Terms and conditions

SurgiCalendar provides a cloud-based, AI-powered surgical scheduling platform designed to optimize OR utilization, streamline operations, and empower data-driven decision-making.

DEFINITIONS

Each capitalized term used in this Agreement shall have the following meaning:

1. Confidential Information means all technical, financial and other information that is disclosed by either party to the other, whether orally or in writing, any disputes, status reports, scheduling updates, workflows, forms, reporting, the terms of this Agreement, pricing, Services, Work Product, data (other than Protected Health Information which is protected in accordance with the BAA), Documentation, all non-public information related to Surgicalendar products, services and methodologies. “Confidential Information” does not include information (a) publicly available through no breach of this Agreement; (b) rightfully acquired from a third party having a bona fide right to disclose or make the same available; (c) independently developed or previously known by a party; or (d) Protected Communication.

1. “Data” means all information collected, stored, processed or generated through Client’s use of the Software Services.
2. “Documentation” means the description and features of the Licensed Software and Software Services as defined by Surgicalendar via website, electronic communications or release notes.
3. “First Productive Use” means the date that Data is being accessed or entered in the Software Services for processing or review in Client’s commercial environment.
4. “Force Majeure” mean acts or events beyond its reasonable control, including but not limited to, acts of nature, governmental actions, acts of terrorism, fire, labor, civil disturbances, pandemics, transportation problems, interruptions of power supply or communications, breakdown of internet service provider and natural disasters, any of which makes performance impossible.
5. “Hardware Configuration” means the hardware required to install and/or operate the Licensed Software or Software Services.
6. “Licensed Software” means the Surgicalendar commercial computer software programs in object code form listed in a Purchase Agreement and their associated Documentation.
7. “Problem or Defect” means any failure of the Licensed Software or Software Services to operate in substantial conformance with the Documentation.
8. “Protected Communication” mean those communications protected under 45 CFR § 170.403, Communications, of the 21st Century Cures Act (the “Communications Rule”), regarding the usability, interoperability or security of the Surgicalendar Licensed Software or Software Services; relevant information regarding users’ experiences when using the Licensed Software or Software Services; Surgicalendar’s business practices related to exchanging electronic health information; and the manner in which a user uses the Licensed Software or Software Services.
9. “Purchase Agreement” means a document executed by the parties (such as a quote or addendum) setting forth the items being purchased by Client, which will be subject to and incorporated into this Agreement.
10. “Scope of Use” means a metric used to define the limits of the products and services as provided for in the Agreement (i.e. number of concurrent users).
11. “Services” means the implementation, training, Software Services, Support Services and other services to be provided by Surgicalendar under this Agreement.
12. “Software Services” or “SaaS” means the right to access the Licensed Software and/or Third Party Products in a cloud computing environment in accordance with the SOW, together with the Support Services.
13. “Statement of Work” or “SOW” means the scope for the implementation of the Software Services.
14. “Support Services” means the application maintenance and support services provided by Surgicalendar for the Software Services.
15. “Third Party Products” means any commercial software product acquired by Surgicalendar from an outside vendor on behalf of Client.
16. “Work Product” means any documentation, technique, methodologies, inventions, reports, software, or procedures developed, conceived or introduced by Surgicalendar during the course of this Agreement, whether acting alone or in conjunction with Client or its employees, Users or others. Work Product does not include any Client Confidential Information or Data.

SOFTWARE SERVICES LICENSE RIGHTS

1. Software Services License. Surgicalendar hereby grants Client a non-exclusive, royalty-free, non-transferable subscription license to use the Software Services only:
   i. for Client’s internal business purposes and not to process the data of any other entity; and
   ii. to support the Scope of Use for the Software Services purchased.
2. License Rights. The license rights granted in this section may be exercised by Client, its employees and independent contractors (provided that such independent contractors are not competitors of Surgicalendar) (each a “User“). Client shall be responsible for each User(s) compliance with the terms of this Agreement.
3. License Restrictions. Except as expressly stated in this Agreement, no other rights, express, implied or otherwise, are granted to Client and Surgicalendar reserves all rights not expressly granted herein. Client will not permit the Software Services or Third Party Products (i) to be disassembled or reverse engineered, (ii) to be sold, disclosed, leased, subleased, lended or otherwise made available to others including third party hosting providers, (iii) to be or attempted to be accessed, modified, make additions to or altered, (iv) make any derivations, adaptations, or translations in whole or in part, and/or (v) to be used to develop functionally similar computer software or to otherwise compete with Surgicalendar. No copies of the Software Services or Third Party Products may be made by Client without the prior written consent of Surgicalendar except for backup purposes in accordance with normal data processing practices. Client agrees to reproduce any copyright notices and/or other proprietary legends, regardless of form, contained in, affixed to, or appearing on the Software Services and Third Party Products.
4. Third Party Products. Third Party Products are licensed subject to the same restrictions as are set forth in this Agreement. Third Party Products are also subject to and Client agrees to the pass through terms that apply to those Third Party Products. Notwithstanding the foregoing, nothing contained in the third party pass through terms will diminish Surgicalendar’s obligations under this Agreement.
5. Software Title. The Software Services are proprietary to Surgicalendar and are based upon and contain trade secrets and other Confidential Information. Surgicalendar reserves title to the Software Services and all other rights not expressly granted herein.
6. Scope of Use Audit. Client acknowledges that Surgicalendar has access to view Client’s actual Scope of Use and will periodically verify Client’s actual Scope of Use of the Software Services. Should this verification identify usage of the Software Services in excess of the Scope of Use contracted for, Client agrees to true-up the Scope of Use to the current usage levels.

SERVICES

1. Implementation. The Statement of Work will set forth the tasks to be performed by each party, the time frames in which such tasks will be performed, and will identify the roles and responsibilities of the persons who will be provided by Client to support the implementation.
2. Support Services. Surgicalendar agrees to provide Support Services in accordance with the terms set forth on Schedule A.
3. Data Services. To the extent permitted by applicable law, Surgicalendar may (i) use and disclose Data as necessary to perform, analyze and improve the Services; (ii) use and disclose Data to provide data aggregation services as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B), including use for statistical compilations, reports and all other purposes allowed under applicable law HIPAA and (iii) deidentify PHI in accordance with the standards set forth in HIPAA and use and disclose such deidentified data.
4. Data Security. SurgiCalendar is committed to protecting Client data. The platform is HIPAA-compliant and utilizes HITRUST secure cloud-based storage.
5. Suspension of Services. Surgicalendar may, upon advance written notice to Client, suspend Services without liability to Client in the event of (i) a threat to the security of Surgicalendar’s systems, the Services, or (ii) Client’s undisputed invoices are overdue and written notice has been provided by Surgicalendar, in addition to any other rights or remedies, including termination of the Agreement.

PAYMENTS

1. Payments. Invoices are payable net thirty (30) days after invoice date. Client will pay a finance charge on all undisputed amounts past due at a rate of 18% per annum or the highest interest rate permitted by law. Failure to make timely payment is considered a material breach of the Agreement.
2. Annual Increases. Surgicalendar agrees that it will not revise any recurring fees during the first year of this Agreement. Thereafter, any recurring fees will be increased annually at a rate of 5% or the most recent increase in the US Bureau of Labor Statistics Consumer Price Index for All Urban Consumers (CPI-U) – Medical Care, whichever is greater. Surgicalendar may further increase recurring fees for Third Party Products, if such increase from Surgicalendar’s third party supplier exceeds the amount permitted under this Section. Surgicalendar agrees any such additional increase shall be at the same rate charged by the third party supplier.
3. Taxes. The fees set forth in this Agreement do not include any taxes. Where applicable, taxes will be added to the fees, and Client will pay amounts equal to any taxes (however designated, levied, or based) on such fees including, but not limited to, state and local sales, privilege, property, use or excise taxes, but not including taxes based on the net income of Surgicalendar. If Client is tax exempt, Client will provide Surgicalendar a certificate of exemption from taxes.

WARRANTIES

1. Functionality Warranty. Surgicalendar warrants that the Software Services will substantially conform in all material respects with the Documentation, provided Client is on the most current or next to most current version of the Software Services and no modifications, additions or alterations of any kind have been made. In the event of a breach of the foregoing warranty and provided Client is receiving Support Services, Surgicalendar will (i) correct any reproducible Problems or Defects in the Software Services which prevent it from operating in substantial conformance with the Documentation; or (ii) provide a commercially reasonable alternative that will substantially conform with the Documentation in accordance with the Support Services provisions set forth in Schedule A. The foregoing warranty will only apply if Client meets the Hardware Configuration. CLIENT’S EXCLUSIVE REMEDY UNDER THIS SECTION AND SURGICALENDAR’S SOLE OBLIGATION IS TO MODIFY THE SOFTWARE SERVICES TO ELIMINATE THE PROBLEM OR DEFECT. IN THE EVENT SURGICALENDAR CANNOT MODIFY OR ELIMINATE THE PROBLEM OR DEFECT, CLIENT MAY TERMINATE THE AGREEMENT PURSUANT TO THE TERMINATION SECTION AND SEEK ALL AVAILABLE REMEDIES AT LAW AND IN EQUITY.
2. Services Warranty. Surgicalendar warrants that the Services will be performed in a professional manner in accordance with the terms in this Agreement.
3. Disclaimer Of All Other Warranties. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED, WHETHER IN RELATION TO THE SOFTWARE SERVICES, HARDWARE OR THE PROVISION OF ANY SERVICES INCLUDING, BUT NOT LIMITED TO, THOSE CONCERNING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY TRADE USAGE OR COURSE OF DEALING.

LIMITATION OF LIABILITY

1. LIMITATION ON DAMAGES. EXCEPT FOR A BREACH OF THE LICENSE RESTRICTIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES.
2. LIMITATION ON CUMULATIVE LIABILITY. EXCEPT FOR INFRINGEMENT INDEMNIFICATION OBLIGATIONS, THE MAXIMUM AGGREGATE LIABILITY OF SURGICALENDAR TO CLIENT FOR ANY ACTUAL OR ALLEGED DAMAGES ARISING OUT OF, BASED ON OR RELATING TO THIS AGREEMENT, WHETHER BASED UPON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE FEES PAID TO SURGICALENDAR FOR THE IMPACTED PRODUCTS AND SERVICES DURING THE PRIOR TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CAUSE OF ACTION.

INDEMNIFICATION

1. Infringement Indemnification. Surgicalendar will defend, indemnify and hold harmless Client and its officer, directors, employees and agents from and against third party claims, liabilities, obligations, judgements, causes of action (the “Claim“), and associated costs and expenses (including reasonable attorneys’ fees) to the extent arising out of an allegation that the use of the Software Services infringes a third party’s U.S. patent, trademark, copyright or other third party intellectual property right. In the event such an infringement is found, Surgicalendar will at its option and expense, and as Client’s sole and exclusive remedy, procure the right to continued use of the Software Services, replace or modify the Software Services with a non-infringing program, or terminate the license of the Software Services, and will refund to Client a pro rata refund of fees prepaid for Software Services not yet provided. Surgicalendar’s indemnification obligations will not apply to the extent the Claim is based upon (i) the use of the Software Services in violation with the terms of this Agreement; (ii) the use of the Software Services in combination with other products or services not made or furnished by Surgicalendar, provided that the Software Services alone are not the cause of such Claim; (iii) the modification, additions or alterations of the Software Services or any portion thereof by anyone other than Surgicalendar, provided that the Software Services in unmodified form are not the cause of such Claim; or (iv) the use of Software Services not updated to the latest version offered by Surgicalendar, where such version cures the infringement.
2. Client Indemnification. Client will indemnify, defend and hold harmless Surgicalendar and its officer, directors, employees and agents from and against all Claims, and associated costs and expenses (including reasonable attorneys’ fees) to the extent arising out of or resulting from Client’s misuse of the Software Services, or any claim by any party receiving services from Client.
3. Indemnification Process. Upon becoming aware of any matter which is subject to the provisions of the Indemnification Section, the party seeking indemnification must (i) give prompt written notice of such Claim to the other party; (ii) provide the indemnifying party with the authority, information and assistance to defend or settle the Claim; and (iii) not materially prejudice the indemnifying party’s ability to defend or settle the Claim. The indemnifying party has the right to control and defend the Claim at its own expense and with its own counsel and to settle the Claim so long as such settlement does not require the indemnified party to pay any money or admit any liability without the indemnified party’s prior written consent. The indemnified party will have the right, at its option, to participate in the defense of the Claim with its own counsel at its own expense.

TERM AND TERMINATION

1. Term. The Term of the Service(s) is set forth on the applicable Purchase Agreement(s) (the “Term”). At the expiration of the initial Term, the Service(s) will be automatically renewed on an annual basis on the anniversary of the Effective Date for additional one year terms (“Option Term“). Either party may terminate the Service(s) as of the last day of the initial Term or any Option Term, by providing ninety (90) days written notice of termination prior to the last day of the initial Term, or the last day of any Option Term.
2. Termination. Either party may terminate this Agreement or a Purchase Agreement, if the other party is in material breach by sending a written notice specifying each breach with reasonable detail, unless (i) the breaching party has cured the breach within thirty (30) days of receipt of written notice, or (ii) with respect to a breach which may not be reasonably cured within the 30-day period, the breaching party is diligently pursuing cure of, and cures the breach as soon as practicable. In the event this Agreement is terminated due to a breach by Client, within thirty (30) days of the date of termination of this Agreement, Client will erase from all computer storage any image or copies of the Software Services, related documentation and will certify in writing to Surgicalendar that the original and all copies of such property have been destroyed. In the event of termination, Client shall be responsible for all fees related to software and Services rendered through the effective date of such termination.
3. Copy of Data upon Termination. Upon termination of the Agreement, Surgicalendar will make a machine readable backup copy of the Data available to Client at no additional cost. The backup file will be delivered via Secure FTP or on an encrypted disc as requested by Client. Surgicalendar retains no rights or ownership to the Data.
4. Survival. Notwithstanding any termination of this Agreement for any reason, the terms and conditions set forth in the following Sections of this Agreement will survive and will be binding on the representatives, successors, heirs and assignees of the parties: Limitation of Liability, Indemnification (with respect to claims arising prior to termination), Confidentiality, and General Provisions.

CONFIDENTIALITY

1. Confidential Information. Except as permitted in this Agreement, neither party will, nor will they permit their employees, agents, attorneys or independent contractors to, disclose, use, copy, distribute, sell, license, publish, reproduce, or otherwise make available Confidential Information of the other party. Each party agrees to secure and protect the other party’s Confidential Information using the same standard of care, but in no event less than reasonable care, that it uses to protect its own Confidential Information. Each party agrees to require their respective employees, agents, attorneys, and independent contractors who have a need to access Confidential Information to be bound by confidentiality obligations sufficient to protect the Confidential Information. Either party may disclose the other party’s Confidential Information to the extent required by applicable law or regulation, provided that, as permitted, it notifies the other party in writing as soon as practicable prior to such disclosure. Notwithstanding the foregoing, Surgicalendar shall not prohibit or restrict or engage, nor shall anything contained herein be construed to permit or allow Surgicalendar to engage in a practice that prohibits or restricts Client from any Protected Communications that are entitled to unqualified protection as defined and required under the ONC Final Rules (45 C.F.R. Parts 170 and 171). Client recognizes that Surgicalendar has a legitimate interest in the Protected Communications and that if Surgicalendar is not made aware of the issues that may be detailed in a Protected Communication, Surgicalendar is not able to resolve, correct or explain them. Surgicalendar encourages Client to report all such issues included in Protected Communications through Surgicalendar’s standard support process. Surgicalendar reserves all rights to assert that any prohibition or restriction imposed by Surgicalendar on Protected Communications is permitted because it is not entitled to unqualified protection under 45 C.F.R. 170.403(a)(2)(ii).
2. HIPAA. The parties agree to comply with the Business Associate Agreement (“BAA“) attached hereto and incorporated by reference.

INTELLECTUAL PROPERTY

Surgicalendar retains all right, title and interest, including intellectual property rights and all other rights in the Licensed Software, Software Services, Services and Work Product. Surgicalendar grants to Client a non-exclusive, non-transferable license to use Work Product for Client’s own internal business purposes in conjunction with the Software Services during the Term and for no other purpose.

FORCE MAJEURE

Except for obligations to pay for Services performed or products delivered, neither party will be responsible for delays or failures in performance resulting from an event of Force Majeure. The delayed party will perform its obligations within a reasonable time after the cause of the failure has been remedied, and the other party will accept the delayed performance.

GENERAL PROVISIONS

1. Governing Law. This Agreement will be interpreted and enforced in accordance with the laws of the State of Arkansas, without giving effect to the conflict of law rules thereof. Both parties agree this Agreement does not constitute a consumer transaction.
2. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the matter contained herein. There are no promises, covenants or undertakings contained in any other written or oral communication. In the event of any conflict between or among the documents comprising this Agreement, the latest dated agreement will prevail. This Agreement may not be modified except in writing and signed by authorized representatives of the parties.
3. Notices. Any notices required or permitted to be sent hereunder will be in writing and will be sent, deposited with the U.S. Postal Service (certified mail, return receipt requested). Notices to Client and Surgicalendar will be sent to the addresses first set forth on the first page of this Agreement. Notices to Surgicalendar will be sent “Attention: Corporate Counsel” and emailed contracts@surgicalendar.com. Notices will be effective upon the date when delivery is either effected or refused.
4. Waiver. A waiver or consent to any term, condition, right or remedy under this Agreement must be in writing to be effective. Failure of either party to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition. No waiver or consent for any one matter will be a waiver or consent for any subsequent or different matter.
5. Insolvency. In the event that either party will cease conducting business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself of, or becomes subject to, any proceeding under a Bankruptcy Act or any other statute of any state relating to insolvency or the protection of rights of creditors, which is not discharged within ninety (90) days, then (at the option of the other party) this Agreement will terminate and be of no further force and effect and any property or rights of such other party, whether tangible or intangible, will forthwith be returned to it.
6. Assignment. Client may not assign this Agreement or any of the licenses herein, without the prior written consent of Surgicalendar, except to an assignee who acquires all or substantially all of the assets of Client, is not a competitor of Surgicalendar and has financial resources at least equal to those of Client. Any permitted assignee will assume in writing, all obligations of the assignor.
7. Exclusion. Surgicalendar acknowledges that to the best of its knowledge neither Surgicalendar nor its employees providing services hereunder are listed on the Office of Inspector General (OIG) List of Excluded Individuals/Entities (LEIE) as ineligible to participate in any federal health care program.
8. Medicare Access to Records Clause. If this Agreement is deemed subject to 42 U.S.C. § 1395x(v)(1)(I) and 42 C.F.R. Part 420, Subpart D 420.300 et seq., then in accordance with such law, Surgicalendar shall, until the expiration of four (4) years after the furnishing of any Medicare reimbursable services pursuant to this Agreement, upon written request, allow the Comptroller General of the United States, the Secretary of Health and Human Services, and their duly authorized representatives access to this Agreement and to Surgicalendar’s books, documents and records necessary to certify the nature and extent of costs of Medicare reimbursable services provided under this Agreement.
9. Publicity. Upon prior written approval, Client authorizes Surgicalendar to identify Client as a client, and to use Client’s name and logo in any of Surgicalendar’s advertising copy, promotional material or press releases.
10. Arbitration and Injunctive Relief. Surgicalendar and Client will work cooperatively to resolve any dispute arising out of or relating to this Agreement (“Dispute”) amicably at appropriate management levels. If a Dispute remains unresolved and a party wishes to initiate a formal dispute, the party will submit the Dispute to binding arbitration in the State of Kansas under the Federal Arbitration Act (“FAA”) and under the then-current Commercial Arbitration Rules of the American Arbitration Association, Inc. (“AAA”). The arbitrator will follow the Federal Rules of Evidence. The provisions of this Agreement will control over both the rules and procedures of the FAA, AAA and the Federal Rules of Evidence. Each party will bear their own fees, expenses and costs incurred in connection with the arbitration, but the parties will share equally the fees and expenses of the arbitrator. Judgement on any arbitration award may be entered and enforced in any court of competent jurisdiction. No action, regardless of form, arising out of this Agreement will be brought more than one (1) year after the cause of action accrues. Each party acknowledges that any breach of its obligations with respect to the other party’s confidentiality and intellectual property rights may result in irreparable injury for which monetary damages will not be adequate and the non-breaching party is entitled to seek injunctive relief in addition to any other relief a court may deem proper.
11. Practice of Medicine and Accuracy of Information. Client acknowledges and agrees that the Software Services and Services are information management tools, many of which contemplate and require the involvement of professional medical personnel. The duty to diagnose and treat a patient lies solely with Client and use of information provided by Surgicalendar, in no way replaces or substitutes for the professional judgment or skill of Client.
12. Severability. If any provision of this Agreement is found to be invalid, illegal or unenforceable under any applicable statute or law, it is to that extent deemed to be omitted, and the remaining provisions of this Agreement will not be affected in any way.
13. Execution. This Agreement may be executed in two or more counterparts, each of which will be deemed an original. This Agreement may be executed and delivered by facsimile or other electronic signature (whether digital or encrypted), which shall be considered an original signature for all purposes and shall have the same force and effect as an original signature.
14. Headings. The headings of the paragraphs and sections of this Agreement are for convenience only and will not control or affect the meaning or construction of any provision of this Agreement.

SCHEDULE A: APPLICATION SUPPORT SERVICES

The following is a description of the Support Services to be performed by Surgicalendar during the time period in which Client is purchasing Support Services.

1. Surgicalendar will support and maintain the most current version of the Licensed Software in substantial conformance with applicable Federal laws. Client acknowledges and agrees that, in the event Client has chosen to utilize a less than current version of the Licensed Software or has missed any mandatory upgrades, Client will bring the Licensed Software up to Surgicalendar’s then-current version in order for Client to maintain compliance with applicable Federal law.

Surgicalendar reserves the right to establish a monthly maintenance window for the purpose of upgrading, patching, modifying, and repairing portions or the entire cloud computing environment. The monthly window is generally scheduled on the 3rd Sunday of the month, from 2:00AM – 5:30AM EST.

1. Priority1 issues must be called in directly to the Surgicalendar Support department. For all other concerns Client can call or use Surgicalendar’s designated online support system to log issues specifying a Problem or Defect in the Licensed Software.
2. Surgicalendar will also provide Client with:a. updates that are distributed without charge to other similar clients which reflect modifications and incremental improvements made to the Licensed Software by Surgicalendar;

   b. an opportunity to obtain enhancements to the Licensed Software for which fees are imposed on the same terms as such enhancements are generally made available to other clients

3. Surgicalendar will provide problem-reporting and support telephone availability 8:00 a.m. to 5:00 p.m., Central time Monday through Friday, exclusive of Federal holidays.
4. Client agrees to grant Surgicalendar access to the Licensed Software on Client’s system(s) for the sole purpose of performing Surgicalendar’s obligations under this Agreement.
5. If reasonable analysis by Surgicalendar indicates that a reported Problem or Defect is caused by a problem related to hardware used by Client, the hardware’s system software, or applicable software other than Licensed Software, or Client ‘s misuse or modification of the Licensed Software, Surgicalendar’s responsibility will be limited to the correction of the portion, if any, of the problem caused by a Problem or Defect in the Licensed Software.
6. If analysis by Surgicalendar indicates that a reported problem is caused by a reproducible Problem or Defect, Surgicalendar will use commercially reasonable efforts to provide Support Services in accordance with the following prioritization of reported problems: