Last revision: April 5, 2020
This is a legal agreement between Masterhealth Technologies Inc. (“Masterhealth” or “we” or “our”) and you (“you”), (and together the “Parties” and individually a “Party”). This Agreement applies to your application to use of the Masterhealth products and services including those provided using (i) our website located at https://www.masterhealth.com (the “Website”) and all subdomains; (ii) any software of software application we make available, now or in the future, (the “App”); and (iii) any additional software, services including beta services, or features provided by Masterhealth (individually and together, the “Services”, and the Website, Apps other software, and related documentation we provide individually and together the “Masterhealth Platform”).
Acceptance of the Terms
BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON ON ANY MH PLATFORM, OR APPLYING FOR APPROVAL FOR THE BETA SERVICE, OR BY DOWNLOADING, INSTALLING, ACTIVATING OR USING ANY PART OF THE MH PLATFORM OR SERVICES, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TERMS OF THIS AGREEMENT, PLEASE CONTACT MASTERHEALTH AT INFO@MASTERHEALTH.CARE. IF, PRIOR TO DOWNLOADING, INSTALLING, ACTIVATING OR USING THE MH PLATFORM OR SERVICES, YOU DECIDE YOU ARE UNWILLING TO AGREE TO THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE SERVICES OR THE MH PLATFORM.
Eligibility. The beta Service is available only to individuals who are at least 18 years old. You represent and warrant that you are of legal age to form a binding contract, and that all registration and other information you submit or provide to Masterhealth is accurate and truthful. Masterhealth may, in its sole discretion, refuse to offer the beta Service to any person and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.
Usage Fee. There is no fee to apply for the beta Service. We reserve the right to introduce a fee at some point in the future if you wish to continue to use the Service after the beta Service provided to you has ended. We will inform you and allow you either to continue or terminate your use of the Service, if such a fee is introduced.
Territory. The Masterhealth Platform and Services are intended for use only in the countries and territories listed as follows: United States and Canada (the “Territory”). Masterhealth may change the Territories by posting a change on its website and such posting shall be deemed to be notice of the change.
Ideas and Suggestions. Masterhealth wishes to continually and expand its Services. Masterhealth welcomes any ideas, suggestions, or feedback, related to the Masterhealth Platform or Services or for upgrades, updates, improvements, new features or functions thereto (“Ideas”). If you provide Masterhealth with any Ideas, whether orally, in writing, or in any other way, you grant Masterhealth a non-exclusive, worldwide, royalty-free, sub-licensable and non-revocable license to develop, make, have made, reproduce, have reproduced, import, modify, make derivative works of, sell, and offer to sell Ideas as part of Masterhealth’s technology, products or services. You shall not knowingly provide Masterhealth with any Ideas that are subject to third party intellectual property rights or that includes or reveals any confidential information of any person.
Intellectual Property Rights. You do not acquire hereby any intellectual property right in or relating to the Masterhealth Platform or services. Any rights not expressly granted herein are expressly reserved.
Changes in Services. Masterhealth may change the Services or add or delete features at any time for any reason. This includes ceasing to provide the beta Service or to approve new applicants at any time.
Disclaimers. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXCLUDED. THE PARTIES ALSO AGREE THAT THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (“UCITA”) AS ENACTED IN ANY STATE SHALL NOT APPLY TO THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW UCITA IS HEREBY EXCLUDED IN ITS ENTIRETY FROM APPLICATION TO THIS AGREEMENT. THE LIMITED WARRANTIES SET OUT IN THIS AGREEMENT GIVE YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE OR PROVINCE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES AND CONDITIONS. TO THE EXTENT PERMITTED BY LAW, ANY IMPLIED WARRANTIES OR CONDITIONS RELATING TO THE APP OR SERVICES TO THE EXTENT THEY CANNOT BE EXCLUDED AS SET OUT ABOVE, BUT CAN BE LIMITED, ARE HEREBY LIMITED TO THIRTY (30) DAYS FROM THE DATE YOU FIRST INSTALLED THE APP ON ANY DEVICE OR COMMENCED TO USE THE SERVICES.
EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW IN YOUR JURISDICTION, EACH THE MH PLATFORM AND SERVICE IS PROVIDED OR MADE ACCESSIBLE “AS IS” AND “AS AVAILABLE”, WITHOUT CONDITION, ENDORSEMENT, GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND BY MASTERHEALTH. MASTERHEALTH DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF ANY SERVICE, CONTINUED AVAILABILITY OF ANY SERVICE, OR THAT ANY MESSAGES, CONTENT OR INFORMATION SENT BY OR TO YOU WILL BE ACCURATE, TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME.
ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT, THE MASTERHEALTH PLATFORM OR THE SERVICES MUST BE BROUGHT WITHIN ONE YEAR. THE ONE-YEAR PERIOD BEGINS ON THE DATE WHEN THE CLAIM FIRST COULD BE FILED. IF IT IS NOT, THEN THAT CLAIM IS PERMANENTLY BARRED. THIS APPLIES TO YOU AND YOUR SUCCESSORS. IT ALSO APPLIES TO US AND OUR SUCCESSORS AND ASSIGNS.
Limitations of Liability. In no event shall the aggregate liability of Masterhealth arising from or related to this Agreement or the Masterhealth Platform or Services exceed the greater of US $25 or the amount paid to Masterhealth in the month in which the claim first arose, even if a continuing one.
Exclusion of Certain Damages: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION, IN NO EVENT SHALL MASTERHEALTH BE LIABLE FOR ANY OF THE FOLLOWING TYPES OF DAMAGES: CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR AGGRAVATED DAMAGES, DAMAGES RELATED TO OR ARISING FROM PERSONAL INJURIES OR DEATH, MEDICAL OR HEALTH COSTS OR EXPENSES, OR MENTAL DISTRESS, DAMAGES FOR LOSS OF PROFITS OR REVENUES, LOSS OF INFORMATION, CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, OR OTHER SIMILAR PECUNIARY LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE APP OR SERVICES INCLUDING THE USE OR INABILITY TO USE, PERFORMANCE OR NON-PERFORMANCE OF THE APP OR SERVICES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND EVEN IF MASTERHEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MASTERHEALTH SHALL BE LIABLE TO YOU ONLY AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION, SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT, OR OTHERWISE TO YOU INCLUDING ANY LIABILITY FOR NEGLIGENCE OR STRICT LIABILITY. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY: (A) IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY YOU INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN; AND (B) TO MASTERHEALTH AND ITS AFFILIATED COMPANIES, THEIR SUCCESSORS, ASSIGNS, AGENTS, SUPPLIERS, AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND INDEPENDENT CONTRACTORS.
MASTERHEALTH IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE MASTERHEALTH, IT’S DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS, THE FEES AND OTHER TERMS IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. IN ADDITION TO THE LIMITATIONS AND EXCLUSIONS SET OUT ABOVE, IN NO EVENT SHALL ANY DIRECTOR, EMPLOYEE, AGENT, DISTRIBUTOR, SUPPLIER, INDEPENDENT CONTRACTOR OF MASTERHEALTH OR ANY AFFILIATES OF MASTERHEALTH HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, THE APP OR THE SERVICES.
Assignment. Masterhealth may assign this Agreement without notice to You. You shall not assign this Agreement without the prior written consent of Masterhealth and any assignment without Masterhealth’s prior written consent shall be of no effect. Masterhealth may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its contractor or subcontractors or its affiliates.
Notices. Except as otherwise provided in this Agreement, all notices or other communications hereunder shall be deemed to have been duly given when made in writing and delivered in person, by courier or deposited in the mail, postage prepaid, registered mail, return receipt requested, and addressed to You at the billing address supplied to Masterhealth by You, and addressed to Masterhealth Technologies Inc. at 1 Richmond Street West, Toronto, Ontario, M5H 3W4, Canada. In addition to the foregoing, Masterhealth may, at its option, give You any notice under this Agreement electronically. Electronic notice to You shall be deemed to have been duly given when transmitted to an address furnished by You to Masterhealth.
Force Majeure. Notwithstanding any other provision of this Agreement, neither Party shall be in default or breach of this Agreement for failure to fulfill its obligations when due to or contributed by causes beyond its reasonable control. An act of Force Majeure shall be deemed to include: an act of god such as without limitation a fire, flood, earthquake, epidemic, pandemic, volcanic eruption, adverse weather conditions, storm, hurricane or other natural disaster, a strike, lock-out, labour dispute; war, invasion, act of foreign enemy hostilities (whether war has been declared or not), civil war rebellion revolution insurrection or military or usurped power, terrorism, act of sabotage, civil disturbance, blockade, riot, civil commotion, malicious damage, interruption or failure of electricity, power supply, interruption or failure of the internet or other telecommunication facility, network or means of telecommunication, computer virus, or bug, third party computer infiltration, attack by a hacker, governmental restriction, or any other act or circumstance that materially increases or affects the risk or danger to the health or safety of members of the public.
General. This Agreement (and any additional terms and conditions with which Masterhealth supplements this agreement) is a complete statement of the agreement between you and Masterhealth. The suppliers, agents, employees, distributors, and dealers of Masterhealth are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Masterhealth. Any waiver of the terms herein by Masterhealth must be in a writing signed by an authorized officer of Masterhealth and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. Masterhealth’s affiliates and Masterhealth and its affiliates’ employees, contractors, directors, suppliers and representatives are intended third party beneficiaries for the purpose of the Sections of this Agreement entitled, “Limitations of Liability”, “Exclusion of Certain Damages”, and “Disclaimers”. Except as otherwise specifically stated in this Section, the provisions herein are for the benefit of the Parties and not for any other person or entity. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof shall so survive the completion of performance, cancellation or termination of this Agreement. To the extent any provision or portion thereof of this Agreement is determined to be illegal, invalid or unenforceable by a competent authority in any jurisdiction, then such determination of that provision or portion thereof will not affect: (a) the legality, validity or enforceability of the remaining provisions of this Agreement; or (b) the legality, validity or enforceability of that provision in any other jurisdiction, and that provision (or portion thereof) will be limited if possible and only thereafter severed, if necessary, to the extent required to render the Agreement valid and enforceable.
Governing Law and Dispute Resolution. This Agreement is to be governed by and construed under the laws of the Province of Ontario, excluding any body of law governing conflicts of law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. Except to the extent specifically prohibited by applicable law in Your jurisdiction, any disagreement or dispute arising from or related to this Agreement shall be settled by final and binding arbitration to be conducted in Ontario, Canada in accordance with the Commercial Rules of the American Arbitration Association (“Rules”) and shall be heard by one arbitrator appointed in accordance with the said Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. Each Party shall bear one half of the costs associated with the arbitration proceedings. No dispute between the Parties, or involving any person but You, may be joined or combined together, without the prior written consent of Masterhealth. Judgment upon the award rendered by the arbitrator may be entered in any Court having jurisdiction thereof. You irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the Province of Ontario, for any such claims arising from or related to this Agreement. The Parties specifically agree that, in the event that there is a dispute under this Agreement and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial. The Parties hereby waive all rights to a trial by jury in any matter related to or arising from this Agreement.
Language. The parties have required that this Agreement and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents que s’y rattachent soient rédigés en anglais.
Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and there are no provisions, understandings, communications, representations, warranties, undertakings, collateral agreements or agreements between the Parties relating to the Masterhealth Platform or Services other than as set out in this Agreement. This Agreement supersedes any prior or contemporaneous provisions, understandings, communications, representations, warranties, undertakings, collateral agreements and agreements between the Parties, whether oral or written, with respect to the subject matter hereof, and You acknowledge that You have not relied on any of the foregoing in agreeing to enter into this Agreement. This Agreement may be amended at any time upon mutual agreement by the Parties.