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MUTUO SOFTWARE AGREEMENT
THIS AGREEMENT is made as of (the “Effective Date”)
BETWEEN:
Mutuo Health Solutions Inc.
(“Mutuo Health”)
29 Howard Park Avenue
Toronto, Ontario M6R 1V3
– and –
(the “Customer”)
Each of Mutuo Health and the Customer shall individually be referred to as a “Party” and jointly as the
“Parties.”
WHEREAS Mutuo Health is the developer and owner of AutoScribe, a proprietary desktop software-as-a-
service solution used to support clinicians in their clinical documentation;
WHEREAS Mutuo Health provides various services, information, features and functionality through
AutoScribe (collectively, the “Service”);
WHEREAS the Customer is ;
AND WHEREAS the Customer desires to provide the Service for use by Health Care Practitioners
associated with the Customer, and Mutuo Health has agreed to make the Service available for the
Customer to provide it to such Health Care Practitioners on the following terms and conditions;
NOW THEREFORE, in consideration of the promises, covenants and agreements herein contained, the
Parties agree as follows:
I. DEFINITIONS
“Agreement” means this Mutuo Health Software Agreement, all schedules attached hereto, each Order
Form and any other document incorporated by reference herein.
“Authorized User” means the Health Care Practitioner or Customer Staff authorized by the Customer to
use the Service.
“Documentation” means any and all manuals, instructions and other documents and materials that Mutuo
Health provides or makes available to Customer Staff or Health Care Practitioners in any form or medium
which describes the functionality, components, features or requirements of Service, including any aspect
of the installation, configuration, integration, operation, use, or support thereof.
“Health Care Practitioner” means a registered health care professional (including, without limitation, a
physician or nurse) who is provided clinic services, IT systems, staff and other supports by the Customer.
“Customer” means the signatory of this Agreement and payor of the Service subscription. In some cases,
the Customer will also be the Health Care Practitioner.
“Customer Data” means any data, information, content, records, and files that the Customer or any of its
Users loads, receives through, transmits to or enters into the Service.
“Customer Staff” means employees or agents of the Customer who assist with the administrative
functioning of the Customer.
“IP Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or
hereafter in existence under or related to any patent, copyright, trade-mark, trade secret, database
protection or other intellectual property rights laws, and all similar or equivalent rights or forms of
protection, in any part of the world.
“Applicable Laws” means all laws, statutes, ordinances, regulations, by-laws and directions, orders, and
rules of all governmental authorities having the force of law, including but not limited to compliance with
the privacy obligations and guidelines of Canada’s Personal Information Protection and Electronic
Documents Act and Ontario’s Personal Health Information Protection Act, and other obligations,
conditions attached to certificates and permits, adherence to applicable standards, guidance and orders,
judgments, and findings of relevant regulatory bodies.
“Modifications” means modifications, improvements, customizations, updates, enhancements,
aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a
corresponding meaning.
“Order Form” means an order schedule, a sales quote, a SOW, or any other document confirming the
Service to be purchased by the Customer, any applicable Subscription Periods, in each case, as signed by
the duly authorized representatives of both Parties. [Each applicable and current Order Form will be
attached to this Agreement and incorporated herein by reference]
“Patient” means the person who is seeking health care treatment from the Health Care Practitioner who
is affiliated with the Customer covered by this Agreement.
“Permitted Use” means use of the Service by a User for the benefit of the Customer in the ordinary course
of its internal business operations.
“Personal Health Information” or “PHI” means Personal Health Information as defined in Ontario’s
Personal Health Information Protection Act (“PHIPA”) and other applicable provincial health privacy laws,
and/or Personal Information as defined in the applicable privacy laws of B.C., Alberta, and Quebec.
Generally, PHI means information about an identifiable individual that relates to their health or to the
provision of health care to them.
“SOW” means a statement of work setting out the details of the Professional Services to be provided by
Mutuo Health to the Customer.
“Subscription” means a subscription to access and use the Service and to receive support for the Service
for the Subscription Period, as evidenced by an Order Form.
“Subscription Period” means the time period of each Subscription as set out in an Order Form,
commencing upon the initial delivery of login credentials to the Service. If no time period is set out in the
Order Form, the Subscription Period shall be a twelve (12) month period.
“User” means any third party permitted by the Customer to use the Service, including Health Care
Practitioners and Customer Staff.
II. CUSTOMER OBLIGATIONS
1. The Customer shall:
a) mandate and ensure that all Health Care Practitioners who use the Service have read and signed
the End User License Agreement attached hereto as Exhibit “A” (“EULA”);
b) follow approved Mutuo Health procedures when training Customer Staff, in accordance with the
Documentation;
c) make such additional copies of the Documentation as the Customer reasonably requires for use
by the Users, provided that such copies will be owned by Mutuo Health and bear notices of Mutuo
Health’s ownership of copyright;
d) follow all reasonable instructions given by Mutuo Health from time to time with regard to the use
of the Service and the Documentation by Users; and
e) permit Mutuo Health, or its agent, at all reasonable times and at Mutuo Health’s expense, to
verify that the use of the Services and the Documentation by the Customer and the Users is in
accordance with the terms of this Agreement.
2. Mutuo Health shall:
a) carry out the Service in compliance with the requirements of this Agreement and all
Applicable Laws and any terms and requirements as set out in the Privacy Policy with
respect to the provision of the Service;
b) conform to generally accepted industry practices, and perform the Service in a
professional, skillful, timely and careful manner;
c) notify the Customer, as soon as reasonably possible, of any situation which affects the
ability of Mutuo Health to complete the Service or of any defects in workmanship, errors,
omissions, unauthorized access to or disclosure of Confidential Information (as defined
below) that is collected, transferred, accessed or maintained by Mutuo Health in the
course of providing the Service or thereafter, or mistakes in the Service, and shall take all
reasonable and necessary steps to mitigate such situation;
d) have appropriate security and data confidentiality protections in place that comply with
Applicable Laws with respect to the provision of the Service;
e) conduct and take accountability for any and all risk assessments as necessary with respect
to the Service to identify and mitigate security threats and risks associated with the
provision of the Service provided hereunder.
III. THE SERVICE
1. Subject to the Customer’s compliance with the terms and conditions of this Agreement and any
applicable Order Form, Mutuo Health will make the Service for which Mutuo Health has received
payment of the corresponding Fees available to the Customer for use by the Customer and all Users
during the Subscription Period.
2. The Customer will ensure that all Health Care Practitioners who will use the Service have entered into
the End User License Agreement attached hereto as Exhibit “A”.
3. The Customer must not itself, and will not permit others (including Authorized Users and Users) to:
a) copy the Service, in whole or in part;
b) license, sub-license, sell, resell, transfer, assign, rent, lend, lease, publish, transfer, distribute, or
otherwise commercially exploit or make available to any third party in any way, the Service or any
intellectual property rights therein;
c) use or access the Service in violation of any applicable law or intellectual property right, in a
manner that threatens the security or functionality of the Service, or for any purpose or in any
manner not expressly permitted in this Agreement;
d) bypass or breach any security device or protection used for or contained in the Service or
Documentation;
e) use the Service to create, collect, transmit, store, use or process any Customer Data: (i) that
contains any computer viruses, worms, malicious code, or any software intended to damage or
alter a computer system or data; (ii) that the Customer does not have the lawful right to create,
collect, transmit, store, use or process; or (iii) that violates any applicable Laws, or 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);
f) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvement
of the Service;
g) reverse engineer, de-compile, decode, disassemble or adapt the Service or otherwise attempt to
drive or gain access to the source code of the Service, in whole or in part;
h) remove, delete, efface, alter, translate, combine, supplement, obscure or otherwise change any
trade-marks, terms of the Documentation, warranties, disclaimers, proprietary notices, labels, or
IP Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to
any version and copy of the Service and Documentation, including brand, copyright, trademark
and patent or patent pending notices;
i) access or use the Service for the purpose of: (i) benchmarking or competitive analysis of the
Service; (ii) developing, using, providing or building a similar or competitive product or service; or
(iii) any other purpose that is to Mutuo Health’s detriment or commercial disadvantage;
j) perform any vulnerability, penetration or similar testing of the Service; or
k) use the Service and Documentation other than for the Permitted Use or in any manner or for any
purpose or application not expressly permitted by this Agreement.
4. At any time during the Subscription Period, Mutuo Health may, at its discretion:
a) monitor the Customer’s access to or use of the Service for the purpose of operating the Service,
ensuring compliance with this Agreement, or complying with applicable law or the order or
requirement of a court, administrative agency, or other governmental body;
b) with reasonable advance notice, suspend the Customer’s access to or use of the Service or any
component thereof for scheduled maintenance, if the Customer violates any provision of this
Agreement, or to address any emergency security concerns; and
c) provide notice if the Customer violates any provision of this Agreement and, if the Customer fails
to cure such violation within ten (10) days of said notification, suspend the Customer’s access to
the Service; and
d) modify the Service. For greater certainty, The Customer is required to accept all patches, bug fixes
and updates made by or on behalf of Mutuo Health to the Service.
5. The Customer agrees that it is responsible for protecting the security and integrity of the login
credentials of its Authorized Users and Users. The Customer agrees that it is responsible for all actions
taken by its Authorized Users and Users and is liable for any acts or omissions by them, whether
authorized or not, in the Service. Authorized Users and Users shall not gain, or attempt to gain, or
permit any third party to gain, unauthorized access to the Service or use the Service in an
unauthorized manner. The Customer shall use commercially reasonable efforts to prevent and stop
any unauthorized access and shall immediately report any suspected or known unauthorized access
or use of the Service.
IV. OWNERSHIP, RESERVATION OF RIGHTS
6. The Customer retains all ownership and intellectual property rights in and to Customer Data and all
custodianship of Personal Health Information contained in the Customer Data. The Customer grants
to Mutuo Health a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use,
process and transmit Customer Data, including Personal Health Information, for the purpose of
providing the Service.
7. Mutuo Health may collect and analyze data and other information relating to the provision, use and
performance of the Service and related systems and technologies (including, without limitation,
Customer Data, Personal Health Information contained in Customer Data, and data derived
therefrom), and during and after the term of this Agreement, Mutuo Health may:
a) use such information to improve and enhance the Service and for other development, diagnostic
and corrective purposes in connection with the Service and other Mutuo Health offerings except
where prohibited by applicable law;
b) use and disclose such data solely in aggregated or other de-identified form in connection with its
business except where prohibited by applicable law; and
c) access, use and disclose such data and information as required by applicable law.
8. Mutuo Health or its licensors retain all ownership and intellectual property rights in and to the Service,
anything developed or delivered by Mutuo Health under this Agreement, and any Modifications to
the foregoing.
9. All rights not expressly granted by a Party to the other Party under this Agreement are reserved by
Mutuo Health.
10. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this
Agreement grants, by implication, waiver, estoppel or otherwise, to the Customer, an Authorized
User, or any third party, any IP Rights or other right, title or interest in or to any of the Service or
Documentation.
V. PRIVACY AND SECURITY
11. The Customer shall ensure that it has obtained all necessary consents and permissions to use all
Customer Data, including, without limitation, any Personal Health Information within the Customer
Data, entered into or transmitted through the Service. Mutuo Health has no obligation to monitor any
Customer Data.
12. The Parties agree to conform to the requirements of any applicable Canadian local, provincial or
federal privacy legislation, laws or regulations as they relate to the Service.
13. The Customer acknowledges that all Customer Data, including Personal Health Information, entered
into or transmitted through the Service will be treated in accordance with applicable laws and Mutuo
Health’s privacy policy, as updated from time to time.
14. Mutuo Health represents, warrants and covenants that it maintains appropriate safeguards to help
protect the confidentiality, integrity, and availability of the Customer Data, including Personal Health
Information contained within it.
15. In the event of any loss of, unauthorized access to, or unauthorized use or disclosure of Personal
Health Information, Mutuo Health shall: immediately notify the Customer; investigate the incident
and provide the Customer with information about the incident within a reasonable time; and take
commercially reasonable actions to mitigate the effects and to minimize any damage resulting from
the incident.
16. If Mutuo Health gains unauthorized access to Customer Data under this Agreement, Mutuo Health
shall: immediately notify the Customer; if Customer Data has come into the possession of Mutuo
Health, securely return all copies of such Customer Data to the Customer and, if applicable, ensure
that such Customer Data has been permanently removed from any media or hardware on which it
was stored; and hold such Customer Data in the strictest confidence and ensure that its employees,
contractors and agents hold it in the strictest confidence.
17. If there is a conflict or inconsistency between the terms of this Agreement and the terms of the Mutuo
Health Privacy Policy, the terms of this Agreement will prevail.
VI. FEES AND PAYMENT
18. The Customer will pay to Mutuo Health the fees set forth in each applicable Order Form or SOW
(collectively, “Fees”) in accordance with the terms set out therein. Except as otherwise specified in an
Order Form or SOW, all Fees are identified in Canadian Dollars.
19. Except as otherwise specified in an Order Form, Subscription fees are based on Service purchased and
not actual usage; and payment obligations are non-cancellable and fees paid are non-refundable.
20. The Customer will set up with Mutuo Health an automatic payment plan (either via bank account
withdrawal or credit card) that will pay the fees, as specified in an Order Form, on the first of the
month.
21. Fees do not include applicable sales and use taxes. The Customer will be responsible for and pay all
applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including
interest and penalties imposed thereon) on the transactions contemplated in connection with this
Agreement, other than taxes based on the net income or profits of Mutuo Health.
VII. CONFIDENTIAL INFORMATION
22. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will
be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential
Information” means information marked or otherwise identified in writing by a Party as proprietary
or confidential, or information that, under the circumstances surrounding the disclosure, Recipient
should recognize as being confidential; provided that Discloser’s Confidential Information does not
include:
a) information already known or independently developed by Recipient without access to Discloser’s
Confidential Information;
b) information that is publicly available through no wrongful act of Recipient; or
c) information received by Recipient from a third party who was free to disclose it without
confidentiality obligations.
23. Recipient hereby agrees that during the term of this Agreement and at all times thereafter it will not:
a) disclose Confidential Information of the Discloser to any person, except to its own personnel or
affiliates having a “need to know” and that have entered into written agreements no less
protective of such Confidential Information than this Agreement, and to such other recipients as
the Discloser may approve in writing;
b) use Confidential Information of the Discloser except to exercise its license rights or perform its
obligations under this Agreement; or
c) alter or remove from any Confidential Information of the Discloser any proprietary legend.
24. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information.
Those precautions will be at least as great as the precautions that the Party takes to protect its own
Confidential Information of a similar type.
25. Notwithstanding the above, Recipient may disclose Discloser’s Confidential Information:
a) to the extent that such disclosure is required by applicable law or by the order of a court or similar
judicial or administrative body, provided that, except to the extent prohibited by law, Recipient
promptly notifies Discloser in writing of such required disclosure and cooperates with Discloser
to seek an appropriate protective order;
b) to its legal counsel and other professional advisors if and to the extent such persons need to know
such Confidential Information in order to provide applicable professional advisory services in
connection with the Party’s business; or
c) in the case of Mutuo Health, to potential assignees, acquirers or successors of Mutuo Health if
and to the extent such persons need to know such Confidential Information in connection with a
potential sale, merger, amalgamation or other corporate transaction involving the business or
assets of Mutuo Health.
VIII. WARRANTY, DISCLAIMER, INDEMNITY
26. The Customer represents and warrants to, and covenants with, Mutuo Health that Customer Data will
only contain Personal Health Information in respect of which the Customer and/or its Authorized User
has provided all notices and disclosures, obtained all applicable consents and permissions, and
otherwise has all authority, in each case as required by applicable laws, to enable Mutuo Health to
provide the Service, including with respect to the collection, storage, access, use, disclosure and
transmission of Personal Health Information, including by or to Mutuo Health and to or from all
applicable third parties.
27. Mutuo Health does not warrant that the Service will be uninterrupted or error free or that all errors
can or will be corrected. Nor does it make any guarantee or warranty as to the results that may be
obtained from use of the Service. The Service (and any part thereof), and any other products and
services provided by Mutuo Health to the Customer (including all third-party products and services)
are provided “as is” and “as available”.
28. To the extent permitted by applicable law, Mutuo Health hereby disclaims all 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, Mutuo Health
expressly disclaims any representation, condition or warranty that: (1) any data or information
(including all third-party information) provided to the Customer in connection with the Customer’s or
any Authorized User’s use of the Service is accurate, or can or should be relied upon by the Customer
or Authorized User for any purpose whatsoever; (2) the Service will meet the requirements of the
Customer or Authorized User; (3) the Service will be free of viruses or other harmful components; (4)
the Service will function uninterrupted or will be timely, secure, error-free, or available at any
particular time or location; (5) any errors or defects will be corrected; or (6) any products, services,
information or other material purchased or obtained by the Customer through the Service will meet
the Customer’s or Authorized User’s personal expectations or be of a certain quality.
29. The Parties acknowledge that the following provisions have been negotiated by them and reflect a
fair allocation of risk and form an essential basis of the bargain and will survive and continue in full
force and effect despite any failure of consideration or of an exclusive remedy:
a) The Customer shall indemnify, defend, and hold harmless Mutuo Health from and against any and
all claims, costs, damages, losses, liabilities, obligations, actions, demands, and expenses
(including lawyers’ fees and costs) arising out of or in connection with the Customer’s or an
Authorized User’s: (1) violation or breach of this Agreement or any applicable law or regulation,
including applicable privacy laws; (2) violation of any rights of any third party, including any
patients whose clinical records are prepared with the support of the service; or (3) use or misuse
of the Service.
b) To the maximum extent permitted under applicable law, in no event will a Party be liable to the
other Party or any Authorized User for any: (i) special, exemplary, punitive, indirect, incidental or
consequential damages; (ii) lost savings, profit, data, use, or goodwill; (iii) business interruption;
(iv) costs for the procurement of substitute products or services; (v) personal injury or death; or
(vi) personal or property damage arising out of or in any way connected to this Agreement,
regardless of cause of action or the theory of liability, whether in contract, tort (including
negligence or gross negligence), or otherwise, and even if notified in advance of the possibilities
of such damages.
c) Notwithstanding any other provision in this Agreement, in no event will the total aggregate
liability of Mutuo Health to the Customer, in connection with or under this Agreement, whether
in contract, tort (including negligence or gross negligence), or otherwise, exceed the amount of
fees paid by the Customer for the Service in the prior six(6) month period immediately preceding
the event giving rise to the claim. For greater certainty, the existence of one or more claims under
this Agreement will not increase this maximum liability amount. In no event will Mutuo Health’s
third party suppliers have any liability arising out of or in any way connected to this Agreement.
IX. COMMENCEMENT, RENEWAL, TERMINATION, SURVIVAL
30. This Agreement will commence on the Effective Date and will continue until no Order Forms remain
in force and effect, unless terminated earlier in accordance with the terms of this Agreement.
31. Unless otherwise indicated in the applicable Order Form, Subscription Periods shall automatically
renew for one (1) year periods at the then current fee for the Service. The Service may be cancelled
at any time without notice prior to the expiration of the then-current Subscription Period.
32. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party
commits a material breach of any provision of this Agreement and fails within 30 calendar days after
receipt of notice of such breach to correct such material breach. Notwithstanding the foregoing, this
Agreement will terminate immediately upon:
a) the institution by or against either Party of insolvency, receivership or bankruptcy proceedings for
the settlement of the other Party’s debts;
b) either Party making an assignment for the benefit of creditors; or
c) either Party’s dissolution or ceasing to do business.
33. Upon termination of this Agreement, all rights, licenses and authorizations granted to the Customer
hereunder will immediately terminate and the Customer shall:
a) immediately cease all use of and other activities with respect to the Service and Documentation;
and
b) within seven (7) days destroy and permanently erase from all devices and systems the Customer
directly or indirectly controls, the Service, and the Documentation, including all documents, files
and tangible materials (and any partial and complete copies) containing, reflecting, incorporating
or based on any of the foregoing, whether or not modified or merged into other materials (except
that the Parties may keep such copies as may be reasonably required for business purposes, and
each Party shall return the other Party’s Confidential Information or, upon request, destroy such
Confidential Information and all copies thereof);
c) Mutuo Health shall immediately destroy and permanently erase all Customer Data, Personal
Health Information, and other identifiable personal information or data from all devices and
systems Mutuo Health directly or indirectly controls but may retain de-identified and/or
anonymized data only for the purposes set out in Section 6;
d) certify to Mutuo Health in a signed written instrument that it has complied with the requirements
under this section; and
e) promptly pay to Mutuo Health all outstanding Fees owing as of the date of termination.
34. The following Sections, together with any other provision of this Agreement which expressly or by its
nature survives termination or expiration, or which contemplates performance or observance
subsequent to termination or expiration of this Agreement, will survive expiration or termination of
this Agreement for any reason: Article 5 (Ownership; Reservation of Rights), Article 6 (Privacy), Article
7 (Fees and Payment), Article 8 (Confidential Information), Article 9 (Warranty; Disclaimer;
Indemnity), Article 10 (Limitation of Liabilities), Article 0 (Survival), and 0 (General Provisions). Article
4 (Ownership; Reservation of Rights), Article 5 (Privacy and Security), Article 6 (Fees and Payment),
Article 7 (Confidential Information), Article 8 (Warranty; Disclaimer; Indemnity), Article 9
(Commencement, Renewal, Termination, Survival), Article 10 (Use of Logo), and Article 11 (General
Provisions).
X. USE OF LOGO
35. The Customer grants to Mutuo Health the express right to use the Customer’s company logo in public
facing marketing, sales, and public relations materials and other communications solely to identify
the Customer as Mutuo Health’s customer. Mutuo Health hereby grants to the Customer the express
right to use Mutuo Health's logo solely to identify Mutuo Health as a provider of services to the
Customer. Other than as expressly stated herein, neither Party shall use the other Party's marks,
codes, drawings or specifications without the prior written permission of the other Party.
XI. GENERAL PROVISIONS
36. Notice. Notices sent to either Party will be effective when delivered in person or by email, one day
after being sent by overnight courier, or five days after being sent by first class mail postage prepaid
to the official contact designated by the Party to whom a notice is being given. Notices must be in
writing and sent:
a) if to Mutuo Health, to the address set forth on the signature page to this Agreement
b) if to the Customer, to the address set forth on the signature page to this Agreement.
37. Changes in contact information. Either Party may change its contact information by providing the
other Party written notice of the Party’s new contact information.
38. Assignment. Neither Party will assign this Agreement to any third party without the other Party’s prior
written consent. Notwithstanding the foregoing, either Party may assign its rights or obligations under
this Agreement, in whole or in part, without the other Party’s consent, in connection with the transfer
or sale of all or substantially all of the Party’s business or assets to a third party, whether by merger,
sale of stock, sale or donation of assets or otherwise. Any assignment in violation of this Section will
be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted
successors and permitted assignees.
39. Governing law, forum, injunctive relief. This Agreement and any action related thereto will be
governed by and construed in accordance with the substantive laws of the Province of Ontario and
the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties
will initiate any lawsuits in connection with this Agreement in the city of Toronto. The U.N. Convention
on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of
jurisdiction does not prevent Mutuo Health from seeking injunctive relief with respect to a violation
of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
40. Force Majeure. Mutuo Health will not be liable for delays caused by any event or circumstances
beyond its reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil
unrest, acts of terror, strikes or other labour problems (other than those involving Mutuo Health’s
employees), Internet service failures or delays, or the unavailability or Modification by third parties of
telecommunications or hosting infrastructure or third-party websites.
41. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction
to be illegal or unenforceable will be severed from this Agreement and all other provisions of this
Agreement will remain in full force and effect.
42. Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance
will not preclude enforcement of such provision on other occasions.
43. Independent contractor relationship. Mutuo Health’s relationship to the Customer is that of an
independent contractor, and neither Party is an agent, employee or partner of the other. Neither
Party will have, or represent to any third party that it has, any authority to act on behalf of the other
Party.
44. Entire agreement. This Agreement, together with any schedules, Order Forms and SOW’s that are
incorporated herein by this reference, constitutes the entire agreement between the Parties with
respect to the subject matter of this Agreement and supersedes all prior or contemporaneous
agreements, representations or other communications, whether written or oral.
45. Amendment. No amendment, supplement, modification, waiver, or termination of this Agreement
and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will
be binding unless executed in writing by the Party or Parties to be bound thereby.
46. Execution in counterpart. This Agreement may be executed by the Parties in separate counterparts,
all of which, when taken together, will constitute a single agreement among the Parties. Execution of
this Agreement by a Party may be evidenced by way of an emailed (by way of an Adobe Acrobat PDF
file) transmission of such Party’s signature, or by a photocopy of a Party’s signature, each of which
will constitute the original signature of such Party to this Agreement. Any Party who evidences its
signature of this Agreement by emailed PDF file shall, promptly following a request by any other Party,
provide an originally executed counterpart of this Agreement, but its failure to do so will not invalidate
this Agreement.
IN WITNESS WHEREOF, the Parties’ authorized representatives have executed this Agreement as of the
Effective Date.
MUTUO HEALTH SOLUTIONS INC.
Name:
Title:
Name:
Title:
For notice purposes:
Telephone No.:
[EXHIBIT A]
END USER LICENSE AGREEMENT
End User License Agreement
Effective Date
I. INTRODUCTION
Welcome to AutoScribe! AutoScribe is a desktop software application owned and operated by Mutuo
Health Solutions Inc. (“Mutuo Health”), a Canadian company. When used in this End User License
Agreement (“License Agreement”), the words “we,” “us,” and “our” refer to Mutuo Health.
AutoScribe uses hands-free speech recognition and artificial intelligence to help simplify time consuming
manual clinical documentation for physicians and other clinicians. All services provided by Mutuo Health,
including the services, information, features and functionality offered through AutoScribe, are referred to
in this License Agreement as the “Service.”
To use the Service, your clinic, hospital, or practice first needs to subscribe to the Service from Mutuo
Health. You will then be provided with an organizational account, which will be accessible to you and
other authorized users of the Service, in accordance with the terms of the subscription; the Service
Agreement between your clinic, hospital, or practice and Mutuo Health; and this License Agreement.
Please read this License Agreement carefully before using the Service. This License Agreement contains
important information regarding your use of the Service and affects your legal rights, remedies, and
obligations. It is a legal contract between Mutuo Health and you. You confirm that you possess the legal
right and capacity to understand and agree to this License Agreement. By accessing or using the Service,
you acknowledge that you have read, understand and agree to be bound by the terms of this License
Agreement, as amended from time to time. If you do not agree to the terms of this License Agreement, in
whole or in part, you are not permitted to use the Service.
II. USING THE SERVICE
Before each patient appointment
Prior to each patient appointment, either you or your clinic, hospital, or practice must ensure that the
patient provides a duly informed consent to the use of the Service. Obtaining informed consent from each
patient is solely the responsibility of you or your clinic, hospital, or practice, and is not the responsibility
of Mutuo Health. In the absence of such consent, you may not use the Service. As a resource, Mutuo
Health has prepared a sample AutoScribe Patient Consent, which may assist you or your clinic, hospital,
or practice in obtaining each patient’s informed consent to the use of the Service during their
appointment. The AutoScribe Patient Consent is provided as a resource and a courtesy only. Using the
AutoScribe Patient Consent is not a substitute for, and may not on its own be sufficient to ensure, a legally
valid informed consent discussion with the patient.
During the appointment
At the start of the appointment, if the patient has provided informed consent to the use of the Service,
you will log into AutoScribe and enter limited information about the patient in order to verify the patient’s
identity. After this, the Service will be ready for use.
With the support of voice recognition software and other technologies, the Service will generate the
following:
1. a draft clinical record of the appointment, which you will then review within the Service and
complete;
2. a transcript of the discussion between you and the patient during the appointment, which you
may review within the Service use as a resource when reviewing and completing your clinical
record; and
3. a patient information handout summarizing the discussion between you and the patient, which
you may print from the Service, review, revise as needed, and provide to the patient.
The draft clinical record, transcript, and patient information handout will be made available to you
through the Service at the conclusion of each appointment.
In addition, the Service will create an audio recording of the appointment, which, after the appointment
has concluded, will be used to confirm the correctness and completeness of the transcript of the
appointment.
All identifiable health information provided by and to you through the Service will be collected, used,
managed and disclosed in accordance with the AutoScribe Privacy Policy.
After the appointment
After the appointment, Mutuo Health staff will use the audio recording to confirm the correctness and
completeness of the transcript of the appointment. Our staff will also analyze each transcript using
machine learning to automate and support your clinical record keeping. Over time, each transcript will
“teach” the Service to generate more accurate draft clinical records. As the Service “learns” more about
your individual documentation, it will provide you with draft clinical records that more accurately reflect
the form and content of your documentation.
III. YOUR PATIENT CARE AND RECORD KEEPING OBLIGATIONS WHEN USING THE SERVICE
It is important that you understand what the Service does and does not do, and what your patient care
and record keeping obligations are when you use the Service. Please read the following carefully.
The draft clinical record that the Service generates in respect of each patient appointment is not a legally
valid clinical note and you may not rely on it as such. It does not replace your own approach to clinical
record keeping. It is only a resource that you may use in creating your own accurate, complete,
comprehensive, professionally appropriate clinical record.
The Service does not evaluate and is not responsible for the accuracy, completeness, comprehensiveness,
professional appropriateness, or overall quality of the final clinical record that you complete and
authorize. Nor does the Service assess whether your completed and authorized clinical record complies
with your legal and professional licensing requirements.
The Service generates the patient information handout as a resource to you, should you wish to provide
your patient with written information about the appointment. If you choose to provide the handout to
your patient, you must first review the handout and revise it as needed prior to providing it to the patient.
IV. YOUR LICENSE TO USE THE SERVICE
Subject to the terms and conditions of this License Agreement and any applicable third-party license
conditions, Mutuo Health hereby grants you a limited, non-exclusive, non-transferrable, non-assignable,
revocable, terminable, personal license to use the Service in strict accordance with the terms of this
License Agreement, and Mutuo Health reserves all other rights. For greater certainty, this license does not
grant you any rights with respect to any third party applications and/or products.
You agree that you will not distribute or make AutoScribe available over a network where it could be used
by multiple devices at the same time. you may not transfer, redistribute or sublicense the Service and, if
you sell your electronic device to a third party, you must remove AutoScribe from the device before doing
so. you may not copy, reverse-engineer, disassemble, attempt to derive the source code of, modify, or
create derivative works of AutoScribe or any part thereof (except and only to the extent that any foregoing
restriction is prohibited by applicable law or to the extent it may be permitted by the licensing terms
governing use of an open-sourced component included with AutoScribe). You may not use the Service in
a manner that could damage, disable, overburden or impair any Mutuo Health service, or the network
connected to any Mutuo Health service, or interfere with any other party’s use and enjoyment of any
services.
You acknowledge and agree that the Service is being licensed, not sold, to you by Mutuo Health or its
licensors and you will not acquire any ownership interest in AutoScribe. Mutuo Health retains all right,
title and interest in and to the Service and all intellectual property rights arising out of or relating to the
Service. There are no implied licenses granted in this license.
Mutuo Health may from time to time develop updates, upgrades, bug fixes and other modifications
(“Updates”) to improve the performance and usability of the Service. These Updates may be automatically
installed without providing any additional notice. By using the Service, you consent to such Updates.
V. PRIVACY
Any Personal Health Information that you provide or receive through the Service is protected by applicable
privacy laws in your jurisdiction, including, in Ontario, the Personal Health Information Protection Act,
2004. You acknowledge that you have read the AutoScribe Privacy Policy and hereby consent to the
collection, use and disclosure of Personal Health Information by Mutuo Health and its agents for the
purposes identified in the AutoScribe Privacy Policy. If you would like to contact us about privacy, please
email us at privacyofficer@mutuohealth.com.
VI. LIMITATION OF LIABILITY
You assume all risk with respect to the results and performance of the Service.
You or your clinic, hospital, or practice shall indemnify, defend, and hold harmless Mutuo Health from and
against any and all claims, costs, damages, losses, liabilities, obligations, actions, demands, and expenses
(including lawyers’ fees and costs) arising out of or in connection with any of the following by you: (1) any
violation or breach of this License Agreement or any applicable law or regulation, including applicable
privacy laws; (2) any violation of any rights of any third party, including any patients whose clinical records
are prepared with the support of the Service; or (3) any use or misuse of the Service.
To the maximum extent permitted by applicable law, in no event shall Mutuo Health be liable for any (i)
special, exemplary, punitive, indirect, incidental or consequential damages; (ii) lost savings, profit, data,
use, or goodwill; (iii) business interruption; (iv) costs for the procurement of substitute products or
services; (v) personal injury or death; or (vi) personal or property damage arising out of or in any way
connected to this License Agreement, regardless of cause of action or the theory of liability, whether in
contract, tort (including negligence or gross negligence), or otherwise, and even if notified in advance of
the possibilities of such damages.
In no event will Mutuo Health’s total aggregate liability in connection with or under the Software
Agreement, this License Agreement, or your use of, or inability to make use of, the Service exceed the
amount of fees paid by your clinic, hospital, or practice for the Service in the prior six (6) month period
immediately preceding the event giving rise to the claim. For greater certainty, the existence of one or
more claims under this agreement will not increase this maximum liability amount.
VII. WARRANTIES AND DISCLAIMER
Mutuo Health does not warrant that the Service will be uninterrupted or error free or that all errors can
or will be corrected. Nor does it make any guarantee or warranty as to the results that may be obtained
from use of the Service. The Service (and any part thereof), and any other products and services provided
by Mutuo Health are provided “as is” and “as available”.
To the extent permitted by applicable law, Mutuo Health hereby disclaims all 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, Mutuo Health expressly disclaims any
representation, condition or warranty that: (1) any data or information (including all third-party
information) provided in connection with your use of the Service is accurate, or can or should be relied
upon by you for any purpose whatsoever; (2) the Service will meet your requirements; (3) the Service will
be free of viruses or other harmful components; (4) the Service will function uninterrupted or will be
timely, secure, error-free, or available at any particular time or location; (5) any errors or defects will be
corrected; or (6) any products, services, information or other material purchased or obtained through the
Service will meet your personal expectations or be of a certain quality.
VIII. TERM AND TERMINATION
This license commences on the date that you access or use the Service and will continue until terminated
by you or Mutuo Health. Your rights under this license will terminate automatically if you fail to comply
with any of its terms. Upon termination, you will cease all use of the Service.
Without prejudice to any other rights, Mutuo Health may terminate this license at any time by giving you
notice of such cancellation, in which case you must destroy all copies of AutoScribe in your possession
and all of its documentation and cease and desist from any further use of the Service.
In addition, Mutuo Health may at any time suspend your access to the Service, if you are in breach of this
Agreement or using the Service in a manner that impairs the operation of the Service or that violates the
Mutuo Health Privacy Policy. You agree that we are not liable to you or any third party for any termination
of your access to AutoScribe.
IX. ADDITIONAL LEGAL TERMS
You may not change this License Agreement in any manner. Mutuo Health reserves the right, at its sole
discretion, to change, add or remove portions of this License Agreement at any time without incurring any
liability or obligation. Using the Service after Mutuo Health makes changes to the License Agreement
means you agree to and accept the revised License Agreement.
The Service is operated by Mutuo Health from its offices within the Province of Ontario, Canada. You agree
that all matters relating to this License Agreement, or your access or use of the Service and its content,
shall be governed by and construed in accordance with the substantive laws of the Province of Ontario
and the federal laws of Canada applicable therein, without regard to conflict of laws principles. You agree
and hereby submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to all
matters relating to your access and use of the Service and the content as well as any dispute that may
arise therefrom.
Mutuo Health’s failure to exercise or enforce any right or provision of this License Agreement shall not
constitute a waiver of such right or provision.
The invalidity or unenforceability of any provision of the License Agreement or any covenant contained
herein shall not affect the validity or enforceability of any other provision or covenant contained herein
and any such invalid provision or covenant shall be deemed severable from the rest of the License
Agreement.
If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you
have full legal authority to bind your employer or such entity to this License Agreement; (ii) you have read
and understand this License Agreement; and (iii) you agree to this License Agreement on behalf of the
party that you represent. If you do not have the legal authority to bind your employer or the applicable
entity please do not use the Service. PLEASE NOTE THAT IF YOU SIGN UP FOR A CLOUD PRODUCT USING
AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO
REPRESENT SUCH PARTY, (B) YOUR ACCEPTANCE WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THIS
LICENSE, AND (C) THE WORD “YOU” IN THESE LICENSE WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.
CONTACT US:
If you have any questions about this License Agreement, please contact us at
privacyofficer@mutuohealth.com
☐ I have read, understood and agree to this License Agreement and Mutuo Health’s Privacy Policy
LICENCEE MUTUO HEALTH SOLUTIONS INC.