1. ABOUT THE SITE
2. WE DO NOT PROVIDE MEDICAL ADVICE
Although some of the content, text, data, graphics, images, information, suggestions, guidance, and other material (collectively, “Information”) that is provided to you on the Site (including Information provided in direct response to any questions or postings) may be provided by individuals in the medical profession, such Information is for information purposes only. The Information does not create a medical professional/patient relationship and is not intended to constitute an opinion, medical advice, or diagnosis or treatment of any particular condition. The Information that you may obtain or receive from Stimulonimbus, and its employees, contractors, partners, sponsors, advertisers, licensors or otherwise on the Site is for informational and scheduling purposes only.
THE INFORMATION PROVIDED ON THE SITE IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED HEALTH CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SITE. DO NOT USE THE SITE FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY CALL 911, OR YOUR LOCAL EMERGENCY CONTACT INFORMATION. YOUR USE OF INFORMATION PROVIDED ON THE SITE IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR THE PROVISION OF MEDICAL CARE.
We do not recommend or endorse any specific tests, physicians, procedures, opinions, or other information that may appear on the Site. If you rely on any of the Information provided by the Site, you do so solely at your own risk. STIMULONIMBUS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR ASSOCIATED WITH THE USE OF OR RELIANCE UPON ANY INFORMATION, CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH THE SITE.
3. NO DOCTOR PATIENT RELATIONSHIP IS FORMED
NO LICENSED MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED BY USING INFORMATION PROVIDED BY OR THROUGH THE USE OF THE SITE INCLUDING, BUT NOT LIMITED TO, THE BROWSE PROVIDER FEATURE, LINKS TO OTHER SITES OR ANY ASSISTANCE WE MAY PROVIDE TO HELP YOU FIND A MEDICAL PROFESSIONAL OR SPECIALIST IN ANY FIELD.
WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK OR OTHER INFORMATION WITH REGARD TO ANY MEDICAL PROFESSIONALS, SPECIALISTS OR OTHER HEALTHCARE PROVIDERS LISTED ON OUR SITE (COLLECTIVELY, "HEALTHCARE PROVIDERS"), NOR DO WE ENDORSE IN ANY WAY ANY INDIVIDUAL LISTED ON OUR SITE. WE DISCLAIM ALL LIABILITY FOR ANY ERRORS OR OTHER INACCURACIES RELATING TO THE INFORMATION PROVIDED ABOUT HEALTHCARE PROVIDERS LISTED ON OUR SITE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THIS SITE AND THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY OF THE INFORMATION CONTAINED THEREIN. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH INFORMATION.
You are strongly advised to perform your own investigation prior to selecting a Healthcare Provider by making confirming telephone calls to the appropriate licensing authorities to verify listed credentials and education, and to further verify information about a particular Healthcare Provider by confirming with the Healthcare Provider’s office, your current physician, any medical association relative to the Healthcare Provider’s specialty, if any, and your provincial or state medical board, as applicable.
We have no control over, and cannot guarantee the availability of any Healthcare Provider at any particular time. We will not be liable for cancelled or otherwise unfulfilled appointments or any injury or losses resulting therefrom, or for any other injury or losses resulting from the use of the Site or Services whatsoever.
As part of the registration process, you will provide an e-mail address and create a password. These are your credentials for accessing the Services that are only available to members ("Credentials"). You should keep your Credentials private and not share your Credentials with anyone else. You are responsible for notifying us if your password has been hacked or stolen. You may notify us by sending an email to support@CancellationSpot.com.
5. YOUR PERSONAL INFORMATION
The transmission of information via the internet is not completely secure. We cannot therefore guarantee the security of data you transmit to the Website or to us by email. Once we have received your information, we will store it in electronic and physical records maintained by our associated companies and will use strict procedures and security features to try to prevent unauthorised access.
6. YOUR RESPONSIBILITIES
Even though some Services are provided free of charge to Patients, the usual and customary charges for any medical services rendered by collaborating Healthcare Providers profiled on the Site will apply and will be entirely your responsibility.
We do not charge patients to create an account or for use of the base Services. Additional carrier charges for roaming, data usage, SMS text messages received, and phone calls received may apply. Please contact your mobile phone carrier for more information.
You are responsible for all use of the Site and for all use of your Credentials, including use by others to whom you have given your Credentials. You may use the Site and the Services for lawful, non-commercial purposes only. You may not use the Site in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Site or the Services. You may not attempt to gain unauthorized access to any of the Services, user accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you agree that you shall not (and you agree not to allow any third party to):
8. CHANGES TO THE SERVICES
9. ADDITIONAL TERMS
10. DISCLAIMER OF WARRANTIES
WE PROVIDE THE SITE AND THE SERVICES “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SERVICES AND THE SITE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF INFORMATION PROVIDED BY USERS OF THE SITE OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SITE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, Stimulonimbus MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SITE OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. Stimulonimbus DOES NOT WARRANT THAT THE SITE OR THE SERVICES WILL OPERATE ERROR-FREE, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICES SOFTWARE OR SITE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS.
11. GENERAL LIMITATION OF LIABILITY
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR REGISTRATION. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES OR THE SITE, REGARDLESS OF THE FORM OF ACTION, EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO UTILIZE THE SITE. IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM OR RELATING TO YOUR USE OF, OR INABILITY TO USE, THE SITE AND/OR THE SERVICES, OR ANY PART THEREOF. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR MEDICAL MALPRACTICE OR NEGLIGENCE OF HEALTHCARE PROVIDERS UTILIZED THROUGH USE OF THE SERVICE, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME PROVINCES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH PROVINCES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
14. ELECTRONIC CONTRACTING AND NOTICES
15. COPYRIGHT DISPUTE POLICY
Stimulonimbus has adopted the following general policy toward copyright infringement. The address of Stimulonimbus’ designated agent to receive any notifications of claimed copyright infringement ("Designated Agent") is provided at the bottom of this section.
It is Stimulonimbus’ policy to (a) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (b) remove and discontinue service to repeat offenders.
Procedure for Reporting Copyright Infringements.
If you believe that material or content residing on or accessible through the Site or the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below ("Infringement Notification"):
Following receipt of an Infringement Notification by the Designated Agent, it is Stimulonimbus’ policy, upon verification of the contents of such Infringement Notification:
Procedure to Supply a Counter-Notice to the Designated Agent.
If the content provider, member or user believes that the material that was removed or to which access was disabled is either not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice (the "Counter-Notice") containing the following information to the Designated Agent listed below:
If a Counter-Notice is received by the Designated Agent, Stimulonimbus may send a copy of the Counter-Notice to the original complaining party informing that person that Stimulonimbus may replace the removed material or cease disabling it in 10 business days following Stimulonimbus’ receipt of the Counter-Notice. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored in 10 business days after receipt by Stimulonimbus of the Counter-Notice, or such longer period as Stimulonimbus may determine, in its discretion.
Address for Designated Agent.
Please contact Stimulonimbus’ Designated Agent at the following address:
Email to: support@CancellationSpot.com
16. ENTIRE AGREEMENT
17. CHOICE OF LAW AND DISPUTE RESOLUTION
The Site and the Services are available only in the English language.
Last Updated on September 12, 2016. © 2016 Stimulonimbus Incorporated All Rights Reserved.
(b) You may not access the Services if you are a direct competitor of Stimulonimbus, 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 September 12, 2016. It is effective between you and us as of the date of you accepting this Agreement.
(a) Stimulonimbus will make the Services available to Subscriber on a “pay as you go” basis billed each month, wherein as applicable, until the Subscriber cancels the Services or until the Services are cancelled by Stimulonimbus Incorporated. Subscriber may, at its option and for any reason whatsoever, terminate this Agreement upon written notice (the “Termination Notice”) to Stimulonimbus and cease to use the Services. In the event of such termination, Subscriber shall be obligated to uninstall the software, if any, related to the Services at its sole expense.
(b) Subscriber will automatically be charged every month the fee applicable to such Subscriber’s use of the Services until the Subscriber cancels the subscription or until the subscription is cancelled by Stimulonimbus Incorporated.
(c) ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING THE SUBSCRIPTION PERIOD MAY BE PERMANENTLY LOST ON TERMINATION OF SUCH SUBSCRIPTION.
3. WELCOME CREDITS
(a) Stimulonimbus will make the Services available to Subscriber as follows: Subscriber shall have five (5) cancellation spot broadcasts ("Welcome Credits"), whether or not these result in successful filling of an appointment, from the time at which the software application used in connection with the Services is installed on the Subscriber’s behalf to evaluate the Services, to determine whether such Services meets Subscriber’s business needs and/or requirements.
(b) Subscriber shall not be charged any access or other fees by Stimulonimbus in connection with the Subscriber’s access or use of the Services with respect to Welcome Credits.
(c) At any time, Subscriber may, at its option and for any reason whatsoever terminate this Agreement upon written notice (the “Termination Notice”) to Stimulonimbus and cease to use the Services. In the event Subscriber elects to terminate this Agreement prior to purchasing Services, Subscriber’s sole obligation to Stimulonimbus (except in the event Subscriber breaches this Agreement) will be to uninstall the software related to the Services at its sole expense.
(d) ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, PRIOR TO PURCHASE OF ADDITIONAL SERVICES MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE ADDITIONAL CREDITS, A SUBSCRIPTION TO THE SAME SERVICES COVERED BY THE WELCOME CREDITS, OR PURCHASE UPGRADED SERVICES.
4. INTELLECTUAL PROPERTY
(a) LICENSE GRANT:
(i) Stimulonimbus 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.
(b) PROPRIETARY RIGHTS:
(i)All right, title and interest to the Services, including all intellectual property in the Services (including without limitation, copyrights, patents, trade secrets, trademarks, 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 Stimulonimbus. To the extent Subscriber acquires any intellectual property rights in the Services, Subscriber assigns such rights to Stimulonimbus and waives any moral rights it may have in such intellectual property in favour of Stimulonimbus. Subscriber acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Stimulonimbus’ ownership rights with respect to the Services. Subscriber further acknowledges and agrees that the Services are the property of Stimulonimbus 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 and communicated via the Services or any other application shall remain the sole property of Subscriber.
5. SUBSCRIBER’S ACKNOWLEDGMENTS
(a) END-USERS: Subscriber acknowledges and agrees that it is responsible and liable for any and all breaches 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, or any end-user 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 Stimulonimbus. Stimulonimbus does not represent or warrant that a non-recommended configuration will enable Subscriber to successfully access, operate or use the Services or that the installation of any hardware or software necessary 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 Stimulonimbus to ensure that use of the Internet or the Services will be free of viruses, worms, Trojan horses or other disabling devices or code that manifests contaminating or restrictive properties and STIMULONIMBUS SHALL NOT BE LIABLE FOR ANY LOSS OR 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 applications 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 Stimulonimbus assumes no responsibility for and exercises no control over the content communicated via the Services as provided by Subscriber or End Users (the “Content”). Stimulonimbus shall not be liable for any loss or damage arising out of inaccurate and/or incomplete Content provided by Subscriber. Stimulonimbus 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. As between Stimulonimbus 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 Stimulonimbus 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 Stimulonimbus that Subscriber owns, has a license to or otherwise controls all of the rights to such Content, and that Stimulonimbus’ 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 any applicable law.
(g) TERMINATION IN EVENT OF BREACH: Subscriber acknowledges and agrees that, in addition to the termination rights set out herein, Stimulonimbus 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: Stimulonimbus 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.
6. 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 Stimulonimbus’ prior written consent; (vi) create any link to the Services or any software Stimulonimbus 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, provincial, federal or foreign law, treaty, regulation or convention applicable to Subscriber in connection with Subscriber’s use of the Services including, without limitation, the Software; 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 libelous, harmful to minors, obscene or constitutes pornography; or (b) infringes any rights of a third party, including, without limitation, any intellectual property or privacy rights, or is otherwise unlawful; or (c) would otherwise give rise to civil liability, or constitutes or encourages conduct that could constitute a criminal offence, under any applicable law or regulation. In addition to Stimulonimbus’ termination rights set out elsewhere in this Agreement, Stimulonimbus 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 generality of 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. Stimulonimbus makes no representations or warranties with respect to or in connection with the security or confidentiality of the data transmission.
The Services are accessed via a personalized URL which requires passwords and login IDs, identification devices or codes to access (collectively, “Access Device”) as provided by Stimulonimbus. 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 Stimulonimbus is released from any liability resulting from unauthorized access of the Services not caused by Stimulonimbus’ negligence. IN NO EVENT SHALL STIMULONIMBUS 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 REASON OF A NEGLIGENT OR WILFUL ACT OF SUBSCRIBER, OR ARISING OUT OF OR OTHERWISE RELATING TO SUBSCRIBER’S FAILURE TO TAKE APPROPRIATE SECURITY MEASURES IN RESPECT OF ITS ACCOUNT. 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 A NEGLIGENT OR WILFUL ACT OF SUBSCRIBER OR SUBSCRIBER’S FAILURE TO TAKE APPROPRIATE SECURITY MEASURES.
7. SERVICES MONITORING AND MAINTENANCE
(a) MONITORING: Stimulonimbus 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 Stimulonimbus 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: (i) satisfy any law, regulation or other governmental request; (II) to assist in the pursuit of any legal action against Subscriber, or (iii) operate the Services properly.
(b) BANDWIDTH RESTRICTION: Stimulonimbus 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 Stimulonimbus in its sole discretion, may not be delivered by Stimulonimbus. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT STIMULONIMBUS SHALL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATING TO ANY SUCH NON-DELIVERY.
(c) MAINTENANCE: Stimulonimbus 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. Mountain Standard Time. The Services may not be available during such times and Stimulonimbus makes no warranty or guarantee that the corrections of any errors in the Services will be completed during maintenance. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT STIMULONIMBUS 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.
8. TERM AND TERMINATION
(a) TERM: This Agreement commences on the date the Subscriber accepts or is deemed to have accepted it and continues until the Subscriber cancels the use of Services, unless otherwise terminated in accordance with this Agreement.
(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 and shall remove or shall permit Stimulonimbus to remove the Software from Subscriber’s systems.
In the performance of this Agreement or in contemplation thereof, Stimulonimbus 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, agents, contractors and consultants on a need to know basis. Confidential Information shall not include information which: (a) is or becomes known publicly without fault of the receiving party, but only after the information becomes public knowledge; (b) is generally known in the industry before disclosure; or (c) 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 and to take reasonable and lawful actions to obtain confidential treatment for such disclosure and, if possible, minimize the extent of such disclosure.
10. PERSONAL INFORMATION AND PRIVACY
(a) Subscriber represents, warrants and covenants to Stimulonimbus that: (i) Subscriber is solely and exclusively responsible for the collection, accuracy or completeness of Personal Information disclosed, transmitted or otherwise provided by Subscriber to Stimulonimbus; and (ii) that all Personal Information disclosed to Stimulonimbus has been or will be collected and disclosed in accordance with all applicable laws. Subscriber shall indemnify and save harmless Stimulonimbus its affiliates, subsidiaries, suppliers, reseller and agents and each of their respective directors, officers, employees, agents and professional advisors from and against all claims whatsoever (including costs, judgments, charges and expenses including legal fees in connection therewith) brought, commenced or prosecuted against Stimulonimbusarising from or relating to, directly or indirectly, any act, deed, matter or thing whatsoever made, done, acquiesced to or omitted by Subscriber in connection with Personal Information disclosed, transmitted or otherwise provided by Subscriber to Stimulonimbus, or arising from or relating to, directly or indirectly, Subscriber’s violation or breach of its obligations hereunder and under applicable laws with respect to the collection, use and disclosure of Personal Information by Subscriber or the storage of any Personal Information in its electronic storage device(s). In this Agreement “Personal Information” means, collectively, any personally identifiable or individually identifiable information, including, without limitation, 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 Stimulonimbus in connection with Subscriber’s use of the Services.
(c) 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 in carrying forth its obligations under this Agreement. Stimulonimbus 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.
11. DISCLAIMER OF WARRANTY
(a) THE SERVICES ARE PROVIDED “AS IS”, "WITH ALL FAULTS" AND “AS AVAILABLE”. STIMULONIMBUS MAKES NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES (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 SERVICES OR THE CONTENT PRODUCED, TRANSMITTED OR DISTRIBUTED BY THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, STIMULONIMBUS HEREBY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STIMULONIMBUS 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 SERVICES, THE SERVICES OR ANY OTHER FEATURE OF THE SERVICES. THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY AND PERFORMANCE OF THE SERVICES IS WITH SUBSCRIBER. FURTHER, STIMULONIMBUS DOES NOT WARRANT THAT ANY CONTENT TRANSMITTED THROUGH THE SERVICES WILL BE TRANSMITTED, TRANSMITTED IN UNCORRUPTED FORM, TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME OR TRANSMITTED ON A CONFIDENTIAL BASIS. STIMULONIMBUS DOES NOT WARRANT THAT THE SERVICES 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 STIMULONIMBUS SHALL CREATE A WARRANTY, ADDITIONAL LIABILITY, OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
(c) As some jurisdictions do not allow the exclusion of implied warranties or conditions or the limitation of liability in certain circumstances, the above exclusions may not apply to Subscriber. 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.
12. LIMITATION OF LIABILITY
(a) IN NO EVENT SHALL STIMULONIMBUS AND/OR ITS OFFICERS, TRUSTEES, DIRECTORS, EMPLOYEES, AFFILIATES OR ITS SUPPLIERS BE LIABLE TO THE OTHER PARTY, DIRECTLY OR INDIRECTLY, FOR (a) ANY GENERAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR LOSS OF PROFITS) IN CONNECTION WITH ANY CLAIM, LOSS, CAUSE OF ACTION OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM SUBSCRIBER’S RELIANCE UPON OR ACCESS OR THE SERVICES OR FROM MALFUNCTION OR DEFECTS IN THE SERVICES, EVEN IF STIMULONIMBUS AND/OR ITS OFFICERS, TRUSTEES, DIRECTORS, EMPLOYEES, AFFILIATES OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, STIMULONIMBUS’ TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR ARISING FROM OR RELATING TO, DIRECTLY OR INDIRECTLY, THE USE OR EXPLOITATION OF THE SERVICES IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO 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 OF THIS AGREEMENT.
(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.
SUBSCRIBER SHALL, UPON REQUEST, INDEMNIFY, DEFEND AND HOLD HARMLESS STIMULONIMBUS AND ITS AFFILIATES, SUBSIDIARIES, SUPPLIERS, AND AGENTS AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND PROFESSIONAL ADVISORS FROM AND AGAINST ALL CLAIMS WHATSOEVER (INCLUDING COSTS, JUDGMENTS, CHARGES AND EXPENSES AND LEGAL FEES IN CONNECTION THEREWITH) BROUGHT, COMMENCED OR PROSECUTED AGAINST STIMULONIMBUS RELATING TO OR ARISING FROM, DIRECTLY OR INDIRECTLY: (I) ANY VIOLATION OR BREACH OF ANY TERM, CONDITION, REPRESENTATION OR WARRANTY OF THIS AGREEMENT BY SUBSCRIBER OR ANY ENDS USERS, (II) ANY USE OF THE SERVICES BY SUBSCRIBER OR ANY END USERS, INCLUDING CONTENT OR DATA DISPLAYED, DISTRIBUTED OR OTHERWISE DISSEMINATED USING THE SERVICES, AND (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.
All indemnification obligations, disclaimers of warranties and limitations of liability of this Agreement, and any other terms and conditions of the Agreement which by their nature extend beyond the termination or expiry of this Agreement shall survive the termination or expiration of the Agreement.
15. 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 Alberta without reference to conflict of laws principles. Each of the parties irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Alberta. 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 Alberta.
(b) All disputes arising under this Agreement shall be settled and resolved by arbitration in Edmonton, Alberta, by a single arbitrator pursuant to the provisions of the Arbitration Act (Alberta), as it may be amended from time to time and any successors legislation thereto, or, where Subscriber is located outside of Canada, the International Commercial Arbitration Act (Alberta), as it may be amended from time to time and any successor legislation thereto. 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 Court of Queen’s Bench of Alberta 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 Alberta 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. (Mountain 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. (Mountain Standard Time) on a business day, will be deemed to have been given on the business day after the date of the transmission.
17. GENERAL PROVISIONS
(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: Stimulonimbus may assign this Agreement at any time to any parent, subsidiary, or any affiliated company, or as part of the sale to, merger with, or other transfer of our company to another entity. Stimulonimbus will post a notice on the Site regarding any change of ownership so that any Subscriber has the opportunity to discontinue its use of the Services if it does not wish to continue to use the Services under the new ownership. The Subscriber may not 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.
(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 Stimulonimbus from marketing, licensing, selling or otherwise providing the Services or any aspects of Stimulonimbus’ technology or services to any third party.
(j) LANGUAGE: The Services are only available in English.
Last updated: Septemeber 12, 2016.
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