ORHub Inc. Surgical Spotlight® Terms of Service

These Terms of Service are current as of December 2018

ORHub Inc. (the “Company”) is in the business of supplying software applications and related services to companies in the healthcare industry, including, among other things, categorizing provided data. These Terms of Service (the “ToS”) form a contract between Licensee (defined as below) and the Company and apply to Licensee’s use of Surgical Spotlight ® and any other features, technologies, and/or functionalities of the Surgical Spotlight offered by the Company (the “Surgical Spotlight Service”). The Surgical Spotlight Service is provided to the Licensee subject to these ToS as well as the Business Associates Agreement (the “BAA”) which is available at www.orhub.com and is incorporated in these ToS by reference.

For the purpose of this ToS, the term “Licensee” means a hospital user that desires the use of the Surgical Spotlight Service and executes this ToS.

Please read these ToS carefully, as they set out the Company’s and Licensee’s legal rights and obligations in relation to the Surgical Spotlight Service.

1. Third Party Agreements

The Company is solely responsible for the Surgical Spotlight Service. Licensee’s use of the Surgical Spotlight Service may also be subject to separate agreements the Licensee may enter into with its web browser operating system provider (e.g., IOS or Microsoft), its computer device manufacturer (e.g., Apple, Lenovo) and other parties involved in providing its computer device service. Third party operating system providers such as IOS and Microsoft, its computer or other mobile device manufacturer, its wireless carrier or other network provider, any other product or service provider related to its mobile device service are collectively referred to as “Covered Third Party Providers”. The Licensee agrees to comply with all applicable third party terms of agreement when using the Surgical Spotlight Service. The Company is not a party to those agreements and has no responsibility for the products and services provided by third parties.

2 The Service

2.1 The Company will make available Surgical Spotlight Service to the Licensee by setting up an account during the implementation process for the Licensee on Surgical Spotlight and providing to the Licensee login details for the account as soon as practicable following the execution of the contracted agreement.

2.2 The Company hereby grants to the Licensee a non-exclusive license to use the Surgical Spotlight Service for its permitted purpose via any standard web browser.

2.3 The license granted by the Company to the Licensee is subject to the following limitations:

(a) the Surgical Spotlight Service may only be used by the named users identified by the Licensee, providing that the Licensee may change, add or remove a designated named user in accordance with the procedure set out therein;

(i) Licensee may request users to have access granted for new users, user access removed, or user information revised by contacting support@orhub.com. Requests will be processed within three (3) business days.

(b) the Surgical Spotlight Service shall only be used by the employees, agents and subcontractors of the Licensee designated by the Licensee and:

(i) where the Licensee is a company, the designated Licensee’s officers;

(ii) where the Licensee is a partnership, the designated Licensee’s partners; and

(iii) where the Licensee is a limited liability partnership, the designated Licensee’s members;

(c) the Licensee shall comply at all-times with the terms set forth in Section 2.8 and shall ensure that all its designated users of the Surgical Spotlight Service agree to and comply with the terms set forth in the Acceptable Use Policy, Section 2.8;

(d) the Licensee shall use all reasonable efforts to ensure that no unauthorized/undesignated person access or is caused to access to the Surgical Spotlight Service via Licensee’s account.

2.4 Except to the extent mandated by applicable laws or expressly permitted in the ToS, the license granted by the Company to the Licensee is subject to the following prohibitions:

(a) subject to Section 2.4 (b), the Licensee shall not sub-license its right to access and use the Surgical Spotlight Service or allow any undesignated person to access or use the Surgical Spotlight Service;

(b) the Licensee shall not frame or otherwise re-publish or re-distribute the Surgical Spotlight Service; and

(c) the Licensee shall not alter or adapt or edit the Surgical Spotlight Service save as expressly permitted by Section 2.8 hereof.

2.5 For the avoidance of doubt, the Licensee has no right to access the object code or source code of the Surgical Spotlight Service, either during or after usage period.

2.6 “Intellectual Property Rights” shall mean all patent, copyright, trademark trade dress, trade secrets, and other rights in the Surgical Spotlight Service, now or hereafter owned by Company in and to any designs, formulas, labels, advertising and proprietary materials used in conjunction with the Surgical Spotlight, whether created by or on behalf of Company.

2.6.1 This ToS is not an assignment or grant to Licensee of any right, title or interest in or to the Intellectual Property Rights, other than the grant of rights to use the Intellectual Property Rights in connection with the Surgical Spotlight Service. All rights not specifically granted herein to Licensee are reserved to the Company, which may at all times fully and freely exercise the same. All Intellectual Property Rights in the Surgical Spotlight Service shall, as between the parties to the ToS, be the exclusive property of the Company.

2.7 Restricted Activities

In connection with Licensee’s use of its account, or the Surgical Spotlight Service, or in the course of its interactions with Company, a designated user under Section 2.3, a Covered Third Party Provider or another third party, the Licensee will not:

  • breach these ToS, the BAA, or any other agreement the Licensee may have entered into with Company;
  • violate any law, statute, ordinance, or regulation (for example, those governing consumer protections, unfair competition, anti-discrimination or false advertising);
  • infringe Company’s or any third party’s copyright, patent, trademark, trade secret or other Intellectual Property Rights, or rights of publicity or privacy;
  • act in a manner that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing;
  • provide false, inaccurate or misleading personal information;
  • create more than one Surgical Spotlight Service account for itself, though, among other methods, using a name that is not itself, using temporary email address(es) or phone number(s), or providing any other falsified personal information;
  • refuse to cooperate in an investigation or provide confirmation of its identity or any personal information the Licensee provides to us;
  • use an anonymizing proxy;
  • control or possess more than one account without authorization from the Company;
  • use the Surgical Spotlight Service in a manner that results in or may result in complaints, disputes, claims, reversals, chargebacks, fees, fines, penalties and other liability to Company, a Licensee, a third party, or a designated user;
  • facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;
  • use any robot, spider, other automatic device, or manual process to monitor or copy the Company’s website without the Company’s prior written permission;
  • take any action that may cause us to lose any of the services from the Company’s internet service providers or other suppliers.

2.8 Acceptable Use

2.8.1. The Licensee agrees it will not use the Surgical Spotlight Service:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

2.8.2 Licensee is to use the Surgical Spotlight only for purposes that are permitted by

(a) the ToS and

(b) any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).

2.8.3 Licensee will not engage in any activity that interferes with or disrupts the Surgical Spotlight Service (or the servers and networks which are connected to the Surgical Spotlight Service Services).

2.8.4 Unless the Licensee obtains the express written consent of the Company in a separate agreement, the Licensee will not reproduce, duplicate, copy, sell, trade, modify, or resell the Surgical Spotlight Service for any purpose.

2.8.5 Licensee is solely responsible for (and that the Company has no responsibility to Licensee or to any third party for) any breach of its obligations under the ToS and for the consequences (including any loss or damage which the Company may suffer) of any such breach.

2.8.6 Licensee shall not share account information (login, passwords, etc.) to allow others to access the Surgical Spotlight Service independently; nor shall they login on the behalf of another person.

2.9 Legal Compliance

The Licensee is solely responsible for ensuring that its use of the Surgical Spotlight Service is in conformance with applicable federal, state and local laws and regulations. By using the Surgical Spotlight Service, the Licensee warrants and represents that

the Licensee is not located in a country that has been designated by the U.S. Government as a “”terrorist supporting”” country; and

the Licensee is not listed on any U.S. Government list of prohibited or restricted parties.

2.10 The Company will notify the Licensee when the ToS is amended. The Licensee has thirty (30) days to accept the updated ToS. If the Licensee does not accept the amended ToS within the thirty (30) day period, access will be revoked.

3. Implementation

The Company will assist the initial implementation to provide the Licensee the Surgical Spotlight Service described in the ToS. This schedule is contingent on:

(a) Licensee providing: all data required by the Company in order to implement the infrastructure during its implementation process between the parties to this ToS.

(b) Licensee completing all tasks and activities required as a prerequisite in order for the system to be placed into production use. Example of these types of activities are, but not limited to, validation activities, document approval, data migration, user training etc.

4. Personal Health Information (PHI)

4.1 The Licensee warrants and represents that it will take reasonable efforts to protect its PHI and agrees that if any PHI is disclosed to the Company during its use of Surgical Spotlight Service, the Company is not liable for any PHI it receives.

4.2 The Company warrants and represents that should it end up with any PHI, the PHI will be permanently deleted upon discovery. Any PHI exchanged with the Company will be done in according to the Company’s Business Associates Agreement (BAA).

5. Confidentiality

For purposes of this ToS, “Confidential Information” means any confidential material or information disclosed by the Licensee to the Company that is marked or otherwise identified as confidential at the time of disclosure, or which given facts and circumstances under which such material or information is disclosed, should reasonably be considered confidential.

Notwithstanding anything in the foregoing to the contrary, Confidential Information shall not include materials or information which: (i) was demonstrably known by the Company prior to receiving the Confidential Information from the Licensee; (ii) becomes rightfully known to the Company from a third-party source under no obligation to maintain confidentiality; (iii) is or becomes publicly available through no fault of or failure to act by the Company; (iv) is or has been independently developed by the Company without use of or reference to any of the Licensee’s Confidential Information, as evidenced by written records.

From time-to-time the Company may disclose Confidential Information to the Licensee during discussions with the implementation and/or support teams. An example of this may include new products and/or features, or other content that is not considered public information.

5.1 The Company will:

(a) keep confidential and not disclose Confidential Information of the Licensee; and

(b) protect the Confidential Information of the Licensee against unauthorized disclosure by using the same degree of care as it takes to preserve and safeguard its own Confidential Information of a similar nature, being at least a reasonable degree of care.

5.2 The obligations set out shall not apply to:

(a) Licensee’s Confidential Information that is publicly known (other than through a breach of an obligation of confidence);

(b) Licensee’s Confidential Information that is received by the Company from an independent third party who has a right to disclose the relevant Confidential Information; or

(c)Licensee’s Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the Company shall where permitted by law give to the Licensee prompt written notice of the disclosure requirement.

5.3 Licensee understands that the technical processing and transmission of Licensee’s Electronic Communications is fundamentally necessary to Licensee’s use of the Surgical Spotlight Service. Licensee expressly understands and consents to:

(a) The Company’s interception and storage of Electronic Communications and/or Licensee Data, acknowledges and understands that Licensee’s Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by the Company; and

(b) changes to Licensee’s Electronic Communications that may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices;

(c) Electronic Communications that may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Licensee agrees that the Company is not responsible for any Electronic Communications and/or Licensee Data which are lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by the Company.

For the purpose of this ToS, the term “Electronic Communications” mean the communications between the Licensee and the Company using electronic means, whether the Licensee visits the website of the Company or send the Company e-mails, or whether the Company posts notices on its website or communicates with the Licensee via e-mail.

For the purpose of this ToS, the term “Licensee Data” means the true, accurate, current and complete information provided about the Licensee as prompted by the Company’s order form and data exchange specifications

. The Licensee shall maintain and promptly update the Licensee Data to keep it true, accurate, current and complete.

5.4 Disclosure of Confidential Information. From time to time, the Company may disclose Confidential Information to the Licensee. The Licensee will: (a) limit access to any Confidential Information to its employees, officers, directors and agents (collectively “Representatives”) who have a need to know such Confidential Information in connection with the current or contemplated service relationship between the parties to which this ToS relates, and only for that purpose; (b) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this ToS and require such Representatives to keep the Confidential Information confidential; (c) maintain all Confidential Information in strict confidence by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose any Confidential Information received by it to any third parties (except as otherwise expressly provided for herein). The Licensee shall be responsible for any breach of this ToS by any of its respective Representatives.

6. Force Majeure Event

6.1 The Company shall not be liable for any delay or failure in the performance of the Company’s services, or for any damages suffered by the Licensee by reason of such delay or failures, directly or indirectly caused by or in any manner arising from or connected with acts of God, acts of public enemies, riots, strikes, acts of governmental agencies, labor difficulties, failure of the Company’s power, telecommunications or other suppliers, breakdown or destruction of any system or equipment, or any other cause or causes beyond the Company’s control, whether or not similar to those enumerated herein (the “Force Majeure Event”).

6.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the ToS, will:

(a) forthwith notify the other; and

(b) will inform the other of the period for which it is estimated that such failure or delay will continue.

6.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

7. Termination

7.1 Either party may terminate the ToS immediately by giving written notice of 30-days to the other party if the other party:

(a) commits any material breach of any term of the ToS, and:

(i) the breach is not remediable; or

(ii) the breach is remediable, but the other party fails to remedy the breach within 30-days of receipt of a written notice requiring it to do so; or

(b) persistently breaches the terms of the ToS (irrespective of whether such breaches collectively constitute a material breach).

7.2 Either party may terminate the ToS immediately by giving written notice of at least 30-days to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(vi) if the Company stops or makes a good faith decision to stop operating the Surgical Spotlight Service.

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

7.3 Written notice of termination may be submitted to hospitalcontractadministrators@orhub.com.

8. Effects of Termination

8.1 Upon termination of the ToS, all the provisions of the ToS will cease to have effect except Section 5.

8.2 Termination of the ToS will not affect either party’s accrued liabilities and rights as at the date of termination.

8.3 Upon termination of the ToS, the Company will maintain indefinite licensing rights to use data provided to the Company by the Licensee for research, archives, resale, marketing, analytics, and/or other appropriate business purposes.

9. Payment Terms and Pricing

9.1 The Company will invoice the Licensee on a monthly basis. The billing cycle represents the services provided for the previous month. All payments to the Company hereby shall be made via wire or electronic transfer to an account designated by the Company, or by bank check of immediately available funds made payable and delivered to the Company on or before the relevant due date.

(a) the Licensee will remit payment to the Company upon the billing date at NET-30 (thirty) calendar day terms.

(b) a five (5) business day grace period will be granted for payment prior to the Licensee to being subject to a late payment penalty of 1.5% of the total outstanding balance per month.

(c) an outstanding balance of over sixty (60) days will result in the Company suspending Surgical Spotlight Service until balance and penalties are paid. Upon the conclusion of the 30th day of account suspension, the Company will terminate the ToS with the Licensee and take appropriate actions to collect outstanding debts for Surgical Spotlight Service provided. Undisputed charges thirty (30) days after the billing date are considered accepted by Licensee.

(d) The Company has the right to change pricing with a ninety (90) day written notice. Notice may be delivered by email to the billing contact registered in the application.

9.2 The first invoice the Company submits to the Licensee will include the applicable one-time implementation fee, applicable annual licensing fees, and the first month’s usage charges. All subsequent invoices will include only usage charges as set forth in Section 9.3 (c).

9.3 The Licensee agrees to the pricing structure set forth by the Company in the Order Form, for the use of Surgical Spotlight Service.

10 Indemnification

The Licensee agrees to defend, indemnify and hold harmless Company and its parent, affiliates, officers, directors and employees from any claim or demand (including any damages, losses, expenses and attorney fees resulting therefrom) made or incurred by any third party due to or arising out of Licensee’s breach of this ToS and/or Licensee’s use of the Surgical Spotlight Service.

11. Release of Company

If the Licensee has a dispute with one or more users relating to the Surgical Spotlight Service, the Company is not responsible for any such dispute and the Licensee hereby releases Company (and the Company’s officers, directors, agents, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.

12. Modification of Terms

The Company may amend these ToS at any time by posting a revised version on the Company’s website. The revised version will be effective at the time we post it unless it contains material changes. If we make changes to these ToS that either reduce the rights of the Licensee or increase the Licensee’s responsibilities, we will provide twenty-one (21) day notice to the Licensee before the changes become effective. By using the Surgical Spotlight Service after revised ToS have been posted, the Licensee agrees to the revised ToS.

13. Survival

In the event of termination of these ToS or the Surgical Spotlight Service, the terms herein that by their nature are continuing shall survive such termination, including but not limited to the disclaimers and limitations of liabilities.

14. Disputes with Company

14.1 Dispute with Company

If a dispute arises between the Licensee and the Company, the Company’s goal is to learn about and address the concerns and, if we are unable to do so to Licensee’s satisfaction, to provide the Licensee with a neutral and cost-effective means of resolving the dispute quickly. Disputes between the Licensee and the Company regarding its services may be reported by emailing us at the following email address: hospitalcontractadministrators@orhub.com.

14.2 Law and Forum for Disputes; Arbitration

ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THESE ToS MUST BE ASSERTED INDIVIDUALLY IN BINDING ARBITRATION CONDUCTED BY A SINGLE ARBITRATOR WITH EXPERIENCE IN CONSUMER ONLINE PAYMENT SERVICES DISPUTES ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE AAA SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES. The forum for arbitration shall be in the city closest to the residence of the Licensee having a federal district courthouse. The arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. To the extent allowed by applicable law, the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of these ToS including, but not limited to, any claim that all or any part of these ToS are void or voidable. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

These ToS evidence a transaction involving interstate commerce and the United States Arbitration Act shall apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings.

There are only two exceptions to this agreement to arbitrate. First, if the Company reasonably believes that the Licensee has in any manner violated or threatened to violate the Intellectual Property Rights, the Company may seek injunctive or other appropriate relief in any court of competent jurisdiction. Second, any claim of $500 or less may, at the option of the claiming party, be resolved in small claims court in New York City, New York, if the claim and the parties are within the jurisdiction of the small claims court. For these two exceptions, the Licensee agrees to submit to the personal jurisdiction of the courts located within New York City, New York for the purpose of litigating such claims or disputes.

14.3 Waiver of Right to Jury; Class Action Waiver

TO THE EXTENT ALLOWED BY LAW, THE LICENSEE AGREES TO IRREVOCABLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OR OTHER COURT TRIAL (OTHER THAN SMALL CLAIMS COURT) OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES.

15. Miscellaneous

These ToS and other documents referenced in, which are hereby incorporated herein and made a part of these ToS by this reference, contain Licensee’s and the Company’s entire agreement regarding Licensee’s use of the Surgical Spotlight Service. If any provision of these ToS is deemed to be illegal or unenforceable, such provision shall be enforced to the extent possible, and any remaining illegality or unenforceability will not affect the validity or enforceability of any other provisions of these ToS, which together will be construed as if such illegal or unenforceable provision had not been included in these ToS. Any legal action arising out of Licensee’s use of the Surgical Spotlight Service must be brought within one (1) year after the cause of action has arisen. The section headings in these ToS are for convenience of reference only and are not to be considered as parts, provisions or interpretations of these ToS. The Licensee may not transfer or assign any rights or obligations the Licensee has under these ToS without Company’s prior written consent. The Company reserves the right to transfer or assign these ToS or any right or obligation under these ToS at any time. The Company’s failure to act with respect to a breach by the Licensee or others does not waive the Company’s right to act with respect to that breach or subsequent or similar breaches.

By accessing and using this Surgical Spotlight Service, you accept and agree to be bound by the set terms and provisions of these Terms of Service. In addition, when using these particular services, you shall be subject to any posted guidelines or rules applicable to such services. Any participation in this service will constitute acceptance of these Terms of Service. If you do not agree to abide by the above, please do not use this service.