Terms of Use

MASTER SUBSCRIPTION AGREEMENT

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY USING THE SERVICES, BY REGISTERING AN ACCOUNT, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEEMENT, WHETHER OR NOT YOU HAVE READ THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “CUSTOMER”, “PARTY”, OR “PARTIES”, AS APPLICABLE, SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE DCB DIAMOND CRÈME BRÛLÉE™ APPLICATIONS OR SERVICES. PLEASE PRINT AND RETAIN A COPY OF THIS MASTER SUBSCRIPTION AGREEMENT FOR YOUR RECORDS.

YOU ARE CONTRACTING WITH DCB DIAMOND CRÈME BRÛLÉE DESIGN INC., A CORPORATION INCORPORATED UNDER THE LAWS OF CANADA, HAVING ITS PRINCIPAL PLACE OF BUSINESS LOCATED AT 174 OTTY WAY, R.R. #3, PERTH, ONTARIO, K7H 3C5 (hereinafter, “DIAMOND CRÈME BRÛLÉE” or “WE” or “US”)

YOU MAY NOT ACCESS THE DIAMOND CRÈME BRÛLÉE™ APPLICATIONS OR SERVICES IF YOU ARE A DIRECT OR INDIRECT COMPETITOR OF DIAMOND CRÈME BRÛLÉE, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. YOU MAY NOT ACCESS THE DIAMOND CRÈME BRÛLÉE™ APPLICATIONS OR SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES. THIS AGREEMENT WAS LAST UPDATED ON MARCH 24, 2021. IT IS EFFECTIVE BETWEEN YOU AND US AS OF THE DATE OF YOU ACCEPTING THIS AGREEMENT.

DIAMOND CRÈME BRÛLÉE RESERVES THE RIGHT TO UPDATE THIS MASTER SUBSCRIPTION AGREEMENT FROM TIME TO TIME, WITHOUT NOTICE TO YOU. YOUR USE OF THE SERVICES FOLLOWING ANY UPDATE TO THIS MASTER SUBSCRIPTION AGREEMENT WILL BE DEEMED TO CONSTITUTE ACCEPTANCE BY YOU OF ANY MODIFICAITON, ADDITION OR DELETION TO THE TERMS AND CONDITIONS OF THIS MASTER SUBSCRIPTION AGREEMENT RESULTING FROM SUCH UPDATE. YOU WILL ALWAYS BE ABLE TO VIEW THE MOST CURRENT VERSION OF THIS MASTER SUBSCRIPTION AGREEMENT BY CLICKING ON A LINK AT THE BOTTOM OF ANY PAGE OF THE DIAMOND CRÈME BRÛLÉE™ WEBSITE LOCATED AT https://ormedguide.com.

In consideration of the mutual covenants and agreements of the Parties contained in the Agreement, the rights granted by DIAMOND CRÈME BRÛLÉE to You, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties covenant and agree as follows:

ARTICLE 1 - DEFINITIONS

1.1 “Affiliate” means any company, corporation, joint venture, division, or other entity which directly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control or more than fifty percent (50%) of the voting interests of the subject entity.

1.2 “Agreement” means this Master Subscription Agreement, as it may be amended, confirmed, supplemented or restated from time to time.

1.3 “Authorized Users” has the meaning set out in Section 2.1(b) of this Agreement.

1.4 “Confidential Information” means any information, including without limitation, any business, marketing, technical, scientific or other information disclosed by either Party and relating to such Party’s operations, products, designs, plans, strategy, customers, business opportunities, finances, research development, know-how, trade secrets or employees, and which is either designated as confidential or which due to the nature of such information and the circumstances under which it was disclosed, ought reasonably to be treated as confidential information of the party disclosing it. Confidential Information includes, without limitation, any current and planned financial, operational, organizational, marketing, research and development, information relating to released or unreleased software products, and information received from third parties that a party is obligated to treat as confidential. Confidential Information includes not only written information but also information transferred orally, visually, electronically, or by other means and including copies thereof. Confidential Information disclosed to either Party by any Affiliate and/or agent of the other Party shall be covered by the confidentiality obligations contained in this Agreement. Confidential Information shall not include any information that: (i) is or becomes a part of the public domain other than by breach of this Agreement or other duty by the recipient; (ii) was disclosed to the recipient by a third party free of any obligation of confidentiality to either Party; (iii) is required to be disclosed by operation of law; provided, however, that prior to any such disclosure the receiving party shall provide the disclosing party with prompt notice of such disclosure and cooperates with the disclosing party, at the disclosing party’s expense, in seeking a protective order or any other protections available to limit the disclosure of the information; or (iv) is independently developed by the receiving party without access to, or use of, any Confidential Information.

1.5 “Claim” means any claim, demand, action, cause of action, suit, arbitration, investigation, proceedings, complaint, grievance, charge, prosecution, assessment or reassessment, including any appeal or application for review.

1.6 “Derivative Work” means any software, work, product, service, improvement, modification, revision, alteration, enhancement, abridgement, condensation, expansion, compilation, addition, new version, sequel, translation, adaptation, design, materials, and documentation, in any medium, format or form whatsoever that is based upon or derived, in any manner, directly or indirectly, from the Services or any part or aspect thereof, or that uses or incorporates the Services or any part or aspect thereof.

1.7 “Days” means a day other than a Saturday, Sunday or statutory holiday in the Province of Ontario.

1.8 “Diamond Crème Brûlée Indemnitees” has the meaning set forth in Section 2.2(e) of this Agreement.

1.9 “Documentation” means the written or electronic user guides, online help, release notes, training materials and other documentation provided or made available by DIAMOND CRÈME BRÛLÉE to You regarding the use or operation of the Services.

1.10 “Intellectual Property” means, collectively, (i) all rights in or affecting intellectual or industrial property or other proprietary rights in any jurisdiction, including with respect to the following: (A) patents and applications therefor, and patents issuing thereon, including continuations, divisionals, continuations-in-part, reissues, re-examinations, renewals and extensions, and the right to file other or further applications and claim priority thereto; (B) trademarks, trade dress, trade names, logos, service marks, service names, brand names and trade dress rights, together with the goodwill symbolized by or associated with any of the foregoing, and all applications, registrations and renewals thereof; (C) copyrights and registrations and applications therefor, works of authorship, "moral" rights and mask work rights; (D) domain names, uniform resource locators and social media accounts or handles, including applications and registrations thereof; (E) trade secrets and other information or data; (F) all technology, ideas, research and development, inventions, designs, manufacturing and operating specifications and processes, schematics, know-how, formulae, customer and supplier lists, shop rights, designs, drawings, patterns, confidential information, technical data, databases, data compilations and collections, web addresses and sites, software, architecture, and documentation; (G) all other intangible assets, properties or rights; and (I) the right to file applications and obtain registrations for any of the foregoing, (ii) all claims, causes of action and rights to sue for past, present and future infringement or misappropriation of the foregoing, and all rights to proceeds, rights of recovery and rights to revenues arising from or pertaining to the foregoing; and (iii) all copies and tangible embodiments of any of the foregoing (in whatever form or medium).

1.11 “Intellectual Property Rights” or “IP Rights” means all past, present and future proprietary rights in Intellectual Property.

1.12 “Law” means all laws, statutes, codes, ordinances, decrees, rules, regulations, by-laws, statutory rules, principles of law, published policies and guidelines, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, including general principles of common and civil law, and the terms and conditions of any grant of approval, permission, authority or licence of any Governmental Authority and the term “applicable” with respect to Laws and in a context that refers to one or more Persons, means that the Laws apply to the Person or Persons, or its or their business, undertaking or property, and emanate from a Governmental Authority having jurisdiction.

1.13 “Loss” means any loss, liability, damage, cost, expense, charge, fine, penalty or assessment, including the costs and expenses of any action, suit, proceeding, demand, assessment, judgment, settlement or compromise, and all interest, fines, penalties and reasonable professional fees and disbursements.

1.14 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious codes, files, scripts, agents, or programs.

1.15 “Order Form” means a written or electronic ordering document specifying the Services to be provided hereunder that is entered into between You and DIAMOND CRÈME BRÛLÉE or any of our Affiliates from time to time, including any addenda and supplements thereto. Order Forms shall be deemed incorporated by reference herein. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

1.16 “Payment Option” has the meaning set out in the applicable Order Form.

1.17 “Parties” means the Customer and DCB Diamond Crème Brûlée Inc. and “Party” means either of them.

1.18 “Person” : is to be broadly interpreted and includes:

1) a natural person, whether acting in his or her own capacity, or in his or her capacity as executor, administrator, estate trustee, trustee or personal or legal representative, and the heirs, executors, administrators, estate trustees, trustees or other personal or legal representatives of a natural person;
2) a corporation or a company of any kind, a partnership of any kind, a sole proprietorship, a trust, a joint venture, an association, an unincorporated association, an unincorporated syndicate, an unincorporated organization or any other association, organization or entity of any kind; and
3) any federal, provincial, state, local, municipal, regional, territorial, indigenous, or other government, governmental or public department, branch, ministry, or court, domestic or foreign, including any district, agency, commission, board, arbitration panel or authority and any subdivision of any of them exercising or entitled to exercise any administrative, executive, judicial, ministerial, prerogative, legislative, regulatory, or taxing authority or power of any nature, and any quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of them, and any subdivision of any of them (collectively, “Government Authority”).

1.19 “Personal Information” means information about an identifiable individual.

1.20 “Personal Health Information” has the meaning given to that term in the Personal Health Information Protect Act, 2004 (Ontario), and includes, without limitation:
1) information that can identify an individual (or can be combined with other information to identify an individual) and that:

a) relates to the physical or mental health of the individual, including information that consists of the health history of the individual’s family;
b) relates to the providing of health care to the individual, including the identification of a person as a provider of health care to the individual;
c) relates to payments or eligibility for health care, or eligibility for coverage for health care, in respect of the individual;
d) relates to the donation by the individual of any body part or bodily substance of the individual or is derived from the testing or examination of any such body part or bodily substance;
e) is the individual’s health number; or
f) identifies an individual’s substitute decision-maker; and

2) any other identifying information that is contained in a record that contains any of the foregoing.

1.21 “Services” means the applications or services offered by DIAMOND CRÈME BRÛLÉE under the name Diamond Crème Brûlée™ or successor branding, that You purchase under an Order Form and We make available to You online via password-protected customer login, including any associated offline components, as described in the Documentation. All Third-Party Services, as defined below, are specifically excluded from the definition of Services.

1.22 “Subscription Term” means the period for which You have subscribed to the Services as specified in and pursuant to the applicable Order Form(s).

1.23 “Third-Party Service” means any third-party hardware or software, including without limitation, any web-based or offline software application or service, that is not made available to you by DIAMOND CRÈME BRÛLÉE, and interoperates with, or is used in conjunction with the Services.

1.24 “Your Content” means any data, information, or materials submitted by You or for You for use, in connection with the Services, or collected and processed by You or for You, using the Services, including without limitation, Your electronic data, data files and patient data, including patient Personal Information and Personal Health Information.

ARTICLE 2– CRÈME BRÛLÉE™ SERVICES

2.1 Rights Granted. Subject to the terms, conditions and other provisions contained in this Agreement and the applicable Order Form(s), DIAMOND CRÈME BRÛLÉE grants You a non-exclusive, non-assignable, non-transferable, and limited right during the Subscription Term to access and use the Services as follows:

(a) You may access and use the Services solely for Your internal use, for the purposes of assisting in the evaluation and treatment of Your patients, and not for any production or commercial purposes, and only in accordance with the Documentation and the applicable Order Form (the “Intended Purpose”).
(b) The Services may be accessed and used only by You and/or Your individual employees, provided that access to, or use of the Services by any such employee shall be reasonably required for or in the course of the services to be provided by such employee to You, and provider. In no case, shall the total number of employees accessing or using the Services exceed the number of employees indicated in the applicable Order Form (the “Authorized Users”). You will ensure that any person accessing or using the Services, including without limitation, any Authorized User, agrees to and fully complies with this Agreement. You acknowledge and agree that you are responsible for your Authorized Users’ compliance with this Agreement.
(c) You will (and will ensure that all Authorized Users) comply with all applicable Laws and restrictions which may be applicable to the Services, including all privacy and data laws, including without limitation, the Personal Information Protection and Electronic Documents Act (“PIPEDA”), the Personal Health Information Act, 2004 (Ontario), General Data Protection Regulation (EU 2016/679) (“GDPR”), and any similar or equivalent legislation.
(d) The Services are purchased as subscriptions. You acknowledge and agree that DIAMOND CRÈME BRÛLÉE has no delivery obligation and will not ship copies of any software to you as part of the Services.
(e) Third-Party Services that may be appropriate or necessary for use with the Services are specified in the Documentation. Your acquisition or use of any Third-Party Services, and any exchange of data between You and any Third-Party Service provider is solely between You and the applicable Third-Party Service provider. DIAMOND CRÈME BRÛLÉE does not warrant or support any Third-Party Services or any other products or services that are not proprietary to DIAMOND CRÈME BRÛLÉE, whether or not they are designated by DIAMOND CRÈME BRÛLÉE as “certified” or otherwise. Your right to use such Third-Party Services is governed by the terms, conditions, licenses, restrictions, and/or policies imposed by the applicable third party, and not by this Agreement. You covenant and agree to comply with the terms, conditions, licenses, restrictions, and/or policies imposed by any third party in respect of any Third-Party Services; and
(f) You further acknowledge and agree that you do not acquire any license to use the Services, in excess of the scope or duration of the Services defined in this Agreement. Upon the expiry or termination of this Agreement, Your right to access or use the services shall terminate.

2.2 Restrictions on Use. The rights granted pursuant to Section 2.1 of this Agreement do not permit You or Your Authorized Users, and You agree that You will not, nor will you permit any Authorized User or other Person to:

(a) use the Services for any purpose other than the Intended Purpose;
(b) use the Services in any manner not contemplated by the Documentation, or in conjunction with any Third-Party Services not specified in the Documentation;
(c) make the Services available to, or use the Services for the benefit of, anyone other than You or Your Authorized Users;
(d) provide, assign, transfer, lease, loan, rent, resell, distribute, license, sublicense, use for timesharing, outsourcing, service bureau, application service provider, internet service provider, or similar based hosted application purposes, or otherwise allow any other Person to access, use, or exploit, the Services or any part thereof, except as provided for in this Agreement;
(e) modify, adapt, or create Derivative Works of the Services or any part, feature, function or user interface thereof, by any means whatsoever, except with the express prior written consent of DIAMOND CRÈME BRÛLÉE. Notwithstanding the foregoing, in the event that You or any Authorized User develops any work of authorship, or invention derived from or relating, directly or indirectly to, the Services (“Work Product”), You hereby grant, transfer and assign to DIAMOND CRÈME BRÛLÉE, without the necessity of compensation or acknowledgment from DIAMOND CRÈME BRÛLÉE, all right, title and interest in and to such Work Product, including without limitation, all Intellectual Property Rights, including patents and patent applications that result therefrom, and goodwill associated therewith. To the extent that any rights in any Work Product are not assigned or assignable to DIAMOND CRÈME BRÛLÉE hereunder, You and/or any Authorized User: (i) grants to DIAMOND CRÈME BRÛLÉE an exclusive, world-wide, perpetual, irrevocable, royalty-free, unlimited, fully-paid up, transferable, assignable, sublicensable right and license to possess and use such Work Product for any purposes whatsoever; (ii) agree not to assert, file, or otherwise raise any claim or action against DIAMOND CRÈME BRÛLÉE, its Affiliates, and their respective directors, officers, shareholders, employees, agents, attorneys, representatives, licensors and suppliers (collectively, the “DIAMOND CRÈME BRÛLÉE Indemnitees”) arising out of or in relation to such Work Product or DIAMOND CRÈME BRÛLÉE’s use thereof, including without limitation, any claim for the infringement of any rights, or alleged rights, of You and/or any Authorized User in such Work Product; and (iii) agree to treat such Work Product as DIAMOND CRÈME BRÛLÉE Confidential Information and to not disclose or grant any rights in or to such Product to any third party;
(f) decompile, translate, copy, mirror, frame, scrape, reproduce, distribute, republish, download, or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of, the Services or any part, feature, function or user interface thereof, by any means whatsoever;
(g) remove, efface, obscure, or modify any copyright notices, logos or other proprietary notices or legends of DIAMOND CRÈME BRÛLÉE, its partners or third party licensors, or of any other Person from the Services or the Documentation;
(h) access or use the Services in a commercial transaction, or to build or develop similar or competitive Services, or otherwise compete, directly or indirectly, with DIAMOND CRÈME BRÛLÉE;
(i) perform or disclose any benchmark or performance tests of the Services without DIAMOND CRÈME BRÛLÉE’s prior written consent;
(j) perform or disclose any of the following security testing of the Services or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, penetration testing, or any other test or procedure not authorized in the Documentation;
(k) use the Services to store or transmit Malicious Code;
(l) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein;
(m) attempt to gain unauthorized access to any Service or its related systems or networks;
(n) permit direct or indirect access to or use of any Service in any way that circumvents any applicable usage limit;
(o) cause any injury to the reputation or goodwill accrued by DIAMOND CRÈME BRÛLÉE in the Services or the Proprietary Rights as defined below; or
(p) use the Services to collect, store or disclose any information or data, including any Personal Information or Personal Health Information, other than in strict compliance with all applicable Laws.

ARTICLE 3- PROPRIETARY RIGHTS AND LICENSES

3.1 Proprietary Rights. You acknowledge and agree as follows:
(a) all right, title, interest, ownership rights, and all intellectual property rights in and to the Services (including without limitation the related source code, object code, and the Documentation, patent applications, patents, trade secrets, Confidential Information and trademarks, including but not limited to DIAMOND CRÈME BRÛLÉE™ and ORMedGuide™, and any Derivative Works are and shall remain solely and exclusively in DIAMOND CRÈME BRÛLÉE and/or its Affiliates or their respective licensors, and nothing contained in this Agreement shall constitute an assignment or transfer of the Services or any IP Rights or other proprietary rights contained therein to You or any other Person. You acknowledge and agree that no rights are granted to You or any Authorized User other than as expressly set forth herein.
(b) You and Your Authorized Users acquire no right, title, or interest whatsoever in or to the Services except the right to access and use the Services as specifically provided in this Agreement.
(c) You agree not to, nor to permit any Authorized User or other Person to, take any action to jeopardize, limit or interfere in any manner with DIAMOND CRÈME BRÛLÉE’s (or any of its Affiliates’ or licensors’), ownership of or rights in or to the Services or any part or aspect thereof.
(d) You acknowledge and agree that the Services are protected by copyright and other intellectual property Laws and by international treaties and agree to abide by all applicable Laws and treaties in regard thereto; and
(e) the rights granted under this Agreement are conditional upon payment in full of any amounts payable by You to DIAMOND CRÈME BRÛLÉE under this or any other Agreement.

3.2 License by You to Host Your Content. You grant DIAMOND CRÈME BRÛLÉE and our Affiliates a worldwide, limited-term, license to host, copy, transmit and display Your Content, as necessary for DIAMOND CRÈME BRÛLÉE to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, DIAMOND CRÈME BRÛLÉE acquires no right, title or interest from You or Your licensors under this Agreement in or to Your Content. Subject to Section 3.4 herein, DIAMOND CRÈME BRÛLÉE will not use your Content except: (i) to provide the Services hereunder; (ii) to improve the Services, provided that DIAMOND CRÈME BRÛLÉE shall not use or disclose Your Content other than in accordance with this Agreement, DIAMOND CRÈME BRÛLÉE’s Privacy Policy and all applicable Laws, or as expressly permitted in writing by You; and (iii) as necessary to perform its obligations hereunder. DIAMOND CRÈME BRÛLÉE will not use or disclose any Personal Health Information except as necessary in the course of providing the Services.

3.3 License by You to Use Feedback. You grant DIAMOND CRÈME BRÛLÉE and our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement, request, recommendation, correction or other feedback provided by You and/or Your Authorized Users relating to the operation of the Services.

3.4 Your Data. As between You and DIAMOND CRÈME BRÛLÉE, You shall own all Your data, including all patient data, Personal Information and Personal Health Information, and any reports, statistics, and other data to the extent generated solely from Your Content, and all Intellectual Property rights therein. During the Subscription Term, You grant DIAMOND CRÈME BRÛLÉE and our Affiliates a world-wide, non-exclusive, royalty-free license to aggregate or compile Your data with other data, so long as such aggregation or compilation omits any data that would enable the identification of You, Your patients, or any individual, company or organization (“Aggregated Data”). DIAMOND CRÈME BRÛLÉE shall have a worldwide, perpetual, royalty-free license to use, modify, distribute and create derivative works based on such Aggregated Data, including all reports, statistics or analyses created or derived therefrom.

ARTICLE 4 - TERM AND TERMINATION

4.1 Term of Agreement. This Agreement is effective upon your acceptance of this Agreement (the “Effective Date”), and will continue until expiry of all subscriptions granted hereunder, subject to earlier termination by either Party of this Agreement or all applicable Order Forms in accordance with this Article 4.

4.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form (the “Subscription Term”). Subscriptions purchased by You commence on the Start Date specified in the applicable Order Form and continue for the Subscription Term specified therein. Except as otherwise specified in an Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the applicable Subscription Term. The subscription fees payable during any such renewal term shall be the same as the subscription fees payable during the immediately preceding Subscription Term, provided that DIAMOND CRÈME BRÛLÉE reserves the right, upon sixty (60) days written notice prior to expiry of the applicable Subscription Term, to increase the subscription fees payable during any such renewal term in accordance with this Section 4.2. Any pricing increase pursuant to this Section 4.2 shall become effective upon renewal, and subject to any further pricing increase by DIAMOND CRÈME BRÛLÉE in accordance with this Section 4.2, shall continue thereafter during any subsequent renewal term.

4.3 Termination by DIAMOND CRÈME BRÛLÉE for Cause. Without prejudice to any other rights or remedies available to DIAMOND CRÈME BRÛLÉE under this Agreement, at law or in equity, DIAMOND CRÈME BRÛLÉE has the right to terminate: (i) this Agreement in its entirety (and all Order Forms); or (ii) any individual Order Form(s) immediately and without notice, and without any further obligation or liability to You if:
(a) You are in breach or default of any of the provisions of this Agreement, other than with respect to payment, and such breach or default continues uncured for thirty (30) days following the provision of written notice of such breach or default by DIAMOND CRÈME BRÛLÉE;
(b) You voluntarily enter into proceedings in bankruptcy or insolvency, make an assignment for the benefit of Your creditors, are adjudged to be bankrupt or insolvent, a petition is filed against You under any applicable bankruptcy, insolvency, reorganization, or similar laws from time to time in effect affecting the rights of creditors generally in any relevant jurisdiction and such petition is not discharged within sixty (60) days after its filing, or a liquidator, receiver, trustee or similar person is appointed with respect to Your assets;
(c) You are dissolved or wound-up, voluntarily or otherwise, or cease to carry on business; or
(d) We have not received any payment when due under this Agreement.

Notwithstanding the foregoing, should You fail to make any payment when due, DIAMOND CRÈME BRÛLÉE shall be entitled at its sole discretion, as an alternative to termination of the Agreement and/or any Order Form, to require You to make all future payments, if any, in advance and upon such other terms as DIAMOND CRÈME BRÛLÉE may require. In the event that this Agreement is terminated by DIAMOND CRÈME BRÛLÉE in accordance with this Section 4.3, You shall, within thirty (30) days immediately following the date of termination, pay to DIAMOND CRÈME BRÛLÉE any and all amounts that have accrued prior to the date of termination, together with any and all amounts payable with respect to the otherwise unexpired Subscription Term(s) under all Order Forms. In the event that DIAMOND CRÈME BRÛLÉE terminates any individual Order Form(s) in accordance with this Section 4.3, You shall, within thirty (30) days immediately following the date of termination of such Order Form(s), pay to DIAMOND CRÈME BRÛLÉE any and all amounts payable under such Order Form(s), both accrued prior to the date of termination, and covering the otherwise unexpired portion of the applicable Subscription Term(s). For greater certainty, in the event that this Agreement or any individual Order Form is terminated by DIAMOND CRÈME BRÛLÉE for cause pursuant to this Section 4.3, any and all fees prepaid by You, under all Order Forms, or such Order Form, as the case may be, shall be forfeited to DIAMOND CRÈME BRÛLÉE, and You shall remain liable for all fees payable with respect to the applicable Subscription Term(s).

4.4 Termination by DIAMOND CRÈME BRÛLÉE for Convenience. Notwithstanding anything contained in this Agreement, DIAMOND CRÈME BRÛLÉE shall have the right to terminate this Agreement or any specific Order Form for convenience at any time upon thirty (30) days’ notice in writing to You. In the event that DIAMOND CRÈME BRÛLÉE terminates this Agreement or any specific Order Form in accordance with this Section 4.4, DIAMOND CRÈME BRÛLÉE will refund any prepaid fees paid by You with respect to the otherwise unexpired portion of the applicable Subscription Term(s).

4.5 Termination by You for Cause. You may terminate this Agreement or any individual Order Form upon thirty (30) days’ notice to DIAMOND CRÈME BRÛLÉE of a material breach or default of any of the provisions of this Agreement by DIAMOND CRÈME BRÛLÉE, if such breach or default remains uncured at the expiration of such thirty (30) day period. If this Agreement is terminated by You in accordance with this Section 4.5, DIAMOND CRÈME BRÛLÉE will refund any prepaid fees paid by You with respect to the otherwise unexpired Subscription Term(s) under all Order Forms. If You terminate any individual Order Form(s) in accordance with this Section 4.5, DIAMOND CRÈME BRÛLÉE will refund any prepaid fees paid by You with respect to such Order Form(s).

4.6 Fees Payable Notwithstanding Termination. In no event, will termination of this Agreement or any individual Order Form(s), either by You or Us, relieve You of Your obligation to pay any fees payable to DIAMOND CRÈME BRÛLÉE for the period prior to the effective date of termination.

4.7 Effect of Termination or Expiration. Upon expiry or termination of this Agreement, or expiration of the Subscription Term, all rights to access or use the Services, and any and all other rights granted to You and Your Authorized Users hereunder, shall immediately cease. Upon termination of any individual Order Form(s), all rights to access or use the Services subscribed to under such Order Form(s), and any and all other rights granted to You and/or Your Authorized Users with respect to such Order Form(s) shall immediately cease. Subject to Section 4.1, the expiration or termination of an Order Form with respect to any individual Service(s) for whatever reason does not terminate this Agreement in its entirety nor relieve the Parties of their obligations with respect to any other Service(s) hereunder or under any other Order Form(s). Expiry or termination of this Agreement shall not release You from: (a) Your obligation to make any payment due and payable to DIAMOND CRÈME BRÛLÉE under this Agreement; or (b) Your confidentiality obligations under Article 12 herein for a period of (5) years following the date of expiry or termination.

4.8 Return of Confidential Information Upon expiry or earlier termination of this Agreement or any Order Form(s), upon request by DIAMOND CRÈME BRÛLÉE, You will, forthwith, at Your sole cost and expense, either return or destroy the Documentation and any all DIAMOND CRÈME BRÛLÉE Confidential Information, together with any copies thereof (or in the case of any Order Form(s), the Documentation and any and all DIAMOND CRÈME BRÛLÉE Confidential Information, and any copies thereof, provided or disclosed by DIAMOND CRÈME BRÛLÉE with respect to such Order Form(s). Where applicable, You shall, upon request, provide DIAMOND CRÈME BRÛLÉE a written certification signed by a director or officer certifying that You have complied with all of Your obligations under this Section 4.8.

4.9 Retrieval of Content. Upon request by You made within thirty (30) days after the date of expiry or termination of this Agreement, DIAMOND CRÈME BRÛLÉE will provide You with access to the Services solely to the extent necessary for you to retrieve Your Content. You acknowledge and agree that DIAMOND CRÈME BRÛLÉE has no obligation to retain or provide Your Content and that Your Content may be irretrievably deleted or destroyed after such thirty (30) day period.

ARTICLE 5 – PROVISION OF SERVICES

5.1 Provision of Services. DIAMOND CRÈME BRÛLÉE shall make the Services available to You pursuant to this Agreement and the applicable Order Form during the Subscription Term. You acknowledge and agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

5.2 Subscriptions. Unless otherwise specified in the applicable Order Form: (i) the Services are purchased as subscriptions during the Subscription Term and may be accessed and used only in accordance with this Agreement and the applicable Order Form; (ii) additional quantities may be added during the applicable Subscription Term at the same pricing as that for the pre-existing quantities thereunder, prorated as applicable for the remainder of the Subscription Term; and (iii) the added quantities, if any, shall terminate on the same date as the pre-existing subscriptions. All Services subscribed to under an Order Form shall terminate on expiry of the Subscription Term specified in such Order Form.

5.3 Registration. You may be required to register a DIAMOND CRÈME BRÛLÉE account in order to access the Services. By creating an account, you represent and warrant that all information that you provide on the registration form is current, complete and accurate. You agree to maintain and to update your registration information so that it remains current, complete and accurate at all times. You are responsible for all use of Your DIAMOND CRÈME BRÛLÉE account, regardless of whether you authorized such access or sue, and for ensuring that all use of your account complies fully with the terms and conditions contained in this Master Subscription Agreement. You agree to notify DIAMOND CRÈME BRÛLÉE immediately of any unauthorized use of your account and if the security or secrecy of Your or any of Your Authorized User’s account login information has been compromised.

ARTICLE 6 – USE OF THE SERVICES

6.l DIAMOND CRÈME BRÛLÉE’s Responsibilities. During the Subscription Term, DIAMOND CRÈME BRÛLÉE will: (i) provide DIAMOND CRÈME BRÛLÉE basic support for the Services to You at no additional charge, and/or upgraded support if purchased; (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, save and except for: (a) planned downtime (of which DIAMOND CRÈME BRÛLÉE shall give reasonable notice online via the Services or via email; or (b) any unavailability caused by circumstances beyond DIAMOND CRÈME BRÛLÉE’s reasonable control, including without limitation, any event of Force Majeure, as defined herein, any failures, malfunctions, defects, shortages or other issues of, in, or with Your applications, equipment, servers, network or facilities, any failures, downtime or delays by any Internet service provider, hosting provider, Third-Party Service, Third Party Service Provider, or denial of service (Dos) attacks.

6.2 DIAMOND CRÈME BRÛLÉE’s Protection of Your Content. DIAMOND CRÈME BRÛLÉE will maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Content. DIAMOND CRÈME BRÛLÉE will not: (a) modify Your Content; (b) collect, store, disclose or use Your Content other than in accordance with the terms of this Agreement, DIAMOND CRÈME BRÛLÉE’s Privacy Policy and all applicable Laws, or as expressly permitted in writing by You; (c) access Your Content other than in accordance with this Agreement, and except to provide the Services, prevent or address service or technical problems, or at Your request in connection with customer support matters.

6.3 Your Responsibilities. You acknowledge and agree as follows:
(a) You are solely responsible for the access and use of the Services by Your Authorized Users or any other Person.
(b) You are solely responsible for the accuracy, quality and legality of Your Content and the means by which You acquired Your Content. By inputting any patient data, including patient Personal Information and Personal Health Information, into the Services, you represent and warrant that you have strictly complied with all applicable Laws, including PIPEDA, the Personal Health Information Protect Act, 2004 (Ontario), and any similar or equivalent legislation, in collecting, storing, using and disclosing such patient data, including in connection with Your use of the Services. Without limiting the generality of the foregoing, by inputting any patient Personal Information or Personal Health Information into the Services, you represent and warrant that you have obtained the express and knowledgeable consent of the patient (or in the case of a minor, the consent of his or her parents or legal guardians) to Your sharing his or her Personal Information or Personal Health Information with DIAMOND CRÈME BRÛLÉE) and for DIAMOND CRÈME BRÛLÉE to use such information in the manner contemplated by this Master Subscription Agreement. You are solely responsible for ensuring that Your and Your Authorized Users’ use of the Services, including with your limitation, Your or Your Authorized Users’ use of any Personal Information or Personal Health Information of any Person in connection with the Services, complies with all applicable Laws
(c) You will use all commercially reasonable efforts to prevent unauthorized access to or use of the Services, and will notify DIAMOND CRÈME BRÛLÉE promptly of any such unauthorized access or use.
(d) You will not access or use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of the rights of any third party, including without limitation, any Personal Information or Personal Health Information.

6.4 Usage Limits. The Services may be subject to usage limits, as specified in the Order Form. Unless otherwise specified: (i) the Services may not be accessed or used by more than the number of Authorized Users specified in the Order Form; (ii) an Authorized User’s password may not be shared with any other person; and (iii) an Authorized User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Services. If You exceed any applicable usage limit, You will execute an Order Form for additional quantities of the applicable Services forthwith upon DIAMOND CRÈME BRÛLÉE’s request, and/or pay any invoice for excess usage in accordance with Article 8.

6.5 Removal of Content. DIAMOND CRÈME BRÛLÉE becomes aware that Content provided by You may violate any applicable laws or third-party rights, including without limitation, any privacy, publicity, IP Rights or other proprietary rights of any Person, DIAMOND CRÈME BRÛLÉE may so notify You and in such event, You will promptly remove such Content from Your systems.

6.6 Audit Rights. You acknowledge and agree that DIAMOND CRÈME BRÛLÉE may, upon giving fourteen (14) days notice, audit your use of the Services. You covenant and agree to cooperate with DIAMOND CRÈME BRÛLÉE’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You covenant and agree to pay within thirty (30) days of written notification any fees applicable to Your use of the Services in excess of your rights. In addition to any other remedies available to DIAMOND CRÈME BRÛLÉE BRÛLÉE at law or in equity, any failure to pay any such excess amounts may result in the suspension of Your access to the services, or termination of this Agreement in accordance with Article 4 herein. You further acknowledge and agree that DIAMOND CRÈME BRÛLÉE shall not be responsible or otherwise liable for any of your costs incurred in cooperating with or otherwise in relation to any audit pursuant to this Section 6.6.

6.7 Integration with Third-Party Services. The Services may contain features designed to interoperate with Third-Party Services. To use such features, You may be required to obtain access to Third-Party Services from their providers, and may be required to grant DIAMOND CRÈME BRÛLÉE access to Your account(s) on the Third-Party Services. If the provider of a Third-Party Service ceases to make the Third-Party Service available for interoperation with the corresponding Service features on reasonable terms, DIAMOND CRÈME BRÛLÉE may cease providing those Service features without entitling You to any refund, credit, or other compensation.

6.8 Third-Party Services and Your Content. If you install or enable a Third-Party Service for use with the Services, You grant us permission to allow the provider of that Third Party-Service to access Your Content as required for the interoperation of that Third-Party Service with the Services. DIAMOND CRÈME BRÛLÉE is not responsible or otherwise liable for any disclosure, modification or deletion of Your Content resulting from access by a Third-Party Service.

RATICLE 7 - FEES AND PAYMENT

7.1 Fees. In consideration of the grant of rights contained in this Agreement, You agree to pay DIAMOND CRÈME BRÛLÉE all of the fees specified in all Order Forms hereunder, in the manner and upon the timing described in this Article 7. Except as otherwise specified herein or in an Order Form: (i) fees are based on services purchased and not actual usage; (ii) payment obligations are non-cancelable and fees paid are non-refundable; and (iii) quantities purchased cannot be decreased during the relevant Subscription Term stated on the Order Form.

7.2 Payment. Depending on the Payment Option selected by You in the applicable Order Form(s), DIAMOND CRÈME BRÛLÉE will either: (i) charge the fees payable by You to the credit card identified by You in the Order Form; or (ii) invoice You in advance and otherwise in accordance with the applicable Order Form. Terms of payment for any amounts invoiced by DIAMOND CRÈME BRÛLÉE are net 15 days. Where payment is to be by way of credit card, You will provide DIAMOND CRÈME BRÛLÉE with valid and updated credit card information. If You provide credit card information to DIAMOND CRÈME BRÛLÉE, you authorize DIAMOND CRÈME BRÛLÉE to charge such credit card for all Services listed in the Order Form for the initial Subscription Term and any renewals thereof. Such charges shall be made in advance in accordance with the billing frequency stated in the applicable Order Form. You are solely responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

7.3 Interest. Any amounts not paid by You when due, including without limitation, as a result of DIAMOND CRÈME BRÛLÉE being unable to process any credit card provided by You, shall accrue interest at the rate of eighteen percent (18%) per annum, calculated monthly not in advance, or the maximum rate permitted by law, whichever is lower. Where DIAMOND CRÈME BRÛLÉE is required to initiate collection efforts or litigation to recover any amounts payable by You under this Agreement, You shall reimburse DIAMOND CRÈME BRÛLÉE for all legal fees and related costs reasonably incurred by DIAMOND CRÈME BRÛLÉE.

7.4 No Set-Off. All amounts payable by You to DIAMOND CRÈME BRÛLÉE under this Agreement, including without limitation, all fees set out in any Order Form, shall be payable by You to DIAMOND CRÈME BRÛLÉE without deduction, set-off, or counterclaim. Except as otherwise expressly stated in this Agreement, DIAMOND CRÈME BRÛLÉE shall have no obligation to You to refund, repay, credit, or rebate any amounts paid by You to DIAMOND CRÈME BRÛLÉE.

7.5 Taxes. All amounts due and payable under this Agreement are exclusive of and do not include any taxes, duties, levies, or similar charges imposed by any government. You agree to pay or reimburse DIAMOND CRÈME BRÛLÉE for any and all applicable taxes, including, but not limited to (a) excise, import, and customs duties, levies, or other charges; (b) sales, use, consumption, goods and services, property, and value-added taxes; or (c) internet, online, and e-commerce duties, taxes, and levies; and (d) other duties, levies, and taxes of any kind; arising out of this Agreement or the transactions contemplated by this Agreement, regardless of whether same exist at the Effective Date or are imposed thereafter, except such taxes as may be imposed solely on DIAMOND CRÈME BRÛLÉE’s income (“Applicable Taxes”). Payment of Applicable Taxes shall be the sole responsibility of the customer. In the event that DIAMOND CRÈME BRÛLÉE is required to pay any Applicable Taxes, You will reimburse DIAMOND CRÈME BRÛLÉE in full forthwith upon receipt of DIAMOND CRÈME BRÛLÉE’s invoice for same. Should You claim tax-exempt status, a copy of the exemption must be provided to DIAMOND CRÈME BRÛLÉE prior to entering into this Agreement.

7.6 Suspension of Services. In the event of default of any payment by Your to DIAMOND CRÈME BRÛLÉE under this or any other agreement, DIAMOND CRÈME BRÛLÉE may, in addition to any other available remedy, and without notice to You, suspend Your access to the Services until any and all outstanding amounts are paid in full. Suspension of the Services shall not release You of Your payment obligations under this Agreement. You acknowledge and agree that DIAMOND CRÈME BRÛLÉE shall not be liable to You or any third party for any loss, damages, expenses, liabilities, or claims arising from or relating to the suspension of Services in accordance with this Section 7.6.

ARTICLE 8 – WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

8.1 Limited Warranty. DIAMOND CRÈME BRÛLÉE warrants to You as follows:
(a) subject to Section 8.3, the Services will perform materially in accordance with the Documentation during the Subscription Term;
(b) subject to Section 6.7 (Integration with Third Party Services), We will not materially decrease the functionality of the Services during the Subscription Term

8.2 Exclusive Remedy. Notwithstanding anything contained in this Agreement or any Order Form(s), DIAMOND CRÈME BRÛLÉE’s entire liability, and Your sole and exclusive remedy, for any and all breaches of any of the warranties contained in Section 8.1, are as described in Section 4.5 (Termination by You for Cause).

8.3 Disclaimer. Except as expressly set out in this Agreement: (i) the Services, the Documentation, and any services to be provided by DIAMOND CRÈME BRÛLÉE hereunder are provided “as is”; and (ii) DIAMOND CRÈME BRÛLÉE makes no representation, warranty, condition, or guarantee, express, statutory or implied, with respect to the Services or any part or aspect thereof, the Documentation, or any services to be provided by DIAMOND CRÈME BRÛLÉE hereunder. DIAMOND CRÈME BRÛLÉE expressly disclaims all other representations, warranties, conditions, or guarantees, including without limitation, any and all representations, warranties, conditions, or guarantees of description, quality, merchantability, operation, integration, adequacy, suitability, title, non-infringement, non-interference with use and/or enjoyment, or fitness for a particular purpose, and all other duties and obligations, whether express or implied by statute, common law, custom, usage of trade, course of dealing, or otherwise, however arising. DIAMOND CRÈME BRÛLÉE does not warrant that the Services will meet Your requirements nor that they will operate on any hardware and/or software platforms, identify all known viruses, or will function uninterrupted, error free or that any defects in the Services will be corrected. You assume the entire risk as to the results and performance of the Services. You acknowledge that you have not relied on any representation by DIAMOND CRÈME BRÛLÉE as to the suitability of any item for any particular purpose. DIAMOND CRÈME BRÛLÉE does not represent or warrant that the Services will be capable of achieving any particular result or results in Your business, practice or operations. You acknowledge and agree that you are solely responsible for, and assume all risks and liabilities associated with, Your and Your Authorized Users’ use of the Services and the rights granted under this Agreement.

8.4 Third-Party Services. DIAMOND CRÈME BRÛLÉE makes no representation, warranty, condition, or guarantee, and accepts no obligation in relation to any Third-Party Services or any products or services not proprietary to, or otherwise made available by DIAMOND CRÈME BRÛLÉE, including without limitation, whether used on a standalone basis or in conjunction with the Services. All representations, warranties, conditions, or guarantees of any kind relating to such Third-Party Services, including without limitation, as to description, quality, merchantability, operation, integration, adequacy, suitability, title, non-infringement, non-interference with use and/or enjoyment, or fitness for a particular purpose, and all other duties and obligations, whether express or implied by statute, common law, custom, usage of trade, course of dealing, or otherwise, however arising, are hereby expressly excluded to the fullest extent permitted by law. You acknowledge and agree that You are solely responsible for the use of any Third-Party Service or any other product or service that is not proprietary to, or otherwise made available by DIAMOND CRÈME BRÛLÉE, whether used on a standalone basis or in conjunction with the Services. You further covenant and agree that You will comply with the terms and conditions imposed on You and/or any Authorized User in respect of any Third-Party Services.

8.5 No Endorsement by Third Party. You acknowledge and agree that You have not relied on any representation by DIAMOND CRÈME BRÛLÉE that either the Services or their use, whether on a standalone basis or in conjunction with any Third-Party Service, are guaranteed, warranted, or otherwise endorsed by any third party.

8.6 Patient Care Responsibility. You acknowledge and agree that DIAMOND CRÈME BRÛLÉE is not engaged in the rendering of medical or health diagnosis, treatment, evaluation, patient care or any other kind of personal professional services in licensing the Services to You. The Services, including the ORMedGuide™, and the information made available on the Services are to be used as a tool to assist You and Your Authorized Users in connection with your provision of health care to Your patients, and are not, nor are they intended to be, a medical opinion or a substitute for medical diagnosis. The Services were developed as tools to be used by as an adjunct to good professional judgment by You and Your Authorized Users and do not replace or supersede professional judgment or the use of licensed and qualified medical and health professionals to make decisions. The Services are not intended to be medical diagnostic tools, nor are they a substitute for medical diagnosis, treatment or other care rendered by a licensed and qualified medical or health professional. You acknowledge and agree that: (i) all aspects of patient care, including Your or Your Authorized Users’ use of the Services or any information generated by the Services in connection with the provision of any health care services, is Your sole and exclusive responsibility; (ii) You and Your Authorized Users are solely and exclusively responsible for evaluating and independently verifying any information generated by the Services using Your or their own professional judgment; and (iii) You and Your Authorized Users have the last and best opportunity, and are solely and exclusively responsible for determining whether any information generated by the Services is correct or applicable in each instance, and in all aspects of patient care. DIAMOND CRÈME BRÛLÉE disclaims any and all responsibility and liability for any use of the Services by You, Your Authorized Users or any other Person in connection with the provision of medical or health care services of any kind and in any manner whatsoever.

ARTICLE 9 – RELEASE AND INDEMNITY

9.1 Release and Indemnity by You. You release and agree to indemnify, defend, and hold the DIAMOND CRÈME BRÛLÉE Indemnitees harmless from and any and all Claims and Losses arising out of or incurred by the DIAMOND CRÈME BRÛLÉE Indemnitees as a result of or in connection with any of the following:
(a) Your and Your Authorized Users’ use of the Services in connection with the provision of medical or health care services of any kind and in any many whatsoever.
(b) Your or any Authorized User’s use of the Services or any part or aspect thereof, including without limitation: (i) in any manner not contemplated by the Documentation; or (ii) in connection with any activity that is illegal, offensive or immoral or that infringes on the rights of any person, including without limitation, any privacy, publicity, or other intellectual or proprietary rights;
(c) any third party claim arising out of or in relation to Your Content, or Your use of any Service in breach of this Agreement, including without limitation, any claim in which it is alleged that Your Content, or Your use of any Service in breach of this Agreement violates, infringes or misappropriates any proprietary or Intellectual Property Right of any Person, including without limitation, any privacy right of any Person, or violates any applicable Law;
(d) any breach by You of: (i) Your obligations under this Agreement or any Order Form; (ii) any terms, conditions, licenses, restrictions, or policies imposed by any third party, including without limitation, any Third-Party Service license; and/or: (iii) any applicable Law. DIAMOND CRÈME BRÛLÉE reserves the right to assume exclusive control of the defence and/or settlement of any claim, and You agree to cooperate in all reasonable respects with Our efforts to defend and/or settle such claim, at Your expense.

9.2 Release and Indemnity by DIAMOND CRÈME BRÛLÉE for Infringement Claims. DIAMOND CRÈME BRÛLÉE will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that Your use of any Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (an “Infringement Claim against You”), and will indemnify You from any damages, reasonable legal fees, and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, an Infringement Claim Against You, provided that: (a) You shall promptly, and in all cases within twenty (20) days of first becoming aware of such Infringement Claim Against You, provide written notice to DIAMOND CRÈME BRÛLÉE of such Claim; (b) DIAMOND CRÈME BRÛLÉE shall have the right, in its sole discretion, to assume exclusive control of the defence and/or settlement of such Infringement Claim Against You, provided that, DIAMOND CRÈME BRÛLÉE may not settle any Infringement Claim Against You unless such settlement unconditionally releases You of all liability; (c) You will cooperate in all reasonable respects with Our efforts to defend and/or settle any such Infringement Claim Against You, at Our expense; (d) You will not make any admissions in respect of such Infringement Claim Against You, or compromise or Settle any such Claim without Our express prior written consent; and (e) You will comply with all reasonable instructions given by Us relating to such Claim. Notwithstanding anything contained in this Agreement, if any Service becomes, or in DIAMOND CRÈME BRÛLÉE’s sole opinion, is likely to become, the subject of a claim to which the indemnity in this Section 9.2 may apply, DIAMOND CRÈME BRÛLÉE may, in its sole discretion, and at no cost to You: (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 8.1 herein; (ii) obtain a license for Your continued use of such Service in accordance with this Agreement; or (iii) terminate Your subscription(s) for such Service and refund You any prepaid fees covering the remainder of the applicable Subscription Term in accordance with Section 4.4 of this Agreement (Termination by DIAMOND CRÈME BRÛLÉE for Convenience), and in all such cases, DIAMOND CRÈME BRÛLÉE’s obligations under this Section 9.2 shall be fulfilled.

9.3 Exceptions. DIAMOND CRÈME BRÛLÉE’s defence and indemnification obligations contained in Section 9.2 herein shall not apply to the extent that any Infringement Claim Against You arises as a result of or in relation to: (a) Your Content; (b) any Third-Party Service; (c) use of the Services other than in accordance with this Agreement, the Documentation, or any applicable Laws, including without limitation, any use of the Services exceeding the scope of the applicable subscription, including any usage limits; (d) use of the Services in combination with any software, service, or application not provided by DIAMOND CRÈME BRÛLÉE or approved by DIAMOND CRÈME BRÛLÉE in writing; or (e) any use of the Services after DIAMOND CRÈME BRÛLÉE notifies You to discontinue use.

9.4 DIAMOND CRÈME BRÛLÉE Liability. DIAMOND CRÈME BRÛLÉE’s total liability for any and all Infringement Claims Against You shall be strictly limited to the obligations set out in this Article 9 and shall be subject to all of the limitation of liability provisions set out in Article 10 of this Agreement.

ARTICLE 10 – LIMITATION OF LIABILITY

10.1 No Liability. Notwithstanding anything contained in this Agreement, in no event whatsoever will the DIAMOND CRÈME BRÛLÉE Indemnitees be liable for any claim for:
(a) punitive, exemplary or aggravated damages;
(b) damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of computer resources, lost or corrupt data, or reprocurement amount;
(c) indirect, consequential or special damages of any kind;
(d) contribution, indemnity or set-off in respect of any claims against You by any third party;
(e) any damages whatsoever caused by, contributed to, arising out of, or in relation to any Third Party Service, including without limitation, any software or hardware that is not proprietary to, or otherwise made available by DIAMOND CRÈME BRÛLÉE; or
(f) any damages whatsoever relating to interruption, delays, errors or omissions, whether based in contract, tort, equity, at law, or upon any other theory of liability, and notwithstanding the failure of essential purpose of any remedy contained in this Agreement.

10.2 Limitation on Liability.

Notwithstanding anything contained in this Agreement, the maximum total, cumulative, and aggregate liability of the DIAMOND CRÈME BRÛLÉE Indemnitees:
(i) arising under the provisions of this Agreement;
(ii) for any and all breaches by DIAMOND CRÈME BRÛLÉE of this Agreement (including without limitation any deliberate, repudiatory, or fundamental breach);
(iii) for any termination by DIAMOND CRÈME BRÛLÉE of this Agreement or any Order Form(s);
(iv) for any other claim whatsoever arising out of or in relation to this Agreement, the Services and Your or any Authorized User’s use thereof, including without limitation, any Infringement Claim Against You, under any circumstances, regardless of the cause of action and including without limitation claims for tort, negligence or otherwise, and Your sole remedy therefore, shall be strictly limited to an award for direct, provable damages not to exceed the total amount of fees paid by You to DIAMOND CRÈME BRÛLÉE during the twelve (12) month period immediately preceding the date the claim arose, notwithstanding the failure of essential purpose of any remedy contained herein. Some jurisdictions do not allow the exclusion or limitation of damages. In such cases, DIAMOND CRÈME BRÛLÉE’s liability will be limited to the fullest extent permitted by applicable law.

10.3 Limitation on Time. Notwithstanding anything contained in this Agreement, no action arising out of or in relation to this Agreement, or DIAMOND CRÈME BRÛLÉE’s obligations hereunder, regardless of form, may be brought by You more than twelve (12) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by You.

10.4 Reasonableness of Limitations. You acknowledge and agree that the exclusions and limitations contained in this Article 10 are reasonable in scope and that the terms and conditions of this Agreement are necessary in order for DIAMOND CRÈME BRÛLÉE to protect its interest, and considerable investment, in the Services. You further acknowledge and agree that DIAMOND CRÈME BRÛLÉE would not have granted the license granted under this Agreement but for the exclusions and limitations contained in this Article 10.

ARTICLE 11 - CONFIDENTIALITY AND PRIVACY

11.1 Confidentiality. Except for the specific rights granted by this Agreement, or as otherwise expressly authorized by the disclosing Party in writing, neither Party shall use or disclose any Confidential Information of the other Party. A party receiving Confidential Information from the other shall use the same degree of care to protect the confidentiality of such Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care, including ensuring that such information is disclosed to employees and agents on a need-to-know basis and that all such employees and agents have agreed in writing not to disclose or use any Confidential Information. Within fifteen (15) days of the request of the disclosing Party, and in its sole discretion, the receiving Party shall either return to the disclosing party originals and copies of any Confidential Information and all information, records and materials developed from them by the receiving party, or destroy the same. Either Party may only disclose the general nature, but not the specific terms and conditions, of this Agreement without the prior written consent of the other Party. With respect to each confidential disclosure, the confidentiality obligations contained herein shall continue for a period of five (5) years following disclosure of such Confidential Information, with the exception of trade secret information, which the Parties agree not to disclose at any time during or following expiry or termination of this Agreement without the disclosing party’s prior written consent.

11.2 DIAMOND CRÈME BRÛLÉE Confidential Information. Notwithstanding anything contained in this Agreement, all information concerning DIAMOND CRÈME BRÛLÉE’s products and services, including without limitation, the Services, pricing of DIAMOND CRÈME BRÛLÉE’s Services, the Documentation, and information concerning DIAMOND CRÈME BRÛLÉE’s future products and services shall be deemed to be Confidential Information of DIAMOND CRÈME BRÛLÉE.

11.3 Title to Confidential Information. In no event shall either Party be deemed to have acquired any license, patent, copyright, other right or other interest in or to any Confidential Information of the other Party, and all such Confidential Information shall remain the sole property of the disclosing Party.

11.4 Remedies. Both Parties acknowledge and agree that any breach or threatened breach by the receiving Party of the confidentiality obligations contained in this Article 11 will result in irreparable harm to the disclosing Party. The Parties further acknowledge and agree that, in addition to any other remedy the disclosing Party may have at law or in equity, the disclosing Party may seek and obtain from any court of competent jurisdiction, injunctive relief in respect of any actual or threatened disclosure of the disclosing Party’s Confidential Information by the receiving Party and/or any other person, including without limitation, any Authorized User, contrary to the provisions of this Agreement.

ARTICLE 12 - PUBLICITY RIGHTS

12.1 You grant DIAMOND CRÈME BRÛLÉE the right to represent that You are a customer of DIAMOND CRÈME BRÛLÉE, and DIAMOND CRÈME BRÛLÉE shall be permitted to use Your business name and logo to identify You as a customer of DIAMOND CRÈME BRÛLÉE’s products and services, including without limitation, in any promotional material.

ARTICLE 13 - GENERAL PROVISIONS

13.1 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to: (i) the conflict of law provisions thereof; and (ii) the United Nations Convention on Contracts for the International Sale of Goods. You irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario. Notwithstanding the foregoing, You acknowledge and agree that, with respect to any dispute arising out of or relating to any third-party software licensed by DIAMOND CRÈME BRÛLÉE and incorporated into or embedded in the Services (“Embedded Software”), the terms of an Embedded Software license may require that DIAMOND CRÈME BRÛLÉE submit to a different jurisdiction, and in the event that DIAMOND CRÈME BRÛLÉE is obligated to submit to such jurisdiction, You agree to attorn to same.

13.2 Dispute Resolution. Any disputes whatsoever arising between the Parties, whether during the Term or at any time thereafter, in connection with this Agreement, or the construction or application thereof, or any Article or Section or matter contained in this Agreement, or as to any act, deed or omission of either Party or as to any other matter in any way relating to this Agreement, shall be subject to arbitration pursuant to the provisions of the Arbitration Act 1991 (Ontario), or any successor legislation thereto. The arbitration tribunal shall consist of one (1) arbitrator appointed by mutual agreement of the Parties, or in the event of failure to agree within thirty (30) days, either Party may apply to a judge of the Superior Court of Justice sitting in the City of Ottawa, in the Province of Ontario, to appoint an arbitrator. The arbitrator shall be qualified by education and training to render a decision upon the particular matter to be decided. The arbitration shall be conducted in English and shall be held in the City of Ottawa, in the Province of Ontario, unless otherwise agreed to by the Parties. The arbitrator shall be instructed that time is of the essence in proceeding with his or her determination of any dispute, claim, question or difference. The procedure to be followed shall be agreed to by the Parties, or in default of such agreement, determined by the arbitrator. The arbitration shall proceed in accordance with the provisions of the Arbitration Act, 1991 (Ontario), and in accordance with the provisions of this Section 13.2 the arbitrator shall have the power to proceed with the arbitration and to deliver his or her award notwithstanding the default by either Party in respect of any procedural order made by the arbitrator. Any judgment, decision or award rendered by such arbitrator shall be final, binding, not subject to any appeal, and shall deal with the question of costs of arbitration and all matters related thereto. Judgment upon the award rendered may be entered into any court having jurisdiction or application may be made to such court for a judicial recognition of the award or an order of enforcement thereof, as the case may be. This Section does not affect the rights of DIAMOND CRÈME BRÛLÉE to seek injunctive relief to enforce its rights under this Agreement.

13.3 Independent Contractors. You acknowledge and agree that DIAMOND CRÈME BRÛLÉE is an independent contractor. Nothing in this Agreement shall be interpreted or construed as creating or establishing any form of partnership, joint venture, employment relationship or agency between You and DIAMOND CRÈME BRÛLÉE or any employee or agent of DIAMOND CRÈME BRÛLÉE.

13.4 Assignment. This Agreement may not be assigned by You without the prior written consent of DIAMOND CRÈME BRÛLÉE, which DIAMOND CRÈME BRÛLÉE may refuse in its sole and absolute discretion, and for any reason whatsoever. DIAMOND CRÈME BRÛLÉE may assign or transfer this Agreement at any time, and for any reason.

13.5 Further Assurances. You covenant and agree that You will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as DIAMOND CRÈME BRÛLÉE may reasonably require from time to time for the purpose of giving effect to the provisions of this Agreement and will use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.

13.6 Waiver. No failure or delay on the part of DIAMOND CRÈME BRÛLÉE in the exercise of any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy. No extension of any time limit granted by DIAMOND CRÈME BRÛLÉE shall constitute an extension of any other time limit or any subsequent instance involving the same time limit. No consent by DIAMOND CRÈME BRÛLÉE, nor waiver of, a breach by You, whether express or implied, shall constitute a consent to or waiver of or excuse for any other different or subsequent breach, unless such waiver or consent is in writing and signed by DIAMOND CRÈME BRÛLÉE. Except as otherwise provided in this Agreement, no term or provision hereof shall be deemed waived and no breach excused by DIAMOND CRÈME BRÛLÉE.

13.7 Remedies not Exclusive. Except as otherwise provided in this Agreement, the rights and remedies of DIAMOND CRÈME BRÛLÉE are not mutually exclusive and the exercise of any one or more of the provisions of this Agreement by DIAMOND CRÈME BRÛLÉE does not preclude the exercise of any other of its provisions. Notwithstanding anything contained in this Agreement, You confirm that damages at law may be an inadequate remedy for a breach or threatened breach of this Agreement by You or any Authorized User and agree that in addition to any and all other available remedies, DIAMOND CRÈME BRÛLÉE shall be entitled to seek a temporary or permanent injunction or any other form of equitable relief to enforce the rights and obligations contained in this Agreement

13.8 Invalidity of Provisions. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision of this Agreement.

13.9 Force Majeure. DIAMOND CRÈME BRÛLÉE shall not be liable for any delay, interruption or failure in performance of any of the terms, covenants or conditions of this Agreement due to causes beyond DIAMOND CRÈME BRÛLÉE’s reasonable control, including without limitation, any strikes, boycotts, labour disputes, embargoes, acts of God, acts of public enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellion, pandemic or epidemic, or any delay caused by any act or default of the customer, or the inability to use or the failure of, any third party telecommunications or other services.

13.10 Time of the Essence. Time shall be of the essence in connection with this Agreement.

13.11 Notice. Any notice, demand, communication or request required or permitted to be given pursuant to this Agreement or for the purposes of this Agreement (a “Notice”) to either Party shall be in writing and shall be sufficiently given if delivered in person or if sent by courier, prepaid registered mail, or facsimile to such Party:

In the case of notice to DIAMOND CRÈME BRÛLÉE, at:

DCB Diamond Crème Brulée Design Inc.
174 Otty Way
R.R. #3
Perth, Ontario K7H 3C5
Attention: Alain Gauthier, President

In the case of notice to You, at the e-mail address associated with Your account.

13.12 Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement. There are no warranties, representations, or agreements between the Parties in connection with such subject matter except as specifically set forth or referred to in this Agreement. Without limiting the generality of the foregoing, You acknowledge and agree that You have not relied on the future availability of any services, programs or updates in entering into this Agreement. The Schedules and Order Forms referred to in this Agreement are incorporated by reference and form part of the Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form; (2) this Agreement; and (3) the Documentation.

13.13 Enurement. This Agreement shall enure to the benefit of, and be binding upon, the Parties and their respective successors, affiliates and permitted assigns.

13.14 Survival. The expiry or termination of this Agreement will not affect the survival and enforceability of any provision of this Agreement which is expressly or impliedly intended to remain in force after such termination. Without limiting the generality of the foregoing, the provisions of Articles 1, 2, 3, 4, 7, 8, 9, 10, 11, 12 and 13 shall survive expiry or termination of this Agreement indefinitely. The provisions of Article 11 shall survive expiry or termination of this Agreement for the period set out therein.

Confidentiality Agreement

1. Parties

This is an agreement between Diamond Crème Brulee, the company that owns ORMedGuide.com (“we” or “us”) and (“you”).

2. Purpose

In connection with using this website and the service(s) it offers (the “Transaction”), you may obtain or may have already obtained confidential information concerning our business.

3. Confidential Information

Please note that our website and the service(s) we offer through it, is not meant to be open to the public. We are offering exclusive, and private access to this website to you, so that we can gather your feedback about the how well it works to meet your needs, and to understand if the services we provide through the website are of value to you. As such we ask you to treat the nature and contents of this website, and the service(s) it offers as being confidential.

Our confidential information includes but is not limited to the following types of information, if not publicly known or readily available to the public:

(a) the various features and services offered by this website
(b) the user interface and user experience offered by this website
(c) our prices,
(d) our methods of doing business,
(e) any feedback we share with you or you share with us about your experience with using this website,
(i) any additional or future user interface or user experience changes or additions, and new services offered by this website, or any changes to existing services offered by this website which might be shared with you on this website, via any emails we send you, or any conversations we have in person or over the phone with you.

Our confidential information includes such information that becomes publicly available because of your violation of this agreement.

4. Trade Secrets

Some of our confidential information may also be legally protected as trade secrets.

5. Confidentiality Agreement

You agree to keep our confidential information confidential. This includes your agreement that you will not:

(a) disclose our confidential information to any third party;
(b) use our confidential information in competition with us;
(c) use our confidential information in any way that harms us; and/or
(d) use our confidential information for your own business advantage.

You will exercise reasonable care to protect the confidentiality of our confidential information. Reasonable care means at least the level of care that you would reasonably use to protect your own confidential information.

6. Returning Information

On our request, you will send us all paper and electronic documents in your possession, custody, or control containing our confidential information and delete all electronic copies.

7. Exceptions

You may use or disclose our confidential information only in the following situations:

(a) with our specific written consent;
(b) for a legitimate purpose in the course of your employment by us or in performance of a contract with us (if applicable);
(c) in response to a valid subpoena or discovery request in a civil or criminal case, in which case you will promptly give us written notice so we have a reasonable opportunity to take legal action concerning the subpoena if necessary;
(d) in compliance with 18 U.S.C. § 1833(b) (the “whistleblower” provisions of the Defend Trade Secrets Act); and/or
(e) as otherwise required by law.

8. Interpretation

This agreement will be interpreted in a common-sense way to accomplish its purpose of protecting our confidential information. Any rule requiring an agreement to be interpreted against the person who drafted the agreement will not apply to this agreement. You will comply with this agreement in good faith and will not use any unfair arrangement to undermine its purpose.

9. Injunctive Relief

You agree that:

(a) a violation of this agreement will cause us harm that cannot be adequately compensated by a judgment for damages,
(b) the damage caused by such a violation would be inherently difficult to quantify by dollar amount,
(c) we can obtain a temporary restraining order or injunction from a court to enforce this agreement, and
(d) we will not be required to post a bond for a temporary restraining order or injunction to enforce this agreement.

10. Additional Legal Provisions

This agreement cannot be changed or waived by oral agreement; it can only be changed or waived in writing with our signature. Any waiver of this agreement in one circumstance will not apply to any other circumstance. Our refraining from exercising a right under this agreement will not be considered a waiver.

This agreement and any dispute related to this agreement will be governed by Ontario (Canada) laws.

In the event of a lawsuit between us that in any way relates to the Transaction, our confidential information, or this agreement, you waive the right to a jury trial, and you agree that the provincial or federal courts (as applicable) in Ontario, will have exclusive jurisdiction.

Your obligation to comply with this agreement continues to apply after the Transaction ends or your relationship with us ends.

This agreement binds and benefits the parties and their heirs, legal representatives, successors, and assigns.