Multi Leaf Consulting - Terms & Conditions

Last Updated: 23 Oct 2019

Multi Leaf Consulting (“Multi Leaf Consulting” or the “Contractor”) provides hosting services for the open source software, QATrack+. QATrack+ is used for the quality assurance and quality control of clinical treatment, imaging and measurement devices (“Unit” or “Units”).

By using or signing up for the provision of QATrack+ hosting services by Multi Leaf Consulting, you (the “Client”) are accepting and agreeing to be bound by the terms and conditions (“Terms of Service”) that follow. Any such services offered or provided by the Contractor are referred to in the Terms of Service as the “Services”. Any new Services offered or provided by the Contractor in addition to the current Services outlined below shall also be governed by the Terms of Service. The Contractor reserves the right to amend and update the Terms of Service by posting the amendments and updates to the Multi Leaf Consulting website. The Client is advised to check the website Terms of Service from time to time, as the amendments are effective as of the date of posting. The Client’s continued use of the Services after an amendment to the Terms of Service is posted constitutes the Client’s agreement to and acceptance of the amended Terms of Service.

Article 1.0 – SERVICES PROVIDED AND GENERAL TERMS AND CONDITIONS OF USE

1.1 The Client hereby agrees to the Contractor’s provisions of some or all of the following software Services on an hourly or monthly basis, as requested by the Client:

1.2 The Services will also include any other tasks related to QATrack+ which the Client and the Contractor may agree on in writing. The Contractor may provide such additional Services to the Client upon request, provided that such request does not include hardware-related issues. The provision of Services under the Terms of Service is expressly limited to QATrack+ software.

1.3 The Terms of Service shall govern and be binding upon the Client and Contractor for the entire period covering the Contractor’s provision of Services to the Client. The Flat Fee compensation outlined in Article 2.0 shall automatically be charged to the Client monthly.

1.4 Multi Leaf Consulting reserves the right to modify or terminate the provision of Services to the Client under the Terms of Service for any reason, at any time with no notice.

1.5 The Client may terminate the Contractor’s provision of Services at any time with two (2) weeks’ written notice.

1.6 In the event that the Client breaches or violates a material provision under the Terms of Service, Multi Leaf Consulting may terminate its provision of Services immediately and require the Client to indemnify Multi Leaf Consulting against all reasonable damages.

1.7 Except as otherwise provided in the Terms of Service, the obligations of the Contractor shall end upon the termination of the provision of Services.

Article 2.0 – MONTHLY COMPENSATION, PER HOUR COMPENSATION AND REIMBURSEMENT OF EXPENSES

2.1 The Client acknowledges that the Contractor shall invoice the Client a set flat fee per month for the Services (the "Flat Fee"), which shall be agreed upon by the Contractor and Client in writing. Such monthly Flat Fee shall include the provision of a set number of hours of Services to the Client (the “Service Hours”).

2.2 The time the Contractor spends providing Services to the Client shall be tracked by the Contractor in 15-minute increments (0.25 hours) and deducted from the Services Hours outlined in Article 2.1. The Contractor shall provide the Client with a summary of Service Hours used and Service Hours remaining on a monthly basis.

2.3 Any Services Hours that remain unused at the end of the one (1) year period following the start date of Contractor’s provision of Services to the Client, or that remain unused at the end of any automatic monthly renewal period, shall be forfeited by the Client. For greater clarity, such unused Service Hours shall not be refunded, and shall not roll over into the subsequent year when the Flat Fee compensation is automatically charged to the Client pursuant to Article 2.1.

2.4 In the event that the Client uses all available hours stipulated in Article 2.1 prior to the end of the one-year period following the start date of the Contractor’s provision of Services, or uses all available hours stipulated in Article 2.1 prior to the end of any automatic monthly renewal period, the Client may request that the Contractor continue to provide Services. Such additional provision of Services shall be at the Contractor’s sole discretion. If the Contractor agrees to continue providing Services, the Contractor shallinvoice the Client a flat fee per hour for the Services (the "Hourly Flat Fee"), which shall be agreed upon by the Contractor and the Client. The Hourly Flat Fee shall be charged by the Contractor to the Client in 15-minute increments (0.25 hours). An invoice from the Contractor outlining the Hourly Flat Fee and hours worked by the Contractor in the previous month shall be sent to the Client on a monthly basis (an “Interim Invoice”). If the Client did not engage the Contractor to provide Services in the previous month, no Interim Invoice shall be sent to the Client for that month. The Interim Invoice shall be paid by the Client to the Contractor within thirty (30) days of the receipt. In the event that the provision of Services under the Terms of Service is terminated by the Client or the Contractor prior to completion of the requested Services, but where the Services have been partially performed, the Contractor shall be entitled to payment for all hours workedat the Hourly Flat Fee rate, provided that there has been no breach of contract or violation of the Terms of Serviceby the Contractor.

2.5 The Flat Fee and Hourly Flat Fee referenced in the Terms of Service do not include HST or other sales taxes, or other applicable duties as may be required by law. Any sales tax and duties required by law will be charged to the Client in addition to the compensation amount due to the Contractor.

2.6 The Contractor shall be reimbursed from time to time for reasonable and necessary out-of-pocket expenses incurred by the Contractor in connection with providing the Services to the Client (the “Expenses”). The Contractor and Client agree that such reimbursement for any Expenses may be noted on an Interim Invoice or may be requested by the Contractor immediately after the Contractor incurs such Expenses, at the sole option of the Contractor.

Article 3.0 – TRAVEL EXPENSES AND TRAVEL COMPENSATION

3.1 If requested by the Client, the Contractor may agree to travel to the Client’s workplace to conduct on-site QATrack+ employee training or to provide other Services to the Client. Airfare, train tickets, accommodations and vehicle transportation costs (i.e. taxi or car rental) are not included in the Flat Fee and will be invoiced by the Contractor to the Client separately (the “Travel Expenses”). If the Contractor agrees to the Client’s travel request, the Contractor agrees to make all travel and accommodations arrangements and shall submit the receipts with an invoice to the Client for reimbursement. The Client hereby agrees to fully reimburse the Contractor for all Travel Expenses reasonably incurred.

3.2 The Client hereby agrees to compensate the Contractor a set amount of compensation per day for all days the Contractor spends providing on-site Services (the “Per Day Fees”), which is in addition to the Travel Expenses. The Contractor and the Client acknowledge that the Per Day Fees shall be negotiated and agreed upon in writing prior to the Contractor booking any transportation.

3.3 The Client agrees to compensate the Contractor a set amount of compensation per day for all days the Contractor spends travelling to or from the Client’s workplace, or any other place as the Client requests (the “Travel Day Fees”), provided the Contractor agrees to the Client’s travel request.

3.4 The Contractor shall submit invoices to the Contractor for Travel Expenses, Per Day Fees and Travel Day Fees. Such invoices may each be sent under separate cover to the Client, or may be sent as one invoice, at the sole option of the Contractor. The Client hereby agrees to remit payment for any invoice received from the Contractor within thirty (30) days of receipt.

Article 4.0 – CONFIDENTIALITY

4.1 Notwithstanding the clauses contained in this Article 7.0, the Client expressly acknowledges and agrees that no patient health information, including the name, initials, patient identification number or any other identifying information of any patient, shall be transferred by the Client to the Contractor, or to a server owned or controlled or used by the Contractor, at any time, under any circumstance. The Client further acknowledges and agrees that transferring any such identifying patient data shall be considered a breach of the Terms of Service that gives rise to a right to termination by Multi Leaf Consulting, in accordance with Article 1.6 herein.

4.2 Information of a confidential nature (the "Confidential Information") refers to: any data or information relating to the Client or a patient of the Client, whether business or personal, which would reasonably be considered to be private or proprietary to the Client; any information relating to the Client which is not generally known; and any information which, if released by the Contractor, could reasonably be expected to cause harm to the Client or a patient of the Client. Confidential Information also encompasses the details and terms governing the provision of Services to the Client by the Contractor, including the compensation rates agreed to by the Client and Contractor pursuant to Article 2.0 and Article 3.0 herein.

4.3 All QATrack+ data, written and oral information, and material produced or disclosed or provided by the Client to the Contractor during the provision of Services is Confidential Information regardless of whether it was provided before or after the commencement of the provision of Services, and regardless of how it was provided to the Contractor or how the Contractor came to know about such Confidential Information.

4.4 The Contractor agrees that he will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Contractor has directly or indirectly obtained, except: as authorized by the Client in writing, as reasonably required to fulfill his obligations under the Terms of Service, as reasonably required to fulfill the agreed upon terms of the provision of Services by the Contractor to the Client, or as required by law. The obligations of confidentiality shall apply for the entire period covering the Contractor’s provision of Services to the Client, and shall survive the termination of the provision of Services, regardless of the reason for termination or the party effecting it.

4.5 The Contractor and Client acknowledge that the agreed-upon terms and conditions of the provision of Services pursuant to the Terms of Service, including without limitation the name of the Client and Contractor, compensation rates, details of the Services provided, and data collected during the supply of Services may be subject to the Freedom of Information and Protection of Privacy Act (the “Act”), or other such similar law in other jurisdictions. The Client and Contractor further acknowledge that the Act may apply to the Client’s Confidential Information collected, used or disclosed in the performance of the Services, and the Contractor agrees that he shall adhere to the Act in its collection, use and disclosure of any of the Client’s Confidential Information.

4.6 Upon request the Contractor shall, at the Client’s expense and within five business days, provide to the Client any records that are requested under the access provisions of the Act that are in the custody or under the control of the Contractor. Should the Contractor receive an access request under the Act, the Contractor shall not respond to it, but shall immediately forward the access request to the Client for further handling.

4.7 The Contractor shall act on any direction that the Client may provide with regard to the use, collection, access, security, disclosure, alteration, loss or destruction of the Client’s Confidential Information.

Article 5.0 – DATA SECURITY AND PASSWORD POLICY

5.1 The Client shall be responsible for ensuring the security of the Client’s QATrack+ user passwords.

5.2 The Client acknowledges that the Client may receive automatic text messages and or emails related to the quality assurance and quality control of the Client’s Units. Such automatic texts and or emails shall be sent from the QATrack+ server to the Client through a third-party service, and the Client hereby acknowledges and agrees to the related potential security concerns.

5.3 The Client may have the Contractor configure QATrack+ to enforce a password policy for its employees in order to increase the Client’s QATrack+ data security.

5.4 When periodically engaged by the Client to provide Services pursuant to the Terms of Service, the Contractor shall:

a. protect the Client’s Confidential Information against any unauthorized access, use, disclosure, loss, destruction or alteration as required under the Act;

b. immediately advise the Client of any actual or potential unauthorized access, use, disclosure, destruction or alteration of Confidential Information and provide all reasonable assistance to the Client to prevent or remedy same; and

c. provide the Client with any information regarding the Contractor’s security measures that the Client may require to verify compliance with the Act.

Article 6.0 – SOFTWARE CODE MODIFICATIONS

6.1 In the event that modifications of QATrack+ code are desired by the Client, the Client shall make a request to the Contractor to make such modifications. Where the Contractor is of the opinion that modification of QATrack+ code is required for continued functionality or to optimize performance of QATrack+ on a Client-hosted server, the Contractor shall notify the Client of such required modifications but shall be required to obtain the consent of the Client in order to make such modifications.

6.2 The Client and Contractor acknowledge that the modification of QATrack+ code by anyone other than the Contractor may disrupt the delivery of the Services to the Client by the Contractor.

Article 7.0 – PRACTICE OF MEDICINE AND LIMITED PRODUCT WARRANTY

7.1 The Client acknowledges and agrees that the Contractor strongly recommends that QATrack+ be used only in relation to the quality assurance and quality control of Units, and further agrees to refrain from transferring any identifying patient data to the Contractor. The Client agrees that the Contractor shall not be held responsible for any breach of patient confidentiality that is a result of patient health information being entered into QATrack+ by the Client.

7.2 The Services provided pursuant to the Terms of Service are not intended to diagnose, treat, or correct any human condition, ailment, disease, injury or infirmity (i.e. QATrack+ and the Services do not constitute the “Practice of Medicine”), nor to design, evaluate, implement, monitor, or otherwise create or modify plans, procedures, or protocols for the Practice of Medicine. QATrack+ and the Services are intended only to facilitate the collection and review by professional Clients of data that, under certain circumstances including the proper utilization of QATrack+ by those Clients, may facilitate the understanding of such Clients regarding the operating effectiveness of machinery related to, and utilized in, its work.

Article 8.0 – OWNERSHIP OF DATA & INTELLECTUAL PROPERTY

8.1 All data, intellectual property and related material, including any trade secrets, machine set-up configurations, goodwill, relevant registrations or applications for registration, and rights in any patent, copyright, trademark, industrial or architectural or other design, or trade name (the "Intellectual Property") that is developed or produced by, or disclosed to the Contractor by the Client during the provision of Services, shall be the sole property of the Client. The use of the Intellectual Property by the Client will not be restricted in any manner.

8.2 The Contractor shall not use the Client data or Intellectual Property for research, marketing, or any purpose other than the provision of Services to the Client pursuant to the Terms of Service, except with the written consent of the Client. The Contractor shall be liable for any and all damages resulting from any unauthorized use of the Intellectual Property that is a result of the Contractor’s unauthorized disclosure of any Intellectual Property.

Article 9.0 – INDEPENDENT CONTRACTOR

9.1 It is expressly agreed by the Client and Contractor that, in providing Services to the Client pursuant to the Terms of Service, the Contractor is acting in the capacity of an independent contractor and not as an employee of the Client. The Contractor and the Client acknowledge that the Terms of Service do not create a partnership or joint venture between them, and that the Terms of Service exclusively outline the terms and conditions governing the provision of the agreed-upon Services to by the Contractor to the Client.

Article 10.0 – INDEMNITY

10.1 To the extent permitted by applicable law, excepting any funds paid in settlement from any applicable insurance policies, the Client and the Contractor agree to indemnify and hold harmless the other party, and its respective affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with Services provided pursuant to the Terms of Service. This indemnity shall survive the completion of the provision of Services.

Article 11.0 – ASSIGNMENT

11.1 The Contractor shall not assign or otherwise transfer his rights or obligations pursuant to the Terms of Service to any third party without the prior written consent of the Client. The Client shall not assign or otherwise transfer any rights or obligations pursuant to the Terms of Service to any third party without the Contractor’s prior written consent, such consent to be given or withheld in the Contractor’s sole discretion.

Article 12.0 – ENTIRE AGREEMENT

12.1 The Terms of Service together with any written compensation agreements or other documents incorporated by reference comprise the entire agreement between the Client and the Contractor with respect to the subject matter covered in the Terms of Service and supersede any and all prior agreements or understandings, oral or written, between the parties pertaining to the subject matter covered by the Terms of Service (including, but not limited to, any prior versions of the Terms of Service). The Client and Contractor acknowledge and agree that there are no representations, warranties, collateral agreements or conditions affecting the Terms of Service except as expressly provided in the Terms of Service.

Article 13.0 – ENUREMENT

13.1 All terms and conditions in the Terms of Service shall enure to the benefit of and be binding upon the parties and their respective heirs, executors, administrators and permitted successors and assigns.

Article 14.0 – HEADINGS

14.1 Headings before portions of the Terms of Service are inserted for convenience of reference only and are not to be considered when interpreting the Terms of Service.

Article 15.0 – GENDER

15.1 In the Terms of Service, masculine pronouns shall be construed as feminine or neuter pronouns and vice versa, and singular pronouns and verbs shall be construed as plural and vice versa, in any place herein in which the context may so require.

Article 16.0 – GOVERNING LAW

16.1 The Terms of Service shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The Client and the Contractor irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Terms of Service and is hereby expressly excluded.

Article 17.0 – SEVERABILITY

17.1 In the event that any of the provisions of the Terms of Service are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of the Terms of Service.

Article 18.0 – WAIVER

18.1 The waiver by either the Client or the Contractor of a breach, default, delay or omission of any of the provisions of the Terms of Service by the other party shall not be construed as a waiver of any subsequent breach of the same or other provisions.