TERMS OF SERVICE
Flöka – Terms of Use CalendHer Technologies Corp., the entity behind Flöka (“Flöka”), together with our affiliates and distributors (collectively referred to herein as “our”, “us”, or “we”) own and operate the website located at www.flöka.co (“Website”), the Flöka mobile and web platform application (“App”), the Flöka virtual care services offered by Practitioners (defined below) through the App (as described in more detail below), Content (defined below), and all other content and services provided by us through the Website or App (collectively with the Website and App, the “Flöka Services”).
These terms of use (“Terms”) are a legal agreement between you and Flöka. The term “User” refers to the Flöka end user browsing, using, or receiving any services through the Flöka Services and the terms “you” or “your” refers to both Users and Practitioners. By accessing and using the Flöka Services, you indicate your acceptance of these Terms. If you do not accept these Terms, then do not use the Flöka Services.
Please note that if you are a Practitioner, your use of the Flöka Services will be governed by these Terms, but your provision of Practitioner Services (defined below) will be subject to additional terms between you and Flöka, including but not limited to a practitioner agreement (“Practitioner Agreement”). In case of conflict between these Terms and a Practitioner Agreement, the terms of the Practitioner Agreement shall govern to the extent of the conflict.
These Terms ay be amended or updated by Flöka from time to time at Flöka’s sole discretion. If we make changes to these Terms, we will notify you by posting a notice on the Website or App or sending you an email (as appropriate). Any revisions to these Terms shall become effective thirty (30) days following posting of the notice and your continued use of Flöka Services thereafter shall constitute your acceptance of the revised Terms. If you do not agree to any the revisions, you may not use the Flöka Services.Subject to Section 2(e) below, the collection, use and disclosure of your personal information (“PI”) and personal health information (“PHI”) is governed by the Flöka Privacy Policy, the latest version of which can be found at https://www.floka.co/privacy
NOTE ABOUT THE PRACTITIONER SERVICES: FLÖKA ENABLES PRACTITIONERS TO CONNECT WITH USERS REQUIRING PRACTITIONER SERVICES AND ALLOWS USERS AND PRACTITIONERS TO MANAGE THEIR INTERACTIONS WITH ONE ANOTHER VIA THE APP. PRACTITIONERS, NOT FLÖKA, ARE RESPONSIBLE FOR THE PROVISION, QUALITY, APPLICABILITY, AND RELIABILITY OF PRACTITIONER SERVICES PROVIDED BY THAT PRACTITIONER.
NOTE ABOUT THE FLÖKA SERVICES: DO NOT USE THE FLÖKA SERVICES FOR MEDICAL EMERGENCIES. IF YOU HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY OR ATTEND THE EMERGENCY ROOM OF YOUR NEAREST HOSPITAL OR HEALTH CENTRE. THE FLÖKA SERVICES ARE NOT SUBSTITUTES FOR THE ADVICE AND MEDICAL CARE OF A PRIMARY DOCTOR OR HEALTHCARE PROVIDER. UNDER NO CIRCUMSTANCES SHOULD USERS ATTEMPT SELF-TREATMENT BASED ON ADVICE OR CONTENT THAT A USER RECEIVES OR ACCESSES VIA THE FLÖKA SERVICES (INCLUDING PRACTITIONER SERVICES).
1. The Flöka Services.
a. The App. The App enables Users to manage their wellness and health by tracking their menstrual cycle, sleep, exercise, nutrition, and other health and wellness-related data. The App may make personalized suggestions for activities, vitamins, nutritional supplements, fitness, sleep, cognition, mood, skin care products, and other health-related improvements for Users. Users may input information manually or may choose to use third-party applications that integrate with Flöka (each such app, a “Third-Party Integration”) and sync information from the Third-Party Integration to their Flöka Account (defined below).
b. Practitioner Services. The App also enables Users to connect with wellness and healthcare practitioners (“Practitioners”) who provide Practitioner Services and informational wellness and health-focused content (“Content”) to Users. Practitioner Services include, without limitation, personalized User sessions where Practitioners may offer counselling, training, Content, and information about wellness and health based on the User’s needs and Flöka Account information (including but not limited to PI or PHI, as applicable).
2. Practitioner Services.
a. General. The Practitioner Services can enable Users to connect to Practitioners via the App to receive wellness or health consultations based on information available to the Practitioner (including but not limited to PI and PHI shared with your Practitioner via your Flöka Account), to receive access to Content, and to receive general information about wellness or health needs (collectively, “Practitioner Services”). Practitioner Services may include a Practitioner providing an assessment, offering a diagnosis or suggested course of treatment, or ordering a prescription through a Third-Party Integration, as appropriate. For clarity, Practitioner Services are provided directly by the applicable Practitioner and are not provided by Flöka.
b.Practitioners. All Practitioners are independent from Flöka, and Users may connect with Practitioners at their sole discretion. Users are responsible for ensuring that they are satisfied with the identity, qualifications, and suitability of Practitioners for their applicable needs. While Flöka may make reasonable efforts to verify the identity of Practitioners, we cannot make any representation or warranty to any User on the identity, qualifications, or suitability of any Practitioner. Some Practitioners may be independent, regulated health professionals registered to provide certain health services in one or more provinces or territories in Canada. Practitioners may be located and/or licensed to provide Practitioner Services in the province or territory in which you reside, or another province or territory in Canada or abroad, as permitted by their regulatory authority. Users may be able to find information about Practitioners on their governing body’s website (as applicable).
c. Consent. Practitioners are responsible for obtaining informed consent for (i) any aspect of the Practitioner Services requiring a User’s consent, as determined by the Practitioner at their sole discretion; and (ii) any consents required for Practitioner to enable Third-Party Integration syncing of a User’s PI or PHI with the App. Users are encouraged to ask questions of the Practitioner regarding any wellness or health suggestions, courses of treatment, or medications recommended by Practitioners. If Users are not satisfied with the explanation or information provided by the Practitioner, they should seek a second opinion from a licensed specialist or a physician. Users have the right to refuse or withdraw consent to any Practitioner Services treatment at any time.
d. No Guarantee of Outcome. Practitioners have the exclusive and sole authority to determine the scope of Practitioner Services they offer. For greater certainty, Users may discuss wellness and healthcare goals with a Practitioner and desired outcome from Practitioner Services; however, a Practitioner has no obligation to provide or tailor their Practitioner Services to meet a User’s desired outcome. For clarity, Flöka makes absolutely no representation or warranty regarding the outcome of any Practitioner Services.
e. Practitioner Services Disclaimer. Practitioner Services are intended for general educational purposes. Practitioners may provide information relating to a disease or condition that is not User specific and that does not include a diagnosis or treatment that pertains to a User’s situation. Practitioner Services do not replace consultations with qualified regulated health professionals, are not a substitute for having a family doctor or primary care provider providing care, and it is not a substitute for in-person health care interactions. Practitioners reserve the right to refuse to offer or stop offering Practitioner Services to a User for any given reason at the Practitioner’s sole discretion.
f. Your Privacy. While receiving Practitioner Services, the collection, use and disclosure of User PI and/or PHI by Practitioners is governed by the Practitioner’s own privacy policy. Furthermore, Practitioners may have to retain your PI and/or PHI off the App to comply with applicable rules and regulations which govern their profession. Flöka is not responsible in any way for how Practitioners may collect, use, disclose and retain User PI and/or PHI while providing Practitioner Services. We encourage Users to contact the applicable Practitioner to understand how a Practitioner may collect, use and disclose a User’s PI and/or PHI.
g. Relationship with Practitioner. A User’s use of the App to receive Practitioner Services neither establishes nor governs a relationship with any given Practitioner. Users acknowledge that we reserve the right to remove or add a Practitioner on the App, and we do not make any guarantees that a User can access a particular Practitioner and obtain their Practitioner Services each time the User uses the App. Flöka will not be responsible for any contact you choose to initiate with a Practitioner off the App or outside of the Practitioner Services.
3. Access and Use of the App
a. Flöka Account. To use the App, you will be required to create a Flöka account (“Flöka Account”). Practitioners wishing to open a Practitioner Flöka Account to provide Practitioner Services will be required to enter into a Practitioner Agreement. We permit you to enable login to your Flöka Account via a Third-Party Integration such as Apple, Google, or Meta. We reserve the right to (i) request PI and/or PHI from you during Flöka Account creation to enable us to verify your jurisdiction and identity; and (ii) refuse to allow you to open a Flöka Account; or (iii) prohibit a particular User to receive Practitioner Services, for any reason and at our sole discretion.
b. Account Security. You are responsible for keeping your Flöka Account credentials secure. We reserve the right to disable any Flöka Account (and consequently, disable access to any Content purchased through that Flöka Account) at any time in our sole discretion. In the event of a dispute regarding the Flöka Account owner, we reserve the right to request documentation to determine Flöka Account ownership, including but not limited to a government-issued ID. If we are unable to reasonably determine the rightful Flöka Account owner, Flöka reserves the right to temporarily disable a Flöka Account until resolution has been determined. If you think the security of your Flöka Account has been compromised, please contact us immediately.
c. App Store Terms. You may access the Flöka Services by downloading the App via a third-party application marketplace (each such marketplace, an “App Store”). You agree that you will only use the App: (i) on the branded device of the applicable App Store, if required by the App Store’s terms and conditions; and (ii) as permitted by any usage rules set forth in the applicable App Store’s terms of service. You acknowledge that these Terms are concluded between Flöka and you only, and App Store has no obligation or liability to you with respect to Flöka Services or these Terms. You acknowledge and agree that App Store is a third-party beneficiary to these Terms as it relates to the App Store’s provision of the App to you.
d. Mobile Device Terms. When you download or access the Flöka Services using a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply, and you will be solely responsible for paying any such fees.
e. Requirements for Use. You must be 18 years or older to use the Flöka Services. By using the Flöka Services, you guarantee that (i) you have reached the age of majority in your jurisdiction of residence, or you are the legal guardian of the individual using the Flöka Services and consent to their use of the Flöka Services; (ii) you possess the legal authority to create a binding legal obligation; and (iii) if you are accessing or using the Flöka Services on behalf of another person or a corporate entity, you have the authority to bind such person or entity to these Terms.
f. Conduct. You agree to refrain from abusive language or inappropriate conduct when communicating with anyone through the Flöka Services, and that you will conduct yourself at all times in a respectful manner.
4. Fees and Billing.
a. Fees. We do not charge Users fees for accessing, browsing, or using Flöka Services. Certain aspects of the Flöka Services, such as Content and Practitioner Services, may require Users to pay fees (“Fee”) to Practitioners to access and use such Content and Practitioner Services. Fees are set by and paid directly to Practitioners through the App. All Fees are non-refundable.
b. Billing. All Fees are due immediately by credit card and are processed using Stripe, our third-party payment processor. Stripe may collect or store your credit card, payment information, or PI and such collection is governed by Stripe’s terms of service or privacy policy, which you should review carefully.
5. Content. All Content and any information, data, or text that forms part of Content is provided to Users for informational purposes only. Flöka reserves the sole right to approve Content (in whole or in part) before such Content is made available to Users on the App. Flöka reserves the right to (i) ask a Practitioner to edit or modify Content; or (ii) remove or refuse to host or distribute any Content which we reasonably consider to be in breach of these Terms, applicable laws or our other policies. Flöka (a) makes no guarantee that Content provided by a particular Practitioner will be applicable to a User or a User’s situation; (b) does not guarantee the accuracy, integrity, or quality of Content; and (c) will not be liable in any way for any Content or a User’s reliance thereon, including, but not limited to any errors or omissions in Content.
6. Third-Party Offerings.
a. Third-Party Integrations. “Third-Party Integration” includes applications that sync health and wellness information to your Flöka Account (including but not limited to Apple Health or Fitbit) and applications we use to manage and provide the Flöka Services (including but not limited to Typeform or Meta). Any Third-Party Integration is governed by the terms and conditions of the respective Third-Party Integration, and you are solely responsible for determining those terms and conditions and complying with them. The use of a particular Third-Party Integration does not imply that Flöka endorses or accepts any responsibility for the content, services, or your use of such Third-Party Integration, and you hereby release Flöka from all liability and/or damages that may arise from your use or reliance on Third-Party Integrations. In no event shall any reference to any Third-Party Integration be construed as an approval or endorsement by Flöka of that Third-Party Integration. Flöka is also not responsible for the content available to you via Third-Party Integrations or for the delivery of any product or service offered by Third-Party Integrations. Flöka reserves the right to add to, prohibit or remove any Third-Party Integration capabilities, at any time and at Flöka’s sole discretion.
b. Third-Party Products. Users may receive recommendations for third-party products and services recommended by the App or Practitioners or see advertising for third-party products and services (collectively, “Third-Party Products”). Third-Party Products are governed by the terms and conditions of the respective Third-Party Product, and you are solely responsible for determining those terms and conditions and complying with them. Suggestions for Third-Party Product does not imply that Flöka endorses or accepts any responsibility for your use of such Third-Party Product, and you hereby release Flöka from all liability and/or damages that may arise from your use or reliance on Third-Party Products. Flöka does not warrant that Third-Party Products are complete, reliable, current, error-free, or applicable to your needs or situation.
7. Intellectual Property Rights.
a. User License. Subject to your compliance with these Terms, Flöka grants you a non-transferable, non-exclusive, limited license to (i) access and use the App and the Flöka Services available thereon; and (ii) download, install and use one copy of the App on a mobile device that you own or control for your personal use.
b. Reservation of Rights. The Flöka Services, including without limitation (i) any software or code embedded in or located on the App; and (ii) the information and materials (including Content) provided via the Flöka Services, are the property of Flöka and its licensors and are protected from unauthorized copying and dissemination by copyright law, trademark law, and other intellectual property laws. You acknowledge and agree that you have no right, license, or authorization with respect to any of the technology underlying the Flöka Services except as expressly set forth in these Terms. The App is licensed to you and not sold. Nothing in these Terms gives you a right to use the Flöka names, trademarks, logos, domain names, and other distinctive brand features without Flöka’s prior written consent.
c. User Content License. By sharing any information via the Flöka Services (including PIor PHI) or posting or displaying any comments or content (collectively, “User Content”)on or through the App, you grant Flöka (and our affiliated companies and our and theiragents) a non-exclusive, royalty-free paid-up, perpetual, irrevocable, transferable,worldwide license (with the right to sublicense) to use, copy, modify, transmit, display,distribute and otherwise exploit such User Content (i) to the extent necessary to providethe Flöka Services and meet our obligations to you; (ii) to create aggregated andanonymized statistics and insights; and (iii) to improve the Flöka Services. For clarity,“User Content” excludes Content and the terms governing a Practitioner’s rights withrespect to Content are set out in the Practitioner Agreement.
d. User Content Restrictions. You represent and warrant that you have all the rights, power, and authority necessary to grant the rights granted on these Terms to any User Content that you submit via the App. You are solely responsible for (i) obtaining all necessary licenses, permissions, and consents to ensure User Content can be shared with Flöka as contemplated herein; (ii) the accuracy, quality, integrity, legality, reliability, and appropriateness of User Content; and (iii) the consequences of submitting, posting, or publishing User Content via the App. Although Flöka does not monitor all User Content, we reserve the right to edit, modify or remove any User Content or refuse to host or distribute any User Content which we reasonably consider to be in breach applicable laws or our policies.
e. Feedback. If you provide Flöka with any suggestions, comments or other feedback relating to any aspect of the Flöka Services ("Feedback"), Flöka may use and incorporate such Feedback in the Flöka Services or in any other Flöka products or services (collectively, "Flöka Offerings"). Accordingly, you agree that: (a) Flöka is not subject to any confidentiality obligations in respect to the Feedback; (b) the Feedback is not Confidential Information of you or any third party and you have all of the necessary rights to disclose the Feedback to Flöka; (c) Flöka (including all of its successors and assigns and any successors and assigns of any of the Flöka Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any Flöka Offerings; and (d) you are not entitled to receive any compensation or re-imbursement of any kind from Flöka or any of the other users of the Flöka Services in respect of the Feedback.
f. Usage Data. We may collect and process certain statistical and technical information that is generated when you use the Flöka Services (“Usage Data”). You grant Flöka (and our affiliated companies and our and their agents) a non-exclusive, royalty-free paid-up, perpetual, irrevocable, transferable, worldwide license (with the right to sublicense) to use, copy, modify, transmit, display, distribute and otherwise exploit such Usage Data to (i) to create aggregate statistics; (ii) analyze market trends; (iii) develop or improve the Flöka Services or other Flöka products and services; and (iv) for benchmarking purposes.
8. Restrictions
a. Our Rights. Flöka reserves the right, at all times and at its sole discretion (but will have no obligation), to terminate or reclaim Flöka Accounts, or to limit a Flöka Account’s access to some or all aspects of the Flöka Services. We also reserve the right to access, read, preserve, and disclose any information available to us via the App or otherwise that we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of our users and the public.
b. User Restrictions. In using the Flöka Services, you shall not: (i) copy any materials or Content unless expressly permitted to do so herein; (ii) upload, transmit or otherwise make available any materials, Content, or User Content that: (I) are unlawful or invasive of another's privacy; (II) you do not have a right to make available under any law or under a contractual relationship; (III) contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Flöka Services, any computer software or hardware, telecommunications equipment, or that compromise anyone’s privacy; (IV) contain any falsehoods or misrepresentations or creates an impression that you know is incorrect, misleading, or deceptive, or (V) could damage or harm minors in any way; (v) impersonate any person or entity or misrepresent your affiliation with a person or entity; (vi) interfere with or disrupt the Flöka Services or servers or networks connected to the App, disobey any requirements, procedures, policies or regulations of networks connected to App, probe, scan, or test the vulnerability of any system or network, or breach or circumvent any security or authentication measures; (vii) intentionally or unintentionally violate any applicable local, state, provincial, national or international law or regulation; (viii) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Flöka Services; (ix) modify, translate, make derivative works of, disassemble, decompile, reverse compile or reverse engineer the App and any software provided as part of the Flöka Services, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (x) create more than one Flöka Account to circumvent the restrictions set out herein; and (xi) access the Flöka Services in a manner that utilizes the Flöka Services’ resources more heavily than would be the case for an individual person using the App on a conventional device.
9. DISCLAIMER.
a. GENERAL. THE FLÖKA SERVICES AND ALL INFORMATION AND MATERIALS PROVIDED THEREON ARE PROVIDED “AS-IS” AND FLÖKA DOES NOT WARRANT THAT THE FLÖKA SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, THAT FLÖKA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT RESULTS OBTAINED FROM FLÖKA SERVICES WILL BE ACCURATE OR RELIABLE, OR THAT ANY ERRORS IN THE APP WILL BE CORRECTED. IN ADDITION, FLÖKA SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY INFORMATION OR MATERIALS (INCLUDING BUT NOT LIMITED TO CONTENT, THIRD-PARTY INTEGRATIONS AND THIRD-PARTY PRODUCTS) ACCESSED, USED, RELIED ON OR OTHERWISE OBTAINED THROUGH THE FLÖKA SERVICES IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSSES OR DAMAGES THAT ARISE FROM ACCESSING, USING, RELYING ON OR OTHERWISE OBTAINING ANY SUCH INFORMATION OR MATERIALS. FLÖKA DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY THIRD-PARTY INTEGRATIONS AND THIRD-PARTY PRODUCTS, NOR FOR ANY PRACTIONER SERVICES. FLÖKA SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO OR SERVICE OR PRODUCT YOU MAY RECEIVE FROM A THIRD PARTY (INCLUDING WITHOUT LIMITATION ANY PRACTIONER) IN CONNECTION WITH A THIRD-PARTY INTEGRATION, THIRD-PARTY PRODUCT OR PRACTIONER SERVICES.
b. PRACTITIONER SERVICES DISCLAIMER. FLÖKA IN NO WAY REPRESENTS OR WARRANTS THE QUALITY OR APPLICABILITY OF PRACTITIONER SERVICES USERS MAY RECEIVE. FLÖKA IS NOT A PARTY TO ANY DISCUSSIONS BETWEEN ANY USER AND ANY PRACTITIONER, NOR DOES IT PROVIDE ANY OF THE PRACTIONER SERVICES. THE PRACTITIONER IS SOLELY RESPONSIBLE FOR (I) THE QUALITY OF PRACTITIONER SERVICES PROVIDED TO A USER; AND (II) MEETING ANY PROFESSIONAL AND/OR REGULATORY OBLIGATIONS THEY MAY HAVE TOWARDS A USER IN THE PROVISION OF PRACTITIONER SERVICES TO A USER. WITHOUT LIMITATION THE FOREGOING, FLÖKA IS NOT AND SHALL NOT AT ANY TIME BE RESPONSIBLE FOR THE PRACTITIONER SERVICES, INCLUDING WITHOUT LIMITATION: (i) ANY MEDICAL OR CLINICAL DIAGNOSIS, TREATMENT, OPINION, OR DECISION OR ANY FAILURE TO ACCURATELY MAKE OR COMMUNICATE THE FOREGOING; (ii) ANY MEDICAL RESULT OR OUTCOME ARISING OUT OF THE PRACTITIONER SERVICES; OR (iii) YOUR USE OR RELIANCE ON THE FLÖKA SERVICES.
10. LIMITATION OF LIABILITY. WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING BUT LIMITED TO FUNDAMENTAL BREACH), TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND PERSONAL INJURY), OR OTHERWISE, RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM: (I) THE PRACTITIONER SERVICES; (II) ANY ACCESS, USE, RELIANCE UPON OR INABILITY TO USE OR ACCESS THE FLÖKA SERVICES; (III) YOUR USE OR RELIANCE ON THIRD-PARTY SERVICES OR THIRD-PARTY INTEGRATIONS; (IV) THE ACTS, OMISSIONS, OR CONDUCT OF ANY THIRD-PARTY; (V) THE COST OF PROCURING SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES; OR (VI) ERRORS, MISTAKES, OR INACCURACIES IN THE FLÖKA SERVICES (INCLUDING BUT NOT LIMITED TO CONTENT AND THE APP). THESE LIMITATIONS SHALL APPLY EVEN IF FLÖKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, FLÖKA’S TOTAL LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS WILL AT ALL TIMES BE LIMITED TO FIFTY CANADIAN DOLLARS ($50). THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
11. INDEMNIFICATION.
a.EMNIFICATION BY YOU. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU SHALL INDEMNIFY AND HOLD FLÖKA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUCESSORS OR ASSIGNS (“INDEMNIFIED PARTIES”) HARMLESS FROM ALL CLAIMS, ACTIONS, PROCEEDINGS, DEMANDS, DAMAGES, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), RESULTING DIRECTLY OR INDIRECTLY FROM (I) AN ALLEGATION THAT ANY PART OF THE FLÖKA SERVICES INFRINGES UPON OR MISAPPROPRIATES INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; (II) INFORMATION (INCLUDING USER CONTENT) OR MATERIALS (INCLUDING CONTENT) SUBMITTED BY YOU VIA THE APP; (III) YOUR ACCESS TO, USE, MISUSE, RELIANCE UPON, OR INABILITY TO USE THE FLÖKA SERVICES AND ANY THIRD-PARTY INTEGRATION; (IV) YOUR USE OF, RELIANCE ON, OR DISTRIBUTION OF ANYTHING ON OR USING, THE APP (INCLUDING CONTENT); (V) PROVISION OF PRACTITIONER SERVICES AND ANY BREACH OF PRIVACY OR SECURITY INVOLVING USER PI OR PHI; (VI) YOUR BREACH OF THESE TERMS; OR (VII) YOUR VIOLATION OF ANY APPLICABLE LAW OR REGULATION OR THE RIGHTS OF A THIRD PARTY. FOR THE PURPOSES OF THIS SECTION 11(a), YOU ACKNOWLEDGE THAT FLÖKA IS ACTING AS AGENT AND TRUSTEE FOR INDEMNIFIED PARTIES.
b. Indemnification Conditions. Flöka will provide notice to you of any claim, suit, or proceeding requiring indemnification in accordance with Section 11(a). Flöka reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under Section 11(a), and you agree to cooperate with any reasonable requests assisting Flöka’s defense of such matter. Section 11 does not require you to indemnify Flöka for any unconscionable commercial practice by Flöka or for Flöka’s gross negligence, fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with the Flöka Services.
12. Termination.
a. Termination by Flöka. Flöka may, under certain circumstances and without prior notice, immediately terminate your ability to access or receive the Flöka Services or portions thereof. Cause for termination shall include, but not be limited to: (i) breaches or violations of these Terms which have not been cured within thirty (30) days of notice to you by us; (ii) requests by law enforcement or other government agencies; (iii) a request by you; (iv) discontinuance or material modification to Flöka Services (or any part thereof); (v) unexpected technical, security or legal issues or problems; or (vi) or any reason at our sole discretion. Any termination of your access to the Flöka Services by Flöka shall be in addition to any other rights and remedies that Flöka may have.
b. Result of Termination. Your rights to use and access the Flöka Services, including all licenses granted by Flöka to you herein, will end upon termination of your access to the Services. Termination of your access to the Flöka Services may also include removal of some or all of your User Content. Sections 2-6, 7(b)-(f), 8-11, 12(b), and 14-17 will survive termination of your access to the Flöka Services.
13. Availability & Updates. Flöka may alter, suspend, or discontinue the Flöka Services or add or update the information and materials on the Flöka Services at any time, for any reason, and at its sole discretion. The Flöka Services may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. We will use commercially reasonable efforts to make the Flöka Services available to you at all times except for: (i) planned downtime, including but not limited to maintenance; or ii) any unavailability caused by circumstances beyond Flöka’s reasonable control, including without limitation, malfunction of computer or network equipment, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, health pandemics, strikes or other labour problems.
14. Confidential Information.
a. Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) in connection with the Flöka Services, 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, including but not limited to PI and/or PHI, the terms and conditions of any Practitioner Agreement, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
b. Confidentiality; Protection. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party's prior written permission. The Receiving Party agrees to protect the Confidential Information of Disclosing Party in the same manner that it protects its own Confidential Information (but in no event using less than reasonable care).
c. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if the Disclosing Party wishes to contest the disclosure.
d. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of these Terms, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
15. Security. Information sent or received over the Internet is generally unsecure and Flöka cannot and does not make any representation or warranty concerning security of any communication to or from the Flöka Services, or any representation or warranty regarding the interception by third parties of PI, PHI, or other information you may submit to us via the Flöka Services.
16. Jurisdiction; Dispute Resolution.
a. Jurisdiction. Any dispute or claim arising out of or in connection with Flöka Services will be governed and interpreted by and under the laws of British Columbia, Canada without giving effect to any conflict of laws principles. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Vancouver, BritishColumbia with respect to any dispute or claim arising out of or in connection with theseTerms. The United Nations Convention on Contracts for the International Sale of Goodswill not apply to these Terms and is hereby expressly excluded.
b. Dispute Resolution. You and Flöka shall use all reasonable endeavors to discuss and resolve any dispute which may arise out of or in connection with these Terms. If you and Flöka cannot resolve the dispute within ten (10) business days, you and Flöka will attempt to settle it in good faith by mediation. To initiate mediation, either Flöka or you must give written notice requesting a mediation to the other party. A copy of the request should be sent to ADR Chambers. The mediation will take place in Vancouver, British Columbia and the language of the mediation will be English. The mediation shall be governed by and construed and take effect in accordance with the substantive law of British Columbia. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as you and Flöka may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (British Columbia), and arbitration proceedings shall take place in Vancouver, British Columbia before one (1) arbitrator. In the event you and Flöka are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. You shall bear your own legal costs in connection with a mediation and/or arbitration under these Terms.
c. Time Limitation. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Flöka Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
17. General. These Terms, together with any other agreements, documents and guidelines incorporating these Terms by reference, constitute the entire agreement between you and Flöka relating to the Flöka Services. If any part of these Terms is held to be unlawful, void, or unenforceable, that part shall be deemed severed and shall not affect the validity and enforceability of the remaining provisions. The failure of Flöka to exercise or enforce any right or provision under these Terms shall not constitute a waiver of such right or provision. Any waiver of any right or provision by Flöka must be in writing and shall only apply to the specific instance identified in such writing. You may not assign the Terms, or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise, without Flöka’s prior written consent. Flöka may assign these Terms without your consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Flöka’s business, shares or assets.