Terms of Use (Patients).
Last updated: 22 May 2025
The following patient terms of use (“Terms of Use”) form an agreement between Surgency Health Corp. (“Surgency”, “us”, “we”, “our”) and you. These Terms of Use govern your access to and use of: (a) Surgency’s proprietary web application designed to search and request consultations with Surgeons (as defined below) in Canada (the “Surgency Platform”); (b) our website including any content, functionality, offered on or through app.surgency.ca (the “Website”); (c) any mobile device software provided by us to you, including Surgency App for iOS and Surgency App for Android (collectively the “Surgency App”); (d) any text, pictures, media, data, text, information and other materials or content (collectively, the “Content”) contained on or provided through (a) to (c); and (d) all other Content, products or services provided by us to you through the Website, Surgency App; AI ChatBot (as defined below), Surgency Platform, and any other Surgency’s Content, including documentation, made available by us to you (collectively, the “App”). The term “you” or “User” refers to the person or entity browsing, installing, downloading, accessing or otherwise using the App (“use” or “using” in these Terms of Use will mean any of the foregoing).
By using the App, you acknowledge and agree that the information or Content provided is not medical or health advice and is not intended to replace professional advice, diagnosis, or treatment from a qualified surgeon, doctor or other health professional. These Terms of Use relate to the App only and do not alter in any way the terms or conditions of any agreement that you may have with any health professional, clinic or other person providing health services that may access services from Surgency(each a “Surgeon”). Each Surgeon will be required to agree a separate agreement with us and not these Terms of Use. Surgency is not a party to any relationship that you may ultimately enter into with a Surgeon.
YOU CANNOT ACCESS ANY HEALTH SERVICE THROUGH THE APP. THE APP IS NOT INTENDED FOR URGENT CARE OR MEDICAL EMERGENCIES. SURGENCY IS NOT A PARTY TO ANY RELATIONSHIP YOU MAY ULTIMATELY ENTER INTO WITH A SURGEON.
BY USING THE APP IN ANY WAY OR BY CLICKING TO ACCEPT THE THESE TERMS OF USE, YOU:
A. REPRESENT AND WARRANT THAT:
I. YOU HAVE REACHED THE LEGAL AGE OF MAJORITY IN YOUR JURISDICTION; AND
II. YOU HAVE THE CAPACITY TO ENTER INTO BINDING OBLIGATIONS; AND
B. AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF USE AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 1.
IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MUST NOT ACCESS OR USE THE APP.
1. Changes to these Terms of Use; the App; Availability and Updates
(a) Except where prohibited by applicable law, Surgency reserves the right, at its sole discretion, to modify or replace these Terms of Use at any time. We will notify you of any material changes to the Terms of Use by posting the updated version on our website or through the App. It is your responsibility to review the Terms of Use periodically for any updates or changes. Your continued access or use of the App following the posting of any changes to the Terms of Use constitutes your acceptance of those changes. If you do not agree to the updated Terms of Use, you must immediately discontinue your use of the App.
(b) Surgency does not guarantee that the App will always be available, error-free, or uninterrupted. However, if notified by the user, Surgency will make reasonable efforts to address and rectify known defects or inaccuracies in the App that materially impact user experience. We reserve the right to modify, suspend, or discontinue the App, or any part thereof, at any time, for any reason, and without prior notice. Surgency will make reasonable efforts to provide advance notice of suspension, including expected duration and impact, except in cases where prohibited by applicable law or immediate action is necessary, such as to address critical security concerns or unexpected technical failures. You agree that Surgency will not be liable to you or any third party for any modification, suspension, or discontinuance of the App. Surgency may, from time to time, release updates, enhancements, or new features for the App. You are responsible for ensuring that you have the latest version of the App installed on your device.
(c) You agree that no fees or other fees will be payable under these Terms of Use in exchange for the licences or access rights granted under these Terms of Use. You agree that this fee arrangement is made in consideration of the mutual covenants set forth in this these Terms of Use including, without limitation, indemnity and liability obligations set forth herein.
2. User Account
To use certain features of the App, you may be required to create an account and select a username and password login credentials (the “User ID”). If you select a User ID, you will keep your User ID secure and will not grant access to or otherwise share your User ID with any other person. You must provide us with true, accurate, current and complete information for your User ID. We reserve the right to disable any User ID issued to you at any time in our sole discretion. You are solely responsible for any and all use of your User ID and all orders and activities that occur under or in connection with the User ID, including any such use by any other party using your User ID. Without limiting any rights which we may otherwise have, we reserve the right to take any and all action, as we deem necessary or reasonable, to ensure the security of the App and your account, including without limitation terminating your account, changing your password, and requesting additional information to authorize transactions on your account. You agree to notify us immediately of any unauthorized access to or use of your User ID or any other breach of security.
3. Third-Party Services and Integration
The App may include, rely on third-party services, contain links to, or may allow you to access or acquire products, services, websites, links, content, material, games, skills, integrations, bots or applications from independent third parties, including third party large language models and artificial intelligence algorithms and platforms (“Third-Party Services”). The App may help you find, make requests to, or interact with Third-Party Services and may allow or require you to share User Data (as defined below) with such Third-Party Services, and you understand that by using our App you are directing them to make Third-Party Services available to you. The Third-Party Services may allow or require you to store User Data with the publisher, provider or operator of the Third-Party Services. The Third-Party Services may present you with a privacy policy or require you to accept their terms before you can install or use the Third-Party App or Service. You should review the third-party terms and privacy policies before acquiring, using, requesting, or linking your Surgency account to any Third-Party Services. Any third-party terms do not modify these Terms of Use. Surgency does not license any intellectual property to you as part of any Third-Party Services. You agree to assume all risk and liability arising from your use of these Third-Party Services and that Surgency is not responsible for any issues arising out of your use of them. Surgency is not responsible or liable to you or others for information or services provided by any Third-Party Services. Surgency is not responsible for any disclosure, modification or deletion of User Data resulting from access to User Data by such Third-Party Services or their providers.
4. Privacy; and Electronic Communications
(a) The privacy policy found at surgency.ca/privacy as updated by Surgency from time to time (“Privacy Policy”) describes the manner in which we collect, use and disclose your personal information.
5. User Data; License to the App; Ownership; and Reservation of Rights
(a) We may also collect and use your other data or information that you provide to us or the App (“Data”), Prompts (as defined below), and content, software (including machine images), text, audio, video, or images that you submit to us or the App (“Your Content”). “User Data” means Your Content and Data.
(b) You grant to Surgency a worldwide, royalty-free, fully paid up, perpetual, irrevocable, transferable, sublicensable license to use Your Content, for example, to make copies of, retain, transmit, reformat, display, and distribute via communication tools User Data on the App.
(c) We are permitted to generate anonymous data that is non-identifiable as to you or any individual and otherwise no longer constitutes “personal information”, “personal data” or equivalent terms under applicable Privacy Laws (“Anonymous Data”). Surgency may use, process, store, disclose, transfer, transmit, copy, modify and display the Anonymous Data for any purpose and without restriction or obligation to you of any kind. Anonymous Data is not User Data.
(d) To the extent that you submits ideas, suggestions, documents, or proposals regarding the App to us (“Feedback”), you acknowledge and agree that:
(i) the Feedback does not contain confidential or proprietary information and we are not under any obligation of confidentiality with respect to the Feedback; and
(ii) we will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to you or any other person (including Surgeon) for such use.
(e) Subject to this Agreement, Surgency makes available to you certain artificial intelligence tools in connection with your use of the applicable App (collectively, the “AI ChatBot”). Except where expressly specified otherwise in this Agreement, the AI ChatBot constitute a “App” for the purposes of these Terms of Use and these Terms of Use shall apply in full to your use of the AI ChatBot. The AI ChatBot leverages Third-Party Services to generate suggested text, information, results, images, and other materials (collectively, the “Output”) in response to your prompts (“Prompts”). We do not make any representations with respect to Third-Party Services or any Output provided in connection therewith. We are not responsible for Prompts, Outputs, or AI Chatbots and you are responsible for checking Outputs for accuracy and suitability. The Outputs provided by AI ChatBot do not reflect the views of Surgency Parties (as defined below). Surgency makes no claim to ownership of Prompts or Outputs. YOU ACKNOWLEDGE AND AGREE THAT CERTAIN JURISDICTIONS DO NOT RECOGNIZE INTELLECTUAL PROPERTY OWNERSHIP IN OUTPUTS AND AS A RESULT SURGENCY MAKES NO REPRESENTATION OR WARRANTY THAT SURGEON WILL HAVE FULL OWNERSHIP OF SUCH OUTPUTS.
(f) App may allow you to create, store or share Your Content or receive material from others. We do not claim ownership of Your Content. When you share Your Content with other people, you understand that they may be able to, on a worldwide basis, use, save, record, reproduce, broadcast, transmit, share and display Your Content for the purpose that you made Your content available on the App, without compensating you. If you do not want others to have that ability, do not use the App to share Your Content. You represent and warrant that for the duration of these Terms of Use, you have (and will have) all the rights necessary for Your Content that is uploaded, stored, or shared on or through the App and that the collection, use, and retention of Your Content will not violate any law or rights of others. Surgency does not own, control, verify, pay for, endorse or otherwise assume any liability for Your Content and cannot be held responsible for Your Content or the material others upload, store or share using the App.
(g) Neither these Terms of Use nor your use of the App grants you ownership in the App or the Content you access through the App. These Terms of Use do not grant you any right to use Surgency’s trademarks or other brand elements. We, third party suppliers, or our licensors own and retain all rights, title and interest, including intellectual property rights, in the App, the source code in the software we use to provide the App (the “Software”), and all other materials provided by us hereunder, and any modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations thereof.
(h) Software and all other materials provided by us hereunder, including Content we make available through or in the App, are protected by copyright in Canada, the United States and elsewhere in the world pursuant to the Berne Convention. You are prohibited from modifying, copying, reproducing, publishing, posting, transmitting, distributing, creating derivative works from, decompiling, transferring or selling any of the App, the Software or other materials provided by us hereunder, or sharing or granting access in any of the foregoing to any third party for any purpose. You agree not to adjust or to try to circumvent or delete any copyright, trademark, or other intellectual property notices contained on the App or in the Content and in particular, in any digital rights or other security technology embedded or contained within any Content. You agree not to remove any watermarks, labels or other legal or proprietary notices included in the App or the Content.
(i) Any use of third-party software and other Third-Party Services provided in connection with the App will be governed by such third parties’ licenses and not by these Terms of Use.
(j) The App and all materials provided by us hereunder are made available or licensed and are not “sold” to you.
(k) Any trademarks, logos, product and service names, designs, images and slogans appearing in or on the App are the exclusive property of Surgency (or its third-party suppliers) and may not be used in any manner without our express written consent.
(l) All rights not expressly granted to you in these Terms of Use are reserved by Surgency.
(m) Subject to these Terms of Use, we grant you a worldwide, non-exclusive, non-transferable, non-sublicensable and revocable right and licence (where applicable) during the Term (as defined below) to use the App, including to download and display local Content, solely in connection with using the App, in accordance with these Terms of Use.
6. Your Responsibilities
(a) By using the App, you acknowledge and agree that the information and Content provided is not intended to replace professional advice, diagnosis, or treatment from a surgeon or any other health care professional and should not be solely relied upon as a means to access any health service you may require or benefit from. You understand and acknowledge that Surgency makes no representations to you regarding whether any Surgeon will contact you or whether you will ultimately be able to access any health service from information you obtain using the App. You acknowledge and agree that the App has not been represented to you as and is NOT to be used by you as a source of medical or healthcare advice. The App is NOT for use diagnosing, treating, mitigating or preventing a disease, disorder or abnormal physical state, or any of their symptoms; and
(b) You will:
(i) not rely on the App or Output contained in the App to obtain access to any health service or in the event of an emergency;
(ii) use best efforts to prevent unauthorized access to or use of the App;
(iii) keep your User IDs and all other login information confidential;
(iv) not register for more than one account, register for an account on behalf of an individual other than yourself without such individual’s authorization;
(v) monitor and control all activity conducted through your account in connection with the App;
(vi) keep your email address and, where applicable, your contact details associated with your account current and accurate;
(vii) promptly notify us if you become aware or reasonably suspect any illegal or unauthorized activity or a security breach involving your account, including any loss, theft, or unauthorized disclosure or use of a User ID or account;
(viii) not use anyone else’s User ID at any time, without the permission of the User ID holder;
(ix) comply with all applicable laws and regulations, including, but not limited to, all intellectual property, data, and privacy laws; and
(x) be responsible for maintaining backup copies of any important data submitted to or stored within the App. Surgency shall not be liable for any loss or damage resulting from the loss or corruption of User Data, and you agree not to hold Surgency responsible for any such loss or damage.
7. No Unlawful or Prohibited Use
(a) You will not use the App in violation of these Terms of Use or of any applicable law. You will not, without our prior written permission, use the App for any purpose other than to access and use the App. Without limiting the generality of the foregoing, you will not (and will not attempt to) directly or indirectly:
(i) disable, overly burden, impair, or otherwise interfere with servers or networks connected to the App (e.g., a denial of service attack);
(ii) attempt to gain unauthorized access to the App, or bypass any measures we may use to prevent or restrict access to the App;
(iii) send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the App any data, information, pictures, videos, audio or other materials or content that: (A) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (B) you do not have the lawful right to send, upload, collect, transmit, store, use, post, publish, or otherwise communicate; (C) is false, inaccurate, intentionally misleading, or impersonates any other person; (D) gives the impression that it originates from or is endorsed by us or any other person or entity, if that is not the case; (E) is defamatory, bullying, harassing, abusive, threatening, vulgar, exploitative, obscene, harmful, sexually explicit, inflammatory, offensive or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or other such legally prohibited ground, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual, or is otherwise objectionable, such determination to be made in Surgency’s sole discretion; (F) is harmful to minors in any way or targeted at minors; (G) infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (H) violates, or encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability; or (I) contains information about an identifiable individual other than yourself;
(iv) use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble, disassemble, or decompile the App, Output or any part thereof or otherwise attempt to discover any source code;
(v) use the App or Output for the purpose of building a similar or competitive product or service;
(vi) in any manner violate the terms of use of any third party website that is linked to the App;
(vii) impersonate or attempt to impersonate Surgency, a Surgency employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing);
(viii) encourage any other conduct that restricts or inhibits anyone’s use or enjoyment of the App, or which, as determined by us, may harm Surgency or users of the App or expose them to liability;
(ix) promote any illegal activity or advocate, promote, or assist any unlawful act;
(x) publish, market, advertise or in any way distribute the Content;
(xi) copy or store any significant portion of the Content;
(xii) share, transfer or otherwise provide access to an account designated for you to another person;
(xiii) mirror or frame the App or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages;
(xiv) use the App, Output or our third-party providers’ property to train any artificial intelligence (AI) or machine learning algorithms or software or create any derivative works, compilations or collective works or in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
(xv) automatically connect the data made available to you as part of the App to other data, software, services or networks, other than as expressly permitted by us in writing;
(xvi) perform any vulnerability, penetration or similar testing of the App or any Output; or
(xvii) authorize, permit, enable, induce or encourage any third party to do any of the above.
(b) In connection with your use of the App, you agree not to engage in any activity that is harmful, offensive, or otherwise violates these Terms of Use, including, but not limited to:
(i) transmitting or posting any content that is abusive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(ii) using the App to harm, stalk, or harass any individual or entity;
(iii) impersonating any person or entity, or falsely representing your affiliation with any person or entity;
(iv) attempting to gain unauthorized access to the App, user accounts, or any related systems or networks;
(v) interfering with or disrupting the operation of the App, its servers, or any related systems or networks; or
(vi) violating any applicable laws, rules, or regulations, including intellectual property, privacy, or data protection laws.
8. Disclaimer
(a) THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS IN THESE TERMS OF USE (INCLUDING THE FOLLOWING DISCLAIMERS) MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR CONDITION, THE SCOPE AND DURATION OF SUCH WARRANTY OR CONDITION WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
(b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE APP AND ANY RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. SURGENCY DOES NOT WARRANT THAT THE APP WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE APP. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED OR AS OTHERWISE REQUIRED BY LAW, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE APP AND SERVICES WHETHER EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SURGENCY EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO YOU IN CONNECTION WITH YOUR USE OF THE APP (OR ANY PART OF THEM), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY YOU FOR ANY PURPOSE WHATSOEVER. SURGENCY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, MAILBOMBING OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE APP OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON ANY WEBSITE LINKED TO THE APP.
(c) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THIRD PARTY COMMUNICATIONS AND ANY THIRD PARTY WEBSITES OR CONTENT DIRECTLY OR INDIRECTLY ACCESSED THROUGH THE APP.
(d) SURGENCY IS A TECHNOLOGY COMPANY. SURGENCY DOES NOT PROVIDE ANY HEALTH SERVICE, DOES NOT ENGAGE ANY DOCTORS, SURGEONS OR OTHER HEALTH CARE PROVIDERS, AND IS NOT ENGAGED IN THE PRACTICE OF MEDICINE, NURSING OR ANY OTHER HEALTH PROFESSION. SURGENCY IS NOT RESPONSIBLE FOR THE ACTIONS OR OMISSIONS OF ANY SURGEON, INCLUDING BUT NOT LIMITED TO THE WAIT TIME TO ACCESS ANY SURGEON’S SERVICES, THE SCOPE OF SERVICES PROVIDED BY ANY SURGEON, THE FEES CHARGED BY ANY SURGEON AND THE QUALITY OR OUTCOMES OF CARE PROVIDED BY ANY SURGEON.
(e) THE PROVISION OF APP IS NOT A REFERRAL TO, ENDORSEMENT OR RECOMMENDATION OF THE ANY SURGEON. SURGENCY MAKES NO REPRESENTATION OR WARRANTY AS TO THE QUALIFICATIONS, SKILL, EFFECTIVENESS OR RESPONSIVENESS OF ANY SURGEON.
(f) YOU DO NOT HAVE A THERAPEUTIC RELATIONSHIP WITH SURGENCY. THE APP IS NOT DESIGNED OR INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR JUDGMENT AND SHOULD NOT BE USED TO REPLACE OR AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR JUDGMENT..
(g) ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING ARE RAPIDLY EVOLVING FIELDS OF STUDY. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, USE OF ANY OF APP MAY IN SOME SITUATIONS RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT REAL PEOPLE, PLACES, OR FACTS. YOU WILL EVALUATE THE ACCURACY OF ANY OUTPUT, REPORTS, AND CONTENT AS APPROPRIATE FOR ITS USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUT, REPORTS AND CONTENT. DUE TO THE NATURE OF MACHINE LEARNING, OUTPUT AND REPORTS MAY NOT BE UNIQUE ACROSS USERS AND SERVICES OR ANY OTHER OF SURGENCY PROPERTY MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR YOU, PATIENT OR A THIRD PARTY. OTHER USERS OR CUSTOMERS OF SURGENCY MAY ALSO ASK SIMILAR QUESTIONS AND RECEIVE THE SAME RESPONSE. RESPONSES THAT ARE REQUESTED BY AND GENERATED FOR OTHER USERS ARE NOT CONSIDERED USER DATA.
(h) IF YOU ARE A CONSUMER RESIDING IN QUÉBEC, THE FOREGOING DOES NOT LIBERATE US FROM THE CONSEQUENCES OF OUR OWN ACTS OR THOSE OF OUR REPRESENTATIVES.
9. Limitation of Liability
(a) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES OR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, LICENSEES AND SERVICE PROVIDERS AND ANY SUCCESSORS AND ASSIGNS OF THE FOREGOING (COLLECTIVELY WITH SURGENCY, THE “SURGENCY PARTIES”) BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY: (I) DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE SERVICES; (V) PERSONAL INJURY OR DEATH; (VI) PERSONAL OR PROPERTY DAMAGE; OR (VII) OTHER LIABILITIES, IN EACH CASE, WHETHER OR NOT WE WERE ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE APP OR THE INABILITY TO MAKE USE OF THE APP, OR THESE TERMS OF USE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE APP, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE APP.
(b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THESE TERMS OF USE, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE APP, EXCEED $100. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF USE WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
(c) Without limiting the foregoing, under no circumstances will any of the Surgency Parties be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our or their reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, floods, storms, explosions, pandemics, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.
(d) If you are a consumer residing in Québec, the foregoing does not liberate us from the consequences of our own acts or those of our representatives.
10. Term and Termination
(a) These Terms of Use will commence on the day you first use any portion of the App and will remain in effect, unless such access is earlier terminated by either party in accordance with the provisions of these Terms of (the “Term”).
(b) Surgency may terminate or suspend your access to the App, your account, and any related services at any time without notice and without liability to you or any person. Surgency will, however, endeavor to provide advance notice of termination or suspension when feasible, and offer users a reasonable opportunity to retrieve their data where possible, in accordance with Surgency’s data retention policy and subject to applicable laws.
(c) You may terminate your account and discontinue your use of the App at any time by contacting us through our main contact channels and requesting the deletion of your account. You may also request account termination at any time by contacting Surgency customer support.
(d) Upon termination of these Term of Use: (i) your right to use the App will cease immediately; and (ii) except as restricted by applicable law, we will retain your User Data.
11. Survival
The following Sections, together with any other provision of these Terms of Use which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms of Use, will survive expiration or termination of these Terms of Use for any reason: Sections 4(a) (Privacy; License to the App and Ownership; Feedback), 6 (Your Responsibilities), 7 (No Unlawful Use or Prohibited Use), 8 (Disclaimer), 9 (Limitation of Liability), 11 (Survival), and 12 (General Provisions).
12. General Provisions
(a) Choice of Law. Except as restricted by applicable law, these Terms of Use will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any principles of conflicts of law and such laws apply to your access to or use of the App, notwithstanding your domicile, residency or physical location. You will only use the App in jurisdictions where the App may lawfully be used. Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Toronto, Ontario in all disputes arising out of or relating to the use of the App. The U.N. Convention on Contracts for the International Sale of Goods will not apply to these Terms of Use. This choice of jurisdiction does not prevent us from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
(b) Entire Agreement and Interpretation. These Terms of Use and all documents incorporated by reference herein constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the App, and any services offered by Surgency. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of these Terms of Use are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of us in these Terms of Use, mean our right to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain our decision to you.
(c) Waiver. Our failure to insist upon or enforce strict performance of any provision of these Terms of Use will not be construed as a waiver of any provision or right. A waiver of any provision of these Terms of Use must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(d) Severability. If any of the provisions contained in these Terms of Use are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from these Terms of Use and all other provisions of these Terms of Use will remain in full force and effect.
(e) Assignment. You will not assign these Terms of Use to any third party without our prior written consent. We may assign these Terms of Use or any rights under these Terms of Use to any third party without your consent. Any attempted assignment, subcontract, delegation, or transfer in violation of this Section will be null and void. These Terms of Use will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.
(f) English Language. The parties confirm that the essential stipulations of these Terms of Use reflect the mutual agreement of the parties further to negotiation, and were not imposed by either party, even when drawn up by one of the parties. The parties further confirm that it is the express wish of all parties that these Terms of Use, all documents related to these Terms of Use and all communications between the parties in the context of the performance of these Terms of Use be in English only. Les parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des parties, même lorsque rédigées par l’une des parties. Les parties confirment également que c’est la volonté expresse des parties que la présente entente, tout document s’y rattachant et toute communication entre les parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.
(g) Contact. If you have any questions or concerns about these Terms of Use or your use of the App, please contact us through our main contact channels.
13. Access Through Surgency App for iOS
If the Surgency App is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) application store (the “Surgency App for iOS”), the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms of Use in respect of your access to or use of the App through the Surgency App for iOS:
(a) the parties acknowledge these Terms of Use are concluded between Surgency and you, and not with Apple and Apple is not responsible for the App and content thereof is governed by these Terms of Use;
(b) notwithstanding anything to the contrary hereunder, you may use the Surgency App for iOS only on an Apple device;
(c) the parties acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the App (including the Surgency App for iOS);
(d) in the event of any failure of the Surgency App for iOS to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Surgency App for iOS (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App (including the Surgency App for iOS), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by these Terms of Use;
(e) any claim in connection with the App related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by these Terms of Use, and Apple is not responsible for such claim;
(f) any third party claim that the App or your possession and use of the Surgency App for iOS infringes that third party’s intellectual property rights will be governed by these Terms of Use, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim;
(g) you represent and warrant that you are not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties;
(h) you may contact Surgency in writing regarding any notices, questions, complaints or claims with respect to the App (including Surgency App for iOS) at the following email address: info@surgency.ca; and
(i) Apple is a third party beneficiary to these Terms of Use and may enforce these Terms of Use against you.
14. Access Through Surgency App for Android
(a) If the Surgency App is provided to you through the ‘Google Play’ application store made available by Google Inc. (Google Inc. together with all of its affiliates, “Google”, such application the “Surgency App for Android”) the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms of Use in respect of your access to or use of the App through the Surgency App for Android:
(b) the parties acknowledge that these Terms of Use are concluded between Surgency and you, and not with Google and Google is not responsible for the App and content thereof is governed by these Terms of Use;
(c) the parties acknowledge that Google has no obligation to furnish any maintenance or support services with respect to the App (including the Surgency App for Android);
(d) to the maximum extent permitted by applicable laws, Google will have no warranty obligation whatsoever with respect to the App (including the Surgency App for Android), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by these Terms of Use;
(e) any claim in connection with the App related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by these Terms of Use, and Google is not responsible for such claim;
(f) any third party claim that the App or your possession and use of the Surgency App for Android infringes that third party’s intellectual property rights will be governed by these Terms of Use, and Google will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim;
(g) you may contact Surgency in writing regarding any notices, questions, complaints or claims with respect to the App (including the Surgency App for Android) at the following email address: info@surgency.ca; and
(h) Google is a third party beneficiary to these Terms of Use and may enforce these Terms of Use against you.