TERMS AND CONDITIONS
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 THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS AND THE
TERMS AND CONDITIONS ON THE SIGN-UP / ORDER FORM SIGNED BY YOU (THE “ORDER FORM”) FORM A
BINDING AGREEMENT (THE “AGREEMENT”) BETWEEN YOU AND SURGENLY. THE EFFECTIVE DATE
INDICATED ON THE ORDER FORM IS THE “EFFECTIVE DATE.”
The Surgenly Platform is provided with a thirty (30) 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.
Subject to the following terms and conditions, Surgenly grants to You during the term of the
Agreement a nonexclusive, nontransferable worldwide, 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 care of Your patients (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”).
- Admin Account; Registration.
In order to gain access to the Surgenly Platform, Surgenly will assign You
an admin account for use with Your practice and will provide You with an admin user name and password for the
account. The assigned admin user name and password allows You to have “administration” privileges for the
account and create one or more user IDs and passwords (“Access Credentials”), which may be assigned to
physicians and employees within Your practice so that they may access Your account and use the Surgenly Platform.
During the term of Your Subscription You may create Access Credentials for an unlimited number of Your Users.
You represent that all information, including payment information, that You provide during the account and user
registration process and in connection with your payment for Your Subscription (“Registration Information”) will
be true, accurate, complete, and current and that You will promptly update Your Registration Information as
necessary such that it is, at all times, true, accurate, complete, and current. Surgenly may use all Registration
You alone are responsible for maintaining the security of Your
Registration Information and for all uses of the Surgenly Platform accessed via Your account or user IDs that You
create. You are responsible for maintaining access to the email addresses associated with Your account or
registration. You hereby represent and warrant that You are the age of majority and have all legal rights to open up
an account or establish a User registration for, as applicable, Your personal practice or for the professional medical
practice that has been set forth on the Order Form.
- 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 and Patient Communication Services (email and texting).
- 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 (as defined herein), 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.
- The Surgenly Platform provides its customers with the ability to send text and or email messages to their
patients (the “Messaging Services”). You shall not use the Messaging Services to communicate any message or
material that violates the intellectual property rights or privacy rights of any third party or is otherwise unlawful; or
would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal
offense, under any applicable law. You represent and warrant that you have obtained all necessary permissions and
consents in order to send email and text messages to Your patients using the Messaging Services. In any use of the
Messaging Services, You must honor all patient elections not to receive electronic communications from or on
behalf of You. You are responsible for responding to any communication initiated by a patient arising out of Your
use of the Messaging Services. You are solely responsible for Your use of the Messaging Services.
- Subscription Fee; Payment.
In consideration for giving You access to the Surgenly Platform, Surgenly will
charge You a monthly or annual fee (the “Subscription Fee”) as indicated in the Order Form. The amount of Your
Subscription Fee will be based upon the type of Subscription you choose and will be as indicated on the Order Form
that You complete and agree to. In the event that the Order Form does not include the Subscription Fee (e.g.,
Surgenly and you have agreed on pricing that is not reflected in Surgenly’s published list prices, etc.), Your
Subscription Fee shall be reflected in the invoice provided by Surgenly and paid by you. 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 a Subscription to the Surgenly Platform and prior to the
commencement of each monthly or annual Subscription period, as applicable. Monthly and annual receipts, as
applicable 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 with not less than thirty (30) days prior notice, but changes will not affect any Subscription Fees already paid
by You for an active Subscription month or year, as applicable. 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 or year, as applicable.
- 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:
- will not and do not infringe the patent, copyright, trademark, trade secret, or other intellectual property or
proprietary right of others;
- will not and do not violate the privacy, publicity, or other rights of third parties or any other law, statute,
ordinance or regulation;
- are not and will not become unlawful, tortious, fraudulent, defamatory or harmful to minors, obscene,
which such Users have not consented;
- 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
- 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.
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’s
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 or under the Agreement. You may not change, alter or modify the Surgenly Platform, or in any
way reverse engineer the Surgenly Platform. You may not use the Surgenly Platform to directly or indirectly either
for Your benefit or the benefit of a third party create or assist a third party to create a product or service that
competes with 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 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, documents (in .pdf
and other formats) 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 attempt 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 to use the Surgenly Platform, 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 or Surgenly
Platform to any person or entity. You shall not use the Content for any purpose other than in connection with Your
- Term; Termination; Effect of Termination.
Your Subscription to the Surgenly Platform will commence on the
date You are assigned Access Credentials to the Surgenly Platform and will continue on a month-to-month or
annual basis, as selected by You on the Order Form, until such time as either party terminates this Agreement by
giving the other party not less than thirty (30) 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
- 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
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.
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’s 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’s Platform, including on Your website.
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, 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 LIABILITY 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 PERSONAL INJURY OR DEATH.
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 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”).
- 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 FOR ALL CLAIMS AND DAMAGES WILL NOT EXCEED THE SUBSCRIPTION FEES YOU
ACTUALLY PAID TO SURGENLY DURING THE THREE (3) MONTHS PRIOR TO THE DATE ON WHICH
THE INITIAL CLAIM AROSE. THE PARTIES AGREE THAT THESE LIMITATIONS ARE AN ESSENTIAL
PART OF THE AGREEMENT AND THAT SURGENLY WOULD NOT ENTER INTO THE AGREEMENT
WITHOUT THESE LIMITATIONS. THIS LIMITATION OF LIABILITY CLAUSE WILL SURVIVE FAILURE
OF ITS ESSENTIAL PURPOSE.
You will keep confidential and will not use for any purpose other than this Agreement, any
Surgenly 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.
You may not transfer Your account to another entity or person. Any breach of this Section 22
shall immediately terminate Your rights and license under this Agreement.
You agree that if You infringe Surgenly’s intellectual property rights or exceed the scope of your
Permitted Uses of the Surgenly Platform, 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.
- 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.
- 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.
- 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’s 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.
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.
- 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
- This Section is intentionally omitted.
- 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, epidemic, 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’s 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 understands 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. It is possible that now or in the future, certain 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.
All notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier
service (e.g., FedEx, etc.), or (iii) by first class, registered or certified mail, postage prepaid, return receipt requested
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. Notices shall be sent to the addresses specified below.
If to Surgenly:
Attn: Jorge Obando, CMO
514 Daniels St.
Raleigh, NC 27605
If to You:
To the address that You provide on the Order Form.
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.
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’s provision of the Surgenly Platform.
- 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
- 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.
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’s firewall, port scans, unsuccessful log-on attempts, or denial of service attacks)
may occur periodically.
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.
- 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’s Use or
Disclosure of PHI.
- Compliance with HIPAA.
Covered Entity shall comply with all of its obligations under HIPAA.
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’s 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’s Use or Disclosure of PHI.
- 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.
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.
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.
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.
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.
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.