Service agreement

This Service Agreement takes effect upon acceptance of the Offer by the Customer and will remain in effect until terminated in accordance with this Agreement (the “Term,” and as such terms are defined below). In this Agreement, the Customer may accept an Offer made by Petal by electronic signature, by electronic approval, by issuing a purchase order corresponding to the Offer, and in as many copies as necessary, including by fax or electronically (an “Acceptance”).

If you accept an Offer on behalf of the Customer, you also accept this Service Agreement (together with the Offer, Supplements and any other addenda or amendments, the “Agreement”). You warrant and represent that you are authorized to accept the Agreement on behalf of the Customer.

1. Contracting Entities

If you are located in Europe, the Contracting Entity under this agreement may be Petal Solutions Europe B.V., having its registered address at 140 bis rue de Rennes 75006 Paris.

If you are located anywhere else in the world, the Contracting Entity under this agreement is Petal Solutions Inc. located at 350 Charest Blvd East, Suite 300, Quebec City, Quebec G1K 3H5, Canada.

For questions, notices or notifications about this Agreement, please email us at privacy@petalmd.com.

2. Definitions

In this Agreement, the terms below are defined as follows:

“Security Breach” means unauthorized access, use or disclosure of Customer Data caused by the breach or lack of a security measure and posing an actual or probable risk to the Customer, its Users or anyone else.

“Documentation” means the documents describing the Services offered by Petal, including product and feature descriptions, approved by Petal and distributed publicly, or specifically provided to the Customer by Petal.

“Aggregate Data” means data that is neither Personal Data nor Confidential Information, i.e., it is not Customer Data. Aggregate Data is typically combined from different Customers through the Platform and used for the purposes of improving and managing the Services and performance or for research and development.

“Anonymized Data” means Personal Data that has been processed so that it can no longer reasonably identify individuals, including Users, directly or indirectly, and thus ceases to be Personal Data under the Laws.

“Customer Data” means the data and information, including Personal Data and Anonymized Data, processed by Petal as part of the Services on behalf of the Customer or its Users.

“Personal Data” means all data and information that directly or indirectly identifies an individual and is protected by the applicable Laws, including under any similar names, such as “personal information” or “personally identifiable information.” Personal Data is data processed by Petal on behalf of the Customer or its Users.

“Term of Service” means the period of time during which Users will have access to the Services, indicated along with its start date in an Offer. The Term of Service may be renewed as provided in this Agreement, or otherwise terminates on the date indicated. The term “Term of Service” includes any renewals, unless the context otherwise requires.

“Subsidiary” means any entity that owns more than one-half of the capital stock of any of the Parties to this Agreement, or that may otherwise have control of such entity. For clarification, the Contracting Entities are Subsidiaries of Petal.

“Fees” means the fees, taxes, costs and expenses due to Petal under this Agreement.

“Laws” means the laws, orders, regulations and mandatory guidelines that apply to the Parties or to the delivery of the Services, as amended or modified from time to time.

“Offer” means an estimate, quotation, purchase order, proposal or other offer accepted by the Customer. For clarification, an Offer may be made digitally, including via a web page. At a minimum, the Offer contains a description of the Services, the number of Users included and the Term of Service, where applicable. In this Agreement, the term “Offer” includes any Supplement modifying the Offer, unless the meaning indicates otherwise.

“Intellectual Property” means all intellectual property, including, without limitation, works, inventions (whether or not patentable), discoveries, improvements, trade secrets, know-how, scientific formulas, data, results, software, models, research and development information, technical information, prototypes, specifications, designs, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trademarks and all proprietary rights under patent law, copyright law, trademark law, design patent or industrial design law, semiconductor chip and mask works law or any other statutory provision or civil or common law principles applicable to the protection of information or intangible property rights, including trade secret law, that may provide a right in any of the foregoing as well as any applications, registrations or other evidence of a right in any of the foregoing. For clarification, Petal’s Intellectual Property includes the Platform, the Aggregate Data and any related technology, including codes, programs, programming interfaces and algorithms used for the purpose of the Services.

“Confidential Information” means information of a confidential nature that may reasonably be inferred by one Party to be confidential, or that is marked as confidential, and that is shared by such Party (the “Disclosing Party”) with the other Party (the “Receiving Party”), including, but not limited to, trade secrets, business processes, prices and discounts, codes, algorithms, technology and Customer Data.

“Representatives” means Subsidiaries, employees, directors, officers, administrators, subcontractors and contract resources.

“Services” means all services identified as part of an Offer, as well as the access provided herein, including access to Petal’s mobile application (the “App”), the online application accessible through a browser (the “Web Platform”, and together with the App, the “Platform”).

“Supplement” means an amendment or modification to an Offer, in writing and accepted by the Parties (including by acceptance of a Supplement sent by Petal to the Customer), such as to add Services or User access rights. For clarification, Supplements are accepted in the same manner as the Offer.

“Users” means the individuals to whom the Customer grants access in order to use the Services, following the Users authorized by the Offer, if any.

3. Service management

3.1. Petal undertakes to provide the Services described in the Offer, which can only be modified by way of a Supplement. During the Term of Service, the Services are provided for the number of Users indicated in the Offer. The Customer may add Users during the Term of Service by way of a Supplement, in which case the Customer will pay the Fees for such Users in proportion to the days remaining in the Term of Service.

3.2. Unless otherwise specified in an Offer, the Term of Service will automatically renew for a period of time equal to the original Term of Service, unless either Party indicates in writing to the other Party that it does not intend to renew the Term of Service at least 60 days prior to the scheduled end of the current Term of Service. Notwithstanding any statement to the contrary, Petal reserves the right to increase the Fees prior to a renewal by providing 90 days written notice prior to the end of the current Term of Service. Unless the Customer declines renewal of the Term of Service at the Fees as increased within this time period, the increase in the Fees will be effective upon renewal of the Term of Service or, if applicable, upon the scheduling of patient appointments through the Platform after the Term of Service renewal date, in which case the increase will be deemed accepted.

3.3. The Customer is responsible for managing its Users, which includes: (a) creating accounts, except for Users who administer the Services (“Admins”); (b) providing Users their access to the Platform; (c) revoking Users’ access to the Platform, including if their roles or responsibilities change or if they leave their jobs and no longer require access; (d) changing passwords for Users’ access to the Platform, including if there is a risk that their login credentials have been compromised. Petal is not liable for any incidents or damage, including Security Breaches, that result from the loss of confidentiality of login credentials, or from password management practices that do not meet industry standards for password selection by Users for access to the Platform. Users must agree to the Terms of Use the first time they log into their Platform account and before accessing the Platform’s features. For clarification, neither Petal nor its Representatives assume any responsibility for the management of Users by Admins under this section, or for any Admin configurations or settings.

3.4. The Services allow the Customer to connect the Platform with third-party services, applications, technologies or products, including through programming interfaces (the “Integration Partners”). Neither Petal nor its Representatives are responsible for Integration Partners, whether they are authorized business partners or not. The Customer is responsible for its own due diligence, including as to Integration Partner security practices and Personal Data processing practices. When Customer Data is sent via programming interfaces or other third-party systems, neither Petal nor its Representatives are responsible for the security of such transfers, encryption or any Security Breach resulting from the use of Integration Partners. Without limiting the generality of the foregoing, neither Petal nor its Representatives are responsible for the quality, suitability, accuracy or integrity of any data received by a third party on behalf of the Customer, including Integration Partners. We do not warrant that Integration Partners will always be available, compatible or suitable for the Services or your use. We make no warranties or representations regarding the use of Integration Partners. Your use of Integration Partners is at your own risk.

4. Services

4.1. The Services contain features that allow for the automation of certain tasks, such as schedule management and patient appointment scheduling. The automation features are dependent on the Customer Data collected in the Platform for this purpose. The Customer will determine which Customer Data will be collected, including for the purpose of appointment scheduling, in accordance with the Laws. We are not liable for (a) errors arising from Customer Data provided by Users or Patients, or for any data that is not in the Platform and that cannot be taken into account in the automation features. Furthermore, the automation features are provided for convenience and are not a substitute for judgment or review by the Customer or its Users. The Customer is responsible for reviewing suggestions and changes resulting from the use of the automation features and validating them independently. Petal’s sole liability with respect to the use of Customer Data for automation purposes is limited to its negligence, gross negligence or intentional misconduct. The Customer is responsible for performing implementation testing and ensuring that the automation features are suitable for the Customer’s current business processes.

4.2. For the Term of Service, Petal undertakes to use commercially reasonable efforts to ensure that the Platform will be available 24 hours a day, every day of the year, based on an availability rate of 99.5% per month, calculated as follows:

(Number of minutes available each month – maintenance periods) / (number of minutes the Platform is available during the month) x 100% = availability rate.

4.3. The maintenance periods referred to in Section 4.2 are the times during which the Platform will not be available for maintenance purposes, including the implementation of security patches.

4.4. For the purposes of Section 4.2, the Platform is deemed to be accessible when it can be used substantially as set out in the Documentation by most Users.

4.5. Notwithstanding any statement to the contrary, Petal will not be held liable for the unavailability of the Services under Section 4.2, whether in whole or in part, if such unavailability results from circumstances beyond Petal’s control, including, but not limited to: (a) a power outage or the unavailability of an Internet connection, (b) changes made by the Customer or a third party acting on the Customer’s behalf, (c) an Integration Partner or other third party, (d) a suspension of access under the terms of the Agreement or of a User under the Terms of Use, or (e) any use by the Customer or its Users in violation of this Service Agreement or in violation of the Laws.

4.6. The Services include any Services analyzing the Customer’s activities in the Platform, and may also include the use of predictive algorithms, commonly referred to as “artificial intelligence” (together, “Analytical Services”). The Analytical Services are used to prepare recommendations, activity reports and other materials and provide business intelligence to the Customer and its Users (“Business Analytics”), including to help the Customer improve the efficiency of its operations. The Customer understands and agrees that (a) the quality of the Business Analytics is dependent on the quality of the Customer Data provided as part of the Analytical Services, i.e., the Customer Data available and collected in the Platform; (b) the Analytical Services are based on predetermined analysis parameters and it is the Customer’s responsibility to validate the parameters leading to the Business Analytics, as well as the relevance for the Customer’s desired use; (c) the Business Analytics are not a substitute for the judgment of the Customer (or its Users), which remains responsible for its decisions; and (d) the Laws may contain additional requirements with respect to the use of the Analytical Services. The Customer is solely responsible for ensuring that its use of the Analytical Services and its collection of Customer Data (including Personal Data) complies with the Laws, including, where applicable, by posting a privacy policy. In addition, and unless otherwise specified herein, the Customer is responsible for ascertaining such requirements. The Analytical Services must not be used for automated processing of decisions affecting individuals unless the Customer ensures compliance with the Laws and assumes full responsibility for such compliance. The Customer understands that Petal bears no liability for any use of the Analytical Services in violation of this section. The Customer acknowledges that Petal does not provide medical, legal or other professional advice. The Analytical Services are for informational purposes, and the Business Analytics are provided without warranty or representation.

5. Rules of Use

5.1. The Customer represents and warrants that it will not (and will not authorize or encourage anyone else to) use the Services, including the Platform, to:

- access the Services for any purpose that is illegal, not set out in the Documentation, malicious, defamatory, harassing or fraudulent, including by impersonating any person, or in order to collect or use Personal Data without right;

- provide false, inaccurate, misleading or incomplete information, including for the purpose of committing Fraud;

- tamper with the Services’ security features, including disabling or circumventing features that prevent or restrict their use or copying any content on the Platform by reverse engineering or attempting to view the source code of any portion of the Services, including the Platform, except to the extent that such activity is expressly permitted under the Laws;

- use a robot or any other device for indexing, scraping data, sharing or recording screens or linking data when accessing the Services, including collecting Personal Data without right, except with Petal’s express consent;

- intentionally or negligently upload viruses, spyware, malware or corrupted files to the Platform;

- access the Platform in order to create a derived version or copy the Platform or create products or services that compete with the Platform;

- share access among Users or among Users and third parties, including through general access accounts, sharing environments or otherwise;

- allow third parties, including competitors, to access the Services;

- use the Services for product evaluation, benchmarking or other comparative analysis, whether for publication or not, without Petal’s prior written consent.

5.2. The Services must not be used for archiving, hosting or managing medical or patient records, other than as provided in the Documentation. Use for medical record management purposes is neither authorized nor permitted. The Customer is responsible for obtaining copies of relevant Customer Data and hosting it in an appropriate medical record management tool. In the event of a violation of this section, you acknowledge that neither Petal nor its Representatives will be held liable for the loss of Customer Data that has not been properly stored in appropriate records in accordance with the applicable Laws, including any resulting damages.

5.3. The Customer agrees to indemnify and defend Petal against any third-party claims arising from use of the Services in violation of this Section 5. The Customer also understands that a violation of this Section 5 will be considered a material breach of this Agreement, and that Petal reserves the right to suspend access to the Services until such breach is resolved.

6. Representations and warranties

6.1. Each of the Parties represents and warrants that it is duly authorized to execute this Agreement and that no additional authorization is required.

6.2. For the Term of Service, Petal warrants and represents that the Services will be provided substantially in accordance with the Documentation and in a professional manner that complies with industry standards.

6.3. For the Term of Service, Petal warrants that the Platform does not violate the Intellectual Property of any third party. In the event of a breach of this warranty, the Customer’s sole remedy will be, at Petal’s reasonable option, (a) to obtain for the Customer the rights necessary to use the Platform in accordance with the Agreement; (b) to replace the non-compliant portion of the Platform with a substantially equivalent portion that complies with this warranty; (c) to terminate the Agreement upon written notice, and to reimburse the Customer for the Fees paid for the current Term of Service, without further penalty to either Party.

6.4. Except as provided herein, and subject to the Laws, Petal and its Representatives (a) do not warrant that the Services will be uninterrupted or error-free; (b) make no other warranties about the Services, including as to quality or relevance; (c) are not responsible for the integrity, quality, accuracy or truthfulness of the Customer Data provided by the Customer, including for the purposes of the Analytical Services; (d) are not responsible for any decisions, acts or omissions resulting from the Analytical Services, automation features, Business Analytics or otherwise from the Services, including errors in scheduling and patient appointment scheduling, (e) are not responsible for Integration Partners and (f) are not responsible for use of the Platform in violation of the Agreement. Petal makes no other representations, conditions, warranties or guarantees, either express or implied, statutory or otherwise, and expressly disclaims all warranties, express or implied. Except as stated herein, the Services are provided on an “as-is,” “where-is” and “as available” basis.

7. Intellectual Property

7.1. Notwithstanding anything to the contrary herein between the Parties, Petal owns all Intellectual Property with respect to the Services, including all underlying technology, algorithms, methodology and code, as well as all Aggregate Data. The Customer owns the Customer Data and its Intellectual Property. All rights not granted herein are reserved.

7.2. If the Customer submits suggestions, comments or improvements relating to the Services (“Suggestions”), the Customer understands that Petal may use such Suggestions for the purpose of marketing the Services. The Customer hereby waives any and all Intellectual Property rights in the Suggestions and, if this is not permitted by the Laws, assigns its Intellectual Property rights in the Suggestions to Petal, which hereby accepts this assignment. Notwithstanding the foregoing, the Customer retains the right to use Suggestions for its internal business use.

8. Licences

8.1. For the Term of Service, the Customer hereby grants Petal a right and licence that are non-exclusive, non-transferable (except as set out herein), non-sublicensable (except as set out herein) and non-revocable (except as set out herein) to use, reproduce and modify the Customer Data for the purposes of the Services, and for the purposes set forth herein.

8.2. Petal hereby grants the Customer a worldwide, exclusive, non-transferable (except as set out? herein), non-revocable, unlimited right and licence, which may be sublicensed to Subsidiaries to use, download, access and translate the Business Analytics for internal purposes. For the avoidance of doubt, the Customer may not sell or market the Business Analytics.

8.3. The Customer hereby grants Petal an unlimited, non-exclusive, royalty-free or fee-free, revocable (but only as set out herein) right and licence to use, modify and aggregate the Anonymized Data solely (a) to improve the Services, (b) for research and development purposes and (c) to generate Aggregate Data.

9. Confidential Information

9.1. Confidential Information does not include information that the Receiving Party can demonstrate (a) is publicly available in the same form through no fault of the Receiving Party, (b) did not originate with the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restriction on disclosure or (c) 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 exceptions do not apply to Personal Data.

9.2. The Receiving Party agrees not to use or disclose Confidential Information except (a) in connection with the provision of the Services, or otherwise as provided herein; (b) to comply with its legal obligations or to defend its rights and interests; (c) in accordance with this Agreement; (d) at the request of or with the consent of the Disclosing Party or (e) as necessary to obtain legal, professional or financial advice. Where applicable, each recipient will be subject to an obligation of confidentiality.

9.3. In the event this Agreement is terminated for any reason, the Receiving Party agrees to, at the option of the Disclosing Party, (a) return the Confidential Information to the Disclosing Party and/or (b) destroy the Confidential Information, all in accordance with market standards, and without undue delay. Notwithstanding the foregoing, it is understood that the Receiving Party is entitled to retain a copy of the Confidential Information if required by the Laws or to ensure business continuity, including in back-up copies, subject to such copies being destroyed where possible.

10. Personal Data and information security

10.1. Each Party must comply with Laws regarding the collection, use and disclosure of Personal Data.

10.2. Petal undertakes to process Personal Data in accordance with its Privacy Policy. Unless otherwise specified in the Offer, Personal Data is processed in Canada. Petal undertakes to collaborate in good faith with the Customer in the privacy impact assessment process, including providing reasonably requested information. The Customer is responsible for implementing a privacy policy in accordance with the Laws, if any, and for determining whether Personal Data is collected and used in accordance with the applicable Laws, including in connection with the Analytical Services.

10.3. In the event someone makes a request with respect to their Personal Data, including its access or modification, Petal undertakes to notify the Customer without undue delay and to cooperate in good faith to support the Customer in responding to said request. If the Customer fails to respond to the request within a reasonable time and Petal is required to respond to the request under the Laws, then Petal reserves the right to respond to said request.

10.4. Petal undertakes to implement commercially reasonable technical and organizational measures to safeguard Customer Data against a Security Breach, including, without limitation, encryption and penetration testing. Notwithstanding the foregoing, in the event of a Security Breach, Petal undertakes to notify the Customer in writing as soon as reasonably possible. This notice will include a description of the nature of the Security Breach and the likely consequences, as well as a description of the steps Petal will take to remedy the Security Breach. Petal reserves the right to notify Users of a Security Breach directly, particularly if required by the Laws or to mitigate applicable damages.

11. Financial terms and Fees

11.1. The Customer agrees to pay the Fees in accordance with the payment terms set out in the Offer. The Customer has 30 days to dispute an invoice. Fees are non-cancelable and non-refundable, except as otherwise provided in the Agreement.

11.2. In the event that payment by credit card is authorized, the Customer represents and warrants that (a) it has all necessary authorizations to pay the Fees by credit card and (b) it will notify Petal of any relevant changes to its payment information. For the avoidance of doubt, the Customer authorizes, where applicable, Petal to charge the Fees set forth in the Offer. Petal reserves the right to change its payment terms within 90 days.

11.3. Unless otherwise specified in the Offer, if the Fees are not paid within 45 days, the Customer agrees that Petal may charge interest of 1.5% per month or 18% per year on such late Fees. In the event of non-payment within 60 days, Petal reserves the right to suspend access to the Services with or without further notice. Services will be restored promptly upon receipt of payment. If the Fees are not paid within 90 days, the Customer agrees to be responsible for all past-due collection fees, including reasonable attorneys’ fees.

12. Termination

12.1. A Party may terminate the Agreement upon 30 days written notice to the other Party if the other Party is in breach of its obligations under this Agreement and fails to cure such breach within this period.

12.1.1. If termination is caused by a default attributable to the Customer, all Fees under the Agreement will become due and payable on the date of termination.

12.1.2. If termination is caused by a default attributable to Petal, all Fees paid for Services not rendered by the termination date will be refunded.

12.1.3. Notwithstanding the foregoing, the Client may terminate the Agreement at any time, upon a 90-day prior notice. All Fees under the Agreement will become due and payable immediately upon the date of termination.

12.2. If the Agreement is terminated for any reason, the Customer will have a 30-day grace period to access and retrieve the Customer Data. Petal cannot guarantee that copies of the Customer Data will be available after that time. Provisions 6, 7, 8.3, 9, 13, 15, 16 and the related definitions survive the Term for a period of 10 years.

13. Limitation of liability

13.1. To the maximum extent permitted by the Laws, neither Party nor their Representatives will be liable for any indirect, consequential, special or punitive damages, including, without limitation, loss of data, lost profits, business interruption, reputational damages and any other damages that are not a direct and proximate result of a Party’s fault.

13.2. To the maximum extent permitted by the Laws, the maximum liability of each of the Parties and their Representatives is limited to the Fees paid by the Customer in the last 12 months.

13.3. Notwithstanding the foregoing, the limitations herein will not apply where they are excluded by law, which in Quebec, Canada, includes, without limitation, moral and bodily damages, as well as damages resulting from the intentional or gross fault of a Party.

14. Changes

14.1. Petal reserves the right to make changes to the Services, including adding functionality, subject to the foregoing and subject to the condition that such changes do not materially and adversely alter the security measures and functionality set out in the Documentation.

14.2. Petal may modify this Service Agreement at any time. Please see the last update date above. In the event of material and adverse changes, Petal undertakes to provide you with 30 days notice. Such changes will be effective upon acceptance by the Customer, or upon expiration of the 30 day period. The Customer may object to the changes by providing written notice of its reasonable grounds. If the Parties do not agree on an appropriate change within 30 days of Petal’s receipt of the notice of objection, either Party may terminate the Agreement upon written notice to the other Party. Petal will refund all Fees for Services not rendered as of the date of termination, and Customer will pay for all Fees through the date of termination.

15. Applicable law

15.1. This Service Agreement is governed by the Laws of the Province of Quebec and the federal Laws of Canada applicable therein. The courts of the Province of Quebec, District of Quebec, will have exclusive jurisdiction to settle any dispute arising out of this Service Agreement. The provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Service Agreement.

16. General

16.1. If any section of this Agreement is held to be invalid or unenforceable, it will not affect the validity or enforceability of the remaining sections of this Agreement, and such section will be construed to the maximum extent permitted by the Laws by a court of competent jurisdiction. Unless otherwise specified, in the event of a dispute between the Parties to this Agreement, such dispute will be resolved via: (1) Supplements, (2) the Offer (3) or the Service Agreement.

16.2. Petal may assign or transfer this Agreement in the event of a partial or total sale of its assets, or for bona fide internal corporate changes, subject to written notice to the Customer. The Customer may not assign or transfer its obligations under this Agreement except with Petal’s written consent. Any assignment or transfer without right will be deemed void. This Agreement is binding upon the assignees, purchasers and successors of each of the Parties, to the extent provided herein.

16.3. The Parties agree that each is self-employed and is an independent contractor under the applicable Laws, including, without limitation, under 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 must be deemed or construed to create any other relationship, whether employer/employee, principal/agent, joint venture, association, partnership or otherwise, between the Parties.

16.4. Neither Party will be liable for any delay or failure to perform its obligations under this Agreement (except for payment obligations) if the delay or failure is due to causes beyond its control, such as fire, pandemic, epidemic, natural disaster, governmental order, strike, blockade, riot, denial of service or zero-day attack, war, act of terrorism, act of God or breakdown, subject to its own negligence.

16.5. The failure of a Party to enforce its rights with respect to a breach of this Agreement does not constitute a waiver of the right to enforce its rights with respect to the same or any other breach of this Agreement.

16.6. This Agreement constitutes the entirety of the agreement between the Parties with respect to the performance of the Services by Petal and thus supersedes any prior or contemporaneous communications, proposals or representations, whether oral or written, with respect to the Services or any other matter covered by this Agreement.