PATIENT PROMPT TRIAL ACCESS AGREEMENT
1. ACCEPTANCE
(a) THIS TRIAL ACCESS AGREEMENT (THE “AGREEMENT”) CONSTITUTES THE ENTIRE AGREEMENT BETWEEN PROMPT ALERT INCORPORATED (“PROMPTALERT”, “US”, “OUR” OR “WE”) AND YOU AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT (COLLECTIVELY, “YOU”, “YOUR” OR “SUBSCRIBER”), WITH RESPECT TO YOUR ACCESS AND USE OF PROMPTALERT’S PROPRIETARY SOFTWARE (THE “SOFTWARE”) AND SERVICES KNOWN AS PATIENT PROMPT (THE “PATIENT PROMPT SERVICES”, WHICH TOGETHER WITH THE SOFTWARE ARE REFERRED TO COLLECTIVELY AS THE “SERVICES”) FOR A FREE TRIAL BASIS. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO BE BOUND BY THIS AGREEMENT OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
(b) You may not access the Services if you are Our direct competitor, except with Our prior written consent. In addition to any other limitation set forth in this Agreement, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
(c) This Agreement was last updated on January 4, 2011. It is effective between you and us as of the date of you accepting this Agreement.
(a) promptALERT will make the Services available to Subscriber on a trial basis free of charge until the end of the free trial period for which Subscriber registered or are registering to use the Services. Subscriber shall have a fourteen (14) day period to determine whether such Services meets Subscriber's business needs and/or requirements, with such period beginning on the date upon which the software application used in connection with the Services is installed on the Subscriber’s behalf to evaluate the Services (the “Trial Offer Period”).
(b) Subscriber shall not be charged any access or other fees by promptALERT in connection with the access or use of the Services during the Trial Offer Period.
(c) At any time during the Trial Offer Period, Subscriber may, at its option and for any reason whatsoever terminate this Agreement upon written notice (the “Termination Notice”) to promptALERT and cease to use the Services. In the event Subscriber elects to terminate this Agreement during the Trial Offer Period, Subscriber's sole obligation to promptALERT (except in the event Subscriber breaches this Agreement of this Agreement,) will be to uninstall the software related to the Services at its sole expense.
(d) Subscriber may choose to purchase a subscription for the Services at any time during the Trial Offer Period and such subscription will be governed in accordance with the terms and conditions of a separate agreement between promptALERT and Subscriber.
(e) If no Termination Notice has been received by promptALERT prior to the end of the Trial Offer Period and Subscriber does not purchase a subscription for the Services before the end of the Trial Offer Period, this Agreement will terminate at the end of the Trial Offer Period.
(f) ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING TRIAL OFFER PERIOD MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, OR PURCHASE UPGRADED SERVICES, BEFORE THE END OF THE TRIAL OFFER PERIOD.
3. INTELLECTUAL PROPERTY
(i) promptALERT hereby grants Subscriber during the duration of this Agreement a limited non-exclusive, terminable (in accordance with this Agreement) right to use the Services including, without limitation, the Software.
(ii) This Agreement does not entitle Subscriber during the Trial Offer Period to any hard-copy documentation or other printed materials.
(i) All right, title and interest to the Services, including all intellectual property in the Services (including without limitation, copyrights, patents, trade secrets, trade marks, moral rights and other intellectual property rights, in and to the Services, all modifications, changes, enhancements, or additions thereto) or any know-how developed during the duration of this Agreement shall remain property of promptALERT. To the extent Subscriber acquires any intellectual property rights in the Services, Subscriber assigns such rights to promptALERT and waives any moral rights it may have in the intellectual property thereto and in favour of promptALERT. Subscriber acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with promptALERT’s ownership rights with respect to the Services. Subscriber further acknowledges and agrees that the Services are the property of promptALERT and that the only right Subscriber has with respect to the Services and related material is to use them in accordance with the terms and conditions of the Agreement.
(ii) All right, title and interest in any Content (as defined in Section 4(f) compiled by Subscriber communicated via the Services or any other application shall remain the sole property of Subscriber.
4. SUBSCRIBER’S ACKNOWLEDGMENTS
(a) END-USERS: Subscriber acknowledges and agrees that it is responsible and liable for any and all breaches of this Agreement of this Agreement, whether such breach is the result of use of the Services by Subscriber, any end-user using the Services on behalf of or for the benefit of Subscriber and using the Services through Subscriber’s license (each an “End User”).
(b) COMPUTER EQUIPMENT: Subscriber acknowledges and agrees that it will not be entitled to receive technical support relating to any issues other than the Services as delivered by promptALERT. promptALERT does not represent or warrant that a non-recommended configuration will enable Subscriber to successfully access, operate or use the Services or the installation of any hardware or software to meet the minimum computer requirements will not cause damage to Subscriber’s computer, peripherals, software or data.
(c)
ACCESS TO THE SERVICES: Portions and certain features or functionalities of the Services
are accessed through the Internet. The Services does not include Internet
access. Subscriber acknowledges and agrees to purchase and maintain Internet
access at its own expense and is solely responsible for any expense with
respect to Internet access.
(d) SECURITY: Subscriber acknowledges and agrees that it is beyond the reasonable control of promptALERT to ensure that use of the Internet or the Services will be free of virus, worms, Trojan horse or disabling devices or other code that manifests contaminating or restrictive properties and PROMPTALERT SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE WITH RESPECT TO ANY DAMAGE INCURRED BY SUBSCRIBER, DIRECTLY OR INDIRECTLY, WHEN IT ACCESSES THE INTERNET.
(e) NO CRITICAL APPLICATIONS: Subscriber acknowledges and agrees that the Services is not designed, intended, authorized or warranted to be suited for hosting life-support application or other critical applications where failure or potential failure of the Services can cause injury, harm, death or other grave problems, including, without limitation, loss of hospital life-support systems, and delays in getting medical care or other emergency services. Subscriber acknowledges and agrees that use of the Services to support such applications is fully at Subscriber’s own risk and that Subscriber assumes all risk arising out of such use.
(f) CONTENT: Subscriber acknowledges that promptALERT assumes no responsibility for and exercises no control over the content communicated via the Services as provided by Subscriber or End Users (the “Content”). promptALERT shall not be liable for any loss or damage arising out of inaccurate and/or incomplete Content provided by Subscriber. promptALERT makes no representation or warranty that the Services shall accurately contact or connect with any third parties as directed by Subscriber or that such Content such be communicated in its entirety, except in the case where Subscriber has provided accurate information. As between promptALERT and Subscriber, Subscriber owns, has or will have the rights to, Content at all times. By submitting, transmitting, making available or posting Content through, to or using the Services, Subscriber grants to promptALERT a world-wide, royalty free, perpetual, irrevocable and non-exclusive right and license to use, sublicense, reproduce, modify, adapt, publish, translate, distribute, perform and display Content worldwide for the purposes of operating and providing the Services. By transmitting, posting, making available, submitting or otherwise communicating Content to or through the Services, Subscriber represents and warrants to promptALERT that Subscriber owns, has a license to or otherwise controls all of the rights to such Content, and that promptALERT’s use of such Content will not infringe or violate the rights of any third party including, but not limited to, any privacy or intellectual property rights, or constitute violation of any applicable law.
(g) TERMINATION IN EVENT OF BREACH: Subscriber acknowledges and agrees that, in addition to the termination rights set out herein, promptALERT may, in its sole discretion, suspend or terminate one or more features of the Services without notice or refund if Subscriber is in breach of any term or condition of this Agreement.
(h) SENDING SUBSCRIBER INFORMATION: promptALERT and/or its suppliers may send Subscriber information about the Services via email addresses provided by Subscriber. Subscriber acknowledges that it provides its informed consent to said communications.
5. SUBSCRIBER’S OBLIGATIONS
(a) PROHIBITED USE: Subscriber agrees that it shall not: (i) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services including, without limitation, the Software; (ii) modify, translate, or create derivative works based on the Services including, without limitation, the Software; (iii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit the Services including, without limitation, the Software; (iv) use the Services including, without limitation, the Software for timesharing or service bureau purposes or otherwise for the benefit of a third-party; (v) transfer, publish or disclose to third parties any evaluation of the Services including, without limitation, the Software without promptALERT's prior written consent; (vi) create any link to the Services or any software promptALERT provides or makes available to Subscriber or frame or mirror any content contained or accessible from the Services including, without limitation, the Software; (vii) to copy, distribute or sublicense the Software; (viii) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to You in connection with Subscriber’s use of the Services including, without limitation, the Software, features of the Services; or (ix) use the Services including, without limitation, the Software, or other features of the Services, directly or indirectly, in a manner that (a) is libellous, harmful to minors, obscene or constitutes pornography; or (b) to infringes any rights of a third party, including without limitation, any intellectual property or privacy rights, or is otherwise unlawful; or (c) use the Services or other features of the Services, directly or indirectly, would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offence, under any applicable law or regulation. In addition to promptALERT’s termination rights set out elsewhere in this Agreement, promptALERT may terminate this Agreement if Subscriber engages in one or more of the above prohibited activities.
(b) SECURITY: Subscriber is solely responsible for taking the necessary precautions to protect itself and its equipment, software, files and data against any and all risk inherent in the use the Services as a shared resource. Without limiting the foregoing:
(i) Subscriber is solely responsible for the security of any device which Subscriber chooses to connect to the Services, including any data stored on such device;
(ii) Subscriber is responsible to ensure that others do not gain unauthorized access to Subscriber’s computer by taking the appropriate security measures; and
(iii) Subscriber is solely responsible for any and all Content transmitted through or to the Services. promptALERT makes no representations or warranties with respect to or connection with the security or confidentiality of the data transmission.
The Services are accessed via a personalized URL which requires passwords and login ID’s, identification devices or codes to access (collectively, “Access Device”) as provided by promtpALERT. Subscriber understands that possession or knowledge of an Access Device may result in that person being able to access the Services. Subscriber acknowledges and agrees that the maintenance of the security of the Services is Subscriber’s responsibility and promptALERT is released from any liability resulting from unauthorized access into the Services not caused by promptALERT’s negligence. IN NO EVENT SHALL PROMPTALERT BE LIABLE FOR ANY LOSS OF CONTENT OR OTHER CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS TO THE EXTENT THE SAME AROSE FROM UNAUTHORIZED ACCESS TO SUBSCRIBER’S ACCOUNT BY OBTAINING AN ACCESS DEVICE CAUSED BY A NEGLIGENT OR WILFUL ACT OF SUBSCRIBER, OR ARISING OUT OF OR OTHERWISE RELATING TO SUBSCRIBER’S FAILURE TO TAKE APPROPRIATE SECURITY MEASURES. SUBSCRIBER IS RESPONSIBLE FOR THE ENTIRE COST OF ANY SERVICES, REPAIRS OR CONNECTIONS OF AND TO ANY COMPUTER USING THE SERVICES WHICH MAY BE NECESSARY AS A RESULT OF SUBSCRIBER’S FAILURE TO TAKE APPROPRIATE SECURITY MEASURES.
6. SERVICES MONITORING AND MAINTENANCE
(a) MONITORING: promptALERT has no obligation to monitor Content, the effectiveness of the Content or Subscriber’s use of the Services. Notwithstanding the foregoing, Subscriber acknowledges and agrees that promptALERT may monitor and investigate Content being transmitted or distributed on the Services from time to time and/or to disclose any information as necessary to: satisfy any law, regulation or other governmental request or to assist in the pursuit of any legal action against Subscriber, and operate the Services properly.
(b) BANDWIDTH RESTRICTION: promptALERT reserves the right to establish space and/or bandwidth limits for the Content transmitted on or through the Services. Content that unreasonably exceeds these limits, as determined by promptALERT in its sole discretion, may not be delivered by promptALERT and no loss or damage shall result in such an event.
(c) MAINTENANCE: promptALERT and/or its suppliers may perform scheduled and unscheduled maintenance to the Services. Scheduled maintenance for the Services shall take place outside of calling hours every Saturday and Sunday between 1 a.m. and 12 p.m. Eastern Standard Time. The Services may not be available during such times and promptALERT makes no warranty or guarantee that the corrections of any errors in the Services will be completed during maintenance. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT PROMPTALERT SHALL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATING TO ANY INTERRUPTION OR CESSATION OF THE SERVICES AS A RESULT OF ANY AND ALL MAINTENANCE CONDUCTED.
(b) EFFECT OF TERMINATION: In the event of the expiration or the termination of this Agreement, Subscriber shall have no further right to access or use the Services, shall remove or shall permit promptALERT to remove the Software from Subscriber’s systems.
In the performance of this Agreement or in contemplation thereof, promptALERT and Subscriber may each have access to information of a confidential nature relating to the business of a party including technical and business information, know-how and trade secrets of the other party (the “Confidential Information”). Each party shall keep all Confidential Information with the same care as it would keep its own proprietary information and shall only disclose Confidential Information to its respective employees on a need to know basis. The foregoing shall not include Confidential Information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the receiving party, subsequent to disclosure by the disclosing party; or (d) is required by law or order of the court or other governmental authority to be disclosed provided that the parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
9. PERSONAL INFORMATION AND PRIVACY
(a) Subscriber represents, warrants and covenants to promptALERT that: (i) Subscriber is solely and exclusively responsible for the collection, accuracy or completeness of Personal Information disclosed, transmitted or otherwise provided to promptALERT; and (ii) that all Personal Information disclosed to promptALERT has been or will be collected and disclosed in accordance with all applicable laws. promptALERT its affiliates, subsidiaries, suppliers, reseller and agents and each of their respective directors, officers, employees, agents and professional advisors shall at all time be indemnified and saved harmless by Subscriber from and against all claims whatsoever (including costs, judgments, charges and expenses including legal fees in connection therewith) brought, commenced or prosecuted against Subscriber for or in respect of any act, deed, matter or thing whatsoever made, done acquiesced in or omitted in or about or in relation to any and all liabilities, costs, charges and expenses which promptALERT sustains or incurs in or about or in relation to Subscriber’s violation or breach of the collection, use and disclosure of Personal Information by Subscriber or located in its electronic storage device(s). In this Agreement “Personal Information” means, collectively, any personally identifiable or individually identifiable health information, held or maintained by Subscriber or any business associates or End Users acting for Subscriber that is collected by Subscriber and may be shared or disclosed to promptALERT in connection with Subscriber’s use of the.
(b) promptALERT shall invoice Subscriber, answer inquires from individuals wishing to contact Subscriber, provide technical support and field inquiries about the Services, accumulate demographic non-personalized information about Subscriber’s clients, communicate new business development initiatives and generally to comply with the law. Subscriber agrees that it has given its informed consent for the collection, use and disclosure of any information collected by Subscriber.
(c) promptALERT represents and warrants that it shall not use Subscriber’s information for any other purpose than stated in this Agreement.
(d) If Subscriber is located in the United States of America, Subscriber represents and warrants that it has not or shall not violate the Health Insurance Portability and Accountability Act (USA), to which Subscriber is subject to in carrying forth its obligations under this Agreement. promptALERT represents and warrants to Subscriber that it has not or shall not violate the Health Insurance Portability and Accountability Act (USA), to which Subscriber is subject to in carrying forth its obligations under this Agreement.
(a) THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROMPTALERT DOES NOT WARRANT THE PERFORMANCE, AVAILABILITY, UNINTERRUPTED USE OF OR OPERATION OF THE INTERNET, SUBSCRIBER’S CONNECTION TO THE INTERNET, THE EQUIPMENT USED TO ACCESS THE SERVICE, THE SERVICE OR ANY OTHER FEATURE OF THE SERVICE. THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY AND PERFORMANCE OF THE SERVICE IS WITH SUBSCRIBER. FURTHER, PROMPTALERT DOES NOT WARRANT THAT ANY CONTENT TRANSMITTED THROUGH THE SERVICE WILL BE TRANSMITTED, TRANSMITTED IN UNCORRUPTED FORM, TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME OR TRANSMITTED ON A CONFIDENTIAL BASIS. THERE ARE NO EXPRESS OR IMPLIED, WARRANTIES OR CONDITIONS WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICE OR THE CONTENT PRODUCED, TRANSMITTED OR DISTRIBUTED BY THE SERVICE. FOR GREATER CERTAINTY ALL IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND ARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED. PROMPTALERT DOES NOT WARRANT THAT THE SERVICE WILL MEET SUBSCRIBER’S OR END USERS’ REQUIREMENTS OR THAT THE SERVICES’ OPERATION WILL BE ERROR FREE.
(b) NO ORAL OR WRITTEN INFORMATION OR TECHNICAL ADVICE OR ASSISTANCE GIVEN BY PROMPTALERT SHALL CREATE A WARRANTY, ADDITIONAL LIABILITY, OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
(c) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR THE LIMITATION OF LIABILITY IN CERTAIN CIRCUMSTANCES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO SUBSCRIBER. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE COMMENCEMENT DATE. Without limiting the generality of the foregoing, the parties agree that to the extent permitted by law, the provisions of the International Sales of Goods Act (Ontario), the Civil Code of Quebec and the United Nations Conventions on Contracts for the International Sales of Goods, other similar legislation or conventions do not apply to this Agreement.
(a) IN NO EVENT SHALL PROMPTALERT AND/OR ITS OFFICERS, TRUSTEES, DIRECTORS, EMPLOYEES, AFFILIATES OR ITS SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR DIRECT OR INDIRECT (a) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS), BUT NOT LIMITED TO, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE SERVICES, EVEN IF PROMPTALERT AND/OR ITS OFFICERS, TRUSTEES, DIRECTORS, EMPLOYEES, AFFILIATES OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS NEGLIGENT. THIS LIMITATION AND EXCLUSION APPLIES IRRESPECTIVE OF THE CAUSE OF ACTION INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH AND FAILURE TO SERVICES ITS ESSENTIAL PURPOSE.
(b) NOTWITHSTANDING ANYTHING CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL PROMPTALERT’S MAXIMUM AGGREGATE LIABILITY TO SUBSCRIBER UNDER THIS AGREEMENT EXCEED THE AMOUNT OF ONE-HUNDRED DOLLARS ($100.00) CANADIAN. THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM.
(c) As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to Subscriber. In such event the liability will be limited to the maximum extent possible within the applicable legislation.
(a) Subscriber shall indemnify, defend and hold promptALERT and its affiliates, subsidiaries, suppliers, and agents and each of their respective directors, officers, employees, agents and professional advisors harmless from and against all claims whatsoever (including costs, judgments, charges and expenses including legal fees in connection therewith) brought, commenced or prosecuted against promptALERT for or in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to: (i) any violation or breach of any term, condition, representation or warranty of the Agreement by Subscriber or any Ends Users, (ii) any Content or data displayed, distributed or otherwise disseminated by Subscriber using the Services, (iii) Subscriber’s violation, alleged violation or misappropriation of any rights of a third party including, without limitation, any intellectual property, data protection or privacy rights.
(b) With respect to the indemnities provided herein, (i) the aggrieved party shall promptly notify the indemnifier in writing of the claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the claim; except the indemnifying party will not admit fault or impose obligations on the indemnified party as part of a settlement, without the indemnified party’s written approval which will not be unreasonably withheld and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such claim.
13. SURVIVAL
All indemnification obligations, disclaimers of warranties and limitations of liability of this Agreement shall survive the termination or expiration of the Agreement. Any terms and conditions of the Agreement which by their nature extend beyond the termination or expiry of this Agreement shall survive the termination or expiry of this Agreement including, without limitation, Sections 3(b), 4(b), 5(b), 6(a), 6(c), 7(c), 8, 9, 10, 11, 12, 14, 15 and 16.
14. GOVERNING LAW AND DISPUTE RESOLUTION
(a) This Agreement is governed by, and is to be construed and interpreted in accordance with, the laws of the Province of Ontario and the laws of Canada applicable in that Province. Each of the parties irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario. The parties each grant their informed consent to waive a trial by judge and jury but not by judge alone. Such waiver shall be independent of the agreement to attorn to the exclusive jurisdiction of the courts of the Province of Ontario.
(b) All disputes arising under this Agreement shall be settled and resolved by arbitration in Toronto, Ontario, by a single arbitrator pursuant to the provisions of the Arbitration Act, 1991 (Ontario) where Subscriber is located inside of Canada and the International Commercial Arbitration Act (Ontario) where the Subscriber is located outside of Canada. The arbitrator shall be agreed upon by the parties within twenty (20) days of one party notifying the other parties that arbitration is desired. If the parties fail to agree upon a single arbitrator within such twenty (20) day period, the arbitrator will be appointed by a judge of the Superior Court of Justice of Ontario on the application of any party on notice to all the other parties. The award rendered by the arbitrator shall be final and binding and not subject to appeal. The law of Ontario shall apply to the resolution of all disputes resolved by arbitration. The arbitrator shall be empowered to determine all questions of law and fact and may grant injunctive relief. The prevailing party shall be entitled as part of the arbitration award to the reasonable costs and expenses (including legal fees and disbursements) of investigating, preparing and pursuing such claim or defence, and the party enforcing an award shall be entitled to reasonable costs and expenses (including legal fees and disbursements) incurred in connection therewith.
Unless otherwise specified, each notice to a party must be given in writing and delivered personally or by courier, sent by prepaid registered mail to the address last provided by one party to the other or transmitted electronically. Any notice, if delivered personally or by courier, will be deemed to have been given when actually received, if transmitted electronically before 4:00 p.m. (Eastern Standard Time) on a business day, will be deemed to have been given on that business day, and if transmitted electronically after 4:00 p.m. (Eastern Standard Time) on a business day, will be deemed to have been given on the business day after the date of the transmission.
(a) HEADINGS AND REFERENCES: The division of this Agreement into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular section, subsection or other portion hereof and include any agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to “Sections” are to sections, subsections and further subdivisions of sections of this Agreement.
(b) EXTENDED MEANINGS: Unless otherwise specified, words importing the singular include the plural and vice versa and words importing gender includes all genders. The term “including” means “including without limitation.”
(c) SEVERABILITY: If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that term will not affect: the legality, validity or enforceability of the remaining provisions of this Agreement; or the legality, validity or enforceability of that provision in any other jurisdiction.
(d) ASSIGNMENT: Neither party may assign this Agreement. This Agreement enures to the benefit of and binds the parties and their respective successors and permitted assigns.
(e) WAIVER: No waiver of any provision of this Agreement is binding unless it is in writing and signed by the party entitled to grant the waiver. No failure to exercise and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision.
(f) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior negotiations, understandings and agreements between the parties. No provision may be amended or waived except in writing.
(g) REMEDIES CUMULATIVE: The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise. No single or partial exercise by a party of any right or remedy precludes or otherwise affects the exercise of any other right or remedy to which that party may be entitled.
(h) RELATIONSHIPS OF THE PARTIES: Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or agent representative of the other party.
(i) NON-EXCLUSIVITY: Nothing in this Agreement will be construed to prevent promptALERT from marketing, licensing, selling or otherwise providing the Services or any aspects of promptALERT’s technology or services to any third party.