Surgery Hero Standard Terms and Conditions

Last updated 30/10/2023

AGREED TERMS

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Admin Portal: Administrative portal used by customers to control billing details, users and subscriptions. 

Agreement: These Standard Terms and any signed SLA. 

AUP: Surgery Hero's Acceptable Use Policy, available at www.surgeryhero.com/acceptableusepolicy

Authorised Users:  those patients, employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in Clause 2.4.

Business Day:  a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Confidential Information:  information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.5 or Clause 11.6.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

Customer Data:  the data inputted by the Customer, Authorised Users, or Surgery Hero on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

Data Protection Legislation:  the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); [and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party].

Subscription Term:  the term of this agreement as set out in the SLA.

Patient: any patient of the customer with whom the Software Solution and any applicable hardware will be used.

Patient App: the Surgery Hero mobile application, configured to capture Patient Data, including health data, relevant for the Disease Area;

Patient Data: data uploaded by a Patient to the Platform using the App, either directly or via a wearable or other connected device, which may be viewed by End Users in the provision of care to that Patient

Project Details: shall be agreed in the relevant section of each SLA

Renewal Period:  the period described in Clause 7.1 unless otherwise stated in the SLA.

Services:  the subscription services provided by Surgery Hero to the Customer under this agreement and the SLA.

SLA: Service Level Agreement.

Software:  the online software applications provided by Surgery Hero as part of the Services.

Subscription Fees:  the subscription fees payable by the Customer to Surgery Hero for the User Subscriptions, as set out in the SLA.

Subscription Term:  has the meaning given in Clause 7.1 (being the Initial Subscription Term together with any subsequent Renewal Periods as described in the SLA. 

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

User Subscriptions:  the user subscriptions purchased by the Customer pursuant to the SLA which entitle Patients to access and use the Services and the Documentation in accordance with this agreement.

Virus:  any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

 

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes an individual, corporate or unincorporated body 

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.9 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2. SUBSCRIPTIONS

2.1 This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Surgery Hero or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "Surgery Hero Technology"). Except as expressly set forth in this Agreement, no rights in any Surgery Hero Technology are granted to the Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services.

2.2 The Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the numbers detailed in the SLA and Surgery Hero shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement and the signed SLA. 

2.3 If the Customer wishes to purchase additional User Subscriptions, this can be done by notifying Surgery Hero.

3. SERVICES

3.1 Surgery Hero shall, in respect of each Project for which a SLA is executed, provide the Services in accordance with the SLA. 

3.2 The Standard Services (detailed in the SLA) shall be provided as consideration for the subscription fee. Where Enhanced Services are agreed to be provided by Surgery Hero in any SLA, the customer shall be liable to pay the agreed SLA Fees.

4. THIRD PARTY PROVIDERS

4.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Surgery Hero makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Surgery Hero. Surgery Hero recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Surgery Hero does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services. The customer shall indemnify and keep indemnified Surgery Hero against any losses, claims, demands or expenses arising in connection with any claim by a Patient or third party in respect of any of the Third Party Interfaces or any Adverse Event.

5. SURGERY HERO OBLIGATIONS

5.1 Surgery Hero undertakes that the Services will be performed substantially in accordance with the SLA and with reasonable skill and care.

5.2 The undertaking at Clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Surgery Hero’s instructions, or modification or alteration of the Services by any party other than Surgery Hero or our duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in Clause 5.1.

5.3 Surgery Hero:a) does not warrant that:(i) the Customer's use of the Services will be uninterrupted or error-free(ii ) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements;(iii) the Software or the Services will be free from Vulnerabilities.

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.4 This agreement shall not prevent Surgery Hero from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

5.5 Surgery Hero warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

5.6 The Parties acknowledge that the accuracy and quality of any Patient Data uploaded to, stored on or accessed using the Software Solution is dependent on the Patient. Surgery Hero accordingly offers no warranties of any type in respect of such Patient Data, including whether it is sufficient for the Customer’s, End Users' or Patient's purposes. The Customer shall indemnify Surgery Hero against any losses or expenses incurred by Surgery Hero as a result of any third party claim relating to the Customer’s or any End User's use of such Patient Data.

5.7 The Parties agree that the Targeted Timelines (specified in each SLA) are indicative only and SurgeryHero shall not be in breach of its obligations under the SLA or the Agreement if those Targeted Timelines are not achieved.

5.8 Surgery Hero is committed to improving our practices to combat slavery and human trafficking. We recognise that slavery and human trafficking is a real yet hidden issue in our society. We will not tolerate slavery and human trafficking in our business or supply chain. We are committed to acting ethically and with integrity in all our business dealings and relationships and to implementing and enforcing effective systems and controls to ensure that any form of slavery is not taking place in our own business or supply chains.

6. CUSTOMER OBLIGATIONS 

6.1 The Customer shall:

1. provide Surgery Hero with:(i) all necessary co-operation in relation to this agreement; and(ii) all necessary access to such information as may be required by Surgery Hero;in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
2. without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
3. carry out all other Customer responsibilities set out in this agreement and the SLA in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Surgery Hero may adjust any agreed timetable or delivery schedule as reasonably necessary;
4. ensure that the Authorised Users use the Services and in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Surgery Hero, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
6. ensure that its network and systems comply with the relevant specifications provided by Surgery Hero from time to time; and
7. be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Surgery Hero's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

7. PAYMENT

7.1 Unless otherwise specified on the applicable SLA, each Subscription Term will automatically renew for an additional twelve month period unless either party gives the other written notice of termination.

To exercise any break clause detailed in the SLA parties must give the other written notice of termination. Termination will be effective at the end of the next billing cycle. 

7.2 All fees are as set forth in the applicable SLA. Except as expressly set forth in Section 12 (Limitation of Liability) and Section 11 (Indemnity), all fees are non-refundable. The rates in the SLA are valid for the initial twelve (12) month period of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Customers are responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable SLA. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Surgery Hero receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

7.4 If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Surgery Hero reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. Surgery Hero also reserves the right to suspend Customer's access to the Services without liability to Customer if Customer's use of the Services is in violation of the AUP.

7.5 Surgery Hero shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 2.2. 

8. DATA PROTECTION

8.1 Surgery Hero and the customer shall comply with applicable Data Protection Laws at all times when processing Personal Data in connection with this Agreement. 

8.2 Surgery Hero shall: (a) collect from Data Subjects and process Personal Data in accordance with (i) the SLA, (ii) Surgery Hero's privacy policy available at  www.surgeryhero.com/privacy-policy, and (iii) Data Protection Laws; and (b) make available such Personal Data with the Client to the extent permitted by the Data Subject's instructions and the SLA and otherwise in accordance with Data Protection Laws. 

8.3 Except where clause 8.4 applies, the parties do not anticipate that, pursuant to the Agreement, either of them will process Personal Data as Processor on behalf of the other party as Controller. To the extent that such processing shall occur the parties agree to put in place, in advance, appropriate and sufficient protections and safeguarding measures as required by Data Protection Laws.

8.4 For the purposes of onboarding patients and other authorised users the client may transfer limited specific categories of personal data including but not limited to; Name, Telephone number, Email, DoB and address. 

8.5 In instances where Surgery Hero acts as a processor on behalf of the customer as controller. 

the Client, as Data Controller shall: 

• (i) ensure that any instructions it issues to Surgery Hero as the Data Processor shall comply with the Data Protection Laws; and
  (ii) have sole responsibility for the accuracy, quality and legality of Relevant Personal Data and the means by which the Data Controller acquired Relevant Personal Data shall establish the legal basis for processing under Data Protection Laws, including providing all notices and obtaining all consents as may be required under Data Protection Laws in order for the Data Processor to process the Personal Data as otherwise contemplated by this Agreement.
  
  
• Surgery Hero, as Data Processor shall:
  
  (i) maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Laws, and shall make such information available to any DP Regulator on request.
  (ii) process such Personal Data (a) only in accordance with the Client's lawful written instructions from time to time (including those set out in this Agreement), unless it is otherwise required by applicable Law (in which case, unless such Law prohibits such notification on important grounds of public interest, Surgery Hero shall notify the Client of the relevant legal requirement before processing the Personal Data), and (b) only for the duration of this Agreement;
  (iii) take commercially reasonable steps to ensure its personnel have access to such Personal Data, and ensure that any such personnel are committed to binding obligations of confidentiality when processing such Personal Data;
  (iv) taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing, implement and maintain technical and organisational measures and procedures to ensure an appropriate level of security for such Personal Data, including protecting such Personal Data against the risks of accidental, unlawful or unauthorised destruction, loss, alteration, disclosure, dissemination or access;
  (v) unless the transfer is based on an "adequacy decision", is otherwise "subject to appropriate safeguards" or if a "derogation for specific situations" applies, each within the meanings given to them in Articles 45, 46 and 49 of the GDPR respectively, not transfer, access or process such Personal Data outside the UK or the European Economic Area without the prior written consent of the Client (not to be unreasonably withheld or delayed);
  (vi) inform the Client without undue delay upon becoming aware of any such Personal Data is (while within Surgery Hero or its subcontractors' possession or control) subject to a personal data breach (as defined in Article 4 of GDPR);
  (vii) only appoint a third party (including any subcontractors) to process such personal data where they have satisfied internal due diligence requirements and notwithstanding any such appointment Surgery Hero shall be liable for the acts and omissions of any such third party as if they were the acts and omissions of Surgery Hero;
  (viii) not disclose any Personal Data to any Data Subject or to a third party other than at the written request of the Client or as expressly provided for in this Agreement;
  (ix) take reasonable steps anonymise all Personal Data on termination or expiry of this Agreement, and not make any further use of such Personal Data (except to the extent applicable Law requires continued storage of the Personal Data by Surgery Hero and Surgery Hero has notified the Client accordingly, in which case the provisions of this clause 8 shall continue to apply to such Personal Data);
  (x) provide to the Client and any DP Regulator all information and assistance necessary or desirable to demonstrate or ensure compliance with the obligations in this clause 8 and/or the Data Protection Laws;
  (xi) permit the Client or its representatives to access any relevant premises, personnel or records of Surgery Hero on reasonable notice to audit and otherwise verify compliance with this clause 8, subject to the following requirements;
  (A) the Client may perform such audits no more than once per year or more frequently if required by Data Protection Laws;
  (B) the Client may use a third party to perform the audit on its behalf, provided such third party executes a confidentiality agreement acceptable to Surgery Hero before the audit;
  (C) audits must be conducted during regular business hours, subject to Surgery Hero's policies, and may not unreasonably interfere with Surgery Hero’s business activities;
  (D) the Client must provide Surgery Hero with any audit reports generated in connection with any audit at no charge unless prohibited by applicable law. The Customer may use the audit reports only for the purposes of meeting its audit requirements under Data Protection Laws and/or confirming compliance with the requirements of this clause 12. The audit reports shall be confidential; (E) to request an audit, the Client must first submit a detailed audit plan to Surgery Hero at least 6 (six) weeks in advance of the proposed audit date. The audit must describe the proposed scope, duration and start date of the audit. Surgery Hero will review the audit plan and inform the Client of any concerns or questions (for example, any request for information that could compromise Surgery Hero’s confidentiality obligations or its security, privacy, employment or other relevant policies). The Supplier will work cooperatively with the Customer to agree a final audit plan; 

(F) nothing in this clause 8 shall require Surgery Hero to breach any duties of confidentiality owed to any of its clients, employees or Third Party Providers; and
(G) all audits are at the Customers sole cost and expense.
(xii) take such steps as are reasonably required to assist the Client in ensuring compliance with its obligations under Articles 30 to 36 (inclusive) of GDPR;
(xiii) notify the Client as soon as reasonably practicable if it receives a request from a Data Subject to exercise its rights under the Data Protection Laws in relation to that person's Personal Data; and
(xiv) provide the Client with reasonable co-operation and assistance (at the Client's cost) in relation to any request made by a Data Subject to exercise its rights under the Data Protection Laws in relation to that person's Personal Data. 

8.6 If either party receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data by the other party or to either party's compliance with the Data Protection Laws, it shall as soon as reasonably practicable notify the other party and it shall provide the other party with reasonable co-operation and assistance in relation to any such complaint, notice or communication. 

8. 7 The Customer agrees that the Patient Data and any other data received by Surgery Hero in respect of any Project will be stored in a cloud storage facility. The cloud service used by Surgery Hero is Amazon Web Services (AWS). AWS services and data centres have multiple layers of operational and physical security to ensure the integrity and safety of your data.

8.8 Your data is encrypted when in transit from your handset to the cloud. AWS audit logs keep track of who is accessing your data at all times.

 

9. PROPRIETARY RIGHTS

9.1 The Customer acknowledges and agrees that Surgery Hero and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

9.2 In the event of an Intellectual Property Infringement, Surgery Hero shall be entitled at its own expense and option either to: (a) procure the right for the Client to continue accessing the Software Solution or the infringing part thereof; or (b) make such alterations, modifications or adjustments to the Software Solution or that infringing part so that it becomes non- infringing without incurring a material diminution in performance, capacity, resilience or functionality; or (c) replace the Software Solution or that infringing part with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance, capacity, resilience or functionality thereof (and the provisions of this indemnity shall apply equally to any such substitutes).

10. CONFIDENTIALITY 

10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:(a) is or becomes publicly known other than through any act or omission of the receiving party;(b) was in the other party's lawful possession before the disclosure;(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

10.2 Subject to Clause 10.4 each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.

10.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 10.4 it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Surgery Hero's Confidential Information.

10.6 The Client agrees that Surgery Hero may from time to time reference their name and logo in sales and marketing material. Surgery Hero shall upon receiving written notice from the Client, upon reasonable notice cease to reference its name and/or logo.

10.7 The above provisions of this Clause 10 shall survive termination of this agreement, however arising.

11. INDEMNITY

11.1 The Customer shall defend, indemnify and hold harmless Surgery Hero against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:

1. the Customer is given prompt notice of any such claim;
2. Surgery Hero provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
3. the Customer is given sole authority to defend or settle the claim.

11.2 Surgery Hero shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:(a) Surgery Hero is given prompt notice of any such claim;(b) the Customer provides reasonable co-operation to Surgery Hero in the defence and settlement of such claim, at Surgery Hero's expense; and (c) Surgery Hero is given sole authority to defend or settle the claim.

11.3 In the defence or settlement of any claim, Surgery Hero may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

11.4 In no event shall Surgery Hero, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on:

1. a modification of the Services or Documentation by anyone other than Surgery Hero; or
2. the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Surgery Hero; or
3. the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Surgery Hero or any appropriate authority.

11.5 The foregoing and Clause 12.3(b) state the Customer's sole and exclusive rights and remedies, and Surgery Hero's (including Surgery Hero's employees', agents' and subcontractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12. LIMITATION OF LIABILITY 

12.1 Except as expressly and specifically provided in this agreement:

1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Surgery Hero shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Surgery Hero by the Customer in connection with the Services, or any actions taken by Surgery Hero at the Customer's direction;
2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
3. the Services and the Documentation are provided to the Customer on an "as is" basis.

12.2 Nothing in this agreement excludes the liability of Surgery Hero:

• for death or personal injury caused by Surgery Hero's negligence; or 
• for fraud or fraudulent misrepresentation.

12.3 Subject to Clause 12.1 and Clause 12.2:

1. Surgery Hero shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
2. Surgery Hero's total aggregate liability in contract (including in respect of the indemnity at Clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

12. TERM AND TERMINATION

12.1 This Agreement is effective as of the Effective Date detailed in the SLA and expires on the date of expiration or termination of all Subscription Terms as detailed in the SLA and clause 7.1. 

12.2 Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

12.3 Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Surgery Hero Technology and Services) and delete (or, at Surgery Hero’s request, return) any and all copies of the Documentation, any Surgery Hero passwords or access codes and any other Surgery Hero Confidential Information in its possession. Provided this Agreement was not terminated for Customer's breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service, and that Surgery Hero may delete any such data as may have been stored by Surgery Hero at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

12.4  Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

13. FORCE MAJEURE 

Surgery Hero shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Surgery Hero or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic or default of suppliers or subcontractors, provided that the Customer is notified of such an event and its expected duration.

14. SEVERANCE

14.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

14.2 If any provision or part-provision of this agreement is deemed deleted under Clause 14.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

15. GOVERNING LAW AND JURISDICTION

15.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

15.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

This has been entered into on the date stated on the SLA.