1. ACCEPTANCE OF TERMS
The following Terms of Service (“TOS”) constitute a legally binding contract between ELLERCA HEALTH CORP. (“ELLERCA”, “we”, “us”, or “our”) and you with respect to your use of ELLERCA’s website http://www.ellerca.com/ http://360care.ca (the “Website”), ELLERCA’s applications for mobile devices (the “App”), and the content, information and services provided through the Website or the App (collectively, the “Services”). We may update the TOS from time to time without notice to you. In addition, when using ELLERCA’s services, you will be subject to any guidelines or rules applicable to such Services that ELLERCA may post from time to time. All such guidelines or rules are deemed to be part of the TOS.
2. DESCRIPTION OF SERVICE
ELLERCA provides the Services so that nurses and other health care providers can provide health care services to patients via videoconferencing. Nurses and other health care providers can use the Services to store and share information with respect to their patients. Patients can use the Services to track use of medications and compliance with the guidance of their health care providers. Unless ELLERCA states otherwise, any new features, programs and services that augment or enhance the Services will be subject to the TOS. You agree that the Services are provided “AS-IS” and that ELLERCA assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any data, user communications or personalization settings or their quality or accuracy. You may not access the Services from territories where the Services or any content or functionality of the Services are prohibited. Services are provided over the Internet using videoconference technology using your webcam or the camera on your device. There is some level of risk that information in such communications could be intercepted or otherwise read by a third party. You acknowledge that ELLERCA may record any videoconferences as part of the data stored by the Services. ELLERCA is not responsible for any medical advice even if ELLERCA has made a referral to a health care provider or suggested that you seek advice from such provider. You agree that ELLERCA has a commercial relationship with each such provider. If you are unsure of the accuracy of any medical advice, you should seek a second opinion. You agree that ELLERCA does not assume responsibility for any products, content, services, websites, advertisements, offers, or information that are provided by third parties and made available through the Services.
3. YOUR REGISTRATION OBLIGATIONS
We reserve the right to decline to provide Services to any person for any or no reason In consideration of your use of the Services, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the online registration form (the “Registration Data”) or with respect to any insurance or other payment information requested and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, materially inaccurate or incomplete, or if you do not keep it current, or if ELLERCA has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, ELLERCA has the right to suspend or terminate your account and refuse your access to or use of the Services. The Services are not intended for individuals under the age of 18 or who are not Canadians. You hereby affirm that you are a Canadian over the age of 18. If you are under 18 years of age or not living in Canada, then you may not use the Services.
5. MEMBER ACCOUNT, PASSWORD AND SECURITY
You are responsible for maintaining the confidentiality of your password and account, and you are fully responsible for all activities that occur when your password or account are used. You agree to (a) immediately notify ELLERCA of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. ELLERCA will not be liable for any loss or damage arising from your failure to comply with the TOS.
You agree to indemnify and hold ELLERCA, and its subsidiaries, affiliates, officers, employees, agents, contractors and referees (including health care providers), and partners (collectively, the “Ellerca Parties”) harmless from any claim or demand, including reasonable legal fees, made by any third party connected with your use of the Services, your negligence or wilful misconduct, your violation of the TOS, or your violation of any rights of another person.
7. PAYMENT AND BILLING
From time to time, information on the Services may contains typos, inaccuracies, or omissions with respect to pricing, service offerings, promotional offers, and other matters. We reserve the right, without prior notice, to correct any errors, inaccuracies or omissions, to change or update information, and to refuse or cancel orders if any information on the Services contains a typo, inaccuracy, or omission at any time (including after you have submitted your order and after your credit card or other payment method have been charged). You acknowledge that the health care services available through the Website and App are not covered by the Ontario Health Insurance Plan (OHIP) or equivalent provincial, territorial, or federal government programs. You must pay for such services by credit card, debit card, or with private insurance. If for any reason we do not receive payment from your credit card, insurance company, or other payment method issuer, then upon demand, you agree to pay the overdue amount by other means acceptable to us. We reserve the right to accept other forms of payment, and if we elect to invoice you for services, you agree to pay to us the amount indicated in each invoice by the due date reflected on the invoice. YOU AGREE THAT WE (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY BILLING AGENT WE USE) MAY CHARGE YOUR PAYMENT METHOD (INCLUDING YOUR INSURANCE PROVIDER) FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT UNLESS REQUIRED OTHERWISE BY LAW. We may limit the number of promotions for which you may be eligible in a given period. In addition, certain promotional offers and discounts may apply to first-time purchasers only If you believe that a billing discrepancy has occurred, you must notify us within 60 days after the date on which such discrepancy first appeared on your credit card or other payment method account statement or invoice, as the case may be, or such amounts will be deemed to have been accepted by you. You agree to release us from any liability for any error or discrepancy that is reported to us after such period.
8. NO RESALE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, access to the Services or any proprietary information of ELLERCA contained in the Services.
9. MODIFICATIONS TO SERVICES
ELLERCA reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that ELLERCA will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or your access thereto.
You agree that ELLERCA, in its sole discretion, may terminate your password, account or use of the Services, and remove and discard any content accessible via the Services (provided that it is in compliance with applicable laws), for any reason, including, without limitation, for lack of use or if ELLERCA believes that you have violated or acted inconsistently with the letter or spirit of the TOS. ELLERCA may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, without notice. Further, you agree that ELLERCA will not be liable to you or any third-party for any termination of your access to the Services or expungement of your information.
11. ELLERCA’S PROPRIETARY RIGHTS
You acknowledge and agree that the Services and any proprietary software used in connection with the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content accessible via the Services and information presented to you through the Services is protected by the law of copyright, trade-mark, service mark, patent or other proprietary rights laws. Except as expressly authorized by ELLERCA or its information partners, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, in whole or in part. ELLERCA grants you a personal, non-transferable and non-exclusive right to access and use the Services on a single computer and a single mobile device; provided that you do not (and do not allow any third party to) copy, modify, create any derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code for the Services, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Services or the underlying software. You agree not to obtain or attempt to obtain unauthorized access to the Services or the underlying software. You agree not to access the Services by any means other than through the interface that is provided by ELLERCA for use in accessing the Services.
12. Use of the App
If you download the App from a distribution platform or app store other than through the Website (each an “App Provider”), including through a platform operated by Google or Apple, then you acknowledge and agree that: (i) these TOS are between ELLERCA and you, and not the App Provider; (ii) you must comply with the App Provider’s applicable terms and conditions; (iii) the App Provider is not responsible for any claims you have with respect to your use of the App, including any product liability claims, and the App Provider has no warranty obligation with respect to the App or obligation for any maintenance or support services with respect to the App; (iv) the App Provider is a third party beneficiary of these TOS and has the right to enforce these TOS against you as a third party beneficiary thereof; (v) you will comply with all third-party terms and conditions when using the App, including those of your data service provider. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List (or otherwise designated by the U.S. Government as a “terrorist supporting” country). By using the App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons. You acknowledge that in the event of any third party claim that the App, or your possession and use of the App, infringes that third party’s intellectual property rights, the App Provider shall not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
13. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: a. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ELLERCA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. b. ELLERCA MAKES NO WARRANTY THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. WITHOUT LIMITING THE FOREGOING. ELLERCA MAKES NO WARRANTY WITH RESPECT TO THE SERVICES PROVIDED BY ANY HEALTH CARE PROVIDERS OBTAINED THROUGH THE SERVICES. c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS OBTAINED BY YOU AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ELLERCA OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY OR OBLIGATION NOT EXPRESSLY STATED IN THE TOS. 14. LIMITATION OF LIABILITY YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE ELLERCA PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ONE OR MORE OF THE ELLERCA PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) YOUR ACCESS OR USE, OR YOUR INABILITY TO USE, THE SERVICES, INCLUDING ANY MEDICAL OR OTHER ADVICE PROVIDED BY A HEALTH CARE PROVIDER; (ii) THE COST OF SUBSTITUTE GOODS AND SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT SHALL THE ELLERCA PARTIES’ AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES OR CLAIMS RELATING TO THE SERVICES EXCEED THE AMOUNTS PAID BY YOU TO ELLERCA FOR THE PREVIOUS 6 MONTHS OF SERVICES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE THAT THE ELLERCA PARTIES ARE THIRD PARTY BENEFICIARIES OF THESE TOS AND HAVE THE RIGHT TO ENFORCE THESE TOS AGAINST YOU.
15. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN THOSE JURISDICTIONS, THE WARRANTIES OF ELLERCA WILL BE THE MINIMUM REQUIRED BY LAW AND THE LIMITATION OF LIABILITY WILL BE AS BROAD AS MAY BE CONSTRUED BY LAW.
Notices to you may be made via either e-mail or regular mail. The Services may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you via the Services.
17. TRADE-MARK INFORMATION
Without ELLERCA’s prior permission, you agree not to display or use in any manner, any of ELLERCA’s trade-marks, including “Ellerca”.
18. GENERAL INFORMATION
The TOS governs your use of and access to the Services, superseding any prior agreements between you and ELLERCA respecting your use of and access to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The TOS and the relationship between you and ELLERCA will be governed by the laws of the Province of Ontario and the applicable federal laws of Canada. You and ELLERCA agree to submit to the exclusive jurisdiction of the courts located within the City of Toronto, Ontario. The failure of ELLERCA to exercise or enforce any right or provision of the TOS will not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.