Thoughtfile Inc. Software Product Subscriber Terms of Use

Last modified: November 16, 2016

Effective date: June 1, 2016


These terms and conditions (the “Terms” or “Terms of Use”) govern your access to Thoughtfile Inc.'s software product, whether: (a) accessed on a computer connected to the internet at thoughtfile.co or (the “Website”); (b) on the Thoughtfile Social Media Properties (defined below); or (c) by mobile device (individually and collectively, (a), (b) and (c) are the “Thoughtfile Software Product”), as owned and operated by KCABAM, Inc., a Federal (referred to in these Terms as “Thoughtfile”, “we”, “us” or the “Company”).


Approval of the Terms

It is important that you read these Terms carefully. If you do not agree to these Terms, please do not use the Thoughtfile Software Product. By accessing or using the Thoughtfile Software Product, you represent, warrant and signify that:

you are at least 18 years of age;

you are currently compliant, and agree to remain in compliance in the future, with the Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A (“PHIPA”), as amended from time to time, including any regulations thereto;

that you have read, understood and agree to be bound by these Terms as they may be amended from time to time;

that you expressly appoint and acknowledge that Thoughtfile is acting as an agent of you, as defined in PHIPA, while providing the Thoughtfile Software Product;

you have obtained any applicable consents required from your patients' relating to the dissemination of personal health information and your potential use of third-party service providers, such as Thoughtfile;

upon the termination of this Agreement, you will execute a patient health information transfer and release form (the “Patient Health Information Transfer and Release Form”) authorizing Thoughtfile to immediately transfer all Protected Content (as defined below) back to you along with discharging and indemnifying Thoughtfile from all responsibilities related to the Protected Content; and

you have read and understand our Privacy Policy, the terms of which are incorporated herein by reference (the 'Privacy Policy'), and agree to abide by the Privacy Policy.

You may not use the Thoughtfile Software Product nor accept these Terms if you are not of a legal age to form a binding contract with us. If you accept these Terms, you represent that you have the capacity to be bound by them, or if you are acting on behalf of a company or entity, that you have the authority to bind such company or entity (and in which case “you” and “your” will refer to the company or entity).


Amendment

We may add, discontinue or revise these Terms or any aspect, mode or design of the Thoughtfile Software Product, which include but are not limited to the:

scope of the features;

timing of the features;

software/hardware required for access to the Thoughtfile Software Product; and

geographic locations or jurisdictions in which certain features may be available.

We may amend the Terms without notice for non-material amendments. We will provide you with thirty (30) day’s notice of a material change in the terms and conditions (including changes in pricing) via e-mail to the e-mail address supplied to us by you, setting out:

the new or amended agreement terms;

how such terms read formerly;

the date of the coming into force of the amendment; and

your rights as a consumer.

We highly recommend that users read any amendments carefully. We have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary no later than thirty (30) days after the amendment comes into force that you desire to cancel the contract or deregister or unsubscribe from access to the Thoughtfile Software Product. We will post the most current Terms on the Site and your use of the Thoughtfile Software Product is subject to the most current Terms as posted on the Site at such time. It is your responsibility to visit this page to find any updates that may have been made to the Terms.


Registration

When you register for the Thoughtfile Software Product you will be able to select between three types of subscriptions: (1) a monthly paid subscription (the “Monthly Subscription”); (2) an annual paid subscription (the “Annual Subscription”), or (3) a fourteen (14) or thirty (30) day free trial (the “Free Trial” and collectively with the Monthly Subscription and the Annual Subscription, the “Subscription Agreements”). Payment terms and a description of the services available for your selected Subscription Agreement are set forth in our Schedule of Fees and Charges located on our Pricing Page.


Term

These Terms are effective on the date that you register for a Subscription Agreement, and shall terminate upon the end of your respective Subscription Agreement (the “Initial Term”). In the case of the Monthly Subscriptions and Annual Subscriptions, your Initial Term shall automatically renew for additional thirty (30) day or 365 day terms (for monthly and annual subscriptions respectively), and will continue to renew unless you contact us to terminate this agreement by providing us with thirty (30) days written notice of your intention to cancel (the “Subsequent Renewals”). Free trials terminate immediately upon the conclusion of your Initial Term and we will delete all data and information associated with your account and may require you to complete a Patient Health Information Transfer and Release Form.


Features, and Description of Thoughtfile Software Product

The Thoughtfile Software Product is a practice management tool for mental health professionals enabling mental health professionals to:

• Enter new client information and track patients;

• Schedule and manage client sessions;

• Record detailed session notes and store them in a secure manner;

• Track accounts, track outstanding account balances, etc.; and

• Provide other administrative tools to run a private mental health practice.

Additional features of the Thoughtfile Software Product may be described on the Website.
Use of the Thoughtfile Software Product

You must register in the manner indicated below to access and utilize the Thoughtfile Software Product.


Registration Information:

You agree and understand that you are responsible for maintaining the confidentiality of your password, which, together with your e-mail address (“Userid”), allows you to access the Thoughtfile Software Product. The Userid and password, together with any other contact information you provide us at the time of signing up for the Thoughtfile Software Product form your “Registration Information.” You agree that all Registration Information provided to us will be accurate and up-to-date. You agree to keep your password secure. We will not be liable if we are unable to retrieve or reset a lost password. If you become aware of any unauthorized use of your password or account, you agree to notify us via e-mail at info@thoughtfile.co as soon as possible.

Permitted Uses: You agree to use the Thoughtfile Software Product only for purposes that are permitted by both the Terms and by any applicable law, regulation, or generally accepted practices or guidelines in relevant local, national, and international jurisdictions.
Unauthorized Access:

You agree to only access (or try to access) and use the Thoughtfile Software Product through interfaces provided by us. You shall not access (or try to access) and use any of the Thoughtfile Software Product through any automated means, including, but not limited to, scripts, robots, or web crawlers. You agree not to use or attempt to use another user's account. You agree not to impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your personal information, or your affiliations with any person or entity.


Prohibited Uses:

In any Company online discussion portal associated including, without limitation, our current or future Facebook page, Twitter pages, or discussion board (individually and collectively, the “Thoughtfile Social Property”), you shall not upload, post, transmit, store, or otherwise make available content that contains software viruses or any other computer code, files, or programs that could interrupt, destroy or limit the functionality of our computer software or hardware or telecommunications equipment or that of our users or affiliates.

You shall not upload, post, transmit, store, or otherwise make available content that is unlawful, threatening, abusive, defamatory, misleading, fraudulent, pornographic or otherwise explicit in nature, constitutes unauthorized or unsolicited advertising, or that otherwise violates our rules or policies as may be established or amended from time to time.


Thoughtfile Social Property Prohibition on Personal Health Information:

You shall not upload, post, transmit, store, or otherwise make available content that is “personal health information”, as defined in PHIPA, or any other personal identifying features of any patients that may contravene PHIPA. We reserve the right to remove any and all explicit content at our sole discretion, including potential PHIPA violations (but we are not responsible for monitoring the Site and uploaded content).


User Responsibility:

You agree that you are solely responsible for any breach of your obligations under the Terms and for the consequences of any such breach. We have no responsibility to you or to any third party for such breaches or the consequences of such breaches (including losses or damage that You or Thoughtfile may incur). You understand that when using the Thoughtfile Software Product, you may come across material that you find objectionable, offensive or indecent and agree that you are using the Thoughtfile Software Product at your own risk.


Privacy

Your privacy is very important us. Please review our Privacy Policy, which is hereby incorporated into these Terms. The Privacy Policy applies to the collection, use, disclosure, retention, protection and accuracy of your personal information and business financial information collected for the purposes of the features offered through the Thoughtfile Software Product.


Third Party Links

The Thoughtfile Software Product may link to third-party websites or resources. Such links are provided as a convenience to you only and do not imply an endorsement, warranty or guarantee by us of any such linked site or the company it purports to represent. We do not assume any responsibility or liability for their availability, accuracy, the related content, products or services. You are solely responsible for use of any such websites or resources and compliance with their policies. Should you elect to enter into a binding contract with any such website, you agree to hold us harmless and hereby release us from any liability whatsoever, whether arising out of contract, tort or otherwise, for any liability, claim, injury, loss or damage suffered as a result of your actions or the actions of any user associated with your account, offering to accept or having accepted any products or services that are available from those sites


Intellectual Property and Rights
Rights to content provided by us:

You acknowledge and understand that, except for Protected Content (as defined below), we own all right, title and interest in: (a) the Thoughtfile Software Product; data files; and (b) all e-mails; computer software; advertisements; sponsored content, trade-marks, copywritten material and other intellectual property rights; (all such information, individually and collectively, being the “Thoughtfile Content”), which you may have access to when using the Thoughtfile Software Product, are owned either by us or the entity from which such Thoughtfile Content originated. The Thoughtfile Content is protected by our intellectual property rights or the rights of the entities who have provide to the Company such Thoughtfile Content.

Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying the Thoughtfile Software Product. You may not modify, rent, lease, loan, sell, distribute or create any derivative products or services (or parts of services products or services) based on Thoughtfile Content that you do not own or to which you have rights, or to create derivative works based on the Thoughtfile Software Product. We reserve the right to pre-screen, review, filter, modify, flag, refuse, or remove any or all Thoughtfile Content from any of the Thoughtfile Software Product at any time, at our sole discretion. You may not infringe upon our intellectual property and the intellectual property of any other entities that provide the Thoughtfile Content; or adapt, reproduce, publish or distribute copies of any information or material found on the Thoughtfile Software Product in any form (including by e-mail or other electronic means), without our prior written consent.


Limited license:

We grant you a non-exclusive, non-transferable, revocable, limited license to use the Thoughtfile Software Product in accordance with these Terms. This license may be revoked upon breach of these Terms by you and shall automatically be revoked upon termination or expiration of this Agreement.

The Company may, now or in the future, own rights to trade-marks, trade names, services marks, logos, domain names and other distinctive brand features which we use in connection with the operation of the Thoughtfile Software Product (each such feature being a “Brand Right” and collectively being the “Brand Rights”). We do not grant you any right or license to use any Brand Right other than as expressly set out in these Terms and in other licenses between you and us.


Disclaimers

Rights to content provided by you:

Any personal health information, or any information which may be governed by PHIPA, is the sole and absolute property of you (“Protected Content”). Thoughtfile only facilitates Protected Content as an agent, as defined in PHIPA, of you in order to provide the Thoughtfile Software Products.

By providing information or documentation, other than Protected Content, to the Company, either through (a) registration or use of the Thoughtfile Software Product, or (b) by posting information on the Thoughtfile Social Property, you grant to the Company a perpetual, irrevocable, worldwide and non-exclusive license to reproduce, modify, translate, publish, distribute and make Your content (“Subscriber Content”) available to other companies, organizations, individuals, and users in accordance with our Privacy Policy.

You also understand that in order for us to operate the Thoughtfile Software Product, Subscriber Content may be transmitted by you or us over various public networks and in various media in compliance with our security protocols and we may make changes to Subscriber Content to meet the technological requirements of such networks and media. You are responsible for ensuring that Subscriber Content is protected and your rights in Subscriber Content are enforced; we have no responsibility to protect or enforce your rights on your behalf with respect to Subscriber Content.

Thoughtfile will not transmit Protected Content to any third-parties. Any employee or contractor of Thoughtfile who may come into contact with Protected Content shall sign a confidentiality agreement setting forth the absolute confidentiality required when handling Protected Content.

You may access, download or print a copy of Subscriber Content provided to the Thoughtfile Software Product for your personal use or, if you are a company, your company's internal use only. Any other distribution, reprint or electronic reproduction of Subscriber Content or Thoughtfile Content from the Thoughtfile Software Product in whole or in part is expressly prohibited without our prior written consent.

You may access, download or print a copy of Protected Content provided to the Thoughtfile Software Product: (i) for your personal use; (ii) if you are a company, for your company’s internal use only; or (iii) in accordance with applicable laws, including PHIPA. Any other distribution, reprint or electronic reproduction of Protected Content from the Thoughtfile Software Product in whole or in part is expressly prohibited without our prior written consent.

When you provide information to us you represent and warrant that you have the unfettered right to do so, you are doing so in a PHIPA compliant manner, you have no reason to believe you are violating the rights of any person or any contract or other obligation to which you are subject, and you are not subjecting us to any expense or liability.


Thoughtfile Software Product provided as-is:

The Thoughtfile Software Product is provided “as-is” without warranties of any kind, either expressed or implied. You acknowledge, agree and understand that you use the Thoughtfile Software Product at your own risk. We will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Thoughtfile Software Product.


Downtime:

The Thoughtfile Software Product may be temporarily unavailable from time to time for maintenance or other reasons. We assume no responsibility for any error, inaccuracy, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communications between you and the Thoughtfile Software Product.


No endorsement as to accuracy:

We accept no responsibility for the accuracy of any Thoughtfile Content provided by, or created using, the Thoughtfile Software Product except as otherwise set out in these Terms. The provision or storage of Thoughtfile Content or Protected Content through the Thoughtfile Software Product by us does not, despite Thoughtfile 's efforts to adhere to applicable legislation, constitute our endorsement nor warranty as to the compliance of such Thoughtfile Content or Protected Content with applicable privacy legislation, nor to the accuracy, timeliness, materiality, completeness, or reliability thereof.

You are responsible for ensuring that the information you have entered into our system is accurate, reliable, complete and permitted to be disclosed within PHIPA requirements.

No warranty as to non-infringement:

Except in the manner provided for in these Terms, we and any other entity providing Thoughtfile Content disclaim, and expressly do not provide any direct or indirect, express or implied representation or warranty as to title and non-infringement of intellectual property in relation to the Thoughtfile Software Product.

Content provided to companies:

If you are an individual providing Thoughtfile Content that is to be directed to your company's or clinician's account, you agree and acknowledge that we accept no responsibility and are not liable for any damages that may arise by the company's use of that Content. You further agree and acknowledge that we are not liable for any damages that may arise if the Thoughtfile Content is misdirected to the wrong company due to any reason, including error on your part or a flaw in the Thoughtfile Software Product.

If you are a company accepting Thoughtfile Content that is provided by a user, you agree and acknowledge that we accept no responsibility and are not liable for any inaccuracy or defects in the Thoughtfile Content provided by such user.


Limitation of Liability

You hereby agree to release, remise and forever discharge us and our directors, employees, officers, and our affiliates, partners, service providers, vendors, and contractors and each of their respective agents, directors, officers, employees, and all other related persons or entities from any and all manner of rights, losses, costs, claims, complaints, demands, debts, damages, causes of action, proceedings, liabilities, obligations, legal fees, costs and disbursements of any nature whatsoever, nor for any special, indirect or consequential, incidental or exemplary damages (collectively, a “Claim”), whether in contract or tort, whether known or unknown, which now or hereafter arise from, to the maximum extent allowed by law, that relate to, or are connected with:

(a) these Terms;

(b) failure or delay of the merchants to deliver the products or services, in any way, that are advertised on the Thoughtfile Software Product or through Thoughtfile, and, for clarity, Thoughtfile accepts no liability for any Merchant failure or delay in complying with these terms and conditions or any dispute between you and any Merchant (for clarity, all disputes relating to the quality of Merchant products and inquiries regarding refunds must be directed to the Merchant);

(c) your provision to us of any personal information to us subject to our legal requirements relating to the protection of personal information;

(d) communications received to you through your access to the Thoughtfile Software Product;

(e) the use of the Thoughtfile Software Product and any related applications including third party services;

(f) the use of any software related to the Thoughtfile Software Product;

(g) viruses, spyware, service provider failures or internet access interruptions;

(h) potential PHIPA violations;

(i) loss of use, loss of data, inaccuracy of data, payment failure, payment defect, inaccurate calculations, downtime, identity theft, fraud or unauthorized access; or

(j) any Content relating to the use of the Service, even if you have been advised of the possibility of such Claim, or such Claim was reasonably foreseeable and notwithstanding the sufficiency or insufficiency of any remedy provided for herein or in any license.

In the event that we become liable for any damages whatsoever, you agree that such damages shall be limited in the aggregate to the amount of fees or charges which you have paid for the Thoughtfile Software Product in the previous three month period.


Indemnification

You agree that you will defend, indemnify and hold harmless us and our officers, directors, shareholders, employees, agents and representatives, from and against any and all damages, judgments, liability, costs and expenses (including without limitation any reasonable legal fees), in whole or in part arising out of or attributable to: (a) generally: your breach of these Terms; your access to and/or use of the Thoughtfile Software Product; and any loss of, or damage to, any property, or injury to, or death of, any person (including You) caused by Your access to and/or use of the Thoughtfile Software Product; and (b) specifically, your breach of the intellectual property rights of any third party these Terms.

You agree that you will be solely responsible for all activities that occur under your account, whether you are aware of them or not. You agree to hold us harmless and release us from any loss or liability whatsoever that you may incur as a result of someone other than you using your password or account, either with or without your knowledge. You agree to indemnify us for any damages, third party claims or liabilities whatsoever that we may incur as a result of activities that occur on or through your account, whether or not you were directly or personally responsible.


Termination

These Terms will continue to apply until our relationship with you is terminated.

You may terminate your relationship with us by providing us with thirty (30) days written notice, to our contact information provided herein, of your desire to unsubscribe from the Thoughtfile Software Product, to close your account and to cease your use the THOUGHTFILE Software Product.

We may terminate our relationship with you immediately at any time and for any reason including, but not limited to, a breach of these Terms under the following circumstances:

(a) if you have missed a payment for your use of the Thoughtfile Software Product;

(b) if you have not adhered to any or all the provisions of the Terms or if it appears that you do not intend to or are unable to comply with the Terms, such determination to be made solely at our discretion;

(c) if required to terminate the relationship by law; or

(d) if providing the Thoughtfile Software Product is no longer commercially viable for us.

On termination of our relationship:

(a) we will immediately revoke your license to use the Thoughtfile Software Product;

(b) we will block all access to your account;

(c) you will execute a Patient Health Information Transfer and Release Form; and

(d) we may delete all data and information associated with your account (except for information covered by the Patient Health Information Transfer and Release Form).


Governing Law and Forum of Disputes

By visiting the Site or using the Thoughtfile Software Product, you agree that the laws of the Province of Ontario, without regard to the principles of conflict of laws, will govern these Terms and any dispute of any sort that may arise between you and us. With respect to any disputes or claims, you agree not to commence or prosecute any action in connection therewith other than in the province of Ontario, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non convenient with respect to venue and jurisdiction in the provincial courts of Ontario. You agree to pay reasonable attorneys' fees and court costs incurred by us to collect any unpaid amounts owed by you.


Force Majeure

You agree that we are not liable for a delay or failure in performance of the Thoughtfile Software Product or the provisions of these Terms caused by reason of any occurrence of unforeseen events beyond our reasonable control, including but not limited to, acts of God, natural disasters, power failures, server failures, third party service provider failures or service interruptions, embargo, labour disputes, lockouts and strikes, riots, war, floods, insurrections, legislative changes, and governmental actions.


Miscellaneous

If any portion of these Terms is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, these Terms as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of these Terms that is unlawful, void or unenforceable shall be stricken from these Terms. The insertions of headings are for convenient reference only and are not to affect the interpretation of these Terms.

You may not, without our prior written consent, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. We may assign this Agreement to a third party at any time in our sole discretion. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.

You agree that if we do not exercise or enforce any legal right or remedy which is contained in these Terms or which we have the benefit of under any applicable law, this will not be taken to be a formal waiver of our rights and that those rights or remedies will still be available to us. Waivers must be in written form and signed by an authorized representative of the Company. All covenants, agreements, representations and warranties made in these Terms shall survive your acceptance of these Terms and the termination of our relationship.

The Agreement will constitute the entire agreement between us and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby. In the event of a conflict between these Terms and the Thoughtfile Privacy Policy, the terms and conditions found herein shall prevail.


Contact

By providing us with your e-mail address, you agree to receive all required notices electronically, to that e-mail address. It is your responsibility to update or change that address, as appropriate. If you have any questions or comments regarding these Terms, or if you wish to withdraw your consent to these terms, please contact our head office by email at info@thoughtfile.co or at the address first noted above.