SOFTWARE AS A SERVICE AGREEMENT
Last updated on May 15, 2015.
This Software as a Service Agreement (“Agreement”) is made between Yocale Network Corporation (“Yocale”) and you (the “Business or Provider”) via Yocale’s website located at www.yocale.com (the “Website”).
If the Business or Provider is a representative of a business, the Business or Provider represents that it has the required authority to bind any entity for whom they are entering into this Agreement. If the Business or Provider does not have the necessary authority or if the Business or Provider disagrees with these terms and conditions of this Agreement, the Business or Provider must not accept this Agreement and may not use the Services. The Business or Provider affirms that the person accepting this Agreement on behalf of the Business or Provider is older than the age of majority in the jurisdiction where the Business or Provider is located and is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement.
Yocale offers a variety of services via the Website, such as allowing end users of the Website (the “Members”) to find, engage with and purchase services from the Business or Provider offering services through the Website (the “Services”). The Services may include services such as scheduling, ratings, reviews, and information management as it relates to business offerings of the Business or Provider.
The Services is a work in progress, and Yocale will update this Agreement from time to time in Yocale’s sole discretion as changes are made to the Software and for other reasons. Since this document is posted on the Website, the Business or Provider should periodically review the most up-to-date version. The Business or Provider’s continued use of the Services following the publishing of a revised version of this Agreement means that the Business or Provider accepts and agrees to the changes.
- YOCALE SERVICES
- Yocale reserves the right to replace, modify, and/or upgrade the Services in its sole discretion at any time. Any replacement, modification or upgrade to the Services is to be treated as part of the Services for the purpose of this Agreement.
- Yocale will provide all equipment, software, and security services necessary for the operation and maintenance of its host computer system to provide the Services as deemed necessary by Yocale from time to time.
- During the Term and subject of the terms and conditions of this Agreement, the Business or Provider grants Yocale the limited right to access and interact with the Business or Provider’s practice management system, calendar system, and information database (hereinafter referred to as “the “Business or Provider’s Systems”) solely to copy, extract, and use data as necessary to perform the Services as they relate to the service offerings of the Business or Provider to the Members.
- The Business or Provider or its designee shall open, operate, and maintain an account to use the Services, throughout the Term of this Agreement.
- Yocale enables Member feedback and Member content to be ranked on the Website (the “Feedback”). The Feedback may be published, edited, or modified and shared via the website and the Services at Yocale’s discretion. The Business or Provider expressly acknowledges and agrees that Yocale is not responsible for the Feedback provided by Members. In the event the Business or Provider disagrees with any Feedback provided by a Member in respect of the Service Provider, the Business or Provider may inform Yocale and specifically request that Yocale review such Feedback. Yocale may, at its sole discretion, review such Feedback and if Yocale agrees with the Business or Provider, Yocale may remove such Feedback from the Website.
- Section (1)(h) above is made by the Business or Provider notwithstanding any relevant provisions of California Civil Code Section 1542 which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor.” The Business or Provider expressly waives any and all rights it may have under the provisions of that law and section or any similar statute in any other jurisdiction.
- Yocale will use reasonable efforts to confirm contact information for Members but does not guarantee the accuracy of the information provided to it by Members.
2. GRANT OF LICENSE
- Yocale grants the Business or Provider a limited, non-transferable, and non-exclusive license to access, use, display, run or otherwise interact with the Services subject to the terms and conditions set forth in this Agreement.
- The License granted by Yocale is on a per authorized user basis, as described in the subscription process, and may not be transferred, assigned or given to any third party except as authorized by Yocale.
- The Business or Provider is expressly restricted from the following, in whole or in part: (a) reverse engineer, disassemble or decompile any component of the Services; (b) interfere in any manner with the operation of the Services, or the hardware and network used to operate the Services; (c) transfer any of the Business or Provider’s rights under this Agreement, use the Services for the benefit of a third party or operate a service bureau; (d) modify, copy or make derivative works based on any part of the Services; (e) otherwise use the Services in any manner that exceeds the scope of use permitted under this Agreement; (f) use the Services in any way that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; (g) use the Services in any way that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, provincial, national or international law; (h) use the Services in any way that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party anywhere in the world; (i) use the Services in any way that impersonates any person or entity or otherwise misrepresents the Business or Provider’s affiliation with a person or entity; (j) use the Services in any way for unsolicited promotions, political campaigning, advertising or solicitations; (k) use the Services in any way that introduces or spreads viruses, corrupted data or other harmful, disruptive or destructive files in to the Services or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information; or (l) use the Services in any way that, in the sole judgment of Yocale, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Yocale or Members to any harm or liability of any type, or creates or imposes an inappropriate load or create large bandwidth-consuming transactions on the Services.
3. BUSINESS PROVIDER RESPONSIBILITIES
- The Business or Provider will cooperate with Yocale or its agents to verify the information specified as the Business or Provider Information, and any other information that Yocale in its sole discretion deems necessary.
- As a Business or Provider scheduling of a Member for an appointment constitutes the Business or Provider’s acceptance of that Member as a customer or patient. The Business or Provider is fully and solely responsible for all services, advice, and care rendered to the Member and for collecting payment from the Member for any and all services rendered and the Business or Provider expressly acknowledges and agrees that Yocale is not responsible or liable in any manner for any interaction between the Business or Provider and the Member or any services provided or not provided to the Member.
- The Business or Provider shall use reasonable efforts to respond to a Member scheduling request within one (1) hour after receipt of Member’s request for an appointment. The Business or Provider acknowledges that unreasonable rescheduling or cancelling of Member appointments may result in the Business or Provider being removed from, or otherwise affected in the ranking of appointment listings available to Members or may negatively affect the ratings and rankings of the Business or Provider on the Service.
- Regarding any information provided to or through Yocale by any Member for use by the Business or Provider, the Business or Provider will provide the Member with the opportunity to review and accept or correct such information.
4. WARRANTIES AND COVENANTS OF BUSINESS PROVIDER
- The Business or Provider covenants to maintain the confidentiality of all information and shall only use Member submitted information as permitted in this Agreement and consistent with all applicable privacy laws.
- Business Provider covenants to:
- Provide Yocale with up-to-date, accurate information.
- Maintain updated and accurate scheduling information.
- Where applicable, ensure that it has all proper unexpired certification including licenses or other professional requirements to carry on business and provide the services provided by the Business Provider through the Service.
- Where applicable, ensure that it has and will maintain sufficient and appropriate professional liability insurance.
- Ensure that it will treat all Members equally without regard to Members’ race, religion, sex, sexual orientation, disability, or other potential head of discrimination; and
- Use the Services in accordance with all applicable laws and regulations.
5. FURTHER REPRESENTATIONS AND WARRANTIES OF BUSINESS PROVIDER
The Business or Provider represents and warrants that:
- It is duly incorporated, organized or otherwise validly existing and in good standing within the laws and regulations of the presiding jurisdiction.
- It has the full power to enter into this Agreement, binding the Business or Provider to perform its obligations arising from this Agreement.
- This Agreement will not result in any breach of any term or condition of any other agreement binding the Business or Provider; and
- Is not currently in bankruptcy, it does not currently contemplate entering into bankruptcy, and it is not aware of any basis for any third party petition to have the Business or Provider entered into bankruptcy.
6. FEES AND PAYMENT
- In consideration of the Services provided by Yocale, the Business or Provider shall pay Yocale the fees (“Fees”) as described in the registration process pursuant to which the Business or Provider subscribes to the Services. The Fees may be paid in periodic dates or in lump sum. Each date of payment of a portion of the Fees is called a “Payment Date”.
- Yocale reserves the right to amend the Fees from time to time. Any amendment to the Fees payable in respect of the Business or Provider will be effective as of the next renewal date of the subscription for the Services by the Business or Provider.
- The Business or Provider shall provide Yocale up-to-date and accurate payment information in one of the following forms: credit card or pre-authorization for automatic withdrawals from a chequing/checking account, any of which must be in a format acceptable to Yocale. The Business or Provider will also provide all other relevant, accurate, and up-to-date contact and billing information.
- If the Business or Provider elects the credit card payment method, the Business or Provider hereby authorizes Yocale to bill the credit card on the Effective Date and on each Payment Date.
- If the Business or Provider elects the pre-authorization payment method, the Business or Provider hereby authorizes Yocale to collect subscription fees via automatic payments from the Business or Provider’s chequing/checking account on the Effective Date and on each Payment Date.
- Amounts due to Yocale by the Business or Provider that are not paid by the due date shall bear interest at the rate of the lesser of one percent (1%) per month (12% per annum) and in any event shall not exceed the maximum amount permissible by law.
- Yocale is entitled to suspend or terminate the Business or Provider’s account for late payment. If Yocale decides to suspend or terminate the account at the Business or Provider’s request, the Business or Provider shall pay Yocale’s standard fee for reactivating the Business or Provider’s account.
- Termination of this Agreement for any reason shall compel the Business or Provider to pay Yocale all fees due for the Term or any Additional Term.
- Fees are exclusive of all applicable taxes, levies, duties or similar government assessments payable on the Services (collectively, “Taxes”). The Business or Provider is responsible for paying all Taxes payable on the Services provided to the Service Provider.
7. CANCELLATION AND REFUND POLICY
The Business or Provider may notify Yocale during the first thirty(30) days following the Effective Date that the Business or Provider wishes to terminate the Services and receive a refund of any fees paid by the Business or Provider minus any applicable setup fees. This notification must be made in writing by sending an email to support@Yocale.com
8. TERM / TERMINATION
- The term of this Agreement will commence on the Effective Date and shall continue for the initial period set out in the Business or Provider’s Subscription (the “Subscription Term”).
- The Term will be renewed automatically (the “Renewal”), for further periods equal to the duration of the Subscription Term (each an “Additional Term”), upon payment of the Fees payable in respect of each such Additional Term.
- Yocale may terminate this Renewal by providing thirty (30) days advance written notice via email to the Business or Provider’s email address as it appears on the Business or Provider’s account.
- The Business or Provider may terminate the Renewal by providing written notice no later than thirty (30) days before the start of the next term in writing via email to Yocale at firstname.lastname@example.org.
- Yocale may terminate this Agreement without notice to the Business or Provider in the event of any breach or default of this Agreement by the Business or Provider.
9. INTELLECTUAL PROPERTY
- Yocale shall have exclusive ownership of all rights, title and interest, including without limitation all intellectual property rights, in and to: i) the Services, Yocale application, and the Website; ii) all derivative work including any modifications or enhancements, subject to the rights expressly granted by Yocale; and iii) all information and data gathered by Yocale.
- This Agreement does not provide the Business or Provider with title to or ownership of the Services, any components of it or any data aggregated by Yocale or any part thereof.
- The Business or Provider retains all right, title, and interest in and to the Business or Provider Information. Yocale will use the Business or Provider information to provide the Services under this Agreement. The Business or Provider will be solely responsible for providing all Business or Provider information required for the proper operation of the Services and grants Yocale all necessary licenses in and to the Business or Provider Information solely as necessary for Yocale to provide the Services for the Business or Provider and its Members.
The Business or Provider will indemnify, hold harmless, and defend Yocale, its affiliates, directors, officers, employees, consultants, and agents against any and all claims, damages and expenses, including legal costs, court awards or amounts paid in settlement, directly or indirectly resulting from:
- The Business or Provider’s use of the Services, Website or other Yocale service.
- Members selecting and making appointments with the Business or Provider via the Services.
- Members fulfilling or not-fulfilling appointments scheduled through or with the assistance of the Services or other Yocale service.
- Any failure by the Business or Provider to comply with privacy laws.
- Any breach of this Agreement by the Business or Provider.
- Yocale’s access to or use of the credit card or chequing/checking account information provided by the Business or Provider for the purposes of billing the Business or Provider.
- Regarding any information provided to or through Yocale by any Member for use by the Business or Provider, all claims and liability arising out of the use of such information or any error or omission in such information; and
- All claims in respect of any Feedback including any customer feedback.
11. WARRANTY DISCLAIMER
THE BUSINESS OR PROVIDER AGREES THAT THEIR USE OF THE SERVICES AND ACCESS TO ALL CONTENT FORMING PART OF OR RELATED TO THE SERVICES, SHALL BE AT THE BUSINESS OR PROVIDER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOCALE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, IN CONNECTION WITH THE SERVICES AND THE BUSINESS OR PROVIDER’S USE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, HARDWARE COMPATIBILITY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. YOCALE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF ANY SITES, PAGES OR SERVICES LINKED TO OR THROUGH THE SERVICES AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR (I) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICES, OR IN THE TRANSMISSION OF CONTENT (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE BUSINESS OR PROVIDER’S ACCESS TO OR USE OF THE SERVICES OR ACCESS TO ANY CONTENT, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF YOCALE’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, OR (VI) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. YOCALE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICE OR WEBSITE FEATURED, BANNER, SPONSOR MESSAGE OR OTHER ADVERTISING. YOCALE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN THE BUSINESS OR PROVIDER AND MEMBERS OF PRODUCTS OR SERVICES. AS WITH THE SALE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, THE BUSINESS OR PROVIDER SHOULD USE BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
12. LIMITATION OF LIABILITIES
- IN NO EVENT SHALL YOCALE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO THE BUSINESS OR PROVIDER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM THE BUSINESS OR PROVIDER’S USE OF OR ACCESS TO THE SERVICES, INCLUDING WITHOUT LIMITATION RESULTING FROM (I) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICES, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE BUSINESS OR PROVIDER’S ACCESS TO OR USE OF THE SERVICES OR ANY CONTENT, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF YOCALE’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE BUSINESS OR PROVIDER’S USE OF ANY CONTENT MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT YOCALE IS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
- THE BUSINESS OR PROVIDER SPECIFICALLY ACKNOWLEDGES THAT YOCALE SHALL NOT BE LIABLE IN ANY WAY FOR ANY CONTENT INCLUDING BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH THE BUSINESS OR PROVIDER. YOCALE DOES NOT CONTROL THE CONTENT POSTED AND DOES NOT GUARANTEE THE ACCURACY OR INTEGRITY OF SUCH CONTENT.
- TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE MAXIMUM AGGREGATE LIABILITY OF YOCALE OR ITS PARTNERS OR LICENSORS ARISING FROM ANY CLAIM MADE BY THE BUSINESS OR PROVIDER UNDER THIS AGREEMENT EXCEED $100.
- The Business or Provider is solely responsible for any liability or expense resulting from outdated or inaccurate Business or Provider information.
- The Services is controlled and offered by Yocale from its facilities in British Columbia, Canada. Yocale makes no representations that the Services are appropriate, legal or available for use in other jurisdictions. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
- To the maximum extent permitted by the applicable law, under no circumstances shall Yocale be liable to any third party for any claim or damages made against the Business or Provider, regardless of any notice or warning regarding any such claim or damages.
- The Business or Provider acknowledges and agrees that communicating and/or transmitting credit card information on the telephone or by internet involves certain security risks. Yocale engages third party institutions to manage payments and other financial transactions and as such, shall not be liable for any loss or damages arising from the transmission of the credit card information, including but not limited to invasion of privacy, damages, theft, and fraud or any damage resulting from the processing of payments and other financial transactions by such third parties.
- Yocale does not accept responsibility for monitoring the use of trademarks, copyrights or other property rights of the Business or Provider, Members or third parties, but may, under certain circumstances and in Yocale’s sole discretion, suspend or terminate access, edit or remove content, or take other action against those who infringe the intellectual property rights of others.
- Except for any issue related to Yocale’s intellectual property rights, all disputes arising out of or in connection with this Agreement will be referred to and finally resolved by arbitration under the rules of the British Columbia International Commercial Arbitration Centre. The appointing authority will be the British Columbia International Commercial Arbitration Centre. The case will be administered by the British Columbia International Commercial Arbitration Centre in accordance with its domestic rules by a single arbitrator. The place of arbitration will be Vancouver, British Columbia, Canada. The language of the arbitration will be English. Subject to mandatory arbitration, the Business or Provider agrees that any action at law or in equity arising out of or relating to this Agreement shall be filed only in the provincial and federal courts located in Vancouver, British Columbia and the Business or Provider hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement or the Business or Provider’s use of the Service. To the extent permitted by law, the Business or Provider agrees that the Business or Provider will not bring a claim under this Agreement more than 18 months from when the Business or Provider’s claim arises.
- TO THE EXTENT PERMITTED BY LAW, AND SUBJECT TO THE MANDATORY ARBITRATION PROVISION, THE BUSINESS OR PROVIDER ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT, WITH RESPECT TO ANY DISPUTE WITH YOCALE, OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, ARISING OUT OF OR RELATING TO THIS AGREEMENT: (I) THE BUSINESS OR PROVIDER HEREBY GIVES UP THE RIGHT TO HAVE A TRIAL BY JURY; AND (II) THE BUSINESS OR PROVIDER HEREBY GIVES UP THE RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
- This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada without giving effect to principles of conflict of laws. Subject to the mandatory arbitration provisions, any action or proceeding arising from or relating to this Agreement must be brought in a court sitting in British Columbia, Canada, except for applications for injunctive relief by Yocale which Yocale may bring in any jurisdiction. The Business or Provider irrevocably submits to the jurisdiction and venue of such court in any such action or proceeding.
- The Business or Provider may not assign this Agreement, or any of its rights and obligations, without the prior written consent of Yocale. Yocale may require a proposed assignee of this Agreement to enter into a new written agreement with Yocale. Yocale may assign this Agreement to any person or entity.
- Should any provision of this Agreement be determined by a court of competent jurisdiction to be unenforceable, the remainder of this Agreement shall remain in full force and effect.
- Should either party fail to enforce the provisions of this Agreement for any length of time such failure to enforce shall not be deemed to be a waiver of the relevant provisions or a waiver of any right that the Party may have to enforce any provision.
- The relationship between the Parties is as independent contractors. Nothing in this Agreement or in the relationship shall constitute a partnership or any relationship of agency between the Parties. Nothing in this Agreement authorizes either Party to make any representations or to bind in any way the other Party to any third party. Neither Party can incur liability on behalf of the other Party.
- Circumstances beyond the control of the Party, including acts of God, fire, flood, war and civil unrest causing a delay in performance of a Party’s obligations under this Agreement shall be deemed to be force majeure and no liability shall be incurred as a result of such circumstances.
- Any notice or other communication shall be validly communicated if delivered by: i) person; ii) registered mail; ii) electronic mail; or iv) facsimile to the other Party at the address provided on the Business or Provider’s account.
Notices shall be deemed to be received on the same date that it is delivered unless it is a weekend or holiday, in which case it will be deemed to be received on the next business day.
Copyright (©) 2015 Yocale Network Corporation. All rights reserved.