SURGENLY LLC
LAST UPDATED: January 28, 2022
Surgenly LLC ("we," "us," "our") provides an electronic health information platform (the "Surgenly Platform") as a free service to patients (and their personal representatives), on behalf of the doctors and other healthcare providers who subscribe to the Surgenly Platform ("Providers"). These Terms of Use govern your access to and use of the Surgenly Platform, including the patient interfaces and any content, functionality and services offered on or through the Surgenly Platform. References in these Terms of Use to "you" or "your" refer to both you individually and to any person or entity on whose behalf you act or who acts on your behalf, if any.
Capitalized terms used but not defined in these Terms of Use have the meaning given to them in our other policies (e.g., our Privacy Policy). You may not access the Surgenly Platform unless you register for an account with your Provider ("Account") and click "I AGREE" below to indicate you understand these Terms of Use and agree to be legally bound by them. If you do not agree to be legally bound by these Terms of Use, then click "I DO NOT AGREE" and we are unwilling to allow you to use the Surgenly Platform.
The Surgenly Platform is being made available at no cost to patients who are eighteen (18) years of age or older and who reside in the United States. By accessing the Surgenly Platform, you represent and warrant that you are at least eighteen (18) years old and that you have the legal ability (capacity) to enter into a binding contract with us. If you do not meet each of these requirements, you must not access or use the Surgenly Platform.
NEVER USE THE SURGENLY PLATFORM FOR EMERGENCY OR OTHER URGENT MEDICAL ISSUES. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY OR NEED URGENT MEDICAL CARE, IMMEDIATELY CALL 911 (IF YOU ARE IN THE UNITED STATES), GO TO YOUR LOCAL EMERGENCY ROOM, AND/OR CALL YOUR PROVIDER.
Your Provider will provide you with access to the Surgenly Platform through the web-based interface that we operate on your Provider’s behalf (the "Patient Interface"). Through the Patient Interface you will be able to access and view medical information including pre- and post-procedure instructions and related videos ("Content"), which has been created by third parties ("Content Contributors") and selected for you by your Provider based upon your health profile and the nature of your procedure. Subject to any restrictions or limitations relating to specific material, you are hereby granted a limited, nontransferable, non-exclusive right to use the Surgenly Platform for web-based, end-user access to the Content and to any notes from your Provider to you that appear on the Platform and address your particular medical concerns ("Provider Notes"), to the extent made available in accordance with applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or sof tH3ar e to and from the United States or other countries ), including the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the Health Information Technology for Economic and Clinical Health of 2009 ("HITECH"), and the regulations adopted thereunder (collectively "Applicable Law") and at the discretion of your Provider, solely for your own personal, noncommercial purposes.
The Surgenly Platform is available only to patients who (a) have established an Account with their Providers for the purpose of using the Surgenly Platform, (b) have received unique access codes from their Providers ("Access Codes"), and (c) who have clicked "I AGREE," below, to be bound by these Terms of Use. Each time you attempt to access the Surgenly Platform, you will be required to enter your Access Code.
You are responsible for maintaining the confidentiality of your Access Code, and you agree to notify us if your Access Code is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. You are responsible for activities that occur under your Account. You acknowledge that your Account is personal to you and you agree not to provide any other person with access to the Surgenly Platform or any portions of it using your Access Code. You agree to notify us immediately of any unauthorized access to or use of your Access Code. You also agree to exit from your Account at the end of each visit to the Surgenly Platform. You should use caution when accessing your Account from a public or shared computer so that others are not able to view or record your Access Code.
We have the right, in our sole discretion, to disable your Access Code at any time for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use. We may rely on the authority of anyone accessing your Account or using your Access Code, and in no event and under no circumstances shall we be held liable to you for any liabilities or damages resulting from or arising out of: (a) any action or inaction by us under this provision; (b) any compromise of the confidentiality of your Account or Access Code; and/or (c) any unauthorized access to your Account or use of your Access Code.
Your Provider may include some of your health information in his or her notes to you in the Provider Notes section of the Surgenly Platform. We do not control your Provider's use or disclosure of your health information in the Provider Notes. We make the Surgenly Platform available to you on behalf of your Provider, pursuant to our agreement with the Provider, and will use and disclose any health information we receive from your Provider in accordance with that agreement.
We reserve the right, at our discretion, to modify, replace, update or change any of these Terms of Use or to change, suspend, or discontinue the Surgenly Platform (including without limitation, the availability of any feature, database, or Content) at any time and for any reason or for no reason. We may also impose limits on certain features of the Surgenly Platform or restrict your access to all or part of the Surgenly Platform without notice or liability. It is your responsibility to check these Terms of Use periodically for changes. All changes are effective immediately when we post them and apply to all access to and use of the Surgenly Platform thereafter. We shall not be liable to you for any such modification, replacement, suspension or discontinuation of your ability to access and use the Surgenly Platform.
If we make any material changes to these Terms of Use, we will update the LAST UPDATED date first set forth above, and we may notify you by e-mail, post a notice on our home page and/or alert you to such changes by other similar means. By continuing to use the Surgenly Platform, you agree to accept all such revisions, and any updated Terms of Use.
The Surgenly Platform and all Content is protected under United States and international intellectual property, copyright, trademark, patent, trade secret and other laws. The Surgenly Platform and the Content are the sole property of us and the Content Contributors. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Surgenly Platform. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit the Surgenly Platform or any Content or third-party submissions or other proprietary rights not owned by you, (a) without the consent of the respective owners or other valid right, and (b) in any way that violates any third-party right or is in violation of any Applicable Law.
Exceptions to these prohibitions include: (a) Your computer may temporarily store copies of the Content or Provider Notes in caches or its random-access memory ("RAM") or equivalent short-term memory incidental to your accessing and viewing those materials; and (b) If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our applicable end user license agreement for such applications.
You may not download or copy the Content, or any other items displayed on the Surgenly Platform for any reason without prior written permission from us. All trademarks or logos used by us (the "Surgenly Marks") are trademarks or registered trademarks of us or our affiliates. Other trademarks, service marks, graphics and logos appearing on the Surgenly Platform may be the property of third parties (the "Third-Party Marks"). Neither your use of the Surgenly Platform nor these Terms of Use grant you any right, title or interest in or to, or any license to reproduce or otherwise use, the Surgenly Marks or any Third-Party Marks.
You are responsible for all information that you upload to or transmit through the Surgenly Platform such as the information you include in your response to any patient surveys available on the Surgenly Platform ("Patient Input").
We will use commercially reasonable efforts to manage the hosting of and provision of services through the Surgenly Platform by our third-party service providers ("Third-Party Service Providers"). Because the Third-Party Service Providers are hosting the Surgenly Platform, the Content, Provider Notes and Patient Input contained thereon, we cannot guarantee that the Surgenly Platform, the Content, the Provider Notes or the Patient Input will be continuously available, uninterrupted, or error-free.
The Surgenly Platform may contain links to other web sites. We are not responsible for the content, accuracy or opinions expressed on such web sites, and such web sites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked web site on or through the Surgenly Platform does not imply approval or endorsement of the linked web site by us. If you decide to leave the Surgenly Platform and access these third-party sites, you do so at your own risk.
The owner of the Surgenly Platform is based in the United States. We make no claims or representations that the Surgenly Platform or any of its content is accessible or appropriate outside of the United States. Access to the Surgenly Platform may not be legal by certain persons or in certain countries. If you access the Surgenly Platform from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
THE SURGENLY PLATFORM IS PROVIDED "AS-IS" WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED AND WE EXPRESSLY EXCLUDE ANY OTHER WARRANTY OR CONDITION, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SURGENLY PLATFORM IS ASSUMED BY YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US SHALL CREATE A WARRANTY OR CONDITION OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE CONTENT AVAILABLE FROM THE SURGENLY PLATFORM IS PROVIDED SOLELY FOR INFORMATIONAL PURPOSES ONLY. THE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. YOU AGREE THAT YOU SHALL NOT DIRECTLY OR INDIRECTLY REPRESENT THE CONTENT AS PROVIDING MEDICAL ADVICE. THE SURGENLY PLATFORM DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED, REFERENCED OR DESCRIBED IN THE CONTENT. RELIANCE ON ANY INFORMATION PROVIDED ON THE SURGENLY PLATFORM INCLUDING ANY PROVIDER NOTES IS SOLELY AT YOUR OWN RISK.
You agree to defend, indemnify, and hold us, our officers, members, directors, employees, agents, and licensors, harmless from and against any claims, actions or demands, liabilities, costs, expenses, damages, and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from (a) your use of the Surgenly Platform, (b) your use of or reliance on any Content or Provider Notes, (c) Patient Input, or (d) your breach of these Terms of Use (each a "Claim").
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING ANY CLAIMS FOR LOST PROFITS, BUSINESS INTERRUPTION, LOST INFORMATION OR OTHER LOSSES OR DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SURGENLY PLATFORM INCLUDING WITHOUT LIMITATION, LOSSES RELATED TO ARISING FROM PERSONAL INJURY OR DEATH. IN NO EVENT SHALL WE HAVE ANY LIABILITY FOR ANY DATA STORED OR PROCESSED WITH THE SURGENLY PLATFORM, INCLUDING THE COST OF RECOVERING ANY LOST DATA. THE PARTIES AGREE THAT THESE LIMITATIONS ARE AN ESSENTIAL PART OF THE AGREEMENT AND THAT WE WOULD NOT ENTER INTO THE AGREEMENT WTIHOUT THESE LIMITATIONS. THIS LIMITATION OF LIABILITY CLAUSE WILL SURVIVE FAILURE OF ITS ESSENTIAL PURPOSE.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SURGENLY PLATFORM, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SURGENLY PLATFORM.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. IF YOU ARE A RESIDENT OF A STATE WITH PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE §1542, YOU HEREBY WAIVE SUCH PROVISIONS OR PROTECTIONS.
We may terminate your Account and your access to all or any part of the Surgenly Platform at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information and Patient Input associated with your Account. Upon termination of your right to use our Surgenly Platform or our termination of the Surgenly Platform, all licenses and other rights granted to you by these Terms of Use will immediately terminate.
If you wish to terminate your Account, you may contact us or contacting your Provider. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of North Carolina, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be settled by arbitration in accordance with N.C. Gen. Stat. § 1-569.1 et seq. (the "Revised Uniform Arbitration Act") and the then-current Rules of Commercial Arbitration of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be held in Raleigh, North Carolina and shall be conducted in the English language, and shall be conducted before a single arbitrator mutually agreeable to the parties, or if no agreement can be reached, then selected by the American Arbitration Association. The arbitrator shall award reimbursement of attorneys' fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. In addition, the losing party shall reimburse the prevailing party for the costs and expenses incurred by it, including attorneys’, arbitrators’ and courts’ fees and expenses, in connection with any action or proceeding hereunder. If any court having proper jurisdiction hereof shall subsequently determine any portion of this Agreement to be invalid, such designation shall not affect the remaining provisions of this Agreement, which will continue in full force and effect. If, under applicable law, this arbitration provision is not enforceable as to a particular claim brought by one party against the other, then legal proceedings involving only that claim may be instituted solely either in the state court for the State of North Carolina, County of Wake, or in the United States District Court for the Eastern District of North Carolina located in Raleigh, North Carolina. For all purposes of this Agreement, all parties hereby irrevocably consent to the jurisdiction of such courts over their person and waive any defense based on improper or inconvenient venue or lack of personal jurisdiction. The parties agree that service of process upon them in any such action may be made if delivered in person, by courier service, by telegram, by telefacsimile or by first class mail, and shall be deemed effectively given upon receipt.
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims with respect to any disputes subject to arbitration under these Terms of Use or any disputes between the parties. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
These Terms of Use and our Privacy Policy constitute the entire agreement between you and us with respect to the Surgenly Platform and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of you or us, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. If any provision of these Terms of Use is finally adjudicated by a court of competent jurisdiction to be illegal or unenforceable under Applicable Law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms of Use will continue in full force and effect.
The headings and titles herein are for convenience only and shall not be interpreted to limit, add to, or otherwise effect the terms of this Agreement.
All feedback, comments, requests for technical support and other communications relating to the Surgenly Platform should be directed to your Provider.