Terms of Use

Effective Date: 2021-05-17

Please read the following Terms of Use (“Terms”) carefully. These Terms constitute a legal agreement between you (“User”, “you”, “your”) and Evoke Health Inc. ("Evoke Health", “we”, “us”), which owns and operates https://evokehealth.ca website( the “Site”) and Engage⁺ (the "Service"), accessible through the Site.

The agreement states the terms under which you may access and use the Service, including, without limitation, terms around accessing and providing personal identifiable information and health information (together as “Personal Information”), text, photographs, images, and any links to third party sites (the "Links").

By clicking “I Agree” or similar electronic acceptance, you are agreeing to be bound by the Terms described herein, Evoke Health’s Privacy Policy, all applicable laws and regulations, and you agree that you are responsible for compliance with any applicable local, provincial, and federal laws. You also acknowledge that you have read and fully understand the risks, limitations, conditions of use, and instructions for use of the Service more fully described below. If you do not accept all of these Terms, you should neither sign-up for use nor shall have any access to the Service.

Evoke Health reserves the right to make changes at any time to the Service or these Terms. Any modifications to the Terms of Use or Privacy Policy will be effective upon posting. We may do this for a variety of reasons, including to reflect changes in or requirements of the law, new features, or changes in business practice. The most recent version of the Terms of Use will be made available within the Service. You will know the Terms of Use or Privacy Policy have been updated by the “Effective Date” set forth above. If the changes affect your right or obligations, we shall notify you in advance of the changes by reasonable means, which could include notification through the Service or via email. Use of the Service after such changes are posted will signify your acceptance of the revised Terms. If you do not agree to be legally bound by these Terms of Use or Privacy Policy, you shall not be permitted to use the Service.

    SERVICES DESCRIPTION

    Engage⁺ is a cloud-based web application that provides online communication and access to Personal Information. It allows healthcare providers including senior care, nursing homes, assisted living senior homes, rehabilitaiton facilities, retirement homes, and other providers (together as “Providers”) who have a subscription to use the Service to share Personal Information and securely interact online with their patients or their Substitute Decision makers or Power of Attorney (“Users”) who are authorized to receive Personal Information.

    Important Service Limitations. Evoke Health cannot guarantee the timeliness, appropriateness, or accuracy of any information or advice provided through the Service. The Service is not intended as a substitute for monitoring or diagnosis of health condition, or obtaining any medical advice.

    ACCOUNT REGISTRATION AND USAGE

    Access to the Service is authorized by your Provider. Your Provider has obtained the necessary consent, signatures and permissions, and has further confirmed to Evoke Health that you are authorized to receive Personal Information through the Service. If your Provider enrolls you to have access to the Service, they will provide certain Personal Information about you which will be collected and treated by Evoke Health in accordance with our Privacy Policy. On initial log-in, you shall be prompted to finalize your account registration using a secure question, selecting a password and agreeing to the Terms of Use and Privacy Policy. As a registered user, you are the only individual who is permitted to access the Service through your Account. If you do not wish to proceed to use the Service, you can inform your Provider and your Personal Information will be deleted in accordance with Evoke Health’s Privacy Policy.

    You must

    • provide true, accurate, current and complete information about yourself when finalizing registration;
    • maintain and promptly update your Account information to ensure it remains true, accurate, current, and complete;
    • maintain the confidentiality of your account including not sharing your username, password, or any other logon information provided with anyone;
    • ensure that you log-out of your account at the end of each session; and
    • not distribute or make available the Service, or any portion of the Service, in any form to any third party.

    If Evoke Health has reasonable grounds to suspect that such information about you is untrue, inaccurate, not current or incomplete, Evoke Health has the right to suspend or terminate your Account and your access to all or part of the Service.

    You are responsible for your use of the Service including any Links and content that you make available through the Service. You agree to notify Evoke Health immediately of any unauthorized use of your Account or any other breach of security at support@evokehealth.ca. Evoke Health shall not be liable for any loss or damage arising from your failure to maintain the confidentiality of your Account.

    RESTRICTIONS ON CONTENT AND USE OF THE SERVICES

    Subject to full compliance with these Terms, Evoke Health grants Users a non-exclusive, non-transferable, non-sublicensable, limited and revocable right to access and use the Service for your personal use. You agree to not access, reproduce, duplicate, copy, sell, re-sell, modify, distribute, transmit or otherwise exploit the Service or any of their content for any purpose except for your personal use and as described in this Terms, without the express written consent of Evoke Health. Using the Site and Service do not give you ownership of any intellectual property rights in our Service or the content you access. These terms do not grant you the right to use any branding or logos used in our Service.

    Evoke Health reserves the right at all times, without obligation, to remove or refuse to distribute any content on the Site and/or Service and to terminate or reclaim User accounts. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to

    • satisfy any applicable law, regulation, legal process or governmental request;
    • enforce these Terms, including investigation of potential violations hereof;
    • detect, prevent, or otherwise address fraud, security or technical issues;
    • respond to user support requests; or
    • protect the rights, property or safety of our Users and the public.

    For greater certainty, Evoke Health will fully cooperate with any legal obligation to disclose the identity of anyone posting threatening, libelous, obscene, pornographic, profane, or otherwise offensive or illegal materials. You acknowledge that you alone are responsible for the content and Links that you post to the Service and the consequences thereof.

    Users hereby agree to refrain from the following while accessing the Service:

    • Contravene any applicable laws relating to acceptable online conduct, behavior, and content usage;
    • Engage in any illegal, offensive or unauthorized conduct including:
    • Hacking, accessing, tampering with, or using non-public areas of the Site or Service, our computer systems, or the technical delivery systems of our providers and partners;
    • Promoting bigotry, threaten, discriminate against or impersonate other Users (based on race, sex, religion, nationality, disability, sexual orientation, age or otherwise);
    • Posting any sexual or offensive Links and content;
    • Posting or transmitting any Links and content which violates or infringes upon the rights of others, including material which is an invasion of privacy or publicity rights, or which is protected by any intellectual property rights, including, without limitation, copyright, patent, trade secret, trademark, or other proprietary rights or derivative works, without first obtaining permission from Evoke Health or the rights holder;
    • Probing, scanning, or testing the vulnerability of any system or network or breaching or circumventing any security or authentication measures;
    • Interfering with, or disrupting, (or attempting to interfere or disrupt), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Links and content in such a manner as to interfere with or create an undue burden on the Services;
    • Removing or modifying any copyright, trade mark or other proprietary notice on the Services;
    • Using the Service to communicate medical emergencies rather than using dedicated emergency services;
    • Use automated devices (such as robots and spiders) to scrape or index the Services or their content; and
    • Record or mine information about other Users of the Service.

    LIMITATION OF LIABILITY

    Evoke Health cannot and does not guarantee any results or conduct or oversee the Providers. You therefore acknowledge and agree that if you elect to engage with your Provider, such dealings are solely between you and the Provider and Evoke Health shall not have any responsibility or liability for any losses or damages that You may incur as a result of any such dealings.

    Evoke Health does not endorse and does not take any responsibility for content or links to third party websites. The Services may contain third party content and Links. Evoke Health do not have any responsibility or liability for and, unless explicitly stated on the Services, recommend or endorse any information or brand of products or services that may be available through such content or Links. Evoke Health may remove any Link to the Service without notice. Upon the request of Evoke Health, you agree to remove any Link to the Service you may have acquired or stored.

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVOKE HEALTH AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY DIRECT, SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGES:

    • CAUSED BY RELIANCE ON PROVIDERS ADVICE OR FAILURE TO SEEK APPROPRAITE MEDICAL SUPPORT INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, IMPROPER DIAGNOSIS, INACCURATE INFORMATION OR IMPROPER TREATMENT UNLESS SUCH HARM IS CAUSED BY THE NEGLIGENCE OF EVOKE HEALTH OR ITS EMPLOYEES; OR
    • OTHER LOSSES INCURRED IN CONNECTION WITH YOUR USE, MISUSE OR RELIANCE UPON THE SERVICES OR THEIR CONTENT, OR YOUR INABILITY TO USE THE SERVICES, ANY LOSS OF DATA REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.

    THE FOREGOING LIMITATION SHALL APPLY EVEN IF EVOKE HEALTH KNEW OF OR OUGHT TO HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

    RELEASE

    Because Evoke Health does not supervise or control interactions between Users and Providers, and because Evoke Health has no control, if any, over the quality, safety, legality, truthfulness or accuracy of those aspects of the Service provided by Providers, and because Evoke Health cannot guarantee the security of information transmitted through email and over the Internet, you agree that you bear all risk and you agree to release Evoke Health (and their officers, directors, shareholders, agents, employees, affiliates, subsidiaries, and third party partners) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, now and in the future, arising out of or in any way connected with your use of the Service except to the extent any injury is directly due to the negligence of Evoke Health or its employees. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.

    INDEMNITY

    You agree to indemnify, defend, and hold Evoke Health, officers, directors, employees, agents, licensors, and their respective successors and assigns harmless from and against any and all claims, losses, demands, liabilities, costs, or expenses whatsoever, including, without limitation, legal fees and disbursements, resulting directly or indirectly from

    • use of the Services or any content, information, materials, products or services contained, displayed, accessed improperly, or available therein by you, or any other person accessing the Services under any password, user ID or other access method assigned to you;
    • information regarding the provision of medical services and medical treatment in connection with your use of the services or otherwise;
    • your breach of any of your representations, warranties, covenants or other agreements made under this Terms;
    • any claims by or disputes related to your use of the service; and
    • your violation of any rights of any third party or applicable laws.

    INTELLECTUAL PROPERTY AND LIMITED LICENSE

    All our content, right, title, and interest in and to the Service (excluding content and Personal Information provided by you and your Provider) are and will remain our exclusive property and the property of our licensors. The Service is protected by copyright, trademark, and other laws of both Canada and foreign countries. Nothing in the Terms gives you a right to use the Evoke Health name or any of our trademarks, logos, domain names and other distinctive brand features.

    Any feedback, comments, or suggestions (“User Feedback”) you may provide regarding the Site and Service is entirely voluntary and shall be considered non-confidential. By submitting such User Feedback to us, you agree that you assign us, without charge, all worldwide rights, title and interest, including copyrights and other intellectual property rights, in and to the User Feedback. We will be free to use such User Feedback in any manner or media as we see fit and without any obligation, compensation or royalties to you.

    SERVICE POSTS

    The Service may provide features which allow you to communicate with your Provider, Evoke Health, its agents and other third-party users and to otherwise post, upload, and communicate information, files, documents, or other materials ("Posts"). Posts shall be stored in our database only for the time period agreed between your Provider and us and are not saved permanently as communications or as part of the legal record. After the Posts exceeds the time period, they may no longer be viewable or retrievable.

    Evoke Health does not control the content of any Posts and has no obligation to monitor any Posts. While Evoke Health may attempt to remove Posts which do not comply with these Terms, it cannot guarantee that they will not be posted, uploaded or communicated and is not responsible for their content or any damages resulting therefrom. Evoke Health reserves the right at all times and at its sole discretion to edit, refuse to upload, or to remove any Posts which are, in whole or in part, objectionable, inaccurate, misleading, or in violation of these Terms or our Privacy Policy.

    NO MEDICAL ADVICE PROVIDED

    Evoke Health does not provide medical advice, diagnosis, or treatment. You acknowledge and agree that the Service is merely a conduit for information related to a patient under the care of your Provider, who has, directly or indirectly, authorized you to receive that information from the Provider. You acknowledge and agree that the Providers are solely responsible for and have complete authority, responsibility, supervision, and control over the provision of medical services, advice, instructions, treatment decisions, and other professional health care services performed for any patient whose information you are authorized to access under this Agreement, and that all diagnoses, treatments, procedures, and other professional health care services are provided and performed exclusively by or under the supervision of Providers as they, in their sole discretion, deem appropriate. You further acknowledge and agree that Evoke Health does not provide or endorse any medical advice or treatment on or through the Service and no information obtained through the Service can be so construed or used. Evoke Health has and exercises absolutely no control, authority, or supervision over the provision of any medical services or other professional health care services.

    CHILDREN

    Evoke Health does not knowingly collect Personal Information from children under the age of 13, and our Service is not directed at users under the age of 13. If we find that Personal Information has inadvertently been collected for an individual under the age of 13, we will immediately delete it. You hereby acknowledge and agree that children under the age of 13 are prohibited from using our Service.

    TERM

    Unless otherwise terminated by Evoke Health or your Provider as provided for in this Agreement, this Agreement will remain in effect for so long as Evoke Health or your Provider allows the use of the Service to you.

    TERMINATION

    You may terminate this Agreement by providing a notice to your Provider of your intent to not use the Service. Evoke Health shall terminate your access within thirty (30) days upon notification from your Provider. In the event that the patient is deceased or is no longer a part of the Provider, access to the Service shall be terminated as agreed between your Provider and Evoke Health.

    Without limiting other remedies, Evoke Health may, in its sole discretion and without prior notice, terminate your access to the Service for violations of this Agreement or other agreements or guidelines, which may be associated with your use of the Service, or if Evoke Health deems it necessary in its sole discretion. We may also terminate your access to the Service upon notification from a Provider or from a patient that your authorization to receive information concerning that patient has expired or otherwise terminated or been revoked, or upon the expiration of Evoke Health’s agreement with your Provider, in which cases Evoke Health will immediately and without prior notice terminate your access to the Service.

    Upon any termination, you must immediately cease accessing or using the Service and agree not access or make use of, or attempt to use, the Service. Furthermore, you acknowledge that Evoke Health reserves the right to take action -- technical, legal or otherwise -- to block, nullify or deny your ability to access the Service. You understand that Evoke Health may exercise this right in its sole discretion, and this right shall be in addition to and not in substitution for any other rights and remedies available to Evoke Health.

    DISCLAIMER OF WARRANTIES

    THE SERVICES, AND ANY THIRD PARTY TECHNOLOGY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EVOKE HEALTH, ITS LICENSORS, AND SUPPLIERS MAKE NO WARRANTY, REPRESENTATION, OR GUARANTY:

    • TO THE SEQUENCE, ACCURACY, TIMELINESS, RELEVANCE, OR COMPLETENESS OF THE SERVICE;
    • AS TO ANY INFORMATION OFFERED OR PROVIDED WITHIN OR THROUGH THE SERVICE REGARDING TREATMENT OF MEDICAL CONDITIONS, ACTIONS, DIAGNOSES, PROCEDURES, APPLICATION OF MEDICATION, OR OTHER PROVISION OF HEALTHCARE SERVICES;
    • THAT THE SERVICE MAY BE RELIED UPON FOR ANY REASON, THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, YOUR USE OF THE SERVICE, AND ANY THIRD-PARTY TECHNOLOGY IS AT YOUR OWN RISK. EVOKE HEALTH DOES NOT WARRANT THAT THE SERVICE OR THIRD-PARTY TECHNOLOGY WILL MEET YOUR SPECIFIC REQUIREMENTS. TO THE EXTENT THAT EVOKE HEALTH MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

    GENERAL

      Use prohibited where contrary to law

      Use of the Service is unauthorized in any jurisdiction where the Service or any of the Content may violate any laws or regulations. You agree not to access or use the Service in such jurisdictions. You agree that you are responsible for compliance with all applicable laws or regulations. Any contravention of this provision (or any provision of this Agreement) is entirely at your own risk.

      Governing law and Jurisdiction

      The Service are operated by Evoke Health from its offices within the Province of Ontario, Canada. You agree that all matters relating to this Agreement, or your access or use of the Service and Content shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to conflict of laws principles. You agree and hereby submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to all matters relating to your access and use of the Service and the Content as well as any dispute that may arise therefrom.

      Waiver and Severability

      The failure of Evoke Health to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect.

      Entire Agreement

      This Term, the Privacy Policy and any guidelines provided by Evoke Health on use of the Service from time to time constitute the entire Agreement between you and Evoke Health relating to your access to and use of the Services.

      Notice

      Questions or comments regarding the Service should be directed to the Evoke Health at support@evokehealth.ca.