Software Agreement


This SOFTWARE AGREEMENT (the “Agreement”) is entered into between THRIVE HEALTH INC., with a place of business at Suite 720 – 890 W. Pender St. Vancouver, British Columbia, V6C 1J9, Canada (“THRIVE HEALTH”) and the organization identified by the Authorized Representative (as defined below) during the sign-up process as the organization on behalf of which the Authorized Representative is executing this Agreement (the “Organization”) (THRIVE HEALTH and the Organization being hereinafter individually referred to as a “Party” and collectively as the “Parties”).

WHEREAS THRIVE HEALTH has developed or acquired a Software program, as further defined below;

WHEREAS the Organization wishes to obtain the right and authorization to use, and authorize certain Authorized Users (as defined below), to use the Software and THRIVE HEALTH desires to grant such rights and authorizations to the Organization, subject to the terms and conditions stated herein; 

NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Organization and THRIVE HEALTH agree as follows:


1.

INTERPRETATION

For the purposes of this Agreement, unless the context dictates otherwise, the following terms shall have the following meaning

1.1

“Authorized Representative” means the individual holding an account with THRIVE HEALTH and purporting to execute this Software Agreement on behalf of the Organization.

1.2

“Authorized User” means a health care professional or staff member employed by the Organization and authorized by the Organization to use the Software on behalf of the Organization.

1.3

“Basic Functionality” means the Basic Functionality of the Software as described in Appendix A hereto. 

1.4

“Clinical Information” means information about an individual Patient entered by the Organization or an Authorized User in the Software or related Platform. 

1.5

“Confidential Information” means information in any form disclosed or made available or brought to the attention of the Organization or its representatives (the “Receiving Party”) by THRIVE HEALTH or its representatives (the “Disclosing Party”) that the Receiving Party knows or has reason to know (either because such information is marked or otherwise identified by the Disclosing Party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is confidential information of the other party, and shall include, without limitation, (a) the current, future and proposed software, products or services of the Disclosing Party as well as financial, technical, research, operational, sales and marketing information related thereto; (b) ideas, inventions, designs, technical information and works of authorship; (c) trade secrets, business plans, business forecasts, strategies, budgets, prices and costs, financial reports, financial statements, research with regard to sales and distribution arrangements, and the identity of suppliers and customers of the Disclosing Party; and (d) any information regarding the skills and compensation of employees, consultants or subcontractors of the Disclosing Party. For more certainty, the Software shall be deemed Confidential Information of THRIVE HEALTH.

1.6

“Content” has the meaning set out in Section 2.1.

1.7

“End-User” means either an Authorized User or a Patient that has agreed to be bound by the Terms of Use.

1.8

“New Functionality” means any functionality, other than the Basic Functionality or Premium Functionality, or any modification, update or upgrade to the Software that may be made available by THRIVE HEALTH to the Organization from time to time, and possibly for an additional charge. 

1.9

“Other Organization Information” means information owned by the Organization and contributed to the Software or related platform by the Organization or an Authorized User that is not Clinical Information or Organization-entered Information.

1.10

“Organization-entered Information” means any questionnaire/survey content, proprietary algorithms, assessment tools, educational content, resources, reminders provided to individual Patients or similar information entered into the Software by the Organization.

1.11

“Patient” means an individual patient of the Organization at the Organization’s medical clinic who has (or on behalf of which an authorized representative of the patient has) executed the Terms of Use. 

1.12

“Patient Information” means medical or health information that pertains to an individual Patient.

1.13

“Patient-entered Information” means any medical or health information that pertains to an individual Patient that is entered into the Software by the Patient or a designated representative of the Patient such as a legal guardian.

1.14

“Personal Information” means information about an identifiable individual that is protected by applicable personal information protection legislation in the Territory.

1.15

“Premium Functionality” means the Premium Functionality of the Software as described in Appendix A hereto. 

1.16

“Software” means the software programs known as THRIVE HEALTH as further described in Appendix A hereto, and any modification, update or upgrade thereto that may be made available by THRIVE HEALTH to the Organization free of charge from time to time.

1.17

“Terms of Use” means THRIVE HEALTH’s standard terms and conditions for use of the Software by end-users and the related Privacy Policy, as may be modified by THRIVE HEALTH from time to time.

1.18

“Territory” means the Country of Canada.


2.

ACCESS AND USE OF SOFTWARE

2.1

Access: Subject to the terms and conditions of this Agreement, including without limitation the conditions and restrictions set out in Section 2.3, THRIVE HEALTH grants to the Organization, during the term of this Agreement, a non-assignable, non-transferable, non-exclusive right, authorization and license to access and use the Software provided as Software as a Service (SaaS) for the purposes of the provision of health care related services to Patients in the Territory and to download, display, copy and print the content made available by THRIVE HEALTH through the Software (the “Content”). THRIVE HEALTH also undertakes to permit End Users to access and use the Software and to download, display, copy and print the Content for such purposes, provided that such End Users have duly executed and comply with the Terms of Use. 

2.2

Access Control: The Organization is responsible for maintaining the confidentiality of its account access information (including any user id and password) and is solely responsible for any activity taking place under its account, including any activity by any Authorized User.  The Organization is and remains fully responsible for the use of the Software by any Authorized User and to ensure compliance of all Authorized Users with the terms and conditions of this Agreement

2.3

Conditions and Restrictions: The rights, authorizations and licenses granted under Section 2.1 hereto are subject to the following conditions: (i) Proprietary, copyright, trademark or warning legends may not be removed from the Software; and (ii) the Organization shall ensure that any End User has at a minimum entered into an agreement including the provisions of the Terms of Use and Privacy Policy. The Organization must not, and must ensure that Authorized Users do not, engage in the following activities or authorize any other person to do so: 

 

(a)

engage in any activities through or in connection with the Software that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, violent, threatening, harassing, or abusive, or that violate any right of any third party;

 

(b)

copy the Software and, to the maximum extent permitted by applicable law, reverse engineer, decompile, disassemble, reverse assemble, or modify any source or object code or any software or other products, services, or processes accessible through any portion of the Software; 

 

(c)

engage in any activity that interferes with a user’s access to the Software or the proper operation of the Software, or otherwise causes harm to the Software, THRIVE HEALTH, any other users of the Software or any third parties;

 

(d)

interfere with or circumvent any security feature of the Software or any feature that restricts or enforces limitations on use of or access to the Software; 

 

(e)

attempt to gain unauthorized access to the Software, computer systems or networks connected to the Software, through hacking, password mining, or any other means and from engaging in activities that are not in compliance with applicable laws; or

 

(f)

harvest or otherwise collect or store any information of third parties (including Personal Information about other users of the Software, without the express consent of such users).

2.4

From time to time, THRIVE HEALTH may, at its sole discretion, make available certain updates or upgrades to the Software. 

2.5

THRIVE HEALTH may, from time to time, make all or any part of the Software unavailable for scheduled or emergency maintenance. THRIVE HEALTH will use commercially reasonable efforts to perform scheduled maintenance at times intended to minimize inconvenience to the Organization. 

2.6

THRIVE HEALTH may, from time to time and at its discretion, provide certain professional services in relation to the design and implementation of workflow improvements to optimize the Software and related processes. The Organization agrees to provide feedback to THRIVE HEALTH on the manner in which the Software is generating value for the Organization and how THRIVE HEALTH can improve its platform. Any and all intellectual property rights in any work, invention, design, improvement or other subject matter developed or created by THRIVE HEALTH and/or the Organization, separately or jointly, in the course of this Agreement shall be owned by THRIVE HEALTH. 

2.7

The Organization acknowledges that THRIVE HEALTH may, from time to time, offer and provide to any Patient, with the Patient’s consent, services that are unrelated to the Organization’s activities or business and that nothing in this Agreement shall be interpreted as limiting the rights of THRIVE HEALTH to do so.


3.

FEES

3.1

The rights, authorizations and licenses granted under Section 2.1 are granted to the Organization at no charge and on a royalty free basis with respect to the Basic Functionalities. Organizations that are users of the Basic Functionalities of the Software may, subject to availability, opt to become premium users of the Software by purchasing Premium Functionality, subject to payment by the Organization of the fees and charges associated thereto, as disclosed to the Organization at the time of purchase. THRIVE HEALTH reserves the right to change any available functionality of the Software provided that, if a change results in the removal of essential functionality of the Software, THRIVE HEALTH will inform the Organization no least ninety (90) days in advance.  

3.2

THRIVE HEALTH may, from time to time, offer any New Functionality that may be subject to additional fees or charges, subject to agreement by the Organization to the applicable terms and conditions and applicable fees or charges. 


4.

OWNERSHIP OF INTELLECTUAL PROPERTY

4.1

The Software, any New Functionality and all information related thereto, including any Content, constitute valuable proprietary, confidential and trade secret information of THRIVE HEALTH. The Software, New Functionality and Content are protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of Canada and other countries. The Organization acknowledges that, as between the Organization and THRIVE HEALTH, THRIVE HEALTH owns and retains all rights, title and interest in and to the Software, New Functionality and any Content, including without limitation all copyright, trademark and intellectual property rights therein, and that the only right the Organization has is the limited right to use the same as set forth in this Agreement. The Organization may not rent, lease, lend, sell, redistribute or license the Software, New Functionality or Content, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, New Functionality or Content, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of THRIVE HEALTH and its licensors. All rights in the Software, New Functionality and Content not expressly granted are reserved by THRIVE HEALTH or its licensors.

4.2

As between the Parties, Clinical Information and Organization-entered Information entered into the THRIVE HEALTH system by the Organization remains owned by the Organization. The Organization hereby grants to THRIVE HEALTH a perpetual, worldwide, royalty-free license to reproduce, use, publish, transmit, communicate and translate any Clinical Information and Organization-entered Information for the purposes of providing services through the Software. The Organization may request the removal of Clinical Information from the Software following the termination of this Agreement; subject to any legal obligation THRIVE HEALTH may have in with respect to retention of Patient Information.  

4.3

As between the Parties, the Organization retains all rights in the Other Organization Information.  The Organization hereby grants to THRIVE HEALTH a perpetual, worldwide, royalty-free license to reproduce, use, publish, transmit, communicate and translate any Other Organization Information for any purpose.


5.

PERSONAL INFORMATION

5.1

The Organization is at all times responsible for ensuring that any required consent and authorization is obtained from any third party, including any Patient in relation to the use of the Software and any New Functionality, and to otherwise comply with the requirements of any applicable provincial and federal legislation, regulation or guideline as it relates to the collection, use, processing and disclosure of Personal Information, including Patient Information, collected through the Software or any New Functionality. 

5.2

Clinical Information will be stored by THRIVE HEALTH on behalf of the Organization. As between the Parties, the Organization retains custody or control of all Clinical Information. The Organization may request the removal of Clinical Information from the Software following the termination of this Agreement; however, with the consent of the Patient, a copy of the Patient Information, or a portion thereof, included in the Clinical Information may be transferred to and stored by THRIVE HEALTH in its systems on behalf of the Patient, to be used and/or disclosed by THRIVE HEALTH subject to such Patient’s consent. In such a case, the copy of the Patient Information so transferred to THRIVE HEALTH will no longer be under the custody or control of the Organization. 

5.3

Patient-entered Information will be stored by THRIVE HEALTH on behalf of the Patient. The Patient may request the removal of Patient-entered Information from the Software as outlined in the Terms of Use and Privacy Policy; however, in the case that a Patient has previously provided consent to THRIVE HEALTH for a copy of the Patient-entered Information to be transferred to the Organization, such removal request will not affect the copy of the Patient-entered Information transferred to the Organization, which will remain with the Organization. 

5.4

The Organization acknowledges that THRIVE HEALTH may use anonymized information collected from the Organization’s and Patient’s use of the Software or any New Functionality to generate depersonalized usage data, statistics, and other aggregate and non-aggregate information, and may use and share such data for any lawful purpose. The Organization acknowledges that THRIVE HEALTH may use Personal Information collected by THRIVE HEALTH from the Patient through the provision of other services or through activities not related to the Organization’s activities or business, subject to THRIVE HEALTH having obtained the consent of the Patient concerned for the collection, use and disclosure of the Patient’s Personal Information for the relevant purposes. 


6.

CONFIDENTIALITY

6.1

The Receiving Party shall not disclose, copy or use any Confidential Information of the Disclosing Party, other than in conjunction with the purposes of this Agreement.  The Receiving Party will use at least the same degree of care to protect the Confidential Information of the Disclosing Party as it would use to protect its own Confidential Information of a similar nature, but in no event less than reasonable care. The Receiving Party shall ensure that its employees, agents and subcontractors observe these conditions. The Parties agree that Confidential Information shall not include any information which: (i) was previously known to the Receiving Party if the Receiving Party can prove such prior knowledge and the Receiving Party did not learn such information from a person whom the Receiving Party knew was under a duty to the Disclosing Party not to disclose the information; (ii) is or becomes part of the public domain without breach of this Agreement; (iii) the Receiving Party receives from an independent third party who is not under an obligation not to disclose it; (iv) is independently developed by the Receiving Party as evidenced by documentation dated prior to the time of disclosure by the Disclosing Party; (v) is required to be disclosed pursuant to the order of a governmental agency, legislative body, or a court of competent jurisdiction, provided reasonable prior notice of the intended disclosure is provided to the other Party. Upon the written request of the Disclosing Party and in any case upon termination of this Agreement, the Receiving Party will, at the Disclosing Party’s option, either return all copies of the Disclosing Party’s Confidential Information to the Disclosing Party’s or certify in writing that all copies of such information have been destroyed. The terms and conditions set forth in this Section shall survive the expiration or termination of this Agreement indefinitely.


7.

COMMUNICATIONS WITH PATIENTS

7.1

THRIVE HEALTH is not responsible for the content of any communication between the Organization and/or any Authorized User and any Patient, including any advice, opinion or health information provided by way of such communications through the Software or any New Functionality, and expressly disclaims any responsibility or liability for any claims, losses or damages that may arise as a result of such communications or failure of communications. THRIVE HEALTH is not responsible for the conduct, whether online or offline, of any user of the Software or of any New Functionality. 

7.2

The communication by the Organization of any diagnosis or medical advice to Patients through the Software is subject to compliance by the Organization, its representatives and employees with their own professional and ethical obligations. THRIVE HEALTH does not provide medical advice, medical care or clinical services and THRIVE HEALTH has no responsibility to provide any diagnosis or medical advice. THRIVE HEALTH is solely a technology software provider. Any responsibility to provide medical advice, medical care, clinical services, diagnosis and treatment to any Patient rests solely on the Organization.

7.3

The Organization agrees to defend, indemnify, and hold harmless THRIVE HEALTH and its directors, officers, employees and agents, for damages awarded by final judgment or settlement resulting from third parties in relation to claims or actions resulting from third parties (including reasonable attorneys’ fees) caused by any breach by the Organization of its obligations under this Agreement or from any information provided by the Organization or any Authorized User to any Patient. 


8.

WARRANTIES

8.1

The Software and any services related thereto are provided by THRIVE HEALTH “as is” and “as available”, with all faults and without warranties of any kind, and THRIVE HEALTH hereby disclaims all warranties and conditions with respect to the Software and any services related thereto, whether express, statutory, legal or implied, including but not limited to the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness or a particular purpose, of accuracy, of quiet enjoyment and non-infringement of third party rights. THRIVE HEALTH does not warrant against interference with the Organization’s enjoyment of the Software, that the functions contained in, or services performed or provided by, the Software will meet the Organization’s requirements, that the operation of the Software will be uninterrupted or error-free of that defects in the Software will be corrected.  The Organization acknowledges and agrees that use of the Software is at the Organization’s sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with the Organization.

8.2

In no event shall THRIVE HEALTH be liable to the Organization for any indirect, incidental, special, consequential, punitive or exemplary damages of any nature or kind whatsoever, including but not limited to lost business or profits, in connection with or arising out of this Agreement, even if such damages are foreseeable or THRIVE HEALTH has been advised of the possibility of such damages. In any case, THRIVE HEALTH’s maximum aggregate liability to the Organization for any claim under this Agreement shall be limited to an amount of $10,000. 

8.3

The Organization represents and warrants to THRIVE HEALTH that it holds sufficient rights, including intellectual property rights, licences, authorizations and permissions, in any other information entered by the Organization into the Software (including, without limitation, any Organization-entered Information and Other Organization Information) to reproduce this information into the Software, to communicate to Patients all information it communicates through the Software and to grant to THRIVE HEALTH the licenses purported to be granted herein, and that the use of the Organization-entered Information by a Patient, THRIVE HEALTH or any licensee will not infringe the rights of any third party. 


9.

TERM AND TERMINATION

9.1

Term. This Agreement shall come into force as of the date of execution of this Agreement by the Authorized Representative on behalf of the Organization and shall remain in effect for an initial term of one (1) year, unless earlier terminated in accordance with its provisions. This term of this Agreement shall be automatically renewed for successive one (1) year terms unless one Party notifies the other Party of its intent not to renew the Agreement by giving written notice to this effect no later than ninety (90) days prior to the expiry of the then-current term.

9.2

Termination for Cause. THRIVE HEALTH may, immediately upon written notice to the Organization, terminate this Agreement if the Organization fails to comply with any of the provisions of this Agreement. 

9.3

Termination by Either Party. Either Party may terminate this Agreement immediately and/or cancel outstanding orders by written notice to the other Party in the event such other Party becomes insolvent or bankrupt, takes advantage of any legislation for the protection of insolvent debtors, goes into liquidation, either voluntarily or under an order of a court of competent jurisdiction, makes a general assignment for the benefit of its creditors or otherwise acknowledges itself insolvent, or ceases to carry on business in the normal course, or is liquidated or wound-up. 

9.4

Termination for convenience. THRIVE HEALTH may terminate this Agreement at any time for any reason by giving prior written notice of no less than thirty (30) days to this effect to the Organization. 

9.5

Rights upon Termination. Upon termination or expiration of this Agreement, any right or authorization granted by THRIVE HEALTH to the Organization to access and use the Software hereunder shall be immediately terminated. For more certainty, termination of this Agreement shall not have the effect of terminating any rights or authorizations granted by THRIVE HEALTH to a Patient, or by a Patient to THRIVE HEALTH, under the Terms of Use, which shall survive the termination or expiry of this Agreement until terminated in accordance with the Terms of Use. 


10.

MISCELLANEOUS

10.1

Assignment. The Organization may not assign this Agreement without the prior written content of THRIVE HEALTH. 

10.2

Notices. Any notices pursuant to this Agreement shall be in writing and shall be sent to a Party at the following address or at such other addresses as may be specified by a Party by like notice:

 

To THRIVE HEALTH:

THRIVE HEALTH INC.
#720-890 W. Pender St.
Vancouver, British Columbia
V6C 1J9, Canada

Attention: David Helliwell
email: david@thrive.health

 

To the Organization: At the name and address of the Organization as recorded by the Authorized Representative in the sign-up process for the Software, to the attention of the Authorized Representative.

Such notices or other communications shall be deemed to have been duly given (i) upon receipt if sent by personal delivery, facsimile transmission or express delivery service, or (ii) on the fifth calendar day after the day of sending if sent by certified mail (return receipt requested).

10.3

Entire Agreement, Severability, Amendments and Waivers. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supercede all previous arrangements between the Parties with respect to the subject matter hereof. The determination that a provision of this Agreement is invalid or unenforceable shall not invalidate or render unenforceable the entire Agreement.  A provision of this Agreement may be altered only by a writing signed by both Parties. The waiver of a breach hereunder may be effected only by a writing signed by the waiving Party and shall not constitute a waiver of any other breach.

10.4

Survival. Sections 4, 5, 6, 7 and 9.5 shall survive the expiry of termination of this Agreement for any reason.

10.5

Relationship of Parties. Agreement does not create any employer-employee, agency, joint venture, or partnership relationship between the Organization and THRIVE HEALTH, its subcontractors or their respective employees. 

10.6

Publicity and Communication. The Organization shall submit to THRIVE HEALTH all press releases and other publicity matters wherein the THRIVE HEALTH’s name, marks or logos are mentioned or language from which the connection of such names, marks or logos therewith may be inferred or implied and shall not publish such press releases or publicity matter without THRIVE HEALTH’s approval. 

10.7

Governing Law. This Agreement will be governed in accordance with the laws of the Province of British Columbia, without regard to conflict of law provisions, and the Federal laws applicable therein. 

10.8

Authorized Representative. By executing this Agreement (including through electronic means), the Authorized Representative represents and warrants to THRIVE HEALTH that it has been duly authorized by the Organization to execute this Agreement on its behalf. If entered into electronically by the Organization following an offer by THRIVE HEALTH to the Organization or on a website or portal made available by THRIVE HEALTH to the Organization, the expression by the Organization of its agreement to be bound by the provisions of this Agreement, whether through a click process, an electronic signature or similar means, constitutes execution of this Agreement by the Parties.  

10.9

Binding Agreement, The display of this Agreement by THRIVE HEALTH for execution by the Organization and the execution of this Agreement by the Organization (including through electronic means) confirms that each Party has read this Agreement and agrees to be bound by its terms.

IN WITNESS WHEREOF the Parties have executed this Agreement.

THRIVE HEALTH INC.

David Helliwell, CEO


Appendix A

Description of Software

Basic Functionalities of the Software (for Basic Users)

The Software is a secure, web-based platform that enables the Organization’s Authorized Users to engage with Patients through a limited number of intake questionnaires, add and manage Authorized Users, share a limited number of educational materials with Patients, and enable Patients to sign themselves up. 

Premium Functionalities (for Premium Users)

In addition to the Basic Functionalities, Premium users may opt to purchase additional software functionality, including additional platform extensions and/or the ability to create custom content and share it via the platform. The purchase of Premium Functionalities requires a new agreement with an updated Appendix A.

THRIVE HEALTH reserves the right to change the functionalities available to both Basic and Premium users.