This Service Agreement (“Agreement”) is made and entered into on the last date of signature by and between ORX Surgical Inc. (“ORX Surgical”, “Party” or “Vendor”), a Delaware corporation, and CUSTOMER (“Customer” or “Party”), with its principal place of business at CUSTOMER ADDRESS.
ORX Surgical offers and Customer wishes to access certain software and supply chain management services (“Services”). The Services and applicable fees are outlined below in Exhibit A. The Parties hereto agree as follows:
ORX Surgical offers and Customer wishes to access certain software and supply chain management services (“Services”). The Services and applicable fees are outlined below in Exhibit A. The Parties hereto agree as follows:
1. Contract Period The initial term of this Agreement is three (3) years starting from the Effective Date stated in Exhibit A. This Agreement shall automatically renew for additional terms of one (1) year each unless either Party gives notice of cancellation at least thirty (30) days prior to the expiration of the original term or any renewal thereof.
2. Billing and Payment Invoicing information is listed in Exhibit A. Services may be terminated if payments are not received within the terms. All invoices for the second and third years and any subsequent renewal periods beyond the first term are due on the anniversary date of this agreement.
3. Representations and Warranties General. Each Party represents and warrants that it has the right and authority to enter into this Agreement, and that by entering into this Agreement, it will not violate, conflict with, or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien, or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.
Acceptable Use. Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services. Customer represents and warrants that it will not use the Services in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; will not disrupt a third parties’ similar use; will not violate or tamper with the security of any ORX Surgical equipment or program; will not copy or republish the Services or software; will not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software used to provide the Services; and will not access the Services in order to build a similar or competitive product. ORX Surgical may suspend the Services immediately upon notice to Customer if it has reasonable grounds to believe that Customer is utilizing the Services for any illegal or disruptive purpose until such time that Customer provides adequate assurances to ORX Surgical that Customer’s use is not in violation of this Agreement. Customer agrees to use the Services solely for its internal business operations subject to the terms of this Agreement. ORX Surgical may terminate the Agreement as contemplated in Section 8 if Customer fails to adhere to the foregoing acceptable use standards.
Non-Exclusion. ORX Surgical represents and warrants to Customer that neither ORX Surgical nor any of its owners, officers, directors, employees, or agents (“ORX Surgical Representatives”) is an Ineligible Person. For purposes of the representations and warranties contained herein, an “Ineligible Person” is an individual or entity who is currently excluded, debarred, suspended, or otherwise ineligible to participate in the federal health care programs as defined in 42 U.S.C § 1320a-7b(f) or in federal procurement or non-procurement programs; or has been convicted of a criminal offense that falls within the ambit of 42 U.S.C. § 1320a-7(a), but has not yet been excluded, debarred, suspended, or otherwise declared ineligible to participate in the Federal Health Care Programs. ORX Surgical further represents and warrants to Customer that, to the best of ORX Surgical’s knowledge, neither ORX Surgical nor any of the ORX Surgical Representatives is under investigation or otherwise engaged in conduct which may result in ORX Surgical or one of the ORX Surgical Representatives becoming an Ineligible Person.ORX Surgical warrants that it has, and will throughout the Term, the right to license any ORX Surgical software or product, as applicable, to Customer in accordance with the terms and provisions of this Agreement free from any lien, claim, or encumbrance of any third party and without violation of any agreements, rights, or obligations existing between ORX Surgical and any third party. To the extent ORX Surgical incorporates third-party rights into any such ORX Surgical software or product, ORX Surgical warrants and represents that it has obtained the rights from those third parties necessary to vest in or grant to Customer the various license rights necessary under this Agreement.
Disclaimer. The warranties set forth in this section 3 are the only warranties made by ORX Surgical. ORX Surgical makes no other warranties of any kind, express or implied, with respect to the Services, any related service, or software. ORX Surgical hereby expressly disclaims any implied warranty for merchantability, fitness for a particular purpose, or implied warranties arising from a course of dealing or course of performance. No oral or written information given by ORX Surgical, its employees, licensors, or the like will create a warranty.
4. Limitation of Liability; Under no circumstances will either Party be liable for any indirect, incidental, special, or consequential damages that result from this Agreement, including but not limited to loss of revenue or lost profits, or damages that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission, failure of performance, theft, destruction, or unauthorized access to ORX Surgical’s records, programs, or services.
To the fullest extent permitted by law, each party hereunder shall indemnify, save harmless and defend one another, a party’s affiliates and the directors, officers, agents, and employees of any of the foregoing from and against any and all suits, actions, legal proceedings, claims, damages, costs, and expenses of whatsoever kind or character, arising out of or by reason of any liability or obligation in any manner caused or occasioned by any act, omission, fault, or negligence of an indemnitor in connection with or incident to this Agreement except where caused by the negligence of indemnitee, its directors, officers, agents, or employees, in which event the indemnitor’s obligation under this Section for the payment of damages, costs, and expenses shall be reduced in proportion to the negligence of indemnitee, its directors, officers, agents, or employees, on the basis of comparative negligence or fault.
ORX Surgical shall defend and indemnify and hold Customer harmless against any action brought against Customer to the extent that such action is based on a claim that the product(s) or service(s) purchased or provided hereunder, properly used within the scope of this Agreement, infringes a United States patent or copyright, provided that Customer gives ORX Surgical the sole control of the defense, all negotiations, and any settlement. If the product(s) or service(s) become, or are likely to become, the subject of an infringement claim, ORX Surgical may, at its option, secure Customer’s right to continue using the product(s) or service(s) or replace them to make them non-infringing with substantially similar functions and levels of performance and otherwise indemnify Customer for any related costs it incurred prior to securing such a settlement including but not limited to attorney’s fees and costs.
The parties agree that the obligations of this Section shall not be limited in any manner.
5. Marketing Neither Party shall advertise the fact that it has contracted with the other Party for goods and/or services, or appropriate or make use of the Party’s name or other identifying marks or property without their prior written consent. Neither Party shall publish, nor submit for publication, any work resulting from the Services provided hereunder without prior written approval from the other Party.
6. Confidentiality Each of the Parties agrees not to disclose to any third party the terms of this Agreement, including pricing, without the prior written consent of the other Party hereto, except to advisors, investors, and others on a need-to-know basis under circumstances that reasonably ensure the confidentiality thereof, or to the extent required by law, rule, regulation, court order, subpoena, legal process, or law enforcement or regulatory agency request.
ORX Surgical agrees that all Customer data and information that ORX Surgical may directly or indirectly access in providing the product(s) or Service(s) hereunder (the “Customer Data”) shall remain the sole property of Customer, and ORX Surgical shall only use such Customer Data for the purpose of providing the product(s) or Service(s) contemplated in this Agreement. ORX Surgical shall not sell, distribute, or grant third-party access to Customer Data. Such prohibition also includes any aggregated form of Customer Data, alone or otherwise combined or aggregated with other data, from which a third party could isolate and re-identify Customer or any Customer patient or personnel.
7. Customer Responsibility Customer is solely responsible for the content of communications transmitted by Customer using the Services, and shall defend, indemnify and hold harmless ORX Surgical from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon the content of any such Customer communications. Customer is not permitted to resell the Services. Customer shall use the Services only for lawful purposes. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Services to Customer’s authorized users. Customer is responsible for establishing designated points of contact to interface with ORX Surgical.
8. Termination If a Party fails to perform or observe any material term or condition of this Agreement and the failure continues unremedied for thirty (30) days after receipt of written notice, (1) the other Party may terminate this Agreement, or (2) where the failure is a nonpayment by Customer of any charge when due, ORX Surgical, may, at its option, terminate or suspend Services with or without any notice. This Agreement may be terminated immediately upon written notice by either Party if the other Party becomes insolvent or involved in a liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors. Customer shall be responsible for payment of all charges under a terminated Agreement incurred as of the effective date of termination. In the event Customer terminates the Agreement pursuant to this paragraph, ORX Surgical shall issue a pro rata refund to Customer of any fees paid in advance through the date of termination.
Either Party may terminate this Agreement, with or without cause, upon at least 60 days’ prior written notice to the other Party. If ORX Surgical terminates this Agreement pursuant to the foregoing sentence, ORX Surgical shall issue a pro rata refund to Customer of any fees paid in advance through the date of termination.Upon termination or expiration of this Agreement, ORX Surgical shall promptly provide Customer a copy of all Customer Data in any ORX Surgical software or electronic platform. Such Customer Data shall be provided in a usable format for Customer, as Customer shall determine in its reasonable, sole discretion.
9. Taxes Sales tax and other similar taxes will be invoiced as applicable unless Customer provides a valid certificate of exemption.
10. Compliance with Customer Policies Exhibit B is hereby incorporated into this Agreement, which details Customer’s Business Associate.
ORX Surgical agrees that, if ORX Surgical employees, contractors, or agents (“Personnel”) will enter upon the premises of Customer, ORX Surgical will ensure that such Personnel comply with all applicable facility policies, procedures, and processes, including but not limited to Customer’s vendor policies. ORX Surgical agrees and understands that ORX Surgical Personnel must check in using Customer’s vendor management and identification system each time they arrive on-site at a Customer location. Customer reserves the right to require ORX Surgical to remove any employee, contractor, or agent from its premises or as a provider of any Services rendered hereunder at any time for any reason.
In the event ORX Surgical requires access to Customer data or information systems, ORX Surgical shall comply with all applicable Customer Information Technology and Information Security rules, requirements, and policies.
11. Access to Books and Records If this Agreement is for the provision of services with a value of $10,000.00 or more over a 12-month period, then until the expiration of 4 years after the furnishing of any services pursuant to this Agreement, ORX Surgical shall make available, upon written request by the Secretary of the United States Department of Health and Human Services or from the United States Comptroller General, or any of their duly authorized representatives, this Agreement and such books, documents, and records of ORX Surgical that are necessary to certify the nature and the extent of the reasonable cost of services to Customer. If ORX Surgical enters into an agreement with any related organization to provide services pursuant to this Agreement with a value of $10,000.00 or more over a 12-month period, such agreement shall contain a clause identical in content to the first sentence of this paragraph.
12. General Provisions & Force Majeure.
• This Agreement, together with its Exhibits, Schedules, and Appendices, constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous proposals, agreements, or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by the duly authorized representatives of each Party.
• Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties, nor shall either Party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.
• This Agreement may not be assigned, sublicensed, or transferred, in whole or in part, by Customer without the prior written consent of ORX Surgical. Any attempted assignment, subletting, or transfer shall be void.
• If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such decision shall not affect the validity or enforceability of the Agreement or any of the remaining provisions, and this Agreement shall be construed by adding a valid provision which effectuates the intent of the invalid provision as nearly as lawfully possible.
• No delay or failure of ORX Surgical or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by ORX Surgical or Customer of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breach.
• If your non-identifiable data are used for research purposes, then the limitation of liability and indemnity clauses contained within the End User License Agreement/Terms of Service Agreement are waived with respect to any harms suffered or liabilities incurred as a result of any research activities.