Modern Health software as a service Customer Agreement

These Modern Health Software as a Service Terms of Service (the “Agreement”) form an agreement between Modern Health Canada Inc. (“Modern Health”), with its principal place of business located at 34 Minowan Miikan Ln, Toronto, M6J 0G3, ON, Canada. and the person or entity entering into a Subscription (the “Customer”) and are entered into the earlier of: (a) the date Customer first uses any part of the Modern Health SaaS Services; and (b) the date Customer agrees to be bound by this Agreement (the “Effective Date”). Each of Modern Health and Customer will individually be referred to as a “Party” and jointly as the “Parties”.

This Agreement sets forth the terms and conditions that govern the provision and use of the Modern Health SaaS Services (as defined below) by the Customer. Modern Health will independently enter into terms of use with individual users of the Modern Health SaaS Services, such as Clients and Providers, which will govern the relationship between Modern Health and such individuals.

By using the Modern Health SaaS Services, Customer: (a) represents and warrants that (i) Customer has the capacity to enter into binding obligations, and (ii) all information supplied by Customer to Modern Health through the Modern Health SaaS Services is true, accurate, current and complete; and (b) agrees to be bound by and comply with this Agreement, as updated from time to time in accordance with Section 12(l). If Customer does not agree to this Agreement, Customer must not use the Modern Health SaaS Services.

Definitions
1. “Active Subscription” means any Subscription then-currently in good standing and in respect of which Customer has paid all applicable Fees.
2. “Client” means any person who accesses or uses, or otherwise creates a user account for the access or use of, the Modern Health SaaS Services for the purpose of obtaining information about, communicating with or receiving services from one or more Modern Health customers or their Providers.
3. “Client Authorized Users” means any Client and any additional persons who a Client authorizes to access and use the Modern Health SaaS Services on the Client’s behalf in accordance with this Agreement, including to access such Client’s information and interact with the Client’s designated Provider.
4. “Customer Authorized User” has the meaning set out in Section 5.
5. “Customer Data” means any data, information, content, records, and files that Customer (or any of its Customer Authorized Users) loads, transmits to or enters into the Modern Health SaaS Services.
6. “Fees” has the meaning set out in Section 7.
7. “Modern Health SaaS Services” means services through which Modern Health hosts and makes available the Modern Health solution for enabling Modern Health’s customers and their Providers to perform practice, billing and record management, including the administrative management and coordination of health, coaching and wellness services for Clients. For the avoidance of doubt, none of the Modern Health SaaS Services will constitute any part of a controlled or authorized act that may only be provided by a regulated health care provider.
8. “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
9. “Personal Information” means information about an identifiable individual.
10. “Privacy Policy” has the meaning set out in Section 4.
11. “Provider” means individuals providing health services in affiliation with or on behalf of the Customer or another Modern Health customer.
12. “Subscription” means a subscription for use of the Modern Health SaaS Services entered into on the Website.
13. “Term” has the meaning set out in Section 11(a).
14. “Website” means any websites used by Modern Health to provide the Modern Health SaaS Services, including the websites located at http://practicespace.health/, https://playspace.health/, https://modernhealth.ca/, and sub-domains.
Modern Health SaaS Services
1. Provisioning of the Modern Health SaaS Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Modern Health will make the Modern Health SaaS Services available to Customer on the terms and conditions set out in this Agreement.
2. Restrictions on Use. Customer must not itself, and will not permit others to:
  1. except as expressly permitted herein, sub-license, sell, rent, lend, lease or distribute the Modern Health SaaS Services or any intellectual property rights therein or otherwise make the Modern Health SaaS Services available to others;
  2. use the Modern Health SaaS Services to facilitate or provide timesharing, service bureau use or commercially exploit the Modern Health SaaS Services;
  3. use or access the Modern Health SaaS Services in violation of any applicable law or intellectual property right;
  4. use the Modern Health SaaS Services in a manner that threatens the security or functionality of the Modern Health SaaS Services;
  5. use the Modern Health SaaS Services to create, collect, transmit, store, use or process any Customer Data:
    1. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
    2. that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
    3. that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
  6. Modify the Modern Health SaaS Services, other than user-configurable settings designated for use by the Customer or Customer Authorized Users;
  7. reverse engineer, de-compile or disassemble the Modern Health SaaS Services;
  8. remove or obscure any proprietary notices or labels on the Modern Health SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
  9. use the Modern Health SaaS Services for the purpose of building a similar or competitive product or service;
  10. perform any vulnerability, penetration or similar testing of the Modern Health SaaS Services; or
  11. use the Modern Health SaaS Services for any purpose or in any manner not expressly permitted in the Agreement.
3. Suspension of Access; Scheduled Downtime; Modifications. Modern Health may, at its discretion:
  1. 1. suspend Customer’s (including any Customer Authorized User’s) use of the Modern Health SaaS Services or any component thereof:
      1. for scheduled maintenance (information regarding Modern Health’s scheduled maintenance windows is available upon request);
      2. if Customer or any Customer Authorized User violates any provision of this Agreement or fails to maintain an Active Subscription;
      3. to address any emergency security concerns; or
      4. if required to do so by a regulatory body or as a result of a change in applicable law; and
    2. Modify the Modern Health SaaS Services.
4. Backup and Recovery. Modern Health will perform regular backups of the Modern Health SaaS Services and test recovery from backups consistent with industry practices that are generally used by similarly situated technology providers.
Ownership; Reservation of Rights
1. Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to Modern Health a nonexclusive, worldwide, royalty-free, sublicensable, fully paid-up right during the Term to use, process, store, disclose and transmit Customer Data: (i) for the purposes of providing the Modern Health SaaS Services to Customer (including to improve and enhance the Modern Health SaaS Services and for other development, diagnostic and corrective purposes in connection with the Modern Health SaaS Services); (ii) as otherwise expressly provided in this Agreement; and (iii) to produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, “Aggregated Data”). Modern Health may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind.
2. Modern Health or its licensors retain all ownership and intellectual property rights in and to: (i) the Modern Health SaaS Services; (ii) anything developed or delivered by or on behalf of Modern Health under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii).
3. All rights not expressly granted by Modern Health to Customer under this Agreement are reserved.
Privacy and Security
1. Customer understands that Personal Information, including the Personal Information of Customer Authorized Users, will be treated in accordance with Modern Health’s privacy policy located at https://www.playspace.health/privacy-policy (the “Privacy Policy”).
2. The Parties will comply with the obligations set forth in the privacy addendum set forth at Exhibit A hereto (the “Privacy Addendum”).
Customer User Account
Customer may authorize Customer Authorized Users, issue one or more accounts (each, a “Customer User Account”) for use by such Customer Authorized Users, and perform ongoing administration of Customer User Accounts directly within the Modern Health SaaS Services. Customer is responsible for managing the Customer User Accounts. Customer will ensure that Customer Authorized Users only use the Modern Health SaaS Services through the applicable Customer User Account. Customer will not allow any Customer Authorized User to share a Customer User Account with any other person. Customer is responsible for identifying and authenticating all Customer Authorized Users and for Customer Authorized Users’ compliance with this Agreement. Customer will promptly notify Modern Health of any actual or suspected unauthorized use of the Modern Health SaaS Services. Modern Health reserves the right to suspend, deactivate, or replace any Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
Support
Customers will generally have access to Modern Health’s technical support by contacting Modern Health: via email at support@playspace.health, and any inquiries will be responded to by Modern Health in a timely fashion.
Fees and Payment
1. Fees. In consideration for Modern Health’s provision of the Modern Health SaaS Services, Customer will pay to Modern Health the fees described on the Website (the “Fees”), in accordance with the payment terms set out therein. Fees are quoted and payable in Canadian dollars. For certainty, Subscriptions will automatically renew at the then-current subscription rate described on the Website, and Modern Health will charge Customer on a recurring basis. All prices, discounts, and promotions posted on the Website are subject to change without notice. The Fees do not include applicable taxes, which Customer is responsible for paying. All such taxes will be added to the total Fees. Modern Health reserves the right to correct any errors, inaccuracies, or omissions in the Fees at any time. Payment obligations are non-cancellable, and except as otherwise expressly set forth in this Agreement, all Fees paid (including prepaid amounts) are non-refundable, including if this Agreement is terminated in accordance with Section 11 herein.
2. Third Party Payment Processor. By submitting an order for a Subscription, you are agreeing to pay the Fees, and all applicable charges and taxes, by credit card. The collection, processing, and clearance of payments, and distribution of funds to Modern Health, will be performed by a third-party payment processor (the “Payment Processor”) and will be subject to the terms, conditions and privacy policies, if any, of the Payment Processor in addition to this Agreement. Modern Health is not responsible for any error by, or other acts or omissions of, the Payment Processor. Modern Health reserves the right to correct any errors or mistakes that any Payment Processor makes even if it has already requested or received payment. Modern Health’s current Payment Processor is Stripe. For more information on Stripe, and to review Stripe’s terms and conditions, please visit Stripe’s website: https://stripe.com/. Modern Health may use additional Payment Processors, as identified by Modern Health from time to time on the Website.
3. Disputed Charges. If Customer believes Modern Health has charged Customer incorrectly, Customer must contact Modern Health no later than 45 days after having been charged by Modern Health in order to request an adjustment or credit to the amount due. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith to resolve the dispute.
4. Suspension. Any suspension of the Modern Health SaaS Services by Modern Health pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
Confidential Information
1. Definitions. For the purposes of this Section, a Party receiving Confidential Information will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
2. Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as protective as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
3. Exceptions to Confidentiality. Notwithstanding Section 8(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Modern Health, to potential assignees, acquirers or successors of Modern Health if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Modern Health.
Warranty; Disclaimer; Indemnity
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO CUSTOMER, SOME OR ALL OF THE FOLLOWING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS.
1. Customer Consents. Customer represents and warrants to, and covenants with, Modern Health that Customer Data will only contain Personal Information in respect of which Customer has provided all required notices and disclosures (including to each Customer Authorized User and any other individual from whom Personal Information is collected) and obtained all applicable consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Modern Health to provide the Modern Health SaaS Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Modern Health and to or from all applicable third parties.
2. General Disclaimer. Customer acknowledges, understands, and agrees that the Modern Health SaaS Services are provided “as is” and “as available”, with all faults and without warranties or conditions of any kind. To the fullest extent permitted by applicable law, Modern Health disclaims any and all representations, warranties, and conditions with respect to the Modern Health SaaS Services other than the express limited representations and warranties in this Agreement, including implied representations, warranties and conditions of merchantability, merchantable quality, fitness for a particular purpose, and non-infringement, or any warranties or conditions arising out of course of dealing or usage of trade, or that the Modern Health SaaS Services are or will be error-free or will operate without interruption. Customer is solely responsible for determining the suitability of the Modern Health SaaS Services. Any services that Modern Health is not contractually obligated to provide but that Modern Health may perform for Customer at Customer’s request and without any additional charge are provided on an “as is” basis without warranties of any kind.
3. Health Services Disclaimer. Customer acknowledges and agrees Modern Health is not a health care provider, does not engage any health care providers, and is not engaged in the practice of psychology, psychotherapy, social work or any other health profession. Modern Health is not a party to any therapist-patient relationship that may be established through the Modern Health SaaS Services. Modern Health is not liable for any health services provided by Customer and its Providers.
4. Indemnity. Customer will defend, indemnify and hold harmless Modern Health, its affiliates and service providers, and each of their respective employees, officers, directors, affiliates, agents, contractors, successors, and assigns from and against any and all third party (including Client Authorized User and Customer Authorized User) claims (including causes of action, damages, recoveries, losses, deficiencies, interest, penalties, reasonable legal fees or other costs or expenses of any kind or nature), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) any claim relating to or arising out of the relationship between the Customer, Customer Authorized User and any Client or health services made available through the Modern Health Saas Services, including (X) the actions or omissions of any Customer or any Customer Authorized User, whether negligent or otherwise, (Y) any actual or alleged professional negligence, professional misconduct, dispute regarding fees charged or paid for services, or failure to provide any health service in a timely manner or in accordance with an acceptable standard of care, and (Z) any death, illness, ailment, condition or injury of any person, or (iii) use of the Modern Health SaaS Services (or any part thereof) by Customer or any Customer Authorized User in combination with any third party software, application or service, except as made available by Modern Health. Customer will fully cooperate with Modern Health in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Modern Health.
Limitation of Liabilities
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY CUSTOMER, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS.

The Parties acknowledge that the following provisions reflect a fair allocation of risk and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
1. AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MODERN HEALTH IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE MODERN HEALTH SAAS SERVICES IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL MODERN HEALTH’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
2. TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL MODERN HEALTH BE LIABLE TO CUSTOMER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
Term; Termination; Survival
1. Term. This Agreement will commence on the Effective Date and continue to be in effect at all times that Customer maintains an Active Subscription (the “Term”).
2. Subscription Term and Renewals. Each Subscription will continue for the term specified in the Customer’s order. Subscriptions will automatically renew for the same period as Customer’s then-current Subscription unless either Party elects to not renew by notifying the other Party in writing at least two business days before the expiration of the then-current Subscription.
3. Termination for Convenience. Customer may terminate a Subscription at any time by providing two business days’ written notice to Modern Health; provided that no refunds will be provided in respect of any portion of a subscription fee paid by Customer in advance.
4. Termination for Cause. Either Party may, in addition to other relief, terminate a Subscription if the other Party commits a material breach of any provision of this Agreement and fails within 30 days after receipt of notice of such breach to correct such breach (or immediately if such breach is not capable of being cured).
5. Customer Hold. Customer may request in writing that Modern Health temporarily suspend Customer’s Subscription for a period of up to 12 months prior to termination or expiration of Customer’s then-current Subscription (a “Customer Hold”). If Modern Health accepts a Customer Hold request received from a Customer in writing, Modern Health will confirm in writing the duration of the applicable Customer Hold period (the “Hold Period”) and Modern Health will continue to store Customer Data on behalf of Customer during the Hold Period; provided that Modern Health may provide 30 days’ written notice to Customer at any time terminating the Hold Period and the Hold Period and this Agreement will terminate as of the effective date of termination set out in such notice. For the avoidance of doubt, the terms of this Agreement will continue to apply to the Parties during any Hold Period.
6. Effect of Termination. Upon termination or expiration of this Agreement:
  1. all Customer Authorized User accounts will be disabled;
  2. within 30 days following notice of termination (or upon termination taking effect, if later), Modern Health will, at Customer’s request, provide to Customer access to Customer Data (in digital format) to enable Customer and its Providers to comply with their obligations to access and download or otherwise copy their Client records. Upon request, Modern Health will use commercially reasonable efforts, if and to the extent feasible, to return such Customer Data to Customer in another standard format, provided that such service will be performed at the Customer’s sole expense, including reimbursing Modern Health for any time incurred to complete such request;
  3. if Customer does not provide instructions to Modern Health regarding the transfer of Customer Data to Customer within 90 days following termination, Modern Health will delete any Customer Data that remains in the hardware or systems used by Modern Health to provide the Modern Health SaaS Services and will have no obligation to Customer to continue to store any Customer Data; and
  4. Modern Health will not be responsible for communicating or contacting any Client of Customer upon the termination of this Agreement and all Clients may, at their sole discretion, opt to continue to use the Modern Health SaaS Services pursuant to the terms of use between Modern Health and the Client.
7. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy and Security), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Warranty; Disclaimer; Indemnity), Section 10 (Limitation of Liabilities), Section 11 (Term; Termination; Survival), and Section 12 (General Provisions).
General Provisions
1. Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent: (i) if to Modern Health, to the following address: 34 Minowan Miikan Ln, Toronto, M6J 0G3, ON, Canada.
  1. Attention: Privacy Officer
  2. Email: privacy@playspace.health
  and (ii) if to Customer, to the current postal or email address that Modern Health has on file with respect to Customer. Modern Health may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Modern Health current at all times during the Term.
2. Assignment. Customer will not assign this Agreement to any third party without Modern Health’s prior written consent. Modern Health may assign its rights or obligations under this Agreement, in whole or in part, without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement will enure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
3. Choice of Law. Except as restricted by applicable law, this Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Modern Health from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
4. Geographic and Export Restrictions. Modern Health makes no representation that the Modern Health SaaS Services are suitable for use in locations outside Canada. The Modern Health SaaS Services are not intended for use in any jurisdiction where its use is not permitted. If Customer accesses the Modern Health SaaS Services from outside Canada, Customer does so at its own risk and is responsible for compliance with local laws of the applicable jurisdiction. Customer will be required to ensure it is appropriately licensed and authorized to provide its services to the Client, taking into account the Client’s geographic location. Customer will comply with all export laws and regulations that may apply to its use of the Modern Health SaaS Services.
5. Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
6. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond the applicable Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites.
7. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
8. Waiver. Modern Health’s failure to insist upon or enforce strict performance of any provision of this Agreement will not be construed as a waiver of any provision or right. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
9. Independent Contractors. Modern Health’s relationship to Customer is that of an independent contractor, and neither Party is an agent, employee or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
10. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether electronic, oral or written.
11. Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, MODERN HEALTH MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY MODERN HEALTH, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
12. English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

EXHIBIT A

PRIVACY ADDENDUM

Modern Health Obligations. To the extent that Modern Health receives Personal Information in the course of providing the Modern Health SaaS Services, Modern Health will:
1. collect, use, access, disclose, retain, modify, or otherwise process Personal Information only to the extent necessary for the purpose of rendering the Modern Health SaaS Services in accordance with this Privacy Addendum and as otherwise instructed by Customer in writing or as otherwise permitted hereunder;
2. notify Customer in writing of any: (i) enquiry received from an individual relating to, among other things, the individual’s right to access, modify or correct Personal Information; (ii) complaint received by Modern Health relating to the processing of Personal Information; and (iii) if not legally prohibited from doing so, order, demand, warrant or any other document purporting to compel the production of any Personal Information, and promptly comply and fully co-operate with all instructions of Customer with respect to any action taken with respect to such enquiry or complaint;
3. limit access to Personal Information to its personnel who have a need for access to the Personal Information solely for the purposes of Modern Health rendering the Modern Health SaaS Services;
4. where Modern Health provides access to Personal Information to a third party (including an affiliate) or contracts such rights or obligations, enter into a written agreement with each contractor or third party that imposes obligations on the contractor or third party that are substantially similar to those imposed on Modern Health under this Privacy Addendum. Modern Health will only retain contractors that Modern Health can reasonably expect to appropriately protect the privacy, confidentiality and security of the Personal Information; and
5. require its personnel with access to Personal Information to agree, in writing, to protect the confidentiality and security of Personal Information in accordance with the terms of this Privacy Addendum, and otherwise properly advise and train each of its employees and permitted contractors of the requirements under this Privacy Addendum and applicable privacy laws.
Security. Modern Health agrees that it has established and will maintain an information security program designed to meet or exceed applicable laws and regulations. Modern Health agrees that such program includes administrative, technical, and physical safeguards designed to: (a) protect the security, confidentiality, and integrity of Personal Information; (b) protect against anticipated threats or hazards to the security, confidentiality, and integrity of Personal Information; (c ) protect against unauthorized access to, or use of, Personal Information; and (d) ensure the proper disposal of Personal Information.
Security Incident Response. Modern Health will notify the Customer at the first reasonable opportunity if it becomes aware of the loss, theft or unauthorized access to, use or disclosure of Personal Information in the custody of Modern Health (a “Security Incident”). Modern Health will use commercially reasonable efforts to address the Security Incident in a timely manner.
Customer Obligations.
1. Notice of Privacy Practices. Customer will notify Modern Health of limitation(s) in its notice of privacy practices, to the extent such limitation affects Modern Health’s permitted uses or disclosures of Personal Information.
2. Client Permission. Customer will notify Modern Health of change(s) in, or revocation of, permission by a Client to use or disclose Personal Information, to the extent such change(s) affect(s) Modern Health’s permitted uses or disclosures of Personal Information. Customer agrees to provide all necessary notices and obtain all necessary Client authorizations or consents that may be required under provincial or federal law or regulation in order to transmit Personal Information to Modern Health and to enable Modern Health to use and disclose Personal Information as contemplated by this Privacy Addendum. Customer will ensure that all Personal Information transferred to Modern Health for processing is adequate, relevant and up-to-date, and limited to what is necessary to permit Modern Health to perform its obligations and exercise its rights under the Agreement and this Privacy Addendum.
3. Restrictions. Customer will notify Modern Health of restriction(s) on the use or disclosure of Personal Information to which Customer has agreed, to the extent such restriction(s) affect(s) Modern Health’s permitted uses or disclosures of Personal Information.
Return or Destruction. In the event of termination of the Agreement, to the extent feasible, Modern Health will return all Personal Information that Modern Health still maintains in any form to Customer in accordance with Section 11(e)(ii) or destroy such Personal Information. If the return or destruction of all Personal Information is not feasible, Modern Health will extend the protections of this Privacy Addendum to the remaining information and limit further use and disclosure of Personal Information to those purposes that make the return or destruction of the Personal Information infeasible.
Compliance with Laws. Modern Health and Customer will comply with all applicable federal, provincial and local laws, rules and regulations concerning the privacy and security of Personal Information, including the requirements of the Personal Information Protection and Electronic Documents Act and substantially similar provincial legislation, and the Personal Health Information Protection Act (Ontario) and similar federal or provincial legislation applying to “personal health information” or like terms.