Updated: April 5, 2021
CARE FACILITY TERMS AND CONDITIONS
These Care Facility Terms and Conditions (“Terms” or this “Agreement”) govern the access to the Services and where applicable, the subscription to the Services, by the Client and its Users (“you”, “your”, and terms of similar meaning) made available by BookJane Inc. (“BookJane” “we”, “us”, “Provider”, and terms of similar meaning) and its suppliers, made pursuant to an executed Order Form (defined below).
By accessing or using the Services or by executing or agreeing to an Order Form, you agree to be bound by these Terms, and all terms, policies and guidelines incorporated by reference in these Terms.
The Order Form is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Order Form expressly conflict with these Terms, the conflicting provisions of the Order Form control and shall take precedence over the conflicting provisions of the Terms.
1.1 “Administrator” means a person or persons appointed or assigned by the Client to have the authority to act as the administrator of the subscription on behalf of the Client.
1.2 “Agency” means an organization who manages a team of member Healthcare Providers.
1.3 “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services.
1.4 “BookJane App” means the BookJane mobile application made available to Healthcare Providers.
1.5 “BookJane App Terms and Conditions” means the BookJane App end user license agreement applicable to users of the BookJane App.
1.6 “CASL” means any applicable federal, provincial and local laws, regulations and rules governing the sending of commercial electronic messages.
1.7 “Care Facility” means a retirement home, long-term care facility, hospital, childcare facility, or group of retirement homes, long-term care facilities, hospitals, childcare or any facility that requires Services or Care Services, that are owned, operated, and/or managed by the Client and that have subscribed to use the Software and/or receive the Services.
1.8 “Care Facility Staff” means employees or contractors of a Care Facility.
1.9 “Care Services” means physician care, nursing, personal support, and other-health care related services that are provided by each Healthcare Provider.
1.10 “Client” shall mean the individual or organization, including an organization operating one or more Care Facilities who is bound by the terms of the Order Form and these Terms and Conditions.
1.11 “Client Data” means any data or content inputted into the Software by the Client, any of its employees and Users, or any Healthcare Provider booked by the Client, and hosted on the servers of the Cloud Providers.
1.12 “Cloud Providers” has the meaning given in Section 9.1.
1.13 “Fees” means the fees to be paid by the Client pursuant to the Order Form, these Terms and any applicable Schedules.
1.14 “Healthcare Provider” means an individual healthcare provider that is employed or contracted by the Provider or an Agency, which may include a physician, registered nurse, registered practical nurse, licensed practical nurse, health care aid, personal support worker, and other service provider, who has signed up for a user account on the BookJane App to provide Care Services.
1.15 “Order Form” means (i) the BookJane Care Facility Order Form; or (ii) an online order specifying the Services to be provided hereunder, that is entered into between the Client and the Provider, including any Schedules, addenda and supplements thereto.
1.16 “Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.
1.17 “Privacy Laws” means any applicable federal, provincial and local laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (British Columbia), the Personal Information Protection Act (Alberta), and any similar legislation enacted by any province or territory of Canada.
1.18 “Provider Data” means any data or content made available through the Software by the Provider and/or its licensors.
1.19 “Schedule” means a schedule, which is attached to this Agreement, or which may be added hereafter by written agreement of the parties.
1.20 “Services” means (a) the use of the Software; (b) the provision of the Care Services (if applicable); and (c) other related services to be provided by the Provider to the Client pursuant to the Order Form.
1.21 “Software” means the BookJane J360 Software as a Service (SaaS) web-based platform (including the Provider Data) and the BookJane App licensed to the Client and authorized Users pursuant to the terms of the Order Form.
1.22 “Term” shall have the meaning given in Section 15.1.
1.23 “User” means an individual user who (i) is authorized by the Client or otherwise permitted to use the Software; and (ii) agreed to these Terms. Users may include Care Facility Staff who are authorized to use the Services.
2 PRIVACY AND SECURITY
3 THE SERVICES
3.1 BookJane Care Facility J360 Premium Services. The BookJane Software enables Care Facilities who have subscribed for the J360 Premium Services to manage their Care Facility Staff, including the setting of their schedules, offering shifts and communicating with Healthcare Providers.
3.2 BookJane Care Facility J360 Essential Services. The Software permits all Care Facilities to book the services of Healthcare Providers. By submitting a booking request to a Healthcare Provider, the Client understands and agrees that the Healthcare Provider to whom the Client has made the request has the right to accept or decline such request in his or her sole discretion. If the Healthcare Provider accepts the Client’s booking request, a booking confirmation will be sent to the Client through the Software and/or the email address registered with the applicable User Account. The Client agrees that all Care Services booked with a Healthcare Provider(s) as a result of the Service must and will be processed through the Service. Each individual booking of a Healthcare Provider made through the Service must be for at least two (3) hours.
3.3 BookJane Representations and Warranties. The Provider represents and warrants that (a) the Services and Care Services will comply with all Applicable Law, including professional licensing requirements at all times; (b) the Services and Care Services shall be provided in a professional and workmanlike manner and in accordance with the terms set out in this Agreement; and (c) it shall be liable for the acts and omissions of any Healthcare Providers, as it relates to their actions or omissions while at the Care Facilities during a booking/shift made through the Service, including as it relates to Care Services provided during such booking, as if such act or omission were an act or omission of the Provider. The Provider shall not be obligated to and cannot guarantee that a minimum number of Healthcare Providers, or any Healthcare Providers, will be available through the Service for a specific shift(s) and/or booking(s).
4 USER ACCOUNTS AND VERIFYING INFORMATION
4.1 Provisioning and User Accounts. Upon agreeing to an Order Form, the Provider will register or authorize the registration of a master User account as the Administrator of the Client. The Administrator may add and authorize additional Users subject to the limitations and additional terms described in the Order Form. Administrators may also authorize additional secondary administrators of individual Care Facilities. Administrators shall be deemed to have the authority to manage (including adding and removing) Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Service for any User. Access to specific features of the Services are only be available to specific user types and may depend on the Client’s subscription type as agreed upon in the Order Form.
4.2 Registration. Upon logging into the Software for the first time, the Administrators and Users may be prompted to register for a User account to access the Software. Administrators and Users agree to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Software (“Registration Data”); (b) maintain the security of the their password; (c) maintain and promptly update the Registration Data, and any other information the they provide to the Software, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information provided to Provider. The Client shall be responsible for all activity by Users on the Software, including the activity performed on the Software through the User accounts by an agent, representative, employee (including former employees who maintained access to the Services), or any other person acting on behalf of such User. It is the responsibility of the Client to delete User accounts or otherwise remove access to Users who should no longer be active (e.g. a User who is no longer an employee, contractor of the Client).
4.3 Verifying Information Applicable to Care Facilities. In order to apply for and register for a user Account, the Administrators and/or Users of each Care Facility will be required to submit additional information regarding the applicable Care Facility to the Service (“Verifying Information”), which may be accessed by Healthcare Providers and/or other Users of the Service. Such information includes, but is not limited to, the name, phone number, and applicable contact’s email address for the Care Facility, applicable credentials as it relates to the licensing of the Care Facility, and may also include, at the Client’s discretion, information regarding dress codes, policies and procedures, information about parking, and additional information and documentation related to any of such Verifying Information. Upon submission of such Verifying Information, the Provider may indicate to applicable Healthcare Providers and the other Users that such Verifying Information was submitted. The Client hereby consents and permits the Provider to send, give and/or present such Verifying Information to applicable Healthcare Providers and the other Users of the Service. The Client also consents to posting or having such information posted on the applicable Care Facility’s profile that the Provider, the applicable Healthcare Providers and other Users will have access to and be able to view.
4.4 Healthcare Provider Credentials. With respect to the Provider’s provision of the Service, Healthcare Providers can only register for an account on the BookJane App and be active on the Service if they confirm that:
(a) they possess, have, and maintain all appropriate, up-to-date, valid and required licenses, credentials, approvals and authorizations (including, without limitation, if and as applicable, current registration with the applicable provincial licensing authority, diplomas and certificates, etc.) to work and render the specific Care Services each Healthcare Provider offers in the jurisdiction in which they book jobs through the Service;
(b) they guarantee the legality or accuracy of any Healthcare Provider Verifying Information (as defined below)
(c) they shall only accept a booking and provide Care Services if and when medically fit and in good health to do so;
(d) they shall provide Care Services in accordance with all Applicable Laws;
(e) they shall comply with all rules, regulations, policies and procedures of the Client or a particular Care Facility (that are provided to the Healthcare Provider in writing prior to commencement of a booking or at the start of a shift), as well as any verbal direction or other policies or procedures provided by the Client during a shift, provided given a commercially reasonable amount of time to review;
(f) they shall protect confidential information from unauthorized use and disclosure (under the similar terms and conditions as set forth in Section 17 below), as shall be set forth in an agreement that includes such provisions that each Healthcare Provider must agree to in order to use the Service, which for greater certainty shall include confidentiality provisions;
(g) they have obtained and continue to obtain all of their government and Care Facility and/or Agency required immunizations, including, without limitation, the immunization for TB; and
(h) they will not (i) engage in reckless behaviour while providing Care Services; (ii) provide Care Services while under the influence of alcohol or drugs; and/or (iii) take action that harms or threatens to harm the safety of anyone.
(collectively, the “Healthcare Provider Credentials”).
4.5 BookJane and Agency Responsibilities Regarding Care Services. The Provider agrees that it, or an applicable Agency, shall keep the following information and documentation regarding the Healthcare Provider Credentials on file at all times that a Healthcare Provider is an active user of the Service during the Term, provided that supplied by the Healthcare Providers:
(a) professional credentials, including a copy of current registration with the applicable provincial licensing authority;
(b) current criminal background check, and where required, a current vulnerable sector police checks;
(c) medical clearance information (i.e. TB tests, flu shots);
(d) a current CPR certificate; and
(e) for cooks or kitchen workers, a food handling certificate.
(collectively, the “Healthcare Provider Verifying Information”).
4.6 Client Responsibilities Regarding the Care Services. The Provider shall make best efforts to screen account access to potential Healthcare Providers, including by, without limitation, obtaining verifying information about the Healthcare Providers. Supervision of the Healthcare Providers is the Client’s responsibility while they are rendering Care Services at each Facility. The Client shall have no authority or responsibility for the disciplining of any Healthcare Provider, other than in a reporting function to the Provider. If the Client has any problems or concerns with a Healthcare Provider, it should notify the Provider in writing through the Service or at email@example.com. If, in Client's sole discretion, during a shift, as booked through the Service, any Healthcare Provider fails to perform his/her duties in a satisfactory manner, is negligent or engages in misconduct, the Client may remove such Healthcare Provider from the premises of a Care Facility immediately, in accordance with all applicable laws, and the Client will advise the Provider of this action in writing as soon as reasonably feasible to do so. The Client's obligation to pay for the Fees for such Healthcare Provider(s) shall be subject to the requirements as set forth below in Section 11 and 12 below. Through the Software, the Client, through its authorized Users, shall, in its sole discretion, have the option to block and prevent any Healthcare Provider from accepting future shifts and bookings with a Care Facility.
5 CLIENT REPRESENTATIONS AND RESPONSIBILITIES
5.1 General Representations and Warranties. The Client represents and warrants that the Client’s use of the Services and the use of the Services by the Client’s Users will (a) be consistent with these Terms and any licenses provided; and (b) comply with Applicable Law. The Client shall be liable for the acts and omissions of any of its Users, directors, officers, employees, contractors, representatives or agents as if such act or omission were an act or omission of the Client.
5.2 Care Facility Representations and Warranties. The Client hereby represents and warrants that each Care Facility (a) possesses, has and shall maintain all appropriate, up-to-date, valid and required licenses, credentials, approvals and authorizations to operate in Canada and in the provinces in which they operate; and (b) shall operate in accordance with all applicable laws (collectively, the “Credentials”).The Client represents and warrants that all information it provides to the Provider or any User of the Service, whether at the time a User account is established or thereafter, is true, accurate and not misleading.
5.3 Client Responsibilities. The Client agrees (a) that it shall be responsible for providing, maintaining or ensuring that each of its Users maintain, its or each of their own Internet access with the necessary bandwidth speeds as recommended by the Provider and all necessary telecommunications equipment, services, software and other materials (collectively, “Client Equipment”) necessary for accessing the Services; (b) the Client represents and warrants that it has the right to enter into the Order Form and these Terms and to allow the Provider to perform the Services; and (c) the Client is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data.
5.4 Further Agreements. The Client and each User hereby agrees that it will not (a) make any misrepresentation regarding the Provider, any Healthcare Provider, any User of the Service or the Service itself; (b) engage in any activity in a manner that is inconsistent with the Client or User’s obligations under these Terms; and/or (c) engage in any fraudulent activity with the Provider, a Healthcare Provider and/or any User of the Service in connection with the Care Services being provided. The Client further acknowledges and agrees that the Healthcare Providers are not authorized to operate any type of machinery or automotive equipment and/or handle cash, negotiables or other valuables while providing Care Services.
5.5 Client Indemnity Regarding Use of Services and Client Data. The Client shall be solely responsible for all inputs, selection and use of the Services and all Client Data or other data transmitted, received or created using the Services, even if transmitted, received or created by someone else. The Services do not require the Client or any of its Users inputting any information about a resident of a Care Facility. The Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates harmless from any loss, damage or liability which may result therefrom or from any breach by the Client or its Users of this Agreement.
5.6 Relationship with BookJane. Under no circumstances shall the Client hold itself, or any of the Users, employees, independent contractors, directors, officers, shareholders, end users of the Service, agents or representatives, hold themselves, out as or be considered an agent, employee, joint venture, or partner of the Provider. Unless with the Provider’s express permission, the Client has no authority to and will not exercise or hold itself out as having any authority to enter into or conclude any contract or to undertake any commitment or obligation for, in the name of or on behalf of the Provider. Unless with the Client’s express permission, the Provider has no authority to and will not exercise or hold itself out as having any authority to enter into or conclude any contract or to undertake any commitment or obligation for, in the name of or on behalf the Client. The Client is free to engage (a) multiple Healthcare Providers, as booked through the Service, subject to this Agreement; and/or (b) other health care professionals and/or service providers that the Client has not been introduced to through the Service. Nothing herein is intended to or shall be construed as creating any exclusive agreement with a Healthcare Provider or the Provider. This Agreement shall not restrict the Client from acquiring similar, equal or like services from other entities or sources.
5.7 Taxes and Other Applicable Payments. The Client agrees to pay any and all applicable sales and other taxes applicable to or arising, in any way, from the Client’s engagement of a Healthcare Provider and use of the Service.
6 NON-SOLICITATION OF HEALTHCARE PROVIDERS
Non-Solicitation. Any Healthcare Provider the Client retains through the Service must be engaged and booked to render Care Services through the Service. Notwithstanding the foregoing, if the Client would like to employ a Healthcare Provider and no longer engage the Healthcare Provider through the Service, the Client cannot do so until such Healthcare Provider has completed a minimum of thousand (1,000) hours of Care Services for the Client that have been booked through the Service (the “Work”). For greater certainty, the Work shall be a minimum of an aggregate thousand (1,000) hours of Care Services rendered at one (1) or more Care Facilities of the Client. Upon the completion of the Work, the Client must request a letter of release from the Provider confirming the total number of hours worked by the Healthcare Provider for the Client, as booked though the Service. However, if the Client wishes to employ a Healthcare Provider prior to the completion of the Work, the Client is able to do so if the Client pays the Provider a release fee in the amount of five thousand five-hundred dollars ($5,000) if the Healthcare Provider is a registered nurse, registered practical nurse, licensed practical nurse, health care aide or personal support worker, or two-thousand five-hundred dollars ($2,500) for all other positions/Care Services offered through the Service (the “Crossover Fee”). Upon the Provider being notified about or becoming aware that the Client is employing a Healthcare Provider prior to the completion of the Work, the Provider shall invoice the Client for the Crossover Fee and all applicable taxes. The foregoing shall not apply to any Healthcare Provider who independently (without any encouragement by the Client) responds to general solicitations for employment (such as general newspaper advertisements and Internet postings) of Client that are not specially targeted at such Healthcare Providers.
7 LICENSE TO SOFTWARE AND LICENSE RESTRICTIONS
7.1 License to Software. Provider hereby grants to Client and authorized Users a non-exclusive, non-transferable license to use the Software and solely permit the Client and Users to use the functionality contained within the Software that they have been provided access to for legitimate purposes during the Term.
7.2 License Restrictions. Except as set forth in these Terms, the Order Form, any Schedule and to the extent contrary by Applicable Law: the Client and Users may not (a) make or distribute copies of the Software; (b) alter, copy, merge, adapt, reformat, download, or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software through automated or other means to a human-perceivable form, including, without limitation, using the Services in conjunction with, or combining content therefrom with, content obtained through scraping or any other means outside the Services, or any part thereto; (c) sell, rent, share, lease, transfer, distribute, display, host or sublicense the Software (except as is incidental or necessary for the provision of the Software to Users); (d) modify the Software or create derivative works based upon the Software; provided however that the foregoing will not restrict Client’s rights to exploit any Client Data which may be incorporated into, reside in, or form a part of the Software; (e) use the Services in a manner that breaches the rights of any third party, any contract (including this Agreement or Third Party Licenses) or legal duty or violate any Applicable Law; (f) copy the Services or any part, feature, function or user interface thereof; (g) access or use the Services in any way for the purposes of competing with the Services or in order to build a competitive product or service; and/or (h) use the Services other than for its intended purposes, including, without limitation, in a manner that, as determined by the Provider in its sole discretion, constitutes excessive or abusive usage.
8 USER CONTENT GUIDELINES
8.1 Acceptable Use of the Services. The Client and its Users may not:
(a) use, or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libelous, menacing, offensive or invasive of another person’s privacy use or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libelous, menacing, offensive or invasive of another person’s privacy;
(b) use the Services to advertise the services of another person or entity;
(c) use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device;
(d) interfere with or disrupt the Services or servers or networks connected to the Services or disobey any requirements, procedures, policies or regulations of networks connected to the Services or misuse the Software by introducing viruses, defects, trojans, worms, logic bombs or other material or item which is technologically harmful or destructive in nature;
(e) attempt to gain unauthorized access to the Software, the server on which the Software is stored, or any server, computer or database connected to the Cloud Provider;
(f) attack the Software via a denial-of-service attack or a distributed or malicious denial-of service attack;
(g) remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials the Client receives or accesses pursuant to this Agreement;
(h) make network connections to any users, hosts, or networks unless the Client has permission to communicate with them;
(i) distribute, publish, send or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising or solicitations (like ‘spam’), including commercial advertising and informational announcements; and/or
(j) use the Services in any way so as to bring the Services, or any part thereof or any third-party related thereto, or the Provider into disrepute.
The Provider reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of the Services.
8.2 Review Guidelines. Reviews posted on the Service must comply with the following:
(a) Users who wish to post a review of a Healthcare Provider or another User must have a User account;
(b) reviews must be helpful and reasonable and must only accurately describe the true experience that the user had with such other user in a prior booking (i.e. no hearsay);
(c) reviews must be legal and must not infringe the rights of any party;
(d) reviews must comply with the Acceptable Use of the Services listed in Section 8.1;
(e) reviews must be written in English;
(f) reviews must not be of a commercial nature (including the posting of any web addresses, links, HTML or other coding or promotional items).
8.3 Reviews. Reviews on the Service are the sole, subjective opinion of the users who post them. The Provider does not endorse any of the reviews posted on the Service and reserves the right to review and/or delete a review for any reason, including, but not limited to, a contravention of this Section. If the Client believes that a review was written in a manner that contravenes this Agreement, the Client may request a removal of such review through the Service or by emailing firstname.lastname@example.org.
8.4 Contravention of this Section. Any use of the Service or portions of the Service in violation of the foregoing violates this Agreement and may result in, among other things, termination or suspension of the Client's rights to use the Service.
9 HOSTING AND SUPPORT
9.1 Hosting. The Provider will cause the Software to be hosted on a cloud server maintained by one or more reputable third-party providers (“Cloud Providers”). The Provider will be responsible for contracting with the Cloud Providers, and for paying all fees and charges of the Cloud Providers. All Client Data stored on the Services is located on servers operated by the Cloud Providers in Canada and/or the United States.
9.2 Support and Training. The Provider shall provide the Client with a reasonable amount of support, maintenance and training. In addition, the Provider shall use reasonable commercial efforts to ensure that the Services are actually available for use by the Client and its Users and reasonably operational and usable.
10 INTELLECTUAL PROPERTY, CLIENT DATA AND PRIVACY
10.1 Ownership of the Software. Except for any grant of licenses in this Agreement or as otherwise expressly provided in this Agreement, the Provider and its licensors, as applicable, shall retain all copyright, patent rights, trade secret rights, trademarks and other proprietary rights or interests (“Intellectual Property Rights”) in the Software. Nothing in these Terms, the Order Form, or any Schedules shall be deemed to convey to the Client or any other party, any ownership right, in or to Software.
10.2 Ownership of Client Data. The Provider acknowledges and agrees that, as between the Parties, the Client is the sole and exclusive owner of the Client Data, and that no right or interest in the Client Data, other than pursuant to Section 10.3 of this Agreement, and will be collected, handled and used by the Provider only in compliance with these Terms.
10.3 License from Client to Provider. The Client hereby grants to the Provider a non-exclusive, royalty-free, non-transferable, limited right to use during the Term, Client Data provided to the Provider solely to perform Services pursuant to these Terms.
10.4 All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or in the Order Form or a Schedule, all Intellectual Property Rights are expressly reserved by the parties. The Client or the Provider, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by the Provider or the Client, as applicable, from time to time in order to give effect to the provisions of this Article.
10.6 Third Party/Open Source Software and Sites. The Software may contain third party software and/or open source software, which may be subject to third party licenses and require notices and/or additional terms and conditions (“Third Party Licenses”). By accepting these Terms, the Client and its Users are also accepting the Third-Party Licenses, if any, set forth therein. These Third-Party Licenses are made a part of and incorporated into these Terms. To view the Third-Party Licenses, please contact email@example.com. The Software may also contain links to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”). The Client and each User may use such links to Third-Party Sites and any Third-Party Content or service provided there at their own risk. The Provider does not monitor or have any control over, and makes no claim or representation regarding, Third-Party Content or Third-Party Sites. A link to a Third-Party Site or Third-Party Content does not imply the Provider’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. The Provider accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content or Third-Party Sites. When a User leaves the Software, this Agreement no longer governs. The Client and each User are responsible for reviewing the applicable terms and policies, including, without limitation, privacy and data gathering practices of any Third-Party Site, and the Client and User should make whatever investigation he/she/it feels necessary or appropriate before proceeding with any transaction with any third party.
10.7 License by Client to Use Feedback. The Client grants the Provider a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Client or Users relating to the operation of the Software or the Services.
11 FEES, EXPENSES AND PAYMENT
11.1 Fees. In consideration for the Services described herein, the Client shall pay to the Provider the Fees more particularly described in the Order Form and any applicable Schedules, which may include subscription fees for premium features (“Subscription Fees”) and fees paid for the Care Services performed by the Healthcare Providers, as booked through the Service (“Healthcare Provider Fees”).
11.2 Healthcare Provider Fees. The Provider shall act as an agent on behalf of the Healthcare Provider and, on a bi-monthly basis, shall invoice the Client for the Healthcare Provider Fees. The Provider shall then remit to the Healthcare Provider the fees owing to them along with a statement outlining the details of such fees. On the Service, non-negotiable hourly rates for each Healthcare Provider (the “Rates”) shall be posted. The Rates may change (increase or decrease) at any time at the Provider’s sole discretion and shall be charged as posted at the time of booking. Upon booking a Healthcare Provider through the Service, the Client expressly acknowledges that it accepts the Rates associated with such booking. The Rates are then applied to the hours worked by the Healthcare Provider on each booking.
11.3 Holidays and Breaks. If the Client books a Healthcare Provider to work on a statutory holiday in the jurisdiction that the Healthcare Provider is booked, the applicable Rate charged will be the Rate plus fifty percent (50%), whether or not conveyed to the Client through the Service at the time of booking, and the Client will be billed accordingly. The Client shall pay the applicable Rate as it relates to the breaks the Healthcare Providers are entitled to take during any booking/shift worked for the Client that is less than eight (8) hours. Notwithstanding the foregoing, for any shift/booking worked for the Client that is eight (8) hours, the Client shall permit the Healthcare Providers to take a half-hour unpaid break and Client shall only be invoiced for 7.5 hours for such shift.
11.4 Invoices and Payments. The Provider shall invoice the Client, for monthly Subscription Fees and all applicable taxes. Bi-weekly, along with a statement outlining the details of such Fees, the Provider or a third party agency shall invoice the Client for the Healthcare Provider Fees and all applicable taxes incurred by all Care Facilities in the previous 2-week period and the Client shall pay such invoice within thirty (30) business days of receipt of such invoice. Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of two percent (2%) per month on overdue amounts and interest thereon.
11.5 Taxes. The Client shall be responsible for all applicable sales, goods and services, harmonized sales, value added, use, excise, other similar taxes, levies and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Care Services hereunder. The Client shall pay to the Provider such taxes, levies and charges which the Provider and/or the Healthcare Providers are registered to charge and collect.
11.6 Suspension of Service and Acceleration. If any charge owing by the Client under these Terms or any other agreement is thirty (30) days or more overdue, the Provider may, without limiting its other rights and remedies, accelerate the Client’s unpaid fee obligations under such agreements, so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full.
12 CANCELLATION OF A SCHEDULED JOB AND REFUND POLICY
12.1 Cancellation by Healthcare Provider and/or Client Prior to Commencement of Booking (without penalty fees). Once a Client and a Healthcare Provider make and accept a booking request, either party may cancel the booking anytime up to two (2) hours prior to the start time. Where a cancellation of a scheduled job is made by a Client or a Healthcare Provider more than twelve (12) hours prior to the agreed upon start time, neither party shall be charged any penalty fees as it relates to such booking.
12.2 Cancellation by Client Prior to Commencement of Booking (with penalty fees). Where a cancellation of a scheduled job is made by a Client within twelve (12) hours, but not less than two (2) hours, prior to the agreed upon start time, the Client will be charged a penalty fee equivalent to three (3) hours of work done at the applicable Rate plus the applicable taxes for the scheduled job. Where a last-minute cancellation of a scheduled job is made by the Client less than two (2) hours prior to the agreed upon start time, the Client will be charged a penalty fee equivalent to the full Healthcare Provider Fees associated with the scheduled job.
12.3 Cancellation by Client During First two (2) Hours of a Booking. If during a shift at a Care Facility, as booked through the Service, a Healthcare Provider fails to perform his/her duties in a satisfactory manner, is negligent or engages in misconduct, in the Client’s sole discretion, acting reasonably, subject to the terms and conditions of this Agreement, and the Client, within the first two (2) hours of such shift, elects, in its sole discretion, acting reasonably, to remove such Healthcare Provider from the premises of the Care Facility, in accordance with Section 4.4 above, the Client shall not be charged any Healthcare Provider Fees and/or penalty fees as it relates to such booking, provided the Client provides the Provider with written notification and explanation of such removal within twenty-four (24) hours of its occurrence. If no such written notice and explanation is received within such timeframe, then the Client may be charged a penalty fee equivalent to all or a portion of the Healthcare Provider Fees associated with such booking, with such determination to be made in the sole discretion of the Provider and assessed on a case-by-case basis.
12.4 Cancellation by Client After First Two (2) Hours of a Booking. If during a shift at a Care Facility, as booked through the Service, a Healthcare Provider fails to perform his/her duties in a satisfactory manner, is negligent or engages in misconduct, in the Client’s sole discretion, acting reasonably, subject to the terms and conditions of this Agreement, and the Client, after the first two (2) hours of such shift, elects, in its sole discretion, acting reasonably, to remove such Healthcare Provider from the premises of the Care Facility, in accordance with Section 4.4 above, the Client shall be charged the Healthcare Provider Fees associated with the Care Services provided by the Healthcare Provider during such booking, prior to the Client’s removal of such Healthcare Provider from the premises of the Care Facility. All penalty fees referred to in this paragraph shall hereinafter be referred to as the “Penalty Fees”. The amount of and terms associated with the Penalty Fees may change (increase or decrease) at any time.
12.5 Refunds or Credits. The Provider does not provide any refunds or credits for any bookings that a Healthcare Provider has completed for a Client.
13 DISCLAIMER AND LIMITATION OF LIABILITY
13.1 Disclaimer. Except as set out in the Order Form or this Agreement, the Services are provided to the Client and authorized Users on an “as is” basis, without warranties from the Provider of any kind, either express or implied. The Provider expressly disclaims all other warranties, express or implied, including, without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, unless otherwise specified in the applicable Order Form. The Provider does not warrant that the Services will be error-free or will operate without interruption.
13.2 No Indirect, Etc. Damages. Under no circumstances shall either party be liable to the other party for any claim for (i) indirect, incidental, special or consequential damages, (ii) loss or inaccuracy of data or cost of procurement of substitute goods, services or technology, (iii) compensation for loss of profits, anticipated revenue, savings or goodwill, or (iii) exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to this Agreement or any Services, even if advised of the possibility thereof. The Provider shall not be responsible for any matter beyond its reasonable control.
13.3 Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, the liability of either party for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from this Agreement shall not exceed the Fees paid or payable by the Client to the Provider under this Agreement in the six (6) months preceding the Loss.
13.4 Reasonableness of Limitations. The Provider, the Client and Users agree that the limitations contained in this Section 13 are reasonable in scope and form an integral part of this Agreement.
14.1 Indemnity by Client. The Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Provider may incur as a result of or in connection with any third party claim relating to or resulting from any breach by the Client, its Users or the Client or Users’ obligations under this Agreement, including its obligation to comply with all Applicable Law.
14.2 Indemnity by Provider. The Provider agrees to defend, indemnify and hold the Client, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Client may incur as a result of or in connection with: (a) any valid claim that the Software or any portion of it infringes the intellectual property rights of any third party; (b) any third-party claim relating to or resulting from any breach by the Provider of the Provider’s obligations under this Agreement, including its obligation to comply with all Applicable Law.
15.1 Term. The term of this Agreement (“Term”) shall commence on (a) the effective date set out in the Order Form; or (b) the date that you agree to these Terms, and will continue for the period identified in the Order Form, if applicable, or shall continue unless terminated in accordance with this Agreement.
(a) Prior to Renewal. Except in the case of a month-to-month term, either party may terminate this Agreement by providing written notice to the other party at least ninety (90) days prior to the end of the then current term. For month-to-month terms, the Client may provide thirty (30) days prior written notice to terminate this Agreement. For greater certainty, such notice may be given prior to the end of such current term but will only take effect at the end of the then current term.
(b) Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within thirty (30) days after being given notice of the breach from the non-breaching party.
(c) Insolvency. Either party may terminate this Agreement, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.
15.3 Early Termination. If this Agreement is terminated pursuant to Section 15.2 prior to the end of such current term, the Client shall pay to the Provider, as liquidated damages and not a penalty, an amount equal to the total monthly subscription Fees (as described in the Order Form), if any, multiplied by the number of months remaining prior to the end of such current term.
15.4 Termination and Suspension of Users. Notwithstanding any provision of these Terms, the Provider reserves the right, in its sole discretion, without any notice or liability to the Client or any User, to (a) terminate a User’s license to use the Software, or any portion thereof; (b) block or prevent a User’s future access to and use of all or any portion of the Software; (c) change, suspend, or discontinue any aspect of the Software; and (d) impose limits on the Software.
15.5 Effect of Termination. If this Agreement is terminated in accordance with Section 15.2, then:
(a) Each party shall promptly deliver to the other party, all papers, databases, documents, software programs, and other tangible items (including copies) constituting the other party’s Confidential Information in its possession or under its control, or on request, destroy such materials and certify that it has done so; and
(b) upon a request by the Client within thirty (30) days of termination, the Provider will delete and cause to be deleted all Client Data from all computer systems owned and controlled by the Provider.
16.1 Definition of Confidential Information. “Confidential Information” means all information, documentation, databases, computer software, designs, drawings, pictures or other images (whether still or moving), sounds and content disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information includes Client Data. The Provider’s Confidential Information includes the Software, the Services and the terms and conditions of this Agreement. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was in the lawful possession of or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) is independently developed by the Receiving Party, which independent development can be shown by written evidence.
16.2 Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
16.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, by any court of competent jurisdiction or by any regulatory or administrative body to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.
16.4 Destruction. Each party, upon the request of the other party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives to return, all copies of Confidential Information belonging to or provided by the other party or destroy such copies as directed by that party and certify their destruction.
16.5 Indemnity. Each party agrees to indemnify and hold the other party harmless from and against all loss or damage or any kind and nature suffered by the other party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Section 16.
17 BOOKJANE INSURANCE REQUIREMENTS
17.1 BookJane Insurance. During the term of this Agreement, the Provider shall maintain insurance with responsible insurers against such risks and in such amounts that could reasonably be expected to be carried by such a service provider acting prudently. Without limiting the generality of the foregoing, the Provider shall obtain and maintain Comprehensive General Liability insurance with a limit of no less than (a) five million dollars ($5,000,000) per occurrence for bodily injury; (b) five million dollars ($5,000,000) in the aggregate for bodily injury; (c) five million dollars ($5,000,000) per occurrence for property damage; and (d) five million dollars ($5,000,000) in the aggregate for property damage. The Provider shall also obtain and maintain Information Security and Privacy Liability with a limit of no less than five million dollars ($5,000,000) per occurrence. The Provider shall also maintain coverage under the applicable Workplace Safety & Insurance Board or workers’ compensation board, as required by the applicable provincial and/or federal legislative requirements in the province(s) in which the Provider operates.
18.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. This Agreement shall be treated, in all respects, as an Ontario contract.
18.2 Survival. Any terms and conditions of this Agreement which by their nature extend beyond termination of this Agreement shall survive such termination. This includes, without limitation Section 6 (Non-Solicitation of Healthcare Providers), Section 10 (Intellectual Property, Client Data and Privacy) (but not section 10.3 (License from Client to Provider)), Section 11 (Fees), Section 13, (Disclaimer, Limitation of Liability) Section 14 (Indemnification), Section 15.5 (Effect of Termination), Section 16 (Confidentiality) and applicable provisions of Section 17 (General).
(a) This Section 18.3 sets out the process (the “Dispute Resolution Process”) for resolving all disputes, issues, controversies, and/or claims arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement (“Disputes”).
(b) Either party may initiate the Dispute Resolution Process by sending a notice of a Dispute (a “Dispute Notice”) to the other party. Upon delivery of a Dispute Notice to either party, each party shall appoint a knowledgeable, responsible, non-lawyer, management representative to meet and negotiate in good faith with the representative of the other party in order to resolve the Dispute.
(c) All Disputes that are not resolved within thirty (30) days following delivery of a Dispute Notice shall be arbitrated and finally resolved, with no right of appeal, even on questions of law, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Ontario, Canada. The language of the arbitration shall be English.
(d) Notwithstanding anything contained in the Agreement to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.
18.4 Relationship. The relationship between the Client and the Provider will at all times be one of independent contractor and nothing herein shall be construed as implying an employment, partnership, or joint venture relationship. The Provider is not an employee of the Client and is not entitled to any benefits that the Client may provide to its employees. Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter into any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in this Agreement.
18.5 Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which the Client or the Provider is required to perform under this Agreement, the Order Form, or a Schedule (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Client or the Provider, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party). The following events are deemed to be outside of a party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, epidemics, pandemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonably foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. The parties agree that an event shall not be considered to beyond reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the Order Form or Schedule would have put in place contingency plans to either materially mitigate or negate the effects of such event. A party seeking to rely on this Section must (i) notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available.
18.6 Non-Solicitation. During the Term and for a period of one (1) year following termination of this Agreement for any reason, neither party may, directly or indirectly, (a) solicit for employment any employee or independent contractor of the other party who was materially involved in the performance of this Agreement; or (b) induce or attempt to induce any employee or independent contractor of the other party who was materially involved in the performance of this Agreement to leave his or her employ or contract, as applicable, with such other party. The foregoing will not prevent either party from hiring any employee or independent contractor who responds to a job posting or advertisement that is not specifically targeted at such employee or independent contractor.
18.7 Currency. Unless otherwise specified in the Order Form, all references to amounts of money in this Agreement refer to Canadian (CAD) currency.
18.8 Notices. Notices that we give to you (other than notice of amendment of this Agreement), may be provided in any of the following ways. First, we may email the Administrator(s) at the contact information provided in the Order Form or any registration data. Second, we may post a notice on the Provider’s website. It is your responsibility to periodically review the Provider’s website for notices. The Client may provide notice to the Provider by (a) submitting a ticket through the helpdesk at firstname.lastname@example.org; or (b) e-mailing the Provider.
18.9 Successors and Assigns. This Agreement shall enure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Provider may assign this Agreement, in its sole discretion.
18.10 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
18.11 Entire Agreement. This Agreement, the Order Form and the Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.
18.12 Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
18.13 Fully Negotiated Agreement. The Client and the Provider acknowledge and agree that all of the provisions of this Agreement have been fully negotiated, that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.
18.14 Language. The parties have required that this Agreement and all deeds, documents and notices relating to this Agreement be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.
18.15 Modification of Terms. The Provider may modify this Agreement at any time by (a) posting a notice on the Provider’s website or on the Software; or (b) by e-mailing the Administrator(s) of the Client. The Provider will also update the “Last Updated” date at the top of the Agreement. You are responsible for checking the Agreement whenever you access or use the Services. By continuing to access or use the Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services.
18.16 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here: