Terms of Service
Effective: April 23rd, 2019
HYPERCARE LICENSED APPLICATION END USER LICENCE AGREEMENT
The following End User Licence Agreement (the “EULA”) governs your use of: (1) the Hypercare Inc. (“Hypercare”) website located at www.hypercare.com (the “Website”); (2) the Hypercare mobile device applications and (3) the Hypercare online web-based platform, providing various services from time to time, as described on the Website, and (4) all other services provided by Hypercare (the “Licensed Application Services”), as described on the Website (collectively, the “Licensed Application” or “Licensed Applications”). This EULA forms an agreement between Hypercare and you. The term “You” or “you” means the company, entity or individual who is acquiring the licence to use the Licensed Applications under this EULA, visiting, browsing or otherwise using the Licensed Applications, or receiving Licensed Application Services. A copy of this EULA may be downloaded, saved and printed for your reference.
BY ACCESSING AND USING THE LICENSED APPLICATION OR RECEIVING THE LICENSED APPLICATION SERVICES, YOU UNDERSTAND, ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THIS EULA. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THIS EULA, PLEASE DO NOT ACCESS OR USE THE LICENSED APPLICATIONS.
A. Changes to this EULA and the Licensed Applications
EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, HYPERCARE RESERVES THE RIGHT TO CHANGE THIS EULA AT ANY TIME, AND WILL NOTIFY USERS AND INSTRUCT THEM TO REVIEW AND ACCEPT THE CHANGES. YOUR CONTINUED ACCESS TO OR USE OF THE LICENSED APPLICATIONS AFTER ANY CHANGES TO THIS EULA INDICATES YOUR ACCEPTANCE OF SUCH CHANGES. HYPERCARE RESERVES THE RIGHT TO CHANGE ANY INFORMATION, MATERIAL OR CONTENT CONTAINED ON OR PROVIDED THROUGH THE LICENSED APPLICATIONS.
B. Use of the Licensed Applications
AS A CONDITION OF YOUR USE OF THE LICENSED APPLICATION, YOU WARRANT THAT: (1) YOU HAVE REACHED THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE; (2) YOU POSSESS THE LEGAL AUTHORITY TO CREATE A BINDING LEGAL OBLIGATION; AND (3) YOU WILL USE THE LICENSED APPLICATION IN ACCORDANCE WITH THIS EULA.
Hypercare retains the right, at its sole discretion, to deny access to anyone to the Licensed Application or the Licensed Application Services it offers, for violation of this EULA or any other signed service agreement with your organization. You will cease and desist from any such access or use immediately upon request by Hypercare.
C. Scope of Licence
Subject to the usage rules set forth in the Apple Inc. (“Apple”) App Store Terms of Service and the Google, Inc. (“Google”) Play Store Terms and Conditions or other app stores applicable to the mobile device used to access the Licensed Application (collectively, the “Usage Rules”), Hypercare grants you a limited, non-exclusive, non-transferable and revocable licence (the “Licence”) to use the Licensed Application, including downloading and installing the Licensed Application, on any Apple-branded products running the iOS mobile operating system (including but not limited to iPad, iPhone, and iPod Touch devices) (“iOS Devices”) or products running the Google Android operating system (“Android Device”), that you own or control (collectively, “Device” or “Devices”) and as permitted by the Usage Rules.
This Licence does not allow you to use the Licensed Application on any Device that you do not own or control. Except as provided in the Usage Rules, you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, transfer redistribute, or sublicense the Licensed Application and, if you sell your Device to a third party, you must remove the Licensed Application from the Device before doing so. You may not copy (except as expressly permitted by this EULA), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of the Licensor and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of this EULA will govern any upgrades provided by Licensor that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate licence in which case the terms of that licence will govern.
D. Compliance with Privacy Laws
The nature of the Licensed Applications involves the transmission of data, including sensitive data about patients and other individuals. In accordance with the terms of applicable privacy laws, you shall be responsible for any information about identifiable individuals, including personal health information (collectively “PHI”). To this end, you agree to act in accordance with all legal obligations and requirements applicable to you, including those under the Ontario Personal Health Information Protection Act and its regulations. Without limiting the generality of the foregoing, you shall be responsible for:
ensuring that you have the authorization for collection, use or disclosure of PHI;
taking reasonable steps to safeguard any PHI;
notifying individuals where PHI has been stolen, lost or accessed without authorization; and
ensuring that PHI is accurate, complete and up-to-date as required.
If you are unclear about your obligations under applicable privacy laws, please speak with the privacy officer of your institution or organization, or legal advice in regards to your obligations and responsibilities.
Hypercare has implemented a number of administrative, technical and physical safeguards relating to the confidentiality and security of PHI, as more particularly set out below.
End users are completely responsible for any and all data they send on the platform. Hypercare does not have any obligation to the end user to store or retain any message data on behalf of the user. If message data is destroyed, message data is permanently deleted and cannot be retrieved by Hypercare. You understand and acknowledge that Hypercare may have entered into an agreement with the institution pursuant to which Hypercare is acting as a service provider to the institution and would adhere to the policies set forth by the institution. You acknowledge and agree that Hypercare’s retention and control policies (including, for example, in respect of monitoring, access, disclosure and encryption) in connection with all message data will be subject to the terms and conditions of an agreement between Hypercare and the applicable institution.
E. Consent to Use of Data/Personal Information
You agree that Licensor may collect and use technical data and related information—including but not limited to technical information about your Device, system and application software, and peripherals — that is gathered periodically to facilitate the provision of software updates, product support, and any Licensed Application Services to you. You may be asked to provide your legal name, email address and phone number in order to use the Licensed Application and the Licensed Application Services however, it is not required that you provide that information, except in certain circumstances such as creating a new account to access the Licensed Applications or to receive support services. Licensor may use this information provided, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
F. Maintenance & Support
You acknowledge that any maintenance and support services for the Licensed Application, if any, will be provided by Hypercare and that neither Apple nor Google will have any obligation whatsoever to furnish any such services for the Licensed Application.
G. Term, Termination and Suspension of Services
This EULA will commence on the day you first use the Licensed Applications and will continue into force until terminated by either party as described below (the “Term”). The Licence is effective until terminated by you or Licensor. Your rights under this EULA will terminate automatically without notice from the Licensor if you fail to comply with any term(s) of this EULA. Upon termination of the Licence, you shall cease all use of the Licensed Application and uninstalling and removing all local software components thereof from your systems and Devices, including removing the Licensed Application from your Devices.
Either party may terminate this EULA as follows: (1) Hypercare may terminate this EULA at any time and with immediate effect by giving notice to you, at Hypercare’s sole discretion, by email (at your current email address on file with Hypercare) or electronic correspondence through the Licensed Application; (2) you may terminate the EULA at any time and with immediate effect by requesting (by email or through any then-available interfaces on the Licensed Application) that your account be deleted or deactivated, ceasing use of the Licensed Application and uninstalling and removing all local software components thereof from your systems, including removing the Licensed Application from your Devices.
Licensor reserves the right to modify, suspend, or discontinue the Licensed Application Services provided through the Licensed Application (or any part thereof) at any time. While Licensor may attempt to provide notice to you of the termination, there may be instances where such notice of termination is not reasonably possible. Licensor will not be liable to you or to any third party should Licensor exercise such right to termination in the aforementioned manner.
H. Services; Offensive and Illegal Content; Third-Party Materials
The Licensed Application may enable access to Licensor’s and/or third-party services and websites (e.g. scheduling platforms, electronic health records, identity management services, collectively and individually, “Services”). Use of the Services requires Internet access and use of certain Services requires you to accept additional terms. By using this software in connection with an Apple iTunes Store (for iOS Devices) or a Google Play account (for Android Devices), you agree to the latest iTunes Store or Google Play Terms and Conditions and Usage Rules, as applicable, which you may access and review in the case of the iTunes store at http://www.apple.com/legal/itunes/ww/ or Google Play at http://play.google.com/intl/en_us/about/play-terms.html.
You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party. Further to that, you agree not to use the Services for any illegal purposes or in any manner that is contrary to the law. None of Licensor, Apple or Google is in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
In addition, Services and Content that may be accessed from, displayed on or linked to from the Licensed Applications are not available in all languages or in all countries or regions. Licensor makes no representation that such Services and Content are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Content, you do so at your own risk and you are solely responsible for compliance with any applicable laws, including but not limited to applicable local laws. Licensor reserves the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Licensor be liable for the removal of or disabling of access to any such Services. Licensor may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
I. No Unlawful or Prohibited Use
You will not, without Licensor’s prior written permission, use the Licensed Applications for the purposes of communicating with other employees, consultants, healthcare practitioners, or agents of a health information custodian (the “Permitted Use”). Without limiting the generality of the foregoing, you will not, and will not permit anyone else to: (1) ‘frame’, ‘mirror’ or otherwise incorporate the Licensed Applications or the Content or any part thereof on any commercial or non-commercial website; (2) access, monitor or copy any part of the Licensed Applications or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission; (3) violate the restrictions in any robot exclusion headers on the Content or the Licensed Application or bypass or circumvent other measures employed to prevent or limit access to the Licensed Application; (4) take any action that imposes, or may impose, in Hypercare’s sole discretion, an unreasonable or disproportionately large load on the Licensed Application; (5) deep-link to any portion of the Licensed Application for any purpose; (6) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in the Licensed Application or the Content; (7) modify or attempt to modify (or permit anyone else to modify or attempt to modify) the Licensed Application or any Content, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Licensed Application or the Content; (8) use the Application or the Content as part of any service for sharing, lending or multi-person use, or for the purpose of any other institution, except as specifically permitted by Hypercare and only in the exact manner specified and enabled by Hypercare; (9) attempt to, assist, authorise or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Licensed Application or the Content; (10) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, licence or circulate in any form any part of the Licensed Application or the Content; (11) create derivative works based on the Licensed Application or the Content, in whole or in part, or to decompile, disassemble, reverse engineer or other exploit any part of the Licensed Application or the Content; (12) use the Licensed Application in a manner that violates the rights (including to intellectual property rights) of any third party, including by providing, uploading or transmitting any User Content or Submissions that violate such third-party rights; or (13) upload to or transmit through the Licensed Application any User Content or Submission that is offensive, hateful, obscene, defamatory or violates any applicable laws, in each case as determined by Hypercare in its sole discretion.
J. Acknowledgement of Certain Limitations
You acknowledge that (a) you will not receive any notifications from the Licensed Application if your device is turned off, in airplane mode, or is outside of cellular or Wi-Fi service range; (b) any notifications from the Licensed Application may be incomplete or inaccurate; © any guidance provided by the Licensed Application may not be suitable for your situation; (d) you must use your reasonable personal judgment to determine the appropriate action to take upon receiving a notification from the Licensed Application; (e) Licensor has the right to report all false or inappropriate reports and/or potentially fraudulent, dangerous or illegal use of the Licensed Application to law enforcement and Licensor will cooperate fully with law enforcement in investigating the use of the Licensed Application; and (g) that filing false reports or otherwise misusing the Licensed Application may lead to civil and criminal prosecution.
Location data provided by the Licensed Application is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, or incomplete location data may lead to death, personal injury, property damage, or environmental damage. Neither Licensor, nor any of its licensors or providers, guarantee the availability, accuracy, completeness, reliability, or timeliness of information or location data displayed by the Licensed Application.
K. WAIVER AND INDEMNIFICATION
WAIVER AND INDEMNIFICATION. BY USING THE LICENSED APPLICATION AND THE SERVICES, YOU AGREE TO INDEMNIFY AND HOLD LICENSOR, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND ITS LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE LICENSED APPLICATION AND THE SERVICES, OR ANY ACTION TAKEN BY LICENSOR AS PART OF LICENSOR’S INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF LICENSOR’S FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM LICENSOR, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS AS A RESULT OF LICENSOR’S DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICES, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF LICENSOR’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNIFICATION PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
L. NO WARRANTY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU, UNLESS OTHERWISE SPECIFIED IN A SERVICE LEVEL AGREEMENT WITH THE USERS’ PARENT ORGANIZATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON INFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
For iOS Devices, notwithstanding the foregoing, in the event the Licensed Application does not conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price you paid for the Licensed Application, if any.
For all Devices, to the maximum extent permitted by applicable law, neither Apple nor Google will have any other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Hypercare’s sole responsibility.
M. Licensed Application Claims
You acknowledge that Hypercare, not Apple and not Google, is responsible for addressing any claims from you or any third party relating to the Licensed Application or your possession and/or use of the Licensed Application, including, but not limited to (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
N. Limitation of Liability
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, LIABILITY OR CERTAIN DAMAGES OR LIMITATIONS OF REPRESENTATIONS MADE CONCERNING GOODS OR SERVICES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
ALTHOUGH WE STRIVE TO UPDATE AND KEEP ACCURATE AS MUCH AS POSSIBLE THE CONTENT CONTAINED ON THE WEBSITE, ERRORS AND/OR OMISSIONS MAY OCCUR. ACCORDINGLY, THE LICENSED APPLICATION AND THE CONTENT ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OR CONDITION OF ANY KIND. USE OF THE LICENSED APPLICATION OR THE CONTENT IS AT YOUR OWN RISK. HYPERCARE DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE LICENSED APPLICATION OR THE CONTENT UNLESS OTHERWISE SPECIFIED IN A SERVICE LEVEL AGREEMENT. THE LICENSED APPLICATION AND THE CONTENT MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES. HYPERCARE DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE LICENSED APPLICATION OR THE CONTENT.
TO THE FULLEST EXTENT PERMITTED BY LAW, HYPERCARE DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE LICENSED APPLICATION AND THE CONTENT WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, THAT ARISE OUT OF A COURSE OF DEALING OR TRADE, OR THAT THE LICENSED APPLICATION OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IN NO EVENT WILL HYPERCARE BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT HYPERCARE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE LICENSED APPLICATION OR THE CONTENT.
TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF HYPERCARE IN CONNECTION WITH OR UNDER THESE THIS EULA OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE LICENSED APPLICATION OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF, OR INABILITY TO MAKE USE OF, THE LICENSED APPLICATION OR THE CONTENT EXCEED THE AGGREGATE AMOUNT OF $10,000 CAD FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS EULA WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
The limitation above reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.
O. Intellectual Property Rights & Protection
Hypercare respects the intellectual property of others and requires that users of the Licensed Application do the same. You agree that the Services contain proprietary content, information and material that is owned by Licensor, its licensors, Apple and/or Google, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services or in any manner that is inconsistent with the terms of this EULA or that infringes any intellectual property rights of a third party. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. When you use the Licensed Application, you may not upload, store, share, display, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. In appropriate circumstances, Hypercare will terminate the accounts of repeat infringers. You acknowledge that in the event of any third party claim that the Licensed Application, or your possession and use of the Licensed Application, infringes that third party’s intellectual property rights, Hypercare, not Apple nor Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
P. Data Retention
Hypercare reserves the right (but does not undertake) to, without notice to affected users, reject, suspend, alter, remove or delete data or to disclose to the relevant authorities any data if it breaches our terms and conditions or it is necessary to protect us or others or where we have reasonable grounds for believing that a criminal act has been committed, or if we are required to do so by law or appropriate authority. Upon termination of your account, you will lose all access to the service and any portions thereof. As of 30 days after the termination of your account, provided that there are no reasonable grounds in Hypercare’s discretion to keep your data (such as legal compliance requirements), Hypercare will delete any data stored in or as a part of your account(s).
Q. Authorization to Export Data
R. Export Control
You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application 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 Licensed Application, 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.
S. Third Party Beneficiary
You acknowledge and agree that Apple (in relation to iOS Devices) and Google (in relation to Android Devices), and Apple’s and Google’s (as applicable) subsidiaries, are third party beneficiaries of this EULA, and, on your acceptance of the terms and conditions of this EULA, Apple and Google, as applicable, will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary thereof.
T. Force Majeure
Neither you nor Hypercare shall be held liable for any delay or failure in performance of this EULA caused by reason of any occurrence of unforeseen event beyond that party’s unrealistic control, including but not limited to, acts of God, earthquakes, embargo, labor disputes and strikes, riots, war, floods and governmental restrictions. The party so affected by the unforeseen event shall be so excused on a day-to-day basis for the period of time equal to that of the underlying cause of delay.
All provisions of this EULA are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from one another. If any of the provisions contained in this EULA are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination will not affect the remaining provisions contained herein.
Governing Law and Jurisdiction
This EULA will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, excluding its conflict of law principles. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
This EULA constitutes the entire agreement between you and Hypercare relating to the Licensed Application and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this EULA will be binding unless in writing and signed by Hypercare. Any translation of this EULA is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this EULA shall govern, to the extent not prohibited by local law in your jurisdiction.
If you have any questions, complaints or claims with respect to the Licensed Application, please contact Hypercare through email at email@example.com, calling +1 (877)-379-3533, or by mail at the following address:
Attn: Hypercare Inc. 100 College Street Suite 150, Toronto, Ontario M5G 1L5