RelayOne Terms of Service
Last modified: June 28, 2019
We provide subscriptions to use our downloadable RelayOne application on iOS and other supported mobile device platforms (the “App”) as well as the RelayOne online service which may be accessed through your Internet web browser (the “Web-Based Service” and, together with the App, the “Platform”), to hospitals, medical centers and other providers of surgical services (“Providers”) and their associated suppliers and vendors (“Vendors”) subject to the terms and conditions of this agreement (this “Agreement”). “We,” “us” and “our” as used throughout this Agreement refers to Relay One Inc., a Delaware corporation. “You” and “your” as used throughout this Agreement refers to the party other than us (i.e., the Provider or the Vendor) accessing and using the Platform by and through its Authorized Users.
Acceptance. By executing a Service Order with us, or by otherwise accessing or using the Platform, you also accept the terms of this Agreement. You should read this Agreement carefully for the terms and conditions that govern your use of the Platform. The individual executing the Service Order on your behalf represents and warrants to us that he or she is fully and duly authorized to agree to be bound by this Agreement on your behalf.
Changes to this Agreement. We may revise and update this Agreement from time to time in our sole discretion. Via a conspicuous posting within the Platform itself or via notice by e-mail to the e-mail address we have on file for you, we will notify you of any material changes to this Agreement. If you do not agree with any changes we make to this Agreement, you may, within a 30-day window following your receipt of notice of such changes, elect to terminate this Agreement upon written notice to us. Otherwise, changes to this Agreement are effective immediately when we post them, and your continued use of the Platform following the posting of a revised Agreement means that you accept and agree to the changes. You must immediately discontinue access or use of the Platform if you do not want to agree to the revised Agreement.
Services. During the Term, we will use commercially reasonable efforts to provide to you the following services (the “Services”): (i) the hosting, management and operation of the Platform for electronic access and use by you and your Authorized Users; (ii) the Support Services described in Section 6; and (iii) any additional services we describe in your Service Order.
- Changes to the Platform. We may make any changes to the Platform that we deem necessary or useful to improve the Platform or for any other reason, from time to time in our sole discretion. Such changes may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related Documentation changes, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. All Updates shall be deemed a part of the Platform governed by all the provisions of this Agreement pertaining thereto. Based on your mobile device settings, when your mobile device is connected to the Internet either: (i) the App will automatically download and install all available Updates pertaining to the App; or (ii) you may receive notice of or be prompted to download and install available Updates pertaining to the App. You must promptly download and install all Updates and you acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality in the Platform. If a change we make to the Platform materially and adversely affects your use of the Platform, then you may, within a 30-day window following such change taking effect, elect to terminate this Agreement upon written notice to us.
- Subcontractors. We may, in our discretion, engage subcontractors to perform Services under this Agreement, but we will remain liable for any act or omission by such subcontractors that would be a breach or violation of this Agreement. You hereby specifically approve and consent to our use of the following subcontractors to perform the described services under this Agreement (including processing of certain portions of Your Data), which such list may be updated from time to time in our sole discretion:
- Subcontractor: Google Firebase
- Services Provided: Cloud-based hosting and storage services for the Platform. Hosts and stores Your Data that is processed through the Platform. More information: https://firebase.google.com/terms
- Subcontractor: Stripe
- Services Provided: Secure, online payment processing of purchases made related to the Platform. Processes name, billing address, e-mail address, telephone number and payment card information on our behalf. We do not store or process any payment card information. More information: https://stripe.com/ssa.
- Subcontractor: Redox
- Services Provided: Provides interfaces and APIs to connect the Platform to the Provider’s electronic health record (EHR) system to enable the transmission of data between the EHR and the Platform. More information: https://www.redoxengine.com/
- Subcontractor: Google Firebase
- Suspension of Services. We may suspend or deny your or any Authorized User’s access to or use of all or any part of the Services or the Platform, without any liability to you or others, if (i) we’re required to do so by law or court order; or (ii) you have or any of your Authorized Users has (A) accessed or used the Platform beyond the scope of the rights granted under this Agreement, (B) been involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Platform, (C) failed to comply with the limitations and restrictions described in Section 4.c, or (D) otherwise failed to comply with this Agreement and have failed to cure such breach within 10 days after we provide written notice to you. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 11.
- Right to Access the Platform and Restrictions.
- License to the App. Subject to your timely payment of the fees listed on your Service Order, and so long as you and your Authorized Users otherwise comply with this Agreement, we grant you, during the Term, a limited, non-exclusive and non-transferable license to download, install and use the App (and to permit your Authorized Users to download, install and use the App), solely for the Permitted Use, on one or more mobile devices owned or otherwise controlled by you (or, as applicable, by the Authorized User), solely as (and in the form) in which we have provided the App to you, and strictly in accordance with this Agreement and the Documentation.
- Web-Based Service Authorization. Subject to your timely payment of the fees listed on your Service Order, and so long as you and your Authorized Users otherwise comply with this Agreement, we authorize you, during the Term, and on a limited, non-exclusive and non-transferable basis, to access and use the Web-Based Service by and through your Authorized Users, solely for the Permitted Use, solely as (and in the form) in which we have provided the Web-Based Service, and strictly in accordance with this Agreement and the Documentation.
- Limitations and Restrictions. You must use commercially reasonable efforts to prevent unauthorized access to or use of the Platform. You must not, and you must not permit any other person or entity to, access or use the Platform except as we’ve specifically allowed in this Agreement and, in the case of any third-party content or materials (including open source components) (“Third-Party Materials”) we provide to you with the Platform, as allowed in the applicable third-party license agreement. Without limiting the generality of the preceding sentence, and except as expressly permitted in this Agreement, you and your Authorized Users must not do any of the following:
- copy the Platform or any portion thereof;
- modify, adapt, translate or otherwise create derivative works or improvements of the Platform or any portion thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Platform or any features or functionality of the Platform to any third party for any reason, including by making the Platform available on a network where it is capable of being accessed by more than one device at any time or through any time-sharing, service bureau or software as a service arrangement;
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the Platform or the underlying structure, ideas, know-how, algorithms or methodology relevant to the Platform;
- input, upload, transmit or otherwise provide to or through the Platform any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used by the Platform;
- attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the Platform, (B) the server on which the Platform is stored, (C) any server, computer or database connected to the Platform, or (D) our ability to provide services to any third party;
- cause the Platform or portions of it to be displayed, embedded or appear to be displayed by framing, deep linking, in-line linking or similar method on any other site;
- use any robot, spider or other automatic device, process or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform;
- access or use the Platform in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;
- access or use the Platform for purposes of (A) benchmarking or competitive analysis, (B) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Platform, or (C) disclosing to our competitors, for any purpose, otherwise non-public information about the Platform; or
- knowingly aid or assist any Authorized User or other person or entity in taking any of the actions prohibited by this Section 4.c.
- You must immediately notify us should you learn that you, any Authorized User or any other person or entity has taken any action prohibited by this Section 4.c. You will be responsible for your Authorized Users’ compliance with the terms and conditions of this Agreement.
- Uses of the Platform.
- Accessing the Platform. We strive to provide a reliable and useful experience when using the Platform, but we do not guarantee that the Platform will be available at any specific time or that it will be free of errors, and we will not be liable for any reason if you cannot access the Platform or if an error in the Platform hinders any of its features or functionality.
- Account Security. If you or your Authorized Users choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you (and the applicable individual) must treat such information as confidential, and you (and the applicable individual) must not disclose it to any other person or entity. If you permit any other person to use your account, you will be responsible for their activities while using the Platform. You agree to notify us promptly of any unauthorized access to or use of any user name or password assigned to you or any other breach of security. Accessing the Platform without proper user name and password is strictly prohibited, constitutes a breach of this Agreement resulting in the termination of your right to use the Platform, and may violate copyright and other laws.
- Support Services. We will provide, on a 24/7 basis: (a) e-mail support (or other online support made available to our customers from time to time) to provide technical and operational assistance for the use of the Platform, including responses to questions about the documented features and functionality of the Platform and usage thereof, management of user accounts for Authorized Users, assistance with interpretation and use of the Documentation, and assistance with interpretation of error or warning messages appearing in dashboards or alerts, and (b) attempts to correct any reproducible failure of the Platform to perform in accordance with its Documentation, including case management to help track the status of any such failures (“Support Services”). You must provide all information and assistance that we reasonably request in connection with providing such Support Services. Our Support Services do not include: (i) support for software or hardware that is not ours; (ii) on-site training or assistance; or (iii) performance of any professional, consulting or advisory services.
- Confidentiality. During the Term and thereafter, each receiving party (each, a “Recipient”) will safeguard any proprietary or confidential information (collectively, “Confidential Information”) of the other party (the “Discloser”) from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own confidential information and in no event less than a reasonable degree of care, and will not disclose Discloser’s Confidential Information to any third party nor use the Discloser’s Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. The Platform and all non-public information related to the Platform is our Confidential Information, and Your Data is your Confidential Information. These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act by the Recipient, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, or (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser. Additionally, the Recipient may disclose Confidential Information to the extent required to do so in order to comply with applicable law or a valid order of a court of competent jurisdiction, provided that the Recipient must give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.
- Security and Data.
- Protected Health Information. With respect to handling any Protected Health Information, we currently do not process any PHI, but if and when we do, we will comply with the applicable provisions of HIPAA to the same extent as you are required to comply with HIPAA. We will not use or further disclose any Protected Health Information other than as permitted by this Agreement and the requirements of HIPAA pertaining to you. To the extent we are a “business associate” of yours under HIPAA, we will execute a business associate agreement with you, in a form that you and we agree upon, and we will comply with such agreement.
- Security Program. We will maintain and implement a written data security program that contains commercially reasonable administrative, technical and physical safeguards to protect against anticipated threats or hazards to the security, confidentiality or integrity of Your Data that we process on your behalf, including the unauthorized or accidental acquisition, destruction, loss, alteration or use of, and the unauthorized access to, Your Data.
- Review of Security Program. We will review and, as appropriate, revise our data security program at least annually or whenever there is a material change in our business practices that may reasonably affect the security or integrity of Your Data.
- Physical and Environmental Security. We will ensure that our information processing facilities that handle, process and store Your Data are housed in secure areas and protected by perimeter security, such as barrier access controls that provide a physically secure environment from unauthorized access, damage, and interference.
- Security Breaches.
- We will promptly report to you any unauthorized acquisition, access, use or disclosure of Your Data maintained on servers owned or otherwise licensed by us from a third party (e.g., the Hosting Services Provider) of which we are aware (each, a “Security Incident”). We will also use diligent efforts to investigate and contain any such Security Incident in a timely manner and deliver to you a root cause assessment and future incident mitigation plan with regard to each Security Incident. We will use our best efforts to prevent a recurrence of any such Security Incident.
- We will not inform any affected individual of any Security Incident without first obtaining your prior written consent, other than to inform a complainant that the matter has been forwarded to your legal counsel. We each will reasonably cooperate with each other in good faith in determining and carrying out an action plan for providing all notifications of Security Incidents required by applicable law. Notwithstanding the foregoing, we reserve the right, in our sole discretion, to report criminal acts relating to the use and disclosure of Your Data to applicable government authorities and shall notify you as soon as practicable that such reporting has occurred. With respect to instances in which we are considering notifying government authorities concerning civil, but not criminal, acts, we will notify you in writing and consult with you prior to making any such notification. We each will endeavor in good faith to reach agreement on the need and nature of such notification. If such agreement cannot be reached within 72 hours after we have provided you with written notice, we will have the right to inform government authorities to the extent permitted by applicable law.
- We agree to reasonably cooperate with you, at your expense, in any litigation, investigation, or other action reasonably deemed necessary by you to protect your rights relating to the use, disclosure, protection, and maintenance of Your Data. We agree to maintain and preserve all documents, records, and other data related to any Security Incident.
- If any such Security Incident results from our or our subcontractor’s material breach of this Agreement or any act or omission by us or our subcontractor that constitutes gross negligence or willful or intentional misconduct, we will reimburse you for all reasonable costs and expenses you may incur (including reasonable attorneys’ fees) in providing any notification of such Security Incident that is required by applicable law.
- Reputable Hosting Services Provider. During the Term, we may use Google Firebase (the “Hosting Services Provider”) to store and host the Platform and Your Data, enabling remote electronic access via the cloud. You consent to our use of the Hosting Services Provider to provide hosting services and acknowledge and agree that the Hosting Services Provider’s (i) security programs, policies, procedures, controls and technologies, and (ii) data backup and disaster recovery policies and procedures, are consistent with industry best practices thereby resulting in compliance with the requirements of this Section 8. During the Term, we may in our discretion elect to engage another nationally-recognized, cloud hosting services provider that implements and maintains commercially reasonable security programs, policies, procedures, controls and technologies to perform this function, but we will provide at least 30 days’ prior written notice to you prior to implementing such change.
- Fees and Payment.
- Fees. You will pay to us the fees and charges described in your Service Order (the “Fees”) in accordance with your Service Order and this Section. Except as otherwise expressly provided in this Agreement or your Service Order, all purchases are final, all payment obligations are non-cancelable and all Fees once paid are non-refundable.
- Taxes. Our Fees do not include taxes and similar assessments. We will pass along to you the cost of all applicable sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income. If you are exempt from such taxes, you must provide us with a true, up-to-date and complete copy of your direct pay permit or exemption certificate.
- Payment. You will make all payments in US dollars. You will, upon our request, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon establishment of an Automatic Payment Method, you agree that we may charge the Fees using that Automatic Payment Method. If instead we invoice you for the applicable Fees, invoiced amounts are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information.
- Ownership and Intellectual Property Rights.
- Relay One IP. You acknowledge and agree that we (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to in and to our name, logos and other trademarks, the Services and the Platform, including all associated features, functionality, software, content, materials and services made available thereon by us, including all new versions, updates, revisions, derivative works, improvements and modifications of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing and all related intellectual property rights (collectively, the “Relay One IP”). We are not granting you any right, license or authorization with respect to any of the Relay One IP except as we’ve specifically provided in Section 4 above (and subject to the limitations and restrictions in Section 4.c above). We and the respective rights holders in any Third-Party materials reserve all other rights in and to the Relay One IP.
- Your Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in Section 10.c.
- Right to Use Your Data. During the Term, you hereby grant to us and our subcontractors all such rights and permissions in or relating to Your Data as are necessary to: (i) perform the Services and provide the Platform to you; and (ii) enforce this Agreement and exercise our rights and perform our obligations under this Agreement. Additionally, during the Term and thereafter, you hereby grant to us all such rights and permissions in or relating to Your Data, in de-identified and aggregated form only (i.e., not including any Personally-Identifiable Information or Protected Health Information), as are necessary or useful for our internal research purposes, to improve the quality of our analytics and to improve the Platform, and to prepare aggregated statistical information used for demonstrating the effectiveness of the Platform.
- Publicity Rights. We will have the right to publicly identify you as a customer and may use logos and trademarks for the purpose of identifying the customer. We may include your name, trademarks and/or logos (the “Marks”) on our website and/or in other sales and marketing materials in order to factually identify you as a current or former customer (as the case may be). We may also, with your prior approval, not to be unreasonably withheld or delayed, include the Marks and additional information regarding the services provided to you hereunder in one or more press releases or case studies.
- Term and Termination.
- Term. The initial term of this Agreement and any renewal provisions are as indicated in your Service Order. The initial term and each renewal term are referred to in this Agreement as the “Term.”
- Termination. In addition to any other termination rights described in this Agreement or your Service Order, this Agreement may be terminated at any time:
- by you, effective immediately upon written notice to us; and
- by either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement and such breach remains uncured 30 days after the non-breaching party provides the breaching party with written notice regarding such breach.
- Effect of Termination.
- The exercise of any right of termination under this Agreement will not affect any rights of either party (including rights to payment or reimbursement) that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled.
- If this Agreement is terminated or expires, then: (A) except as provided in Section 10.c above, all rights, licenses and authorizations granted by one party to the other will immediately terminate, (B) we may disable your and your Authorized Users’ access to the Platform, and (C) except as provided in Section 10.c above, we each will cease all use of the other party’s Confidential Information and promptly destroy all of the other party’s Confidential Information, except that each party may retain Confidential Information in its backups, archives and disaster recovery systems until such Confidential Information is deleted in the ordinary course (so long as it remains subject to all confidentiality and other applicable requirements of this Agreement).
- In addition, if this Agreement is terminated by you in accordance with Section 2 or Section 3.b above or as a result of our uncured material breach in accordance with Section 11.b.ii above, or if we terminate this Agreement in accordance with our rights in Section 12.c or Section 13.c below, then we will promptly refund to you, on a pro rata basis, the share of any Fees prepaid by you for the future portion of the Term that would have remained but for such termination.
- Surviving Terms. Sections 4.c (Limitations and Restrictions), 7 (Confidentiality), 10 (Intellectual Property Rights), 11.c (Effect of Termination), 13 (Indemnification), 14 (Limitations of Liability), 15 (Miscellaneous), 16 (Definitions) and this Section 11.d will survive any expiration or termination of this Agreement.
- Representations and Warranties.
- By Us Regarding Our Services. We warrant that we will perform all Services in a professional and workmanlike manner, using adequate resources and appropriately qualified personnel, and consistent with generally-accepted standards of quality in our industry. If any Services are proven to not conform with this warranty, then we will, promptly following your written notice to us of the same, re-perform the applicable Services at no additional charge to you. THE REMEDIES SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE CONSTITUTE YOUR SOLE REMEDY AND OUR ENTIRE OBLIGATION AND LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY BREACH OF WARRANTY PROVIDED IN THIS SECTION 12.b.
- By Us Regarding the Platform – Beta Version. You acknowledge and agree that the Platform is a new product being provided to you in beta form and not in final production form, that we may discover errors, design flaws, inaccuracies or other problems (“Errors”) in the Platform that will need to be corrected, that it is common for beta versions of software products not to work as intended when first introduced and to experience Errors to be resolved during the normal troubleshooting and product development process, and that the Error correction process with respect to beta versions of software products may take longer than the period of time normally required to correct Errors for final production versions of software products. You agree that the existence of Errors in the Platform shall not be considered a breach or default under this Agreement. We will, at our sole cost and expense, use commercially reasonable efforts to correct such Errors within a period of time that is reasonable under the circumstances, but should we conclude that correcting a particular Error or related set of Errors is not feasible within commercially reasonable standards, then we may terminate this Agreement immediately upon written notice to you.
- Disclaimer of Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN SECTION 12.b, ALL SERVICES AND THE PLATFORM ARE PROVIDED “AS IS” AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
- Additional Disclaimer. The Platform is not a medical device and is not intended to diagnose, treat, cure or prevent any disease or condition. The Platform is not a substitute for any professional medical, surgical or therapeutic advice, diagnosis or treatment. Accordingly, we do not provide any warranty or representation with respect to the merchantability, fitness or suitability of the Platform for diagnosing or treating any disease or condition. Because the Platform is not a medical device, it has not been developed or manufactured in accordance with quality standards applicable to medical devices and we have not sought or received any rulings from the U.S. Food and Drug Administration as to the safety or effectiveness of the Platform for use in diagnosing, treating, curing or preventing any disease or condition. The Platform is solely designed to present information and facilitate communications among users of the Platform. The information presented on the Platform is made available solely for general information purposes and does not constitute, and is not intended to be, a comprehensive review of any condition or body system. The information presented on the Platform should not be used as a substitute for, or a replacement of, clinical or therapeutic decision making by a licensed surgeon or practitioner. We do not warrant the accuracy, completeness or usefulness of this information and any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user of the Platform, or by anyone who may be informed of any of its contents. We do not offer, and the Platform does not constitute, medical, diagnostic, surgical, therapeutic or other healthcare services or advice. Use of the Platform does not create a physician-patient or therapist-patient relationship.
- By Us. We will defend you from and against any Claims brought by a third party, and will indemnify and hold you harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that the Platform (excluding Your Data) or your use thereof in accordance with this Agreement and the Documentation infringe any patent, copyright, trademark or other intellectual property right of such third party, or misappropriates the trade secret of such third party (each, an “Infringement Claim”). Notwithstanding the foregoing, we will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (i) access to or use of the Platform in combination with any hardware, system, software, network or other materials or service not provided by us (or authorized in the Documentation or otherwise in writing by us); (ii) modifications or configurations made to the Platform, as applicable, by anyone other than us (or a party acting under our direction) without our prior written consent; or (iii) any action taken by you or any Authorized User relating to use of the Platform, as applicable, that is outside the scope of the rights and authorizations granted in this Agreement.
- By You. You will defend us and our subcontractors and our and their respective personnel from and against any Claims brought by a third party, and you will indemnify and hold us and our subcontractors and personnel harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that you have breached any provision in Section 12.a.
- Mitigation. If the Platform is, or in our opinion is likely to be, the subject of an Infringement Claim, or if your or any Authorized User’s use of the Platform is enjoined or threatened to be enjoined, we may, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the Platform as contemplated by this Agreement, (ii) modify or replace the Platform to make it non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate this Agreement upon written notice to you.
- Indemnification Procedures. Each party must promptly notify the other party in writing of any Claim for which such party believes it is entitled to be indemnified pursuant to this Section 13. The party seeking indemnification (the “Indemnified Party”) must cooperate with the other party (the “Indemnifying Party”) at the Indemnifying Party’s sole cost and expense. The Indemnifying Party will immediately take control of the defense, investigation and/or settlement of such Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s sole cost and expense; provided, however, that the Indemnifying Party may not without the Indemnified Party’s prior written consent settle any Claim unless it contains a full and unconditional release in favor of the Indemnified Party, does not contain any financial obligation or other liability of any kind on the part of the Indemnified Party, and does not require any admission of fault or liability by the Indemnified Party. The Indemnified Party’s failure to perform any obligations under this Section 13.d will not relieve the Indemnifying Party of its obligations under this Section 13 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
- Sole Remedy. THIS SECTION 13 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PLATFORM) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Limitations of Liability.
- Exclusion of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE PLATFORM, OR (iii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Cap on Monetary Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE GREATER OF (1) $10,000, OR (2) THE AGGREGATE AMOUNT PAID TO US HEREUNDER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST CLAIM HEREUNDER. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Exceptions to Limitations. The exclusions and limitations in this Section 14 will not apply to a violation of Section 4.c (Limitations and Restrictions), a party’s breach of Section 7 (Confidentiality), a party’s obligations under Section 13 (Indemnification), or liability for a party’s fraud, gross negligence or willful or intentional misconduct.
- Entire Agreement. This Agreement and each Service Order together constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom).
- Counterparts. Any Service Order may be executed in one or more counterparts, each of which will be an original, but taken together will constitute one and the same instrument. Execution of a facsimile copy (including PDF) or execution through electronic means will have the same force and effect as execution of an original.
- Amendment, Severability and Waiver. Except as expressly otherwise provided in Section 2 above, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Governing Law and Venue. Unless otherwise specified in your Service Order, this Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of North Carolina, without regard to its conflicts of law provisions, and the sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in the state of North Carolina, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action.
- Notices. All notices under this Agreement will be in writing and may be delivered by electronic mail in portable document format (.pdf), certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in the most recent Service Order (or to such other address or e-mail address specified by a party pursuant to the provisions of this Section).
- Assignment. Neither party may assign, delegate or otherwise transfer its rights or obligations under this Agreement without the other party’s prior written consent; provided, however, that either party may assign, delegate or otherwise transfer this Agreement without restriction: (i) in whole or in part to its affiliates, or (ii) in its entirety to an entity in good financial standing that acquires all or substantially all of the assigning party’s business or assets to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, stock sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.
- No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent, contracting parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
- Force Majeure. Neither party will be liable for any delays or non-performance of its obligations arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire (a “Force Majeure Event”), except to the extent that the delay or non-performance was not reasonably safeguarded against (in accordance with industry standards).
- Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach (i) by you of the limitations and restrictions in Section 4.c (Limitations and Restrictions), or (ii) by either party of any of its obligations under Section 7 (Confidentiality) would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Other Definitions. Capitalized terms that are used in this Agreement have the meanings described below:
“Claim” means any claim, suit, action or proceeding.
“Documentation” means the online, electronic and written user guides and manuals we make available to you which describe the functionality, components, features or requirements of the Platform.
“Authorized User” means each of your individual employees and contractors that has a valid registration for the Platform.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended by the Health Information Technology for Economic and Clinical Health Act, 42 U.S.C. § 17931, and all regulations promulgated thereunder, 45 C.F.R. Parts 160 through 164 (collectively, and as modified from time to time).
“Loss” means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.
“Permitted Use” means accessing and using the Platform to view and receive updates of the applicable Provider’s surgical schedule.
“Personally-Identifiable Information” means individually identifiable information about a natural person, including, without limitation, (a) a first and last name, (b) a home or other physical address, including the street name and name of a city or town, (c) e-mail address, (d) telephone number(s), (e) any other identifier that permits the physical or online contacting of a specific individual, and/or (f) information concerning an individual maintained in personally-identifiable form in combination with an identifier described in clauses (a)-(e) of this definition.
“Protected Health Information” has the meaning given to it under HIPAA.
“Service Order” means the order form, purchase order, online checkout page, proposal, service order or similar document or instrument executed by you, which is incorporated into this Agreement for all purposes.
“Your Data” means all data, information or records, including Personally-Identifiable Information and Protected Health Information, uploaded to the Platform by you or your Authorized Users in connection with this Agreement.