BY CLICKING “AGREE”, ACCESSING OR USING THE APPLICATION, YOU AGREE TO BE BOUND BY THESE TERMS AND THAT THEY CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN YOU AND CAREAND. IF YOU DO NOT AGREE TO THESE TERMS, CLICK “DISAGREE” AND DO NOT ACCESS OR USE THE APPLICATION.
As used in these Terms, the terms “you” and “your” shall be deemed to refer to the person who has downloaded the Application and any person who uses the Application. As used in these Terms, the terms “we,” “us,” and “our,” refers to Careand and its employees, directors, officers, subcontractors, representatives, and agents.
Please do NOT use the application for emergency or urgent medical matters. For all urgent or emergency matters that you believe may immediately affect your health, you must immediately call 911 or go to the nearest emergency room or urgent care facility.
1. THE APPLICATION AND SERVICES
The Application provides to users of the Application (“Users”) the following services (collectively, “Services”):
(i) arranging for physicians or other medical practitioners (each, a “Practitioner”) to answer to house calls (each, a “House Call”);
(ii) providing a platform “in the cloud” where Users can attend video consultations (each, a “Video Call”), book appointments online, talk to healthcare professionals, and more;
(iii) arranging appointments at a physical clinic where Users can walk in and be examined.
The provision of health care services (the “Health Care Services”) by Practitioners will constitute a separate agreement between you and the Practitioner and will not involve Careand as a party or otherwise. Careand is neither responsible nor liable for the Health Care Services provided by the Practitioner, including the availability or non-availability of such Health Care Services. For certainty, the term “Services” as it appears in these terms does not include the Health Care Services provided by a Practitioner. Any decision by you to accept the Services is a decision made in your sole discretion.
The Services are only for use within Canada by residents of Canada who are registered through the Application. You must be the age of majority in the jurisdiction of your residence. The Application and the Services are not permitted to be used by minors without direct supervision and guidance by a parent or legal guardian. For the purposes of these Terms, a “minor” is someone who has not reached: (a)the age eighteen; or (b) the age of majority in the jurisdiction from which the Application is being accessed in the event that the age of majority in such jurisdiction is greater than eighteen years. If you are a minor, you are not permitted to access, review or otherwise use the Application or the Services without direct supervision by and guidance of a parent or legal guardian. Notwithstanding the foregoing, the parent or legal guardian of a minor (“Family Member”) has the right to set up an account on the Application on behalf of such Family Member and to link such account to his or hers account in accordance with Section 7, to the extent permitted by law and provided such parent or legal guardian has legal authority to represent such Family Member. If you are accepting these terms for a Family Member, you agree to the terms, conditions, and notices contained or referenced herein on behalf of such Family Member.
3. MODIFICATIONS AND SUPPLEMENTAL TERMS
Careand reserves the right to modify these Terms at any time in our sole discretion. We will provide notice of such changes by providing a notice through the Application interface, or by providing notice using such other methods we deem appropriate, including by publishing a revised version of these Terms on the Careand’s website accessible at https://careand.ca (the “Website”) or by emailing the email address associated with your account on the Application. Such changes will be effective on the effective date specified in the revised Terms. Before you may continue accessing or using the Application after the revised Terms come into effect, Careand may require you to signify your acceptance of the revised Terms by electronically clicking on a button or similar means. By signifying your acceptance of the revised Terms or continuing to use or access the Application after the revised Terms have come into effect, you will be considered to have agreed to be bound by the revised Terms. If you object to any such changes, you may not continue to use or access the Application and your sole recourse will be to stop using the Application.
Supplemental terms may apply to certain Services, such as policies for specific activities such as arranging home visits. Supplemental terms are in addition to, and shall be deemed a part of, these Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
4. LICENSE GRANT
Subject to your compliance with these Terms, Careand grants you a limited, non-exclusive, revocable, personal, non-assignable and non-transferable license to access and use the Application for your personal, non-commercial use only. To the extent permitted by law, Careand may revoke or suspend this license at any time at its sole discretion without notice to you. This license will automatically expire upon the termination of these Terms.
5. USE RESTRICTIONS
You shall not use the Application for any purpose other than those authorized by these Terms. You agree that you will not do, or attempt to do, any of the following:
· use the Application to engage in any activity or conduct that violates the law, is abusive, dangerous, harassing, discriminatory, defamatory, tortious, obscene, or invasive of another person’s privacy;
· engage in any activity that could interfere with, disrupt, negatively affect, or inhibit other Users from fully using the Application, or that could damage, disable, overburden, impair or otherwise negatively affect the functionality of the Application or Careand’s network or computer systems;
· circumvent, disable, interrupt, limit or otherwise impair the security, access controls or copyright protections of the Application or Careand’s network or computer systems;
· without limiting the generality of the preceding, use the Application to publish, post, share, copy, store or distribute malware, including viruses, Trojan horses, worms, or any other similar applications that may damage the operation of the Application or any other person’s device, networks or computer system;
· permit any other person to use your login credentials or account on the Application unless you permit such other person to formally link his or her account to your account on the Application in accordance with Section 7;
· misrepresent your identity or impersonate any person when accessing or using the Application;
· infringe the rights (including, without limitation, intellectual property rights, including, copyright and related rights, trademark rights, patent rights, privacy rights, moral rights and rights of personality and personhood) of any person by using, accessing or uploading content on the Application;
· decompile, reverse engineer, disassemble or create derivative works of the Application;
· loan, rent, lease or otherwise provide the Application to any third party;
· solicit other Users for any purpose whatsoever;
· export, re-export, transfer or disclose the Application to or for any prohibited or restricted destination, end user or end-use;
· overuse the Application including, without limitation, request more than 20 Video Calls per year and 10 House Calls per year; or
· engage in any activity that violates, or encourage or promote any activity that violates, these Terms.
Without limiting the generality of any other terms herein, if Careand believes, at its sole discretion, that you have violated these Terms, Careand may immediately terminate or suspend your access to the Application.
You hereby agree:(i) to pay to Careand on the date hereof and on the same day of each following month or year thereafter by credit card, a recurring fee (the “Recurring Fee”), plus taxes, as consideration for the access to and use of the Application; (ii) that Careand may, without notice to you, adjust the Recurring Fee from time to time in accordance with the fee schedule available on the Website at https://careand.ca and that any such adjustment will be automatically applicable to the Recurring Fee payable by you.
You hereby expressly authorize Careand to charge any and all fees and applicable taxes for any and all purchases that you make through the Application (“In-App Purchases”) to the credit card that is used to pay the Recurring Fee.
You further agree that the Recurring Fee or any fee charged for In-App Purchases does not include any fees that may be charged for Health Care Services provided to you (the “Professional Fees”) and that any such Professional Fees (some of which maybe insured under OHIP and some of which may be charged by or on behalf of a Practitioner on a fee for service or block billing basis) will be charged to you separately in accordance with applicable law. For clarity, such Professional Fees may be charged to the credit card that is used to pay the Recurring Fee or any fee charged for In-App Purchases.
7. LINKING ACCOUNTS
You have the right to permit one or more other persons to link his or her account on the Application to your account on the Application. If you take steps to permit one or more other persons to link his or her account on the Application to your account on the Application, you are deemed to have consented to sharing your Personal Information and your personal health information with such other person(s) and Careand shall have no liability whatsoever in respect with such sharing of Personal Information and personal health information. For the purpose of these Terms, “personal health information” shall have the meaning ascribed to that term in the Personal Health Information Protection Act, 2004 (Ontario).
8. INTELLECTUAL PROPERTY
You acknowledge that, unless specifically provided by you or a third party, any and all information, content, data, photographs, videos, databases, graphics, interfaces, web pages, text, files, software, product names, company names, trademarks, logos and trade names contained in or made available through the Application (collectively, the “Content”), including the manner in which the Content is presented or appears and all information relating thereto, is the property of Careand or its licensees, or the respective owner as indicated. All Content is protected by Canadian and worldwide copyright, trademark and other intellectual property laws and treaty provisions. Careand or its licensors grant you a limited, non-exclusive, revocable, personal, non-assignable and non-transferable license to use and display on your device the Content for your own personal, private and non-commercial use only.
All Content is and will remain the property of Careand, its licensors or its respective owner, whether or not specifically recognized or perfected under applicable law. All trademarks, trade names, logos or other words or symbols identifying the Application or Careand’s business, products and services (the “Marks”) are and will remain the exclusive property of Careand or its licensors, whether or not specifically recognized or perfected under applicable law.
You will not acquire any right, title, or interest in or to the Application, Content or Marks, except for the limited rights specified in these Terms. Careand or its licensors, as applicable, will own all rights in any copy, translation, modification, adaptation or derivation of the Application, including any improvement or development thereof.
If you choose to upload any content to the Application, including but not limited to photos, comments, responses, ratings, rankings, notes, opinions, health records and data (the “User’s Content”), you represent and warrant that you own the User’s Content, or have the necessary rights in or to the User’s Content, in order to grant Careand the rights provided under this Terms in respect of the User’s Content. You hereby grant to Careand and its affiliates a perpetual, royalty-free, worldwide, non-exclusive, transferable, sub-licensable license to use, on and in connection with the Application, the User’s Content. You hereby waive any and all moral rights in any User’s Content in favor of Careand and its officers, directors, employees, agents and affiliates. For certainty, nothing in these Terms shall be construed as authorizing Careand to use your personal health information for any purpose other than providing the Services.
Any content uploaded by an independent third party, including but not limited to, photos, links, “tweets” and “retweets”, responses, comments, blog posts, “likes”, links or endorsements for products and services on third party website and social media sites (“Third Party Content”), to the Application shall remain the property of the applicable third party. You agree that Careand does not control the use of, and is in no way liable for, any Third Party Content. Your use of Third Party Content is at your own risk and may be subject to additional licenses, policies and laws not set out in these Terms. For certainty, the mention of another person or its/his/her/their information, data, product or service on this Application should not be construed as an endorsement of that person or its/his/her/their information, data product or service.
9. NO MEDICAL ADVICE
All content uploaded to the Application is provided for general informational purposes only, and does not constitute any representation as to the medical or health conditions, or safety, efficacy, suitability, effectiveness of any treatments or consultations obtained through the Application, and is not intended to provide, or to be a substitute for, professional medical advice.
ALWAYS SEEK THE ADVICE OF A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PRACTITIONER FOR ANY QUESTIONS YOU MAY HAVE ABOUT ANY SYMPTOMS, ILLNESS OR OTHER CONDITION, INCLUDING THE SUITABILITY OR EFFECTIVENESS OF ANY PARTICULAR COURSE OF TREATMENT. NEVER DISREGARD ANY PROFESSIONAL MEDICAL ADVICE BECAUSE OF ANYTHING YOU READ ON THIS APPLICATION. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
By using the Application you consent to the collection, use and disclosure of your personal health information by the Practitioner providing Health Care Services to you (each, an “Authorized Contractor”), solely for the purpose of providing such Health Care Services to you, and you acknowledge that such Authorized Contractor may need to share any such personal health information with its agents and contractors, including, without limitation, Careand and other Practitioners, in connection with the services provided to the Authorized Contractor by such agents and contractors.
For clarity, Careand will only collect your Registration Information and Authorized Contractors may collect both your Personal Information and your personal health information.
11. APPLICATION STORE RULES
You will comply with all applicable restrictions, requirements and rules that govern applications downloaded through the application store through which you obtained the Application (for example, the Apple App Store or Google Play). If you download and use the iOS version of the Application, you acknowledge that these Terms are entered into by and between Careand and you and not with Apple Inc. (“Apple”). Notwithstanding the foregoing, you acknowledge that Apple and its subsidiaries are third party beneficiaries of these Terms and that Apple has the right (and is deemed to have accepted the right) to enforce these Terms. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. You acknowledge that you have reviewed the App Store Terms and Conditions (currently located at https://www.apple.com/legal/internet-services/itunes/ca/terms.html). These Terms incorporate by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple (currently located online at https://www.apple.com/legal/internet-services/itunes/dev/stdeula/). For purposes of these Terms, the Application is considered the “Licensed Application” as defined in the LAEULA and Careand is considered the “Application Provider” as defined in the LAEULA. If any terms of these Terms conflict with the terms of the LAEULA, the terms of these Terms will control. You further acknowledge and agree that in no event will Apple be responsible for any claims relating to the Application (including a third party claim that the Application infringes that third party’s intellectual property rights) or your use or possession of the Application, including but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. For other mobile operating systems, additional terms may apply to your downloading, installation and use of the Application, as set out in your agreement with the app store or other download facility that you use.
If you provide Careand with any comments, suggestions, recommendations, feedback or other information with respect to the Application (“Feedback”), including, without limitation, Feedback relating to modifications, enhancements and improvements to the Application, you agree that you have the right to provide such Feedback to Careand and hereby grant Careand an irrevocable, worldwide, perpetual, royalty-free license to use the Feedback for any purpose to the fullest extent permitted by applicable law.
CAREAND PROVIDES THE APPLICATION “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CAREAND DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHERMORE, CAREAND DOES NOT REPRESENT OR WARRANT THAT THE APPLICATION IS ERROR-FREE OR FREE FROM INFRINGEMENT, OR THAT THE APPLICATION OR ITS FEATURES WILL ALWAYS BE SECURE, RELIABLE, AVAILABLE, TIMELY, COMPLETE OR ERROR-FREE. YOUR RELIANCE ON ANY FEATURE OF THE APPLICATIONIS AT YOUR OWN RISK AND YOU AGREE TO ACCEPT RESPONSIBILITY FOR ALL OF YOUR ACTIVITIES IN CONNECTION WITH THE APPLICATION. Some jurisdictions do not allow limitations of implied warranties, so certain limitations stated above may not apply to you, in which case such warranties shall be limited to the extent permitted by applicable law.
14. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CAREAND, any Authorized Contractor, THEIR RESPECTIVE AFFILIATES, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AND AGENTS (COLLECTIVELY, “CAREAND PARTIES”) WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF YOUR USE OR INABILITY TO USE THE APPLICATION OR ANY ASSOCIATED DOCUMENTATION,OR YOUR RELIANCE OR INABILITY TO RELY ON ANY FEATURES OF THE APPLICATION,INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, PERSONAL INFORMATION, BUSINESS, GOODWILL, DATA OR COMPUTER PROGRAMS, BUSINESS INTERRUPTIONS, OR TO OTHER PECUNIARY LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL THE CAREAND PARTIES’ COLLECTIVE AND TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICES or the application EXCEED THE SUM OF FEES PAID BY YOU FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
In consideration of Careand’s license of the Application and provision of the Services to you, to the maximum extent permitted by law and unless prohibited by law, you agree to defend, indemnify and hold the Careand Parties harmless from and against any and all losses, damages, injuries (including death), causes of action, claims, penalties, interest, additional taxes, demands, and expenses, including reasonable legal fees and expenses, of any kind or nature arising out of or on account of, or resulting from, any third party claim or demand made to or against any of the Careand` Parties arising out of any of the following: (i) your failure to comply with these Terms; (ii) your negligence, willful misconduct, or fraud; (iii) Careand’s use, non-use or publication of your Feedback; (iv) your violation of any third-party right, including without limitation, any intellectual property right or related right, publicity, confidentiality, property or privacy right; (v) the infringement of another person’s rights by the User’s Content; (vi) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (vii) any misrepresentation made by you; (viii) you giving permission to another person to use your login credentials; or (ix) the linking of your account with the account of any other person on the Application or the linking of the account of any other person with your account on the Application. Notwithstanding the foregoing, we reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses. You will not settle any claims involving Careand without the prior written consent of an officer of Careand. This provision shall remain in full force and effect notwithstanding any termination of your use of the Application.
If you are dissatisfied with the services, your sole and exclusive remedy is to terminate these terms with Careand. You may terminate these Terms with Careand at any time and for any reason by deleting your account on the Application and deleting the Application from your device(s). No notice is required for you to terminate your use of the Application.
Careand may also terminate these Terms with you at any time and for any reason, at its sole discretion. No notice is required for Careand to terminate these Terms. This means that Careand may suspend or terminate your use of the Application, including any portion thereof, at any time and for any reason, without incurring liability of any kind. If, in Careand’s determination, the suspension might be indefinite or Careand has elected to terminate your access to the Application, Careand may use reasonable efforts to notify you.
Any provision of these Terms that contemplates performance or observance subsequent to any termination of these Terms, including without limitation Sections 8, 9, 10, 13,14, 15, 16, 17, 19, 20, 22, 23 and 25 , will survive any termination or expiration of these Terms and continue in full force and effect.
17. GOVERNING LAW
These Terms are governed by the laws of the Province of Ontario, and the federal laws of Canada applicable therein, and shall be treated in all respects as an Ontario contract, without reference to the principles of conflicts of law.
18. DISPUTE RESOLUTION
YOU ARE AGREEINGTO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TOPARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM.OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLEOR MAY BE LIMITED IN ARBITRATION.
TO THE EXTENTPERMITTED BY LAW, ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORTOR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY,CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLECLAIMS) BETWEEN YOU AND CAREAND or any Authorized Contractor ARISING FROM ORRELATING IN ANY WAY TO the provision of the SERVICES OR YOUR ACCESS OR USE OF THE APPLICATION WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered under the Arbitration Act, 1991 (Ontario) (the “Arbitration Act”) by one (1) arbitrator (the “Arbitrator”) in Toronto, Ontario. The Arbitrator shall be selected by the mutual agreement of the parties to the arbitration or, failing such agreement, shall be appointed by a judge pursuant to the Arbitration Act. The Arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this Section 18, including any unconscionability challenge or any other challenge that this Section 18 or the Terms are void, voidable or otherwise invalid. The Arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the Arbitrator will be final and binding on each of the parties to the arbitration and may be entered as a judgment in any court of competent jurisdiction.
You agree to arbitration on an individual basis. In any dispute, YOU WILL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS IN COURT OR IN ARBITRATIONOR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBEROR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The Arbitrator may not consolidate more than one (1) person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The Arbitrator has no power to consider the enforceability of this class arbitration waiver and any challenge to this class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this Section 18 is found to be unenforceable, such provision will be severed and the remainder of this Section 18 will be enforced.
These Terms cannot be assigned or transferred by you without the prior written consent of Careand. Careand may assign its rights and delegate its obligations under these Terms to any other person at Careand’s sole discretion. These Terms bind the parties to it, their heirs, successors, legal representatives and permitted assigns.
20. ENTIRE AGREEMENT
21. INJUNCTIVE RELIEF
You acknowledge that your unauthorized use of the Application or unauthorized disclosure, use or disposition of any Content or Marks would cause irreparable harm and significant injury to Careand that would be difficult to ascertain. Accordingly, you agree that Careand shall have right the under this Section 21 to obtain appropriate equitable relief in any court of competent jurisdiction, in addition to any other remedies that may be available under these Terms or at law. You waive the requirement of any bond being posted as security for such equitable relief.
22. NO WAIVER
If Careand fails to enforce any right arising under these Terms on any occasion, the failure shall not waive that or any other right.
Any provision of these Terms which is held by a court of competent jurisdiction to be illegal, invalid or unenforceable in such jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability and shall otherwise be enforced to the maximum extent permitted by law, all without affecting the remaining provisions of these Terms or affecting the legality, validity or enforceability of such provision in any other jurisdiction.
These Terms may not be construed more strictly against one party than the other. These Terms have been drawn up in the English language at the express request of the parties. Cetteentente et tout document y ayant rapport ont été rédigés dans la langueanglaise à la demande expresse des parties.
25. DATA CHARGES AND MOBILE DEVICES
You are responsible for obtaining the data network access necessary to use the Services. Data and messaging rates and fees of your network provider may apply if you access or use the Services from any device, including your mobile device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates to them. Careand does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. The Services maybe subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
Last Revised: Apr 22nd, 2020