These Terms of Use (the “Terms”) are a binding contract between Phoenix Digital Health Inc. and its affiliates (“Phoenix DH”, “we” or “us”) and all users or visitors (each, a “User”, “you” or “your”) to the website at http://www.phoenix.ca and any other website, web or mobile app offered by Phoenix DH on which these Terms are posted (the “Platform”). 

‍

These Terms govern your use of the Platform, as well as the Services and Content (both defined below) offered via the Platform.
‍

Please read these Terms carefully, as they contain important information about limitations of liability and resolution of disputes through arbitration rather than court, except where excluded by applicable law. 

‍

In order to use our Services, you must be at least the age of majority in your jurisdiction of residence and have the capacity to form a legally binding contract with Phoenix DH. 

‍

By browsing the Platform or clicking “I Accept” when you open an Account to subscribe to our Services, you signify your agreement to be bound by these Terms and acknowledge that your Personal Information and/or Personal Health Information will be governed by our Privacy Notice. If you do not agree with these Terms or our Privacy Notice, please do not use our Platform or Services. 

‍

The effective date of these Terms is posted at the top of this page. We may update these Terms from time to time with or without notice, in accordance with applicable law, as described in Section 2 below.  

‍

These Terms may be supplemented by additional terms related to specific Content or Services options we may make available on the Platform (“Additional Terms”). References to these Terms shall include the Terms and any applicable Additional Terms. We will notify you of any Additional Terms and prompt you to review and accept them before you engage with the specific Content or Services option to which they may apply. If there are inconsistencies between these Terms and the Additional Terms, then the Additional Terms will control.

‍

If you have questions about the Platform or our Services, please contact us at support@phoenix.ca.

‍

These Terms are divided into the following sections:

‍

1. Our Platform and Services
  a. Description of the Platform and Services
  b. Messaging System
  c. Accessibility
2. Changes to the Platform, Services or Terms
3. Accounts
  a. Registration
  b. Eligibility and Identity Verification
  c. Location
  d. User Representations and Warranties
  e. Account Login credentials
  f. Account Suspension, Deactivation, or Termination
4. Subscription Terms
  a. Subscription Fee
  b. Renewal and Cancellation
  c. Usage Fees and Refund Policy
  d. Third-Party Payment Processors
  e. Electronic and Other Communications
5. Ownership, Licence for Permitted Use and Prohibited Acts
  a. Ownership
  b. Licence for Permitted Use
  c. Prohibited Acts
6. Additional Terms for App Versions of the Platform
  a. Parties & Third-Party Beneficiaries
  b. Mobile Network
  c. Software Updates
7. Submitting Information to Us
8. Hyperlinks and Third-Party Sites
9. Legal Disclaimers
10. Limitation of Liability
11. Indemnification
12. Dispute Resolution
13. General Terms and Conditions
   a. Relationship of The Parties
   b. Entire Agreement
   c. Force Majeure
   d. Severability
   e. Cumulative Remedies
   f. Waiver
   g. Assignment
   h. Governing Law and Jurisdiction
   i. Enurement
   j. Statutory Rights
   k. Survival
   l. Acknowledgement
   m. Contact Us

‍

1. Our Platform and Services

a. Description of the Platform and Services

‍

Phoenix DH provides a telehealth Platform that connects individuals with licensed independent physicians, pharmacists, nurse practitioners and other regulated healthcare professionals (“Healthcare Professionals”) to receive virtual health and wellness services and products to facilitate continuity of care, including but not limited to:

‍

• healthcare evaluations, prescriptions and other prescribed treatment, treatment monitoring, adherence tracking, care coordination, and preventive health services provided by Healthcare Professionals;
• diagnostics, lab testing and related services provided by qualified third-party labs and other service providers; and 
• pharmaceutical and compounding prescription services provided by licensed pharmacists to fulfill prescriptions provided by licensed Healthcare Professionals after completing healthcare evaluations (collectively or individually, the “Healthcare Services”).

In addition to the above Healthcare Services, Phoenix DH may provide other health or wellness services or products, including connected devices, that are offered directly via the Platform or through our affiliates from time to time (collectively, with the Healthcare Services, the “Services”).

‍

Phoenix DH does not provide Healthcare Services or any other professional services. Phoenix DH is a technology service provider that provides the Platform and facilitates access to independently licensed Healthcare Professionals and other services providers that are qualified to provide Healthcare Services or other professional services. 

‍

By becoming a User, you consent to Healthcare Professionals providing Services through the Platform. Should you elect to fulfill Healthcare Services by a pharmacy partner affiliated with the Platform, your prescription may be transferred to any of the Platform’s licensed pharmacy partners in order to route your prescription in the most efficient available manner.

‍

We may refuse to provide the Platform and/or the Services to any person, or in any jurisdiction, in our discretion.  We may also report to the authorities any verbal or written abuse of any kind (including threats of abuse or retribution) made towards Healthcare Professionals, another User(s), our directors, officers, employees, contractors, or third-party service providers, including for our refusal to provide Services.

‍

b. Messaging System

Communications between Users and Healthcare Professionals are carried out through the messaging system on our Platform. The response rate and message frequency are determined exclusively by the User and the applicable Healthcare Professional. Do not use the messaging system for medical emergencies or anything other than determining the eligibility of a User to receive the Services.

‍

To determine if you are eligible to receive Services, a Healthcare Professional may ask you for additional information, including Personal Information and Personal Health Information (both as defined in our Privacy Notice). All information exchanged between you and a Healthcare Professional though our messaging system is subject to our Privacy Notice.

‍

c. Accessibility

We aim to make the Platform accessible to all. If you have any problems using the Platform or accessing the Content please contact us at support@phoenix.ca.

‍

2. Changes to the Platform, Services or Terms

‍

We may change or update the Platform, our Services or these Terms from time to time as our business evolves, in response to legal development, as new technologies become available, or as we introduce new features, services or products.  We may modify, suspend, discontinue or terminate the Platform and/or the Services, in whole or in part, at any time and for any reason.  

‍

We may periodically revise any aspect of these Terms and change the Subscription Fee (as defined below) and any other fees or pricing for other products or services.  Where required by law, any such change will be effective at least thirty (30) days following either our dispatch of a notice to you or our posting of the amendment on the Platform. If you do not agree to any change to these Terms, you must discontinue using the Platform and our Services.

‍

When we make changes to these Terms, we will revise the “Last Updated” date at the top of the Terms. We will also display a notice on the Platform prompting Users with Accounts and/or subscriptions to review and accept the changes to the Terms. If you do not accept the changes, you will not be able to use the Services and must terminate your subscription. Visitors to the Platform will become subject to the version of the Terms then in effect and should review this page periodically. 

‍

If we make substantive changes to the Terms, then in addition to displaying a notice on the Platform, we may also notify Users by email at the email address associated with your Account. The changes to the Terms will take effect on the date on which they were made or on the date provided in the notice. 

‍

3. Accounts

‍

a. Registration

‍

In order to access the Services, you must open an account through the Platform (your “Account”). You represent that you have provided true, accurate, current, and complete information in your Account and warrant that you will update such information from time to time to keep it accurate, current and complete. We reserve the right to suspend or terminate your Account and your subscription to the Services if any information you provided when you opened your Account or at any time after that proves to be inaccurate, fraudulent, outdated, or incomplete.

‍

b. Eligibility and Identity Verification

‍

To open an Account, you must be at least the age of majority in your jurisdiction of residence, of sound mind, otherwise legally able to be bound by these Terms, and have read and agreed to these Terms and acknowledged the Privacy Notice.

‍

To ensure compliance with applicable laws, we reserve the right, but do not have an obligation to, verify your identity through background checks and other identity verification services at our sole discretion.

‍

c. Location

‍

We operate the Platform and offer Services from Ontario, Canada. Our Services are only made available where they can be legally offered and we do not represent or warrant that any Services or Content is legal for use in any other locations. If you use the Platform, Services or Content from another location, you must comply with all provincial, state, or federal laws applicable in the location from which you access them.

‍

d. User Representations and Warranties

‍

By opening an Account, you represent and warrant to Phoenix DH and acknowledge that Phoenix DH is relying on your representations and warranties that:

‍

1. you are at least the age of majority in your jurisdiction of residence and eligible to receive Healthcare Services; 
2. you are temporarily or permanently resident in a province or territory of Canada where our Services are offered; 
3. you will adhere to these Terms and any Additional Terms;
4. you will not use the Platform to perform a Prohibited Act (as defined in Section 5.c  below); and
5. you will use the Platform solely for your personal and non-commercial use.

e. Account Login credentials

‍

Your Account login credentials will be created at registration. It is vital that you keep your login credentials safe and not share them with anyone. You acknowledge and agree that you are responsible for safeguarding your login credentials and are solely responsible for any actions taken under your Account, whether or not you have authorized such actions.

‍

If you suspect that your login credentials may have been lost, stolen, or compromised, you must notify us immediately by email at support@phoenix.ca.

‍

f. Account Login credentials

‍

We may, at our sole discretion, with or without prior notice to you, and at any time, limit, suspend, deactivate or cancel your Account if we determine or suspect that you have engaged in a Prohibited Act (as defined in Section 5.c below), violated any other provisions of these Terms or applicable law, or failed to pay an overdue invoice within 30 days of receiving our notice that your account is in arrears.

‍

4. Subscription Terms

‍

a. Subscription Fee

‍

In connection with your subscription for our Services, you may be charged a monthly, quarterly, or annual subscription fee (the “Subscription Fee”) as determined by Phoenix from time to time and as set out on the Platform.  In the event of an increase in the Subscription Fee or other material changes to your subscription, we will notify you in advance and ask whether you want to continue your subscription. If you do not agree with such changes, you may choose to cancel your subscription as set out below. 

‍

The Subscription Fee is payable monthly beginning at Account activation and at the beginning of the following applicable billing period after the activation date. If a subscription is cancelled during a pay period, the cancellation shall take effect at the end of the current billing period for a monthly account and you will continue to have access to the Services for the duration of the current billing period. The Subscription Fee is non-refundable, unless required by applicable law.

‍

b. Renewal and Cancellation

‍

Your subscription for our Services will automatically renew on a monthly, quarterly, or annual basis and we will accordingly process the Subscription Fee to your payment method on file upon each such renewal. You may cancel your subscription for Services and/or your Account at any time by sending us an email at support@phoenix.ca, effective at the end of the current billing period. Upon cancellation of your Account, your Personal Information and Personal Health Information will be subject to our data retention and destruction policies outlined in our Privacy Notice

‍

c. Usage Fees and Refund Policy

‍

As noted above, the Subscription Fee for access to our Services is non-refundable, unless required by applicable law.  Upon cancellation of your subscription, you will have access to our Services until the end of the current billing period.

‍

We may, from time to time, offer certain medications, products or features on or through the Platform that are subject to additional usage or purchase costs, including but not limited to prescription medications, and non-prescription health, wellness or cosmetic products. When you agree to purchase such medications, products or features, you agree to pay the amount disclosed at the time of purchase. 

‍

Refunds requests for medications, products or features are determined on a case-by-case basis.  Refunds are generally not issued in situations involving, but not limited to:  (i) lack of effectiveness of medications or products; (ii) incorrect shipping information; (iii) requests made more than 14 days after the last tracking update; or (iv) temperature-controlled medications.

‍

All refund requests for medications, products and features should be submitted to our Customer Support team at support@phoenix.ca. If your refund request relates to a medication prescribed through the Platform, your request will be reviewed by a pharmacy manager, medical director or their delegate, as appropriate. For safety reasons, delivered medications may only be returned for destruction.

‍

d. Third-Party Payment Processors

‍

As set out in the Privacy Notice, Phoenix DH does not collect or store your payment information. We use a third-party payment processor to automatically process your Subscription Fee using your chosen payment method until you cancel your subscription for the Services and to process usage or purchase costs for any additional products or features. All payment transactions are subject to the third-party payment processor’s terms of use and privacy policy. Please see more information regarding these service providers. We will take steps to rectify any payment processing errors that are brought to our attention. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payment.

‍

e. Electronic and Other Communications

‍

By subscribing to our Services, you acknowledge and agree that an integral part of our continuity of care Services includes ongoing engagement, monitoring, and follow-up by electronic means or phone.

‍

By opening an Account, you acknowledge and agree that we may contact you electronically or by phone for any purpose directly related to the provision of Services to you, and your or our legal rights and obligations, such as: (i) providing you with information you requested from us or information we must send to you; (ii) questions, reminders, notifications related to your use of the Services or your Account; (iii) operational communications about your Account or your subscription to our Services; (iv) notifications of changes to our Services, the Platform, the Privacy Notice, or these Terms; and (v)  any other notifications and disclosures required by law.

‍

As described in our Privacy Notice, marketing and promotional electronic messages are sent in accordance with applicable anti-spam laws.  You can unsubscribe from marketing and promotional electronic messages by clicking the “unsubscribe” link in emails or by replying “STOP” to text messages. You can ask to be added to our internal “do not call” list if you do not wish to receive unsolicited telemarketing calls from us. Even if you unsubscribe from marketing and promotional electronic messages and/or ask to be added to our internal do not call list, in accordance with applicable law, we may still contact you via these communication channels in order to provide Services you have requested or regarding transactional issues related to your Account or subscription, as noted above. 

‍

3. Ownership, Licence for Permitted Use and Prohibited Acts

‍

a. Ownership

‍

Phoenix DH (or its licensors) owns the right, title, and interest in and to Platform, and all text, data, statistics, images, graphics, documents, forms, guidelines, video, audio or other multimedia content, software, or other information or material provided on the Platform (the “Content”), and the intellectual property rights in each of them. 

‍

Nothing in these Terms grants you any rights, title, or interest in the Platform or the Content, other than as explicitly provided below. Except as expressly provided under these Terms, we have not and do not grant you a licence or any other rights of any type under any patents, know-how, copyrights, trade secrets, trademarks or other intellectual property that we own, control or license.  You agree not to take any action that interferes, in any manner, with our intellectual property rights with respect to the Platform and Content. All trademarks, service marks, logos, trade names and any other proprietary designations of Phoenix DH used in/on/with any Content on the Platform are common law or registered trademarks of Phoenix DH.  Any other trademarks, service marks, logos, trade names and any other proprietary designations used in/on/with any Content or the Platform are owned by or operated under licence from the respective third parties. You acknowledge that we may seek immediate injunctive relief, in addition to any other remedies available to us, if you violate this section of the Terms. 

‍

To the extent our intellectual property rights noted above include any open-source software, the restrictions in this section only apply when and to the extent that they do not conflict with any terms of the applicable open-source software license(s). 

‍

b. Licence for Permitted use

‍

Subject to these Terms, Phoenix DH hereby grants you a non-exclusive, non-transferable, revocable, non-sublicensable, and limited licence to use the Platform solely for your personal, non-commercial use (the “Licence”). This Licence does not transfer Phoenix DH’s or its licensors’ right, title, and interest in the Platform or the Content, or any intellectual property rights, from Phoenix DH or its licensors to you. 

‍

You may access and use the Platform, the Services and the Content only in accordance with the Licence, these Terms, any Additional Terms, and all applicable laws and regulations in the location from which you are using them.

‍

c. Prohibited Acts

‍

If you engage in any of the following activities (each, a “Prohibited Act”) when using the Platform, the Services or the Content (as applicable), we have the right to immediately revoke the Licence and terminate your Account and your subscription to the Services:

‍

1. adjust, circumvent, or remove or try to adjust, circumvent, or remove any copyright, trademark or other intellectual property rights notices on the Platform or the Content in whatever medium and as it initially appeared on the Platform, or any digital rights or other security technology embedded in any Content;
2. use the Platform, the Content, or the Services or any Phoenix DH application programming interface (API) for any purpose and in any manner that is, explicitly or implicitly, prohibited by these Terms, or that is inconsistent with our Privacy Notice;
3. defame or disparage anyone associated with us, or make any obscene, derogatory or offensive comments about us, the Platform, the Content, the Services or any other User, so as to bring us or any third party into disrepute or to cause us to be liable to any third party; 
4. attempt to decompile, copy, disassemble, modify, adapt, reverse engineer, or otherwise attempt to derive the source code for the Platform, (except to the extent you may be expressly permitted to decompile under applicable law); 
5. distribute, encumber, sell, rent, lease, sublicense, transmit, perform, or publish, deep-link, create derivative works from or exploit the underlying software or source code of the Platform, for the benefit of any third party;
6. use any methods or tools to access, scrape, crawl or spider any pages of the Platform, or systematically collect, store, transmit, distribute, or retrieve data or other Content from our Platform to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, in any way; 
7. transfer the Content or any part of it without our express written consent, which is not granted in these Terms or any Additional Terms;
8. damage, abuse, disable overburden, impair, or interfere with the security or the functioning of the Platform, such as by distributing viruses or malware of any kind or other similar harmful software code; or transmitting unsolicited commercial electronic messages (spam);
9. sell, reproduce, modify or attempt to modify the Platform or Content in any way, or reproduce, display, perform, distribute, or use the Platform or any Content in public or for any public or commercial activities; 
10. copy any HTML or other programs that are available on the Platform;
11. use the Platform or its software and underlying code as server software, for commercial hosting, make the software available for simultaneous use by multiple users over a network, install the software on a server and allow users to access it remotely, or install the software on a device for use only by remote users, or in whole or in part, whether modified or unmodified, incorporate the Platform software and source code into other programs;
12. represent or suggest that we endorse any other business, product or service unless we have separately agreed to do so with you in writing;
13. impersonate another person or User, or otherwise misrepresent yourself or your affiliation with any person;
14. forge any TCP/IP packet header or any part of the header information in any email, or in any way use the Platform or  Services to send altered, deceptive, false source-identifying information or attempt to obtain unauthorized access to the Platform or portions of it that are restricted from general access; 
15. open an Account using an e-mail address that you do not own or submit any incomplete, false or inaccurate information, including without limitation incomplete, false or inaccurate biographical or health information when you open an Account, use our Services, or at any other time;
16. use, display, mirror, or frame the Platform or the Content, or any part of them, use our name or any of our trademarks, logs or other proprietary information, or the layout and design of any page or forms of the Platform without our express written consent; or
17. access, tamper with, or use non-public areas of the Platform; attempt to probe, scan, or test the vulnerability of any of our systems or networks, or to breach or attempt to breach any security or authentication measures or avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure we use to protect the Platform, Services, or the Content.

‍

6. Additional Terms for APp Versions of the Platform

‍

The following additional terms apply to any web or mobile application version of the Platform (“App”). 

‍

a. Parties & Third-Party Beneficiaries

‍

These Terms are between you and Phoenix DH only. Unless otherwise provided, these Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you. Phoenix DH is solely responsible for the App, including all services provided via the Platform. 

‍

If you download the App via the iOS App Store or Google Play Store, Apple Inc. or Google, Inc., respectively, shall be a third-party beneficiary to these Terms and have the right to enforce these Terms against you as a third-party beneficiary. However, these third-party beneficiaries are not a party to these terms. 

‍

You acknowledge and agree that your access to the App using a third-party application store shall also be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service.  You will comply with all applicable restrictions, requirements and rules that govern applications downloaded through the application store through which you obtained the App (for example, the Apple App Store or Google Play). 

‍

You acknowledge that the third-party beneficiaries have no obligation whatsoever to furnish any maintenance and support services with respect to the App. You further acknowledge and agree that to the extent you have any claim arising from or related to your use of the App, in no event will the third-party beneficiaries be responsible for any claims relating to the App, including but not limited to (i) intellectual property claims, (ii) product liability claims, or (iii) any claims arising under consumer protection or similar legislation. 

‍

b. Mobile Network

‍

When you access the App through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply and you will be responsible for all such charges. Downloading, installing or using the App may be prohibited or restricted by your network provider and the App may not work with your network provider or device. 

‍

c. Software Updates

‍

We reserve the right to provide software updates, new versions and revisions, and make changes, corrections and/or improvements (collectively, “Updates”) to the App. By downloading, installing, starting or using the App, you agree to receive automatic Updates, including any files that are automatically delivered to you by us (via online transmission, through a third-party distributor, or otherwise) to patch, update or otherwise modify the App.  All Updates are subject to these Terms and any Additional Terms accompanying such Updates.

‍

7. Submitting Information to Us

‍

You should not share through email, post on any public area of the Platform, or in any feedback to us, any material that contains Personal Information and Personal Health Information. Such information should only be provided using the messaging system on our Platform or as directed by a Healthcare Professional.

‍

We welcome and encourage your feedback on our Platform and Services but we do not seek any unsolicited ideas or materials for products or services, or suggested improvements to products or services.  You acknowledge and agree that we will be free to use or copy all or a portion of any unsolicited ideas and materials you send to us, including any ideas, inventions, concepts, techniques or know-how, for any purpose including, but not limited to, disclosing to third parties and/or developing, creating and/or marketing goods or services.

‍

8. Hyperlinks and Third-Party Sites

‍

The Platform may contain hyperlinks or references to third-party websites or apps that we provide for your convenience only, and those hyperlinks do not mean that we endorse those sites, their operators, or any products or services that may be offered on those sites. 

‍

If you click on a link to a third-party site you will leave the Platform and you will be subject to the terms and conditions and privacy policies of those sites. We have no control over these third-party sites, and we accept no responsibility for any content, material or information on them, or for your use or reliance on any of it.

‍

9. Legal Disclaimers

‍

We provide the Platform, Services and Content ‘as is’ and ‘as available’. Except where excluded by applicable law, we expressly disclaim all representations, warranties, covenants and conditions, express or implied, by operation of law or otherwise, including without limitation any implied warranties and conditions that the Platform, Services, and Content will be of satisfactory or merchantable quality; fit for any particular purpose; not infringe the intellectual property rights of any third party; function or be available uninterrupted, secure, error-free, accurate, current, or complete; or any implied representations or warranties arising out of course of performance, or the course of usage or trade of any of the foregoing.

‍

Phoenix DH does not provide Healthcare Services or any other professional services. Phoenix DH is a technology service provider that provides the Platform and facilitates access to others that may provide virtual Healthcare Services or other professional services. Prescription products require an online consultation with a licensed Healthcare Professional who will determine if a prescription is appropriate. 

‍

The Healthcare Professionals that Users may access via the App are not employees or agents of Phoenix DH and are not credentialed by Phoenix DH.  Phoenix DH does not have any oversight of the care provided to Users by Healthcare Professionals. Each Healthcare Professional is an independent licensed practitioner who is solely responsible for any Healthcare Services they provide to Users, including the prescription or supply of medications.  To the fullest extent permitted by applicable law, we disclaim any liability resulting from the provision of Services or supply of goods (and associated advice) by Healthcare Professionals. Liability shall rest with the appropriate provider and shall not be deemed to rest with us. 

‍

While the Content may include certain general healthcare Information, the Content is not and should not be considered telehealth advice or a substitute for individual healthcare advice, diagnosis or treatment. Users should always talk to a licensed healthcare provider for diagnosis and treatment, including information regarding which drugs or treatment may be appropriate for you. Never disregard, avoid or delay in obtaining healthcare advice because of something you have read on the Platform. None of the Content constitutes a representation or warranty that any particular drug or treatment is safe, appropriate or effective. If you know or suspect that you have a medical problem or condition, please immediately contact a licensed healthcare provider.  

‍

We, and any other Persons involved in the management of the Platform may make changes to the Content at any time and without notice. While we make commercially reasonable efforts to ensure that the Content is accurate, current, and free of typographical and other errors, occasionally some Content on our Platform may be inaccurate, incomplete, or may contain typographical or other errors (together “Errors”). We reserve the right, but we do not have an obligation to correct Errors or to change the Content, except as required by law. You should not take any updates to these Terms to mean that such Errors have been corrected.

You are, and will at all times be, solely responsible for any medical-related decisions you make or not make based on any Content, or data downloaded or otherwise accessed through the Platform or received through the Services.

‍

10. Limitation of Liability

‍

You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Platform, Services, and Content remains with you. You are solely responsible for all of your communications and interactions with Healthcare Professionals and other third parties with whom you may communicate or interact as a result of your use of the Platform, Services and Content and you agree to take reasonable precautions to protect your Account information in all such regards.

‍

If you are dissatisfied with the Platform, the Services, the Content, these Terms, or any Additional Terms, your sole and exclusive remedy is to stop using the Platform, Services, and Content and to close your Account. 

‍

To the greatest extent permitted by law, we will not be liable for any direct, indirect, incidental, consequential, punitive, exemplary, reliance, special or other damages, however they arise, including without limitation, illness, injury (including death or disability), emotional distress, damages for inconvenience, harm to business or persons, lost profits, lost savings or lost revenues, loss of goodwill, business interruption, loss of information or programs, or other data on your device arising, directly or indirectly from:  (a) your decision to provide or to seek Services; (b) your use of, or the inability to use your Account, the Platform, the Services, or the Content, for any reason; (c) your use or reliance on any content, information, products, or services on any linked sites; (d) the clinical decisions of a Healthcare Professional in providing or not providing Services and any other matters related thereto; (e) the acts or omissions of any third-party, including Users and our service providers; (f) your communications or interactions with any other Users of the Platform or Services or other Persons with whom you communicate or interact as a result of your use of the Platform or Services; (f) any errors or omissions in the Content, the Platform, or your Account; (h) our or your transmission of confidential information, Personal Information, Personal Health Information, or other sensitive information via the internet, including by email, to or from the Platform or your Account; all whether based on warranty, contract, tort (including negligence), product liability or any other legal theory of liability, and whether or not we had been informed of the possibility of such damage. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you in that regard.

‍

Except where excluded by applicable law, in no event will our aggregate liability arising out of or in connection with any of the foregoing exceed the total Subscription Fees you paid over the past 12 months. These limitations and exclusions will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

‍

11. Indemnification

‍

You hereby agree to release, defend, indemnify, and hold us harmless from and against any and all liabilities, damages, claims, threats, losses, fines, fees and expenses (including reasonable attorneys’ fees and expenses), (individually a “Claim” and together “Claims”) made by a third-party arising directly or indirectly out of:  (a) your use or reliance on the Platform, Services, or Content; (b) your breach of these Terms, and any Additional Terms, or the Privacy Notice; (c) your violation of any rights of a third-party; (d)  your use, reliance on, or engagement of any kind with any Healthcare Professional or third-party service provider; (e) your use or reliance upon any sites linked on the Platform, or your commercial or other relationship with the operators of those sites and any contract for products or services of those parties that you may have entered; (f) injuries, disability, or death from receiving the Services; and (g) any and all acts or omissions of a Healthcare Professional made in providing Services to you. In addition, you agree to reimburse us for any and all costs, attorney’s fees and expenses we may incur to enforce the provisions of this Agreement against you, whether by arbitration, prosecution of a lawsuit, or otherwise. You will not be required to indemnify us, to the extent allowed by law, where such Claims are caused by our gross negligence or willful misconduct.

‍

12. Dispute Resolution

‍

(This section does not apply where excluded by applicable law) You and we agree to settle any dispute, claim, or controversy arising directly or indirectly from the enforcement, interpretation, validity, breach, and termination of these Terms, any Additional Terms, or the Privacy Notice (collectively, “Disputes”) though good faith negotiations after providing to the other a written Notice of Dispute.

‍

If we cannot find a resolution within 21 business days from the Notice of Dispute, then the Dispute will be settled by binding arbitration and you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding against us. Notwithstanding the foregoing, we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our intellectual property rights.

‍

You and we must file a notice of dispute for arbitration (except intellectual property disputes) within one year from the date when the matter at issue first arose, otherwise neither of us will be able to initiate arbitration or seek legal recourse for that matter.

‍

Any Dispute shall be determined by arbitration administered by the International Centre for Dispute Resolution (ICDR) Canada in accordance with its Canadian Arbitration Rules (the “Rules”). The arbitration shall be conducted in Ontario Canada, in the English language, by a single arbitrator appointed under the Rules. The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. The arbitration will include a written confidential record of the arbitrator’s findings, which shall be final. An award of arbitration may be entered in a court of competent jurisdiction.

‍

This section will survive any termination of your Account or the termination of your subscription for Services.

‍

13. General Terms and Conditions

a. Relationship of The Parties

These Terms do not and shall not be construed to create a partnership or joint venture, agency relationship, or employment relationship between us. Neither we nor you have the right or authority to create any obligations on each other’s behalf.

‍

b. Entire Agreement

These Terms, any applicable Additional Terms, the Privacy Notice and any documents incorporated by reference in these Terms, contain the entire understanding and agreement between us and you in relation to your use of the Platform, the Content and the subscription to and use of the Services, and supersede any prior agreements between you and us, including, but not limited to, any prior versions of these Terms. For the avoidance of doubt, these Terms do not supersede the separate contractor agreements between us and each Healthcare Professional.

‍

c. Force Majeure

‍

We are not liable to you for our breach of these Terms caused by any event or circumstance beyond our reasonable control including, without limitation, strikes, lock-outs, and other industrial disputes, breakdown of systems or network access, flood, fire, explosion, accident, cyber or terrorist attacks.

‍

d. Severability

‍

If any part of these Terms is found void and unenforceable by a court or arbitrator of competent jurisdiction, then that provision shall be severed from these Terms, then the rest of these Terms will remain valid and enforceable.

‍

e. Cumulative Remedies

‍

Other than as expressly stated in this Agreement, and subject to the Dispute Resolution provision, the remedies provided in this Agreement are in addition to, and without prejudice to, any other remedies we or you may have at law or in equity.

‍

f. Waiver

‍

If we choose not to enforce any right that we have against you at any time, this does not prevent us from later exercising or enforcing that right.

‍

g. Assignment

‍

You may not assign, sub-license or otherwise transfer any of your rights and obligations in these Terms to any other person without our prior written consent, which we may give or withhold, at our sole discretion. We may assign these Terms without notice to you or consent from you.

‍

h. Governing Law and Jurisdiction

‍

These Terms shall be governed by and interpreted under the laws of the Province of Ontario and the laws of Canada applicable in Ontario, without regard to principles of conflicts of laws that may impose the laws of another jurisdiction. Subject to the Dispute Resolution provisions, you and we irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario regarding any dispute or claim that may arise from or in connection with these Terms.

‍

i. Enurement

‍

These Terms will be binding upon and inure to your and our benefit and to the benefit of your or our respective heirs, successors, permitted assigns and legal representatives, as applicable.

‍

j. Statutory Rights

‍

This Agreement shall not prejudice your statutory rights as a consumer.

‍

k. Survival

‍

Any provisions of these Terms that require or contemplate performance after termination and by their nature must survive the termination of your Account or your subscription for Services, will so survive such termination.

‍

l. Acknowledgement

‍

You agree that you have read these Terms before using the Platform, Content, or the Services, including any Additional Terms. You understand that by using the Platform, Content, or the Services, you agree to be bound by these Terms and any applicable Additional Terms.

‍

m. Contact Us

‍

If you have any questions regarding these Terms or our Services, please contact us by email at support@phoenix.ca.

‍

‍