Mustimuhw Terms of Service

The following definitions shall apply to this Agreement:

1.1  “Applicable Data Protection Legislation” means any one or more of Personal Information Protection and Electronic Documents Act, (S.C. 2000, c. 5), or E-Health (Personal Health Information Access and Protection of Privacy) Act, [SBC 2008] Chapter 38, the Personal Information Protection Act, [SBC 2003] Chapter 63 (or the counterpart or equivalent legislation of each of Canada or of any other Province or Territory), any regulations directives or orders under the same, as amended or replaced from time to time, and any other legislation whether provincial or federal applicable to or governing the use, storage, retrieval and security of personal data.

1.2  “Authorized User(s)” means an End-User of the category or nature specified in Schedule C in the Service Level Agreement and License. Such Authorized User may be an employee, agent, consultant or other individual, who is authorized by the Licensee to access and use the Software on behalf of or to provide services for the License, and provided with a unique login and password as determined and maintained by Licensee.

1.3  “Change Form” means a written change in the Software, professional services, support, and other products provided under this Agreement, and such other terms and conditions as agreed by the parties outlined in such Change Form.

1.4  “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically.

1.5  “Licensee Data” means any data, information, or other materials of any nature whatsoever except Personal Data, provided to Mustimuhw Solutions by Licensee in the course of procuring, implementing and/or using the Software.

1.6  “Personal Data” means any data, information, or other materials that contain the personal information on or about clients or patients of the Licensee, and without limitation in addition to any personal data defined in Applicable Data Protection Legislation includes any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person including Sensitive Personal Data.

1.7  “Sensitive Personal Data” includes any data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

1.8  “Software” includes the software programs, technology services, information management services, products and any related services or programs specified in Schedule A of the Service Level Agreement and License, and includes any third-party software programs, products or services acquired from Mustimuhw Solutions as the authorized reseller. The Licensee has agreed to purchase, and Mustimuhw Solutions shall provide, the software programs, professional services, support, technology services and products (“Services”) specified in the Change Form.

1.9  “User Documentation” means the series of detailed guides, policies, terms of service and advisories accessible under the User Guides tab of the Software or published or issued by Mustimuhw Solutions, as amended from time to time.

1.10  The actual Service Level Agreement and License contains the following Schedules:
Schedule A – Standard Services
Schedule B – Additional Professional Services
Schedule C – Term and Fees

Any terms defined in the Schedules attached to the Service Level Agreement and License or in the Change Form not defined in these Terms shall be incorporated in and form part of the SLA Agreement and Terms.

2.1  Grant of License –  Mustimuhw Solutions grants to Licensee and its Authorized Users, and Licensee accepts, a non- transferable, non-exclusive licence and right to access and use the Software specified in Schedule A of the Service Level Agreement and License and the User Documentation only as authorized in this Agreement, for its own purpose and operations, during the Term. Licensee acknowledges that its access and use of the Software will, depending on the choice of customers, either be provisioned as web-based or installed on servers owned or otherwise controlled by Licensee. For a web-based customer, the Software will run from systems specified by Mustimuhw Solutions from to time, and accessed and used by Licensee through the use of the Internet and Licensee’s computers.

2.2  Services –  Mustimuhw Solutions shall provide the Standard Services listed in Schedule A of the Service Level Agreement and License during the currency of this Agreement to the standards, if any, specified therein or any schedule attached provided that the Licensee has paid the License Fee as required.

2.3  Additional Services –  Any additional services not expressly listed in Schedule A or B of the Service Level Agreement and License as required by the Licensee from Mustimuhw Solutions shall be provided upon payment of the applicable additional fees and issuances of a Change Form. All additional services provided shall be governed by the terms of this Agreement unless agreed otherwise.

2.4  Use for Specific Purpose only –  The Software may be used solely for the business purposes related to services provided by the Licensee in the Authorized Location(s) provided that the Licensee does not exceed the maximum number of Authorized Users.

2.5  Change Form –  Any changes to the Software, professional services, support and products shall take effect only upon the issuance and acceptance by Mustimuhw Solutions.  A Change Form may be amended, supplemented or replaced, in whole or in part, by agreement of the parties from time to time in writing. A Change Form shall form part of this Agreement once accepted by Mustimuhw Solutions.

2.6  Authorized Users and Training –  The Licensee may grant user rights to any qualified and properly trained individual who provides services required by the Licensee or by its customers, members, or clients, provided an Authorized User has agreed to comply with this Agreement as it may apply to the Authorized User.  The Licensee shall not permit at any time more than the maximum number of Authorized Users stated in Schedule C of the Service Level Agreement and License and as amended from time to time by a Change Form to use, access, run, or otherwise interact with the Software on its computers, workstations, terminals, or handheld PCs (“Computer(s)”) at its Authorized Location.  The Licensee covenants and agrees that:

(a)  No individual shall use the Software or Services in breach of or contrary to the user rights or privileges granted to such individual;

(b)  All Authorized Users adhere to the restrictions and other conditions of this Agreement including the confidentiality and non-disclosure requirements;

(c)  The Licensee is solely responsible to ensure all its Authorized Users have the necessary skills and experience to properly use the Software;

(d)  The Licensee shall determine the nature and scope of the training its Authorized Users require; and,

(e)  Mustimuhw Solutions shall not have any responsibility to ensure the Authorized Users have any specific form or level of training.  The only obligation of Mustimuhw Solutions shall be to make available to the Licensee and its Authorized Users, in such media and form as Mustimuhw Solutions may determine from time to time, training materials to permit an Authorized User to acquire the skills appropriate to use the Software.

2.7  Additional Users –  The Licensee may in writing request additional individuals be designated as Authorized Users at the same License Fee rates as set out in this Agreement with such additional License Fees prorated for the then remaining term of this Agreement.  The additional License Fees for additional Authorized Users are due within 30 days of the date of invoicing.

2.8  Reservation of Rights –  This Agreement grants limited rights as set out in this Agreement.  All rights not expressly granted are reserved by Mustimuhw Solutions and its licensors.

2.9  Limitations on Reverse Engineering, Decompiling, and Disassembly, and Unauthorized Copies –  The Licensee shall not and shall not permit any person to reverse engineer, decompile, disassemble, make modifications to, alter, revise, enhance, or otherwise change the Software, or attempt to extract, reconstruct or discover the source code to the Software, or create any enhancement, modification or derivative works thereof, or combine the Software (or any portion thereof) with other third party products nor may the Licensee grant any other person the right to do so. The Software is licensed as a single computer programme, and its component parts may not be separated.

2.10  Sub-licences Prohibited  –  The Licensee may not use the Software for the benefit of any third parties or provide other access or use of the Software to third parties.  Without limitation, the Licensee may not sublicense, display, rent, lease, lend, transfer, sell or otherwise provide access to the Software, for a fee or otherwise, to any other person for any purpose whatsoever (including, without limitation, for third party use, training, facilities management, time-sharing, or service bureau use), or to process data for anyone other than Licensee.

2.11  Right to Inspect and Access –  Mustimuhw Solutions and its representatives may audit, monitor, and verify the use of the Software for quality assurance purposes, usability, functionality, and compliance with the Service Level Agreement and License.  The Licensee, and its Authorized Users, authorizes and grants to Mustimuhw Solutions an irrevocable authority to access such databases, systems and infrastructure, files and other records to verify and audit use of the Software in whole or in part, the number of users from time to time, the rights and privileges granted to users from time to time, the location of the users, and such other particulars of the users, and the use and deployment of the Software as necessary, and Mustimuhw Solutions may enter the premises of the Licensee as necessary.

2.12  Ownership of Data and Access –  The parties acknowledge and agree that the Licensee has sole ownership of Personal Data and the Licensee Data related to its cases or resulting from the use of the Software, and shall be solely responsible for such Personal Data and Licensee Data.   Despite this, Mustimuhw Solutions may access the data as required from time to time to fulfil its obligations herein without assuming any responsibility for such data except as expressly provided herein. If Mustimuhw Solutions does access data as permitted, then Mustimuhw Solutions shall maintain the privacy and confidentiality of such data at all times, and, not withstanding any other provision of the Service Level Agreement and License, it shall be liable for loss or damage arising as a result of a breach by Mustimuhw Solutions, its agents or employees.

2.13  Privacy and Personal Information –  Subject to any obligations of Mustimuhw Solutions under the Confidentiality and Non-Disclosure provisions of the Service Level Agreement and License or under any other agreement imposing obligations on Mustimuhw Solutions, the Licensee shall be solely responsible for compliance with all Applicable Data Protection Legislation. If Mustimuhw has access to data while carrying out its obligations under this Agreement, then Mustimuhw shall comply with applicable privacy laws.

2.14  Terms of Use –  Licensee and its Authorized Users shall be bound by and at all times comply with any terms of use for end-users of Mustimuhw Solutions and its licensors as may be amended from time to time.  If requested, Licensee and its Authorized Users shall acknowledge in writing to be so bound.

3.1  Maintenance –  Mustimuhw Solutions and/or its third-party suppliers/vendors or licensors may perform system maintenance, from time to time, and Mustimuhw Solutions will use reasonable efforts to announce all planned maintenance three (3) days in advance, except in case of an emergency, when the Software may not be available. Notifications of planned maintenance shall be delivered to Licensee’s primary contact designated in this Agreement via electronic mail. The Licensee understands and agrees that there may be instances where it is necessary to interrupt access to the Software without notice in order to protect the integrity of the Software due to security issues, virus attacks, spam issues or other unforeseen circumstances.

3.2  Minor Upgrades –  Mustimuhw Solutions will install minor upgrades/releases of the Software that are generally made available to its other licensees, including patches and/or fixes, as they are made available, at no charge during the Term.  Mustimuhw Solutions will determine and provide notice to the Licensee for all planned upgrades as described herein. Upgrades are a mandatory Software maintenance activity required to ensure the Software stays up to date and aligned to what Mustimuhw Solutions deems the acceptable range of release versions available for use.

3.3  Major Upgrades and Changes –  Mustimuhw Solutions will install major upgrades/releases of the Software that are generally made available to its other licensees, as they are made available, at no charge during the Term.  Mustimuhw Solutions will determine and provide notice to the Licensee for all planned upgrades as described. Upgrades are a mandatory Software maintenance activity required to ensure the Software stays up to date and aligned to what Mustimuhw Solutions deems the acceptable range of release versions available for use.  Should an upgrades to a major release require data conversions,  careful planning and data decisions must be managed jointly by Licensee and Mustimuhw Solutions.   If the Licensee requires Mustimuhw Solutions to provide services not included in the upgrade or conversion to the Software (e.g., Licensee data conversion, report and software customizations, data cleanup), then such additional services shall be contracted for separately.

3.4  Discontinuance –  Mustimuhw Solutions reserves the right at all times to discontinue the Software (or any part thereof) at the conclusion of the Licensee’s then current Term, and to discontinue support for any prior release or version of the Software.

3.5  Training for Upgrades –  If an Authorized User should obtain additional training to use the Software after an upgrade, then Mustimuhw Solutions shall provide reasonable notice to the Licensee of the recommended training to permit the Licensee an opportunity to ensure the Authorized Users undertake the recommended training.

4.1  Availability –  For web-based deployments of the Software will be available for Licensee ‘s use on a 24/7 basis, except for scheduled system back-up or other on-going maintenance as required and subject to any permitted disruptions or interruptions.  The Licensee shall use computer systems, secure internet connections, and infrastructure that meet Mustimuhw Solutions’ minimum system requirements.  The Licensee shall have a single administrator user account for secure administrator access.

4.2  Commitment Level –  Subject to the above, Mustimuhw Solutions will provide 99.9% “availability” to the Software during the Term, calculated on a monthly basis. If Mustimuhw Solutions provides 99.7% or less availability in any given calendar month, Mustimuhw Solutions shall credit/reimburse ten (10%) percent of the Subscription Fee for such month to the Licensee to be applied against the Fee for the next Renewal Term. If Mustimuhw Solutions provides 99.5% or less availability in any given calendar month, Mustimuhw Solutions shall credit/reimburse twenty (20%) percent of the Fee for such month to the Licensee to be applied against the Fee for the next Renewal Term. Availability means that the Software is ready for access and use by the Licensee. The actual access and use depends on the computer systems and infrastructure of the Licensee including the internet connectivity all of which is beyond the control of Mustimuhw Solutions.

4.3  Credit Rights –  For web-based deployments the Licensee must notify Mustimuhw Solutions in writing of both the date and the amount of time the Software was unavailable (excluding any required maintenance) within five (5) business days of the end of the month in which unavailability occurred. Mustimuhw Solutions will confirm the information provided in such notice. If Mustimuhw Solutions cannot confirm the time that the Software was unavailable, then Licensee and Mustimuhw Solutions agree to refer the matter to executives for each for resolution. If Mustimuhw Solutions confirms that Mustimuhw Solutions is out of compliance with its availability commitment, Licensee will receive the credit. The credits described above shall be the sole and exclusive remedy to Licensee for any unavailability. Except as expressly set forth herein, any remedy Licensee may receive pursuant to this does not relieve Licensee, or allow a set-off, of any other payment obligations to Mustimuhw Solutions under the Service Level Agreement and License.

4.4  System Monitoring –  Mustimuhw Solutions may monitor performance indicators on the systems and network infrastructure (its own and that of third-party suppliers) in order to gauge the overall performance of its services, and may take any reasonable steps to address systems and network infrastructure as required to maintain application performance. Mustimuhw Solutions will use an internal system to measure whether the Software is available, and Licensee agrees that this system will be the sole basis for resolution of any dispute that may arise between Licensee and Mustimuhw Solutions regarding this Agreement.  Mustimuhw Solutions may monitor data and system performance to ensure the performance of the systems, network infrastructure and the Software.

5.1  Term and Renewal –  The License is granted for the Term specified in Schedule C of the Service Level Agreement and License. This Service Level Agreement and License shall be renewed for further terms of 12 months each, on the same terms and conditions as set out in the agreement, at the Licensee Fee generally applicable to the Software at the time of renewal, unless the Licensee provides written notice of non-renewal to Mustimuhw Solutions at least 30 days before the expiration of the then current Term.

5.2  Payment –  The Licensee Fee for the applicable Term, or renewal thereof, is fully earned upon the invoice being rendered.    The Licensee shall pay the annual License Fee at the start of each year within 30 days after the invoice is rendered by Mustimuhw Solutions. The fees for any additional services provided by Mustimuhw Solutions, including the services listed in Schedule B, shall be payable in full within 30 days of the date of the invoice.

5.3  Interest on Late Payments –  Any late payments shall be subject to a late payment charge equal to 2% of the amount due calculated on a monthly basis.

6.1  Licensee acknowledges that the Software and all related information is proprietary to Mustimuhw Solutions or its licensors, and that all rights thereto, including all intellectual property rights, are owned by Mustimuhw Solutions or its licensors.  Licensee further acknowledges that the Software contains trade secrets and is protected by Canadian and international copyright and other intellectual property laws and treaties.  Licensee agrees to notify Mustimuhw Solutions immediately of any unauthorized use of the Software.  Licensee will promptly furnish full details of such unauthorized use to Mustimuhw Solutions, will assist in preventing the recurrence or continuation of such use, and will cooperate fully with Mustimuhw Solutions to protect the proprietary rights, including intellectual property rights, of Mustimuhw Solutions and its licensors.  Licensee’s compliance with this provision shall not be construed as a waiver of any right of Mustimuhw Solutions or its licensors to recover damages from, or obtain other relief against, Licensee if such unauthorized use is attributable to the negligence of the Licensee or persons for whom at law it is responsible.

6.2  Licensee acknowledges and agrees that the Software is of an extraordinary and unique character and that the injury which would be suffered by the rights holder from a breach by Licensee of any of its obligations hereunder would be irreparable and could not be fully compensated for solely by recovery of monetary damages.  Licensee agrees, without in any way limiting the other rights or remedies of Mustimuhw Solutions or its licensors, that Mustimuhw Solutions or its licensors may obtain equitable relief, restraining order, injunction, decree, or other remedy, as appropriate to restrain any breach or threatened breach of the Service Level Agreement and License.

6.3  Subject to any Confidentiality and Non-Disclosure Agreement between the parties, the Licensee shall not disclose any business, technical, or financial information of Mustimuhw Solutions nor copy or utilize, other than in conjunction with the purposes of this Agreement, any information, trade, or professional secrets of Mustimuhw Solutions which shall be deemed to include the Software and all documentation related to the same, and the underlying system (hereinafter “Confidential Information”).  Licensee will use at least the same degree of care to protect the Confidential Information of Mustimuhw Solutions as it would use to protect its own property or rights of a similar nature, but in no event less than reasonable care.  Licensee shall ensure that its employees, agents, and subcontractors strictly observe these conditions at all times.

6.4  Subject to any Confidentiality and Non-Disclosure Agreement, the parties agree that Confidential Information shall not include any information which:

(a)   was previously known to the receiving party if the receiving party can prove such prior knowledge and the receiving party did not learn such information from a person whom the receiving party knew was under a duty to the disclosing party not to disclose the information;

(b)   is or becomes part of the public domain without breach of the Service Level Agreement and License;

(c)   the receiving party receives from an independent third party who is not under an obligation not to disclose it;

(d)  is independently developed by the receiving party as evidenced by documentation dated prior to the time of disclosure by the disclosing party; or,

(e)  is required to be disclosed pursuant to the order of a governmental agency, legislative body, or a court of competent jurisdiction, provided reasonable prior written notice of the intended disclosure is given to Mustimuhw Solutions.

7.1  Except as expressly authorized by Mustimuhw Solutions, the Licensee shall not print, extract, download, or make copies of the User Documentation, or any other materials, manuals, or documentation, or any related material concerning or related to the Software for any persons other than for the Licensee’s own use or its Authorized Users.  Notwithstanding anything within the Service Level Agreement and License, the Licensee shall use such material only in connection with the Software and so long as this Agreement remains in effect and valid.  The Licensee shall not remove, alter, deface, obscure or fail to display any copyright notice, trademark, service mark, and other proprietary notices of Mustimuhw Solutions and its licensors on any copies of such material.

7.2  “Mustimuhw Solutions” and “cEMR” (and any other marks associated with the Software specified in the Change Form) are trademarks of Mustimuhw Solutions or its licensors (the “Mustimuhw Solutions Marks”).  The Licensee agrees not to display or use the Mustimuhw Solutions Marks in any manner whatsoever without the express prior written consent of Mustimuhw Solutions which consent may be withheld without providing any reason.

8.1  The Licensee acknowledges and agrees that embedded in or bundled with the Software, or included in the Service Level Agreement and License or Change Form, may be third-party software products and related files and tools, developed and supplied by third-parties (collectively “Third-Party Products”).  While Mustimuhw Solutions will make efforts to obtain and install all upgrades, service packs, fixes and related maintenance items to have such Third Party Products function as anticipated, License acknowledges and agrees that Mustimuhw Solutions and its licensors do not warrant, or have any support obligations for, any such Third-Party Products or for anything arising from the use of Third-Party Products unless expressly agreed otherwise in writing, and Mustimuhw Solutions specifically disclaims all warranties, conditions, responsibilities and liability therefore.  The sole remedy of the Licensee shall be limited to such warranties, if any, as provided by the owners of the Third-Party Products.

8.2  Subject to the foregoing, if a Third-Party software product, or any related files and tools, of a third party are supplied by Mustimuhw Solutions as an authorized reseller of the same, then Licensee shall have no greater rights or remedies than as against such third party.

8.3  The Licensee agrees, at its own cost, to purchase and use any third-party software not provided by Mustimuhw Solutions necessary for accessing and operating the Software, including, but not limited to Sybase SQLAnywhere database and MobiLink server software, Microsoft Word and Microsoft Excel for each client workstation, or such other software or tools necessary for the Software to be fully functional. The Licensee agrees that Mustimuhw Solutions is not responsible for any costs related to such software or for notifying the Licensee of any upgrades, fixes or enhancements to any such software; or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the internet, which are not owned or operated by Mustimuhw Solutions.

8.4  Mustimuhw Solutions may provide links to other World Wide Web sites or resources. The Licensee agrees that Mustimuhw Solutions is not responsible for the availability, reliability or safety of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.  Further, Mustimuhw Solutions shall not at any time be liable for any damage or loss, of any kind or nature, suffered or sustained by the Licensee from such links or resources. In addition, the Licensee agrees that Mustimuhw Solutions is not responsible for any and all third-party information that may be provided to the Licensee through the Software (e.g. through the integration of Software with a third-party online application).

9.1  The Licensee agrees to comply with all applicable local, provincial, territorial or federal laws, regulations, treaties and conventions in connection with its use of the Software, including without limitation those related to privacy, electronic communications, export, and anti-spam legislation and shall obtain any permits, licenses and authorizations required for such compliance. The Licensee will not allow or permit the Software to be used in a manner or for a purpose that is unlawful, harassing, libellous, defamatory, or threatening.

9.2  Subject to the Service Level Agreement and License, the Licensee shall ensure that the Authorized Users are at all times in compliance with the terms and conditions of the Agreement and License.

9.3  The Licensee is solely responsible for the integrity, security, and backup of any Personal Data of the Licensee and ensuring it complies with all applicable clinical, business and legal requirements.

9.4  The Software shall at all times be installed on and operated from computer systems owned by the Licensee and accessible only to the Licensee and its Authorized Users.

9.5  Licensee is responsible for maintaining its user computer systems and providing Authorized Users network access to the Software. Licensee shall provide connectivity and security to the Internet for its location(s) for purposes of providing adequate access to the Software.  Mustimuhw Solutions shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by Licensee in accessing the Internet to access the Software.

9.6  Licensee shall provide adequate industry “best practice” standards to ensure reasonable security for integration between the Licensee’s location(s) and the Software. Licensee shall provide accurate input information in the manner reasonably prescribed by Mustimuhw Solutions in connection with the Software and Services provided under the Service Level Agreement and License.

9.7  Licensee shall not use the Software to upload, store, circulate or propagate any viruses, time bombs, Trojan horses, malware, spyware, or any other similar malicious or potentially harmful code.

9.8  The Licensee shall not permit or allow the password or user name of an Authorized User to be disclosed to, used by or shared with any other individual. The Licensee covenants and agrees that all passwords and user names shall be kept confidential. The Licensee shall immediately notify Mustimuhw Solutions of any loss, theft, disclosure or unauthorized use of any of Licensee’s passwords, user names, or account numbers for any of the Authorized Users or any other information or data that could permit unauthorized or unlawful use of the Software.

9.9  The Licensee shall at all times provide accurate, current and complete information on the Licensee’s legal name, address, email address, and phone number, and promptly notify Mustimuhw Solutions of any changes.

9.10  The Licensee is responsible for reasonably complying with agreeing to and scheduling any Software upgrades that will be required from time to time.

9.11  The Licensee agrees to accept, and shall be bound by, any and all notices, statements, and other communications to Licensee through either e-mail sent to the Licensee at the email address specified, posting on the Mustimuhw Solutions Licensee Portal (“Portal”) or other electronic transmission or by mail or courier.  Mustimuhw Solutions shall be entitled to rely and act upon any communications from the Licensee if sent from the email address for the Licensee without making inquiries as to the authenticity of such communications.

9.12  Mustimuhw Solutions may use the Licensees’ name in marketing and promotional materials such as brochures, pamphlets, websites, as Mustimuhw Solutions may determine from time to time.

10.1  Mustimuhw warrants that the Software (excluding third party products) will perform substantially in accordance with the specifically identified functional specifications in the accompanying written or electronic materials during the term of the Service Level Agreement and License.

10.2  Mustimuhw will make commercially reasonable efforts to have the Software perform according to its specifications, and to rectify errors in a timely manner.  Notwithstanding the foregoing, Mustimuhw and its licensors specifically exclude and disclaim any warranty that:

(a)  The Software will operate uninterrupted or error-free;

(b)  Programming errors will or can be corrected; or,

(c)  The product, or the results obtained from use of the product, will meet all of the licensee’s needs or requirements.

11.1  Where any legislation implies the existence between the parties to Service Level Agreement and License of any condition or warranty, and prohibits the exclusion modification or limitation of such condition or warranty, then the liability of Mustimuhw Solutions for any breach of such condition or warranty shall be limited to the maximum amount calculated pursuant to section 13.1(b).

12.1  The Parties to a Service Level Agreement and License acknowledge and agree that, notwithstanding any other statement in the Service Level Agreement and License:

(a)  NEITHER MUSTIMUHW NOR THE SOFTWARE ARE PROVIDING HEALTH SERVICES, MEDICAL SERVICES, PRODUCTS OR DEVICES AND MUSTIMUHW ASSUMES NO LIABILITY FOR THE INFORMATION AND DATA ACCESSED THROUGH THE USE OF THE SOFTWARE OR FOR ANY DIAGNOSIS OR TREATMENT MADE IN RELIANCE THEREON. THE SOFTWARE SHOULD NOT BE CONSIDERED AS A REPLACEMENT OR SUBSTITUTE FOR THE STANDARD PRACTICES, PROFESSIONAL JUDGMENT, SKILL AND EXPERTISE OF THE HEALTH PROFESSIONAL USING THEM, BUT AS A COMPUTER AID FOR THE HEALTH PROFESSIONAL. THE SOFTWARE IS NOT INTENDED TO BE USED AS A MEDICAL DEVICE.

(b)  NEITHER MUSTIMUHW NOR THE SOFTWARE RECOMMENDS OR ENDORSES ANY SPECIFIC TESTS, MEDICAL PRACTITIONERS OR HEALTHCARE PROVIDERS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED IN THE SOFTWARE.  MUSTIMUHW IS NOT RESPONSIBLE FOR EXAMINING, EVALUATING OR VALIDATING THE CONTENT, ACCURACY OR APPROPRIATENESS OF ANY INFORMATION ENTERED INTO, TRANSFERRED BY, OR DELIVERED BY THE SOFTWARE.

12.2  Mustimuhw or its licensors shall not be liable to the Licensee or third parties for any special, punitive, incidental, indirect, economic or consequential damages whatsoever (including, without limitation, damages for or resulting from personal injury or death, loss of business profits or revenue, medical malpractice, business interruption, loss of business data or information, loss of computer time, failure to realize expected savings, costs of recreating lost data, or any other commercial or pecuniary loss, including legal fees) arising out of the use of or inability to use the Software, even if Mustimuhw has been advised of the possibility of such damages or was negligent to any degree. Licensee agrees to indemnify, defend, and hold harmless Mustimuhw and its licensors from and against any and all such losses, costs, expenses, claims, or damages arising out of any claim, suit, action, or judgment brought against the licensee, Mustimuhw, or either of them by a third party as a result of the use by Licensee of the Software, the performance, non-performance, or improper performance of the Software

12.3  No action, regardless of form or legal theory or cause or action, may be brought against Mustimuhw later than one (1) year after the cause of action arose notwithstanding any lack of knowledge, incapacity or disability of the Licensee or any third party.

12.4  The provisions of this section shall apply regardless of the nature or form of the claim, whether breach of contract, tort (including negligence) or otherwise.

12.5  The Licensee and Mustimuhw expressly acknowledge that the limitations contained in this Article have been the subject of negotiation between the Parties and reflect the allocation of risk agreed by the Parties.

13.1  Subject to the limitations herein, Mustimuhw Solutions’ and its licensors’ entire liability and Licensee’s exclusive remedy for any claim hereunder (whether related to the use or failure of the Software or otherwise) shall at Mustimuhw Solutions’ option be either:

(a)  repair or replacement of the Software that does not meet the specific limited warranty herein; or ,

(b)  upon termination of the Service Level Agreement and License, a refund limited to a maximum amount equal to the actual Fee paid by Licensee for the year divided by 12 and multiplied by the number of complete months remaining in the then current term of the Agreement commencing with the second month immediately following the date of termination of the Service Level Agreement and License in accordance with this section

Provided that, in either case, Licensee gives written notice of the alleged breach within the warranty period.  This limited warranty is void if failure of the Software results from accident, abuse, misapplication or unauthorized database modification or use in any unauthorized manner or with unauthorized programs, components or other third-party products.

13.2  Remote Access and Consent For support – The Licensee authorizes and consents to remote access to Licensee systems and infrastructure, in a manner and means determined by Mustimuhw Solutions, by Mustimuhw Solutions on an as needed basis for support purposes.   Mustimuhw Solutions will make reasonable efforts to provide advance notice of access for purposes of support.

14.1  Notwithstanding anything else in the Service Level Agreement and License, Mustimuhw Solutions will indemnify, defend and hold the Licensee harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable solicitors’ fees) (collectively, “Losses” in this section) arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against the Licensee which arise out of or results from the infringement by the Software of any copyright, trademark, or misappropriation of a trade secret of a third party (the “Intellectual Property Rights”), provided the Licensee:

(a)  promptly gives Mustimuhw Solutions notice of the claim, suit, action, or proceeding;

(b)  gives Mustimuhw Solutions sole control of the defence and related settlement negotiations; and

(c)  provides Mustimuhw Solutions with all reasonably available information and assistance necessary to perform Mustimuhw Solutions’ obligations under this section.

14.2  Notwithstanding the foregoing, Mustimuhw Solutions shall not be liable to the Licensee for any damage, claim suit or action, in any manner or form, arising from or due to:

(a)  any use or combination of the Software by the Licensee with any other software, data or equipment;

(b)  the modification of the Software, or any part thereof; or

(c)  unauthorized or unintended use of the Software.

14.3  If the Software is held by a court of competent jurisdiction to infringe the Intellectual Property Rights of a third party, Mustimuhw Solutions will, at its own expense, in its sole discretion use commercially reasonable efforts to:

(a)  procure a license from the third party for the use of the intellectual property of the third party without cost to the Licensee; or

(b)  replace the Software with a non-infringing version of the Software.

14.4   The Licensee will indemnify, defend and hold Mustimuhw Solutions harmless from and against any Losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third-party which arise out of or results from disclosure of confidential Personal Data by or due to the actions or omissions of the Licensee.

15.1  The Software may cause or require the Licensee computers to automatically connect to the Internet and to communicate with Mustimuhw Solutions for purposes that may include training, technical support, maintenance or usage metrics of the Software. The Software may cause such computers to automatically connect to the Internet to check for updates that are available for automatic download and confirm the Software is successfully installed. The following provisions apply to all automatic Internet connections by the Software:

(a)  When the Software automatically connects to the Internet, an Internet protocol address (“IP Address”) that is associated with the Licensee’s current Internet connection is sent to Mustimuhw Solutions;

(b)  When the Software automatically connects to the Internet, no personally identifiable information is sent except to the extent that IP Addresses may be considered personally identifiable in some jurisdictions;

(c)  Whenever the Software makes an Internet connection and communicates with Mustimuhw Solutions, the then current Mustimuhw Solutions privacy policy shall apply; and,

(d) Mustimuhw Solutions shall provide notice to the Licensee of Mustimuhw Solutions’ privacy policy and any changes to such policy. Such notice may be given by posting the same on the servers or website of Mustimuhw Solutions, by email, regular mail, or other similar means or form of communication including a hyperlink to the then current form of the privacy policy.  Nothing in the foregoing obliges or compels Mustimuhw Solutions to adopt a privacy policy or any particular form of privacy policy.

16.1  The Service Level Agreement and License may be terminated, or the rights under the Agreement suspended, as provided herein:

16.2  Mustimuhw Solutions reserves the right to suspend the Licensee’s use of Software if:

(a)  any payment due is unpaid but only after Mustimuhw Solutions has provided Licensee two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice (“Delinquent Account Status”); or,

(b)  if Mustimuhw Solutions reasonably concludes that the Software is being used by the Licensee to engage in denial of service attacks, spamming, or illegal activity, or use of the Software by the Licensee is causing or likely to cause immediate, material and ongoing harm to Mustimuhw Solutions or others.  Mustimuhw Solutions will use commercially reasonable efforts to resolve the issues causing the suspension of Software if such cause is within the control of Mustimuhw Solutions.

16.3  The Licensee may terminate the Service Level Agreement and License at any time upon giving Mustimuhw Solutions thirty (30) days prior written notice.  Termination shall not relieve the Licensee of its obligations specified in Section 16.6 below.

16.4  Either party may terminate the Service Level Agreement and License upon thirty (30) days written notice to the other party in the event of a material breach of any provision of the Agreement by the other party if the party in default fails to cure such breach.  Any notice under this section shall provide sufficient particulars of the alleged breach to provide the other party a reasonable opportunity to cure such alleged breach.

16.5  Mustimuhw Solutions may terminate the Service Level Agreement and the License granted hereunder upon written notice if the Licensee:

(a)  Fails to cure any breach of the Service Level Agreement and License upon 30 days written notice;

(b)  Makes or attempts to make an unauthorized transfer, sublicense, assignment or other disposition of any rights of the Licensee under the Service Level Agreement and License, the licence granted herein or the Software; or,

(c)  Becomes insolvent, enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceedings that relate to insolvency or protection of creditors’ rights, or if a receiver or trustee is appointed to take charge of any or all of the Licensee’s assets.

16.6  Upon expiry or termination of the License:

(a)  The Licensee shall immediately cease all use of the Software; and

(b)  If requested, certify in writing to Mustimuhw Solutions that the Licensee does not have in its possession or control, any copies, in whole or in part, in any form, of the Software;

(c)  If the Service Level Agreement and License is terminated as a result of a breach by Mustimuhw Solutions, Mustimuhw Solutions shall refund the pro rata portion of any recurring fees paid by the Licensee for the remaining balance of the then current Term; and,

(d) If the Service Level Agreement and License is terminated by the Licensee for any reason other than a termination expressly permitted by this Agreement, Mustimuhw Solutions shall be entitled to all of the fees due under this Agreement for the entire Term.

16.7  Upon termination or expiry of the Service Level Agreement and License, Mustimuhw Solutions will provide the Licensee limited temporary access to the Software for the sole purpose of permitting the Licensee to make copies of its Personal Data for medical record use and record purposes.

16.8  Termination of the Service Level Agreement or the license granted hereunder shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve the Licensee’s obligation to pay all fees that have accrued or are otherwise owed by the Licensee.

16.9  The parties’ rights and obligations under Sections 2.11, 6, 8, 10, 12, 13, and 14 shall survive termination of the Service Level Agreement and License.

17.1  The Service Level Agreement and License will be governed by the laws of the Province of British Columbia and the laws of Canada as applicable, without reference to conflict of law principles. The agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  This Section will not be construed to affect the rights of a party to enforce a judgement or award in any other jurisdiction. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods and all implementing legislation thereunder.

17.2  Any schedule, Invoice, Service Level Agreement, technical specifications, standards, or policies or protocols expressed to be issued pursuant to the Service Level Agreement and License, expressly or impliedly, shall be deemed to be incorporated in and made a part of the Agreement.  The terms and conditions of all such instruments or documents shall govern unless there is something inconsistent in the context in which case the terms in the Service Level Agreement and License shall govern.

17.3  The Service Level Agreement and License supersedes any and all prior agreements, either oral or in writing, between the parties and contains all of the representations, warranties, covenants and agreements between the parties with respect thereto. 

17.4  The Service Level Agreement and License may be amended or modified only in writing, and shall be effective only after execution by both parties. 

17.5  If, for any reason, any provision of the Service Level Agreement and License  is held invalid, or unenforceable, such invalidity or unenforceability shall not affect the remainder of the Agreement, and the Agreement shall continue in full force and effect to the fullest extent allowed by law.

17.6  The terms and provisions of the Service Level Agreement and License will be binding upon and will enure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, and permitted successors and assigns.

17.7  Except as otherwise expressly provided for in the Service Level Agreement and License, the rights and remedies of the parties under the Agreement are cumulative and in addition to and not in substitution for any rights or remedies provided by law.  No consent to, waiver of, or a failure to insist upon strict performance of any right, or indulgence of any obligation, right or provision, or of a breach or default thereof, shall not be binding upon the party with respect to any future or other event, right, default or remedy and the party shall be entitled to insist upon strict compliance with all provisions hereof. 

17.8  Licensee further expressly agrees that each provision of the Service Level Agreement and License which provides for a limitation of liability, disclaimer of warranties or conditions, or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such.

17.9  Mustimuhw Solutions is an independent contractor of the Licensee and nothing in the Service Level Agreement and License shall be construed to create a partnership, joint venture or agency relationship between the parties.  Except for the Licensee’s payment obligations to Mustimuhw Solutions, neither party shall be liable to the other for any failure to perform due to causes beyond its reasonable control.

17.10  All notices, including notices of address change, required to be sent or given hereunder, except as provided otherwise, shall be in writing and shall be deemed to have been given when mailed by regular mail, certified mail, facsimile (if confirmed by mail) or personal delivery (including overnight mail by private carrier) to the addresses indicated on the first page of the Service Level Agreement and License , or such other address as either party may indicate by at least ten (10) days prior written notice to the other party.  Notices to Mustimuhw Solutions shall be sent to the attention of its Chief Executive Officer with a copy to its President.  Notice will be effective on the date shown on the delivery receipt or facsimile confirmation or, in the case of regular mail, actual receipt.

17.11  Neither party shall be deemed in default of the Service Level Agreement and License to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party (“Force Majeure”) provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period not more exceeding 45 days after the Force Majeure event ends, is cancelled or expires unless the parties agree otherwise in writing, and the amount payable by the Licensee shall be reduced proportionally for such duration.