Customer ID #:
Names of Surgeons
# of Users*
# Admin Users*
*The initial list of Users is attached hereto as Exhibit A.
Exhibit A – Initial list of Users
Exhibit B – Example Statement of Work
This Service Agreement, made and entered into as of __________ , 201_ (the “ Effective Date” ), by ExplORer Surgical Corp., Inc., a Delaware corporation, with an address at 351 W. Hubbard Street, Suite 306, Chicago, IL 60651 (“ ExplORer Surgical” or the “Company” ) and the customer identified above (“ Customer” ), includes and incorporates herein by reference the attached Terms and Conditions and all Exhibits.
Administrative User means the number of Customer employees and independent contractors set forth on the Ordering Document that are authorized to contact or use the support services described in Section 2.5 below.
Analytics means statistics, metrics and other analyses that are based on or derived from the Service, Service Data or Reports (including without limitation, aggregate measurements of Service usage and performance), which are developed: in the aggregate with other data, results and measurements; or in a manner that does not disclose the identity of Customer or any User or (other than in aggregated or de-identified form) any specific Service Data.
Deliverable means the work product (other than any Report) that results from any Work that is delivered to Customer by ExplORer Surgical.
Documentation means any user instructions, help information, training materials and other documentation regarding the Service (if any) that are made available by ExplORer Surgical to Customer in electronic or other form.
ExplORer Surgical Properties means all ExplORer Surgical Confidential Information, Analytics, Documentation, Deliverables, Reports, the Platform and Service.
Hardware means any devices provided to the Customer to enable access to the ExplORer Surgical solution specified in the Ordering Document.
Ordering Document means the cover page to this Agreement or a supplemental ordering document, which shall be in writing and signed by both parties and shall specify the Service, Hardware and Work to be acquired by or for Customer. Additional details related to such Work will be mutually agreed upon by the parties in a Statement of Work.
Platform means the technology platform developed and/or used by ExplORer Surgical in providing the Service (including all related ideas, concepts, inventions, systems, hardware, software, interfaces, dashboards, tools, utilities, content, templates, forms, samples, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information), and including all corrections, improvements, extensions and modifications thereto and new versions thereof.
Reports means the template forms (completed or not) of messages, reports and similar products that are delivered or otherwise made available by the Service in response to queries by Customer, which are based on processing Service Data, but do not include the Service Data.
Service means the ExplORer Surgical application identified in an Ordering Document that is made available for access and use under this Agreement, as such application may be hosted, branded and updated or otherwise modified from time to time by ExplORer Surgical.
Service Data means non-public information and data provided by or obtained from Customer and Users in connection with all uses of the Service, but does not include the Reports.
Statement of Work means any written work statement that references this Agreement and that is acceptable to and executed by both parties related to any Work to be performed by the Company pursuant to this Agreement.
Work means such implementation, integration, data analysis, development, training or other professional services related to the Service and performed by the Company pursuant to the applicable Statement of Work.
2.1 Account. Customer and its Administrative Users will be responsible to provide access to the Services for such of its named employees and independent contractors (collectively, Users ) to administer and use, respectively, the Service through a Customer-specific account ( Account ). Each User will have and use a unique identifier to access the Service. Customer must provide to ExplORer Surgical the legal name of each User prior to enabling such User to access the Service. Customer’s initial list of Users is provided in the Exhibit attached hereto as Exhibit A. Customer is solely responsible for maintaining the confidentiality of all Account information (including access credentials), and will be fully liable for any and all activities under its Account. Customer agrees to keep all Account information up-to-date and to notify ExplORer Surgical (a) immediately of any unauthorized use of its Account or any other breach of security and (b) promptly of termination of employment of any User or Administrative user by Customer or of withdrawal by Customer of authorization granted to any User or Administrative User to access the Service. Except as required by applicable law, Customer will not permit any third party (other than Users and Administrative Users) to access or use the Service without ExplORer Surgical’s prior written consent. Customer will notify ExplORer Surgical promptly if (i) any person or entity claims to offer a service or system that “integrates with” ExplORer Surgical’s Service or (ii) any third party claims that it needs to access or use the Service pursuant to a requirement of law.
2.2 License. Subject to all terms and conditions in this Agreement, ExplORer Surgical hereby grants Customer a nonexclusive, nontransferable right and license, without the right to sublicense, to access and use the Service (and to permit Users and Administrative Users to access the Service under its Account) through a web-based interface, in each case, solely for its internal business purposes. Customer may make a reasonable number of copies of the Documentation and Reports, which it may distribute and use within its organization and appropriate Users. Customer's access and use of the Service, Documentation and Reports shall comply with all other conditions set forth set forth in this Agreement.
2.3 Systems. As between the parties, Customer is solely responsible for the accuracy, completeness and lawfulness of the Service Data and for acquiring all (a) consents, permissions, clearances and other rights necessary for ExplORer Surgical to receive, access, copy, store, process, distribute, transmit, display and use the Service Data as necessary or appropriate to provide the Service, (b) servers, storage, software, databases and network and communications systems and services needed to manage the Service Data and to access and use the Service and (c) backup, recovery, network security and maintenance services for its systems (collectively, the Customer Systems ). Customer is responsible for backing-up and otherwise protecting all Service Data and uploading, downloading or transmitting any data via the Service. Customer shall ensure that each of its Users and Administrative Users comply with all obligations imposed on Customer under this Agreement and under applicable law. Any breach of any such obligations shall be deemed a breach by Customer of its obligations under this Agreement, and Customer shall be responsible and liable for any breach of any such obligations by any User or Administrative User. ExplORer Surgical may revoke credentials to the Service if a User or Administrative User breaches any obligations imposed on Customer under this Agreement, and ExplORer Surgical may suspend access to the Service if ExplORer Surgical reasonably suspects that a User or Administrative User has breached any obligation imposed on Customer under this Agreement.
2.4 Install. At Customer’s request and expense, and as documented by the parties in an Ordering Document or a Statement of Work, ExplORer Surgical will reasonably assist and train Customer personnel to establish, configure and verify initial operation of the Service and its Account.
2.5 Support. ExplORer Surgical will use commercially reasonable efforts to provide Customer with technical support for the Service (via phone or web-based), in accordance with its standard practices during normal business hours (central time). ExplORer Surgical has no obligation to operate or support any version of the Service other than the then current version or to backup, retain or redeliver any Service Data. Customer agrees that ExplORer Surgical may charge in accordance with its then current policies for any support service resulting from problems, errors or inquiries related to the Service Data or Customer Systems.
2.6 Professional Services. From time to time, Customer may request, and ExplORer Surgical may agree to provide, certain implementation, integration, data analysis, development, training or other professional services related to the Service ( Work ). ExplORer Surgical agrees to undertake and use commercially reasonable efforts to complete the Work as described in the corresponding Statement of Work. Any modification of these terms and conditions within a Statement of Work will apply only to that Statement of Work in which the modification is set forth. ExplORer Surgical may use third party subcontractors in connection with its performance of Work, provided that ExplORer Surgical shall be responsible for the performance of such subcontractors. Unless otherwise agreed by the parties in writing, ExplORer Surgical shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Deliverables. ExplORer Surgical grants Customer a nonexclusive, nontransferable right and license (without right to sublicense) to use the Deliverables solely in conjunction with its authorized use of the Service, subject to the terms of this Agreement and other rights or restrictions set forth in the applicable Statement of Work.
2.7 Customer Assistance. Customer acknowledges that all of the services to be provided under this Agreement are reliant on the provision by Customer and its personnel of such information on a timely and recurring basis as is necessary or appropriate to enable the Company to configure the Service for use by Users, and as the Company may request at any time and from time to time. Without limitation of the foregoing, Customer agrees to provide the Company with surgical information such as preference card information, surgical images, instrument information; procedural steps and workflows. All such information is referred to in this Agreement collectively as Customer Information . Customer hereby grants ExplORer Surgical a nonexclusive, worldwide, royalty-free and transferable right and license to use the Customer Information solely for the purpose of performing the Services under this Agreement. Customer agrees that in performing the Services, ExplORer Surgical (i) will use and rely on the Customer Information and (ii) does not assume any responsibility for the accuracy or completeness of any Customer Information, and will not undertake to verify its accuracy or completeness. Customer represents and warrants that it has all consents, permissions, clearances and other rights necessary for ExplORer Surgical to receive, access, copy, store, process, distribute, transmit, display and use Customer Information, in each case, for the purpose of performing Services, and for other purposes contemplated, under this Agreement. Customer also represents and warrants that any Customer Information that it provides will not infringe or otherwise violate the intellectual property or other rights of others, and will not be otherwise unlawful, infringing, threatening, libelous, defamatory, obscene, pornographic, or in violation of any law. Any such Customer Information may be removed by the Company at any time, without notice to Customer.
If Customer (or its third party licensors or vendors) fails to fulfill any of its responsibilities in a timely manner under this Section for any reason (including without limitation, changes, errors or omissions in Customer Information), which delays provision of any of the Services to be provided under this Agreement or results in additional costs, then ExplORer Surgical may act as it deems prudent to mitigate such effects. In such event, Customer agrees (a) to pay ExplORer Surgical its reasonable additional costs and (b) that any delivery dates, milestones or other time limits specified for ExplORer Surgical’s performance shall be appropriately extended.
2.8 Acceptance. Customer shall have a period of 10 days from the first date that the Service is made available for use by Users or Administrative Users to verify that the Service functions in material compliance with the specifications set forth in the applicable Statement of Work. If the Service does not so perform, then (a) Customer shall notify ExplORer Surgical in writing within such period identifying all non-conformities with reasonable specificity, and (b) ExplORer Surgical shall use commercially reasonable efforts to resolve such failure within 15 days following receipt of such notice and resubmit the Service for acceptance. Following any such resubmission, Customer shall accept or reject the Service in accordance with the acceptance procedures and within the timeframe noted above. Customer’s (i) failure to provide notice of rejection within the specified period or (ii) live use shall, in either case, be deemed to be acceptance. If for any reason the Company is unable to provide the Service in a manner that functions in material compliance with the applicable specifications, the sole remedy and liability of Company shall be to terminate the subject Service and refund any amounts actually paid for the subject Service by Customer.
2.9 Third Party Software. The Service may include certain third party software, and neither ExplORer Surgical nor the applicable third party warrants such software, assumes any liability regarding the use of such software, or undertakes to furnish any support or information relating to such software, unless otherwise agreed upon by Customer and the applicable third party in a separate written agreement. Customer may have to enter into separate written agreements with the applicable third parties for use of such third-party software, and if so, Customer will comply with such agreements. ExplORer Surgical may also make available optional services provided by third parties, such as surgical protocols and practices, instrument and supply information, and supply chain and inventory analytics. Customer will comply with and, upon request, execute, any agreements that may be required for the use of such services. Additionally, Customer’s use of the Service or of such third-party products or services will constitute Customer’s agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use.
2.10 Data Privacy. Customer agrees to comply with all laws, regulations and rules regarding the use, confidentiality and security of protected health information and nonpublic personal information (collectively, Personal Information ), to the extent any such law, regulation or rule is applicable to its performance under this Agreement.
Customer acknowledges and agrees that: ExplORer Surgical will (a) provide access to Service Data to Customer’s Users, who may copy, download, import or modify such Service Data depending upon the access privileges granted to them and use Service Data for the proper management and administration of the Service and its business, to perform services that are to be provided under this Agreement, including, without limitation, to transfer Service Data to Customer’s other applications, and to carry out its legal responsibilities, including, without limitation, use Service Data to comply with a court order, warrant or other legal process and to contact the Customer’s employees and contractors (in the case of contracted nurses and doctors) on Customer’s behalf for (i) scheduling and health care operations messages, (ii) procedural management and operational coordination, or to direct or recommend specific enabling actions, (iii) educational purposes and (iv) to provide information about surgical procedures and team performance Customer provides, or that ExplORer Surgical or other service providers provide on Customer’s behalf; (b) use Service Data to protect the rights, property or safety of ExplORer Surgical or others or to investigate or enforce suspected breaches of this Agreement; and (c) use Service Data as otherwise provided in this Agreement or as otherwise mutually agreed upon by the parties. Customer acknowledges that once ExplORer Surgical has granted access rights to the Service to a User, it has no control over the uses and disclosures that the User makes of Service Data, and such User may be subject to legal or regulatory obligations to retain such information and make such information available to patients, governmental authorities and others as required by applicable law or regulation. In any event, but especially in cases of potential fraud, misuse or abuse of the Service, ExplORer Surgical reserves the right, in its sole judgment, to revoke, remove, cancel or deny continued access by any User or Administrative User to any Service Data.
2.11 Hardware. ExplORer Surgical will provide to Customer the Hardware, as specified in the Ordering Document. Title and risk of loss for Hardware (but not any installed software) shall pass to Customer upon transfer to the carrier for shipment to Customer. Customer shall contract directly with the licensor or seller (the Hardware Vendor ) of any license, end user subscriber agreement, or other end user agreement for Hardware (collectively, EULAs ). ExplORer Surgical will not be a party to any EULA and will not become the licensee on behalf of Customer. ExplORer Surgical makes no representations, express, implied or otherwise, regarding any Hardware. Customer expressly acknowledges and agrees that its use of Hardware is at Customer’s sole risk and that Hardware is recommended by ExplORer Surgical “as is” and without warranty of any kind, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement. Customer agrees to observe the terms of any applicable EULA and that Customer shall be fully liable with respect to any improper use of Hardware in violation of such EULAs. Client’s remedies with respect to Hardware will be limited to whatever recourse may be available against the Hardware Vendor thereof and are subject to all restrictions and other limitations as may be displayed or referenced by the EULA.
3.1 Fees. Customer shall pay ExplORer Surgical the fees described in the Ordering Documents and Statements of Work, in the amounts and at the times set forth therein, and as otherwise stated in this Agreement. In addition, Customer is responsible for all reasonable costs and expenses (including without limitation reasonable travel and out-of-pocket expenses) incurred by ExplORer Surgical in connection with its performance of this Agreement.
3.2 Payment Terms. Unless specified otherwise (in the applicable Ordering Document or Statement of Work, this Agreement or other mutually agreed upon writing between the parties), all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within 30 days after invoice in US dollars at ExplORer Surgical's address or to an account specified by ExplORer Surgical. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.0% per month or the maximum amount permitted by law, whichever is less. If any payment is past due, ExplORer Surgical shall have the right to take whatever action it deems appropriate (including without limitation, disabling the Account, suspending User access to the Service, requiring payment in advance or terminating this Agreement pursuant to Section 9). Customer agrees to reimburse ExplORer Surgical for all costs (including attorneys' fees) incurred in collecting late payments or otherwise enforcing the terms of this Agreement.
3.3 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon ExplORer Surgical's net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government. If Customer claims exemption from any tax, then it shall furnish ExplORer Surgical with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.
3.4 Fee Adjustments. Except as otherwise expressly set forth in an Ordering Document, each year following the initial 12 months of this Agreement, the Subscription Fee shall equal the previous year’s Subscription Fee plus any increase determined by ExplORer Surgical, such increase to be no more than the greater of (a) 5% and (b) the percentage increase in the consumer price index – all factors, since the last rate increase. In addition, Customer acknowledges and agrees that the discounted Subscription Fee specified in the initial Ordering Document was based on Customer subscribing to the Service for a certain minimum number of surgeons within the Customer’s Users. If the number of surgeons for which Customer subscribes to the Service decreases below this minimum, then ExplORer Surgical may increase the Subscription Fee.
4.1 Scope. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement. The restrictions on use and disclosure of Confidential Information will not apply to any information the receiving party can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such information. The Analytics, Documentation, Deliverables, Reports, Platform and pricing information are ExplORer Surgical Confidential Information. The Service Data and Customer Information are the Confidential Information of Customer.
4.2 Confidentiality. Except for the specific rights granted by this Agreement, and except for disclosures that are necessary to comply with any legal, regulatory, law enforcement or similar requirement or investigation, the receiving party shall not access, reproduce, use or disclose any of the other's Confidential Information without its written consent, and shall use reasonable care to protect the other's Confidential Information from unauthorized access, use and disclosure (including by ensuring that its employees and contractors who access any Confidential Information have a need to know for the permitted purpose and are bound by obligations that are at least as protective as this Agreement). Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided , either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, audit, financing transaction or due diligence inquiry, so long as the party to whom such information is disclosed is bound by confidentiality obligations substantially similar to those herein and the party disclosing such information is responsible for any breaches of confidentiality by the party to whom such information is disclosed.
5.1 Customer. Customer hereby grants ExplORer Surgical a nonexclusive, royalty-free, fully paid-up, worldwide right and license to access, copy, store, process, distribute, transmit, display and otherwise use the Service Data for the purposes of creating Reports and otherwise providing the Service to Customer and Users. In addition, Customer hereby grants ExplORer Surgical a nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide right and license, with the right to sublicense, to access, copy, store, modify, adapt, process, translate, create derivative works from, distribute, disclose, license, market, transmit, sell, display and otherwise use and commercially exploit the Service Data on any basis as determined by ExplORer in its sole discretion, as de-identified and/or as aggregated on a de-identified basis with data from other ExplORer Surgical users and customers. Subject only to the restriction set forth in the preceding sentence, Customer shall have no interest in, or rights to, any use by ExplORer Surgical as provided above or in any proceeds thereof. Except for the limited rights and licenses expressly granted hereunder, Customer shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Service Data.
5.2 ExplORer Surgical. Except for the limited rights and licenses to access and use the Service, Documentation and Deliverables expressly granted hereunder, no other license is granted, no other use is permitted and ExplORer Surgical (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the ExplORer Surgical Properties.
5.3 Restrictions. Customer shall not, directly or indirectly (a) use any ExplORer Surgical Confidential Information to create any software, platform, service or documentation that is similar to any ExplORer Surgical Property, (b) attempt to access any component of the Platform or to disassemble, decompile, reverse engineer or otherwise discover any source code or underlying organization, structures, ideas or algorithms of the Platform, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use any ExplORer Surgical Property in any time-share or service bureau arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify any ExplORer Surgical Property, (e) use or permit the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (f) disseminate benchmark performance information or analysis for purposes other than internal issue resolution or as requested by ExplORer Surgical, (g) abuse or misuse the Service, including gaining or attempting to gain unauthorized access to the Service,(h) conduct any penetration or similar testing of the Platform, or (h) permit any third party to do any of the foregoing.
5.4 Feedback. Customer agrees that ExplORer Surgical is free to reuse all comments, suggestions and other feedback made by Customer and other knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the ExplORer Surgical Properties or Reports or acquired while providing the Service or Work under this Agreement.
6.1 Customer. Customer warrants to ExplORer Surgical that the access, transfer, collection, processing, distribution and use of Service Data as described in this Agreement will not violate any applicable law, regulation or proprietary right (including without limitation, rights regarding privacy, publicity and defamation). In addition, Customer warrants that (a) its use of the Service complies with all applicable law and regulations and (b) Customer’s business, and the services that Customer (and its employees and independent contractors) perform, will be conducted in a professional and workmanlike manner and in accordance with all industry standards and all applicable laws and regulations.
6.2 ExplORer Surgical. ExplORer Surgical warrants to Customer that it will use commercially reasonable efforts to maintain the Service available at all times, subject to downtimes for scheduled maintenance, upgrades, repairs, security concerns and emergency outages. ExplORer Surgical will not be responsible or liable for any delay, degradation or failure in the Service resulting from or attributable to (a) unusually high usage volumes, (b) failures in any telecommunications services, networks or systems, (c) Customer’s or any User’s or other third party's acts or omissions, (d) any force majeure or other cause beyond its reasonable control or (e) unauthorized access to the Service or other hacking.
6.3 Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE EXPLORER SURGICAL PROPERTIES, WORK AND OTHER SERVICES PROVIDED BY OR ON BEHALF OF EXPLORER SURGICAL UNDER THIS AGREEMENT AND REPORTS ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. FOR CLARITY, EXPLORER SURGICAL AND ITS LICENSORS DO NOT WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE EXPLORER SURGICAL PROPERTIES, WORK OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF EXPLORER SURGICAL UNDER THIS AGREEMENT OR REPORTS WILL BE ERROR-FREE, UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE EXPLORER SURGICAL PROPERTIES, WORK OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF EXPLORER SURGICAL UNDER THIS AGREEMENT OR REPORTS WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS OR THAT ANY RESULT OR OUTCOME CAN BE ACHIEVED. TO THE FULLEST EXTENT PERMITTED BY LAW, EXPLORER SURGICAL HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE EXPLORER SURGICAL PROPERTIES, WORK AND OTHER SERVICES PROVIDED BY OR ON BEHALF OF EXPLORER SURGICAL UNDER THIS AGREEMENT AND REPORTS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, USEFULNESS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, PERFORMANCE OR USAGE OF TRADE.
ThE SERVICE is designed to offer general clinical information for reference purposes only. The MATERIALS AND information furnished in thE SERVICE are not, and are not a substitute for, professional OR MEDICAL advice and are not intended to replace the judgment, TRAINING, EDUCATION OR EXPERIENCE of ANY physician, nurse, pharmacist, TECHNICIAN or other healthcare professional. While EXPLORER SURGICAL uses reasonable efforts to ensure that the MATERIALS AND Information PROVIDED BY THE COMPANY IN THE SERVICE AND THE SERVICE ITSELF ARE accurate and up to date, SUCH MATERIALS AND Information and/or THE SERVICE may contain technical inaccuracies AND OTHER errors. EXPLORER SURGICAL reserves the right to make changes, corrections and/or improvements to SUCH MATERIALS AND INFORMATION AND THE SERVICE at any time without notice. EXPLORER SURGICAL assumes no liability or responsibility for any errors or omissions in the MATERIALS OR INFORMATION IN THE SERVICE OR IN THE SERVICE ITSELF, OR WITH RESPECT TO ANY SERVICE DATA OR CUSTOMER INFORMATION. EXPLORER SURGICAL PROVIDES NO WARRANTIES ABOUT THE COMPLETENESS OR ACCURACY OF THE MATERIALS OR INFORMATION IN THE SERVICE OR THEIR POSSIBLE USES. EXPLORER SURGICAL makeS NO warranty that the MATERIALS AND INFORMATION in thE SERVICE satisfY government regulations. Medical information changes rapidly. EXPLORER SURGICAL does not guarantee that the MATERIALS AND INFORMATION in thE SERVICE cover all possible uses, directions, precautions, drug interactions, or adverse effects that may be associated with any guideline, alert, diagnosis, procedure or therapy, and EXPLORER SURGICAL does not recommend or endorse any specific tests, physicians, products, procedures, therapies, or opinions. EXPLORER SURGICAL does not assume any liability or responsibility for damage or injury (including death) to any patients, care providers, other persons or property arising from any use of any product, information, idea or instruction contained in the MATERIALS OR INFORMATION or services provided. The SERVICE provides general information which may not apply to any specific or factual circumstance.
CUSTOMER IS SOLELY RESPONSIBLE FOR VALIDATION OF THE ACCURACY OF ALL REPORTS AND OTHER OUTPUTS FROM THE SERVICE, ANY USE OR MISUSE OF SUCH REPORTS AND OTHER OUTPUTS OR ANY SERVICE GENERALLY (INCLUDING WITHOUT LIMITATION ANY PROCEDURES), AND FOR PROTECTING ITS DATA FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES, INCLUDING ROUTINE BACKUP PROCEDURES. CUSTOMER HEREBY WAIVES ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. CUSTOMER AGREES THAT AT ALL TIMES IT SHALL HAVE READILY ACCESSIBLE COPIES OF ALL CUSTOMER INFORMATION, SERVICE DATA, WORKFLOWS AND PROCEDURES.
7.1 Customer. Customer agrees to defend ExplORer Surgical against any demand, suit, action or other claim by any third party (including any User) that is related to any (a) Service Data, (b) Customer Information, or (c) breach of Customer's representations, warranties and covenants, and to indemnify ExplORer Surgical for any and all liabilities (resulting from settlements or judgment awards) based on such claims.
7.2 ExplORer Surgical. ExplORer Surgical agrees to defend Customer against any demand, suit, action or other claim by any third party that the Service misappropriates or infringes its U.S. intellectual property rights, and to indemnify Customer for liabilities (resulting from settlements or judgment awards) based on such claims. If the Service becomes or, in ExplORer Surgical's opinion, is likely to become the subject of an injunction preventing its use as contemplated herein, ExplORer Surgical may, at its option and as the sole remedy of Customer (a) obtain the rights needed to continue using the Service, or (b) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (a) and (b) are not reasonably available, then ExplORer Surgical may at its option, and without any additional liability to Customer except as expressly set forth below, (c) terminate this Agreement upon written notice to Customer and refund to Customer any prepaid fees, pro-rated for the remainder of the prepaid period. The foregoing states the entire liability of ExplORer Surgical, and Customer's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the ExplORer Surgical Properties, any part thereof or their use or operation.
7.3 Exclusions. ExplORer Surgical shall have no liability or obligation hereunder with respect to any claim attributable to (a) any use of the Service not strictly in accord with this Agreement or the User Terms, or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (b) any use of the Service with any third party intellectual property not provided by the Company, or (b) alterations, combinations or enhancements of the Service not created by ExplORer Surgical expressly for the use of Customer’s Users.
7.4 Conditions. The indemnifying party's obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnified party may participate in the defense at its sole cost and expense. The indemnifying party will not enter into any settlement (other than for payment of money subject to its indemnity) that adversely affects the indemnified party's rights or interests without its prior written approval, not to be unreasonably withheld, conditioned or delayed. The indemnifying party shall not be responsible for any settlement it does not approve in writing.
7.5 Insurance. Customer will obtain and maintain during the term of this Agreement and for 3 years thereafter such policies of general liability, errors and omissions, and professional liability insurance with reputable insurance companies as is usually carried by persons engaged in Customer’s business. In no event do these insurance requirements limit Customer’s indemnification obligations in this Agreement.
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH ANY BREACHES OF SECTIONS 2.1, 2.2, 2.3, 2.7, 2.10, 4.1, 5.3 OR 6.1 by customer or any of its users AND EXCEPT FOR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 7 (iNDEMNIFICATION), In no event shall ExplORer Surgical (or its licensors) OR CUSTOMER BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any (A) LOSS of data, loss or interruption OF USE, OR COST to procure SUBSTITUTE TECHNOLOGies, GOODS or SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING without limitation, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL or (c) aggregate damages in excess of the FEES PAID OR PAYABLE to ExplORer Surgical during the prior 12 months, EVEN IF it HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL EXPLORER SURGICAL (OR ITS LICENSORS) BE LIABLE FOR ANY CLAIMS ARISING OUT OF USE OF ANY OF THE EXPLORER SURGICAL PROPERTIES TO PROVIDE HEALTH CARE TO PATIENTS. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
9.1 Term. This Agreement shall commence on the Effective Date and continue in effect for the initial term set forth in the Ordering Document ( Initial Term ). This Agreement will be extended automatically for additional 1-year terms at the end of the Initial Term and each renewal term ( Renewal Terms ). However, either party may elect not to renew by giving written notice to the other at least 90 days prior to the end of the Initial Term or any Renewal Term.
9.2 Termination. This Agreement may be earlier terminated by either party if the other party breaches any material provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party.
Notwithstanding anything to the contrary in this Agreement, ExplORer Surgical has the right, on written notice to Customer, immediately to terminate or suspend this Agreement, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law, any standard of participation in any reimbursement program, or any accreditation standard; (c) if Customer is named as a defendant in a criminal proceeding for a violation of federal or state law; (d) if a finding or stipulation is made or entered into in any administrative or civil proceeding that Customer has violated any standard or requirement of federal or state law relating to the privacy or security of health information; (e) Customer is excluded from participation in a federal or state health care program; or (f) Customer ceases to be qualified to provide health care services.
9.3 Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) Customer will immediately pay to ExplORer Surgical any outstanding balance of fees due by Customer to ExplORer Surgical; (b) Customer will cease all use of the Service; and (c) all obligations that accrued prior to the effective date of termination, all remedies for any breach of this Agreement and the provisions of Sections 1, 2.3, 2.6 (the penultimate sentence only), 2.7 (the last sentence of the first paragraph only), 2.10, 2.11, 3, 4, 5, 6.1, 6.3, 7, 8, 9.3 and 10 shall survive. Termination is not the sole remedy under this Agreement and, whether or not termination takes effect, all other remedies will remain available except as otherwise expressly limited by this Agreement.
10.1 Entire Agreement. This Agreement (including the Ordering Documents and any Statements of Work) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements between the parties regarding the subject matter of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile copy (including PDF) shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature. Any additional, different or inconsistent terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. Except as expressly provided herein, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.
10.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, rules and regulations, US laws, rules and regulations shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the implementation of the Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. Unless waived by ExplORer Surgical in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Illinois, and both parties consent to the jurisdiction of such courts with respect to any such action. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
10.3 Arbitration. Unless resolved amicably between the parties, any and all disputes, controversies, or differences which may arise between the parties out of or in relation to or in connection with this Agreement, or the breach thereof, except for claims arising under Section 4 or regarding the validity, enforceability, or inventorship/ownership of patent rights, may be, upon the request of either party, solely and finally settled by binding arbitration pursuant to the then-current rules of the American Arbitration Association. Such arbitration shall be held in Chicago, Illinois. The arbitration shall be conducted by a single arbitrator who shall be knowledgeable in the subject matter hereof. The parties shall mutually agree upon the selection of the arbitrator, but if the parties cannot agree on such selection within 10 days following the submittal of a demand for arbitration by a party, then the arbitrator shall be selected by the American Arbitration Association. The arbitrator will provide a written explanation to the parties of any arbitration award. Any decision rendered by the arbitrator shall be binding, final and conclusive upon the parties, and a judgment thereon may be entered in, and enforced by, any court having jurisdiction over the party against which an award is entered or the location of such party’s assets, and the parties hereby irrevocably waive any objection to the jurisdiction of such courts based on any ground, including without limitation, improper venue or forum non conveniens. The parties and the arbitrator shall be bound to maintain the confidentiality of this Agreement, the dispute and any award, except to the extent necessary to enforce any such award and except as otherwise expressly provided in this Agreement. The prevailing party, if a party is so designated in the arbitration award, shall be entitled to recover from the other party its costs and fees, including reasonable attorneys’ fees, associated with such arbitration, as determined by the arbitrator. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator.
10.4 Remedies. Except as expressly specified otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 or 5, the non-breaching party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies, without the necessity of proving actual damages or posting any bond, and without resort to arbitration.
10.6 No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
10.7 Notices. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein, or at such other address designated by written notice. Notices will be deemed to have been duly given and effective when received, and shall be personally delivered or sent by overnight courier or certified or registered mail, postage pre-paid, return receipt requested.
10.8 Publicity. Customer hereby consents to inclusion of its name and logos in customer lists and presentation materials that may be published and distributed as part of ExplORer Surgical's marketing and promotional efforts. From time to time upon request, Customer agrees to provide ExplORer Surgical with reasonable cooperation and assistance in connection with other marketing efforts (such as, for example, by acting as a reference, issuing press releases and providing written or videotaped customer testimonials and case studies, with statements attributed to a named employee of Customer). Except for the foregoing or as required by any applicable law or regulation, neither party may issue any press release or other public announcement concerning the arrangements under this Agreement without the other party’s prior written consent, not to be unreasonably delayed, conditioned or withheld.
10.9 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld, conditioned or delayed. However, without consent, ExplORer Surgical may subcontract performance of all or any part of the services to be provided under this Agreement to any such subcontractor (and disclose Service Data and Confidential Information of Customer to any such subcontractor for such purpose), and either party may assign this Agreement (and all of its rights and obligations hereunder) to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation, reorganization or otherwise). In the event that Customer is acquired by a third party, Customer may continue to use the Service solely in connection with its authorized surgeons included within the Customer’s Users at the time of the acquisition. Customer agrees that ExplORer Surgical shall have the right to have an independent auditor verify Customer’s compliance with this provision and may immediately terminate this Agreement at any time on written notice to Customer if ExplORer Surgical reasonably believes Customer has failed to comply with the requirements of this provision. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
10.10 Force Majeure. Neither party shall be liable for any delay or failure in performing its obligations hereunder that arises out of any cause, condition or circumstance beyond its reasonable control, such as fire, flood, riot, earthquake, war, strike, governmental action, delay, failure, interruption or interception in telecommunications services or web access, loss or corruption of any data or other information attributable to transmission on the lines of third party carriers, utilities and/or internet service providers, services provided by third party carriers, utilities and internet service providers or terrorism.
10.11 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
10.12 Non-Solicitation. Until one (1) year after termination of this Agreement, Customer will not encourage or solicit any employee or consultant of ExplORer Surgical to leave the employment of, or service to, ExplORer Surgical for any reason.
This Statement of Work #1 is entered into by ExplORer Surgical Corp., a Delaware corporation ( ExplORer Surgical ), and _________________________________ ( Customer ), pursuant to that certain Service Agreement between the parties, dated as of __________ (the Service Agreement ). This Statement of Work shall have no effect separate and apart from the Service Agreement, and all capitalized terms used herein without definition will have the same meanings as specified therefor in the Service Agreement. ExplORer Surgical and Customer agree as follows:
Customer hereby approves the implementation and use of the following protocols. Customer acknowledges and agrees that ExplORer Surgical does not assume any responsibility for the accuracy or completeness of any such protocols, and will not undertake to verify their accuracy or completeness.
The approved protocols are as follows: [Insert detailed protocol documents]
Milestones and Schedule:
AGREED as of ______________: