Terms of Service
Hypercare Licensed Application End User License Agreement
Hypercare applications (“Licensed Application”) are licensed, not sold, to you, by Hypercare Inc. (“Hypercare”), whether provided to you directly by Hypercare, made available through an App Store or other channels.
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 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.
A. Scope of Licence:
Subject to the usage rules set forth in the App Store Terms of Service/Google Play Terms and Conditions or other app stores applicable to the Device (collectively, the “Usage Rules”), Hypercare grants you a limited, non-exclusive, non-transferable and revocable license to use the Licensed Application on any Apple-branded products running iOS (including but not limited to iPad, iPhone, and iPod touch) (“iOS Devices”) or products running Google’s Android operating system (“Android Device”), that you own or control (Android Device collectively with the iOS Device, “Device”) and as permitted by the usage rules set forth in the App Store Terms of Service/Google Play Terms and Conditions or other app stores applicable to the Device (collectively, the “Usage Rules”). This license does not allow you to use the Licensed Application on any Device that you do not own or control, and 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 and the Usage Rules), 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 license in which case the terms of that license will govern.
B. 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:
1. Ensuring that consent is obtained for collection, use or disclosure of PHI;
2. Taking reasonable steps to safeguard any PHI;
3. Notifying individuals where PHI has been stolen, lost or accessed without authorization;
4. 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 barring that option, someone else who can explain your obligations and responsibilities.
Hypercare has implemented a number of administrative, technical and physical safeguards relating to the confidentiality and security of personal health information, as more particularly set out below.
Hypercare cannot and does not guarantee that message data will be completely deleted, and therefore any message data that the user sends is sent at the user’s own risk. If message data is destroyed, message data is permanently deleted and cannot be retrieved by Hypercare, except with respect to those users who have paid separately for Hypercare to archive such message data.
C. 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 other services to you (if any) related to the Licensed Application. You may be asked to provide your name, emails address and phone number when you send Content (as defined below), however, it is not required that you provide that information. 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.
D. 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.
E. Termination and Suspension of Services.
The license 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 license, you shall cease all use of the Licensed Application and destroy all copies, full or partial, of the Licensed Application.
Licensor reserves the right to modify, suspend, or discontinue the 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.
F. Services: Offensive and Illegal Content: Third-Party Materials.
The Licensed Application may enable access to Licensor’s and/or third-party services and websites (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 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 at 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 understand that by using any of the Services, you may encounter Content that may be deemed offensive, indecent, or objectionable, which Content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that neither the Licensor nor any third party shall have any liability to you for Content that may be found to be offensive, indecent, or objectionable.
Certain Services may display, include or make available Content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that neither the Licensor nor any third party is responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. The Licensor, Apple, Google, Google’s officers, and Apple’s officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
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 initiative and are 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.
G. 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 providers, guarantee the availability, accuracy, completeness, reliability, or timeliness of information or location data displayed by the Licensed Application.
H. 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. 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. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
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 will 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.
I. 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.
J. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
K. 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, Apple, Google and/or its licensors, 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.
L. Data Retention.
Hypercare reserves the right (but does not undertake) to, without notice, 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).
M. Authorization to Export Data.
N. 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.
O. U.S. Government End Users.
With respect to Licensed Applications made available to U.S. Government End Users, the following provisions are applicable: The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
P. 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.
Q. 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, earthquake, 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 provision in this EULA should be determined to be unenforceable because it has been held to be invalid, illegal, void or unlawful for any reason by any court of competent jurisdiction, then such term shall be considered pro-non scripto, and shall be superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remaining terms shall survive and remain in full force and effect and continue to be binding and enforceable.
S. Governing Law.
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.
T. Entire Agreement.
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 firstname.lastname@example.org or by mail at the following address:
Attn: Hypercare Inc.
100 College Street Suite 150,