End User License Agreement


END USER LICENSE AGREEMENT 

This End User License Agreement (the “Terms “) govern each user’s (“You” or “ Your“) access to, and use of, the T-Res software application (the “Software “), any web sites through which the Software may be accessed from time to time (collectively, the “Site“), and any other services accessible through the Site (the Software, the Site and the Site services, collectively, the “ Services“) that are offered by Resilience Software Inc. or its subsidiaries and affiliates (collectively, “Resilience “, “We“, “ Us” or “Our “). We may update these Terms in the future, and you will be able to find the most current version at  https://resiliencesoftware.com/terms-conditions/. 

By clicking on the “accept” button or by accessing, browsing, or otherwise using the services, you agree to be bound by these terms and any of the related policies or guidelines.  

1. Definitions 

In these Terms, the following terms will have the meanings set out below: 

  • “Activity Data” means all information and data arising from or relating to the use of the Software by You and will include PHI (as defined in Section 3). Activity Data excludes Meta Data and Discipline Standard Data. 
  • “Devices” means the servers and/or clients, including computer workstations, terminals, personal computers, network computers, laptop computers, mobile devices or phones and other similar hardware or devices, on which You may access the Services. 
  • “Discipline Standard Data” means the Meta Data that allows a Program to use the Software to enter information that is consistent and compatible with other Programs. 
  • “Documentation” means all operator, technical and user manuals, training videos, materials, guides, listings, specifications, and other materials for use in conjunction with the Software, whether in hard copy or electronic forms, as may be furnished to You under this Agreement from time to time. 
  • “Learner” means a resident, fellow or student in a Program. 
  • “Meta Data” means any data relating to the configuration, design, management or consistent use of the Software. 
  • “Personnel” means any employees, officers, directors, contractors, subcontractors, associates, representatives, or other persons engaged by Resilience for the purposes of fulfilling Resilience’s obligations under these Terms. 
  • “Program” means a training program where one or more Learners are enrolled for educational purposes. 
  • “Resilience Parties” means Resilience, its affiliates and their respective employees, directors, officers, contractors and agents. 
  • “Security Incident” means the successful unauthorized access, use, disclosure, modification, or destruction of Activity Data held by Resilience as a result of Your use of the Services.  

2. Grant of Software License 

Resilience hereby grants to You a personal, non-exclusive, non-transferable and non-sub-licensable license to: 

  1. use the Services for your internal purposes; 
  2. download copies of the Software for installation and use on Your Devices; 
  3. make an unlimited number of copies of the Documentation, either in hardcopy or electronic form, provided that each copy may be used only for Your internal purposes. 

You may not (or allow any other party to): 

  1. copy, modify, create a derivative work of, reverse engineer, reverse assemble, or decompile the Software, or otherwise make it available in human readable form; 
  2. download, save, loan, sell, rent, distribute or otherwise commercially exploit any part of the Software; 
  3. modify the Software unless otherwise permitted by Resilience; 
  4. remove any patent, copyright, trade secret, trademark or other restrictive and proprietary notices or labels affixed to or contained within the Software; 
  5. use the Services to build a similar or competitive product or service or attempt to obtain unauthorized access to the Services; or 
  6. disclose any confidential information about the Services, or provide access to the Services, to a third party that provides or is developing a competitive product or service to the Services. 

3. Protected Health Information 

As a result of Your use of the Services Resilience may receive, maintain, process and have access to protected health information as defined under the Health Insurance Portability and Accountability Act of 1996 (“ HIPAA”), and/or personal health information as defined under the Personal Information Protection and Electronic Documents Act (“ PIPEDA”) or other applicable provincial health information legislation or privacy legislation(“ PHI”). If HIPAA applies to your operations, then for the Purposes of HIPAA, You are a covered entity, and We are Your business associate. 

  1. Resilience covenants to the following:  

Compliance with Privacy Requirements 

  1. not to use or disclose the PHI other than as permitted or required by these Terms or as required by law; 
  2. in relation to the use, processing, sharing disclosure, storage, security, destruction and management or administration of the PHI, Resilience is subject to and will comply with applicable laws;  

Reporting and Response to Requests for PHI 

  1. report to You any Security Incident of which it becomes aware with respect to the PHI; if a Security Incident involves successful unauthorized access, use disclosure, modification, or destruction of the PHI, Resilience shall be obligated to report such security incident to You by email or in writing as soon as practical, together with sufficient detail to make You aware of the specific PHI that was accessed, used, disclosed, modified or destroyed as a result of such security incident and of the identifiers Resilience has for any patients whose PHI was involved; 
  2. notify You of any request received under applicable laws for access to or correction of the PHI from any person that is not You; 
  3. within twenty (20) days of receiving a written request for PHI from You, make available to You the PHI within the scope of your request, and as far as applicable, all the PHI in Resilience’s possession that constitutes or forms part of a “Designated Record Set” (as defined by applicable law); 
  4. within forty (40) days of receiving a written request from You, to make available to You the PHI for amendment and incorporate any amendments to the PHI in accordance with the applicable federal or provincial statutory and regulatory requirements relating to the access, use and disclosure of health information, including without limitation, the Standards for Privacy of Individually Identifiable Health Information, and the Security Standards, collectively codified at 45 C.F.R. Parts 160, 162 and 164 (respectively the “ Privacy Standards” and “Security Standards“) under HIPAA; 
  5. make its internal practices, books and records relating to the use and disclosure of PHI available to the Secretary of HHS or other government regulators as required by applicable laws for purposes of determining Your compliance with the Privacy Standards and the Security Standards or other requirements under applicable laws; 
  6. within forty (40) days of receiving a written request from You, to make available to You the information required for You to provide an accounting of disclosures of PHI as required by the Privacy Standards and the Security Standards or as required under other applicable laws; 

Protection and Security of PHI 

  1. exercise all reasonable precautions to protect PHI from unauthorized access, disclosure, copying, use or modification, storage, retention and disposal; 
  2. provide reasonable assistance to You in the conduct of privacy impact assessments and threat risk assessments; 
  3. implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the PHI that Resilience receives, maintains, or transmits; 
  4. use reasonable commercial efforts to mitigate any harmful effect from a use or disclosure of PHI by Resilience in violation of the requirements of these Terms; 

Personnel and Third-Parties  

  1. ensure that Personnel are only granted access to PHI when access is necessary for the provision of the Services; 
  2. ensure that all Personnel granted access to PHI have expressly agreed to comply with Resilience’s obligations under the Terms and applicable laws; 
  3. ensure that any agents and subcontractors or other third-parties to whom it provides PHI agree to the same restrictions and conditions set forth in these Terms; 

Storage of PHI 

  1. all PHI Resilience receives from You is stored and backed up, exclusively in Canada; and 

Return and destruction of PHI 

  1. upon the expiration or termination of these Terms, Resilience will return to You or destroy all PHI, including such information in possession of Resilience’s subcontractors, as a result of Your use of the Services, and retain no copies, if it is feasible to do so. If return or destruction is infeasible, Resilience agrees to extend all protections, limitations and restrictions contained in these Terms to Resilience’s use and/or disclosure of any retained PHI, and to limit further uses and/or disclosures to the purposes that make the return or destruction of the PHI infeasible. This provision shall survive the termination or expiration of these Terms; 
  2. Resilience Rights - You agree that Resilience may make any and all uses and disclosures of PHI necessary to perform the Services and, further, Resilience may: 
  3. use the PHI in its possession for its proper management and administration and to carry out its legal responsibilities; 
  4. disclose the PHI in its possession to a third party for the purpose of Resilience’s proper management and administration or to carry out the legal responsibilities of Resilience, provided that: (i) the disclosures are required by law or Resilience obtains reasonable assurances from the third party regarding the confidential handling of such PHI as required under the Privacy Standards and the Security Standards or applicable privacy laws; and (ii) the third party notifies Resilience of any instances of which it is aware in which the confidentiality of the information has been breached; 
  5. provide benchmarking services; and 
  6. de-identify any and all PHI obtained by Resilience pursuant to Your use of the Services and use and disclose such de-identified data as directed by You and the director (including a Program director), all in accordance with the de-identification requirements of the Privacy Standards and the Security Standards and applicable laws. 

Except for the provision permitting disclosure of de-identified PHI to Your director (including Program director), nothing in these Terms is intended to confer upon any person other than You and Resilience and Your respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever. 

4. Storage, Transmission, and Access to Data 

We shall use commercially reasonable efforts to ensure that Data will be safeguarded when stored on Resilience’s network or servers and/or transmitted over the internet, including the use of industry-recognized best practices and technologies for data security and integrity. 

You acknowledge that Your use of the Services will involve transmission over various network communications facilities or other electronic means that may not be owned or operated by Resilience. Therefore, You agree that Resilience is not responsible for any Activity Data, Meta Data or Discipline Standard Data that is lost, altered, intercepted or stored without authorization during the transmission across networks not owned or operated by Resilience. 

Faculty or staff completing evaluations of Learners may see portions of the activities that are entered by Learners. What is visible is determined by the Programs and the Discipline Standard. 

Directors can see all information entered by all Learners, faculty, or staff in their Program except for the contents of “Private Notes” fields. 

5. User Password and Account Information 

You may become a registered user of the Site or Services as a Learner, director (including Program director), faculty and staff (each, a “ Registered User“). If You become a Registered User, as part of the registration process for the Services You will be required to provide current, accurate identification and other information in order to use the Services. You are responsible for maintaining the confidentiality of Your account password, and You are responsible for all activities that occur under Your account or accounts. You shall immediately notify Resilience of any unauthorized use of Your password or account. You agree that Resilience will not be liable for any loss or damage arising from any failure to provide Resilience with accurate information or any failure by You to keep passwords or account secure. 

6. Proper Purposes 

You agree to use the Services only for purposes that are legal, proper and in accordance with these Terms and any applicable laws, policies or guidelines, including the Privacy Standards and the Security Standards. 

7. Modifications to the Services 

The Services are a product that is constantly evolving. As such, any part of the Services may be modified or discontinued at any time in Resilience’s sole discretion with or without notice, and You agree that Resilience will not be liable to You as a result of such modification or discontinuance. 

8. Disclaimer of Warranties 

You expressly agree that: 

A. Your use of the services is at your sole risk. The services are provided on an “as is” and “as available” basis. To the maximum extent permitted by law, resilience expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement. 

B. Resilience does not warrant that (i) the services will meet your requirements or expectations, (ii) the services will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the services will be accurate or reliable, and (iv) all errors in the software will be corrected. 

C. No advice or information, whether oral or written, obtained by you from resilience or through or from the services will create any warranty not expressly stated in these terms. 

9. Indemnity 

You agree to hold harmless and indemnify the Resilience Parties from and against any third party claim arising from or in any way related to Your use of the Services or Your violation of these Terms. In such a case, Resilience will provide You with written notice of such claim, suit or action.  

10. Release 

You hereby release the Resilience Parties from claims, demands any and all losses, damages, rights, and actions of any kind including, without limitation, personal injuries, death, and property damage, that are either directly or indirectly related to or arise from Your use of the Services. 

11. Limitation of Liability 

You acknowledge and agree that we are only willing to provide access to the services if you agree to certain limitations of our liability to you and to third parties. You expressly agree that we will not be liable to you or any third party for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages) resulting from: (i) the use or the inability to use the services; (ii) unauthorized access to or alteration of your transmissions or data; or (iii) any other matter relating to the services. Our maximum liability arising out of or in the connection with these terms and any use of the services, whether such liability arises from any claim based on breach of contract, breach of warranty, tort or otherwise, will in no case exceed $50. 

Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability. Accordingly, only the above limitations which are lawful in your jurisdiction will apply to you and resilience’s liability will be limited to the maximum extent permitted by law. 

12. Notice 

You agree that Resilience may provide You with notices, including those regarding changes to these Terms, by email or postings to the Services. 

13. Termination 

You may discontinue Your use of the Services at any time. You agree that Resilience may at any time and for any reason, including a period of account inactivity, terminate Your access to the Services, terminate these Terms, or suspend or terminate Your account. In the event of termination, Your account will be disabled and You may not be granted access to the Services, Your account or any files or other content contained in Your account. Sections 3 (Protected Health Information), 8 (Disclaimer of Warranties), 9 (Indemnity), 10 (Release), 11 (Limitation of Liability) and 14 (Miscellaneous) of these Terms will survive expiration or termination. 

14. General   

Conflict with Laws. If a provision of these Terms conflicts with a requirement of applicable laws, the conflicting provision of these Terms will be inoperative to the extent of the conflict. 

Conflict with Services Agreement. Unless expressly indicated otherwise,  if as part of the provision of Services, You have entered into a Master Services Agreement (“MSA”) with Resilience and a provision of the MSA is inconsistent or conflicts with a provision of the Terms of this agreement, the conflicting or inconsistent provision in the Terms in this agreement will be inoperative to the extent of the conflict. 

Applicable Laws. You are responsible for compliance with all applicable laws. 

Entire Agreement. These Terms (including any policies, guidelines or amendments that may be presented to You from time to time) constitute the entire agreement between You and Resilience and govern Your use of the Services. 

Injunctive Relief. You acknowledge that We have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of Your obligations hereunder. 

Choice of Law and Forum. These Terms are governed by the laws of the Province of British Columbia, Canada without regard to its conflict of law provisions. You agree to submit to the exclusive jurisdiction of the courts located within the City of Vancouver, Province of British Columbia, Canada to resolve all disputes. 

Waiver and Severability of Terms. The failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. 

Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action by You arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. 

The section headings in these Terms are for convenience only and have no legal or contractual effect. 

Last Updated April 12, 2021.