This Agreement was last updated on December 7, 2023.
THIS AGREEMENT APPLIES TO YOUR USE OF MIKATA SERVICES. YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. YOU REPRESENT AND WARRANT TO MIKATA THAT YOU HAVE THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF YOU ARE USING THE MIKATA SERVICES ON BEHALF OF ANOTHER PERSON, YOU HEREBY REPRESENT AND WARRANT TO MIKATA THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
- The Mikata Services
- Mikata Services. Subject to your compliance with the terms and conditions of this Agreement, Mikata will make available the services subscribed for in an Order Form or a subscription page ("Mikata Services").
- Restrictions on Use. You will not, and will not permit others to:
- sub-license, sell, rent, lend, lease or distribute the Mikata Services or any intellectual property rights therein, or otherwise make the Mikata Services available to any third parties other than administrator accounts and Customer User Accounts ("Permitted Users");
- use or access the Mikata Services:
- in violation of any applicable law or intellectual property right;
- in a manner that threatens the security or functionality of the Mikata Services;
- for the purposes of engaging in or recording any harmful content, including but not limited to content that is defamatory, obscene, offensive, or discriminatory;
- in any jurisdiction where prohibited by applicable law; or
- for any purpose or in any manner not expressly permitted in this Agreement;
- use or access the Mikata Services to create, collect, transmit, store, use or process any Customer Data:
- that you do not have the lawful right to create, collect, transmit, store, use or process;
- that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property rights or other rights of any third party (including any moral right, privacy right or right of publicity); or
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- copy or modify the Mikata Services;
- reverse engineer, de-compile or disassemble the Mikata Services or any part of them;
- access or use the Mikata Services for purposes of benchmarking or competitive analysis of such Mikata Services;
- access or use the Mikata Services for the purpose of building a similar or competitive product or service;
- remove or obscure any proprietary notices or labels on the Mikata Services, including brand, copyright, trademark and patent or patent pending notices;
- use any automated system or software to extract data ("scraping") from the Mikata Services or any resource provided on or through the Mikata Services, except permitted by this Agreement or the Documentation; or
- perform any vulnerability, penetration or similar testing of the Mikata Services.
- Suspension of Access; Scheduled Downtime; Modifications. Mikata may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
- suspend your access to or use of the Mikata Services or any component of them:
- for scheduled maintenance;
- due to a Force Majeure Event;
- if Mikata believes in good faith that you or any Permitted User has violated any provision of this Agreement;
- during planned timeframes allocated by Mikata for maintenance operations, namely daily between 1:00 A.M. and 5:00 A.M. MT. You will be notiﬁed by email 24 hours prior to such major planned maintenances;
- to address any emergency security concerns;
- if required to do so by a governmental or regulatory authority or as a result of a change in applicable laws; or
- for any other reason as provided in this Agreement.
- make any modifications to the Mikata Services, including adding or discontinuing specific functionality provided by the Mikata Services:
- You are required to accept all patches, bug fixes and updates made by or on behalf of Mikata to the Mikata Services.
- Subcontracting. Mikata may engage third parties to provide the Mikata Services or any part of them.
- Third-Party Licensed Technology. If the Mikata Services contain or require the use of Third Party Licensed Technology, you will accept and comply with the license terms applicable to such Third Party Licensed Technology. If you do not agree to abide by the applicable license terms for any such Third Party Licensed Technology, then you should not install, access, or use such Third Party Licensed Technology. Any acquisition by you of Third Party Licensed Technology, and any exchange of data between you and any such provider of Third Party Licensed Technology is solely between you and the applicable Third Party Licensed Technology provider. Mikata does not warrant or support Third Party Licensed Technology, even if they are designated by Mikata as "certified" or otherwise recommended. Mikata cannot guarantee the continued availability of Third Party Licensed Technology. "Third Party Licensed Technology" means third party technology that is licensed under separate license terms and not under this Agreement.
- Ownership; Reservation of Rights and License Grants
- Subject to the rights granted in this Section 2, you or your organization, as applicable, retain all right, title and interest in and to any data (other than Aggregated Data), information, content, records, and files that you (or any of your Permitted Users) loads or enters into, transmits to, or makes available to the Mikata Services, including Personal Information provided by you or Permitted Users ("Customer Data"), including any intellectual property rights in Customer Data. You or your organization, as applicable, are the custodian of Customer Data and as between you and Mikata, you are wholly responsible for obtaining all rights, permissions and consents necessary for Mikata to process Customer Data in accordance with this Agreement. You grant to Mikata and its subcontractors a nonexclusive, worldwide, perpetual, royalty-free, irrevocable, sublicensable and fully paid-up right to access, collect, use, process, store, transfer, transmit, copy, modify, adapt, and display Customer Data to:
- provide the Mikata Services;
- improve and enhance the Mikata Services and its other offerings; and
- produce or generate data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the "Aggregated Data").
Mikata may use, process, store, disclose, transfer, transmit, copy, modify and display the Aggregated Data for any purpose and without restriction or obligation to you or your organization of any kind. Aggregated Data is not Customer Data and is not your Confidential Information.
- Mikata or its licensors retain all right, title and interest, including any intellectual property rights in and to:
- the Mikata Services;
- anything used, developed or delivered by or on behalf of Mikata under this Agreement;
- all other Mikata Confidential Information, including any reports generated from the Mikata Services or any Aggregated Data;
- Mikata Software;
- Mikata’s manuals, instructions or other documents or materials that Mikata provides or makes available to describe the functionality, components, features or requirements of the Mikata Services ("Documentation"); and
- any modifications to the foregoing (i) to (vi),
(collectively "Mikata Property").
- To the extent that you or any Permitted User submits ideas, suggestions, documents, or proposals regarding the Mikata Services to Mikata ("Feedback"), you acknowledge and agree that:
- the Feedback does not contain confidential or proprietary information and Mikata is not under any obligation of confidentiality with respect to the Feedback; and
- Mikata will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to you for such use.
- Customer User Account; Responsibility for Permitted Users
If you are providing rights of access to Permitted Users, you will ensure that a Permitted User only uses the Mikata Services through the Permitted User’s assigned Customer User Account. You will not allow any Permitted User to share a Customer User Account with any other person. You will promptly notify Mikata of any actual or suspected unauthorized use of the Mikata Services. Mikata reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose. "Customer User Accounts" means any administrator accounts together with any accounts that administrators have created or requested Mikata create for any active staff members, whether employees or contractors of you, that are permitted by you or your organization to access and use the Mikata Services.
- Information Management (Alberta Customers)
If you are providing health services to patients located in Alberta, you will appoint Mikata to act as your Information Manager pursuant to the separate Information Management Agreement. If applicable, both you and Mikata will concurrently enter into the separate Information Management Agreement.
- Fees and Payment
If you have subscribed for Mikata Services for which payment is required, the following terms will apply.
- Fees. You will pay to Mikata the fees described in the applicable Order Form or subscription page (the "Fees"). Unless otherwise noted on an Order Form or subscription page: (i) all Fees are identified in Canadian dollars; and (ii) Fees are non-cancelable and non-refundable. If Customer’s use of the Mikata Services exceeds the service capacity set forth on an Order Form or subscription page or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), you will be billed for such usage and you will pay the additional fees in accordance with this Agreement.
- Changes to the Fees. Mikata reserves the right to change the Fees and institute new charges on every term renewal of an Order Form or a subscription, upon providing not less than 30 days prior notice to you. Mikata will have the option to offer new products or features to you which will result in a change of Fees if you accept such products or features.
- Invoicing. Mikata will prepare and send to you, at the then-current contact information on file with Mikata, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, you will pay all invoiced amounts within 30 calendar days of the invoice date.
- Disputed Invoices or Charges. If you believe Mikata has charged or invoiced you incorrectly, you must contact Mikata no later than 30 days after having been charged by Mikata or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, you will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
- Late Payment. You may not withhold or setoff any amounts due under this Agreement. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. If you have not paid all due and undisputed Fees within 10 days of the date that such Fees become due, Mikata reserves the right to suspend your access to the Mikata Services [and any delivery of Professional Services] until all due and undisputed amounts are paid in full.
- Taxes. The Fees do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. You will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including any applicable interest and penalties) payable in connection with the transactions contemplated by this Agreement, other than taxes based on the net income or profits of Mikata.
- Suspension. Any suspension of the Mikata Services by Mikata pursuant to this Agreement will not excuse you from your obligation to make payments under this Agreement.
- Confidential Information
- Definitions For the purposes of this Agreement, a Party or any of its affiliates, customers, employees, licensors or suppliers receiving Confidential Information will be "Recipient", the Party disclosing such information will be "Discloser" and "Confidential Information" of Discloser means any and all information of Discloser or any of its affiliates, and in the case of Mikata, any of its service providers, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business, Mikata Property, this Agreement, and where Discloser is you, your Confidential Information includes Customer Data. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include any information that: (a) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient; (b) Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement; (c) becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until Recipient subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or (d) Recipient can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, the Confidential Information of Discloser.
- Confidentiality Covenants. Recipient will:
- not disclose Confidential Information of Discloser to any person without the express written consent of Discloser, except to its own personnel and Permitted Users (if Recipient is you), or its and its affiliate’s employees, contractors, subcontractors, advisors, consultants, officers, directors, partners, shareholders, agents and their respective successors or permitted assigns (if Recipient is Mikata), or such other recipients as Discloser may approve in writing, that have a "need to know" for the purposes of receiving or providing the Mikata Services, who are informed of the confidential nature of the Confidential Information, who are directed to hold the Confidential Information in confidence and who agree in writing, or are otherwise legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement;
- not use Confidential Information of Discloser or permit it to be accessed or used for any purpose except to exercise its rights or perform its obligations under this Agreement; and
- maintain the Confidential Information of Discloser in strict confidence, which will include taking measures to protect the confidentiality and security of such Confidential Information using a reasonable standard of care, and no less than the standard of care taken to protect its own Confidential Information of similar sensitivity.
- Exceptions to Confidentiality. Notwithstanding Section 7(b), Recipient may disclose Discloser’s Confidential Information:
- only if and to the extent legally compelled or required by a governmental or regulatory authority, provided that Recipient must first: (A) provide Discloser with prompt prior written notice of such compelled disclosure (except where prohibited by applicable laws from doing so) to give Discloser the opportunity to oppose such disclosure; and (B) cooperate fully with Discloser in protecting against or limiting any such disclosure, including obtaining a protective order narrowing the scope of such disclosure and use of the Confidential Information. Thereafter, Recipient may disclose the Confidential Information of Discloser, but only to the extent required and subject to any protective order that applies to such disclosure;
- 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
- in the case of Mikata, to potential assignees, acquirers or successors of Mikata 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 Mikata.
- Injunction and other equitable relief. Each of the Parties acknowledge that disclosure of Discloser’s Confidential Information or any other breach of this Section 7 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and each Party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Section 7 and to the specific enforcement of the terms of this Section 7, in addition to any other remedy to which Discloser would be entitled.
- Return of Confidential Information. Upon written request by a Discloser or upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 11(b) of the other Party in its possession or control within a reasonable amount of time in accordance with Recipient’s data destruction practices. Notwithstanding the foregoing, Mikata may retain any of your electronically archived Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Section 7. Upon written request of Discloser, Recipient will certify in writing that it has complied with this Section 7.
- Warranty; Disclaimer
- Customer Warranty. If you provide Customer Data to Mikata, you represent, warrant, and covenant to Mikata that you own or otherwise will have, the necessary rights and consents in and relating to the Customer Data (including Personal Information that you provide), in each case as required by and in compliance with applicable laws, including applicable privacy laws, so that, as received and handled by Mikata to provide the Mikata Services or as otherwise described in Section 2, Mikata does not and will not infringe, misappropriate or otherwise violate any intellectual property rights, privacy rights or other rights of any third party or violate any applicable laws.
- GENERAL DISCLAIMER. MIKATA DOES NOT WARRANT THAT THE MIKATA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MIKATA SERVICES. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY LICENSED TECHNOLOGY IS STRICTLY BETWEEN YOU AND THE THIRD PARTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, MIKATA HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
MIKATA SERVICES ARE NOT HEALTH SERVICES AND ARE NOT DESIGNED OR INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR JUDGMENT AND SHOULD NOT BE USED TO REPLACE OR AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR JUDGMENT. THE MIKATA SERVICES ARE NOT A MEDICAL DEVICE AND ARE NOT INTENDED FOR USE IN (A) DIAGNOSING, TREATING, MITIGATING OR PREVENTING A DISEASE, DISORDER OR ABNORMAL PHYSICAL STATE, OR ANY OF THEIR SYMPTOMS, IN HUMAN BEINGS OR ANIMALS, OR (B) RESTORING, MODIFYING OR CORRECTING THE BODY STRUCTURE OF HUMAN BEINGS OR ANIMALS OR THE FUNCTIONING OF ANY PART OF THE BODIES OF HUMAN BEINGS OR ANIMALS. AS BETWEEN YOU AND MIKATA, YOU ARE SOLELY RESPONSIBLE FOR DISPLAYING AND/OR OBTAINING APPROPRIATE CONSENTS, WARNINGS, DISCLAIMERS, AND ACKNOWLEDGEMENTS TO OR FROM YOUR ORGANIZATION, YOU, PERMITTED USERS AND YOUR PATIENTS, AS APPLICABLE, IF REQUIRED FOR USE OF THE MIKATA SERVICES AND AS DESCRIBED IN SECTION 2.
MIKATA IS NOT RESPONSIBLE FOR ENSURING THAT CUSTOMER DATA IS COMPLETE, ACCURATE OR CLINICALLY APPROPRIATE OR THAT CLINICAL DECISIONS MADE BY YOU OR PERMITTED USERS ARE MEDICALLY SOUND, APPROPRIATE OR APPROPRIATELY DOCUMENTED. YOU OR PERMITTED USERS, AS APPLICABLE, REMAIN RESPONSIBLE FOR ALL HEALTH SERVICES PROVIDED TO ANY PERSON, INCLUDING BUT NOT LIMITED TO ANY ASSESSMENTS, DOCUMENTATION AND RECOMMENDATIONS MADE WITH OR WITHOUT USE OF THE MIKATA SERVICES.
Customer Indemnity. You will defend, indemnify and hold harmless Mikata, its affiliates, subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives (each, a "Mikata Indemnitee") from and against any and all losses incurred by a Mikata Indemnitee arising out of or relating to any claim by a third party (other than an affiliate of a Mikata Indemnitee) that arise from or relate to: (i) Customer Data; (ii) unauthorized use of the Mikata Services by you or any Permitted User; (iii) any personal injury, illness, bodily harm or death resulting out of or relating to the use of the Mikata Services or unavailability of the Mikata Services for any period of time, or (iv) use of the Mikata Services (or any part of them) by you or any Permitted User in combination with any third party software, application or service.
- Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MIKATA IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE MIKATA SERVICES IN THE 6 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 MIKATA’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. IF YOU ARE USING MIKATA SERVICES DURING A FREE TRIAL, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MIKATA IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED $50.00.
- TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL MIKATA BE LIABLE TO YOU, YOUR ORGANIZATION OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS OR (B) PROFIT; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) BODILY INJURY OR DEATH; OR (VI) BODILY 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 GROSS NEGLIGENCE), OR OTHERWISE, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
- Termination for Cause. Either Party may terminate this Agreement, by giving to the other Party written notice of termination upon the occurrence of any of the following events:
- the other Party breaches or defaults on any of the material terms or conditions of this Agreement (including your payment obligations under Section 6) and fails to cure such breach or default within 30 days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately;
- the other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or
- any proceedings are instituted by or against the other Party under any insolvency laws or for reorganization, receivership or dissolution.
- Effect of Termination. Upon the effective date of the expiration or termination of this Agreement and any Transition Period (the "Termination Effective Date"):
- you will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Mikata Services;
- you will return any Mikata Property in its possession and certify in writing to Mikata that the Mikata Property has been returned;
- no new Order Forms may be agreed to or entered into by the Parties and all Order Forms will terminate;
- all Fees due and payable and any amounts due to Mikata are immediately due and are to be immediately paid by you to Mikata. No expiration or termination will affect your obligation to pay all Fees that may have become due before such expiration or termination or entitle you to any refund; and
- if you request in writing at least 30 days prior to the Termination Effective Date and provided that you have paid all Fees due and payable as at the Termination Effective Date:
- Mikata will make Customer Data available to you for electronic retrieval for a period of 30 days (the "Transition Period"). Following such 30-day period Mikata will delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Mikata to provide the Mikata Services. Notwithstanding anything to the contrary in this Agreement, Mikata may retain Customer Data to the extent and so long as required by applicable laws and Mikata may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course, provided that all such Customer Data will remain subject to all confidentiality requirements of this Agreement.
- 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 2 (Ownership; Reservation of Rights; and License Grants), Section 6 (Fees and Payment), Section 7 (Confidential Information), Section 8 (Warranty; Disclaimer), Section 9 (Indemnities), Section 10 (Limitation of Liabilities), Section 12 (General Provisions), Section 11(b) and this Section 11(c) (Survival).
- General Provisions
- Notices. Notices sent to either Party will be effective when delivered in writing and 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 sent: (i) if to Mikata, to the following address:
Address: 201-838 11 Ave SW, Calgary AB, T2R 0E5
Attention: Mikata Health
and (ii) if to you, to the current postal or email address that Mikata has on file with respect to you. Mikata may change its contact information by posting the new contact information on the Mikata’s website or by giving notice thereof to you. You are solely responsible for keeping its contact information on file with Mikata current at all times during the Term.
- Assignment. You will not assign or transfer this Agreement, or transfer or subcontract any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Mikata. Any purported assignment or delegation by you to any third party in violation of this Section will be null and void. Mikata may assign any of its rights, or delegate any of its obligations, under this Agreement to any third party without your consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
- Governing Law and Attornment. This Agreement will be governed by and construed in accordance with the laws of the Province of Alberta and the applicable federal laws of Canada, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Calgary, Alberta Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, Mikata may: (i) seek remedies to collect unpaid Fees from you; and (ii) seek remedies with respect to a violation of Mikata’s intellectual property rights or Section 7 (Confidential Information), in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Export Restrictions. You will comply with all export laws and regulations under applicable laws that may apply to its access to or use of the Mikata Services. Mikata makes no representation or warranty that the Mikata Services may be exported without you first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
- Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. 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. The terms "consent" or "discretion", when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party.
- Force Majeure Event. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, cyberattacks, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in law preventing or limiting the provision of the Mikata Services ("Force Majeure Event"). This Section does not apply to any of your obligations under Sections 6, 7, or 9. In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
- Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- Waiver. 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.
- Further Assurances. Each Party will, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
- Entire Agreement. This Agreement (including all Order Forms) constitutes the entire agreement between the Parties and set out all the covenants, promises, warranties, representations, conditions, and agreements between the Parties in connection with the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral. For clarity, any terms and conditions appearing on a purchase order or similar document issued by you, or in your procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Mikata Services; and (ii) do not override or form a part of this Agreement (including any Order Form).
- Amendments. 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, MIKATA MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN "AMENDMENT"), BY GIVING YOU 30 DAYS PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON MIKATA’S WEBSITE. UNLESS OTHERWISE INDICATED BY MIKATA, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO YOU OR IS POSTED ON MIKATA’S WEBSITE (WHICHEVER IS THE EARLIER).
- Customer Lists. Mikata may identify you by name and logo as a Mikata customer on Mikata’s website and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to the benefit of you.
- Order of Precedence. To the extent of a conflict between this Agreement and any Order Forms:
- in respect of Section 2 (Ownership; Reservation of Rights), Section 7 (Confidential Information), Section 8 (Warranty; Disclaimer), Section 9 (Indemnities), Section 10 (Limitation of Liabilities), Section 11(c) (Survival) and Section 12 (General Provisions, including this Section 12(m), this Agreement will prevail; and
- for all other Sections, unless the Order Form expressly states that it modifies or varies this Agreement, this Agreement will prevail.
- English Language. The Parties confirm that it is their wish that this Agreement, as well as any other documents relating to this Agreement, including notices, schedules and authorizations have been and will be drawn up in the English language only. Les signataires confirment leur volonté que la présente convention, de même que tous les documents s’y rattachant, y compris tout avis, annexe et autorisation, soient rédigés en anglais seulement.
- Counterparts. This Agreement may be signed in counterparts. An electronic signature using a qualified electronic certificate or facsimile signature will be treated in all respects as having the same effect as an original signature.