUNT TO SUBSCRIBE TO OUR SERVICES AND TO USE THE WEBAPP YOU:
1. REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD, ARE OF SOUND MIND, AND ARE OTHERWISE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT;
2. AGREE THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS AND THAT YOU WILL BE LEGALLY BOUND BY THESE TERMS AND ANY OTHER AGREEMENTS THAT THESE TERMS REFERENCE, SUCH AS OUR PRIVACY NOTICE;
3. ACKNOWLEDGE THAT DISPUTES RELATED TO THESE TERMS WILL BE SETTLED BY BINDING ARBITRATION IN ONTARIO, CANADA IF BROUGHT WITHIN A SET TIME (Section 27);
4. ACKNOWLEDGE THAT YOU WAIVE YOUR RIGHTS TO A JURY TRIAL AND TO CLASS ACTIONS LAWSUITS FOR ANY MATTER RELATED TO THESE TERMS;
5. ACKNOWLEDGE AND AGREE TO USE RESTRICTIONS IN SECTION 14; DISCLAIMER IN SECTION 22, LIMITATION OF LIABILITY IN SECTIONS 23; AND EXPORT RESTRICTIONS SECTION 25.
IF YOU DO NOT ACCEPT ALL THESE TERMS AS PROVIDED DO NOT ACCESS OR USE THIS SITE AND DO NOT OPEN AN ACCOUNT TO SUBSCRIBE TO OUR SERVICES OR TO USE THE WEBAPP.
2. ADDITIONAL TERMS
These Terms may be supplemented by additional terms related to specific Content or Service options we may make available on the Site or through the WebApp (“Additional Terms”). REFERENCE TO THESE TERMS SHALL INCLUDE THE TERMS AND ANY ADDITIONAL TERMS. We will notify you of any Additional Terms and prompt you to review and accept them before you engage with the specific Content or Service option to which they may apply. If there are inconsistencies between these Terms and the Additional Terms, then the Additional Terms will control.
3. OUR PLATFORM AND SERVICES
We provide a secure telehealth platform through our WebApp (the “Platform”) that connects individuals seeking treatment for erectile dysfunction medication with licensed medical doctors who Evaluate those individuals and issue the appropriate prescriptions when clinically warranted (together the “Services”).
4. DEFINITIONS
Capitalized terms not otherwise defined in these Terms shall have the following meaning:
“Account” means an account created by a Patient to access Services via the WebApp.
“Account Record” means the Personal Information, Personal Health Information, (each as defined in the Privacy Notice) collected in the process of providing the Services and all other information in an Account.
“Affiliates” means the legal entities that (directly or indirectly) control, are controlled by, or are under common control with the named party, but only for as long as that control exists during the Term. For purposes of this definition,
“control” means (a) having, direct or indirect, or the power to direct the management or policies of an entity or (b) having beneficial ownership of at least 50% of the voting securities or other ownership interest or other comparable equity interests of an entity.
“Client” means a Patient.
“Content” means text, data, statistics, images, graphics, documents, forms, guidelines, video, audio or other multimedia content, software, or other information or material we provided on the Site and the WebApp and includes your Account Record.
“Doctor(s)” means a licensed medical doctor who has been engaged by Phoenix DH under a Contractor Agreement.
“Evaluate” means to have a Doctor review the Evaluation Questionnaire completed by a Patient and any additional information required by a Doctor to provide the Services.
“Evaluation Questionnaire” means a mandatory health questionnaire that a Patient completes when opening an Account.
“Feedback” means all comments and suggestions for improvement that you may provide to us by any means.
“Intellectual Property” means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including ideas, formulae, algorithms, concepts, techniques, processes, procedures, protocols, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source materials), tools, products knowledge, know-how, trade secrets, unpublished patent applications, and other materials or things, trademarks, trade names, and domain names;
“Intellectual Property Rights” means any and all legal protection now recognized by law or that in the future may be recognized by law anywhere in the world – whether by statute, at common law, or otherwise – relating to the Intellectual Property including patent law, copyright law and moral rights, trademark law, design patent or industrial design law, semiconductor chip or mask work law, trade secret law, confidential information, or any other statutory provision or common law principle applicable to these Terms that may provide a right in either the Intellectual Property or the expression or use of the Intellectual Property and all other applications, registrations, or grants of rights analogous to them, and including the right to apply for the any of them;
“Patient(s)” means an individual who creates an Account on the WebApp to receive Services.
“Person” means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, incorporated association, joint venture or similar entity or organization, including a government or department or agency of a government, and references to Person in these Terms incudes Patients and Doctors.
“Purpose” means to Use the WebApp to provide or receive Services.
“Use” or “Using” means to access, read, review, print, communicate, share, upload, or download Content or User Content.
“User” means any Person who visits or Uses the Site or the WebApp.
“User Content” means any text, data, images, graphics, documents, video, audio or other multimedia content that you submit to or upload onto the Site, or the WebApp other than Personal Information and Personal Health Information.
“we”, “us” or “our” means Phoenix Digital Health Inc., our Affiliates, and our respective officers, directors, employees, contractors, and consultants.
“you” or “your” means a Person who Uses the Site, the WebApp, or the Content as a visitor, a prospective Patient, a prospective Doctor, a prospective Patient, or a current Patient.
5. SCOPE
THE SITE, WEBAPP, AND CONTENT PROVIDED ON EITHER OF THEM ARE PROVIDED FOR YOUR GENERAL INFORMATION ONLY, DO NOT CONSTITUTE MEDICAL, SCIENTIFIC, LEGAL, OR ANY OTHER TYPE OF ADVICE. YOU SHOULD NOT RELY ON ANY OF THEM TO TAKE OR NOT TO TAKE ANY ACTION OR TO MAKE OR NOT MAKE ANY DECISIONS ABOUT YOUR MEDICAL CONDITIONS OR YOUR HEALTH WITHOUT CONSULTING A QUALIFIED PROFESSIONAL.
IF YOU RELY ON ANY CONTENT ON THE SITE OR THE WEBAPP, YOU DO SO AT YOUR OWN RISK, BUT NOTHING IN THESE TERMS IS INTENDED TO LIMIT YOUR STATUTORY RIGHTS.
6. CHANGES TO SITE AND SERVICES
We reserve the right to, at any time and for any reason to: (1) modify, suspend, or terminate the Site, the WebApp, and the Services and to reprice our Services, all without notice to you and without liability to you or to any third-party; (2) refuse to offer Services to any Person, or in any jurisdiction; and (3) to report verbal or written abuse of any kind (including threats of abuse or retribution) you make toward another User, our Clients, our directors, officers, employees, contractors, or our third-party service providers to the authorities.
7. ACCURACY OF CONTENT
We, and any other Persons involved in the management of the Site, and WebApp may make changes to the Content at any time and without notice. While we make commercially reasonable efforts to ensure that the Content is accurate, current, and free of typographical and other errors, occasionally some Content on our Site or WebApp may be inaccurate, incomplete, or may contain typographical or other errors (together “Errors”). We reserve the right, but we do not have an obligation to correct Errors or to change the Content, except as required by law. You should not take any updates to these Terms to mean that such Errors have been corrected.
8. PRIVACY NOTICE
We are committed to protect the privacy of your Account Record. You acknowledge and agree that your Use of the Site, the WebApp, and our Services and our collection, Use, and disclosure of your Account Record is governed by our Privacy Notice. Our Privacy Notice is hereby included by reference in these Terms. If there are inconsistencies between the Terms and the Privacy Notice, then these Terms will control.
9. ACCESSIBILITY
We aim to make the Site and the WebApp accessible to all. If you have any problems Using the Site or theWebApp, or accessing the Content please contact us at support@phoenix.ca.
10. LOCATION
We operate the Site and the WebApp and offer Services from Ontario, Canada. OUR SERVICES ARE ONLY MADE AVAILABLE WHERE THEY CAN BE LEGALLY OFFERED FOR SALE AND WE DO NOT REPRESENT OR WARRANT THAT ANY CONTENT IS LEGAL FOR USE IN ANY OTHER LOCATIONS. IF YOU USE THE SITE, THE WEBAPP, OR THE SERVICES FROM ANOTHER LOCATION, YOU MUST COMPLY WITH ALL PROVINCIAL, STATE, OR FEDERAL LAWS APPLICABLE IN THE LOCATION FROM WHICH YOU ACCESS THEM.
11. CASL AND CONSENT TO RECEIVE EMAIL
We comply with Canada’s Anti-Spam Legislation (“CASL”). We will ask for your explicit consent before we send you any marketing or promotional emails, newsletters, invitations to participate in surveys, or other reasons that are not central to the Purpose. You may provide your consent for such email communications in the “My Account” tab and under the “Settings” section, and you may withdraw your consent through the Consent Center, by using the “Unsubscribe” link available in any of our emails to you, or by contacting us at support@phoenix.ca.
You acknowledge and agree that by opening an Account we may contact you by email without your explicit consent for any purpose directly related to our legal rights, our obligations, and our ability to provide our Services to you such as: (i) providing you with information you requested from us or information we must send to you; (ii) operational communications about your Account or your subscription to our Services; (iii) changes to our Site, the WebApp, the Privacy Notice, these Terms or our Cookie Policy; (iv) any questions, reminders, notifications related to your Account or your use of your Account or addressing customer service issues and troubleshooting problems with your Account; (v) to notify and alert you about data breaches, and other fraud or security-related activities; and (vi) legal disclosures, communications about and arising from any manner of legal action; and any other reason notifications and alerts may be required by law.
12. INTELLECTUAL PROPERTY RIGHTS AND LICENSES
a. Ownership
Phoenix DH (or its licensors), own the right, title, and interest in and to Site, the WebApp, the Content, the Services and the Intellectual Property Rights in each of them. Nothing in these Terms grants you any rights, title, or interest in the Site, the WebbApp, or the Content, other than as explicitly provided below. Except as expressly provided under these Terms, we have not and do not grant you a license or any other rights of any type under any patents, know-how, copyrights, trade secrets, trademarks or other intellectual property that we own or control. You agree not to take any action that interferes, in any manner, with our Intellectual Property Rights with respect to the Site, the WebApp, and Content. All trademarks, service marks, logos, trade names and any other proprietary designations of Phoenix DH used in/on/with any Content on the Site or the WebApp are common law or registered trademarks of Phoenix DH. Any other trademarks, service marks, logos, trade names and any other proprietary designations used in/on/with any Content on the Site or the WebApp are owned by or operated under license from the respective third parties.You acknowledge that we may seek immediate injunctive relief, in addition to any other remedies available to us, if you violate this section of the Terms.
b. Licenses
Subject to these Terms, Phoenix DH hereby grants you a non-exclusive, non-transferable, revocable, non-sublicensable, and limited right license to Use the WebApp, together with the underlying software and software code solely for the Purpose and your personal, non-commercial use (the “License”). This License does not a transfer Phoenix DH’s or its licensors’ right, title, and interest in the WebApp or the Content from Phoenix DH or its licensors to you.
13. SOFTWARE UPDATES AND UPGRADES
The WebApp may periodically check for software updates or upgrades. By accepting these Terms, you agree to receive these types of automatic updates and upgrades without any additional notice. All the updates we may provide are subject to these Terms, unless such updates are accompanied by Additional Terms.
14. ACCESS AND RESTRICTIONS ON USE
a. Permitted Use
You may access and Use the Site, the WebApp, and the Content only according with these Terms and any Additional Terms, and according to all applicable laws and regulations in the location from which you are Using them.
b. Prohibited Uses
You acknowledge and agree that, your Use of the WebApp is limited to the License, as described in Section 12(b). If you engage in any of the following activities when Using the Site, the WebApp, the Content, or the Services, we have the right to terminate your Account and your subscription to the Services. Therefore, you agree that you:
Will not adjust, circumvent, or remove or try to adjust, circumvent, or remove any Intellectual Property Rights notices on the Site, the WebApp, or the Content in whatever medium and as it initially appeared on the Site, WebApp, such as copyright notices and any digital rights or other security technology embedded in any Content;
Will not Use the Site, the WebApp, the Content, or the Services or any Phoenix DH API for any purpose and in any manner that is, explicitly or implicitly, prohibited by these Terms, or that is inconsistent with our Privacy Notice; will not post, display, distribute, upload User Content, or expose Content that contravenes our Privacy Notice or violates the privacy, Intellectual Property Rights, or contractual rights of any Person, or that facilitate or promote activities that contravene, or is otherwise prohibited by applicable law in the location from which you Use them; will not defame or disparage anyone associated with us, or make any obscene, derogatory or offensive comments about us, the Site, the WebApp, or the Content or any other User, so as to bring us or any third party into disrepute or to cause us to be liable to any third party; will not Use the Site and the WebApp, the Content, or User Content to promote or condone hate or violence on any grounds;
Will not and will not attempt to decompile, copy, disassemble, modify, adapt, reverse engineer, or otherwise attempt to derive the source code for the WebApp, (except to the extent you may be expressly permitted to decompile under applicable law); distribute, encumber, sell, rent, lease, sublicense, transmit, perform, or publish, deep-link, create derivative works from or exploit the underlying software or source code of the WebApp, for the benefit of any third party;
Will not use any methods or tools to access, scrape, crawl or spider any pages of the Site and WebApp, or systematically collect, store, transmit, distribute, or retrieve data or other Content from our Site or WebApp to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, in any way; will not transfer the Content or any part of it without our express written consent, which is not granted in these Terms or any Additional Terms.
Will not damage, abuse, disable overburden, impair, or interfere with the security or the functioning of the Site or the WebApp, such as by distributing viruses or malware of any kind or other similar harmful software code; or transmitting unsolicited commercial electronic messages;
Will not sell, reproduce, modify or attempt to modify the Site, WebApp, or Content in any way, or reproduce, display, perform, distribute, or Use the Site, WebApp, or any Content in public or for any public or commercial activities; and will not copy any HTML or other programs that are available on the Site or the WebApp .
Will not use the WebApp or its software and underlying code as server software, for commercial hosting, make the software available for simultaneous use by multiple users over a network, install the software on a server and allow users to access it remotely, or install the software on a device for use only by remote users, or in whole or in part, whether modified or unmodified, incorporate the WebApp software and source code into other programs;
Will not represent or suggest that we endorse any other business, product or service unless we have separately agreed to do so with you in writing; and will not impersonate another Person or User, or otherwise misrepresent yourself or your affiliation with any Person; forge any TCP/IP packet header or any part of the header information in any email, or in any way Use the Site, Services, WebApp, Feedback, or User Content to send altered, deceptive, false source-identifying information; or attempt to obtain unauthorized access to the Site or WebApp or portions of either of them that are restricted from general access; open and Account using an e-mail address that you do not own; or submit any incomplete, false or inaccurate information, including without limitation incomplete, false or inaccurate biographical or health information when you open an Account or at any other time;
Will not Use, display, mirror, or frame the Site, WebApp, or the Content, or any part of them, Use our name or any of our trademarks, logs or other proprietary information, or the layout and design of any page or forms of the Site or WebApp without our express written consent;
Will not access, tamper with, or Use non-public areas of the Site or WebApp ; attempt to probe, scan, or test the vulnerability of any of our systems or networks, or to breach or attempt to breach any security or authentication measures; avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure we use to protect the Site, WebApp , Services, or the Content.
15. SUBMITTING INFORMATION TO US
a. General
You should not share through email, post on the public area of the Site, or in any Feedback, any material that contains Personally Information and Personal Health Information (both as defined in the Privacy Notice).
b. User Content
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit (“Make Available”) User Content on the Site and the WebApp and you acknowledge and agree that you are solely responsible for all User Content that you Make Available on the Site, WebApp .
Accordingly, you represent and warrant that (i) you either are the sole and exclusive owner of the User Content or that you have all the licenses, consents, and releases necessary to Make Available the User Content; and (ii) that the User Content, your use of it, or your Making it Available, does not infringe, misappropriate or violate a third party’s Intellectual Property Rights or any rights of publicity or privacy, or result in the violation of any applicable law or regulation.
User Content is not confidential information and we will not be liable for any Use and/or disclosure of such User Content. If you post or upload any User Content to the Site or the WebApp , you acknowledge and agree that, subject to our Privacy Notice, we may Use such information as we see fit, including to reproduce, transmit, publish, and post it, on any medium anywhere in the world for free.
You hereby grant to Phoenix DH a world-wide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to Use, copy, adapt, modify, distribute, license, publicly display, publicly perform, transmit, stream, broadcast, and otherwise exploit any User Content Made Available on the Site or the WebApp, and you hereby waive your Moral Rights (as defined in the Copyright Act, Canada or other similar legislation in other countries) in the User Content.
c. Feedback
We welcome and encourage your Feedback. You acknowledge and agree that all Feedback you give us is the sole and exclusive property of Phoenix DH and you hereby irrevocably assign to Phoenix DH all your right, title, and interest in and to the Feedback and all Intellectual Property Rights in it and hereby waive any Moral Rights you may have in the Feedback. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain our intellectual property rights and other legal protections for the Feedback.
16. ACCOUNTS
Eligibility
To open an Account, you must be at least eighteen (18) years old, of sound mind, otherwise legally able to be bound by these Terms, and have read these Terms and the Privacy Notice.
Registration
You can register for an Account to access the Services through the WebApp on the Site.You represent that you provided true, accurate, current, and complete information in your Account and warrant that you will update such information from time to time to keep it accurate, current and complete. We reserve the right to suspend or terminate your Account and your subscription to the Services if any information you provided when you opened your Account or at any time after that proves to be inaccurate, fraudulent, outdated, or incomplete.
Identity Verification
For our protection, we reserve the right, but do not have an obligation to, verify your identity through background checks and other identity verification services at our sole discretion.
Account Login credentials
Your Account login credentials will be created at registration. It is vital that you keep your login credential safe and not share them with anyone.YOU ACKNOWLEDGE AND AGREE THAT YOU ARE RESPONSIBLE FOR SAFEGUARDING YOUR LOGIN CREDENTIALS AND ARE SOLELY RESPONSIBLE FOR ANY ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIONS.
IF YOU SUSPECT THAT YOUR LOGIN CREDENTIALS MAY HAVE BEEN LOST, STOLEN, OR COMPROMISED, YOU MUST NOTIFY US IMMEDIATELY BY EMAIL AT SUPPORT@PHOENIX.CA.
Fees
Your Account subscription fee is payable monthly beginning at Account activation and is payable at the beginning of the following applicable billing period after the activation date. If a Subscription is cancelled during a pay period, the cancellation shall take effect at the next billing period for a monthly account. Account Suspension, Deactivation, or Termination
We may, at our discretion, with or without prior notice to you, and at any time, limit, suspend, deactivate or cancel your Account if we determine or suspect that you have engaged in a Prohibited Act, violated any other provisions of these Terms, or failed to pay an overdue invoice within 30 days of receiving our notice that your account is in arrears.
You may cancel your Account or a subscription for Services at any time via the “Delete Account” feature under the “Settings” tab in your Account or by sending us an email at support@phoenix.ca. Upon cancellation of an Account or a subscription for Services, your Account Record will be subject to our data retention and destruction policies outlined in our Privacy Notice.
17. TERMS FOR DOCTORS
Patient Data.
Doctors may request and may collect and use Patient Personal Health Information through our encrypted Messaging System (described below), to evaluate Patient eligibility for Service in compliance with applicable ethical requirements and privacy and data security laws.
18. TERMS FOR PATIENTS
Additional Information.
To determine if you are eligible to receive the Services, a Doctor may ask you for additional information, including Personal Health Information, to determine if you qualify to receive the Services. All information exchanged between you and a Doctor though our Messaging System is encrypted, is subject to our Privacy Notice, and becomes part of your Account Record.
Violation of Rights.
If you believe that your rights have been violated, please contact us at support@phoenix.ca and we will investigate the matter. We reserve the right to remove User Content where we have grounds for suspecting the violation of these Terms or the rights of any other party.
19. MESSAGING SYSTEM
Communications between Patients and Doctors on our Platform are carried out through our encrypted WebApp. The response rate and message frequency are determined exclusively by the Patient and the Doctor. DO NOT USE THE MESSAGING SYSTEM FOR MEDICAL EMERGENCIES OR ANYTHING OTHER THAN DETERMINING THE ELIGIBILITY OF A PATIENT TO RECEIVE THE SERVICES.
20. HYPERLINKS AND THIRD-PARTY SITE AND THE WE BAPP
The Site and the WebApp may contain hyperlinks or references to third-party websites that we provide for your convenience only, and those hyperlinks do not mean that we endorse those sites, their operators, or any products or services that may be sold on those sites. If we are associated with any third parties which we hyperlink on our Site or WebApp, we will make that association clear.
If you click on a link to a third-party site you will leave the Site or the WebApp and you will be subject to the terms and conditions of those sites. We have no control over these third-party websites, and we accept no responsibility for any content, material or information on them, or for your use or reliance on any of it.
21. THIRD-PARTY PAYMENT PROCESSORS
We do not collect or store your payment information. We use Stripe to automatically debit your Account subscription fee until you cancel your Account or subscription for the Services. All transactions are subject to Stripe’s Service Agreement and Privacy Policy. We will take steps to rectify any payment processing errors that are brought to our attention. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payment. Our Privacy Notice addresses the data security measures commonly employed by payment processors.
22. DISCLAIMERS
WE PROVIDE THE SITE, WEBAPP, ACCOUNTS, AND CONTENTS ‘AS IS’ AND ‘AS AVAILABLE’. WE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AND CONDITIONS THAT THE SITE, WEBAPP, ACCOUNTS, SERVICES, AND CONTENT WILL BE OF SATISFACTORY OR MERCHANTABLE QUALITY; FIT FOR ANY PARTICULAR PURPOSE; NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; FUNCTION OR BE AVAILABLE UNINTERRUPTED, SECURE, ERROR-FREE, ACCURATE, CURRENT, OR COMPLETE; OR ANY IMPLIED REPRESENTATIONS OR WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, OR THE COURSE OF USAGE OR TRADE OF ANY OF THE FOREGOING.
YOU ARE, AND WILL AT ALL TIMES BE, SOLELY RESPONSIBLE FOR ANY MEDICAL-RELATED DECISIONS YOU MAKE OR NOT MAKE BASED ON ANY, CONTENT, OR DATA DOWNLOADED OR OTHERWISE ACCESSED THROUGH THE PLATFORM OR RECEIVED THROUGH THE SERVICES. IF YOU ARE A DOCTOR, YOU ARE SOLELY RESPONSIBLE FOR PROVIDING SOUND MEDICAL ADVICE TO A PATIENT IN PROVIDING THE SERVICES.
23. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, WEBAPP, ACCOUNT, SERVICES, AND CONTENT REMAINS WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES WITH WHOM YOU MAY COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, WEBAPP, ACCOUNT, OR SERVICES AND YOU AGREE TO TAKE REASONABLE PRECAUTIONS TO PROTECT YOUR ACCOUNT INFORMATION IN ALL SUCH REGARDS.
IF YOU ARE DISSATISFIED WITH THE SITE, WEBAPP, YOUR ACCOUNT, THE SERVICES, THE CONTENT, THESE TERMS, OR ANY ADDITIONAL TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP USING THE SITE, WEBAPP, CONTENT, OR SERVICES AND TO CLOSE YOUR ACCOUNT.
WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, RELIANCE, SPECIAL OR OTHER DAMAGES, HOWEVER THEY ARISE, INCLUDING WITHOUT LIMITATION, ILLNESS, INJURY (INCLUDING DEATH OR DISABILITY), EMOTIONAL DISTRESS, DAMAGES FOR INCONVENIENCE, HARM TO BUSINESS OR PERSONS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR PROGRAMS, OR OTHER DATA ON YOUR DEVICE ARISING, DIRECTLY OR INDIRECTLY FROM (1) YOUR DECISION TO PROVIDE OR TO SEEK SERVICES, (2) YOUR USE OF, OR THE INABILITY TO USE YOUR ACCOUNT, THE SITE, THE WEBAPP, THE SERVICES, OR THE CONTENT, FOR ANY REASON; (3) YOUR USE OR RELIANCE ON ANY CONTENT, INFORMATION, PRODUCTS, OR SERVICES ON ANY LINKED SITES, (4) THE CLINICAL DECISIONS OF A DOCTOR IN PROVIDING OR NOT PROVIDING SERVICES AND ANY OTHER MATTERS RELATED THERETO, (5) THE ACTS OR OMISSIONS OF ANY THIRD-PARTY, INCLUDING USERS AND OUR SERVICE PROVIDERS, (6) YOUR COMMUNICATIONS OR INTERACTIONS WITH ANY OTHER USERS OF THE SITE, WEBAPP, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, WEBAPP , OR SERVICES, OR (7) ANY ERRORS OR OMISSIONS IN THE CONTENT, THE SITE, THE WEBAPP , OR YOUR ACCOUNT; (8) OUR OR YOUR TRANSMISSION OF CONFIDENTIAL INFORMATION, PERSONALLY IDENTIFIABLE INFORMATION, PERSONAL HEALTH INFORMATION, PERSONAL DATA, DATA CONCERNING HEALTH, OR OTHER SENSITIVE INFORMATION THOUGH THE INTERNET, INCLUDING BY EMAIL, TO OR FROM THE SITE, THE WEBAPP, OR YOUR ACCOUNT; ALL WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY OF LIABILITY, AND WHETHER OR NOT WE HAD BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN THAT REGARD.
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOREGOING EXCEED THE TOTAL SUBSCRIPTION AMOUNT YOU PAID OVER THE PAST 12 MONTHS. THESE LIMITATIONS AND EXCLUSIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
24. INDEMNIFICATION
You hereby agree to release, defend, indemnify, and hold us harmless from and against any and all liabilities, damages, claims, threats, losses, fines, fees and expenses (including reasonable attorneys’ fees and expenses), (individually a “Claim” and together “Claims”) made by a third-party arising directly or indirectly out of: a) your Use or reliance on the Site, WebApp , Services, Account, or Content, (b) your breach of these Terms, and any Additional Terms, or the Privacy Notice; (c) your User Content; (d) your violation of any rights of a third-party, (e) your use, reliance on, or engagement of any kind with any of our service providers and (f) your use or reliance upon any sites linked on the Site or WebApp , or your commercial or other relationship with the operators of those sites and any contract for products or services of those parties that you may have entered, (g) injuries, disability, or death from receiving the Services , and (h) any and all acts or omissions of a Doctor made in providing Services to you. In addition, you agree to reimburse us for any and all costs, attorney’s fees and expenses we may incur to enforce the provisions of this Agreement against you, whether by arbitration, prosecution of a lawsuit, or otherwise. You will not be required to indemnify us, to the extent allowed by law, where such Claims are caused by our gross negligence or willful misconduct.
25. EXPORT RESTRICTIONS
You must comply with all domestic and international export laws and regulations that apply to the WebApp software, which include restrictions on destinations, end users, and end use. WE MAKE NO REPRESENTATION THAT THE WEBAPP SOFTWARE IS APPROPRIATE FOR USE IN THE JURISDICTION FROM WHICH YOU ACCESS IT. You acknowledge that none of the WebApp software or underlying information or technology will be downloaded or otherwise exported or re-exported into (or to a national or resident of any countries subject to Canadian export restrictions or U.S. trade embargo. By using the WebApp software, you agree to this term and represent and warrant that you are not located in or under the control of a national or resident of any such country or on any such list.
26. OPEN SOURCE SOFTWARE
The WebApp software licensed to you in Section 12(b) of these Terms may include “Open Source” software (computer software that is distributed under a licensing arrangement, which provides that the computer code can be shared, viewed, and modified by the public). The restrictions in Section 14(b) only apply to our Platform Software when and to the extent that they do not conflict with any terms of the applicable Open Source software license(s).
27. DISPUTE RESOLUTION
You and we agree to settle any dispute, claim, or controversy arising directly or indirectly from the enforcement, interpretation, validity, breach, and termination of these Terms, any Additional Terms, or the Privacy Notice (collectively, “Disputes”) though good faith negotiations after providing to the other a written Notice of Dispute.
If we cannot find a resolution within 21 business days from the Notice of Dispute, then the Dispute will be settled by binding arbitration, except that we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our Intellectual Property Rights.
YOU AND WE MUST FILE A NOTICE OF DISPUTE FOR ARBITRATION (EXCEPT INTELLECTUAL PROPERTY DISPUTES) WITHIN ONE YEAR FROM THE DATE WHEN THE MATTER AT ISSUE FIRST AROSE, OTHERWISE NEITHER OF US WILL ABLE TO INITIATE ARBITRATION OR SEEK LEGAL RECOURSE FOR THAT MATTER.
Any Dispute shall be determined by arbitration administered by the International Centre for Dispute Resolution (ICDR) Canada in accordance with its Canadian Arbitration Rules (the “Rules”). The arbitration shall be conducted in Ontario Canada, in the English language, by a single arbitrator appointed under the Rules. The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. The arbitration will include a written confidential record of the arbitrator’s findings, which shall be final. An award of arbitration may be entered in a court of competent jurisdiction.
This section will survive any termination of your Account or the termination of your subscription for Services.28. WAIVER OF JURY TRIAL AND CLASS ACTIONS SUITESYou acknowledge and agree that, subject to the Dispute Resolution provision, you and we each hereby waive our respective rights to a trial by jury and your waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding against us.
This section will survive any termination of your Account or the termination of your subscription to Services.
29. CHANGES TO THESE TERMS
We may make some changes or updates to these Terms from time to time without notifying you. A log of such changes will appear in the Change Log on the last page of these Terms. The changes will come into effect on the day they are made. It is your responsibility to check these Terms and the Change Log from time to time.
If we make significant changes to these Terms or replace them completely, we will post a notification banner on the Site and in the WebApp to alert you to the changes and the date on which they will come into effect. We may, but is not required to, also notify you by e-mail about such significant changes to these Terms. WHEN YOU USE OR ACCESS THE SITE AND THE WEBAPP , YOU ARE BOUND TO THE TERMS IN EFFECT ON THE DATE OF YOUR VISIT.
30. GENERAL
Relationship of The Parties. We and you are independent contractors under these Terms and these Terms do not and shall not be construed to create a partnership or joint venture, agency relationship, or employment relationship between us. Neither we nor you have the right or authority to create any obligations on each other’s behalf.
Entire Agreement. These Terms, any applicable Additional Terms, the Privacy Notice and the Cookie Policy, and any other documents incorporated by reference in these Terms, contain the entire understanding and agreement between us and you in relation to your Use of the Site, the WebApp, the Content and the subscription to and Use of the Services, and supersede any prior agreements between you and us, including, but not limited to, any prior versions of these Terms. For the avoidance of doubt, these Terms to do supersede the separate contractor agreements between us and each Doctor.
Force Majeure. We are not liable to you for our breach of these Terms caused by any event or circumstance beyond our reasonable control including, without limitation, strikes, lock-outs, and other industrial disputes, breakdown of systems or network access, flood, fire, explosion, accident, cyber or terrorist attacks.
Severability. If any part of these Terms is found void and unenforceable by a court or arbitrator of competent jurisdiction, then that provision shall be severed from these Terms, then the rest of these Terms will remain valid and enforceable.
Cumulative Remedies. Other than as expressly stated in this Agreement, and subject to the Dispute Resolution provision, the remedies provided in this Agreement are in addition to, and without prejudice to, any other remedies we or you may have at law or in equity.
Waiver. If we choose not to enforce any right that we have against you at any time, this does not prevent us from later exercising or enforcing that right.
Assignment. You may not assign, sub-license or otherwise transfer any of your rights and obligations in these Terms to any other Person without our prior written consent, which we may give or withhold, at our sole discretion. We may assign these Terms without notice to you or consent from you.
Governing Law and Jurisdiction. These Terms shall be governed by and interpreted under the laws of the Province of Ontario and the laws of Canada applicable in Ontario, without regard to principles of conflicts of laws that may impose the laws of another jurisdiction. Subject to the Dispute Resolution provisions, you and we irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario regarding any dispute or claim that may arise from or in connection with these Terms.
Enurement. These Terms will be binding upon and inure to your and our benefit and to the benefit of your or our respective heirs, successors, permitted assigns and legal representatives, as applicable.
Statutory Rights. This Agreement shall not prejudice your statutory rights as a consumer.
Survival. Any provisions of these Terms that require or contemplate performance after termination and by their nature must survive the termination of your Account or your subscription for Services, will so survive such termination.
Acknowledgement. You agree that you have read these Terms before using the Site, WebbApp, Content, or the Services, including any linked terms. You understand that by using the Site, WebbApp, Content, or the Services, you agree to be bound by these Terms and the linked terms in it.
If you have any questions regarding these Terms or if you wish to request any information from us please contact us by email at support@phoenix.ca or by mail at Phoenix Digital Health Inc. at 110 Bond St., Toronto, Ontario M5G 1L5 Canada.
These Terms are in effect as of December 2, 2019.
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