Effective October 1, 2020
You acknowledge that you have read and understood the Agreements, accept these Agreements, and agree to be bound by them. If you don’t agree with (or cannot comply with) the Agreements, then you may not use our Services.
In order to agree to this Agreement, you need to have been duly and validly authorized by the Employer to bind the Company to bind the Company to the terms of this Agreement.
The Company represents and warrants that the undersigned representative of the Company has the authority of the Board to bind the Company to the terms of this Agreement.
(1) Dialogue Technologies Inc., a corporation legally constituted, having its head office at 390 Notre-Dame St W, Suite 200, Montreal, QC, H2Y 1T9 (“Dialogue”)
(2) The company, a corporation legally constituted (“Employer”or the “Company”)
The following terms, when used herein in the Agreement and not defined directly in the Agreement, shall have the meanings set forth or referenced below. Definitions shall be deemed to refer to the singular or plural as the context requires.
This Agreement will commence on the first day the Employer will have access to the Services (the “Launch Date”) and will remain in effect for a period of twelve (12) months (the “Term”). Once the Term expires, this Agreement shall be renewed automatically for successive one year periods unless terminated pursuant to Section 11.
In exchange for the payment of the fees indicated below (the “Service Fees”), the Employer will be granted access to Dialogue’s virtual platform which allows the End Users to benefit from the services set out in Schedule A of this Agreement (the “Services”).
The Employer shall pay Dialogue an the Service Fees and the fee applicable to any selected Additional Service (i.e. $15.00 (plus applicable taxes) per month per Employee) or $100 minimum monthly premium, whichever is higher, for access to the Services by the End Users (the “Fees”). The number of Employees can be adjusted by the Employer through the Dialogue administrative portal.
Dialogue reserves the right to modify the Fees in the following circumstances:
Any modifications to the Fees will be determined by Dialogue and communicated in writing to the Employer at least sixty (60) days prior to the proposed effective date of the modification. The Employer will then have thirty (30) days following receipt of such communication to accept or reject the proposed modifications by giving written notice to Dialogue. Failure to respond within thirty (30) days or continued use of the Services at the end of the thirty (30) day period shall be deemed to constitute consent to the proposed modification, which shall take effect at the end of the initial sixty (60) day period.
Fees are collected monthly on the anniversary of the Launch Date using the Credit Card provided at the time of the subscription.
Dialogue will provide invoices on a monthly basis to the Employer. Any amount that remains unpaid when due under this Agreement will bear interest of 3,00% each month, until its full payment.
Except for the US Service, the Services are exclusively available in Canada, for End Users located in Canada.
(b) Employer. Employer is duly formed under the laws of its jurisdiction of formation and has the necessary authority, power and capacity to enter into the Agreement and to perform its obligations hereunder and this Agreement has been duly and validly authorized, executed and delivered by the Employer and constitutes a legal, valid and binding obligation of the Employer.
(a) Employer Obligations. The Employer will be responsible for the timeliness, accuracy and completeness of all data and information provided to Dialogue and it understands that Dialogue will not independently verify such information. The Employer shall cooperate with Dialogue in the performance of the Services.
(b) Dialogue Obligations. The Services will be (i) performed in a good and professional manner, by qualified personnel, and in compliance with all applicable laws; (ii) conducted in accordance with all applicable laws and professional standards, as applicable, by duly licensed physicians, registered nurses and any other applicable licensed health care providers who Dialogue has made all reasonable commercial efforts to ensure that they are in good standing with the applicable regulatory body and who has the necessary qualifications, knowledge, skill and experience to perform the Services.
Dialogue will (i) directly or through the engagement of a reputable firm screen and vet including, without limitation, conducting, where appropriate, background checks, on all employees, contractors and health care practitioners providing Services hereunder; and (ii) be responsible to annually verify that all health practitioners providing the Services and Additional Services are duly registered with their respective regulatory body.
During the course of the Service Agreement, each party may be given access to information (verbally or in hardcopy and/or electronic form) that relates to the other party’s development, business activities or technical knowledge, which is identified by the discloser as confidential or would be treated as confidential by a reasonable person given the nature of the information or the circumstances surrounding its disclosure or access (“Confidential Information”). Confidential Information does not include information that is in or subsequently enters the public domain; that is now or subsequently becomes known to a party without breach of any confidentiality obligation hereunder; that is independently developed by a party; or that is approved for release by written authorization of disclosure. Each party will treat as such all confidential information obtained from the other party in the course of performing the Services and, except as provided in this paragraph, will not use or disclose such information except in connection with the performance of the Services, only to the extent reasonably necessary for purposes of the Service Agreement. Subject to the paragraph above, this restriction will not apply to any Confidential Information that a party is required by law or professional standards to disclose.
9.2 Data Privacy: collection and processing of Personal Information=
(a) Dialogue will abide by all applicable privacy legislation in the Canadian jurisdictions where Services are performed (including, for greater certainty, all applicable privacy legislation in the jurisdiction where the End User undergoing the assessment is located).
(c) In any case when it comes to Personal Information, each Party shall:
(i) provide effective and secure file transfer mechanisms for the communication of any Personal Information, as appropriate and it being acknowledged that transfer of Personal Information between the Employer and Dialogue will only be made on exceptional basis, upon consent of the relevant End User(s);
(ii) encrypt, using industry standard encryption tools, all records and files containing Personal Information that said Party either transmits or sends wirelessly or across public networks (i.e., the Internet), and to the extent applicable, stores on laptops or storage media or where technically feasible, stores on portable devices. Each Party shall safeguard the security and confidentiality of all encryption keys associated with encrypted Personal Information; and
(iii) generally implement and maintain administrative, physical, and technical safeguards that prevent any unauthorized use of Personal Information, including, without limitation, appropriate technical and organizational measures. The safeguards shall include, at a minimum, an information security program that meets prevailing industry practice standards to safeguard Personal Information. Such information security program shall include, without limitation (i) adequate physical security of that Party’s facilities where Personal Information is stored, (ii) reasonable precautions taken with respect to the employment of and access given to that Party’s personnel, and (iii) an appropriate network security program applicable to the Party’s system.
(d) Provided that the Employer requires Services to be provided to End Users outside Canada, Dialogue further represents and warrants that Personal Information is stored on dedicated servers located in Canada only; and that it will keep all such Personal Information, materials, documents, archives and backups securely and logically segregated, including by implementing any necessary access barriers and password authorization procedures in connection therewith.
(e) In addition, throughout the term of this Agreement and thereafter, it being agreed that the following obligations will survive the termination or expiration of the Agreement as appropriate, Dialogue shall:
(iii) where any disclosure or transfer of Personal Information is required by law promptly notify the End Users as appropriate, in writing before complying with any such requirement for disclosure or transfer;
(vi) when required by applicable laws, notify End Users, Privacy Commissioner of Canada and any relevant provincial entities as appropriate in writing upon Dialogue becoming aware of any Security Breach involving Personal Information under its control in circumstances creating a real risk of significant harm to End Users, it being acknowledged by the Employer that the Employer will be notified of the same only upon prior consent of the End Users, as appropriate, or will otherwise only receive a general notification of Security Breach by Dialogue;
(vii) except for healthcare professionals working for Dialogue as employees or contractors, not sub-contract or assign to any third party any of the processing without the prior written consent of the End Users. Where Dialogue, with the written consent of the End Users, as appropriate, provides access to Personal Information to a third party or contracts such rights or obligations, Dialogue shall 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 Dialogue under this Section 4.2. Dialogue shall only retain contractors that Dialogue can reasonably expect to appropriately protect the privacy, confidentiality and security of the Personal Information; and
(viii) to the extent permitted by applicable laws (including any laws pertaining to medical records retention), upon the receipt of the End Users’ written instruction, immediately return (or, upon the written instruction of the End Users securely dispose of) each and every original and copy in every media of all Personal Information in the possession or control of Dialogue and certify to the End User in writing upon completion of any such delivery or disposal. In the event that any applicable laws does not permit Dialogue to comply with the delivery or destruction of the Personal Information, Dialogue warrants that it shall ensure the strict confidentiality of the Personal Information in accordance with said laws.
For the purposes herein, “Personal Information” shall mean information that is about an identifiable individual or that allows an individual to be identified and “Security Breach” shall mean any actual or suspected, whether or not intentional, (i) disclosure, access to or use of any Personal Information in breach of this Agreement by Dialogue or (ii) unauthorized intrusion into Dialogue’s systems or any Subcontractors systems containing any Personal Information.
Dialogue retains all rights, including intellectual property rights, in all materials, trademarks, trade names, patents, software, documentation, tools, know-how, techniques, processes and methodologies that may be supplied to the Employer or created or used by Dialogue in the performance of the Services in the Territory (“Deliverables”). Dialogue grants the Employer a non-exclusive, non-transferable, license to use the Deliverables for which Dialogue owns the intellectual property rights, for the purpose of receiving the Services in the Territory and for the duration of the Agreement only.
The Employer shall not in any way modify, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to exploit the Deliverables or change the organization of the Deliverables.
This Agreement shall not be construed as precluding or limiting in any way Dialogue’s right to provide similar or other services of any kind or nature to any person or entity.
The Services and materials delivered in connection therewith are provided by Dialogue for the Employer’s internal use and information only and may not be distributed, published, made available or relied upon by any other person, without Dialogue’s express written permission.
This Agreement may be terminated by either party at any time for any reason by providing one hundred and twenty (120) days advance written notice to the other party. In the event of termination pursuant to this paragraph, the Employer agrees to pay Dialogue for any amount of fees due to Dialogue up to the date of the termination.
The Employer may terminate this Agreement immediately with written notice in the event of Dialogue’s breach of any material term of this Agreement that is not cured within thirty (30) days following receipt of written notice of the breach from the Employer.
Dialogue may immediately terminate this Agreement in the event of non-payment of fees when due.
Dialogue agrees to hold the Employer and its directors, officers and employees harmless from any and all claims, lawsuits, settlements, judgments, costs, penalties, and expenses, including reasonable legal fees and expenses resulting from, or arising out of (i) any gross negligence, fraud or willful misconduct on the part of Dialogue or (ii) any failure to comply with its obligations under the Agreement and these standard terms and conditions.
The Employer agrees to hold Dialogue and its directors, officers, and employees harmless from any and all claims, lawsuits, settlements, judgments, costs, penalties, and expenses, including reasonable legal fees and expenses, resulting from the Employer’s failure to comply with its obligations under the Agreement and these standard terms and conditions.
Except in case of (i) gross negligence, fraud or willful misconduct, (ii) intellectual property right infringement or (iii) body injury, Dialogue’s liability, if any, to any person, arising out of or in any way related to the Agreement or the performance of its duties and obligations under the Agreement and these standard terms and conditions, shall for all purposes in total be limited to direct damages in an amount not to exceed the aggregate amount of Fees paid by the Employer for the Services during the last twelve (12) months period prior to the event giving rise to the claim.
In no event shall Dialogue or the Employer have any liability at any time for any loss of profits, loss of business revenue, failure to realize expected savings, or for any indirect, special, or consequential damages, even if advised of the possibility of such damages.
The parties understand and agree that any liability arising out of or relating to the provision of the Services by the health practitioners providing the Services and Additional Services to the End Users is subject to such practitioners’ professional liability.
It is understood and agreed that each of the parties is an independent contractor and that neither party is, nor shall be considered to be an agent, distributor, partner, fiduciary or representative of the other. Neither party shall act or represent itself, directly or by implication, in any such capacity in respect of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
The Agreement and these standard terms and conditions shall be governed by the laws of the Province of Quebec and the laws of Canada applicable therein.
This Agreement constitutes the entire agreement between the parties and supersedes all other oral or written representations, proposals, understandings or agreements relating to the subject matter thereof.
Unless otherwise indicated, each notice to be given to a party under this Agreement must be given in writing and delivered personally or by courier, sent by mail, sent by prepaid registered mail, or transmitted by fax. Notices given to the Employer shall be sent to the address set out in this Agreement. Notice given to Dialogue shall be sent to:
Dialogue Technologies Inc.
390 Notre-Dame St W, #200
Montreal, QC H2Y 1T9
In the event that any provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall not be affected, impaired or invalidated, and each such provision shall be valid and enforceable to the fullest extent permitted by law.
A party shall not be liable for failure to perform any of its obligations under this Agreement if such failure is due to an act of God, fire or explosion, strike, lock-out, conditions of war, act of military authority, terrorist attacks, blackouts, rebellion or civil disobedience or other impediment beyond its control.
Terms which by their nature survive termination of this Agreement shall survive, including section 1 (Definitions), the non-disparagement obligations contained in section 3 (General Obligations), section 4 (Confidentiality), section 5 (Intellectual Property Rights), section 6 (Restriction on Use), section 8 (Indemnity), section 9 (Limitation of Liability), section 10 (Independent Contractor), and section 11 (Governing Law).
This Agreement shall be binding upon both parties and their respective successors and permitted assigns. Dialogue is permitted to assign, transfer or delegate any of its rights or obligations to any affiliate or successor in interest to all or substantially all of the assets or business of the relevant Dialogue practice, without Employer’s consent, in which case, such affiliate or successor in interest shall be bound by and entitled to the benefit of the terms of this Agreement.
The Employer acknowledges and agrees that Dialogue has the right to use the Employer’s name and logo (“IP”) without the Employer’s consent for the following purposes (and only for such purposes): use in Dialogue marketing and sales flyers, sales presentations, website and social media posts and in any joint promotions, as applicable, throughout the Term and until the termination or expiry of this Agreement.
Dialogue will (i) not use the IP other than for the purposes mentioned above without the Employer’s prior written consent; and (ii) only use the IP according to this Section 18 and any written instructions of the Employer, as provided from time to time to Dialogue.
Notwithstanding anything to the contrary, the Employer may revoke the right to use given to Dialogue under this Section 18 upon forty-five (45) days prior written notice to Dialogue.
The parties have agreed that this Agreement and all communications and documents relating hereto be expressed in the English language. Les parties ont convenu que la présente entente ainsi que toutes les communications et tous les documents y afférents seront exprimés en langue anglaise.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Facsimile, .pdf and other electronic signatures (notably through software such as Hello Sign or DocuSign) to this Agreement shall have the same effect as original signatures.