These Terms of Service (the “Terms”) are between the health institution executing and agreeing to an Order Form describing the Services and which is identified in such Order Form (as these terms are defined below) (the “Health Institution”) and Stenoa Inc., located at 800, Square Victoria, Suite 3500, Montréal, Québec, H4Z 1E9, Canada (“Stenoa,” “we,” “our,” or “us”).
These Terms are effective upon the execution of a corresponding Order Form (as defined below), and continue in full force until terminated in accordance with these Terms.
The person executing an Order Form on behalf of a Health Institution represents and warrants that they are authorized to bind the Health Institution, and that they have the authority to enter into the Agreement (as defined below) on behalf of the Health Institution.
In this Agreement, the capitalized terms have the meanings set forth below, unless indicated otherwise:
2.1. Procurement. Stenoa will provide the Services described and agreed upon in an Order Form. An Order Form may only be modified by a Change Order. In case of conflicts between the respective terms of these documents and the remaining of the Agreement, such conflict will be resolved in the following order of precedence: a) Change Order; b) Order Form and c) the remaining of this Agreement.
2.2. End Users. Stenoa will create a workspace within the Services interface for the Health Institution (a “Workspace”), which will be managed and customizable by a single user (the “Workspace Owner”). Only the Workspace Owner may delete the Workspace, delete or export Health Institution Data, transfer Workspace ownership, or modify the Workspace settings. The Workspace Owner will be provided with provisioning rights to assign management rights and manage administrators of the Workspace (each, a “Workplace Admin”). The Workplace Admins are responsible for managing access and credentials for other End Users, including for removing access to the Services as needed. End Users are solely responsible for ensuring the confidentiality of their credentials. All actions taken through End Users’ accounts will be deemed to be actions of the Health Institution.
2.3. Notifications and Alerts. The Services include alert functionalities, such as critical and noncritical push notifications. The Health Institution is solely responsible for a) activating and accepting notifications or alerts as required based on their use of the Services; b) verifying any notifications or alerts, including by monitoring any relevant changes, modifications or content which is posted through the Services. The Health Institution will implement a contingency plan, in conjunction with Stenoa, in the event of the unavailability of the Services, such as in the event of a server failure, or as required to ensure that notifications and alerts are received. The Health Institution is responsible for testing out-of-band communications and maintaining these plans accurate and in effect. Stenoa will provide reasonable support to Health Institution to ensure contingency plans are in place, and will participate in testing as required.
2.4. Beta Services. The Services may include access to Beta Services. The Beta Services are optional and use or access to the Beta Services is at the Health Institution’s sole risks, unless agreed otherwise. Notwithstanding anything to the contrary, the Beta Services are provided “as is” and “as available,” and may contain errors, bugs, as well as algorithms in training that can still contain biases or which may lack accuracy. Notwithstanding anything to the contrary, Stenoa makes no promises that future versions of Beta Services will be released or will be available under the same commercial or other terms. Stenoa may terminate Health Institution’s right to use any Beta Services at any time for any reason or no reason in Stenoa’s sole discretion, without liability of any kind.
2.5. Free Trial. If the Health Institution subscribes to a free trial through Beta Services, Stenoa will provide access to all or part of the Services available to the Health Institution on a trial basis, free of charge, until the earlier of a) the end of the free trial period for which the Health Institution is registered or is registering to access the applicable Services through an Order Form or b) the start date of the Subscription Term for the Services.
2.6. Technical Support. During the Subscription Term, Stenoa will provide technical support services by email, on a twenty-four (24) hours basis per day, seven (7) days per week basis. Upon reception of a support request, Stenoa will assign a criticality rating to such request in accordance with the table set forth below.
|S1 – Critical Severity||
||2 hours||12 hours|
|S2 – High Severity||
||6 hours||24 hours|
|S3/4 – Low and Medium Severity||
||8 hours||48 hours|
2.7 Availability. During the Subscription Term, the Services will be available on a twenty-four-hour basis, every day of the year, for an average monthly uptime of 99.5% which shall be calculated as follows:
3.1. Use of Services. During the Subscription Term, and subject to the terms of this Agreement, Stenoa hereby grants the Health Institution a worldwide, non-exclusive, non-transferable (except as set forth herein), revocable (but only as set forth herein) and non-sublicensable (except to End Users as set forth herein) right and license to access and use the Services (and to allow End Users to access and use the Services) for the Intended Purposes, and in accordance with this Agreement.
3.3. Reports. During the Subscription Term, and subject to the terms of this Agreement, Stenoa hereby grants to the Health Institution the ability to generate, access, and store reports and business intelligence outputs based on reporting functionalities (the “Reports”). Stenoa hereby grants the Health Institution a perpetual, worldwide, non-exclusive, non-transferable and sublicensable right and license to use, download, access, and translate the Reports for its internal business and compliance purposes. For the avoidance of doubts, the Health Institution may not sell or commercialize the Reports.
3.4. Health Institution Data. During the Subscription Term, the Health Institution hereby grants to Stenoa a worldwide, non-exclusive, non-transferable (except as set forth herein), and non-sublicensable (except as required to provide the Services) and non-revocable (except as set forth herein) right and license to aggregate, modify, use and disclose the Health Institution Data solely as required to provide the Services, or otherwise as authorized under this Agreement.
3.5. De-identified Data. During the Subscription Term, the Health Institution hereby grants to Stenoa a worldwide, exclusive, non-transferable (except as set forth herein), and non-sublicensable (except as required to provide the Services), and non-revocable (except as set forth herein) right and license to aggregate, modify, use and disclose the De-identified Data a) to provide the Services; b) to improve the Services; c) to conduct research and development and d) to comply with Applicable Laws, or otherwise as permitted under this Agreement.
4.1. Relationship. The Health Institution agrees and understands that the licenses to the Mobile App and any other aspects of this Agreement are between the Health Institution and Stenoa, and not with Apple or any other App Store or marketplace from which the Health Institution, or any of its End Users download the Mobile App from (each a “Marketplace”). The Marketplace has additional terms and conditions which may apply to the Health Institution’s use of the Mobile App (the “Usage Rules”). The Health Institution represents and warrants that it will comply, and ensure that End Users comply with, such Usage Rules. Notwithstanding anything to the contrary, in relation to the use of the Mobile App, the Usage Rules will have precedence over this Agreement. The Health Institution agrees and understands that Stenoa, not Apple (Apple Inc.) or Google (Google LLC), is responsible for the Mobile App, and its maintenance, through the technical support set forth herein. The following additional covenants shall be applicable to the Health Institution’s use of the Mobile App:
5.1. Ownership. Notwithstanding anything to the contrary in this Agreement, and as between the parties, Stenoa owns all rights, titles, and interests in a) the Stenoa Technologies and b) the Aggregated Data, including any derivative work thereof. All rights not granted herein are reserved. The Services are licensed, not sold, to the Health Institution. For the avoidance of doubts, and as between the parties, the Health Institution owns all rights, titles, and interests in the Health Institution Data.
5.2. Feedback. If the Health Institution (or an End User) elects to provide any suggestions, comments, improvements, information, ideas, or other feedback to Stenoa with regards to the Services (collectively, “Feedback”), the Health Institution hereby waives any Intellectual Property rights, including any moral rights as may be applicable, in such Feedback, and where not authorized by Applicable Laws, assigns such Intellectual Property rights to Stenoa, which hereby accepts such assignment. Notwithstanding the foregoing, the Health Institution shall retain a right to use any such Feedback for its internal business use.
6.1. Restrictions. The Health Institution represents and warrants that it will use the Services, and only authorize the use of the Services, in a manner that complies with Applicable Laws, including the privacy rights of individuals granted under such Applicable Laws. Without limiting the generality of the foregoing, the Health Institution represents and warrants that it will not use the Services, nor authorize the use of the Services, in a manner which involves:
6.2. Suspension. Stenoa reserves its right to suspend access to the Services in case of a material breach of this Section 6 by the Health Institution or its End Users. Any such suspension shall be to the minimum extent required to resolve the issues which gave rise to such suspension, and Stenoa will reactivate the Services without undue delays upon such issues being resolved.
7.1. Each party represents and warrants that a) it has all rights, titles and interests as required to enter into this Agreement, b) that it is duly authorized to enter into this Agreement and c) that it will comply in all material respect with Applicable Laws.
7.2. Stenoa represents and warrants that to the best of its knowledge, the Services do not infringe any third party’s Intellectual Property. In case of a breach of the foregoing warranty, the Health Institution’s only remedy shall be, at Stenoa’s reasonable discretion a) to provide the Health Institution with non-infringing and substantially similar Services; b) to obtain the rights to use the Services for the Health Institution, c) to modify the Services so that they are compliant with the foregoing or d) to terminate the Agreement and reimburse the Health Institution for all Fees paid for the Services in the last twelve (12) months.
7.3. Stenoa represents and warrants that the Services a) will be performed in a professional and workmanlike manner and b) will conform in all material manner with the specifications set forth in the documentation. In case of a breach of the foregoing which cannot be addressed through technical support, the Health Institution may terminate this Agreement for cause as set forth below.
8.1. General. To the maximum extent permitted by Applicable Laws, and except as set forth in this Agreement, Stenoa does not warrant that the Services will be uninterrupted or error free, nor does it make any warranty as to the results that may be obtained from the use of the Services. Except as set forth herein, Stenoa makes no other representations, conditions, warranties or guarantees, express or implied, including regarding the accuracy, reliability, or completeness of any data, and of any content, reports or outputs generated based on the foregoing, and expressly disclaims any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. The Health Institution hereby waives any legal warranty except as otherwise provided in this Agreement. Except as provided in this Agreement, the Services, and any other components of the Services are provided “as is,” “where is” and “as available” by Stenoa to Health Institution.
8.2. For Information Only. The Services may include the use of predictive algorithms or data analytics services to provide Reports to the Health Institution. The Health Institution agrees and understands that a) the Health Institution is solely responsible for the decisions and actions that it takes based on such Reports, including any optimization initiatives thereafter; b) the Reports are intended to be reviewed, analyzed, and augmented by professionals, and not to be interpreted in isolation from their contextual factors. Notwithstanding anything to the contrary, the Health Institution hereby agrees and understands that Stenoa shall have no responsibility whatsoever for the Reports, nor for any decision or action taken in relation to a Report. The Health Institution agrees that the Reports may not be accurate, and depend entirely on the quality, accuracy and completeness of the Health Institution Data obtained by Stenoa to perform the Services.
8.3. Secondary Storage Only. The Services may not be used as primary means of storing PHI. The Services are not intended to serve as electronic health records or otherwise as electronic services for accessing and storing such PHI. The Health Institution is solely responsible for extracting and making appropriate copies of PHI, or any other Institution Health Data.
8.4. Communications. The Services include encrypted communications functionalities between End Users. While the communications are encrypted in-transit and at-rest, they are not encrypted at-use and the Health Institution must take adequate precautions, such as ensuring that endpoints are encrypted and protected by adequate passwords. Stenoa shall not be responsible for any breach of confidentiality affecting such communications to the extent that it is not caused by Stenoa’s breach of this Agreement. The communications may be deleted throughout the Subscription Term, by End Users, or otherwise may be archived or expired.
8.5. Ethical Obligations. The Health Institution (and any End Users, as applicable) are solely responsible for determining whether PHI should be processed through the Services, and whether there is a lawful basis for processing such PHI through the Services. The Health Institution is solely responsible for complying with Applicable Laws for the collection, use, and disclosure of Personal Data by End Users through the Services. Stenoa shall have no liability whatsoever for Personal Data provided in violation of this Agreement, or for any use of the Services in violation of medical, ethical, or professional obligations regarding Patients, or otherwise in relation to the health services provided by the Health Institution, except as expressly set forth otherwise herein.
9.1. Exclusions. Confidential Information shall not include information which the Receiving Party can demonstrate a) is readily available to the public in the same form through no fault of the Receiving Party; b) did not originate from the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restrictions on disclosure; or c) did not originate from the Disclosing Party and was in the possession of the Receiving Party in the same form prior to disclosure to the Receiving Party by the Disclosing Party. The foregoing shall not apply to Personal Data.
9.2. Obligations. The Receiving Party shall only use or disclose Confidential Information a) to provide the Services; b) to perform its obligations under this Agreement or c) in accordance with Applicable Laws, or the administration thereof. The Receiving Party may use or disclose Confidential Information to a service provider, agent, legal or financial advisor, as reasonably required for their Services, subject to such recipients being under an appropriate confidentiality agreement.
9.3. Termination. Upon termination of this Agreement for any reason, the Receiving Party shall, at the Disclosing Party’s option, a) return the Confidential Information and/or b) securely destroy the Confidential Information. Notwithstanding the foregoing, the Receiving Party is authorized to keep a copy of the Confidential Information as required for business continuity purposes, pursuant to internal retention schedules, and for legal, auditing, or financial reasons.
9.4. Personal Data. Each party agrees to comply with Applicable Laws regarding the collection, use and disclosure of Personal Data. Without limiting the generality of the foregoing:
9.5. PHI. If applicable, the parties agree to enter into a Business Associate Agreement (“BAA”) for the provision of any PHI which are subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and such BAA will prevail over the remaining of the Agreement in case of conflict between their respective terms.
9.6. Data Security. Stenoa will develop, implement, and maintain appropriate technical and organizational controls as required to reasonably safeguard the Health Institution Data against a Security Breach. Without limiting the generality of the foregoing, Stenoa will
9.7. Security Breach. The Receiving Party shall notify the Disclosing Party without undue delays and no later than seventy-two (72) hours upon becoming aware of a Security Breach. This notification will include information on the nature of the Confidential Information compromised, a description of the likely consequences of the Security Breach, and of the measures taken or proposed to be taken by the Receiving Party. To the extent that such information is not available at the time of the notice, the Receiving Party shall follow up as the information becomes available, to complete its notice without undue delays.
10.1. Payment of Fees. The Health Institution agrees to pay for the Fees in accordance with the payment terms indicated in the Order Form. Unless indicated otherwise in the Order Form, the Fees are due within forty-five (45) days of the issuance of a corresponding invoice. The Health Institution shall have up to ninety (90) days from the reception of an invoice to dispute this invoice in accordance with this Agreement. After this delay, the Health Institution may no longer dispute an invoice. The Fees are non-cancellable, and non-reimbursable, except as set forth otherwise herein.
10.2. Tax. The Health Institution agrees to pay for taxes which Stenoa is required by Applicable Laws, or the administration thereof, to invoice. If the Health Institution is exempt from taxes, it will provide evidence of such exemption upon request and be responsible for any subsequent third-party claims to Stenoa resulting from false claims of exemption. If the Health Institution requires an Order Form number reference on the invoices for the Services, the Health Institution must promptly provide such number, ahead of invoices being issued.
10.3. Payment information. Unless indicated otherwise in an Order Form, the Health Institution agrees to provide Stenoa with credit card information and the Fees will be debited from the Health Institution’s credit card based on the Purchase Order. The Health Institution represents and warrants that a) it is authorized to use this credit card; b) it will provide Stenoa with notification of any changes to its credit card information as required to ensure that the Fees will be processed through the credit card. For the avoidance of doubts, the Health Institution specifically authorizes Stenoa to debit the Fees from the Health Institution’s credit card in accordance with the Order Form (as modified from time to time through Change Orders).
10.4. Late Fees. If the Fees are not paid within forty-five (45) days, the Health Institution agrees that Stenoa may apply interests corresponding to 1.5% monthly or 18% annually on such late Fees. If the Fees are not paid within ninety (90) days, the Health Institution agrees that it will be responsible for any late collection fees, including reasonable attorneys’ costs.
11.1. Liability Cap. To the maximum extent permitted by Applicable Laws, in no event will either party be liable for any loss of use, lost or inaccurate data, interruption of business, lost profits, costs of delay, reputational harm, or any indirect, special, incidental, cover, reliance or consequential damages of any kind, however, caused, even if informed in advance of the possibility of these damages. Either party’s total liability to the other party, including its affiliates, representatives, employees, directors, and officers, will not exceed in aggregate the amount actually paid by the Health Institution to Stenoa for the Services in the last twelve (12) months relating to the claim.
11.2. Exceptions. Notwithstanding the foregoing, none of the limitations in this Section 11 excludes either party’s liability for fraud or for death or bodily injury to the extent caused by a party’s negligence. In addition, the laws in some jurisdictions may not allow some of the limitations of liability in this section. if any of these laws is found to apply to this agreement, this section 11 will apply to the maximum extent permitted by Applicable Laws.
11.3. Failure of Essential Purpose. Each party acknowledges and agrees that this Section 11 is a fundamental basis of the bargain and a reasonable allocation of risk between the parties and will survive and apply to any claims arising out of or related to this agreement, any Stenoa technology or any related services, regardless of the theory of liability (contract, tort, strict liability or otherwise), even if any limited remedy in this Agreement is found to have failed of its essential purpose.
12.1. Termination. This Agreement may be terminated upon written notice to the other party if there is no active Subscription Term. Otherwise, this Agreement, or parts thereof, can be terminated upon written notice to the other party if this party is in breach of the Agreement and has not resolved such breach within thirty (30) days, or longer if agreed upon. Notwithstanding the foregoing, Stenoa may terminate this Agreement upon written notice if the Health Institution’s payment of the Fees is late of more than ninety (90) days from the due date, and the Health Institution does not remedy the default after receiving more than two written notices during this period.
12.2. Effects. Upon termination of this Agreement, all Change Orders and Order Forms will automatically be terminated, and the Health Institution (including all End Users) will cease to have access to the Services, including to any Health Institution Data stored on the Services. Within thirty (30) days from the termination date, the Health Institution may request a copy of the Health Institution Data which can be extracted by Stenoa. After this delay, the Health Institution agrees and understands that Stenoa will delete the Health Institution Data in accordance with this Agreement and may not be able to provide copies of the Health Institution Data. If the termination is caused by a breach of this Agreement by Stenoa, then Stenoa will reimburse the Health Institution for any Fees paid for Services which have not been rendered at the date of the termination. However, if the termination is caused by a breach of this Agreement by the Health Institution, then all Fees due for the Services during the Subscription Term will become due immediately, and no reimbursement will be due to the Health Institution for any Fees. The parties agree that the termination provisions set forth in this Section 11 will be applicable instead of, and result in the inapplicability, of articles 2125 and 2129 of the Civil Code of Quebec, the parties hereby disclaiming and renouncing to such articles based on the terms agreed upon in the Agreement. Sections 3.3, 5, 9, 11, 12.2, 13.5, 14 shall survive the termination of this Agreement for any reasons.
13.1. General. In the interest of resolving disputes between the Health Institution and Stenoa in the most expedient and cost-effective manner, and except as described below, the Health Institution and Stenoa agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration.
13.2. Exceptions. Despite the foregoing, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to a) bring an individual action in a small claims court; b) pursue an enforcement action through the applicable federal, state, provincial, or local agency if that action is available; c) seek injunctive relief in a court of law in aid of arbitration; or d) file suit in a court of law to address an intellectual property infringement claim.
13.3. Opt-Out. If the Health Institution does not wish to resolve disputes by binding arbitration, the Health Institution may opt-out of the provisions of this Section 13 within thirty (30) days after the Effective Date of this Agreement by providing a notification to this effect to Stenoa by email at firstname.lastname@example.org, stating that the Health Institution would like to opt-out of arbitration (the “Opt-Out Notice”). Once Stenoa receives this notice, this Section 13 will not be applicable to the Health Institution, and any actions arising out of this Agreement will be resolved in courts as set forth under Section 13.5.
13.4. Arbitrator. Any arbitration between the Health Institution and Stenoa will be settled under the Arbitration Rules of the ADR Institute of Canada, Inc., under a sole arbitrator chosen by Stenoa. The Health Institution will have ten (10) days to object to the choice of an arbitrator and select a different arbitrator. The arbitration will occur in a) Montreal, Québec, Canada; b) through online dispute resolution services or c) in the Health Institution’s jurisdiction, if Applicable Laws do not allow another choice of jurisdiction. The parties will share the fees and costs associated with the arbitration equally.
13.5. Governing Laws. To the extent permitted by Applicable Laws, this Agreement shall be governed by and construed by the laws of the Province of Québec, Canada and the laws of Canada applicable therein. Except as set forth herein, the parties hereby submit and attorn to the jurisdiction of the Courts of the district of Montreal, Province of Québec. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement.
14.1. Amendment. Any modification or amendment to this Agreement must be made in writing and executed by an authorized representative of each party.
14.2. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Stenoa may assign this Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 14.2 will be void.
14.3. Notices. Any notice or communication under this Agreement must be in writing. Health Institution must send any notices under this Agreement (including Breach Notices) to Stenoa at the following address: email@example.com. Stenoa may send notices to the email addresses on Health Institution’s account or, at Stenoa’s option, to Health Institution’s last-known postal address, as documented in an Order Form. The Health Institution is responsible for informing Stenoa if such changes are made. Stenoa may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of the notice on Stenoa’s website or the Services. Each party consents to receiving electronic notices. Stenoa is not responsible for any automatic filtering Health Institution or its network provider may apply to email notifications.
14.4. Relationship between the Parties. The Parties agree that each of them is in business for themselves and that they are independent contractors under Applicable Laws, including without limitation, pursuant to the Income Tax Act (Canada) and any other federal or provincial legislation relating to income tax, social security benefits or unemployment compensation. Nothing in this Agreement shall be regarded or construed as creating any other relationship, whether employer/employee, principal/agent, joint venture, association, partnership, or otherwise between the Parties. For greater certainty, End Users are not entitled to and shall have no claim against Stenoa for any benefits or other perquisites from Stenoa including, but not limited to vacation pay, sick leave, retirement benefits, social security, workplace safety and insurance coverage, health or disability benefits, unemployment insurance benefits, minimum wage or workers’ compensation coverage.
14.5. Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as acts of God, a strike, blockade, distributed denial of services and denial-of-services attacks, zero-day attacks, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act, unless such delay or failure is caused by the negligence of this party.
14.6. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.
14.7. Entire Agreement. This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Stenoa Technology or any other subject matter covered by this Agreement. Any terms provided by Health Institution (including as part of any purchase order or other business form used by Health Institution) are for administrative purposes only, and have no legal effect.
14.8. Waiver. The failure of a party to enforce its rights with respect to a violation of this Agreement will not constitute a waiver of the right to enforce its rights with respect to the same or any other violation of this Agreement.
14.9. List of Clients. Stenoa may use the name and logo of the Health Institution to add the Health Institution to list of current clients, as part of proposals or otherwise. The Health Institution may revoke its consent in writing at any time.
14.10. Export Control. This Agreement is made subject to any restrictions concerning the export of products or technical information from Canada or other countries that may be imposed on the parties from time to time. Each party agrees that it will not export, directly or indirectly, any technical information acquired from the other party under this Agreement or any products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with Applicable Laws.
14.11. Language. The parties acknowledge that they have required this Agreement and all related documents to be prepared in English only. Les parties reconnaissent avoir demandé que le présent Contrat ainsi que tous les documents qui s’y rattachent soient rédigés uniquement en langue anglaise.