These Terms of Use (the “Terms” or “ToU”) are a legal agreement between you and My Viva Inc. governing your use of the My Viva Inc. (“MVI”) wellness programs, either through the website on the Internet, and its mobile applications (collective, the “Site”).

These ToU are a legally binding agreement between you and MVI which you accept and agree to when you register for MVI programs to use its Services. These ToU apply to all users of MVI. If you do not agree to the Terms, you should not register for the MVI program.

END USER LICENSE AGREEMENT

By clicking through and agreeing to these Terms, you are agreeing to enter into and be bound by the terms of the end user software license and software as a service agreement attached hereto as Exhibit 1 (the “EULA”), as the ‘Licensee’ under the EULA. If there is any inconsistency between the main body of the Terms and the terms of the EULA, the terms of the EULA will govern.

MODIFICATION TO THE TERMS OF USE

MVI reserves the right to change these ToU at any time and your continued use of the MVI program and services after such changes are made indicates your acceptance of these Terms as modified. It is your responsibility to review these ToU regularly.

OWNERSHIP OF SITE OR RIGHT TO USE, SELL, PUBLISH CONTENTS OF THIS SITE

USE OF INFORMATION FROM THIS SITE

CO-BRANDING, “FRAMING” AND REFERENCING SITE PROHIBITED

DISCLAIMER FOR CONTENTS OF SITE AND THIRD PARTY LINKS

This Site and all links to outside sources are presented "as is", with all of the risks inherent in web browsing. While My Viva takes precautions against attacks, nothing in this Terms of Service guarantees site integrity at all times. My Viva assumes no responsibility for damage to devices or loss of data in the event this website or third-party links are compromised. If you believe the site has been jeopardized, please do the following:

Remember that My Viva will never prompt downloads that you do not explicitly select, make requests from third-parties, or email asking for passwords and login information.

LIMITATION OF LIABILITY

INDEMNIFICATION

SUGGESTIONS

DISPUTES

Binding Arbitration

Jurisdiction and Venue

Applicable Law

CONTACT INFORMATION

Exhibit 1
EULA

End User Software License and Software as a Service Agreement

This End User Software License and Software as a Service Subscription Agreement (this "Agreement"), dated as of the date Licensee (as defined below) (the “Effective Date”) first uses the My Viva Inc. wellness programs, is entered into between the clinic of Licensee ("Licensor") and end user of the My Viva Inc. wellness programs ("Licensee", and together with Licensor, the "Parties", and each, a "Party").

WHEREAS, Licensor licenses certain Software and software-as-a-service offerings from either Head Licensor (as defined below) and is permitted to sub-license such Software and software-as-a-service offerings;

WHEREAS, Licensee desires to license such Software and access such software-as-a-service offerings (as described herein), and Licensor desires to sub-license such Software and provide Licensee access to such offerings, subject to the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. Definitions. In addition to terms which are defined throughout this Agreement, the following terms have the following meanings:

"Affiliate" of a Person means any other Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, the first Person.

"Authorized Users" means Licensee's active Representatives (a) who are authorized by Licensee to access and use the Software and the Services solely on behalf of Licensee for Licensee’s internal business purpose under the rights granted to Licensee pursuant to this Agreement; (b) for whom access to the Software and the Services has been purchased hereunder; and (c) to whom Licensee has supplied a single user log-in account, user ID, and password.

"Business Day" means any day other than a Saturday, Sunday or any other day on which banks located in the Province of Alberta or the Territory are authorized or required by Law to be closed for business.

"Control" (and the terms "Controlled by" and "under common Control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

"Documentation" means any manuals, instructions or other documents or materials that Licensor provides or makes available to Licensee in any form or medium that relate to the functionality, operation, and/or performance capability of components, features or requirements of the Software, Services or Licensor Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

"Effective Date" has the meaning set forth in the preamble.

“Governmental Authority” means the government of the Territory or any other country or sovereign entity, any state, province, commonwealth, territory, or possession thereof, and any political subdivision or quasi-governmental authority of any of the same, including but not limited to courts, tribunals, arbitrators, departments, commissions, boards, bureaus, agencies, counties, municipalities, provinces, parishes, securities regulatory authority or stock exchange, and other instrumentalities or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of the foregoing, in each case, having jurisdiction in the relevant circumstances.

"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, trojan horse, worm, backdoor, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (i) computer, software, firmware, hardware, system, or network; or (ii) application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby.

“Head Licensor” means either My Viva Inc. or My Viva International Inc., as the case may be.

“Head License Agreement” means the software license and software as a service subscription agreement between Licensor and Head Licensor.

"IP Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection in any part of the world.

"Law" means any statute, ordinance, regulation, rule, code, constitution, treaty, common law or other requirement or order of any Governmental Authority.

"Licensee Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Licensee or an Authorized User by or through the Services. For the avoidance of doubt, Licensee Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Licensee or any Authorized User.

"Licensee Systems" means Licensee's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Licensee or through the use of third-party services.

"Licensor Materials" means the Software, the Services, Documentation and Licensor Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software, and other technologies, and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Licensor (or any Affiliate of Licensor or licensor of Licensor, including Head Licensor) in connection with the Services or the Software or otherwise comprise or relate to the Software, Services or Licensor Systems. For the avoidance of doubt, Licensor Materials include Resultant Data and any information, data, or other content derived from Licensor's or Head Licensor’s monitoring of Licensee's access to or use of the Services, but do not include Licensee Data.

"Licensor Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of Licensor, Head Licensor or their Affiliates.

"Licensor Systems" means the information technology infrastructure used by or on behalf of Licensor or Head Licensor in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Head Licensor, Licensor or through the use of third-party services.

"Person" means an individual, corporation, partnership, unlimited liability company, limited liability company, governmental authority, unincorporated organization, trust, association, or any other entity.

"Process" means to take any action or perform any operation or set of operations that the Software or Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, use, perform, display, disseminate, transmit, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and "Processing" and "Processed" have correlative meanings.

"Representatives" means, with respect to a Party, that Party's and its Affiliates' respective employees, officers, directors, consultants, agents, independent contractors, service Licensors, and legal advisors.

"Resultant Data" means data and information related to Licensee's use of the Software or Services that is used by Licensor, Head Licensor or Head Licensor’s Affiliates in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software and Services.

"Services" means the software-as-a-service offering described in Schedule A.

“Software” means the software described in Schedule A.

“Tax” or “Taxes” means any and all taxes, duties, fees, premiums, assessments, imposts, levies and other charges of any kind whatsoever imposed by any Governmental Authority, including but not limited to all income, sales, use, ad valorem, value added, franchise, severance, net or gross proceeds, withholding, payroll, employment, excise, or property taxes, together with any interest thereon and any penalties, additions to tax, or additional amounts applicable thereto imposed by any Governmental Authority.

“Territory” means the territory set out on Schedule B.

"Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Software or the Services that are not proprietary to Head Licensor, Licensor or their Affiliates.

  1. Services.
    1. Software License, Access and Use. Subject to and conditioned on Licensee's and its Authorized Users' compliance with the terms and conditions of this Agreement, Licensor hereby grants Licensee:
      1. a non-exclusive (subject to Schedule B), non-sublicensable, non-transferable license to use the Software during the Term solely in the Territory and solely for Licensee's internal business purposes in connection with its use of the Services; and
      2. a non-exclusive (subject to Schedule B), non-transferable right to access and use the Services during the Term, solely in the Territory and solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Licensee's internal use.
    2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties:
      1. Licensor and Head Licensor have and will retain sole control over the operation, provision, maintenance, and management of the Services and Licensor Systems; and
      2. Licensee has and will retain sole control over the operation, maintenance, and management of, and all access to and use of the Licensee Systems, and sole responsibility for all access to and use of the Licensor Materials by any Person by or through the Licensee Systems or any other means controlled by Licensee or any Authorized User, including any:
        1. information, instructions, or materials provided by any of them to the Services or Licensor;
        2. results obtained from any use of the Services or Licensor Materials; and
        3. conclusions, decisions, or actions based on such use.
    3. Reservation of Rights. Except as expressly set forth in Section 2.1, nothing in this Agreement grants any right, title, or interest in or to (including any license under) any IP Rights in or relating to, the Software, Services, or other Licensor Materials, whether expressly, by implication, estoppel, or otherwise. Except as expressly set forth in Section 2.1, all right, title, and interest in and to the Software, Services and the other Licensor Materials, are and will remain with Head Licensor, Licensor and their Affiliates.
    4. Changes. Head Licensor and Licensor reserve the right, in their sole discretion, to make any changes to the Services and Licensor Materials that they deem necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Head Licensor's or Licensor’s services to its Licensees, (ii) the competitive strength of or market for Head Licensor's or Licensor’s services, or (iii) the cost efficiency or performance of the Services; or (b) to comply with applicable Law.
    5. Suspension or Termination of Services. Licensor may, directly or indirectly, suspend, terminate, or otherwise deny access to, or use of, all or any part of the Services or Licensor Materials by Licensee, any Authorized User or any other Person, without incurring any resulting obligation or liability, if: (a) Head Licensor or Licensor receives any order or notice from a governmental authority which expressly or by reasonable implication requires Licensor to do so; (b) Licensor believes, in its sole discretion, that: (i) Licensee or any Authorized User has failed to comply with, any term of this Agreement, accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation or (ii) Licensee or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (c) this Agreement expires or is terminated. This Section 2.5 does not limit any of Licensor's other rights or remedies, whether at Law, in equity, or under this Agreement.
  2. Use Restrictions; Service Usage and Data Storage.
    1. Use Restrictions. Licensee shall not, and shall not permit any other Person to, access or use the Software, Services, or other Licensor Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Licensee shall not, except as this Agreement expressly permits:
      1. copy, modify, or create derivative works or improvements of the Software, Services or other Licensor Materials;
      2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Software, Services or other Licensor Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
      3. reverse engineer, disassemble, decompile, decode, adapt, modify, or otherwise attempt to derive or gain access to the source code of the Software, Services or other Licensor Materials, in whole or in part;
      4. bypass or breach any security device, or protection used by the Services or Licensor Materials or access or use the Services or Licensor Materials other than by an Authorized User;
      5. input, upload, transmit, or otherwise provide to or through the Software, Services or Licensor Systems any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
      6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Licensor Systems, or Licensor's provision of services to any third party, in whole or in part;
      7. remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Software, Services or Licensor Materials, including any copy thereof;
      8. access or use the Software, Services or other Licensor Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any IP Right or other right of any third party or that violates any applicable Law;
      9. access or use the Software, Services or other Licensor Materials for purposes of competitive analysis of the Licensor Materials, the development, provision or use of a competing software service or product, or any other purpose that is to the Licensor's detriment or commercial disadvantage; or
      10. otherwise use or access the Software, Services or other Licensor Materials beyond the scope of the authorization granted under this Section 3.1.
  3. Licensee Obligations.
    1. Licensee Systems and Cooperation. Licensee shall at all times during the Term:
      1. set up, maintain, and operate in good repair and in accordance with the Documentation all Licensee Systems on or through which the Services are accessed or used;
      2. provide Licensor Personnel with such access to Licensee Systems as is necessary for Head Licensor and/or Licensor to perform the Services in accordance with the and Documentation; and
      3. provide all cooperation and assistance as Licensor may reasonably request to enable Licensor to exercise its rights and perform its obligations under and in connection with this Agreement.
    2. Effect of Licensee Failure or Delay. Licensor is not responsible or liable for any delay or failure of performance caused in whole or in part by Licensee's delay in performing, or failure to perform, any of its obligations under this Agreement.
    3. Corrective Action and Notice. If Licensee becomes aware of any actual or threatened activity prohibited by Section 3.1, Licensee shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Software, Services and other Licensor Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Licensor of any such actual or threatened activity.
  4. Data Backup. Head Licensor, its Affiliates and third party service providers perform routine data backups. In the event of any loss, alteration, destruction, damage, or corruption of Licensee Data caused by the Licensor Systems or Services, Licensor will, as its sole obligation and liability and as Licensee's sole remedy, use commercially reasonable efforts to restore the Licensee Data from Licensor's then most current backup of such Licensee Data.
  5. Data Privacy and Security.
    1. Information Security Obligations. Head Licensor and Licensor will employ security measures in accordance with applicable Law.
    2. Licensee Control and Responsibility. Licensee has and will retain sole responsibility for: (a) all Licensee Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Licensee or any Authorized User in connection with the Software or Services; (c) Licensee Systems; and (d) all access to and use of the Software, Services and other Licensor Materials directly or indirectly by or through the Licensee Systems, with or without Licensee’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
    3. Access and Security. Licensee shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) protect against any unauthorized access to, or use of, the Software, Services or other Licensor Materials; and (b) control the content and use of Licensee Data, including the uploading or other provision of Licensee Data for Processing.
  6. Fees and Payment.
    1. Fees.
      1. Licensee shall pay Licensor the fees set forth in Schedule B (the "Fees") in accordance with the terms set out on Schedule B. All Fees and other amounts payable by Licensee under this Agreement are exclusive of Taxes and similar assessments.
      2. In the event any Taxes are levied or assessed against Licensor, either by direct assessment or by way of a withholding tax requirement on the Licensee as a consequence of the licensing of the Software and/or Services from Licensor to Licensee hereunder, such Taxes shall be for the sole account of the Licensee and be paid by the Licensee. Should Licensor have to pay such taxes, Licensee shall promptly reimburse Licensor in full for any taxes so paid by Licensor upon receipt by Licensee of a Licensor invoice, together with a copy of the tax assessment, thereof. Notwithstanding the above, if the Licensee is required by law to withhold such taxes on payment to Licensor, Licensee shall gross up the fee so that the net payment to Licensor is equal to the fee shown in Schedule B.
    2. Late Payment. If Licensee fails to make any payment when due, then, in addition to all other remedies that may be available:
      1. Licensor may charge interest on the past due amount at the rate of 1.5% per month or 18% per annum, calculated daily and compounded monthly;
      2. Licensee shall reimburse Licensor for all costs incurred by Licensor in collecting any late payments or interest, including legal fees on a full indemnity basis, court costs, and collection agency fees; and
      3. if such failure continues for 10 days following written notice thereof, Licensor may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Licensee or any other Person by reason of such suspension.
    3. No Deductions or Set-Offs. All amounts payable to Licensor under this Agreement shall be paid by Licensee to Licensor in full without any set-off, recoupment, counterclaim, deduction, debit, or withholding for any reason.
    4. Reimbursable Expenses. Licensee shall reimburse Licensor for any out-of-pocket expenses incurred by Licensor in connection with performing the Services (the "Reimbursable Expenses").
  7. Intellectual Property Rights.
    1. Licensor Materials. All right, title, and interest in and to the Software, Services and Licensor Materials, including all IP Rights therein, are and will remain with Head Licensor, Licensor and their Affiliates. Licensee acknowledges and agrees that it has no right, license, or authorization with respect to any of the Licensor Materials or Third-Party Materials (including any IP Rights therein). All other rights in and to the Licensor Materials and Third-Party Materials are expressly reserved by Head Licensor, Licensor, their Affiliates and their licensors. In furtherance of the foregoing, Licensee hereby unconditionally and irrevocably grants to Head Licensor and Licensor an assignment of all right, title, and interest in and to the Resultant Data, including all IP Rights relating thereto.
    2. Licensee Data. As between Licensee and Licensor, Licensee is and will remain the sole and exclusive owner of all right, title and interest in and to all Licensee Data, including all IP Rights relating thereto, subject to the rights and permissions granted in Section 8.3.
    3. Consent to Use Licensee Data. Licensee hereby irrevocably grants all such rights and permissions in or relating to Licensee Data as are necessary or useful to Head Licensor, Licensor, their Affiliates and the Licensor Personnel to enforce this Agreement and exercise Licensor's, its Affiliates, and the Licensor Personnel's rights and perform Licensor's and the Licensor Personnel's obligations hereunder. Without limiting the foregoing, Licensee confirms that Licensor shall have access to all Licensee Data and may make use of such Licensee Data in the course of serving as the medical clinic and/or physician of Licensee.
  8. Confidentiality.
    1. Confidential Information. In connection with this Agreement each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 9.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of, or relating to, the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, Licensees, and pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential". Without limiting the foregoing, all Licensor Materials and the financial terms of this Agreement are the Confidential Information of Licensor.
    2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records:
      1. was rightfully known to the Receiving Party without restriction on use or disclosure before such information's being disclosed or made available to the Receiving Party in connection with this Agreement;
      2. was or becomes generally known by the public other than by non-compliance with this Agreement by the Receiving Party or any of its Representatives;
      3. was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
      4. was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
    3. Protection of Confidential Information. Subject to 9.4, as a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for 5 years:
      1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
      2. except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; and
      3. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care.
    4. Compelled Disclosures. Notwithstanding Section 9.3, (a) the Receiving Party will comply with all of its obligations under Law with respect to any Confidential Information and (b) may disclose any Confidential Information to the extent it is compelled to do so under applicable Law, provided that, to the extent permitted by applicable Law, the Receiving Party shall notify the Disclosing Party of such compelled disclosure and provide the Disclosing Party, at the Disclosing Party's sole cost and expense, with reasonable assistance in opposing such disclosure or seeking an injunction, a protective order, or other limitations on disclosure.
  9. Term and Termination.
    1. Initial Term. The initial term of this Agreement commences as of the Effective Date and will, unless terminated earlier under any of this Agreement's express provisions, continue for the term set out on Schedule B (the “Term”).
    2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
      1. Licensor may terminate this Agreement, effective on written notice to Licensee, if Licensee:
        1. fails to pay any amount when due hereunder, and such failure continues more than 10 days after Licensor's delivery of written notice thereof; or
        2. breaches any of its obligations under Section 3.1 (Use Restrictions) or Section 9 (Confidentiality).
      2. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach:
      3. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party:
        1. fails to pay its debts generally as they become due or otherwise acknowledges its insolvency;
        2. makes a general assignment for the benefit of its creditors;
        3. has issued against it a bankruptcy order or otherwise becomes subject to any involuntary proceeding under any domestic or foreign bankruptcy law; or
        4. commences or institutes any application, proceeding, or other action under any Law relating to bankruptcy, insolvency, winding-up, reorganization, administration, plan of arrangement, relief or protection of debtors, compromise of debts, or similar Laws, seeking: (A) to have an order for relief entered with respect to it; (B) to adjudicate it as bankrupt or insolvent; (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, compromise, arrangement, stay of proceedings of creditors generally, or other relief with respect to it or its assets or debts; or (D) appointment of a receiver, interim receiver, receiver and manager, trustee, custodian, conservator, or other similar official for it or for all or any substantial part of its assets; and
      4. notwithstanding anything else contained in this Agreement, if the Head License Agreement is terminated or Licensor otherwise ceases to have the right to sub-license the Software or Services, this Agreement will automatically terminate.
    3. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
      1. All rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate;
      2. Subject to Section 10.3(c), Licensor shall immediately cease all use of any Licensee Data or Licensee's Confidential Information and:
        1. promptly return to Licensee, or at Licensee's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Licensee Data or Licensee's Confidential Information; and
        2. permanently erase all Licensee Data and Licensee's Confidential Information from the Licensor Systems, provided that, for clarity, Licensor's obligations under this Section 10.4(b) do not apply to any Resultant Data;
      3. Notwithstanding Section 10.3(b), Licensor may retain and/or transfer any Licensee Data required for continuity of patient care or as contemplated under any applicable healthcare Law.
      4. Licensee shall immediately cease all use of all Software, Services or other Licensor Materials and:
        1. promptly return to Licensor, or at Licensor's written request destroy, all documents and tangible materials containing, reflecting, incorporating. or based on any Licensor Materials or Licensor's Confidential Information;
        2. permanently erase all Software, Licensor Materials and Licensor's Confidential Information from all computer systems that Licensee directly or indirectly controls; and
        3. if requested by Licensor, certify to Licensor in a certificate of a senior officer of Licensee that it has complied with the requirements of this Section 10.4(c);
      5. notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control:
        1. the Receiving Party may retain the Disclosing Party's Confidential Information in its then current state and solely to the extent and for so long as required by applicable Law;
        2. Head Licensor and Licensor may retain Licensee Data in its then current state and solely to the extent and for so long as required by applicable Law;
        3. Head Licensor or Licensor may also retain Licensee Data in the backups, archives, and disaster recovery systems of Head Licensor, Licensor and/or their Affiliates and licensors until such Licensee Data is deleted in the ordinary course; and
        4. all information and materials described in this Section 10.4(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
      6. Head Licensor or Licensor may disable all Licensee and Authorized User access to the Services and Licensor Materials; and
      7. if Licensor terminates this Agreement under Section 10.2(a) or Section 10.2(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable (the “Termination Payment”) and Licensee shall pay such Termination Payment, together with all previously accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Licensor's invoice therefor.
    4. Survival. The rights and obligations of the parties set forth in this Section 10.5, and Section 3.1 (Use Restrictions), Section 8 (Intellectual Property Rights), Section 9 (Confidentiality) Section 10.4 (Effect of Termination or Expiration), Section 11 (Representations and Warranties), Section 12 (Indemnification), Section 13 (Limitation of Liability), Section 14 (Audit), Section 15 (Miscellaneous) and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
  10. Representations and Warranties.
    1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
      1. it is a legal entity and validly existing in the jurisdiction of its formation;
      2. it has all required power and capacity to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
      3. the execution of this Agreement by its Representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action; and
      4. when executed and delivered by each of the Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
    2. Additional Licensor Representations, Warranties, and Covenants. Licensor represents, warrants, and covenants to Licensee that it or Head Licensor will perform the Services using in a professional and workmanlike manner.
    3. Additional Licensee Representations, Warranties, and Covenants. Licensee represents, warrants, and covenants to Licensor that Licensee owns or otherwise has, and will have, the necessary rights and consents in and relating to the Licensee Data so that, as received by Licensor and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any IP Rights, or any privacy or other rights of any third party or violate any applicable Law.
    4. DISCLAIMER OF CONDITIONS AND WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, SECTION 11.2, AND SECTION 11.3, ALL SOFTWARE, SERVICES AND LICENSOR MATERIALS ARE PROVIDED "AS IS" AND LICENSOR HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SOFTWARE, SERVICES OR LICENSOR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (a) MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (c) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION; OR (d) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
  11. Indemnification.
    1. Licensor Indemnification. Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, disbursements, and charges (collectively, “Losses”) incurred by Licensee arising out of or relating to any claim, action, cause of action, demand, lawsuit, or proceeding (collectively “Action”) by a third party (other than an Affiliate of Licensee) to the extent that such Losses arise from any allegation in such Action that Licensee's use of the Services (excluding Licensee Data and Third-Party Materials) in compliance with this Agreement (including the Documentation) infringes an IP Right protected in the Territory. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
      1. access to, or use of, the Software, Services or Licensor Materials in combination with any hardware, system, software, network, or other materials or service not provided or authorized in writing by Licensor;
      2. modification of the Services or Licensor Materials other than: (i) by or on behalf of Licensor; or (ii) with Licensor's written approval in accordance with Licensor's written specification; or
      3. failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Licensee by or on behalf of Licensor.
    2. Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and permitted assigns (each, a "Licensor Indemnitee") from and against any and all Losses incurred by such Licensor Indemnitee in connection with any Action by a third party (other than an Affiliate of a Licensor Indemnitee) to the extent that such Losses arise out of or relate to any:
      1. Licensee Data, including any Processing of Licensee Data by or on behalf of Licensor in accordance with this Agreement;
      2. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Licensee or any Authorized User, including Licensor's compliance with any specifications or directions provided by or on behalf of Licensee or any Authorized User to the extent prepared without any contribution by Licensor;
      3. allegation of facts that, if true, would constitute Licensee's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
      4. negligence or more culpable act or omission (including recklessness or willful misconduct) by Licensee, any Authorized User or any third party on behalf of Licensee or any Authorized User, in connection with this Agreement.
    3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified under Section 12.1 or Section 12.2, as the case may be. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defence and investigation of such Action and shall employ counsel to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12.3 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
    4. Mitigation. If any of the Software, Services or other Licensor Materials are, or in Head Licensor or Licensor's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party IP Right (including if Licensor ceases to be entitled to use any Licensor Materials held by Licensor’s Affiliates), or if Licensee's or any Authorized User's use of the Software, Services or Licensor Materials is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense:
      1. obtain the right for Licensee to continue to use the Software, Services and Licensor Materials materially as contemplated by this Agreement;
      2. modify or replace the Software, Services and Licensor Materials, in whole or in part, to seek to make the Software, Services and Licensor Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Software, Services and Licensor Materials, as applicable, under this Agreement; or
      3. by written notice to Licensee, terminate this Agreement with respect to all or part of the Software, Services and Licensor Materials, and require Licensee to immediately cease any use of the Software, Services and Licensor Materials or any specified part or feature thereof.

THIS SECTION 12 SETS FORTH LICENSEE'S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND LICENSOR MATERIALS) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD PARTY IP RIGHT.

  1. Limitations of Liability.
    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL LICENSOR OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE LICENSORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA; (d) BREACH OF DATA OR SYSTEM SECURITY; OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE, OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LICENSOR AND ITS AFFILIATES, LICENSORS, SERVICE LICENSORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE FEES PAID TO LICENSOR BY LICENSEE IN THE PRECEDING 3 MONTHS THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  2. Audit Rights
    1. Audit Procedure. Head Licensor, Licensor or their nominee (including their accountants and auditors) may, in their sole discretion, inspect and audit Licensee’s use of the Software and Services at any time during the Term and for 1 year following the termination or earlier expiration of this Agreement. Licensee shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of Head Licensor or Licensor with respect to such audit.
    2. Cost and Results of Audit. If the audit determines that Licensee’s use of the Software and Services exceeded the usage permitted or reported under this Agreement (as contemplated in more detail in Schedule B), Licensee shall pay to Licensor (a) all amounts due for such excess use of the Software and Services, plus interest on such amounts, as calculated under Section 7.2(a) and (b) all costs incurred by Head Licensor or Licensor in conducting the audit. Licensee shall make all payments required under this Section 14.2 within 10 days of the date of written notification of the audit results.
  3. Miscellaneous.
    1. Further Assurances. Each Party shall, upon the reasonable request, of the other Party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
    2. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
    3. Public Announcements. Either Party shall be permitted to confirm to third parties that it is in business with the other (provided that neither Party is disparaging in its comments in respect of the other). Without limiting the foregoing, Licensor may, include Licensee's name and/or other indicia in its lists of Licensor's current or former Licensees of Licensor in promotional and marketing materials.
    4. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement shall be in writing and shall be deemed to have been given (a) if delivered by hand, when delivered (with written confirmation of receipt); (b) if sent by a nationally recognized overnight courier (receipt requested), when received by the addressee; or (c) if sent by email, on the day a return email is received from the recipient (which email cannot be a ‘bounce-back email’). Such communications must be sent to the respective Parties at the last known addresses for such Party.
    5. Interpretation. For purposes of this Agreement: (a) the words "include", "includes", and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein", "hereof", "hereby", "hereto", and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. Unless otherwise stated, all dollar amounts referred to in this Agreement are stated in United States currency.
    6. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
    7. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
    8. Assignment. Licensee may not assign this Agreement, or any of its rights or obligations under this Agreement, without Licensor's prior written consent. Licensor may assign this Agreement, or any of its rights or obligations under this Agreement, without Licensee’s prior written consent.
    9. Successors and Assigns. This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective permitted successors and permitted assigns.
    10. Amendments and Modifications. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto.
    11. Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    12. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    13. Governing Law. This Agreement and all exhibits and schedules attached hereto and all matters arising out of or relating to this Agreement are governed by and construed in accordance with the Laws of the Province of Alberta and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Alberta or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Alberta.
    14. Binding Arbitration. Binding arbitration will be used to settle any claim, dispute or controversy of any kind (whether in contract, tort or otherwise) in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, which arbitration will be conducted in accordance with the below.
      1. Arbitration shall be conducted pursuant to the rules of the Canadian Arbitration Association which are in effect on the date a dispute is submitted to the Canadian Arbitration Association. Hearing will take place in the city of Edmonton, Alberta, Canada.
      2. In no case shall Licensee have the right to go to court or have a jury trial. Licensee will not have the right to engage in pre-trial discovery except as provided in the Canadian Arbitration Association rules; you will not have the right to participate as a representative or member of any class of claimants pertaining to any claim subject to arbitration; the arbitrator’s decision will be final and binding with limited rights of appeal.
      3. The prevailing Party shall be reimbursed by the other Party for any and all costs associated with the dispute arbitration, including attorney fees, collection fees, investigation fees, travel expenses.
    15. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 9 (Confidentiality) or, in the case of Licensee, Section 3.1 (Use Restrictions), Section 4.3 (Corrective Action and Notice), or Section 6.2 (Licensee Control and Responsibility) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
    16. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

SCHEDULE A

SOFTWARE AND SERVICES

1. Summary of Software and Services:

Software

All software necessary for the provision of the My Viva Plan Software as a Service offering.

Services

The My Viva Plan Software as a Service offering.

SCHEDULE B

FEES, TERM AND TERRITORY

  1. Fees

There will be no Fees or Taxes payable by Licensee under this Agreement.

  1. Term

The term of the Agreement is to begin on the Effective Date and carry on for a period of one year (the “Initial Term”) unless terminated upon breach of this Agreement.

This Agreement will automatically renew for additional successive one year terms unless earlier terminated under this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least 60 days before the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").

  1. Territory and Exclusivity

The territory in which the Licensee is permitted to use the Software, Services and other Licensor Materials is province or state in which the Licensor clinic is located (the “Territory”).

Licensee’s use of the Software, Services and other Licensor Materials within the Territory is to be non-exclusive.