| Pearl Interactives

TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.

These Terms of Service constitute an agreement (this “Agreement”) by and between Pearl Interactives Inc., a corporation incorporated under the laws of Canada and having a registered office at 150 Kilgour Road, Toronto, Ontario, M4G 1R8, Canada (“Pearl”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”), each a “Party” and collectively the “Parties”.

This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of, and Pearl’s provision of, the Product and the Platform (both as defined below) are both governed by this Agreement.

THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO.

ARTICLE I
DEFINITIONS

1.1 Definitions.

In this Agreement, the following terms will have the following meanings:

(a) “Customer Data” means information, data and other information, data, documents, materials, works, and other content (including Personal Information and Personal Health Information), devices, methods, processes, hardware, software, and other technologies and inventions, in any form or medium, that is collected, downloaded or otherwise received, accessed, or obtained, directly or indirectly from Customer by or through the Platform or that incorporates or is derived from the processing of such information, data or content by or through the Product or the Services.

(b) “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly by Customer or through the use of third-party services.

(c) “Platform” means Pearl’s cloud-based software application (or applications) that Pearl provides remote access to, and use of, as part of the Services connected to the Product, and all new versions, updates, revisions, improvements and modifications of the foregoing.

(d) “Pearl Systems” means the information technology infrastructure used by or on behalf of Pearl in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Pearl or through Pearl’s use of third-party services.

(e) “Governmental Authority” means any federal, state, county, city, provincial, territorial, municipal or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

(f) “Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.

(g) “IP Rights” means any and all registered and unregistered intellectual property rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trade-mark, trade secret, moral right, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.

(h) “Law” means any law, policy, statute, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority applicable to the provision of Services under this Agreement.

(i) “Losses” mean all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees, disbursements and charges, and the cost of enforcing any right to indemnification hereunder.

(j) “Order” means an order to subscribe to the Product and the Platform, which is signed by both Parties and references these Terms of Service.

(k) “Personal Information” means any information that, individually or in combination, does or can identify a natural person, or by or from which a natural person may be identified, contacted or located.

(l) “Personal Health Information” means identifiable health information about a person in any form, including physical records, electronic records, or spoken information, as well as any prescribed categories of health information, by statute or regulation, in force in that person’s jurisdiction.
(m) “Representatives” means, with respect to a party, that party, its affiliates, and their respective employees, officers, directors, consultants, agents, independent contractors, subcontractors, and legal advisors.

ARTICLE II
PRODUCT, PLATFORM, AND SERVICES

2.1 Product Sale and Delivery. In exchange for the Fees set out in section 3.1:

(a) Pearl agrees to sell and deliver the Product to the Customer; and

(b) Customer agrees to purchase the Product, and pay for all associated shipping costs required for delivery of the Product to the Customer.

(c) The risk of loss for, or damage to, the Product will be on Pearl until successful delivery to the Customer, at which point it will transfer to the Customer. However, Pearl will have no liability for inconvenience or harm caused to the Customer due to shipping delays.

2.2 Services. Subject to compliance with the terms of this Agreement by Customer, during the Term, Pearl will provide to Customer the services described in the Order (the “Services”).

2.3 Authorization to Access and Use Platform. Pearl hereby grants to Customer and Customer’s patients the non-exclusive and non-transferable (except as set forth herein) authorization to access and use the Platform to receive the Services as set forth in the Order in accordance with the conditions and limitations set forth in this Agreement.

2.4 Platform Authorization Limitations and Restrictions. Customer will not access or use (or authorize anyone else to access or use) the Platform or the Services to:

(a) copy, modify or create derivative works or improvements of the Platform;

(b) sub-license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party;

(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform, or any part thereof;

(d) bypass or breach any security protocols connected to the Pearl Systems to access or use the Platform;

(e) intentionally input, upload, transmit, or otherwise provide to or through the Platform any harmful or malicious code or data;

(f) intentionally or recklessly damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Platform or Pearl’s provision of services to any third party;

(g) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices on the Platform;

(h) access or use the Platform in order to infringe, misappropriate, or otherwise violate any IP Right of any third party; or

(i) access or use the Platform for purposes of competitive analysis of the Services, including the development, provision, or use of a competing software service or product.

The Customer agrees to use all reasonable efforts to prevent any unauthorized access to, or use of, the Platform and, in the event of any such unauthorized access or use, promptly notify the Pearl.

2.5 Changes. Pearl reserves the right, in its sole discretion, to make any improvements to the Platform that it deems necessary or useful to:

(a) maintain or enhance the quality or delivery of the Services, or the cost efficiency or performance of the Services; or

(b) to comply with applicable Law.

ARTICLE III
FEES AND PAYMENT TERMS

3.1 Fees. Customer will pay Pearl the subscription fees set forth in the Order (the “Fees”) in accordance with this ARTICLE III.

3.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments, unless expressly stated otherwise. Without limiting the foregoing, Customer is responsible for all taxes of any kind imposed by any Governmental Authority on any amounts payable by Customer.

3.3 Payment. Customer will pay all Fees on or before the due date set forth in the Order. Customer will make all payments hereunder in Canadian dollars by credit card, cheque, wire transfer or electronic funds transfer. Customer will make payments to the address or account specified in the Order or such other address or account as Pearl may specify in writing from time to time.

3.4 Late Payment. Any Fees that remain unpaid after thirty (30) days after they initially become due and payable will be considered in arrears, at which time Pearl will be entitled to:

(a) charge interest after due date at a rate of 12% per annum, or the maximum amount allowed by applicable Law, whichever is lower, calculated and payable monthly upon the amount, until paid;

(b) suspend performance of, and access to, the Services to Customer until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension; and/or

ARTICLE IV
TERM AND TERMINATION

4.1 Term. This Agreement will be effective as of the Effective Date and will continue for a term of one year (the “Initial Term”). At the expiration of the Initial Term, this Agreement will automatically renew for successive terms of one (1) year (each, a “Renewal Term”) unless terminated by Customer or Pearl in accordance with Section 4.2 or Section 4.3.

4.2 Termination for Convenience. Following the Initial Term, the Customer may terminate this Agreement at any time and for any reason (or no reason at all) on thirty (30) days’ prior written notice to Pearl. For clarity, this Agreement cannot be terminated for convenience during the Initial Term.

4.3 Termination for Cause. Either Party may terminate this Agreement for cause upon written notice to the other Party that it has failed to perform any obligation, warranty, duty, or responsibility under this Agreement, and such failure continues unremedied for a period of ten (10) days after receipt of written notice describing the failure.

4.4 Product Return Upon Termination.

(a) In the event this Agreement is terminated, Customer will, within 30 days of such termination, return the Product to Pearl, with Pearl handling return shipping and related shipping costs. The Product must be returned in the same condition as it was received, subject to reasonable wear and tear.

(b) If, without valid reason, the Customer fails to return the Product within this time period, the Customer will be liable for the full original cost of the hardware component of the Product paid by Pearl to its supplier, in addition to any other remedies available to Pearl under this Agreement or applicable law to prevent the Customer’s unauthorized use of the Product.

4.5 Effect of Termination – Platform and Services. Upon termination of this Agreement for any reason:

(a) All rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate, and Pearl will immediately stop providing Services;

(b) Customer will immediately cease all use of the Platform, Product and Services, and Pearl may disable Customer’s Platform access on the effective termination date; and

(c) Customer will immediately pay to Pearl all previously-accrued but not yet paid Fees and any applicable interest thereon.

ARTICLE V
PRODUCT TERMS

5.1 General. The specifications of the Product are detailed in the Order.

5.2 Title. Title to the Product will pass from Pearl to the Customer upon receipt by Pearl of all Fees associated with the Initial Term.

5.3 Product Warranty Coverage. Pearl will work with the Customer to pass through to the Customer’s benefit any associated product warranty coverage over the Product from the manufacturer respecting material defects in design, material, and workmanship. However, Customer will remain responsible for any damages or defects to the Product arising from misuse, neglect, accident, alteration, improper installation, or any other circumstances beyond Pearl’s control.

5.4 Product Disclaimers.

(a) THE PRODUCT IS SOLD “AS IS” AND PEARL EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Pearl does not assume any liability in connection with the sale of the Product. However, Pearl’s disclaimer of warranties does not, in any way, affect the terms of any applicable warranties from the manufacturer of the Product.

(b) The Customer expressly acknowledges and agrees that the Product provided by Pearl is not intended to be, nor should it be construed as a “medical device” under the classification and regulation of Health Canada. The Product is not designed or marketed to diagnose, treat, cure, or prevent any disease, and should not be used as a substitute for professional medical advice, diagnosis, or treatment. Pearl expressly disclaims any and all warranties or representations, express or implied, that the Product has been approved or cleared by Health Canada or any other regulatory body for medical use. Any use of the Product for medical purposes is at the Customer’s own risk, and Pearl shall not be liable for any claims or damages arising from such use. The Customer should consult with a qualified healthcare provider for any medical issues or concerns.

(c) The Customer acknowledges that the Product interfaces with other devices in order to function, and that the proper or improper use of the Product may cause damage, including irreparable damage, to such other devices.

(d) Neither Pearl nor its Representatives are liable for any claims, damages or losses arising directly or indirectly from the proper or improper use of the Product, including, without limitation, any breakdown or malfunction of the Product or any injury, including death, that may result from the proper or improper use of the Product.

ARTICLE VI
DATA PRIVACY & SECURITY

6.1 Ownership and Use of Customer Data.

(a) Customer owns its Customer Data, and retains all related rights, title and interests.

(b) During the Term, Customer hereby grants Pearl a non-exclusive, non-sublicensable, non-transferable, royalty-free and revocable right and license to access, use, and process Customer Data as required to perform the Services or comply with applicable Law.

6.2 Pearl Systems and Data Security Measures.

(a) Pearl will implement appropriate security controls and safeguards to prevent the disclosure, alteration, or misuse of Customer Data that is in its care or custody and/or processed by Pearl Systems, in each case in compliance with the terms of this Agreement and any applicable Law.

(b) Pearl will protect Customer Data with the same degree of care and diligence that Pearl uses to protect and safeguard its own like information, but not less than a reasonable degree of care and/or the protection standards set forth under applicable Law.

(c) Pearl will not permit Customer Data to be transferred outside of Pearl Systems over any digital networks or via any portable storage medium unless the Customer Data is suitably encrypted.

6.3 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all information, instructions, and materials provided by or on behalf of Customer in connection with the Services; (b) Customer Systems; (c) the security and use of access credentials of Customer; and (d) all access to and use of the Platform through the Customer Systems, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

6.4 Access and Security. Customer will employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to, or use of, the Platform; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data to the Platform.

6.5 Data Anonymization and Aggregation. Customer acknowledges that Pearl may anonymize Customer Data, and use such anonymized data (including in aggregate form), for Pearl’s legitimate internal business purposes. For any anonymized data derived from Personal Information or Personal Health Information, Pearl holds the responsibility of ensuring that (i) the anonymization is performed to industry standards, and (ii) the anonymized data cannot be re-identified to a natural person.

6.6 Personal Information and Personal Health Information – General Compliance.

(a) Each Party will comply with all applicable Law regarding their respective responsibilities involving the collection, use and disclosure of Personal Information and Personal Health Information.

(b) Each Party understands and agrees that amendments to this Agreement may be required to comply with legislative changes regarding Personal Information and/or Personal Health Information. The Parties agree to negotiate in good faith any amendment to this Agreement as required to comply with applicable Law regarding Personal Information or Personal Health Information.

(c) Unless otherwise expressly consented to, Pearl will only collect, use and disclose Personal Information and Personal Health Information as required to provide the Services or as otherwise described in this Agreement.

6.7 Data Storage. Pearl will be responsible, as part of the Services, for the secure storage of Customer Data, Personal Information, and Personal Health Information uploaded to the Platform.

6.8 Data Breach Procedures.

(a) Pearl will immediately, and in no case later than as required under applicable Law, advise the Customer of any circumstances, whether known or suspected, of any data breach relating to Customer Data, including any circumstances, incidents or events which have jeopardized, or may jeopardize the security of Pearl Systems used to access the Customer Data (each a “Data Incident”).

(b) Pearl will implement containment measures on the occurrence of a Data Incident, and will take all steps and measures as may be necessary in accordance with the Law to remedy the Data Incident.

(c) Pearl will assist Customer, at Customer’s direction, with any access requests, questions, complaints, audits, or any investigations related to any Data Incidents.

ARTICLE VII
IP RIGHTS

7.1 Pearl’s Intellectual Property. As between Customer and Pearl, all rights to the Product and the Platform and the Product, including all IP Rights therein, are and will remain with Pearl. Customer acknowledges and agrees that it has no right, license or authorization with respect to the Product or the Platform (including any IP Rights therein) except as expressly set forth in section 2.1, in each case subject to section 2.4. All other rights in and to the Product and the Platform are expressly reserved by Pearl.

7.2 Feedback. Pearl has the right to use or incorporate for its own business purposes any suggestions, enhancement requests, recommendations or other feedback related to the Product, Platform or the Services provided by Customer or its patients.

7.3 Modifications to the Product, Platform, Service. Although Customer is not authorized to perform any modification of any nature to the Platform, Product or Service, Customer agrees and understands that any such modifications (and any resultant IP Rights) will be the intellectual property of Pearl, unless expressly agreed otherwise.

ARTICLE VIII
REPRESENTATIONS

8.1 Mutual Representations. Each Party hereby represents to and with the other Party the following, with the intent that such other Party will rely on them in entering into this Agreement:

(a) It has the power and capacity and good and sufficient right and authority to enter into this Agreement on its terms and conditions, and has (and agrees to maintain during the Term), the financial and other ability, power, and authority to fulfill and perform its obligations and to carry out the terms of this Agreement; and

(b) This Agreement constitutes a legal, valid, and binding obligation of it, enforceable against it in accordance with its terms and conditions.

8.2 Pearl Representations. Pearl represents to Customer that:

(a) Pearl will comply with all third party licenses and restrictions as required to deliver the Product, Platform, and Services; and

(b) The Product, Platform, and Services do not infringe, misappropriate, or otherwise violate any IP Rights of any third party.

8.3 Customer Representations. Customer represents to Pearl that:

(a) Customer owns or otherwise has, and will have, the necessary rights and consents in and relating to its own Customer Data and any patient data (including Personal Information and Personal Health Information) so that, as received by Pearl and processed in accordance with this Agreement, the Parties will not infringe, misappropriate or otherwise violate any IP Rights, or any privacy or other rights of any Person, or violate any applicable Law due to the Customer’s use or disclosure of Customer Data or patient data in connection with the Product, Platform or the Services.

ARTICLE IX
INDEMNITY AND LIABILITY

9.1 Pearl Indemnification. Pearl will indemnify, defend, and hold harmless the Customer and its afiliates, along with each of its and their respective officers, directors, employees, agents, successors, and permitted assigns (each, an “Indemnitee”) from and against any and all Losses incurred by such Indemnitee in connection with any claim by a third party (other than an affiliate of an Indemnitee) that arises out of or relates to any allegation that the Platform infringes the IP Rights of a third party.

9.2 Mutual Indemnification. Each Party agrees to indemnify and hold harmless the other Party’s Indemnitees from and against any and all Losses incurred by such Indemnitee in connection with any claim by a third party (other than an affiliate of an Indemnitee) that arises out of or relates to any gross negligence or wilful misconduct by a Party (or any third party on behalf of a Party) in connection with this Agreement.

9.3 Cap on Monetary Liability. SUBJECT TO THE EXCEPTIONS LISTED IN SECTION 10.4, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE TOTAL OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT.

9.4 Exceptions to Cap on Monetary Liability. Section 10.2 does not apply to the following circumstances:

(a) A breach of confidentiality by either Party contravening the conditions described in section 8.3;

(b) Either Party’s indemnification obligations set forth in Section 10.1 or 10.2; or

(c) A loss, disclosure, alteration, misuse, or other breach of Customer Data by Pearl in connection with a Data Incident that contravenes the obligations described in section 6.2.

ARTICLE X
MISCELLANEOUS

10.1 Notices. Any notice or other communication required or permitted to be given (“Notice”) will be sent by email to the Customer contact indicated on the Order.

10.2 Further Assurances. The Parties will do such further acts, execute such further documents, and give such further assurances as may be necessary or desirable to give full effect to this Agreement.

10.3 Assignment. Neither Party will assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Any purported assignment in violation of this clause will be null and void. Notwithstanding the foregoing, Pearl may assign this agreement without consent to a successor in interest in connection with a merger, acquisition or similar event.

10.4 Enurement. This Agreement will enure to the benefit of and be binding upon the Parties and their respective executors, administrators, heirs, successors, and permitted assigns.

10.5 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement, and no action taken under this Agreement, will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever, nor will either Party represent otherwise.

10.6 Entire Agreement. This Agreement constitutes the entire understanding between the Parties with respect to the subject matter of this Agreement, and supersedes and replaces all prior and contemporaneous agreements, understandings, warranties, and representations between the Parties and their predecessors, whether written or oral and whether legally enforceable or not, relative to the matters provided for in this Agreement.

10.7 Severability. In the event that any term or provision of this Agreement is determined by a decision-maker with binding authority to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect the operation of any other term or provision of this Agreement.

10.8 Amendment. Pearl may amend this Agreement from time to time by posting an amended version at its website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Pearl written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Renewal Term following the Proposed Amendment Date (unless Customer first terminates this Agreement). Customer’s continued use of the Product or Platform following the effective date of an amendment will confirm Customer’s consent to it. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each Party.

10.9 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada appliable therein, and each Party exclusively attorns to the jurisdiction of the courts of Toronto, Ontario for any matter relating to this Agreement that must be brought before a court of law.

10.10 Time of the Essence. Time will be of the essence of this Agreement and of every part hereof, and no extension or variation of this Agreement will operate as a waiver of this provision.