East Coast Mobile Medical Inc.

ECMM End User Agreement

End-User Agreement 

BY SELECTING THE "I ACCEPT" BUTTON AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF ECMM'S ONLINE SERVICE (THE "SERVICE"). 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 TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT PROCEED AND MAY NOT USE THE SERVICE.
As part of the Service, ECMM will provide you with use of the Service, including a browser interface, plug-in into some 3rd party products, web services access and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the ECMM website incorporated by reference herein, including but not limited to ECMM 's privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

1.	Privacy & Security; Disclosure

ECMM reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users when they initially log in, will be asked whether or not they wish to receive marketing, weekly reports and other non-critical Service-related communications from ECMM from time to time. They may opt out of receiving such communications at that time or at any subsequent time by choosing the unsubscribe link from such communication. Note that because the Service is a hosted, online application, ECMM occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.

2.	License Grant & Restrictions

ECMM hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by ECMM and its licensors.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

3.	Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, Provincial, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify ECMM immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to ECMM immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another ECMM user or provide false identity information to gain access to or use the Service.

4.	Account Information and Data

ECMM will make best endeavors to backup Customer Data every 24 hours. ECMM will not at any time retrieve Customer Data if it is accidentally or otherwise delete by you. In the unlikely case where Customer Data is lost because of software or hardware malfunction, ECMM will endeavor to restore to the most recent successful backup. ECMM takes no responsibility whatsoever whether implied or otherwise for the quality or frequency of Customer Data backup.
ECMM does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not ECMM, shall have sole responsibility for the input accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and ECMM shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), ECMM will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. ECMM reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and ECMM shall have no obligation to maintain or forward any Customer Data.
During your use of the Service, ECMM will archive certain information as well as keep some usage and statistical information. In all cases ECMM reserves the right to delete archived, usage and statistical data irretrievably once it is older than three (3) months.

5.	Intellectual Property Ownership

ECMM alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the ECMM Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the ECMM Technology or the Intellectual Property Rights owned by ECMM. The ECMM name, the ECMM logo, and the product names associated with the Service are trademarks of ECMM or third parties, and no right or license is granted to use them.

6.	Third Party Interactions

During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third-party. ECMM and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. ECMM does not endorse any sites on the Internet that are linked through the Service. ECMM provides these links to you only as a matter of convenience, and in no event shall ECMM or its licensors be responsible for any content, products, or other materials on or available from such sites. ECMM provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

7.	Suspension

In addition to any other rights granted to ECMM herein, ECMM reserves the right to suspend or terminate this Agreement and your access to the Service. Access to the Administration interface will be suspended immediately if an invoice is delinquent and is re-enabled when such delinquent invoices are paid in full. ECMM reserves the right to suspend or terminate your link if delinquent invoices are 60 days overdue. Delinquent invoices are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or ECMM initiates termination of this Agreement, you will be obligated to pay the balance due on your account. You agree that ECMM may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
You agree and acknowledge that ECMM has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.

8.	Termination for Cause

Any breach or unauthorized use of the ECMM Technology or Service will be deemed a material breach of this Agreement. ECMM, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, ECMM may terminate a free account at any time in its sole discretion. You agree and acknowledge that ECMM has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement and such breach has not been cured within 30 days of notice of such breach.

9.	Service Level Agreement

ECMM will provide a service level of 99.98% uptime per month excluding scheduled downtime on average of 1 hour per week for system maintenance and upgrades. The service level comprises of your ability to access Customer Data via a web-browser interface and any other reliability, timeliness, quality, suitability, truth, availability or completeness of the Service is not covered in this agreement. Scheduled downtimes are set after hours. 
ECMM will use best endeavors to ensure the delivery of real-time alerts. ECMM guarantees to send real-time alerts instantly but cannot guarantee their delivery by 3rd party providers and aggregators.
Email marketing broadcasts will be undertaken at anytime during the date specified for the broadcast and may take up to 24 hours to deliver from commencement of the broadcast. Email marketing broadcasts cannot be sent unless approved by ECMM and may take up to 6 hours for approval.

10.	Marketing

You grant ECMM the right to display your brand including company name and logo on its website and other marketing communications.

11.	Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. ECMM represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online ECMM help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

12.	Mutual Indemnification

You shall indemnify and hold ECMM, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that ECMM (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release ECMM of all liability and such settlement does not affect ECMM 's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
ECMM shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by ECMM of its representations or warranties; or (iii) a claim arising from breach of this Agreement by ECMM; provided that you (a) promptly give written notice of the claim to ECMM; (b) give ECMM sole control of the defense and settlement of the claim (provided that ECMM may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to ECMM all available information and assistance; and (d) have not compromised or settled such claim. ECMM shall have no indemnification obligation, and you shall indemnify ECMM pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).

13.	Disclaimer of Warranties

EXCEPT FOR WHAT IS STATED IN SECTION 14 ECMM AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT EXCEPT FOR WHAT IS STATED. ECMM AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY GOODBARRY AND ITS LICENSORS.

14.	Internet Delays

EXCEPT FOR WHAT IS STATED IN SECTION 14 GOODBARRY'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GOODBARRY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

15.	Limitation of Liability

IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16.	Additional Rights

Certain Provinces and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

17.	Notice

ECMM may give notice by means of a general notice on the Service, electronic mail to your email address on record in ECMM 's account information, or by written communication sent by first class mail or pre-paid post to your address on record in ECMM 's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to ECMM (such notice shall be deemed given when received by ECMM) at any time by any of the following: letter sent by confirmed facsimile to ECMM at the following fax numbers (whichever is appropriate): (902) 468-7659 (for All Customers); letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to ECMM at the following addresses (whichever is appropriate): ECMM, 101 Ilsley Avenue, Suite 5A, Dartmouth, NS B3B 1S8 in either case.

18.	Modification to Terms

ECMM reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

19.	Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of ECMM but may be assigned without your consent by ECMM to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of ECMM directly or indirectly owning or controlling 50% or more of you shall entitle ECMM to terminate this Agreement for cause immediately upon written notice.

20.	General

This Agreement shall be governed by the laws of Nova Scotia, Canada without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Nova Scotia. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and ECMM as a result of this agreement or use of the Service. The failure of ECMM to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by ECMM in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and ECMM and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

21.	Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith: "Agreement" means these online terms of use, any Order Forms, and any materials available on the ECMM website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by ECMM from time to time in its sole discretion; "Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service; "Customer Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service; "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Service; "Initial Term" means the first License Term period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term (and first License Term) is the first quarter); "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; "License Administrator(s)" means those Users designated by you who are authorized to access Online documents or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service; "License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s); "Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); "Online Order Center" means ECMM 's online application that allows the License Administrator designated by you to, among other things, add additional Users to the Service; " ECMM " means collectively ECMM, an Nova Scotian registered business, having its principal place of business at 101 Ilsley Avenue, Suite 5A, Dartmouth, NS B3B 1S8; " ECMM Technology" means all of ECMM 's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by ECMM in providing the Service; "Service(s)" means the specific edition of ECMM online content management and customer relationship management systems, billing, data analysis, or other corporate services identified during the ordering process, developed, operated, and maintained by ECMM, accessible via http://www.ecmm.ca or another designated web site or IP address, or ancillary services rendered to you by ECMM, to which you are being granted access under this Agreement, including the ECMM Technology and the Content; "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by ECMM at your request).