Terms and Conditions for Providers
END USER LICENSE AGREEMENT and TERMS OF USE
For
MYRXX.COM
This End User License Agreement and Terms of Use (together, the “Agreement”) govern your access to and use of the Site (defined below) and all pages contained therein. By accessing or using the Site, you are agreeing to the following terms and concluding a legally binding contract with Licensor (defined below). Do not access or use the Site if you are unwilling or unable to be bound by the terms.
1. DEFINITIONS
a. Parties
i. “Licensor” or “we” shall mean MYRXX.COM INC.
ii. “Health Advisor” or “you” shall mean being a health professional providing medical and/or health advice and/or prescribing exercise regimens by prescription(s) to such party’s Patients through the Site.
b. “Patients” shall mean individuals for whom the Health Advisor is providing health advice and/or prescribed exercise regimens.
c. “Agreement” shall refer to the most current version of this End User License Agreement and Terms of Use posted on the Site.
d. “Service” shall mean the Site, including all intellectual property and other rights in, on or related to the Site, including but not limited to the on-line software known as “My Prescribed Exercises” and/or “MYRXX” as administered through the Site, for use in the organization, administration and monitoring of exercise regimens that are either prescribed or recommended (as the case may be) by a health professional and fulfilled by the Patient Client.
e. “Site” shall mean the internet website www.myrxx.com
2. CHANGES TO THE TERMS
We may modify the terms of this Agreement from time to time. When changes are made, we will notify you by making the revised version available on the Site, and will indicate at the top of this page the date that revisions were last made. You should revisit the Agreement on a regular basis as revised versions will be binding on you. Any such modification will be effective upon our posting of new terms. You understand and agree that your continued access to or use of the Service after any posted modification to the terms indicates your acceptance of the modification.
3. LICENSE AND SERVICE DESCRIPTION
a. In consideration of the payment of the purchase price and all relevant fees for the right to use the Service, as separately set out in the Health Advisor’s application and registration process (such payment terms constituting a material term of this agreement), and the Health Advisor’s compliance with all of the terms of this Agreement, the Licensor grants the Health Advisor a non-exclusive, non-transferable license to access and use the Service and the Site, solely for authorized purposes as a Health Advisor to provide a prescription and/or health advice to Patients and to communicate directly with the Patients regarding same. The Licensor may modify the Service in non-material respects at any time, provided that the Service, as so modified, performs substantially the same functions at substantially the same service level as described herein and on the Site.
b. As soon as, and for so long as, the Health Advisor accesses the Service, the Health Advisor acknowledges that he or she has read this Agreement, understands it and agrees to be bound by it. If the Health Advisor does not agree to all of the terms of this Agreement, the Health Advisor shall not access or otherwise use the Service and/or the Site, and no license shall have been granted by Licensor.
c. As further outlined in the subscription information at time of sign-up, you understand that should we discontinue our business for any reason whatsoever, you shall be entitled to a refund only of the fee for the month in which we do so cease business pro-rated to the number of days remaining in that month and total usage for that month. Refunds shall be made within ninety (90) days of ceasing business.
4. RESTRICTIONS
Health Advisor shall not use, copy, modify and/or transfer the Service to others (including unlicensed users), in whole or in part, except as expressly provided in this Agreement. The Service includes and/or comprises proprietary concepts, trade secrets and intellectual property (including copyrights) of the Licensor, and the Health Advisor shall not, at any time during the term of this Agreement or after, reverse engineer, disassemble, decompile and/or translate the Service, or otherwise attempt to derive its source code or the source code through which the Service is accessed, or authorize any third-party to do any of the foregoing for the Health Advisor’s own use or benefit, or the use or benefit of any third party. The license granted hereunder is granted only to the Health Advisor, and any attempt by the Health Advisor to transfer any of the rights, duties and/or obligations hereunder shall immediately terminate this Agreement and shall be void. The Health Advisor shall not rent, lease, loan, resell and/or distribute the Service or any part thereof in any way including, but not limited to, making the Service or Site available to others via shared access to a single computer, a computer network, or by sharing access information, which includes the Health Advisor's Username(s) and Password(s). The Health Advisor is responsible for all activity occurring under and via the Health Advisor’s account with the Licensor. The Health Advisor shall comply with the Service Use Policy set out in Schedule “A” hereto, and such Service Use Policy is a material term of this Agreement.
5. OWNERSHIP
The Service and all content and code constituting the Site is the exclusive property of the Licensor, and subject to applicable patent, copyright, trade-mark and other intellectual property statutes, and also subject to all common law and other rights, including trade secrets. The Service and Site, and the Licensor’s ownership thereof, includes any and all developments, improvements, upgrades and other amendments, whether generated by the Licensor or any third party, including on the basis of suggestions, feedback, comments, ideas and other input from the Health Advisor. The Health Advisor shall have no right, interest or title in any such material. The Service is licensed, not sold, to the Health Advisor for use only under the terms of this Agreement, and the Licensor reserves all rights not expressly granted to the Patient hereunder. The Health Advisor shall not challenge the Licensor’s ownership of the Service and its components in any manner whatsoever. Further, the Health Advisor acknowledges that all non-statutory rights of the Licensor in the proprietary concepts and trade secrets underlying the Service are the exclusive property of the Licensor and are confidential. The Health Advisor shall not disclose or use such confidential information for its own benefit or the benefit of any third party. The Licensor does not claim any ownership of the data or other material supplied specifically by the Health Advisor in the use of the Service. Each party to this Agreement accepts the Data Protection and Privacy Policy set out in Schedule “B” hereto, which is a material term of this Agreement. “MY PRESCRIBED EXERCISES,” “NO MORE EXCUSES,” “MYRXX” and the “MYRXX logo” are trademarks owned exclusively by the Licensor and may not be used by Health Advisor or otherwise without a separate license in writing executed by the Licensor.
6. TERM AND TERMINATION
a. This Agreement and the license granted herein will expire at the end of the last day of the use by the Health Advisor. In the event of expiration or earlier termination of the term hereof for any reason whatsoever, Sections 3, 4, 5, 7, 8 and 9 of this Agreement, and any and all sections hereof that by their context must survive, shall survive in perpetuity.
b. This Agreement will terminate immediately upon the breach by the Health Advisor of any term of this Agreement, including any failure to pay the agreed fees for the right to use the Service, as separately set out in the Health Advisor’s application and registration process and on the terms set out therein. Further, in the event of the termination or expiration of any agreement between the Licensor and a third-party content provider or licensor of all or a part of the Service, the Health Advisor's right to access and use the Service may also terminate or expire without prior notice to the Health Advisor. The Health Advisor may terminate this Agreement at any time by notifying the Licensor in writing. Immediately upon Licensor’s receipt of such notice of termination from the Health Advisor, this license and the Health Advisor's access to the Service shall cease. In the case of any termination, no refund of any amount prepaid will be provided.
7. LICENSOR AND THIRD PARTY CONTENT
The Health Advisor acknowledges and agrees that: (a) the Licensor may, from time to time, elect to update the Service and/or the Site, but the Licensor does not warrant or guarantee that the Service or any element thereof or other information accessed through the Licensor's website(s) will be updated at any time during the term of this Agreement; and (b) the Licensor does not recommend, warrant or guarantee the use or performance of any third-party product or service described in the Service or elsewhere in the Licensor's website(s) (including the advice given or prescription(s) prescribed by the Health Advisor), nor is the Licensor responsible for malfunction of such products or services due to errors in the Service, the Health Advisor's negligence or otherwise. The Health Advisor agrees to seek additional information on any third-party products or services from the respective third party. The Health Advisor covenants that it will use the Service only as intended, and acknowledges that the Service is not intended to be used as a substitute for the exercise of professional judgment.
8. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS PROVIDED \"AS IS\" AND “AS AVAILABLE” AND THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES. THE LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, FOR THE SERVICE AND ANY OTHER MATERIAL PROVIDED TO HEALTH ADVISOR AND PATIENT BY THE LICENSOR (INCLUDING INFORMATION PROVIDED VIA THE PATIENT’S HEALTH ADVISOR), AND INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THE LICENSOR DOES NOT WARRANT THAT THE SERVICE IS ERROR-FREE, THAT ITS OPERATION WILL BE UNINTERRUPTED, OR THAT THE SERVICE WILL MEET ANY PARTICULAR PATIENT OR USER REQUIREMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE LICENSOR MAKES NO WARRANTY, AND PROVIDES NO ASSURANCE, THAT THE SERVICE WILL MEET CERTIFICATION REQUIREMENTS OF ANY REGULATORY AUTHORITY OR OTHER ASSOCIATION OR LICENSING AGENCY, WITHIN OR OUTSIDE OF CANADA. LICENSOR FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SATISFACTION OF ANY GOVERNMENT REGULATIONS REQUIRING DISCLSOURE OF INFORMATION ON PRESCRIPTION DRUG PRODUCTS OR THE APPROVAL OR COMPLIANCE OF ANY SOFTWARE TOOLS WITH REGARD TO THE CONTENT CONTAINED ON THE SITE.
9. LIMITATION OF LIABILITY
a. The use of the Site and Service is at your own risk.
b. When using the Site and Service, information will be transmitted over a medium that may be beyond the control and jurisdiction of Licensor and its suppliers. Accordingly, Licensor assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of the Site or Service.
c. Under no circumstances shall Licensor be liable for direct, indirect, incidental, special, consequential or exemplary damages (even if Licensor has been advised of the possibility of such damages), resulting from any aspect of your use of the Site or the Service, whether the damages arise from use or misuse of the Site or the service, from inability to use the Site or the Service, from the interruption, suspension, modification, alteration, or termination of the Site or the Service or from your interaction with other users or individuals who you came in contact with through the Site. Such limitation shall also apply with respect to damages incurred by reason of other services or products received through or advertised in connection with the Site or the Service or any links on the Site, as well as by reason of any information or advice received through or advertised in connection with the Site or the Service or any links on the Site. These limitations shall apply to the fullest extent permitted by law. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitation may not apply to you.
d. We are under no obligation to enforce the terms of this Agreement on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Agreement, we reserve the right to investigate and take appropriate action at our sole discretion.
e. The Service may include links to other websites or applications. We do not control or endorse any such third party sites. You agree that we are not responsible for the availability or contents of such third party sites. Some of the services made available through the Service are provided in connection with third parties and subject to additional terms posted here which are incorporated herein by reference.
10. HEALTH ADVISOR’S REPRESENTATIONS, WARRANTIES AND OBLIGATIONS
a. Health Advisor represents and warrants that he, she or it is a duly registered and licensed health care provider and is legally licensed to provide prescriptions and/or advice (as the case may be) to Patients in accordance with the laws of the jurisdiction of the Health Advisor and the jurisdiction(s) of the Patients.
b. Health Advisor represents and warrants that it carries all required malpractice and third party liability insurance and that such insurance covers the Health Advisor’s use of the Site and the Service; Health Advisor understands that the Licensor takes no responsibility whatsoever for the accuracy of the information provided by Health Advisor to Patient(s), and that the Health Advisor and its Patient(s) may look only to the laws of the jurisdiction of the Health Advisor and the insurance policy/policies of the Health Advisor for satisfaction of any claim or liability of any nature whatsoever relating to the relationship between Health Advisor and its Patient(s) and the advice and/or services of any nature provided by the Health Advisor through the Site and/or the Service.
c. If the Health Advisor is a partnership or corporation, the Health Advisor represents and warrants that such entity is duly authorized in the Health Advisor’s jurisdiction, and that the Health Advisor’s representations, warranties and obligations as set out in this Agreement and all Schedules hereto, including all related documentation completed on the Site, are the joint and several responsibility of such entity and its individual member(s), shareholder(s), partner(s) and/or director(s) as the case may be, including such entity’s individual authorized users.
d. Health Advisor is solely responsible for maintaining the confidentiality of its password(s). In the event of a breach of security through Health Advisor’s account, Health Advisor will be liable for unauthorized use unless and until Health Advisor notifies Licensor at support@myrxx.com. Health Advisor may change its password at any time by entering the “My Account” section of the Site. Health Advisor is solely responsible for obtaining access to the Site and understand that access may involve third party fees (such as internet service provider or airtime charges), for which Health Advisor is solely responsible.
e. Health Advisor shall promptly inform Licensor of any changes to Health Advisor’s membership registration information and/or billing information.
f. Health Advisor shall comply with all intellectual property and other proprietary rights laws, including but not limited to federal and international copyright and trademark laws and regulations.
g. Health Advisor agrees to comply fully with the Service Use Policy and Data Protection and Privacy Policy set out in Schedules “A” and “B” hereto, and without limiting the generality of those Policies, agrees not to:
i. post its email address, web address or other personal contact information except as specifically directed within the Service;
ii. submit, publish or display on the Site any defamatory, abusive, obscene, threatening, racially or sexually offensive or illegal material, or any material that infringes or violates another party’s rights;
iii. use a false email address, impersonate any person or entity, utilize more than one screen name or otherwise mislead as to the origin of any content;
iv. use the Site for its own advertising or for selling goods or services or for other commercial purposes, except as specifically authorized on the Site;
v. solicit other clients or members or send any other communication, including unsolicited email, to other users of the Site and/or Service except as specifically authorized;
vi. harass, abuse or threaten other users, clients or members of Licensor, Site and/or Service, including Licensor itself and all of its representatives;
vii. republish any information found in or on the Site without the express, prior, written approval of the Licensor.
h. Health Advisor agrees that with respect to all material communicated through the Site and/or Service, Health Advisor hereby grants Licensor a royalty-free, non-exclusive, world-wide, non-terminable, perpetual right and licence to post, display, exhibit, reproduce, mechanically reproduce, encode, distribute, transmit, retransmit, make available digitally for download, broadcast, rebroadcast and webcast through ay use of internet-based protocols, distribute in any media through any electronic, wireless and/or broadband means (whether now known or hereafter invented), electronically publish and electrically transcript such material for purposes of administering the Site and the Service; however, for purposes of clarity, materials that are communicated directly between the Health Advisor and Patient(s) are subject to confidentiality and will not be made publicly available by the Licensor. Other materials, such as those posted or exchanged on the non-confidential portions of the Site are subject to the full breadth of the licence set out in this Section 9(d)(v).
11. EXPORT LAW
The Service is subject to Canadian and United States of America export control laws and may be subject to export or import regulations in other countries. Unless in compliance with applicable law and specifically authorized in writing by the Licensor prior to any Service access, the Health Advisor shall not export the Service under any circumstances whatsoever. In any case, the Health Advisor will indemnify and hold the Licensor harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including reasonable lawyers’ fees) arising from, or relating to, any breach by the Health Advisor of the Health Advisor's obligations under this Section.
12. GOVERNING LAW, JURISDICTION AND VENUE
This Agreement shall for all purposes be governed by and interpreted in accordance with (a) for residents of Canada, the laws of the Province of Ontario and the federal laws of Canada applicable therein; and (b) for residents of the United States of America, the laws of the State of California and the federal laws of the United States of America. Any legal suit, action or proceeding arising out of, or relating to this Agreement, shall be commenced in an Ontario court of proper jurisdiction, and each party hereto irrevocably attorns to the personal and exclusive jurisdiction and venue of any such court in any such suit, action or proceeding and waives any right it may have to transfer or change the venue of any such suit, action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
13. WAIVER
No failure to enforce any term of this Agreement shall constitute a waiver of such term in the future unless such waiver so provides by its terms.
14. ASSIGNMENT
Neither this Agreement nor any of the Health Advisor's rights or obligations hereunder may be assigned by the Health Advisor in whole or in part without the prior written approval of the Licensor. Any other attempted assignment shall be null and void.
15. SEVERABILITY
If any part of this Agreement is for any reason found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected and same shall remain in effect.
16. ENTIRE AGREEMENT
This Agreement, including its Schedules, is the entire agreement between the Licensor and the Health Advisor with respect to its subject matter, and supersedes and voids any proposal or prior agreement, oral or written, and any other communications between the parties in relation to its subject matter. No waiver, alteration or modification of this Agreement shall be valid unless made in writing and signed by a corporate officer of the Licensor.
AGREED AND EXECUTED ON THE EFFECTIVE DATE SET OUT ABOVE, by clicking I AGREE.
SCHEDULE “A”
TO “MYRXX” END USER LICENSE AGREEMENT and TERMS OF USE
SERVICE USE POLICY
The Health Advisor shall use the Service only for its internal business and professional activities, and as intended by the Licensor. The Health Advisor shall not use the Service for any illegal purpose whatsoever. The Health Advisor shall be solely liable for any infringing, criminal, tortuous, negligent or other damaging or illegal activity engaged in by it in the use of the Service.
Without limiting the generality of the previous paragraph, the Health Advisor shall not, in connection with the use of the Service:
(a) infringe on the intellectual property rights of any third party, including the Licensor;
(b) violate the terms of any applicable software or other licensing agreements;
(c) compromise the security of the Service in any manner whatsoever;
(d) use the Service to violate the security or integrity of any other system;
(e) impersonate any authorized user(s);
(f) obtain or seek unauthorized access to the Service or any data;
(g) tamper with, hack, modify or otherwise corrupt or circumvent any security or authentication measures;
(h) interfere with the server in any manner whatsoever;
(i) transmit material that includes viruses, time bombs, worms or an other computer programs with the intent of damaging, destroying or in any way impairing the performance of any computer or other hardware;
(j) commit any tortious or other wrongful act, such as posting or transmitting or using the Service in any manner whatsoever in connection with any unlawful, defamatory, threatening, obscene, hateful or otherwise objectionable or actionable material of any kind, including any material that invades the privacy of any person;
(k) engage in or condone or encourage any unlawful conduct under the laws of any jurisdiction, including in the areas of fraud, advertising restrictions, exportation, labelling, gambling and telecommunications;
(l) engage in deceptive on-line marketing;
(m) intercept, redirect or otherwise interfere with communications intended for other parties;
(n) use the Service to violate any rule, policy or guideline of any other online service provider or interactive service; or
(o) engage in any other activity that the Licensor, in its sole discretion, deems to be inappropriate or an abuse of the Service.
All of the above includes any attempts to do any of the listed actions, and assisting others, or attempting to assist others, in any such activity. The Health Advisor recognizes that it may be subject to civil liabilities, costs, damages, jail terms, fines, penalties and other consequences available at law or otherwise in any jurisdiction as a result of any of the above uses. If the Licensor suspects any of the above activity is being engaged in, it may itself investigate the matter and/or may cooperate fully with any legal investigation.
The Health Advisor is solely responsible for the actual content of the data used in association with the Service, and agrees that all such data shall be truthful, accurate and not misleading.
The Licensor reserves the right, in its sole discretion, to refuse or delete any content or transmission(s) that it deems to violate this Policy.
The Health Advisor’s use of any and all information acquired through its use of the Service is at the Health Advisor’s sole risk.
SCHEDULE “B”
TO “MYRXX” END USER LICENSE AGREEMENT and TERMS OF USE
DATA PROTECTION AND PRIVACY POLICY
The Licensor is governed by the Personal Information and Protection of Electronic Documents Act (Canada) (the “Act”), and this Policy is set out in compliance with the Act, and is a material term of the Agreement.
The Health Advisor acknowledges that the provision and exchange of personal information concerning Health Advisor (specifically the exchange of health information and prescriptions and/or advice as between Health Advisor and Patient(s)), along with the general exchange of health information, is an integral part of the Service and the Health Advisor’s use of the Service.
All personal information and electronic documents provided by the Health Advisor in its use of the Service, in any media, and collected, recorded or used in any way by the Licensor shall be safeguarded by the Licensor in accordance with the Act.
The Licensor collects personal information about its clients, including the Health Advisor and its Patient(s), solely for the purpose of operating and providing the Service. The Licensor does not record, distribute or otherwise use such information for the Licensor’s own marketing and publicity, and the Licensor does not sell or otherwise share such information with any third parties, except its authorized distributors or other agents, and then only for the purpose of operating and providing the Service. The Licensor keeps all such information only for so long as is required to adequately provide the Service.
If the Licensor at any time desires to collect personal information for any other reason than that stated above, or desires to collect “sensitive information” such as information about an individual’s race or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health, sex life, details of any alleged or committed offences or any court proceedings relating thereto, the Licensor shall first obtain the Health Advisor’s, and/or relevant individual’s, explicit consent.
The Health Advisor specifically agrees, however, that it remains the “Data Controller” (as defined in the Act) with respect to all data provided in connection with the use of the Service by the Health Advisor. The Health Advisor is solely liable for any and all of its own compliance with the Act. Furthermore, the Health Advisor is solely responsible for maintaining the confidentiality of health professional/patient communications as between Health Advisor and Patient(s) in accordance not only with the Act, but also with all legislation, rules, guidelines and policies in force in the jurisdiction(s) of the Health Advisor and the Patient(s).
The Health Advisor agrees that the Licensor is authorized to disclose any personal data provided to the Licensor through the Health Advisor’s use of the Service and otherwise under this Agreement in the following circumstances: (a) to any regulatory authority or any other entity empowered to requisition such information from the Licensor under a legal enactment; (b) in the event that the Licensor sells or buys any business or assets, to the prospective seller or buyer of such business or assets, but only to the extent of identifying the Health Advisor generally (registration information); and (c) in the event that the Licensor sells all or substantially all of its assets to a third party purchaser, in which case the personal data held by the Licensor shall be one such transferred asset. All of the above shall be subject to the laws of the jurisdiction(s) of Health Advisor with respect to health professional/patient confidentiality.
The Health Advisor may access all of its personal data supplied to the Licensor and may correct or update such data by contacting the Licensor’s privacy officer, as identified on the Licensor’s web site from time to time.
The Health Advisor is solely responsible for maintaining the confidentiality and security of all usernames, passwords and other account information, and for any results of a failure to do so.
The Licensor will notify the Health Advisor of any and all changes to this Policy by posting such information on the Site, and the Health Advisor agrees to review such information regularly.