SUBSCRIPTION AND SERVICES AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU ("YOU" OR "YOUR") AND SURGENLY LLC, A NORTH CAROLINA LIMITED LIABILITY COMPANY ("SURGENLY"). SURGENLY IS WILLING TO MAKE AVAILABLE ITS SOFTWARE APPLICATION AND PLATFORM SERVICES KNOWN AS THE "SURGENLY PLATFORM" TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SUBSCRIPTION AND SERVICES AGREEMENT (THE "AGREEMENT"). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CLICKING ON THE "I AGREE" BUTTON, AS CLICKING ON THIS BUTTON WILL INDICATE YOUR ASSENT TO THE TERMS OF THIS AGREEMENT AS OF THE DATE YOU CLICK ("EFFECTIVE DATE"). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN CLICK ON THE "I DO NOT AGREE" BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SURGENLY IS UNWILLING TO ALLOW YOU TO USE THE SURGENLY PLATFORM.
The Software is provided with a sixty (60) day trial license, during which You may evaluate the Surgenly Platform free of charge "Trial Period"). If You do not purchase a Subscription for the Surgenly Platform by paying the applicable Subscription Fees prior to the expiration of the Trial Period, the trial license granted hereunder will automatically terminate and Your access to the Surgenly Platform will immediately cease.
Subscription. Subject to the following terms and conditions, Surgenly grants to You a nonexclusive, nontransferable worldwide, revocable, non-sublicensable right to allow Your Users to access and use the Surgenly Platform, which is made generally commercially available by Surgenly as of the Effective Date, and all Updates thereto made generally commercially available by Surgenly to its customers during the term of this Agreement, solely for Your internal business purposes and subject to the imitations in this Agreement, during the term of this Agreement (Your "Subscription"). You may use the Surgenly Platform solely within Your practice. The rights set forth in this Section 1 may be exercised by Your third-party contractors and service providers; provided that You shall be responsible for any breach of this Agreement by any such third-party contractors and service providers. As used herein, "Users" means (i) the employees and/or contractors You have designated to be administrative users and have the ability to issue login information, passwords, security protocols and policies used to access and use the Surgenly Platform ("Access Credentials"), (ii) any other employees and/or contractors who have been assigned Access Credentials, and (iii) patients of Your practice to whom You provide access to the Surgenly Platform through the web-based interface that Surgenly operates on Your behalf ("Patient Interface"). The Subscription is a renewable monthly subscription commencing upon the date Your Registration is activated as further described in this Agreement.
Access Credentials.You will be responsible for all acts and omissions of Your Users. You agree to (i) keep Your Access Credentials secure and confidential and not to allow any of Your Users to provide their Access Credentials to anyone else; and (ii) not permit third parties to use Your Access Credentials. You will notify Surgenly immediately if You learn of any unauthorized use of any Access Credentials or any other known or suspected breach of security. Surgenly reserves the right to take any action Surgenly deems necessary or reasonable to ensure the security of the Surgenly Platform and Your Access Credentials and account, including terminating Your access, changing passwords, or requesting additional information to authorize activities related to Your account.
Patient Interface. You are solely responsible for granting access to the Patient Interface to Your patients and for any and all information You make available to patients or otherwise create, receive, maintain, or transmit through the Patient Interface. Except for Content, any information that You, Your Users, or Your patients transmit through the Patient Interface will be considered Your Inputs under this Agreement. You will notify Surgenly immediately if You learn of any unauthorized use of the Patient Interface or any other known or suspected breach of security relating to the Patient Interface. Surgenly reserves the right to take any action Surgenly deems necessary or reasonable to ensure the security of the Patient Interface, including terminating access or requesting additional information to authorize access to the Patient Interface.
Subscription Fee; Payment. In consideration for giving You access to the Surgenly Platform, Surgenly will charge You a monthly Subscription Fee. The amount of Your Subscription Fee will be based upon the type of Subscription you choose and will be as indicated on the Surgenly website as of the Effective Date of this Agreement. You must pay the Subscription Fee according to the payment method You choose from the options provided to You on the admin account sign-up page (https://surgenlyclinical.com/sign-up/) during the Registration process. You are responsible for notifying Surgenly if Your payment information changes. You agree to promptly update account and payment information, including email address, payment method, and payment card expiration date if applicable and as needed. All payments shall be in U.S. dollars. You authorize Surgenly to charge your chosen payment provider for applicable Subscription Fees upon purchasing an initial Subscription to the Surgenly Platform and prior to the commencement of each monthly Subscription renewal period. Monthly receipts will be provided to you at the email address You provided in Your Registration Information. You agree to allow Surgenly to charge your payment method on a recurring basis without requiring your prior approval for each recurring charge, until such time as the Agreement is terminated as allowed herein. Subscription Fees are subject to change, but changes will not affect any Subscription Fees already paid by You for an active Subscription month. You will be notified of any Subscription Fee changes at the email address you provided in your Registration Information prior to the end of the then-current Subscription month.
Telecommunications; Internet Services. You acknowledge and agree that Your Users’ use of the Surgenly Platform is dependent upon access to telecommunications and Internet services. You or Your Users, as applicable, will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Surgenly Platform, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. Surgenly will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software.
Modifications, Enhancements, Improvements. Surgenly reserves the right to enhance, improve and modify the Surgenly Platform on a continuous basis at no cost to You; provided that any such enhancement, improvement, or modification shall not result in any decrease in features or functionality.
Your Inputs. To enable Surgenly to provide the Surgenly Platform, You grant to Surgenly a non-exclusive, royalty-free, license to access, use and copy information, data, text, content, photos, graphics, and/or other types of content, information and/or data posted, provided and/or uploaded to the Surgenly Platform by You or Your Users, including patient data and personally-identifiable information ("Your Inputs"), solely for Your benefit. Your Inputs do not include Content or Registration Information, as defined in this Agreement. Surgenly agrees that You own all right, title and interest in and to Your Inputs and reserves all rights not expressly granted to Surgenly under this Agreement. You represent, warrant and covenant that Your Inputs:
i. will not and do not infringe the patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
ii. will not and do not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
iii. are not and will not become unlawful, tortious, fraudulent, defamatory or harmful to minors, obscene, pornographic;
v. will not and do not disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to, proprietary or confidential information of others; and
vi. will not and do not contain any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
Aggregated and De-identified Data. In the course of providing the Surgenly Platform, Surgenly may obtain or derive from Your Inputs and Your and Your Users’ use of the Surgenly Platform aggregated or de-identified data related to Your and Your Users’ use of the Surgenly Platform. Notwithstanding anything to the contrary in this Agreement, You agree that Surgenly is free to use this data for any lawful purpose, provided that all such data has been aggregated or de-identified so that neither You nor any of Your Users are individually identified.
Compliance. You are responsible for using the Surgenly Platform in a manner that complies with any laws that apply to You or Your Inputs, including laws related to privacy, personal data, biometric data, data protection, and the recording and confidentiality of communications. You warrant that You have obtained any authorizations or consents, and provided any notices, that are or may be required under those laws or regulations before You and Your Users use the Surgenly Platform to collect, store, process, or transmit Your Inputs. If and to the extent You are a "covered entity" and Your Inputs include "protected health information," as those terms are defined in 45 CFR § 160.103, the HIPAA Business Associate Addendum ("BAA") attached as Exhibit A hereto will apply to Surgenly’ provision and Your use of the Surgenly Platform. You agree that the BAA will apply only to systems that Surgenly controls and operates to provide the Surgenly Platform, and that the BAA will not apply to, and Surgenly will have no responsibility for, any third-party applications, systems, devices, or communications networks that You or Your Users use to transmit Your Inputs to or from, or otherwise communicate with, the Surgenly Platform.
Limitations; Content. You may not sublicense, rent, distribute, lease or otherwise assign Your rights in the Surgenly Platform. You may not change, alter or modify the Surgenly Platform, or in any way reverse engineer the Surgenly Platform. You may not attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with the Surgenly Platform or breach any security or authentication measures. You may not, directly or indirectly create any app or software program that could potentially compete with the Surgenly Platform. You may not use the Surgenly Platform, except as specified in this Agreement, and You may not remove any copyright, trademark or other proprietary notices on the Surgenly Platform. Surgenly reserves all rights not expressly granted to You in this Agreement. With respect to any content or information incorporated into or made available by Surgenly through the Surgenly Platform, including text, graphics, logos, icons, images, audio and video clips, data forms, photographs, graphics, and software (the "Content"), You acknowledge and agree that: (i) You shall not access or attempt to access or make available the Content other than through the Surgenly Platform; (ii) You shall not extract or download, or attempting to extract or download, the Content from the Surgenly Platform or otherwise, other than for Permitted Uses (as defined below); and (iii) upon termination of Your license, You shall delete any Content in Your possession or control. For the purposes of this Agreement, "Permitted Uses" means that You may access and use the Content for the sole purpose of providing medical information to Your patients. Except as set forth above, You shall not distribute or otherwise make available the Content to any person or entity. You shall not use the Content for any purpose other than in connection with Your medical practice. You shall not use, and shall not assist or authorize others to use, the Surgenly Platform, the Content or any portion thereof to develop a product or service that competes with Surgenly Platform.
Term; Termination; Effect of Termination. Your Subscription to the Surgenly Platform will commence on the date Your Registration on the Surgenly Platform is activated and will continue on a month-to-month basis until such time as either party terminates this Agreement by giving the other party not less than ten (10) days prior written notice of termination. Notwithstanding the foregoing, should either party (i) commit a breach of its obligations hereunder, which is not capable of being cured, (ii) become insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Laws; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business, the other party may, at its option, terminate this Agreement immediately upon written notice of termination, which notice shall identify and describe the basis for such termination. Upon any termination of this Agreement, and except as expressly set forth herein, (a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate, (b) Surgenly will cease providing access to the Surgenly Platform and will cease providing any other related services hereunder and (c) You will immediately cease all use of the Surgenly Platform or the Content. In no event will termination by either party relieve You of Your obligation to pay any fees payable to Surgenly for the period prior to the effective date of termination.
Suspension of Performance. At any time during the term of this Agreement, Surgenly may, immediately upon notice to You, suspend its performance under this Agreement or may suspend any and all Users’ access to the Surgenly Platform if: (i) a reasonable threat to the technical security or technical integrity of the Surgenly Platform exists; provided that Surgenly promptly recommences performance upon the cessation of the threat, or (ii) if any amount due under this Agreement is not received by Surgenly within thirty (30) days after it was due and Surgenly provided not less than thirty (30) days prior written notice of same.
Copyright; Ownership. This Subscription is not a sale. Title, ownership rights, and intellectual property rights in and to the Surgenly Platform and the Content shall remain in Surgenly and its licensors. You agree to abide by the copyright laws and all other applicable laws of the United States. You acknowledge that the Surgenly Platform and Content remain a confidential trade secret of Surgenly and its licensors. Failure to comply with the above restrictions will result in automatic termination of this Agreement and will make available to Surgenly other legal remedies.
Upgrades. Although Surgenly has no obligation to provide upgrades to the Surgenly Platform under this Agreement, Surgenly may from time to time provide upgrades. Any upgrades to the Surgenly Platform shall be deemed to become part of the Surgenly Platform and shall be subject to the terms and conditions of this Agreement.
Third-Party Providers. Surgenly will use commercially reasonable efforts to manage the hosting of and provision of services through the Surgenly Platform by its third-party service providers ("Third-Party Providers"). Because the Third-Party Providers are hosting the Surgenly Platform and Your Inputs contained thereon, (i) Surgenly does not guarantee any availability or service levels with respect thereto and (ii) all provision of Third-Party Providers’ hosting of the Surgenly Platform and Your Inputs will be subject to the Third-Party Providers’ standard terms, conditions and policies applicable to the hosting of the Surgenly Platform and Your Inputs contained thereon (including, without limitation, terms, conditions and policies regarding privacy and data security). Notwithstanding anything to the contrary in this Agreement, Surgenly will have no liability under this Agreement with respect to security breaches, errors or other issues arising out of the hosting of the Surgenly Platform and Your Inputs by the Third-Party Providers or their provision of services through the Surgenly Platform.
Marketing. Subject to Your prior written consent, Surgenly may issue a press release after the Effective Date regarding Your use of the Surgenly Platform. Surgenly may publicly refer to You as a customer of Surgenly, including on Surgenly’ website and in sales presentations, and may use Your logo for such purposes. Similarly, You may publicly refer to Yourself as a customer of Surgenly’ Surgenly Platform, including on Your website.
Disclaimers. THE SURGENLY PLATFORM IS PROVIDED "AS-IS" WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED AND SURGENLY EXPRESSLY EXCLUDES ANY OTHER WARRANTY OR CONDITION, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. SURGENLY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SURGENLY PLATFORM IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SURGENLY PLATFORM IS ASSUMED BY YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SURGENLY SHALL CREATE A WARRANTY OR CONDITION OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE CONTENT AVAILABLE FROM THE SURGENLY PLATFORM IS PROVIDED SOLELY FOR INFORMATIONAL PURPOSES ONLY. THE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. YOU AGREE THAT YOU SHALL NOT DIRECTLY OR INDIRECTLY REPRESENT THE CONTENT AS PROVIDING MEDICAL ADVICE. THE SURGENLY PLATFORM DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED, REFERENCED OR DESCRIBED IN THE CONTENT. RELIANCE ON ANY INFORMATION PROVIDED BY THE SURGENLY PLATFORM, EITHER BY YOU OR YOUR PATIENTS IS SOLELY AT YOUR OWN RISK.
EXCEPT WITH RESPECT TO THE OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT, SURGENLY SHALL HAVE NO LIABLITY FOR ANY COSTS, EXPENSES, DAMAGES OR LIABILITY RELATED TO YOUR USE OF THE SURGENLY PLATFORM OR THE USE OF THE SURGENLY PLATFORM BY YOUR PATIENTS. IN NO EVENT WILL SURGENLY BE RESPONSIBLE FOR ANY DAMAGES, EXPENSES, COSTS, LIABILITY, LOST DATA, OR LOST FILES (COLLECTIVELY, "LOSSES") RELATED TO OR ARISING FROM YOUR USE OF THE SURGENLY PLATFORM OR THE USE OF THE SURGENLY PLATFORM BY YOUR PATIENTS, INCLUDING WITHOUT LIMITATION, LOSSES RELATED TO ARISING FROM PESONAL INJURY OR DEATH.
19. Indemnification. You agree to defend, indemnify, and hold Surgenly, its officers, members, directors, employees, agents, and licensors, harmless from and against any claims, actions or demands, liabilities, costs, expenses, damages, and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from (i) Your use of the Surgenly Platform or the use of the Surgenly Platform by Your patients, (ii) Your use of or reliance on any Content or Your patient’s use of or reliance on the Content, (iii) Your Inputs, or (iii) Your breach of this Agreement (each a "Claim").
20. Limitations on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SURGENLY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING ANY CLAIMS FOR LOST PROFITS, BUSINESS INTERRUPTION, LOST INFORMATION OR OTHER DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SURGENLY PLATFORM. IN NO EVENT SHALL SURGENLY HAVE ANY LIABILITY FOR ANY DATA STORED OR PROCESSED WITH THE SURGENLY PLATFORM, INCLUDING THE COST OF RECOVERING ANY LOST DATA. IN ALL EVENTS, SURGENLY’S LIABILITY UNDER THIS AGREEMENT IN THE AGGREGATE WILL NOT EXCEED THE SUBSCRIPTION FEES YOU ACTUALLY PAID TO SURGENLY DURING THE THREE (3) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM AROSE. THE PARTIES AGREE THAT THESE LIMITATIONS ARE AN ESSENTIAL PART OF THE AGREEMENT AND THAT SURGENLY WOULD NOT ENTER INTO THE AGREEMENT WTIHOUT THESE LIMITATIONS. THIS LIMITATION OF LIABILITY CLAUSE WILL SURVIVE FAILURE OF ITS ESSENTIAL PURPOSE.
21. Confidentiality. You will keep confidential and will not use for any purpose other than this Agreement, any Confidential Information. "Confidential Information" means information disclosed by Surgenly to You about the Surgenly Platform or any of the technologies, methodologies, or processes incorporated in the Surgenly Platform; which in each case, constitutes a trade secret under applicable law.
22. Non-transferable. You may not transfer Your account to another entity or person. Any breach of the terms and conditions herein shall immediately terminate Your rights and license under this Agreement.
23. Injunction. You agree that if You infringe Surgenly’ intellectual property rights or exceed the scope of permitted use of this license, Surgenly will be irreparably injured and may terminate this Agreement and seek a court order to enjoin You from further use of the Surgenly Platform.
24. Savings Clause. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.
25. Governing Law; Arbitration. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of North Carolina, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be settled by arbitration in accordance with N.C. Gen. Stat. § 1-569.1 et seq. (the "Revised Uniform Arbitration Act") and the then-current Rules of Commercial Arbitration of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be held in Raleigh, North Carolina and shall be conducted in the English language, and shall be conducted before a single arbitrator mutually agreeable to the parties, or if no agreement can be reached, then selected by the American Arbitration Association. The arbitrator shall award reimbursement of attorneys' fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. In addition, the losing party shall reimburse the prevailing party for the costs and expenses incurred by it, including attorneys’, arbitrators’ and courts’ fees and expenses, in connection with any action or proceeding hereunder. If any court having proper jurisdiction hereof shall subsequently determine any portion of this Agreement to be invalid, such designation shall not affect the remaining provisions of this Agreement, which will continue in full force and effect. If, under applicable law, this arbitration provision is not enforceable as to a particular claim brought by one party against the other, then legal proceedings involving only that claim may be instituted solely either in the state court for the State of North Carolina, County of Wake, or in the United States District Court for the Eastern District of North Carolina located in Raleigh, North Carolina. For all purposes of this Agreement, all parties hereby irrevocably consent to the jurisdiction of such courts over their person and waive any defense based on improper or inconvenient venue or lack of personal jurisdiction. The parties agree that service of process upon them in any such action may be made if delivered in person, by courier service, by telegram, by telefacsimile or by first class mail, and shall be deemed effectively given upon receipt.
26. Export Laws; Anti-Corruption. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Surgenly Platform. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Your Users to access or use the Surgenly Platform in violation of any U.S. export embargo, prohibition or restriction. You represent that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Surgenly’ employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Surgenly.
27. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
28. Waiver; Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
29. Attorneys’ Fees. The prevailing party or substantially prevailing party, as determined by a court of competent jurisdiction, shall be entitled to reimbursement of its reasonable attorneys’ fees by the non-prevailing party in any action brought under this Agreement.
30. No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Surgenly may assign this Agreement in connection with a merger, acquisition, reorganization or change of control, including without limitation a sale of all or substantially all of its assets, stock or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. If an event of force majeure prevents Surgenly from performing any services under this Agreement, including the provision of the Surgenly Platform, for thirty (30) days, You may cancel this Agreement and receive a refund of pre-paid fees paid for that period of time for which services are not provided.
Independent Contractors. Surgenly’ relationship to You is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have and will not represent to any third party that it has, any authority to act on behalf of the other.
Digital Millennium Copyright Act. Surgenly understand the importance of intellectual property such as copyrights. Surgenly owns, protects and enforces copyrights in its own creative material and respects the copyright properties of others. Materials are made available on the Surgenly Platform by third parties not within the control of Surgenly. It is our policy not to permit materials known by us to be infringing to remain on the Surgenly Platform. Surgenly reserves the right to terminate any User’s access to the Surgenly Platform if that User is deemed to have repeatedly infringed upon another party’s copyrights. You should notify us promptly if you believe any materials on the Surgenly Platform infringe upon a third-party copyright. Upon our receipt of a proper notice of claimed infringement under the Digital Millennium Copyright Act ("DMCA"), Surgenly will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content at issue. Pursuant to the DMCA, written notification of claimed copyright infringement must be submitted in writing to the individual ("Designated Agent") identified in Section 34, below, at the address also listed below.
Notices. All notices under this Agreement shall be in writing and addressed to a party as follows. All notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service (e.g., FedEx, etc.), (iii) by first class, registered or certified mail, postage prepaid, return receipt requested (iv) by facsimile provided that there is confirmation of receipt or (v) by electronic mail to the address of the party specified in this Agreement, provided that there is confirmation of receipt. All notices shall be effective upon receipt by the party to which notice is given. Each party may change its address for receipt of notice by giving notice of such change to the other party.
If to Surgenly: Surgenly LLC
Attn: Jorge Obando, CEO
514 Daniels St.
Raleigh, NC 27605
If to You:
To the address that You provide in Your Registration Information.
Construction. The titles of the Sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) "or" has the inclusive meaning frequently identified with the phrase "and/or," (iii) "including" has the inclusive meaning frequently identified with the phrase "including but not limited to" or "including without limitation," and (iv) references to "hereunder," "herein" or "hereof" relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
Survival. Any provisions of this Agreement that by their nature should continue after termination of this Agreement will continue to apply even after the expiration or termination of this Agreement, including without limitation, Sections 5, 9, 11, 12, 14, and Sections 16-37.
Entire Agreement. This Agreement sets forth the entire agreement between You and Surgenly pertaining to the licensing of the Surgenly Platform and supersedes in its entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. If any provision of this Agreement is held invalid or unenforceable, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and the remainder of this Agreement shall continue in full force and effect. In the event of any conflict between any provision of this Agreement and any applicable law, the provision or provisions of this Agreement affected shall be modified to remove such conflict and permit compliance with such law and as so modified this Agreement shall continue in full force and effect.
EXHIBIT A – HIPAA BUSINESS ASSOCIATE ADDENDUM
If You are a "covered entity" and Your Inputs include "protected health information," as those terms are defined at 45 C.F.R. § 160.103, the Agreement incorporates the terms of this HIPAA Business Associate Addendum ("BAA"). If there is any conflict between a provision in this BAA and a provision in the Agreement, this BAA will control.
Except as otherwise noted in this BAA, any and all capitalized terms in this BAA shall have the meanings ascribed to those terms in the HIPAA Rules, and if not defined by HIPAA, such terms shall have the definitions set forth in the Agreement.
Covered Entity means the entity that is a party to the Agreement, provided that such entity falls within the definition of the term "covered entity" set forth at 45 C.F.R. § 160.103.
Disclose means any release, transfer, provision of access to, or divulging in any manner of information outside the entity holding the information.
HIPAA Rules means the implementing regulations of HIPAA set forth at 45 C.F.R. Parts 160 and 164, Subpart A, C, D and E.
Security Rule means the Security Standards for the Protection of Electronic Protected Health Information set forth at 45 C.F.R. Parts 160 and 164, Subparts A and C.
Privacy Rule means the requirements for the Privacy of Individually Identifiable Health Information set forth at 45 C.F.R. Parts 160 and 164, Subparts A and E.
"Protected Health Information" or "PHI" shall have the same meaning as the term "protected health information" in 45 C.F.R. § 160.103 and shall include Electronic Protected Health Information ("ePHI"), except limited to the PHI Surgenly receives from or creates, receives, transmits, or maintains on behalf of Covered Entity through Surgenly’ provision of the Surgenly Platform.
II. BUSINESS ASSOCIATE OBLIGATIONS
Permitted Uses and Disclosures. Surgenly expressly agrees that any and all Uses or Disclosures of PHI by Surgenly will be done in accordance with the terms of this BAA, applicable provisions of the HIPAA Rules, or as Required by Law. Surgenly may:
Use and Disclose PHI in order to provide the Surgenly Platform and as otherwise permitted or required under the Agreement.
Use PHI to create de-identified information in compliance with 45 C.F.R. § 164.514 and Use and Disclose such de-identified information for any lawful purpose.
Use and Disclose PHI to provide Data Aggregation services relating to the health care operations of Covered Entity.
Use PHI as necessary for the proper management and administration of Surgenly or to carry out its legal responsibilities.
Disclose PHI as necessary for the proper management and administration of Surgenly or to carry out its legal responsibilities, provided that as to any such Disclosure, the following requirements are met:
The Disclosure is Required by Law; or
Surgenly obtains reasonable assurances through a written agreement with the other agents or parties to whom PHI is disclosed that PHI will be held confidentially and Used or further Disclosed only as Required by Law or for the purpose for which it was Disclosed to the recipient, and the recipient notifies Surgenly of any instances of which it is aware in which the confidentiality of the information has been breached.
Compliance with HIPAA. To the extent that Surgenly is to carry out any of Covered Entity’s obligations under the Privacy Rule, Surgenly shall comply with the applicable requirements of the Privacy Rule that apply to Covered Entity in the performance of such obligations.
Availability of Books and Records. Surgenly shall cooperate with and make available to the Secretary its internal practices, books, and records relating to the Use and Disclosure of PHI for purposes of determining the Parties’ compliance with HIPAA. Nothing in this section waives any applicable privilege or protection, including with respect to trade secrets, confidential commercial information, and information subject to attorney-client privilege.
Subcontractors. Surgenly agrees to ensure that any subcontractors or agents to whom Surgenly provides PHI agree in writing to restrictions and conditions substantially similar to those that apply to Surgenly with respect to such PHI through this BAA.
Impermissible Uses and Disclosures. Surgenly shall report to Covered Entity any Use or Disclosure of Covered Entity’s PHI of which Surgenly is aware and which is not in compliance with the terms of this BAA, including any Breach of Unsecured Protected Health Information pursuant to 45 C.F.R. § 164.410 and any Security Incident. Notwithstanding the foregoing, the Parties acknowledge and agree that Surgenly shall not be required to report attempted but unsuccessful Security Incidents that do not result in actual unauthorized access, Use, or Disclosure of Protected Health Information, and that this BAA constitutes notice to Covered Entity that such unsuccessful Security Incidents (such as broadcast attacks on Surgenly’ firewall, port scans, unsuccessful log-on attempts, or denial of service attacks) may occur periodically.
Safeguards. Surgenly will implement reasonable administrative, technical, and physical safeguards as required by 45 C.F.R. Parts 160 and 164, Subpart C that are designed to prevent the Use or Disclosure of PHI other than as permitted in this BAA.
Designated Record Sets. The Parties agree that the Surgenly Platform shall not include the receipt, creation, maintenance, or support of Designated Record Sets. Covered Entity shall not provide any Designated Record Set to Surgenly, and Surgenly shall not consider any data Covered Entity makes available to it to be a Designated Record Set. In the event that the Parties amend this BAA to permit the Surgenly Platform to include the receipt, creation, maintenance, or support of Designated Record Set, to the extent Surgenly maintains a Designated Record Set, Surgenly agrees to: (i) upon written request from Covered Entity, make such PHI available as required for Covered Entity to meet its obligations under 45 C.F.R. § 164.524 and (ii) upon written request from Covered Entity, make such PHI available for amendment and incorporate and amendments to PHI as required for Covered Entity to meet its obligations under 45 C.F.R. § 164.526. Surgenly will not respond directly to Individual requests for access or amendments to such information.
Accounting of Disclosures. Surgenly agrees to document Disclosures of PHI if required by HIPAA and requested in writing by Covered Entity. Surgenly further agrees to provide access to such documentation, after a written request from Covered Entity, as necessary for Covered Entity to respond to a request by an Individual for an accounting of Disclosures of PHI in accordance with 45 C.F.R. § 164.528. Surgenly will not respond directly to Individual requests for such accountings of Disclosures.
III. CUSTOMER OBLIGATIONS
Permissions and Notices. Covered Entity represents, warrants, and covenants that it has obtained and will continue to obtain all necessary authorizations, consents, releases, and permissions to permit Surgenly to Use and Disclose PHI pursuant to this BAA and in order to provide the Surgenly Platform in compliance with all applicable laws, regulations, and other governmental requirements and that it has provided, and will continue to provide, appropriate notice to Individuals to permit Surgenly to Use and Disclose PHI pursuant to this BAA and in order to provide the Surgenly Platform in compliance with all applicable laws, regulations, and other governmental requirements. Covered Entity shall notify Surgenly of any changes in, or revocation of the authorization, consent, release, or permission by an Individual to Use or Disclose their PHI, to the extent that such changes may affect Surgenly’ Use or Disclosure of PHI.
Compliance with HIPAA. Covered Entity shall comply with all of its obligations under HIPAA.
Instructions. Covered Entity will not request or cause Surgenly to make a Use or Disclosure of PHI or take other actions in a manner that does not comply with HIPAA, any other law, or this BAA.
Notice of Privacy Practices. Covered Entity shall notify Surgenly of any limitations in the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Surgenly’ Use or Disclosure of PHI.
Restrictions on PHI Use and Disclosure. Covered Entity shall notify Surgenly of any restrictions on the Use or Disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Surgenly’ Use or Disclosure of PHI.
IV. TERM AND TERMINATION
The term of this BAA shall begin as of the Effective Date and shall terminate upon the termination or expiration of the Agreement.
Upon either Party’s knowledge of a material breach by the other Party to this Agreement, such Party shall provide written notice to the breaching Party stating the nature of the breach and providing an opportunity to cure the breach within 60 business days. Upon the expiration of such 60-day cure period, the non-breaching Party may terminate this BAA.
Upon termination, Surgenly will return or destroy all PHI that Surgenly still maintains on behalf of Covered Entity and retain no copies of such PHI, to the extent feasible. If such return or destruction is infeasible, Surgenly shall extend the protections of this BAA to PHI that Surgenly still maintains on behalf of Covered Entity and limit further Uses and Disclosures to those purposes that make the return or destruction infeasible.
Third Party Beneficiaries. Nothing express or implied in this BAA conveys or is intended to convey any rights, remedies, obligations, or liabilities to any party other than Covered Entity and Surgenly or their respective successors or assigns.
Amendment. This BAA may be amended or modified only in a writing signed by the Parties. In addition, in the event a Party believes in good faith that any provision of this BAA fails to comply with the then-current requirements of HIPAA, such Party shall notify the other Party in writing. The Parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for compliance with the requirements of HIPAA.
Independent Contractor Status. None of the provisions of this BAA are intended to create, nor will they be deemed to create, any relationship between the Parties other than that of independent parties contracting with each other solely for the purposes of effecting the provisions of this BAA and any other agreements between the Parties evidencing their business relationship.
Waiver. No change, waiver, or discharge of any liability or obligation hereunder on any one or more occasions shall be deemed a waiver of performance of any continuing or other obligation, or shall prohibit enforcement of any obligation, on any other occasion.
Conflict. The Parties agree that, in the event of a conflict between the provisions of this BAA and the Agreement or any other documentation of the arrangement(s) pursuant to which Surgenly provides Surgenly Platform to Covered Entity, the provisions of this BAA will control to the extent necessary for the Parties to comply with HIPAA. The provisions of this BAA will be interpreted to permit compliance by the Parties with HIPAA.
Survival. In the event that any provision of this BAA is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the provisions of this BAA will remain in full force and effect.
Interpretation. In the event of an inconsistency between the provisions of this BAA and mandatory provisions of the HIPAA Rules, this BAA shall be construed in a manner that permits both parties to comply with HIPAA.