CloudMD Software & Services Inc. (“CloudMD”, “we”, “us”, “our”) is pleased to offer you our health service platform which provides a single access point for our services (the “services”) available to you.
Our platform consists of applications, websites, content, products and services (collectively referred to as the “Kii Platform“). The Kii Platform enables registered users (“users“, you“, “your“) to access mental health and wellness services. We may make additional optional services available to users from time to time.
THESE TERMS AND CONDITIONS OF USE (THIS “AGREEMENT”) GOVERN YOUR USE OF THE KII PLATFORM, YOUR SUBSCRIPTION AND ACCESS TO THE KII PLATFORM (AS SET OUT BELOW) AND YOUR USE OF THE MOBILE APPLICATION (THE “APP”) AND ANY INFORMATION, TEXT, GRAPHICS, PHOTOS OR OTHER MATERIALS UPLOADED, DOWNLOADED OR APPEARING ON THE KII PLATFORM. BY CLICKING ON THE BOX, YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT DO NOT CLICK ON THE BOX.
In order to access our services, you will need to create an account through our website or mobile application. Creating an account does not create a provider-client relationship, diagnostic, treating or otherwise any therapeutic professional relationship with us. Use of our services is entirely voluntary, and available to you through your employer.
WE ARE NOT AN EMERGENCY OR CRISIS SERVICE. IN THE EVENT OF AN EMERGENCY OR IF YOU ARE IN CRISIS OR PLANNING TO HARM YOURSELF OR SOMEONE ELSE, YOU SHOULD CALL 911, A DISTRESS LINE OR GO TO THE NEAREST HOSPITAL EMERGENCY ROOM. You should seek emergency help or follow-up care when recommended by a Provider or when otherwise needed. You should continue to consult with your primary provider and other healthcare professionals as recommended. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or medication. Online assessment questionnaires are not reviewed immediately, and messages sent through The Kii Platform are not constantly monitored.
1.1 Services.CloudMD provides users on-demand access to mental health and wellness services. The Kii Platform content should not be considered medical advice. You should always speak with an appropriately qualified healthcare professional for medical information, including diagnosis, treatment and recommendations for medications, where warranted. None of the Content represents or warrants that any particular medication or treatment is safe, appropriate, or effective for you. Without limitation, CloudMD does not recommend or endorse any specific tests, providers, medications, products or procedures. For the purposes of providing Services and purposes consistent with those Services, CloudMD may collect and use personal information that is provided by users during account creation for the purpose of delivering mental health and wellness services. We may also use the information you provide to send you marketing emails or inform you about other services we offer. Your information, in de-identified form, may be used for trending, utilization patterns and research on or for objectives consistent with those purposes, including but not limited to the following:
1.2 Register.To access the Services on the Platform you will need to register by creating a User Account and will need to provide your name, contact information and a password that you select. We use your personal information to identify who you are, communicate with you, and otherwise administer your use of the Kii Platform to receive Services.
By consenting to receive Services using the Kii Platform, you consent to these inherent material risks. By providing any of your personal information to the Kii Platform you are consenting to the collection, use and disclosure of your personal information for the purposes of providing mental health and wellness services to you and for purposes that are consistent with those purposes. You agree the information provided is true, accurate, current and complete information about yourself. If you provide any information that is untrue, inaccurate, not current or incomplete, or CloudMD has reasonable grounds to suspect that such Account information is untrue, inaccurate, not current or incomplete, CloudMD reserves the right to suspend or terminate your Account and refuse any and all current or future use of the Service. You shall at all times remain responsible for maintaining the confidentiality of your Account password and any other security information related to your Account. CloudMD will not be liable for any loss that you incur as a result of someone else using your Account, either with or without your knowledge. CloudMD nor any other party associated with CloudMD will disclose your personal information to any third party except as may be required by law or as outlined in our Privacy Policy. Your personal data will be securely and digitally stored on servers physically located in your country. CloudMD uses advanced encryption technology and other security protocols to protect your personal information. You acknowledge by using the Kii Platform that there are inherent risks to any technology, however remote, that could cause security protocols to fail or be breached, which could result in the unauthorized collection, use or disclosure of your personal information. CloudMD will notify you to the extent required by the law of any security protocol failure or breach that has resulted in the unauthorized collection, use or disclosure of your personal information. We will not be responsible for any damages you or any third party may suffer as a result of the transmission of confidential information that you make available to us through the Internet, or that you expressly or implicitly authorize us to make, or for any errors or any changes made to any transmitted information.
1.3 Eligibility.In order to create an account to use the Kii Platform, you must:
Users may register individuals for whom they have the legal right to make healthcare decisions (“Registered Dependents“) and use the Kii Platform on their behalf. Users are required to create a separate “profile” for each Registered Dependent, which includes his or her name and other personal information. Where you are using the Kii Platform on behalf of Registered Dependents, the terms “you” and “your” in these Terms include those Registered Dependents. For clarity, nothing in these Terms requires CloudMD to accept any registrant as a User, notwithstanding that the registrant meets CloudMD’s eligibility requirements as amended from time to time. Supplementary Terms specific to certain users may also apply. Supplementary Terms are incorporated into and become part of these Terms.
1.4 Purchase of Services.If you choose to purchase Services, we may collect your payment information such as your name, address, phone number, email address, billing address, and payment method information. This information is used to process and maintain your subscription.
1.5 Quality and Statistics.If you access the Kii Platform your personal information may be used to improve the quality of Services. Your de-identified personal information may be used for aggregate statistical reporting relating to the use of the Kii Platform.
1.6. Providing content in Canada’s official languages.The Official Languages Act, the Official Languages (Communications with and Services to the Public) Regulations and Treasury Board policy requirements establish when we use both English and French to provide services to or communicate with members of the public. When there is no obligation to provide information in both official languages, content may be available in one official language only. Information provided in a language other than English or French is only for the convenience of our visitors.
1.7 Contact Us.When you contact us with a comment, question or complaint, you may be asked for information that identifies you (such as your name, address, and a telephone number) along with additional information we need to help us promptly answer your question or respond to your comment. We may retain this information to assist you in the future and to improve our customer service, service offerings, and our Services. We will keep your information confidential except where disclosure is required or permitted by law (for example to government bodies and law enforcement agencies or during an emergency circumstance as judged by your Provider working with local authorities). Generally, we will only use your information within our company. However, sometimes we use third parties to process your information (for example as credit card payment providers). We will require these third parties to comply strictly with its instructions and we will require that they not use your personal information for their own business purposes CloudMD stores data only for as long as it is necessary to provide products and services to you and others, including those described above and for legal protections or as required by applicable laws and regulations.
2.1 License for Services.CloudMD grants and You hereby accept, upon payment by You of the Fees, if applicable (as defined below) and subject to the terms and conditions contained herein, a limited, non-transferable, non-exclusive, worldwide, and revocable license, without the right to sublicense, to access and use the Services and to access and use all material, information and technology offered as part of the Services including but not limited to documents, articles, questionnaires, reports, software, graphics, text, images and logos, algorithms, processes, user interfaces, designs and know-how (the “Content”) solely for Your personal use. You may download, print and reproduce the Content without modification for Your own non-commercial, informational purposes provided you agree to maintain any and all copyright or other proprietary notices contained in such Content, and to cite the URL Source of such Content.
2.2 License for App.CloudMD grants and You hereby accept, subject to the terms and conditions contained herein, a limited, non-exclusive, non-transferable, non-assignable license to use the App solely to access the Services.
2.3 Restrictions.You acknowledge that the Kii Platform, the App and the Content, constitute valuable intellectual property of CloudMD and its licensors. You agree that, except as otherwise set out in this Agreement, You will not (i) copy or use the Kii Platform, the App or the Content; (ii) alter, modify, duplicate, translate, decompile, reverse engineer, or attempt to recreate the Kii Platform, App or the Content, in whole or in part or attempt to circumvent any technological measure implemented by CloudMD to protect the Kii Platform or App; (iii) modify or create any derivative works from the Kii Platform, App or the Content any part thereof; (iv) merge the Kii Platform or the Content with any other software; (v) disclose to any third party any performance information or analysis relating to the Kii Platform, App or the Content; (vi) license, sublicense, sell, convey, assign, transfer, give, lend, rent, transfer or otherwise grant any right to any of the Kii Platform, the App or the Content or any of Your rights hereunder, in whole or in part, voluntarily or involuntarily, by operation of law or otherwise, to any person, individual, legal or personal representative, partnership, company, corporation, syndicate, association, trust or governmental body otherwise; (vii) build an identical product to the Kii Platform or the App or a product with similar ideas, features and functionality as the Kii Platform or the App; (viii) harvest or otherwise collect or store any information (including personal information) about other users of the Services, including email addresses, without the express consent of such users or alter transmission data; (ix) for the purpose of misleading others, create a false identity of the sender or the origin of a message, forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Services or in connection with CloudMD; (x) upload, post, email or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or commercial electronic message; (xi) use any means to scrape or crawl any web pages or Content contained in the Kii Platform or Apps and (xii) copy any ideas, features or functions of the Kii Platform or the App. You agree to retain, on all copies of any Content You download, all copyright and other proprietary notices contained in the Content. The Kii Platform, the App and the Content are protected by Canadian and worldwide copyright laws and treaty provisions. You agree to comply with all copyright laws worldwide in Your use of the Kii Platform, the App and the Content and to prevent any unauthorized copying of the Content. Except as expressly provided herein, CloudMD does not grant any express or implied right or license to You under any intellectual property right, including, without limitation, any patent, trademark, copyright, trade secret, industrial design or confidential information of CloudMD and its licensors.
2.4 Updates and Upgrades.As a user of the App, you are entitled to receive software updates or upgrades for your mobile devices, and you may be required to install or allow installation as a condition of continued use of the App. Updates or upgrades can be necessary for reasons such as enabling new features, or enhancing security. You consent to receive updates and upgrades automatically through the Internet without obtaining further consent each time. The App may: (i) cause your device to automatically communicate with our servers to deliver the functionality described in the product description or through new features as they are introduced, and to record usage metrics; (ii) affect preferences or data stored in your mobile device; and (iii) collect personal information as set out in our Privacy Policy. You can withdraw your consent at any time under certain conditions, please contact us at privacy@cloudmd.ca. We will not be responsible if an update or upgrade affects how your App works if this is caused by your own equipment – such as your mobile device or broadband not supporting the update or upgrade.
3.1 Your Data.In the course of using the Services You may provide certain information, data and material through the Services (the “Your Data”). You agree that Your Data will: (i) comply with all applicable laws; (ii) not contain infringing, obscene, threatening, libelous, or other illegal material and does not violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights; (iii) not include material containing software viruses, worms, Trojan horses or other harmful computer codes, files scripts or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware telecommunications equipment; and (iv) not contain any content, work, name, logo or mark that infringes any intellectual property right of any person.
We will keep your information confidential except where disclosure is required or permitted by law (for example to government bodies and law enforcement agencies or during an emergency circumstance as judged by your Provider working with local authorities). Generally, we will only use your information within our company. However, sometimes we use third parties to process your information (for example as credit card payment providers). We will require these third parties to comply strictly with its instructions and we will require that they not use your personal information for their own business purposes CloudMD stores data only for as long as it is necessary to provide products and services to you and others, including those described above and for legal protections or as required by applicable laws and regulations. CloudMD may allow service providers to access information so they can help us provide services.
3.2 Ownership.You acknowledge that You own Your Data and all intellectual property rights therein, or that You have the right to grant the license to CloudMD to use Your Data. You will have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness and intellectual property ownership of Your Data and for obtaining the right to use all of Your Data.
3.3 Information about Our Services.As you access the Kii Platform or receive Services, certain information may be passively collected by cookies (“Cookies”), navigational data like Uniform Resource Locators (“URLs”) and third-party tracking services, including:
3.4 Security of Personal Information.We understand that data security is a critical issue for our clients and we are committed to safeguarding the personal information in our custody and under our control. CloudMD has a comprehensive information security program that includes written policies and procedures, and security controls. We have implemented reasonable administrative, technical and physical safeguards to protect against unauthorized access, use, modification and disclosure of personal information in our custody and control. Our privacy practices are intended to comply with applicable privacy laws, including, without limitation, the Personal Health Information Protection Act (Ontario) (“PHIPA”) and the Personal Information Protection and Electronic Documents Act (Canada) (“PIPEDA”) and the Health Insurance Portability and Accountability Act (United States) (“HIPAA”). We will maintain the privacy of your personal information as required by applicable privacy laws, including without limitation, PHIPA, HIPPA, and PIPEDA and the regulations under those Acts. For more information, please view CloudMD’s Privacy Policy. This Privacy Policy may be updated periodically to reflect changes to our personal information practices. The revised Privacy Policy will be posted on the Kii Platform. If we make any substantial changes to this Privacy Policy and how we use your personal data, we will post these changes on this page and will do our best to notify you of any significant changes. Please check our Privacy Policy regularly.
3.5 Access to Personal Information.If you submit personal information via our Kii Platform or otherwise provide us with your personal information, you may request access, updating or correction of your personal information by submitting a written request to privacy@cloudmd.ca. We may request certain personal information to verify your identity.
3.6 De-Identified Information.All de-identified aggregate data, metadata and research data collected by us through your use the Service remains the sole property of CloudMD. Research data is used in non-identifiable aggregate form, that is, as a statistical measure, but not in a manner that would identify you personally. CloudMD may share some or all of this research data with third parties in connection with joint or outside research, analytics, or similar purposes. You shall not request CloudMD to remove or delete any of such data.
3.7 Limitation on Deletion.You may request deletion of your personal information by us, but please note that we may be required (by law or otherwise) to keep this information and not delete it (or to keep this information for a specific time, in which case we will comply with your deletion request only after we have fulfilled such requirements). When we delete personal information, it will be deleted from the active database, including from our archives, though we may also retain Anonymous Information about your use of our Kii Platform and Services. Once we disclose some of your personal information to third parties, we may not be able to access that personal information any longer as maintained by the third party and cannot force the deletion or modification of any such information by the parties to whom we have made those disclosures. After we delete personal information, we will retain de-identified information and will continue to use de-identified information without restriction as permitted under the Privacy Policy.
4.1 Fees.You will pay CloudMD in accordance with our current fee schedule (the “Fees”). You will pay the Fees and any additional Fees You incur by electronic payment methods identified during the subscription process. CloudMD reserves the right to terminate Your access to the Services if You fail to pay any Fees when due or if You provide false or fraudulent billing or contact information during the online subscription process. We reserve the right to amend our fee schedule from time to time.
If you access the Services through an Employer-sponsored benefit plan or other insurance-backed plan, your payment will be arranged by a third party “Payor” which is a third party that administers or insures the benefit program you are a member of through your employer. In this instance, you may still be responsible for co-payment or payment for additional services.
4.2 Payment Method transactions.In engaging our Services, you may be sent text messages, emails and push notifications which provide you with essential and useful information regarding our Services. You will be charged your mobile telephone network provider’s standard rate for receiving these SMS messages, and standard wireless and data charges will apply to any emails or push notifications. CloudMD does not charge you for this correspondence. Your mobile telephone network provider may impose message, standard wireless and data charges or charge limitations which are beyond our control and for which you will be solely responsible. By engaging our Services, including registering for a User Account, you agree to receive emails and push notifications relating to our Services. If you consent during registration, you also agree to receive text messages. You warrant that you are the owner of the mobile telephone to which you have requested the SMS message(s), emails and push notifications should be sent to and that you have full authority to authorize such charges and will be solely responsible for costs, if any, to be incurred by the relevant mobile telephone network provider. We are not liable for any delays or failures in your receipt of any SMS message(s), emails or push notifications as delivery is subject to effective transmission from your mobile telephone network provider and processing by your mobile telephone device. We reserve the right to suspend or terminate the SMS service without notice to you.
4.3 Third Party Payment.Payments are processed on behalf of CloudMD by a third-party payment processor using their secure site.
4.4 Taxes.All fees and other charges specified in this Agreement are exclusive of all applicable goods and services taxes and any other taxes imposed or levied by any government or government agency, including sales or use taxes (the “Purchase Taxes”). You will pay all Purchase Taxes, other than taxes on CloudMD’s net income, as a result of the transactions contemplated by this Agreement.
4.5 Cancellation and Refund Policy.If a third party (e.g., such as an employer or supplemental health insurance provider) has arranged with CloudMD to pay the fee or any portion of the fee, or if the fee is pursuant to some other arrangement with CloudMD that fee adjustment will be reflected in the fee that you are ultimately charged. If you have a Health Spending Account (“HSA”) offered as a benefit by your employer, you agree to pay all fees or charges to your HAS Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Please check with your employer to determine if any Services will be reimbursed other than from your HSA. CloudMD reserves the right to modify or implement a new pricing structure at any time prior to billing you or a responsible third party for your initial payment or future payments due pursuant to these Terms of Use. CloudMD may require you to provide and keep updated during the Term the details of a current and valid credit card, debit card, PayPal account, Apple Pay, or another payment method (“Payment Method”) that is acceptable to CloudMD in its sole discretion. You hereby authorize CloudMD to charge any Fees that become due and payable to the Payment Method. You agree to pay such fees, charges and penalties (including costs and expenses related to the collection by CloudMD of overdue payments) as we may from time to time set out on the Kii Platform in respect of late or delayed payments, or declined or unsuccessful.
5.1 Account.You are responsible for all of the activity associated with Your account and for maintaining the confidentiality and security of your username and password. You agree to notify CloudMD immediately in the event of any unauthorized use of Your account or password or if You suspect Your account or password has been compromised in any way. You agree not to misrepresent Yourself in order to gain access to the Services. You are responsible for advising CloudMD of any change in your billing or contact information.
5.2 Applicable Laws.You must abide by all applicable local, provincial and federal laws and all relevant treaties and directives in Your use of the Services.
5.3 Limiting Access.You will not permit persons other than You, or if you are the parent or legal guardian of a dependent minor on whose behalf You have opened a user account, to access the Kii Platform or to use the App. You acknowledge that dependent minor may only use the Services if You are aware of or present during such use. You represent that you are not a competitor of CloudMD and agree that you will not knowingly allow competitors of CloudMD to access the Services.
5.4 Electronic Communication.By using the Services, You agree to receive SMS messages, emails and push notifications relating to the Services. You warrant that You are the owner of the mobile telephone to which you have requested the SMS messages, emails and push notifications be sent and that You have the authority to authorize such related charges and that You will be solely responsible for all costs, if any, incurred by the relevant mobile telephone network provider.
5.5 No Responsibility.CloudMD accepts no responsibility and will not be held liable for any delays, performance issues, stoppages, outages, increased costs or other similar events relating to the Kii Platform or to the App, including, without limitation, delays or failure of receipt of any SMS messages, emails or push notifications attributable to Your mobile telephone network provider and processing by Your mobile phone device.
6.1 Third Party Links.The Kii Platform may contain hyperlinks to websites managed by third parties. These links are provided for convenience only. CloudMD has no control over websites owned by third parties and we make no representation or warranty regarding, nor endorse, any linked websites, the information appearing thereon or any of the products or services described thereon, or the linked-party sources (including any viruses access through them), the quality of the products or services offered, the security of performing transactions on those websites or the privacy policies on the websites in question. Links do not imply that CloudMD sponsors, endorses, is affiliated or associated with, or is legally authorized to use any trademark, trade name, logo or copyright symbol displayed on or accessible through the links or that any linked website is authorized to use any trademark, trade name, logo or copyright symbol of CloudMD. We cannot be held liable for possible damages arising from Your use of such third-party sites.
6.2 Content.The Kii Platform may from time to time contain materials, data or information provided, posted or offered by third parties. You agree that CloudMD will have no liability whatsoever to You for any such third-party material, data or information.
6.3 Enterprise Programs or other Network Benefit Programs.In addition to the registration described above, access to the Services through an Employer-sponsored benefit plan or other insurance backed plans may require you to provide additional registration information. This information is collected to confirm your eligibility with the benefit administrator and is not shared with your Provider (who will collect your contact information separately). Further, your Employer or the Employer of the subscriber of your benefits will not be provided this information unless such information is shared by you or part of a pre-arranged special program.
7.1 App Store.When You download the App, You may do so through a third party’s App Store (an “App Store Sourced Application”) such as Google Play or the Apple App Store. You acknowledge that the terms of this Agreement are between You and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Kii Platform, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, You must have access to a wireless network, and You agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Kii Platform, including the App. The following applies to any App Store Sourced Application:
7.2 Additional Terms & Conditions (Apple).The following terms apply to the iOS version of our App:
8.1 Ownership of Software.CloudMD and its licensors own all right, title and interest in and to the Kii Platform, the App and the Content, including, without limitation, all copyrights, trade secrets, patents, industrial designs and other intellectual property rights. Upon termination of this Agreement unless otherwise provided herein, all of Your rights in connection with the Kii Platform and the Content, including but not limited to the right to access and use the Kii Platform and the Content, will terminate.
8.2 Trademarks.Except as expressly authorized herein, the trademarks, logos and company names of CloudMD or any of its affiliates and licensors used as part of the Kii Platform, the App and the Content may not be copied, imitated or used, in whole or in part, without the prior written consent of CloudMD or any such affiliate or licensor. Other products, services logos and company names mentioned as part of the Kii Platform, the App and in the Content may be the trademarks of their respective owners.
8.3 Proprietary Notices.You agree not to alter, remove, deface or destroy any copyright, trademark or proprietary markings or confidential legends placed upon or contained in the Kii Platform, the App and the Content or in or on any related material.
8.4 Suggestions.Your suggestions of new features, functionality, or performance, including, without limitation, any improvements on the existing features, functionality, or performance, for the Kii Platform or App, whether or not they are subsequently incorporated into the Kii Platform or App by CloudMD and/or its suppliers or licensors, shall be the sole and exclusive property of CloudMD and/or its applicable supplier or licensor, and You hereby assign and agree to assign any intellectual property rights that may subsist therein to CloudMD. You agree to promptly execute within thirty (30) days of receipt any assignment documents that confirm or transfer to CloudMD and/or its suppliers or licensors any intellectual property right that is the exclusive right of CloudMD under this Agreement. You agree to waive any and all claims to any moral rights that You may now or hereinafter have in any jurisdiction with respect to any copyright protected Work that is the exclusive right of CloudMD and/or its suppliers or licensors pursuant to this Agreement.
9.1 Content.THE CONTENT MAY CONTAIN INACCURACIES AND TYPOGRAPHICAL ERRORS. CLOUDMD MAKES NO REPRESENTATION OR WARRANTY REGARDING THE ACCURACY OR COMPLETENESS OF THE CONTENT (INCLUDING ANY ASSESSMENT OR REPORT PROVIDED BY US TO YOU) OR INFORMATION ACCESSIBLE WHILE USING THE KII PLATFORM, OR THE RELIABILITY OF ANY ADVICE, OPINION, TREATMENT, MEDICATION OR STATEMENT. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY OF THE FOREGOING AND YOUR USE OF THE KII PLATFORM AND THE CONTENT WILL BE AT YOUR SOLE RISK. CLOUDMD RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PART OF THE KII PLATFORM OR IN ANY PORTION OF THE CONTENT. CLOUDMD MAY MAKE ANY OTHER CHANGES TO THE KII PLATFORM AND THE CONTENT AT ANY TIME WITHOUT NOTICE.
9.2 General Warranty.CloudMD warrants that (i) CloudMD has the right to enter into this Agreement; (ii) to our knowledge, neither the Kii Platform nor the Content infringes upon the Proprietary Rights of any third party; (iii) to our knowledge, there are no liens, encumbrances or claims pending or threatened against CloudMD or that adversely relate to the rights or licenses granted in this Agreement or to the Kii Platform and the Content. For purposes of this Agreement, “Proprietary Rights” means any or all intellectual property and other property or proprietary rights, including, without limitation, patents, copyrights, trade secrets, industrial designs and trademarks.
9.3 Warranty Disclaimer.EXCEPT FOR THE WARRANTIES IN THIS SECTION 9, THE KII PLATFORM, THE APP AND THE CONTENT ARE PROVIDED “AS IS” AND CLOUDMD AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLOUDMD DOES NOT WARRANT THAT THE KII PLATFORM, THE APP AND THE CONTENT WILL MEET YOUR REQUIREMENTS, THAT THE KII PLATFORM, THE APP AND/OR THE CONTENT WILL BE FREE FROM ERRORS OR FUNCTION WITHOUT INTERRUPTION, THAT ANY STORED DATA OR CONTENT WILL BE ACCURATE OR RELIABLE NOR THAT ANY OF YOUR DATA CAN BE RESTORED FROM ANY PARTICULAR BACKUP PROCEDURE. CLOUDMD DOES NOT WARRANT THAT USE OF THE KII PLATFORM WILL ENABLE YOU TO ACHIEVE ANY PARTICULAR RESULT OR RESULTS.
10.4CloudMD requires Mental Health Providers to represent and warrant that that they are in good standing with their respective regulatory college and to immediately apprise us of any changes to such status.
10.5 CloudMD conducts limited credential checks and other verifications of Therapists and the information they have provided to CloudMD. However, CloudMD is not responsible for certifying mental health practitioners, makes no representation regarding the accuracy of Therapist’s credentials, and expressly disclaims any liability for fraudulent mental health practitioners or claims by Therapists. In addition, changes in your Therapist’s professional status may be made after we perform an initial credential check. We recommend that you separately confirm that your Therapist is in good standing with his or her respective regulatory college. Unless otherwise agreed by CloudMD the Services described in these Terms of Use are solely offered within Canada and USA.
11.1IN THE EVENT OF ANY PROBLEM WITH THE SERVICE OR ANY OF ITS CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SERVICE. IN NO EVENT WILL SNAPCLARITY OR ANY LICENSOR, SUPPLIER, OR ANY THIRD PARTY WHO PROMOTES THE SERVICE OR PROVIDES YOU WITH A LINK TO THE SERVICE BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA AND LOSS OF PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, OR YOUR ACCESS TO OR USE OF THE KII PLATFORM, SERVICES, THERAPY SERVICES OR THE CONTENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, ANY INFRINGEMENT BY ANY CONTENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT. IN ADDITION, EXCEPT WITH RESPECT TO CLAIMS BASED ON WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL SNAPCLARITY BE LIABLE FOR ANY DAMAGES OF ANY KIND GREATER THAN THE LESSER OF: (I) $10,000 AND (II) THE AMOUNT PAID TO CLOUDMD HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM. CLOUDMD WILL NOT BE LIABLE FOR ANY DELAYS OR DAMAGES ATTRIBUTABLE TO PROBLEMS INHERENT IN INTERNET, WIFI, CELLULAR AND ELECTRONIC COMMUNICATION. THESE LIMITATIONS WILL APPLY EVEN IF CLOUDMD HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF THIS SECTION WILL APPLY EVEN IN THE EVENT OF A FAILURE OF THE ESSENTIAL PURPOSE OF THIS PROVISION.
11.2To the extent permitted by applicable law, CloudMD will not be liable for the deletion of, correction to, destruction of, damage to, loss of or failure to store Your Data.
12.1 Indemnification by CloudMD.CloudMD will indemnify, defend and hold You harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from any claimed infringement or violation by CloudMD of any Proprietary Right with respect to the Kii Platform and the Content; provided, however, that the foregoing notwithstanding, CloudMD’s obligation to indemnify will not apply to an infringement or violation that is attributable to any unauthorized use, access or modification of the Kii Platform by You.
12.2 Cooperation.Notwithstanding Section 9.1 of this Agreement, CloudMD is under no obligation to indemnify and hold You harmless unless (i) We receive notice of the suit or claim from You and is furnished with a copy of each communication, notice or other action relating to said claim promptly after You receive such notice and each such communication; provided that, failure to deliver timely notice will not relieve CloudMD of its obligations hereunder unless CloudMD is materially prejudiced by such failure; (ii) CloudMD will have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related thereto at CloudMD’s expense; and (iii) You will provide reasonable information and assistance requested by CloudMD in connection with such claim or suit, at CloudMD’s cost and expense.
12.3 Indemnification by You.You will indemnify, defend and hold CloudMD harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from (a) any allegation that You have engaged in conduct, which if true would breach Your warranties or obligations under this Agreement; (b) any allegation that Your Data infringes the Proprietary Rights of any third party; (c) Your negligent or willful misconduct; and (d) any violation by You of any privacy laws, regulations and directives relating to the collection, use or disclosure of any Personal Information provided to CloudMD hereunder. We reserve the right to participate in the defence of any such claim and to be represented by counsel of our choice.
13.1 Term.These Terms of Use will commence on the day you first use the Kii Platform and will continue in force until terminated by either party as described below (the “Term”). Either party may terminate these Terms of Use as follows: (1) CloudMD may terminate these Terms of Use at any time and with immediate effect by giving notice to you, at our discretion, by email (at your current email address on file with us) or through the Kii Platform; and (2) you may terminate these Terms of Use at any time and with immediate effect by requesting (by email or through any then-available interfaces on the Kii Platform) that your User Account be deleted or deactivated, ceasing use of the Kii Platform and uninstalling and removing all local software components thereof from your systems.
We are not liable to you or any other party for any termination of your User Account or access to the Kii Platform. Termination of your User Account will not modify, change or void any payment obligations you may have incurred through your use of the Kii Platform, whether such obligations to us, a Counsellor or a third party.
We reserve the right (but have no obligation under these Terms of Use) to investigate and take appropriate action, including legal action, in our sole discretion against you if you violate any Terms of Use, including suspending or terminating your User Account and reporting you to law enforcement authorities.
We have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any materials on or through the Kii Platform. You waive and hold harmless CloudMD from any claims resulting from any actions taken by us during or as a result of its investigations and from any actions taken as a consequence of investigations by either CloudMD or law enforcement authorities.
13.2 Termination Upon Default.The non-breaching party may terminate this Agreement in the event that the other party materially defaults in performing any obligation under this Agreement and such default continues and is not remedied for a period of five (5) days following written notice of default.
13.3 Termination for Convenience.CloudMD may terminate this Agreement and/or Your access to the Kii Platform at any time.
13.4 Survival of Certain Terms.All provisions of this Agreement reasonably required to survive termination, including, without limitation, Sections 8 and 14, will survive termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement.
13.5 Effect of Termination.Upon termination of this Agreement for any reason, Your access to the Kii Platform will end immediately and Your account will be disabled. For a period of thirty (30) days following termination of this Agreement for any reason, CloudMD will make available to You a file of Your Data if You so request at the time of termination. You agree and acknowledge that CloudMD is not obliged to retain non-health-related Data, and after thirty (30) days following termination, may delete such Data. CloudMD is not liable to You or to any other party for any termination of this Agreement and for disablement of Your account. Termination of access to the Services and Therapy Services will not modify or void any payment obligations You incurred through Your use of the Services or the Therapy Services.
Neither party will use or disclose any Confidential Information (defined below) of the other party. A party receiving Confidential Information from the other party will use the highest commercially reasonable degree of care to protect that Confidential Information. The Services and the Content, including methods, ideas or concepts utilized therein, and all proprietary or confidential information imparted in confidence by a disclosing party, whether or not marked as confidential, or otherwise obtained (directly or indirectly) by a receiving party or by any authorized persons of the receiving party (“Confidential Information”) will remain the sole property of the disclosing party unless otherwise agreed to in this Agreement, and will not be used or disclosed to any third party without the express written consent of the disclosing party (except to employees or consultants who are bound by a written agreement with such party to maintain the confidentiality of such Confidential Information in a manner consistent with this provision). Items will not be considered to be Confidential Information if they are (i) available to the public other than by a breach of this Agreement or an agreement with the disclosing party, (ii) rightfully received from a third party not in breach of an obligation of confidentiality, (iii) independently developed by employees of recipient without access to the Confidential Information of the disclosing party, or (iv) rightfully known to the recipient at the time of disclosure. Neither party will be in breach of this Section for disclosing Confidential Information in compliance with an applicable law or a court order, provided the other party is given reasonable notice of such law or court order and an opportunity to attempt to preclude or limit such production. You agree that the terms and conditions of this Agreement will be considered to be Confidential Information of CloudMD.
15.1 Report Violations.You should report any security violations to us by sending an email to privacy@cloudmd.ca
15.2 Notices.Any notice required or permitted hereunder will be in writing and will be given by electronic mail at privacy@cloudmd.ca. Such notice will be deemed to have been received twelve (12) hours after it was sent.
15.3 Governing Law.For Canadian residents these terms will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. For U.S residents these Terms are governed by the laws of the State of Delaware, without regard to any conflict of laws, rules or principles. You irrevocably agree that the exclusive venue for any action or proceeding arising out of relating to this Agreement or our relationship with you, regardless of theory, shall be in the Province of Ontario and the federal laws of Canada applicable therein. You irrevocably consent to the personal jurisdiction of the aforementioned courts and hereby waive any objection to the exercise of jurisdiction by the aforementioned courts.
15.4 Force Majeure.Under no circumstances will either party be liable to the other for any failure to perform its obligations where such failure results from causes beyond that party’s reasonable control.
15.5 Entire Agreement and Waiver.This Agreement and all documents incorporated by reference hereto, including any additional terms and conditions of purchase or sale, will constitute the entire agreement between the parties with respect to its subject matter, and all prior agreements, representations, and statements with respect to such subject matter are superseded. This Agreement may be changed by CloudMD upon notification to You. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such breaches and the waiver of any breach will not act as a waiver of subsequent breaches. You hereby agree that (a) this Agreement operates in addition to any terms of use imposed or required by Apple Inc., Google, Inc., Microsoft, Inc. or any other App Store Owner from which you download the App (“App Provider Terms”); and (b) the terms of this Agreement supplement and do not alter or amend any such App Provider Terms.
