Terms of Service (Surgeons).
Last Updated: 22 May 2025
The following Surgency terms of service (“Terms of Service” together with any Order Forms, any attachments, exhibits, and/or amendments hereto, as amended from time to time, collectively the “Agreement”), form an agreement between) Surgency Health Corp. (“Surgency”, “we”, “our” or “us”) and you or the entity you represent (“Surgeon”, “you” or “your”) accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Services. This Agreement is effective as of date when you click an “I Accept” or “I Agree” button or check box presented with these Terms of Service or, if earlier, when you use any of the Services (the “Effective Date”).
BY USING THE SERVICES, SURGEON ACKNOWLEDGES THAT SURGEON HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14.12. IF SURGEON DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, SURGEON WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. YOU: (1) REPRESENT AND WARRANT THAT: (I) YOU HAVE REACHED THE LEGAL AGE OF MAJORITY IN YOUR JURISDICTION; (II) YOU HAVE THE CAPACITY TO ENTER INTO BINDING OBLIGATIONS; AND (III) ALL INFORMATION PROVIDED BY YOU TO US THROUGH THE SURGENCY SOLUTION IS TRUE, ACCURATE, CURRENT, AND COMPLETE; AND (2) AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MUST NOT ACCESS OR USE THE SERVICES. IF SURGEON IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON, SURGEON HEREBY REPRESENTS AND WARRANTS TO SURGENCY THAT SURGEON HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
THE SURGENCY SOLUTION MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
SURGENCY'S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH SURGENCY'S PRIOR WRITTEN CONSENT.
IF YOU ARE A PATIENT THIS AGREEMENT DOES NOT APPLY TO YOU AND YOU ARE REQUIRED TO AGREE TO THE TERMS OF USE FOR PATIENTS WHICH ARE AVAILABLE AT surgency.ca/terms-of-use, AS SUCH TERMS MAY BE UPDATED BY SURGENCY FROM TIME TO TIME (“TERMS OF USE”).
1. Definitions
Capitalized terms used in this Agreement have the meaning ascribed to them in the preamble or in this Section 1 as follows:
1.1 “Account Information” means information about you that you provide to us in connection with the creation or administration of Surgeon User Account. For example, Account Information includes BCI, usernames, and billing information associated with Surgeon User Account.
1.2 “Administrator User Account” has the meaning set out in Section 5.1.
1.3 “Administrator Users” has the meaning set out in Section 5.1.
1.4 “Affiliate” means, with respect to a party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
1.5 “Agreement” has the meaning set out in the preamble.
1.6 “AI ChatBot” has the meaning set out in Section 3.
1.7 “Amendment” has the meaning set out in Section 14.12.
1.8 “Annual Plan” has the meaning in Section 13.1.2(a).
1.9 “Anonymous Data” has the meaning set out in Section 3.1.
1.10 “API” means an application program interface.
1.11 “API Key” has the meaning set out in Section 2.6.
1.12 “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances, guidelines or judgments, in each case of any Governmental or Regulatory Authority and includes Privacy Laws and CASL.
1.13 “BCI” means Surgeon’s and its Permitted Users’ names, work titles, work phone numbers, and work email addresses associated with Surgeon User Account.
1.14 “CASL” means An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commissions Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (Canada) and the regulations thereunder.“Claim” means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.
1.15 “Commercial Electronic Message” (“CEM”) has the meaning set out under CASL.
1.16 “Confidential Information” has the meaning set out in Section 9.1.
1.17 “Contact Information” means the name and contact information provided to Surgency by Patient for the purpose of requeesting a a consult with a Surgeon.
1.18 “Content” means software (including machine images), data, text, audio, video, or images.
1.19 “Deliverables” means deliverable provided to Surgeon as a result of Professional Services.
1.20 “Dependencies” has the meaning set out in Section 2.5.
1.21 “Discloser” has the meaning set out in Section 9.1.
1.22 “Documentation” means any documentation in any form whatsoever, including any documents describing business processes and business process flows, reports, records, written designs, specifications, requirements, user manuals, user guides, operations manuals, training materials, instructions, blueprints, invention disclosures, patterns, flow charts, process maps, equipment part lists, drawings, or plans.
1.23 “Effective Date” has the meaning set out in the preamble.
1.24 “Fees” has the meaning in Section 8.1.
1.25 “Feedback” has the meaning set out in Section 3.5.
1.26 “Free Services” means Services that Surgency makes available to Surgeon free of charge. The term “Free Services” excludes Services offered as a free trial and paid Subscription.
1.27 “Force Majeure” has the meaning set out in Section 14.6.
1.28 “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over Surgency, Surgeon, the Services, the Surgeon Data or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by, such entities.
1.29 “Gross Negligence or Wilful Misconduct” means any act or failure to act in breach of a duty of care that was intended to cause harm, which rises to the level of intention wrongdoing, or was in reckless disregard of a wanton indifference to the harmful and foreseeable consequences of such act or failure to act but does not include an act or failure to act that constituted merely a lack of due care (or a contractual breach alone).
1.30 “High Risk Activities” means activities where the use or failure of the Services would reasonably be expected to result in death, serious personal injury, or severe environmental or property damage (such as the creation or operation of weaponry).
1.31 “Initial Service Term” means the initial service term as set out in the applicable Order Form, as further detailed in Section 13.1.2 of these Terms of Service.
1.32 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.33 “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.34 “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
1.35 “Monthly Plan” has the meaning in Section 13.1.2(c)(i).
1.36 “Order Form” means any ordering document, online registration, online application, pricing page, order description or order confirmation including any product specific terms, supplements, or addenda thereto.
1.37 “Output” has the meaning set out in Section 3.
1.38 “Patients” means the end users of Surgency Solution and other applicable Services that are patients or prospective patients of a Surgeon and whose use of the Surgency Solution and other applicable Services is subject to the Terms of Use . [A1]
1.39 “Permitted Purpose” means internal use or such other additional permitted purpose as may be set out in an applicable Order Form.
1.40 “Personal Information” means information about an identifiable individual.
1.41 “Permitted User(s)” means any individual or entity that directly or indirectly through another user (a) accesses or uses Surgeon Property, or (b) otherwise accesses or uses the Surgency Solution or other applicable Services under Surgeon User Account. The term “Permitted User” does not include individuals or entities when they are accessing or using the Surgency Solution, other Services or any Content under their own Surgency account, rather than under Surgeon User Account.
1.42 “Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
1.43 “Plan” means the applicable plan selected by the Surgeon for an applicable Subscription. The term “Plan” includes the Monthly Plan, or Annual Plan as applicable.
1.44 “Privacy Laws” means Applicable Laws that govern the privacy or security of Personal Information.
1.45 “Privacy Policy” has the meaning set out in Section 4.
1.46 “Professional Services” means consulting, training and other professional services described in an applicable Order Form. The term “Professional Services” does not include Surgency Solution.
1.47 “Prohibited Data” means any Personal Information.
1.48 “Prompt” has the meaning in Section 3.
1.49 “Purchased Services” means Services that Surgeon purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.
1.50 “Recipient” has the meaning set out in Section 9.1.
1.51 “Renewal Service Term” means the applicable renewal term of a Subscription as set out in the Order Form.
1.52 “Security Incident” means a breach of security leading to the accidental or unlawful destruction, alteration or loss of, unauthorized access to or unauthorized disclosure of Personal Information.
1.53 “Service Commencement Date” means the date for commencement of the Subscription to the applicable Purchased Services as set out in the applicable Order Form.
1.54 “Services” means Professional Services, Support Services, AI ChatBot and Surgency Solution collectively, and any part thereof. The term “Services” includes Surgency App for Android, Surgency App for iOS, any services provided to Surgeon as Free Services or under a free trial, and made available online by Surgency, as may be described in the Documentation. For avoidance of doubt, the term “Services” does not include Third-Party Products and Output.
1.55 “Service Term” means in respect of any Subscription for Purchased Services, the Initial Service Term and all applicable Renewal Services Terms.
1.56 “Subscription” means subscription to Purchased Services with a limited right to access and use Surgency Solution outlined in the applicable Order Form.
1.57 “Surgency”, “we”, “our” or “us” has the meaning set out in the preamble.
1.58 “Surgency App for Android” has the meaning set out in Exhibit A.
1.59 “Surgency App for iOS” has the meaning set out in Exhibit A.
1.60 “Surgency Indemnitee” has the meaning set out in Section 11.
1.61 “Surgency Property” has the meaning set out in Section 3.1.
1.62 “Surgency Solution” means services through: (i) which Surgency hosts and makes available Surgency’s software-as-a-service offering as described in an Order Form; and (ii) any component or Modification of the services referred to in (i). The term “Surgency Solution” excludes any Third-Party Products, Professional Services, Support Services, free trials or training services.
1.63 “Surgency Metadata” means technical operational metadata that is generated by the Surgency Solution solely for the purpose of operating, maintaining and improving the technical performance and security of the Surgency Solution. Surgency Metadata explicitly excludes any Surgeon Data, and shall not include any Confidential Information of Surgeon.
1.64 “Surgency Property” has the meaning set out in Section 3.2.
1.65 “Surgeon”, “you” or “your” has the meaning set out in the preamble.
1.66 “Surgeon Application” means any Surgeon’s application that interfaces with APIs.
1.67 “Surgeon Data” means any data (excluding Anonymous Data), information, content, records, and files, that Surgeon (or any of its Permitted Users) loads, makes available to and is accessed by, transmits to or enters into the Services and including any Surgeon Content. The term “Surgeon Data” includes any credential information provided by Surgeon to Surgency as part of the onboarding process or otherwise and Account Information. The term “Surgeon Data” does not include any Personal Information including any Patient’s Personal Information.
1.68 “Surgeon Content” means Surgeon’s Content. The term “Surgeon Content” includes Prompts.
1.69 “Surgeon Property” means Surgeon Application, Surgeon Data, and other Surgeon’s Confidential Information.
1.70 “Surgeon User Accounts” has the meaning set out in Section 5.1.
1.71 “Support Services” has the meaning set out in Section 6.
1.72 “Term” has the meaning set out in Section 13.1.
1.73 “Termination Effective Date” has the meaning set out Section 13.
1.74 “Terms of Service” has the meaning set out in the preamble.
1.75 “Terms of Use” has the meaning set out in the preamble.
1.76 “Third Party Licensed Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
1.77 “Third-Party Products” means Third Party Licensed Technology and any other Third Party Services.
1.78 “Third Party Services” has the meaning set out in Section 3.
1.79 “Use” or “using” has the meaning set out in the preamble.
2. Access and Use
2.1 Provision of Access.
2.1.1 Purchased Services. Subject to Surgeon's and its Permitted Users’ compliance with the terms and conditions of the Agreement, Surgency hereby grants Surgeon a revocable, limited, non-exclusive, non-transferable (except as permitted in Section 14.2), non-sublicensable (except as permitted herein to Permitted Users) right to access and use the Surgency Solution during the applicable Service Term, solely for use by Permitted Users in accordance with the terms and conditions herein. Such use is limited to the Permitted Purpose. The total number of Permitted Users will not exceed the number for the applicable Plan, as may be further set out in the Order Form, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.
2.1.2 Free Trial. Upon Surgeon's request, Surgency may provide Surgeon with a free trial of the Surgency Solution for the period set by Surgency in writing. If Surgeon does not agree to continue use of the Surgency Solution through a paid Subscription as described herein, Surgency will terminate Surgeon's right to access the Surgency Solution immediately upon the end of the free trial period. Surgeon agrees that Surgency, in its sole discretion and for any or no reason, may terminate Surgeon's access to the Surgency Solution during any free trial or any part thereof. Surgeon agrees that any termination of Surgeon's access to the free trial may be without prior notice, and Surgeon agrees that Surgency will not be liable to Surgeon or any third party for such termination. ANY SURGEON DATA THAT SURGEON ENTERS INTO THE SERVICES (INCLUDING SURGENCY SOLUTION) DURING SURGEON'S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS SURGEON PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, BEFORE THE END OF THE TRIAL PERIOD. SURGEON CANNOT TRANSFER SURGEON DATA ENTERED DURING THE FREE TRIAL TO SERVICES THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF SURGEON PURCHASES A SUBSCRIPTION THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, SURGEON MUST EXPORT SURGEON DATA BEFORE THE END OF THE TRIAL PERIOD OR SURGEON DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING THE “WARRANTY; DISCLAIMER” SECTION AND “SURGENCY INDEMNITIES” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND SURGENCY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SURGENCY'S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED USD$100.00. WITHOUT LIMITING THE FOREGOING, SURGENCY AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO SURGEON THAT: (I) SURGEON'S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET SURGEON'S REQUIREMENTS; (II) SURGEON'S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (III) DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, SURGEON SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SURGENCY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF SURGEON'S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY SURGEON OF THIS AGREEMENT AND ANY OF SURGEON'S INDEMNIFICATION OBLIGATIONS HEREUNDER. SURGEON SHALL REVIEW THE APPLICABLE SERVICE'S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
2.1.3 Free Services. Surgency may make Free Services available to Surgeon. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Surgeon without charge up to certain limits as described in the Documentation. Usage over these limits requires Surgeon's purchase of additional resources or services. Surgeon agrees that Surgency, in its sole discretion and for any or no reason, may terminate Surgeon's access to the Free Services or any part thereof. Surgeon agrees that any termination of Surgeon's access to the Free Services may be without prior notice, and Surgeon agrees that Surgency will not be liable to Surgeon or any third party for such termination. Surgeon is solely responsible for exporting Surgeon Data from the Free Services prior to termination of Surgeon's access to the Free Services for any reason. NOTWITHSTANDING THE “WARRANTY; DISCLAIMER” SECTION AND “SURGENCY INDEMNITIES” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND SURGENCY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SURGENCY'S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED USD$100.00. WITHOUT LIMITING THE FOREGOING, SURGENCY AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO SURGEON THAT: (I) SURGEON'S USE OF THE FREE SERVICES WILL MEET SURGEON'S REQUIREMENTS; (II) SURGEON'S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (III) DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, SURGEON SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SURGENCY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF SURGEON'S USE OF THE FREE SERVICES, ANY BREACH BY SURGEON OF THIS AGREEMENT AND ANY OF SURGEON'S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.2 Restrictions on Use. Surgeon will not itself, and will not permit others to: (i) sub-license, sell, rent, lend, lease or distribute the Services or other Surgency Property or any Intellectual Property Rights therein or otherwise make the Services or other Surgency Property available to the third parties other than Permitted Users; (ii) use the Services or other Surgency Property to permit timesharing, service bureau use or commercially exploit the Services or other Surgency Property; (iii) use or access the Services: (A) in violation of any Applicable Law or Intellectual Property Right; (B) in a manner that threatens the security or functionality of the Services or other Surgency Property, (C) for any High Risk Activities, or (D) for any purpose or in any manner not expressly permitted in this Agreement or otherwise pursuant to Surgency's express written instruction or consent; (iv) use or disclose Contact information for any purpose other than contacting the Patient to set up a consultation and, without limiting the foregoing, shall not use any Contact Information to send or cause or permit to be sent any CEMs to patients unless the Surgeon has obtained consent in compliance with Applicable Laws; (iv) use the Services to create, collect, upload, transmit, store, use or process any Surgeon Data that: (A) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (B) Surgeon does not have the lawful right to create, collect, transmit, store, use or process; (C) that contains any Prohibited Data; or (D) violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); (v) Modify the Services or other Surgency Property; (vi) reverse engineer, de-compile or disassemble the Services or other Surgency Property; (vii) remove or obscure any proprietary notices or labels on the Services or other Surgency Property, including brand, copyright, trademark and patent or patent pending notices; (viii) access or use the Services, other Surgency Property or any Outputs for the purpose of building a similar or competitive product or service; (ix) automatically connect (whether through APIs or otherwise) the data made available to Surgeon as part of the Services to other data, software, services or networks, other than as expressly permitted by Surgency in writing; (x) use Surgency Property, Output or our third-party providers’ property to train any artificial intelligence (AI) or machine learning algorithms or software or create any derivative works, compilations or collective works or in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law; (xi) perform any vulnerability, penetration or similar testing of the Services or other Surgency Property; or (xii) use or access the Services in any manner that is contrary to any additional restrictions set out in the Order Form or for any purpose or in any manner not expressly permitted in this Agreement or otherwise pursuant to Surgency's express written instruction or consent.
2.3 Suspension; Modifications. Surgency may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity under this Agreement: (i) suspend Surgeon's access to or use of the Services, Third-Party Products or any component thereof: (A) for scheduled maintenance that has been notified to Surgeon in advance as provided in this Section 2.3; (B) if there is a Force Majeure event; (C) if Surgeon or any Permitted User violates any provision of this Agreement, including without limitation any of the restrictions set out in Section 2.2 above; (D) to address any emergency security concerns; (E) if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Law; or (F) for non payment of undisputed Fees when due as provided in Section 8.6; and (ii) Modify the Services provided that no such Modification reduces the material functionality of the Services. Surgency will give notice of suspension under this Section 2.3 if permitted by Applicable Laws, provided, however, that Surgeon acknowledges and agrees that it may not be feasible for Surgency to provide written notice prior to suspending the Surgency Property in order to address emergency security concerns, in which case, Surgency will provide notice as soon as reasonably possible after such suspension. Surgency will reinstate Surgeon’s access to the Services only if Surgeon resolves the underlying issue.
2.4 Subcontracting; Sub-processing. Surgency may engage third parties to assist it in providing the Services or any part thereof without consent of the Surgeon and without notice to Surgeon. The delegating or subcontracting of all or any part of Surgency's obligations under this Agreement to any subcontractor will be subject to Surgeon’s prior written approval and will not relieve Surgency from any obligation or liability under this Agreement.
2.5 Professional Services. Surgency will perform Professional Services set out in an applicable Order Form. The parties may also set out Deliverables to be delivered by Surgency in an applicable Order Form. Surgeon acknowledges and agrees that Surgency's performance of the Professional Services is dependent on Surgeon's performance of certain activities and tasks as may be reasonably requested by Surgency to facilitate Surgency's timely performance of the Professional Services, including, without limitation, providing Surgency with access to sufficiently qualified employees of Surgeon, Surgeon facilities, or working space or office support at such Surgeon facilities (“Dependencies”). Surgency will not be liable for any delay or non-performance of any Professional Services caused by Surgeon's non-performance or inadequate performance of any Dependencies. All Professional Services will be performed remotely unless otherwise indicated in the Order Form as being an on-site provided service. Within 5 business days of Surgency's delivery of a Deliverable, Surgeon will provide Surgency with written notice of its acceptance or rejection of such Deliverable. If Surgeon rejects any such Deliverable, Surgency will correct the deficiencies set out in Surgeon's notice of rejection for such Deliverable. Once Surgency has notified Surgeon that it has completed such corrections, Surgeon will have 5 business days from the date of such notice to re-test the Deliverable. If Surgeon uses any Deliverable delivered by Surgency or fails to give notice of acceptance or rejection within the time period set out herein, such use of any Deliverable or failure to give notice of acceptance or rejection will constitute Surgeon's deemed acceptance of such Deliverable (provided such acceptance shall not be deemed to be waiver of any otherwise breach or liability under this Terms of Service).
2.6 Surgency’s APIs.
(a) Use of APIs.
(i) In order to use Surgency’s APIs, Surgeon must first sign up with Surgency, agree to these Terms of Service, and receive an API key from Surgency or a Reseller, if applicable (each, an “API Key”). Surgeon acknowledges that such API Keys are Surgency’s Confidential Information (as defined below) and will not share Surgeon’s API Keys with any third party without Surgency’s prior consent. In addition, Surgency may revoke Surgeon’s API Keys any time without Surgeon’s consent.
(ii) Surgeon may incorporate Surgency’s APIs into Surgeon’s products and services and otherwise use Surgency’s APIs in connection with its internal business purposes, provided such incorporation and use are done in accordance and in compliance with this Agreement and the related Documentation.
(iii) Unless otherwise set out in an Order Form, the number of calls Surgeon makes to Surgency’s APIs during any given period may be limited, at Surgency’s sole discretion, based on various factors that include the manner in which Surgeon makes calls to Surgency’s APIs and the anticipated volume of use associated with Surgeon.
(iv) Surgency reserves the right to change Surgency’s APIs and related Documentation at any time and without notice. Surgeon acknowledges and understands that these changes may require Surgeon to make changes to Surgeon Applications at Surgeon’s own cost and expense.
(v) Notwithstanding the foregoing, Surgency retains the right, at Surgency’s sole discretion, to suspend or revoke Surgeon’s or its Permitted Users’ access to the Surgency’s APIs, at any time and for any reason, including for: (A) violation of the terms of this Agreement, or any responsible use guidelines Surgency provides to Surgeon or are posted on the website; (B) Surgeon’s use of the Surgency’s APIs contrary to the related Documentation; (C) scheduled maintenance; or (D) any emergency security concerns.
(b) Monitoring Usage of Surgency’s APIs.
(i) Surgeon acknowledges and agrees that Surgency may monitor Surgeon’s or its Permitted Users’ use of Surgency’s APIs and that Surgeon will not block or otherwise interfere with Surgency’s monitoring.
(ii) At Surgency’s request, Surgeon will provide Surgency access to, and use of, Surgeon Application, at no cost to Surgency, for the purpose of monitoring or reviewing Surgeon Applications for compliance with this Agreement.
2.7 Access Through Surgency App for iOS. If the Surgency Solution is provided to Surgeon through the Surgency App for iOS, the terms and conditions set out in Exhibit A will govern, in addition to all the other terms and conditions of this Agreement.
2.8 Access Through Surgency App for Android. If the Surgency Solution is provided to Surgeon through the Surgency App for Android, the terms and conditions set out in Exhibit A will govern, in addition to all the other terms and conditions of this Agreement.
3. Ownership; Reservation of Rights
3.1 Surgeon Property. Surgeon owns and retains all right, title and interest including all Intellectual Property Rights in or to the Surgeon Property. Surgeon grants to Surgency: (i) a nonexclusive, worldwide, royalty-free, non-transferable (except as permitted in Section 14.2), non-sublicensable (except to subprocessors and subcontractors) limited and fully paid-up licence during the Term to access, collect, use, process, store, transmit, transfer, copy, Modify and display Surgeon Property solely as necessary to provide the Services.
3.2 Surgency Property. Surgency or its licensors owns and retains all rights, title and interest including all Intellectual Property Rights in and to: (i) the Services; (ii) Surgency’s Content; (iii) Documentation; (iv) Surgency Metadata; (v) other than Surgeon Property, anything used, developed or delivered by or on behalf of Surgency under this Agreement including without limitation any Anonymous Data, API Keys, and Deliverables; and (vii) any Modifications to the foregoing (collectively “Surgency Property”). All rights not expressly granted by Surgency to Surgeon under this Agreement are reserved.
3.3 Anonymous Data. Surgency shall be permitted to generate anonymous data that is non-identifiable as to Surgeon or any individual and otherwise no longer constitutes “personal information”, “personal data” or equivalent terms under applicable Privacy Laws (“Anonymous Data”). For the avoidance of doubt, the processing of Anonymous Data will not be subject to the terms of the Privacy Policy. Surgency may use, process, store, disclose, transfer, transmit, copy, modify and display the Anonymous Data for any purpose and without restriction or obligation to Surgeon of any kind. Anonymous Data is not Surgeon Data and is not Surgeon’s Confidential Information.
3.4 Deliverables and Documentation License. Subject to the terms and conditions contained in this Agreement, Surgency hereby grants to Surgeon a limited, revocable, non-exclusive, non-transferable, non-sublicensable (except to permit use by Permitted Users), license to access and use the Documentation and Deliverables made available to Surgeon or any Permitted Users during the applicable Service Term, solely for the Permitted Purpose.
3.5 Feedback. To the extent that Surgeon or any Permitted User submits ideas, suggestions, documents, or proposals regarding the Services to Surgency (“Feedback”), Surgeon acknowledges and agrees that:
(a) the Feedback does not contain confidential or proprietary information and Surgency is not under any obligation of confidentiality with respect to the Feedback; and
(b) Surgency will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to Surgeon for such use.
3.6 AI ChatBot. Subject to this Agreement, Surgency makes available to Surgeon certain artificial intelligence tools in connection with Surgeon’s use of the applicable Services (collectively, the “AI ChatBot”). Except where expressly specified otherwise in this Agreement, the AI ChatBot constitute a “Service” for the purposes of the Agreement and the Agreement shall apply in full to Surgeon’s use of the AI ChatBot. The AI ChatBot leverages third party large language models and artificial intelligence algorithms and platforms (“Third-Party Services”) to generate suggested text, information, results, images, and other materials (collectively, the “Output”) in response to the Surgeon’s prompts (“Prompts”). Surgency does not make any representations with respect to Third-Party Services or any Output provided in connection therewith. We are not responsible for Outputs, and you are responsible for checking Outputs for accuracy and suitability. The Outputs provided by AI ChatBot do not reflect the views of Surgency, our Affiliates or our personnel. Surgency makes no claim to ownership of Prompts or Outputs. AS BETWEEN SURGENCY AND SURGEON, TO THE EXTENT PERMITTED BY APPLICABLE LAWS, SURGEON OWNS THE OUTPUTS (OTHER THAN ANY SURGENCY PROPERTY EMBEDDED IN SUCH OUTPUTS (INCLUDING ANY DERIVATIVE AI WORK OR ARTIFACTS CREATED WITH SURGEON PROPERTY USING ANY SERVICES). NOTWITHSTANDING THE FOREGOING, SURGEON ACKNOWLEDGES AND AGREES THAT CERTAIN JURISDICTIONS DO NOT RECOGNIZE INTELLECTUAL PROPERTY OWNERSHIP IN MODEL OUTPUTS AND AS A RESULT SURGENCY MAKES NO REPRESENTATION OR WARRANTY THAT SURGEON WILL HAVE FULL OWNERSHIP OF SUCH OUTPUTS.
4. Privacy
4.1.1 Personal Information will be treated in accordance with Surgency’s privacy policy located at surgency.ca/privacy as may be updated by Surgency from time to time (the “Privacy Policy”).
4.1.2 The Parties acknowledge and agree that (i) Surgency will obtain Patient consent to disclose Contact Information to Surgeon for the purposes of setting up a consultation with the Surgeon, (ii) Surgency does not act as a service provider or information manager to Surgeon under Privacy Laws, and (iii) Surgency does not collect, use, store, process or maintain such Contact Information or any other Patient Personal Information on behalf of Surgeon.
4.1.3 Given the inherent nature of the internet and public networks, and without limiting the Privacy Policy referenced herein, Surgency does not, and cannot, guarantee the security of data transmitted or the confidentiality of any communications made by Surgeon or any Permitted User over the Internet or public networks in connection with Surgeon’s use of Services.
5. Surgeon User Account; Surgeon Responsibilities
5.1 In order for Surgeon to access and use the Surgency Solution, Surgency will issue one or more administrator accounts (“Administrator User Account”) to Surgeon for use by Administrator User (as defined below), that provides Surgeon with the capability to create user accounts for other Permitted Users and together with the Administrator User Accounts the (“Surgeon User Accounts”). Surgeon will ensure that each Permitted User only uses the Surgency Solution through its assigned Surgeon User Account. Surgeon will not allow any Permitted User to share its Surgeon User Account with any other person. “Administrator Users” means those employees of Surgeon that are authorized by Surgeon to access and use the Surgency Solution on Surgeon's behalf through an Administrator User Account. Surgeon will promptly notify Surgency of any actual or suspected unauthorized use of the Surgency Solution. Surgency reserves the right to suspend, deactivate, or replace a Surgeon User Account if it determines that a Surgeon User Account may have been used for an unauthorized purpose.
5.2 As between Surgency and Surgeon, Surgeon will solely be responsible for:
(a) the accuracy, quality and legality of all Surgeon Property, the means by which Surgeon acquired Surgeon Property, Surgeon’s use of Surgeon Property with Services, and the interoperation of any third party products or systems with which Surgeon uses Services;
(b) providing, at its own expense, all network access to Services, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use Services;
(c) properly configuring and using Services and taking its own steps to maintain appropriate security, protection and backup of its infrastructure (including without limitation any databases, servers, and any other protocol) which may include the use of encryption technology to protect such infrastructure from unauthorized access and routine archiving of such infrastructure;
(d) using Services in accordance with this Agreement and Applicable Laws;
(e) identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use Surgency Solution;
(f) using the Patient’s Personal Information disclosed to Surgeon or its Permitted Users via the Services solely for the purposes of setting up a consultation with such Patient (unless the Surgeon is otherwise permitted by Applicable Law);
(g) ensuring that Permitted Users comply with this Agreement and Surgeon will be liable for any breach by a Permitted User, of this Agreement; and
(h) ensuring that none of the Permitted Users or any Patients bring or maintain any Claim against Surgency, its shareholders, employees, officers, directors, affiliates, agents, contractors, successors, and assigns in respect of any matter related to or in connection with the subject matter of this Agreement.
6. Support Services
Unless otherwise specified in the Order Form, Surgency will provide Surgeon with reasonable technical support services in accordance with Surgency's then-current support policy (“Support Services”).
7. Third-Party Products
If the Services contain or require the use of Third Party Licensed Technology, Surgeon will accept and comply with the license terms applicable to such Third Party Licensed Technology. If Surgeon does not agree to abide by the applicable license terms for any such Third Party Licensed Technology, then Surgeon should not install, access, or use such Third Party Licensed Technology. Any acquisition by Surgeon of Third-Party Products, and any exchange of data between Surgeon and any such provider of Third-Party Products is solely between Surgeon and the applicable Third-Party Products provider. Surgency does not warrant or support Third-Party Products, even if they are designated by Surgency as “certified” or otherwise recommended. Surgency cannot guarantee the continued availability of Third-Party Products features, and may cease providing them without entitling Surgeon to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Surgency. Surgency is not responsible for any disclosure, modification or deletion of Surgeon Property resulting from access to Surgeon Property by such Third-Party Products or their providers.
8. Fees and Payment
8.1 Fees. Surgeon will pay Surgency the then applicable fees for Purchased Services and Plan as described in the Order Form (the “Fees”). Unless otherwise noted on an Order Form: (i) all Fees identified are in Canadian dollars and payable immediately in advance for all Plans; (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If Surgeon’s use of the Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Surgeon will be billed for such usage and Surgeon will pay the additional fees in accordance with this Agreement.
8.2 Changes to the Fees. Surgency reserves the right to change the Fees or applicable charges and to institute new charges and Fees before a then current Renewal Service Term, provided that Surgency gives the Surgeon prior written notice to Surgeon (which may be sent by email or via the Surgency Solution).
8.3 Disputed Invoices or Charges. If Surgeon believes that Surgency has billed Surgeon incorrectly, Surgeon must contact Surgency no later than 10 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Surgency's customer support department. In the event of a dispute, Surgeon will pay any undisputed amounts in accordance with the payment terms herein, and the parties will discuss the disputed amounts in good faith in order to resolve the dispute.
8.4 Late Payment. Surgeon may not withhold or setoff any amounts due under this Agreement. If Surgeon fails to make any payment when due on any undisputed Fees, without limiting Surgency's other rights and remedies, Surgency may, if such failure continues for ninety (90) days following written notice thereof, Surgency may: (i) charge interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid; and (ii) (A) suspend, in accordance with Section 2.3, Surgeon's and all other Permitted Users' access to any portion or all of the Services until such amounts are paid in full; or (B) terminate the Agreement immediately on notice (which may be sent by electronic means to the account administrator), without incurring any obligation or liability to Surgeon or any other Person by reason of such suspension or termination.
8.5 Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Surgeon will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Surgency.
8.6 Suspension. Any permitted suspension of the Services by Surgency pursuant to the terms of this Agreement will not excuse Surgeon from its obligation to make payments of undisputed Fees incurred for Services provided prior to such suspension.
8.7 Credit Card. Unless otherwise agreed to in an Order Form, a valid payment method, including credit card, is required to process the payment of Fees. Surgeon shall provide Surgency with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, Surgeon automatically authorizes Surgency to charge all Fees incurred through Surgeon's account to any such payment instruments. Should automatic billing fail to occur for any reason, Surgency may issue an electronic invoice indicating that Surgeon must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
8.8 Payment Processor. Payment and collection of Fees is enabled through and executed by third party payment processors. Surgeon may be required to agree to terms and conditions as required by such third-party payment processor from time to time. Prior to using the Services and any components thereof, Surgeon must have all applicable such third-party payment processor's terms and conditions in effect. By using the Services or any component thereof, Surgeon acknowledges it must be in full compliance with the terms and conditions of such third-party payment processor and be in good standing with such third party payment processor. Notwithstanding the above, to the extent that the Surgeon does not agree to the terms of the third-party payment processor designated by Surgency, the parties will agree on an alternate payment method.
9. Confidential Information
9.1 Definitions. For the purposes of this Agreement, a party or any of its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information will be “Recipient”, the party disclosing such information will be “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its Affiliates, and in the case of Surgency, any of its service providers, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business, Surgency Property, this Agreement and where Discloser is Surgeon, Surgeon’s Confidential Information includes Surgeon Property. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include any information that: (i) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient; (ii) Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement; (iii) becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until Recipient subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or (iv) Recipient can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, the Confidential Information of Discloser.
9.2 Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times following the Term it will:
(a) not disclose Confidential Information of Discloser to any person without the express written consent of Discloser, except to its Permitted Users (if Recipient is Surgeon), or its and its Affiliate’s employees, contractors, advisors, consultants, officers, directors, partners, shareholders, agents and their respective successors or permitted assigns (if Recipient is Surgency), or such other recipients as Discloser may approve in writing, that have a “need to know” for the purposes of receiving or providing the Services, who are informed of the confidential nature of the Confidential Information, who are directed to hold the Confidential Information in confidence and who agree in writing, or are otherwise legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement;
(b) not use Confidential Information of Discloser or permit it to be accessed or used for any purpose except to exercise its rights or perform its obligations under this Agreement;
(c) not alter or remove from any Confidential Information of Discloser any proprietary legend; and
(d) maintain the Confidential Information of Discloser in strict confidence, which will include taking measures to protect the confidentiality and security of such Confidential Information using a reasonable standard of care, and no less than the standard of care taken to protect its own Confidential Information of similar sensitivity.
9.3 Exceptions to Confidentiality. Notwithstanding Section 9.2, Recipient may disclose Discloser's Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies (unless prohibited by Applicable Law) the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party's business; or (iii) in the case of Surgency, to Surgency’s subcontractors and subprocessors in order to provide the Services, and provided that in all such instances any such Surgeon’s Confidential Information remains subject to the confidentiality protections under this Agreement.
9.4 Injunction and other equitable relief. Each of the parties acknowledge that disclosure of Discloser’s Confidential Information or any other breach of this Section 9 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and each party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Section 9 and to the specific enforcement of the terms of this Section 9, in addition to any other remedy to which Discloser would be entitled..
9.5 Return of Confidential Information. Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control within a reasonable amount of time in accordance with the Recipient's data destruction practices. Notwithstanding the foregoing, the Recipient may retain copies of the Confidential Information of the Discloser as required by Applicable Law, or to the extent such copies are electronically stored in accordance with the Recipient's standard backup procedures or record retention policies, so long as such Confidential Information remains subject to the confidentiality provisions set out in this Agreement. Each party will protect any Confidential Information of the other party in accordance with this Agreement so long as it retains such Confidential Information.
10. Warranty; Disclaimer
10.1 Mutual Representations and Warranties. Each party represents, warrants, and covenants that:
10.1.1 it has full power and all necessary rights and authority to enter into this Agreement and to perform its obligations hereunder; and
10.1.2 it will carry out its obligations under this Agreement in compliance with Applicable Laws, rules and regulations, applicable to it and the Services.
10.2 Surgeon Representations and Warranties. Surgeon represents and warrants to, and covenants with, Surgency that: (i) Surgeon Property will not contain any Prohibited Data; and (ii) without limiting Section 10.2 (i), Surgeon has, in respect of any Surgeon Data, provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by Applicable Laws, to enable Surgency to: (A) provide the Services, which may include transmissions by or to Surgency and to or from all applicable third parties; and (B) otherwise exercise its rights under this Agreement, including under Section 3 and the Privacy Policy; (ii) Surgeon and its Permitted Users will comply with all Applicable Laws, including all Applicable Laws relating to the promotion and advertisement of, and charging for, medical services; (iii) Surgeon and Permitted Users are not named on any Canadian, U.S., or other list of persons or entities prohibited from receiving Canadian or U.S. exports, or from transacting with any Canadian; or U.S. entity and it is not a national of, or a company registered in, any jurisdiction in which the provision of the provision of the other party's goods or services is prohibited under Canadian, U.S., or other Applicable Laws; and (iv) Surgeon will comply with Section 14.4.
10.3 Surgency Warranties. Surgency warrants that: (i) the overall functionality of the Surgency Solution will not be materially decreased as described in the applicable Documentation; (ii) it will perform the Professional Services in a professional and workmanlike manner; (iii) if applicable, the media on which any part of the applicable Surgency Solution will be delivered by Surgency, will be free from all viruses and malicious code (provided that this warranty does not extend to any malicious code or virus introduced into the Surgency Solution by the Surgeon); and (iv) Surgency shall not use Surgeon Data to train or retrain its own machine learning modules or services. Surgeon shall report to Surgency, pursuant to the notice provision of this Agreement, any breach of the warranty set forth in this Section 10.3. In the event of a breach of warranty by Surgency under Section 10.3(i), and 10.3 (iii) of this Agreement, Surgeon’s sole and exclusive remedies and Surgency’s sole and exclusive liability is for Surgency to make correct such non-conformance and if it is unable to correct the non conforming Surgency Solution, Surgency will refund of the prepaid unused Fees paid for the affected Surgency Solution. In the event of a breach of the warranty in Section 10.3(ii), as Surgeon’s sole and exclusive remedy and Surgency’s sole and exclusive liability, Surgency will reperform the Professional Services as provided in the applicable Order Form, at no additional costs to Surgeon. In the event of a breach of warranty by Surgency under Section 10.3(iv), of this Agreement, Surgeon’s sole and exclusive remedies and Surgency’s sole and exclusive liability is for Surgeon to terminate this Agreement for cause as provided in Section 10.3.1 (i). Notice of breaches of this warranty in Sections 10.3(i)-(iii) will be made through Surgency ’s current error reporting system as set out in the applicable Order Form and notices of breaches of any other warranty in Section 10.3 will be made in accordance with Section 14.1 (Notices).
10.4 DISCLAIMERS. SUBJECT TO AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTIONS 10.1 AND 10.3 OF THIS AGREEMENT, SURGENCY DOES NOT WARRANT THAT THE SERVICES OR THE SURGENCY PROPERTY WILL BE UNINTERRUPTED OR THAT THE SERVICES OR THE SURGENCY PROPERTY WILL BE ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THE SURGENCY PROPERTY. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND THE SURGENCY PROPERTY (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY SURGENCY TO SURGEON ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY PRODUCTS IS STRICTLY BETWEEN SURGEON AND THE THIRD PARTY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SURGENCY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SURGENCY EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY SURGEON’S CREDENTIALS, DATA, OUTPUT, OR OTHER CONTENT PROVIDED TO SURGEON OR ANY PERSON (INCLUDING PERMITTED USERS OR PATIENTS) IN CONNECTION WITH SURGEON’S USE OF THE SERVICES OR OTHER SURGENCY PROPERTY (OR ANY PART THEREOF) IS COMPLETE, ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY SURGEON OR ANY PERSON (INCLUDING ANY HEALTH PROFESSIONAL OR ANY PATIENT) FOR ANY PURPOSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO WHETHER ANY HEALTH SERVICE IS APPROPRIATE FOR ANY PARTICULAR PATIENT. SURGEON UNDERSTANDS THAT THE NATURE OF AI MODELS IS NOT INTENDED, AND CANNOT BE, RELIED UPON WITHOUT INDEPENDENT VERIFICATION. ACCORDINGLY, SURGEON AGREES THAT IT WILL INDEPENDENTLY VALIDATE AND INSTRUCT ITS PERMITTED USERS AND OTHER PERSONS TO INDEPENDENTLY VALIDATE THE RESULTS OF THE SERVICES, INCLUDING ALL OUTPUTS, BEFORE RELYING ON SUCH RESULTS AND OUTPUTS AND WILL ENSURE THAT ALL PERSONS WHOM IT SHARES SUCH RESULTS AND OUTPUTS WITH UNDERSTANDS SUCH LIMITATIONS.
THE SERVICES AND OTHER THE SURGENCY PROPERTY ARE NOT A HEALTH SERVICE AND ARE NOT DESIGNED OR INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL NURSING OR MEDICAL ADVICE OR JUDGMENT AND SHOULD NOT BE USED TO REPLACE OR AS A SUBSTITUTE FOR PROFESSIONAL NURSING OR MEDICAL ADVICE OR JUDGMENT. SURGENCY DOES NOT HAVE A THERAPEUTIC RELATIONSHIP WITH ANY PATIENT AND THE SERVICES AND THE SURGENCY PROPERTY DO NOT INCLUDE ANY REFERRALS FROM A HEALTH PROFESSIONAL TO SURGEON.
11. Indemnity
11.1 Surgeon Indemnity. Surgeon will defend, indemnify and hold harmless Surgency, and its officers, directors, employees and agents (each, a “Surgency Indemnitee”) from and against any and all Losses incurred by Surgency Indemnitees arising out of or relating to any Claim by a third party (other than an Affiliate of an Surgency Indemnitee) that arise from or relate to: (i) Surgeon Property; (ii) Surgeon's breach of Sections 2.2, 5.2, 10.1.1, 10.2, or 14.4; (iii) Surgeon’s business operations, including any provision of any services whatsoever to any Person, including in respect of any professional liability and any financial arrangement between Surgeon and any Patient; (iv) Surgeon’s fraud Gross Negligence or Wilful Misconduct; (v) use of Outputs by Surgeon or any other Person; or (vi) unauthorized use of the Services (or any part thereof) by Surgeon or any Permitted User.
11.2 Surgency Indemnity. Surgency will defend, indemnify and hold harmless Surgeon, and its officers, directors, employees, and agents (each, a “Surgeon Indemnitee”) from and against any and all Losses incurred by Surgeon arising out of or relating to any Claim by a third party (other than an Affiliate of a Surgeon Indemnitee) that arises from or relates to: (i) Surgency’s Gross Negligence or Wilful Misconduct or fraud; (ii) any allegation that the authorized use by Surgeon or its Permitted Users of the Surgency Solution infringes any third party’s Intellectual Property Rights in Canada; (iii) Surgency’s breach of Section 10.1.2. The foregoing obligation does not apply to any claims or Losses arising out of or relating to any: (A) incorporation of any Services into, or any combination, operation, or use of any Services with, any products or services not provided or authorized by Surgency; (B) Modification of any Services other than by Surgency or with Surgency’s express written approval; (C) unauthorized use of the Services; (d) Outputs; or (E) Losses covered by the Surgeon’s indemnity obligations in Section 11.1. THIS SECTION 11.2 IS SURGENCY’S SOLE AND EXCLUSIVE LIABILITY, AND SURGEON’S SOLE AND EXCLUSIVE REMEDY FOR ANY THIRD PARTY CLAIMS UNDER THIS AGREEMENT.
11.3 IP Remedy. Without limiting Section 11.2, if the Surgency Solution is, or in Surgency’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Surgeon’s use of any Surgency Solution is enjoined or threatened to be enjoined, Surgency may, at its option and sole cost and expense:
(a) obtain the right for Surgeon to continue to use the affected Surgency Solution materially as contemplated by this Agreement;
(b) Modify or replace Surgency Solution, in whole or in part, to seek to make the Surgency Solution (as so modified or replaced) non-infringing, in which case such Modifications or replacements will constitute Surgency Solution under this Agreement; or
(c) if Surgency determines that neither of the foregoing two options are reasonably available, then this Agreement may be terminated by Surgency and Surgency’s sole liability for such termination will be to refund prepaid unused Fees attributable to any Surgency Solution that were to be provided after the effective date of termination.
11.4 Indemnification Procedure. Each party will 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 11. The party seeking indemnification (the “Indemnitee”) will cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such claim (although the Indemnitor will not settle any claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11.4 will not relieve the Indemnitor of its indemnity obligations under this Section 11. except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12. Limitation of Liabilities
The parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
12.1
(A) SUBJECT TO SECTION 1.1(i)(B), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY SURGEON FOR THE PURCHASED SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL SURGENCY’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(B) PROVIDED THAT NOTHING IN SECTION 1.1(i)(A), LIMITS: (I) A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILFUL MISCONDUCT; (II) SURGEON’S PAYMENT OBLIGATIONS UNDER SECTION 8; (III) EITHER PARTY’S BREACH OF SECTION 4 (PRIVACY) OR 9 (CONFIDENTIAL INFORMATION) OF THIS AGREEMENT (PROVIDED THAT MOTON’S TOTAL AGGREGATE LIABILITY FOR A BREACH OF SECTIONS 4 (PRIVACY) OR 9 (CONFIDENTIAL INFORMATION) UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AGGREGATE AMOUNT OF TWO TIMES THE PAID OR PAYABLE BY SURGEON FOR THE PURCHASED SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM (“DATA BREACH CAP”)); AND (IV) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 11.1 (SURGEON INDEMNITY) AND 11.2 (SURGENCY INDEMNITY).
12.2
(A) SUBJECT TO SECTION 12.2 (B), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
(B) PROVIDED THAT NOTHING IN THIS AGREEMENT (INCLUDING SECTION 1.1(i)(A)), LIMITS: (I) A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILFUL MISCONDUCT; (II) SURGEON’S PAYMENT OBLIGATIONS UNDER SECTION 8; (III) EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS (PROVIDED THAT SURGENCY’S TOTAL AGGREGATE LIABILITY FOR BREACH OF CONFIDENTIALITY RESULTING IN A SECURITY INCIDENT IN LIMITED TO THE DATA BREACH CAP); AND (IV) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 11.1 (SURGEON INDEMNITY) AND 11.2 (SURGENCY INDEMNITY).
13. Term and Termination
13.1 Term.
13.1.1 Term of Agreement. The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms or Service Terms for all Subscriptions have expired or have otherwise been terminated (collectively, the “Term”).
13.1.2 Term of Subscriptions.
(a) Surgeon may select to subscribe for Purchased Services for an Initial Service Term of: (i) one (1) month from the Service Commencement Date (“Monthly Plan”); or (ii) one (1) year from the Service Commencement Date (“Annual Plan”), as agreed to by the parties and set out in the applicable Order Form. For clarity an avoidance of all doubt, Surgeon shall not cancel or change any aspect of the applicable Plan or downgrade its Plan, until such anniversary date.
(b) If Surgeon selects a Monthly Plan in the Order Form, Surgeon can upgrade to an Annual Plan at any time subject to payment of the applicable Fees for such upgrade. If Surgeon selects the Annual Plan for a Subscription, Surgeon may not change to a Monthly Plan until the end of the one (1) year term of Surgeon's Annual Plan. Surgeon may not downgrade from an Annual Plan without Surgency's prior written consent.
(c) Surgeon acknowledges and agrees that:
(i) Subscription to the Surgency Solution for Monthly Plan commences on the Service Commencement Date and are for the Initial Service Term of one (1) month as provided in Section 13.1.2(a) Subscriptions with a Monthly Plan will automatically renew for successive Renewal Service Terms of one (1) month periods on the anniversary of Surgeon's Initial Service Term, unless and until either party gives the other notice of non-renewal prior to the end of the then-current Service Term. Surgeon shall provide notice to cancel such Subscription at least thirty (30) days prior to the next billing date. If the Surgeon wishes to cancel such Subscription less than thirty (30) days in advance of the next billing date then the Surgeon will be responsible for Surgeon's upcoming balance of Fees and Surgeon will not be entitled to any refund for any cancellation.
(ii) Subscription to the Surgency Solution for Annual Plan commences on the Service Commencement Date and are for the Initial Service Term of one (1) year as provided in Section 13.1.2(a) Subscriptions with an Annual Plan will automatically renew for successive Renewal Service Terms of one (1) year on the anniversary of Surgeon's Initial Service Term unless and until either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then-current Service Term. If the Surgeon chooses to cancel any of the Subscription with an Annual Plan during the Initial Service Term, then the Surgeon shall provide written notice and pay the remaining balance of Fees for the remainder of the Initial Service Term. Surgeon is not entitled to refund of prepaid Fees for any cancellation.
13.2 Termination for Convenience. Either party may terminate this Agreement, any Order Form or Subscription for convenience by providing at least 30 days advance written notice to the other party. Upon Surgency's termination of this Agreement pursuant to this Section 13.2, Surgency will refund to Surgeon, on a pro-rata basis, any unused Fees prepaid under this Agreement for any period following the effective date of termination. Upon Surgeon's termination of this Agreement pursuant to this Section 13.2, Surgency will not be required to refund any prepaid Fees paid and Surgeon will pay all remaining Fees for the then current Service Term and Term (as applicable).
13.3 Termination for Cause.
13.3.1 A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, Surgency may terminate this Agreement immediately on notice to the Surgeon: (i) if Surgeon breaches any restrictions on use in Section 2.2; 5.2 or 14.4; (B) if there are changes in relationships with Third-Party Products providers outside of Surgency’s control; (C) to comply with Applicable Law; or (D) otherwise as permitted in this Agreement.
13.3.2 If this Agreement is terminated Surgeon due to Surgency’s material breach pursuant to Section 13.3.2(i), Surgency will provide Surgeon with a pro rata refund of any unused Fees prepaid by Surgeon applicable to the period following the effective date of termination of the Agreement.
13.3.3 If this Agreement is terminated by Surgency pursuant to Section 13.3.1, Surgeon will remain liable to pay the full Fees outstanding on the effective date of termination of the Agreement Surgeon will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the Service Term and Term (as applicable) of the Agreement had it not been terminated.
13.4 Effect of Termination. Upon the effective date of the expiration or termination of this Agreement (the “Termination Effective Date”)
13.4.1 Except as provided in Section 13.4.2, Surgeon will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Services;
13.4.2 if Surgeon requests in writing at least 30 days prior to the Termination Effective Date and provided that Surgeon has paid all Fees due and payable as at the Termination Effective Date, Surgency will make all Surgeon Data available to Surgeon for electronic retrieval for a period of 30 days. Surgeon is solely responsible for ensuring that any Surgeon Data necessary or desirable for retention by Surgeon, in Surgeon’s records or in any patient’s medical record is copied and retained by Surgeon separately from the Services prior to the end of such 30-day period. Following such 30-day period Surgency will delete or destroy any Surgeon Data that remains in the hardware or systems used by Surgency to provide the Services; provided that each Patient will continue to have access to the Services after the termination of this Agreement in accordance with the terms of use entered into between Surgency and each Patient. Notwithstanding anything to the contrary in this Agreement, Surgency may retain Surgeon Data to the extent and so long as required by Applicable Laws and Surgency may retain Surgeon Data in its backups, archives and disaster recovery systems until such Surgeon Data is deleted in the ordinary course, provided that all such Surgeon Data will remain subject to all confidentiality requirements of this Agreement;
13.4.3 Surgeon will, as instructed by Surgency, return, delete or destroy Surgency Property in its possession, and certify in writing to the Surgency that the Surgency Property has been returned or deleted or destroyed;
13.4.4 No new Order Forms or Subscriptions may be agreed between the parties and all Order Forms and Subscriptions will also terminate;
13.4.5 All Fees due and payable and subject to Section 8.3, any amounts due to Surgency are immediately due and are to be immediately paid by Surgeon to Surgency; and
13.4.6 Other than as otherwise provided for in this Agreement, no expiration or termination will affect or relieve Surgeon's obligation to pay all Fees that may have become due for Services provided before such expiration or termination or entitle the Surgeon to any refund.
13.5 Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer), Section 12 (Limitation of Liabilities), Section 13.5 (Survival), and Section 14 (General Provisions).
14. General Provisions
14.1 Notices. All notices shall be in writing by email and will be effective upon the day of sending by email. Notices will be sent: (i) if to Surgency, to the following email address:
Surgency Health Corp.
Address: 221 Queen Street
Kingston ON K7K 1B4
Canada
Attention: Sean Haffey, President, Secretary, CEO
Email: sean@surgency.ca
and (ii) if to Surgeon, to the current postal or email address that Surgency has on file with respect to Surgeon. Surgency may change its contact information by posting the new contact information on its website, through the Surgency Solution or by giving notice thereof to Surgeon. Surgeon is solely responsible for keeping its contact information on file with Surgency current at all times during the Term.
14.2 Assignment. Surgeon will not assign or transfer this Agreement, or transfer or subcontract any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Surgency. Any purported assignment or delegation by Surgeon to any third party in violation of this Section will be null and void. Surgency may assign any of its rights, or delegate any of its obligations, under this Agreement to any third party without the consent of Surgeon. This Agreement enures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.
14.3 Governing Law and Jurisdiction. This Agreement and any Claim related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada, without regard to conflicts of law principles. The parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, Surgency may: (i) seek remedies to collect unpaid Fees from Surgeon; and (ii) seek remedies with respect to a violation of Surgency’s Intellectual Property Rights or Section 9 (Confidential Information), in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
14.4 Export Restrictions. Surgeon shall not to directly or indirectly export, re-export or import all or any portion of the Services without first obtaining all required licenses, permits and permissions. Surgency makes no representation or warranty that the Services may be exported without Surgeon first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
14.5 Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a party in this Agreement, mean the right of such party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other party. The language used in this Agreement is the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
14.6 Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labour problems (other than those involving that party’s employees), Internet service failures or delays, cyberattacks, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in law preventing or limiting the provision of the Services (“Force Majeure”). This Section does not apply to any of Surgeon's obligations under 2.2, 5.2, 8, 9, 10.1.2, 10.2, or 14.2. In the event of any failure or delay caused by a Force Majeure Event, the affected party will give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
14.7 Surgeon Lists. Surgency may identify the Surgeon by name and logo as a Surgency customer on Surgency's website and on other promotional materials, subject to Surgeon's prior written approval in each instance. Any goodwill arising from the use of the Surgeon's name and logo will inure to the benefit of the Surgeon. Surgeon may withdraw such approval at any time upon written notice to Surgency.
14.8 Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
14.9 Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
14.10 Independent Contractors. Surgency's relationship to Surgeon is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and neither party will represent to any third party that it has, any authority to act on behalf of the other party.
14.11 Entire Agreement. This Agreement (including all Order Forms) constitutes the entire agreement between the parties and set out all the covenants, promises, warranties, representations, conditions, and agreements between the parties in connection with the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the parties, whether written or oral. For clarity, any terms and conditions appearing on a purchase order or similar document issued by Surgeon, or in Surgeon’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Services; and (ii) do not override or form a part of this Agreement (including any Order Form).
14.12 AMENDMENTS. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby. Notwithstanding the preceding sentence, Surgency may unilaterally amend this agreement, in whole or in part (each, an “Amendment”), by giving Surgeon 30 days prior notice of such Amendment or posting notice of such Amendment on the Website. Unless otherwise indicated by Surgency, any such Amendment will become effective 30 days after the date the notice of such Amendment is provided to Surgeon or is posted on the Services (whichever is the earlier).
14.13 Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) these Terms of Service (ii) the applicable Order Form; and (iii) the Documentation.
14.14 Further Assurances. Each party will, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
14.15 English Language. The parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the parties further to negotiation, and were not imposed by either party, even when drawn up by one of the parties. The parties further confirm that it is the express wish of all parties that this Agreement, all documents related to this Agreement and all communications between the parties in the context of the performance of this Agreement be in English only. Les parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des parties, même lorsque rédigées par l’une des parties. Les parties confirment également que c’est la volonté expresse des parties que la présente entente, tout document s’y rattachant et toute communication entre les parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.
Exhibit A
Surgency App for iOS and Surgency App for Android
2. Access Through Surgency App for iOS
If Surgeon accesses or uses the Surgency Solution through the application Surgency or its Affiliates made available for download from the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) application store (the “Surgency App for iOS”) the following terms and conditions apply to Surgeon in addition to all the other terms and conditions of this Agreement in respect of Surgeon’s access to or use of the Surgency Solution through the Surgency App for iOS:
2.1 the parties acknowledge this Agreement is concluded between the parties, and not with Apple and Apple is not responsible for the Surgency Solution and content thereof is governed by this Agreement;
2.2 notwithstanding anything to the contrary hereunder, Surgeon may use the Surgency App for iOS only on an Apple device;
2.3 the parties acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Surgency Solution (including the Surgency App for iOS);
2.4 in the event of any failure of the Surgency App for iOS to conform to any applicable warranty, Surgeon may notify Apple, and Apple will refund the purchase price for the Surgency App for iOS (if any) to Surgeon. Except for the foregoing, to the maximum extent permitted by Applicable Law, Apple will have no other warranty obligation whatsoever with respect to the Surgency Solution (including the Surgency App for iOS), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Agreement.
2.5 any claim in connection with the Surgency Solution related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by this Agreement, and Apple is not responsible for such claim.
2.6 any third party claim that the Surgency Solution or Surgeon’s possession and use of the Surgency App for iOS infringes that third party’s Intellectual Property Rights will be governed by this Agreement, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim;
2.7 Surgeon represents and warrants that Surgeon is not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties;
2.8 Surgeon may contact Surgency in writing regarding any notices, questions, complaints or claims with respect to the Surgency Solution (including Surgency App for iOS) through the contact information made available on the following webpage: surgency.ca/contact; and
2.9 Apple is a third party beneficiary to this Agreement and may enforce this Agreement against Surgeon.
3. Access Through Surgency App for Android
If Surgeon is accessing or using the Surgency Solution through the application Surgency or its Affiliates made available for download from the ‘Google Play’ application store made available by Google Inc. (Google Inc. together with all of its affiliates, “Google”, such application the “Surgency App for Android”) the following terms and conditions apply to Surgeon in addition to all the other terms and conditions of this Agreement in respect of Surgeon’s access to or use of the Surgency Solution through the Surgency App for Android:
3.1 the parties acknowledge that this Agreement is concluded between the parties, and not with Google and Google is not responsible for the Surgency Solution and content thereof is governed by this Agreement;
3.2 the parties acknowledge that Google has no obligation to furnish any maintenance or support services with respect to the Surgency Solution (including the Surgency App for Android);
3.3 to the maximum extent permitted by Applicable Laws, Google will have no warranty obligation whatsoever with respect to the Surgency Solution (including the Surgency App for Android), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Agreement;
3.4 any claim in connection with the Surgency Solution related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by this Agreement, and Google is not responsible for such claim;
3.5 any third party claim that the Surgency Solution or Surgeon’s possession and use of the Surgency App for Android infringes that third party’s intellectual property rights will be governed by the Agreement, and Google will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim;
3.6 Surgeon may contact Surgency in writing regarding any notices, questions, complaints or claims with respect to the Surgency Solution (including the Surgency App for Android) through the contact information made available on the following webpage: surgency.ca/contact; and
3.7 Google is a third party beneficiary to this Agreement and may enforce this Agreement against Surgeon.