Terms and Conditions

Introduction

Phanexa is a marketplace platform that helps hirers meet their staffing needs and enables freelancers, whom we refer to as Locums, to make productive use of their available time. Phanexa is not a placement agency.

Article 1 — Interpretation and General Provisions

Definitions

In this Agreement, unless the subject matter or context requires otherwise, the following terms have the meanings set out below, and grammatical variations of those terms have corresponding meanings:

• "Additional Services" means any products or services supplied by a third party.
• "Agreement" means the contract between Phanexa and the Client, made up of the provisions set out in this document together with any Engagement Details relating to a specific Engagement.
• "Phanexa's Services" means any services offered by Phanexa.
• "Cancellation Fee" means the amount payable by the Client as a result of an unjustified cancellation.
• "Confidential Information" means all data and information relating to this Agreement, to client or patient records, and to the business and management of Phanexa Inc., including contracts, trade secrets, customer lists, pricing lists and modules, patents, trademarks and accounting records to which the Client has had access. Confidential Information does not include data or information that the receiving party can demonstrate: (i) was lawfully in its possession prior to disclosure by the disclosing party; (ii) must be disclosed pursuant to law or an order of a court of competent jurisdiction; or (iii) has been disclosed to a third party with the written consent of the disclosing party.
• "Client" means a person or entity that uses Phanexa's Services.
• "Days" means calendar days, including every day of the week; for the purposes of notification, the day on which a notice is sent is not counted.
• "Engagement" means the contractual relationship between a hirer and a Locum.
• "Force Majeure" means: (i) an act of God; (ii) hostilities, riots, civil unrest or acts of terrorism; or (iii) any act of a government or governmental agency, provided that such act is not the result of an unlawful act or omission of a Party.
• "Hirer" means a person who engages a service provider.
• "Introduction" means the fact that the Client, directly or indirectly, receives, views or obtains access — through Phanexa's Services — to any information identifying or relating to a person who may act as a Hirer or a Locum.
• "Locum" means a person who temporarily replaces another professional of the same field.
• "Parties" means Phanexa and the Client.
• "Party" has the same meaning as "Parties".
• "Person" includes any individual, corporation, limited liability company, partnership, joint venture, trust, governmental authority or other entity, whether or not incorporated, as well as any trustee, executor, administrator or other legal representative.
• "Unjustified cancellation" means any cancellation initiated by the Client.
• "Slot" means a vacancy posted by a hirer.
• "Transaction Taxes" means the Goods and Services Tax (GST), the Harmonized Sales Tax (HST) and any other applicable taxes.
• "Website" means any internet site operated by Phanexa.

Account

In order to access Phanexa's Services, the Client must first create a user account.

The Client may register directly online or through a social network by authorizing Phanexa to access the corresponding account in accordance with that network's rules.

The Client's user account is intended solely for the Client's personal use of Phanexa's Services. The Client may not hold more than one (1) active user account.

The Client undertakes to provide accurate, current and complete information during registration and to keep that information accurate, relevant and complete at all times thereafter.

Phanexa reserves the right to suspend or terminate the Client's user account and its access to Phanexa's Services if the Client creates more than one (1) user account or if any information supplied at registration or later turns out to be inaccurate, fraudulent, outdated or incomplete.

Clients are responsible for keeping their passwords safe and are fully responsible for any activity carried out through their account, whether or not such activity was authorized by them. If the Client becomes aware of, or reasonably suspects, any intrusion — including any theft, loss or unauthorized disclosure or use of a password — the Client must immediately notify Phanexa.

Article 2 — Content

Phanexa's Content

The Client acknowledges that Phanexa's Services contain content supplied by Phanexa, its partners or its users and that such content is protected by copyright, trademarks, service marks, patents, trade secrets and any other proprietary rights and laws.

The Client must respect every copyright notice, piece of information and restriction contained in any content accessed through the Services.

The Client may not sell, license, rent, modify, distribute, reproduce, copy, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from or otherwise exploit any content or third-party submission, or any other proprietary rights that the Client does not own, (i) without the consent of the relevant owners or another valid right, and (ii) in any manner that infringes the rights of a third party.

Where the relevant Site expressly allows it, the Client may download or copy content and other items displayed on the Sites solely for personal use, provided that all copyright notices and other notices included in that content are preserved. The Client may not store any significant portion of any content in any form. Copying or storing content for a purpose other than personal, non-commercial use is strictly prohibited without the prior written authorization of Phanexa or of the copyright holder identified in the relevant copyright notice.

Client Content

Phanexa may, at its sole discretion, allow comments, remarks, photos, text or other content (collectively, "Client Content") to be uploaded and published through the Application.

By submitting Client Content, the Client grants Phanexa an irrevocable, perpetual, non-exclusive, assignable and royalty-free license to copy, modify, display or otherwise use that Client Content.

The Client represents and warrants to Phanexa that: (i) the Client owns the Client Content or holds the written permission of the copyright owner to make the Client Content available through Phanexa's Services; (ii) the Client Content is accurate and correct; (iii) the Client has the authority to grant Phanexa the license described above; and (iv) the reproduction, display, distribution, use or other exploitation of the Client Content by Phanexa, its service providers, members, users and licensees pursuant to the foregoing license will not violate the rights of any third party or contravene any law.

Phanexa may refuse to publish, or may remove, any content it considers inappropriate on any ground, including because it is vulgar, offensive, defamatory, libellous, obscene, hateful or otherwise unlawful or objectionable.

Article 3 — Usage

Client's use of Phanexa's Services

The Client shall not:

• Disassemble, decompile or carry out any reverse-engineering operation — or any other operation — aimed at accessing the source code of Phanexa's Services.
• Copy Phanexa's Services, in whole or in part, use them for commercial purposes, rent them, offer them for rent, lend, sell or publish them, grant a license or sublicense over them, or distribute, assign or transfer them in any manner whatsoever to any person, whether in whole or in part.
• Upload to, or download from, the Application, or send through Phanexa's Services, any content, link or material which (if reproduced, published, sent or used) could: be defamatory, libellous, threatening, abusive, harassing, hateful, obscene, pornographic or otherwise violate, harm or interfere with the privacy of any person; breach any law, including intellectual-property or privacy laws; impersonate another person or mislead others about the identity of the author; give rise to civil or other liability; or be connected to illegal drugs, firearms, gambling or any other unlawful activity.
• Upload or transmit through Phanexa's Services any file, data, software or link that contains, or redirects users to, a virus, Trojan horse, computer worm or other harmful component.
• Use the Application to carry out, or attempt to carry out, any of the following without Phanexa's prior written authorization: send unsolicited e-mails, such as spam or mass mailings; gain unauthorized access to data, networks or systems; conduct or promote any business activity; monitor data or traffic on a network or system; obtain any e-mail address, username or other information about a third party without that person's consent; use any misleading or falsified TCP/IP header in any e-mail or posting; carry out or initiate any denial-of-service attack against Phanexa's website or network, or against the website or network of any third party; submit improper complaints or false reports through Phanexa's Services; falsify any data or information available on Phanexa's Services; delete or modify any copyright notice or other notice concerning intellectual-property rights over Phanexa's Services; bypass, circumvent or disable any secure technological access, security system, procedure, protocol or technological protection mechanism included in or related to Phanexa's Services, or the software or services of any third party; or authorize or encourage a third party to do any of the above.

Article 4 — Fees and Promotions

Phanexa's Fees

Phanexa's fees are included in the hourly rate.

Cancellation Fees

Cancelling a confirmed contract exposes the Client to fees of a minimum of $250. Where a cancellation is made less than 24 hours before the start of the shift, the penalty may, at Phanexa's discretion, reach up to 100% of the contract's value.

Any unjustified cancellation may also result in the Client's access to the Phanexa platform being withdrawn.

Transaction Taxes

The amounts referred to above are subject to applicable transaction taxes.

Late Payment Fees

The Client shall settle the invoice no later than the day of the mandate. The Client shall provide Phanexa with a post-dated cheque at least seven (7) days before the date of the mandate. Late payment fees of 1% per month, compounded daily, together with an administrative charge of $49.95, will be applied automatically.

Where the hirer is not satisfied with a Locum's performance, the hirer may request a replacement Locum at no cost and without any compensation owed to the outgoing Locum. Cancellation of the mandate is only available if no alternative Locum can be found to replace the outgoing Locum.

Promotions

Phanexa may cancel any promotion at any time. Promotions may be used only by the account to which they were granted and cannot be shared or transferred.

Article 5 — Non-Circumvention and Non-Solicitation of Hirers and Locums

General

Connecting Hirers and Locums (together, Clients) is central to Phanexa's business model, and maintaining a pool of Hirers and Locums is essential to Phanexa's core operations.

The Client represents and warrants that it will not attempt to circumvent, and will not circumvent, any communication or payment mechanism provided by Phanexa, including, but not limited to: (i) submitting proposals to, or soliciting, any Clients other than through Phanexa; or (ii) paying any fees relating to Phanexa's Services otherwise than to Phanexa as provided in this Agreement.

During the term of this Agreement and for a period of three (3) years following its termination, the Client represents and warrants that it will not pay Clients introduced to it outside the Phanexa marketplace platform, nor will it, directly or indirectly, solicit those Clients to provide services outside the Phanexa marketplace.

Breach

Should the Client breach the warranties set out in this section, the Client shall pay Phanexa a placement fee equal to the greater of:

• twenty-five percent (25%) of the equivalent estimated annual contract value of the Client; or
• $5,000.

Article 6 — Limitation of Liability

Phanexa shall not be liable for:

In no event shall Phanexa Inc. be liable for any direct, indirect or other damages of any nature arising from the use of its Services by any person or entity, or by any form of technical or technological equipment, whether such damages result from human or technical error occurring at any stage, or from problems or technical defects affecting electronic or communications networks, online computer systems, servers, computer equipment, software, data transmission or any other technical issue, internet congestion or any other circumstance.

Client Acknowledgments

The Client acknowledges that Phanexa does not supervise or control the actions of Hirers or Locums. Nothing in this Agreement shall be construed as creating an employer–employee relationship between Phanexa and any Client.

The Client agrees that Phanexa shall not be liable for any loss arising from:

• any failure to provide the Services;
• the negligent, wrongful, dishonest or fraudulent acts, omissions or misrepresentations of other Clients, including, without limitation, any lack of skill of a Client.

Client Acknowledgments (continued)

The Client further agrees that Phanexa shall not be liable for any loss arising from:

• the theft, destruction, deletion or damage of, or to, any data, computer systems or equipment by any Client;
• any loss of profit, business, revenue, goodwill or anticipated savings, or any claim made under a third-party contract, resulting from any failure by Phanexa to perform its obligations under this Agreement.

Article 7 — Governing Law

Governing Law

This Agreement shall be governed by, and interpreted in accordance with, the laws of the Province of Quebec. The Parties submit to the jurisdiction of the courts of the Province of Quebec for the purpose of resolving any dispute arising from, or in connection with, this Agreement.

Article 8 — Miscellaneous

Assignment

The Client may not assign, delegate or transfer this Agreement, or any right or obligation under it, in any manner (by operation of law or otherwise) without the prior written consent of Phanexa. Phanexa may transfer, assign, subcontract or delegate this Agreement and any of its rights or obligations without consent.

Independent Contractors

For all purposes under this Agreement, each Party shall act, and be treated as, an independent contractor of the other. Neither Party shall bind, or attempt to bind, the other to any contract.

Notices

Except where otherwise provided in this Agreement, any notice given pursuant to this Agreement shall be in writing and sent by registered mail or e-mail.

• To Phanexa — Registered mail: Phanexa Inc., Montreal, Quebec, Canada. Email: [email protected].
• To the Client — Registered mail or e-mail at the address provided by the Client during registration (or such other address as may be properly notified in writing in accordance with this clause).

Amendments

No amendment or modification of this Agreement shall be binding unless made in writing and signed by the Parties.

Third-Party Access

Phanexa Inc. shall not be held responsible for content, links, advertising, products, services or any other material supplied by a third party.

Binding Nature

This Agreement shall be binding upon the heirs, executors, successors and permitted assigns of the Parties.

Force Majeure

Neither Party shall be liable for any failure to perform or abide by any provision of this Agreement where such failure is caused by a Force Majeure event. Where a Party is prevented by a Force Majeure event from performing or complying with any provision of this Agreement, the affected Party shall use reasonable commercial efforts to partially perform and comply with such provision to the extent practicable having regard to the Force Majeure event. The unaffected Party shall, for so long as the Force Majeure event continues, be relieved of such obligations or restrictions as are necessary to allow it to protect its operations and financial interests.

Privacy

The Client acknowledges that any personal information provided to Phanexa may be collected, stored, processed and used in accordance with the Phanexa Privacy Policy in force at the relevant time.

Article 9 — Severability

If any provision of this Agreement is found to be invalid, unlawful or unenforceable by a court of competent jurisdiction, or by a governmental authority having jurisdiction in the circumstances, that provision shall be severed from this Agreement. The validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected or impaired as a result.

Article 10 — Entire Agreement

This Agreement sets out the entire agreement between the Parties in relation to its subject matter. There are no representations, warranties, covenants, conditions or other agreements — whether express or implied, collateral, statutory or otherwise — between the Parties in connection with the subject matter of this Agreement, except as expressly set out herein. The Parties have not relied, and are not relying, on any other information, discussion or understanding in entering into and completing the transactions contemplated by this Agreement.