TERMS OF PURCHASE
OpusVi owns certain Programs (as defined below) that it makes commercially available to its customers. In connection with the purchase and use of the Programs, you and/or your organization or corporation (the “Customer”, “you”) hereby agree to the terms and conditions contained herein (collectively, the “Terms of Purchase”).
BY ACCEPTING THE TERMS OF PURCHASE, EITHER BY: A) SIGNING THE ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THESE TERMS OF PURCHASE, OR B) USING, OR ACCESSING THE PROGRAMS AFTER BEING MADE AWARE OF THESE TERMS OF PURCHASE, THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY ORDER FORM AND INCLUDING OPUSVI’S PRIVACY POLICY, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN OPUSVI AND THE CUSTOMER.
IF, AFTER READING THE TERMS OF PURCHASE, THE CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER SHALL NOT USE, OR ACCESS THE PROGRAMS.
1.Interpretation
1.1 Definitions. As used herein, the following terms have the following meanings, respectively:
(a) “Agreement” means the Order Form and these Terms of Purchase.
(b) “Business Day” means any day other than a Saturday, Sunday or statutory holiday in the Province of Ontario.
(c) “Confidential Information” means any information of the parties in electronic or tangible form which is clearly marked “Confidential” and/or which: a) was not previously known to the party receiving the disclosure; b) was not obtained from a third party having no duty of confidentiality to the party asserting confidentiality; or c) was not published or otherwise available from publicly available sources.
(d) “Fees” means the fees to be paid by Customer to OpusVi for purchase of the Programs and use of the Platform.
(e) “Intellectual Property Rights” means rights in information and other intangible property recognized in any applicable jurisdiction worldwide, including rights in (i) patents, patent applications, continuations, continuations in part, divisions, reissues, and foreign equivalents thereof (ii) utility models, (iii) registered or unregistered copyrights, including renewals, (iv) registered and unregistered trademarks and service marks, (v) registered and unregistered business names, domain names and associated IP addresses, (vi) trade secrets and any other data or information which provides value of a competitive advantage to its holder by not being publicly known, and (vii) all similar, corresponding or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
(f) “Order Form” means the form of order document issued by OpusVi pursuant to the terms and conditions of this Agreement for the purpose of purchasing Programs from OpusVi.
(g) “Platform” means the learning platform and environment where the Programs will be delivered to Customer and/or its Users and where coaching, facilitation and instruction is provided.
(h) “Program(s)” means the educational courses of study (either a certificate or degree program) in health services as developed by OpusVi, from time to time in conjunction with universities and/or colleges.
(i) “Users” means healthcare professionals that have purchased and/or accessed the Programs through the Platform.
2.Purchase of Programs
2.1 Generally. Customer wishes to purchase and OpusVi agrees to provide the Programs identified in a Order Form and in accordance with the terms hereof.
2.2 Order Forms. Customer shall order the Pograms through the issuance of a Order Form. Each Order Form shall identify the Programs being purchased, Fees, and any other relevant information which is necessary for the transaction to be adequately described.
3.Right to Use Platform
3.1 Right to Use the Service. Subject to the terms and conditions of this Agreement (including the applicable Order Form) and payment of the applicable Fees, OpusVi hereby grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to access and use (and to permit Users to access and use) the Programs via the Platform.
3.2 Restrictions. Customer shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Platform, including but not limited to any component which comprises the Platform, but not including any output from the Platform; (b) knowingly interfere with service to any of OpusVi’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing the Platform; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Platform, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Platform; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the Platform in any form to any person without the written consent of OpusVi; (f) remove any proprietary notices, labels, or marks from the Platform; (g) create any “links” to or “frame” or “mirror” of the Platform or any portion thereof; or (h) use the Platform to create, collect, transmit, store, use or process any data that: (i) Customer does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates any Intellectual Propety Rights or other rights of any third party (including any moral right, privacy right or right of publicity).
4.Proprietary Rights.
1. OpusVi and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Programs, the Platform and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Programs or Platform, as applicable, and subject to all of the provisions of this Agreement. Customer shall keep the Programs and Platform free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, OpusVi reserves all rights, title and interest in and to the Programs and the Platform. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
5.Fees and Payment
5.1 Fees. Customer shall pay to OpusVi all Fees associated with its purchase of the Programs as indicated in the Order Form. All Fees are in Canadian dollars and shall be paid in Canadian currency unless otherwise specified.
5.2 Invoicing and Payment. Fees for the Programs will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with OpusVi.
5.3 Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If OpusVi has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, OpusVi will invoice Customer and Customer will pay that amount unless Customer provides OpusVi with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, OpusVi is solely responsible for taxes assessable against it based on its income, property and employees.
6.Term and Termination
6.1 Term. This Agreement shall commence upon the Effective Date and shall continue (i) for so long as the Customer is using the Programs; or (ii) until terminated earlier in accordance with the provisions of this Agreement or applicable law.
6.2 Termination for Cause. A party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.3 Suspension of Access to Platform. In addition to any termination rights of OpusVi pursuant to this Agreement, extraordinary circumstances may require OpusVi to suspend or terminate (where appropriate), as determined in OpusVi’s reasonable discretion, Customer’s access to and/or use of, or otherwise modify, the Platform in order to: (a) prevent material damages to, or material degradation of the integrity of, OpusVi’s or its provider’s Internet network; or (b) comply with any law, regulation, court order, or other governmental order. OpusVi will notify Customer of such suspension or termination action as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination. In the event of a suspension, OpusVi will limit such suspension to that which is minimally required and will promptly restore Customer’s access to the Platform as soon as the event giving rise to the suspension has been addressed (including by Customer agreeing to accept the risks associated with such suspension) or resolved. Unless caused by a breach of this Agreement by Customer all Fees related to the Programs, or other suspended services shall be waived for the duration of the suspension and any such waived Fees which have been pre-paid shall be refunded to Customer.
7.Confidential Information
7.1 Confidential Information. Each party acknowledges that all Confidential Information (as defined herein) consists of confidential and proprietary information of the disclosing party. Each party shall, and shall cause its employees, agents and contractors to hold Confidential Information of the other party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care commensurate with the nature and importance of such Confidential Information. Each party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third person other than employees, agents and contractors of the party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement.
8.Warranties and Disclaimers
OpusVi Warranties. OpusVi represents and warrants that: (a) it owns or otherwise has sufficient rights in the Programs and the Platform, and to grant to Customer the rights to access and use the Platform granted herein; and (b) it shall comply with all applicable laws in relation to its provision of the Programs and the performance of its obligations under the Agreement.
8.1 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE PROGRAMS AND THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND OPUSVI MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE PROGRAMS; (III) THE PLATFORM; AND/OR (IV) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM OPUSVI. OPUSVI DOES NOT REPRESENT OR WARRANT THAT THE PROGRAMS OR PLATFORM WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE PLATFORM WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE PLATFORM CAN BE FOUND IN ORDER TO BE CORRECTED. OPUSVI DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS
9. Indemnites
9.1 By Customer: Customer shall defend, indemnify and hold OpusVi harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against OpusVi by a third party (a) alleging that the Customer’s use of the Programs or Platform in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; or (b) caused by any negligent act or omission of Customer or its employees, contractors or agents (each a “Customer Indemnified Claim”); provided, that OpusVi (a) promptly gives written notice of the Customer Indemnified Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Customer Indemnified Claim (provided that Customer may not settle or defend any Customer Indemnified Claim unless it unconditionally releases OpusVi of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance and information.
10.Limitation of Liability
10.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 10.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
10.2 Limitation of Liability. SUBJECT TO SECTION 10.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S MAXIMUM, CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.
10.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS, (III) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.
11.General Provisions
11.1 Marketing Rights. Customer acknowledges and agrees that OpusVi may reasonably make use of the Customer’s logo, trademark or trade name (collectively, the “Customer Marks”) solely for marketing and promotional purposes. Any marketing materials that make use of Customer’s Marks shall be submitted to Customer for approval prior to use; provided, however, that if Customer does not respond in writing within ten (10) days of submission by OpusVi, approval shall be deemed automatically granted. Notwithstanding the foregoing, any such use rights may be withdrawn by Customer upon reasonable notice, and OpusVi shall immediately cease use of Customer’s Marks upon any such request.
11.2 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) email; (b) certified or registered mail; or (c) a nationally recognized overnight courier, to the appropriate party at the address set forth on the Order Form, with a copy, in the case of OpusVi, to operations@OpusVi.org. Each party hereto expressly consents to service of process by registered mail. Either party may change its address for receipt of notice by notice to the other party through a notice provided in accordance with this Section 11.2 (Notices). Notices are deemed given upon receipt if delivered via email, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
11.3 Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
11.4 Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.
11.5 Independent Contractors. The relationship of OpusVi and Customer established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day to-day activities of the other, (ii) constitute the parties as legal partners, joint venturers, co-owners or otherwise as participants in a joint undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of the parties are their sole respective responsibilities.
11.6 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of law principles. The courts located in the Province of Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.
11.7 Entire Agreement. This Agreement is the entire agreement between OpusVi and Customer in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written agreement with OpusVi.
11.8 Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.9 Amendments. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW OR AS OTHERWISE AGREED IN THE ORDER FORM, OPUSVI MAY UNILATERALLY AMEND THESE TERMS OF PURCHASE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY OPUSVI, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
Last Updated: June 2023