Terms and Conditions:
ProcedureCard, Inc. (“ProcedureCard,” “we,” “us” or “our”) and the person or entity agreeing to these terms (“Customer” or “you”) would like to set out the general terms and conditions for (i) you to access and use the ProcedureCard Services and provide Customer Data to ProcedureCard and (ii) ProcedureCard to provide the Services to you and use the Customer Data when performing the Services.
a. BY CLICKING ACCEPT, YOU ARE AGREEING TO THE TERMS IN THIS AGREEMENT. Customer and ProcedureCard agree that this Agreement along with Customer’s order for the Services (“Order”) is effective on the date Customer orders the Services by clicking the “Accept” button as part of the ordering process, and accepts these terms. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to commit the entity to the Agreement and the term “Customer” or “you” will refer to that entity. If you do not have this authority, are under the age of 18 or if you do not agree with the Agreement, you must not select the “Accept” button or accept these terms and you may not access or use the Services.
b. Service agreement
You, as a subscriber, are authorized to use ProcedureCard only as contained in the service agreement. The service agreement granted is limited to a non-transferable service agreement to use the software solely for the management of surgical preference cards. When you register on the platform and create an Organization, your subscription is limited to users that are a part of that organization.
Subject to the terms of this Agreement, ProcedureCard will provide Customer with reasonable technical support services in accordance with ProcedureCard’s standard support offering. Our servers may be unavailable as the result of planned or unplanned downtime, for reasons including technical issues, legal compliance, security actions, business decisions, or any other cause. We may attempt to inform you if such downtime is planned, but we are under no obligation to do so. You agree that we are not liable for the unavailability of our Service. We expect to have an availability performance of 98%. With 24 hour notice we will inform customers of any planned downtime scheduled in non-peak hours.
You may not use, copy, modify, adapt, translate, reverse engineer, decompile or disassemble (except to the extent expressly permitted by applicable law despite this limitation), in whole or in part, or use the Platform in any other manner except as expressly provided for in this Agreement. You agree that uses not authorized by this Agreement are expressly prohibited. These prohibitions include, without limitation, any use of the Platform in any public computer-based information system, including the Internet or World Wide Web, and creating derivative works including translations. You may not sell, subservice agreement, assign or transfer this Agreement or the software to any party. Any attempt to sell, subservice agreement, assign, or transfer any of the rights, duties, or obligations hereunder is void and shall immediately terminate this Agreement and the service agreement granted under it.
2. Warranties Disclaimed
a. To the fullest extent permitted by law, you expressly acknowledge and agree that the use of Platform is at your sole risk, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with you, and the Platform is provided “as is” without warranty of any kind, either expressed or implied, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose and without any representation or warranty whatsoever including that the Platform is non-infringing, accessible or uninterrupted. to the fullest extent permitted by law, disclaims responsibility and any liability for (i) any errors in the software and any consequences, decisions, judgments or results attributable to or related to any uses, non-uses or interpretations of information or data contained in or not contained in the service agreement; (ii) any damage to your equipment or any other information or software or application you have; (iii) any interruption of any other service or application; and (iv) any other damage no matter the cause.
ProcedureCard does not warrant that the data contained in the Platform will meet your requirements or that the operation of the Platform will be uninterrupted or without error. You acknowledge that the Platform has not been developed according to your specifications and has not otherwise been custom-made.
ProcedureCard does not directly or indirectly practice medicine or dispense medical services. The information in this Platform is intended for quick identification of appropriate surgical preferences. This Platform is not intended to replace the judgment of the individual in the selection of appropriate preferences for the surgeon or patient.
b. Limitation of Liability
ProcedureCard shall not be liable, and disclaims any liability, for any claim, loss or damage, direct or indirect, including, without limitation, compensatory, consequential, incidental, indirect, special, exemplary or punitive damages of any kind whatsoever in connection with, as a result of, or arising: (i) out of the use of or inability to use the Platform; (ii) from any interruption in availability; (iii) from any loss of data and/or from any equipment failure; (iv) from unauthorized access to or alteration of your transmissions or data; (v) out of the use of, reference to, or reliance on, software; (vi) out of any content, materials, accuracy of information, and/or quality of the software; or (vii) out of any other matter relating to the service agreement or software.
ProcedureCard is solely responsible for any product warranties whether express or implied by law to the extent not effectively disclaimed. In the event of any failure of the Platform to conform to any applicable warranty, you may notify, and will refund the subscription price (if any) to you: and that, to the maximum extent permitted by applicable law, failure to conform to any warranty will be ProcedureCard’s responsibility. Upon purchase of a subscription, the user has seven days from the date of transaction to request full refund, after that date no partial subscription refund will be issued.
In the event that you are dissatisfied with, or dispute, this service agreement of the Platform, your sole right and exclusive remedy is to terminate your use of the Platform, even if that right or remedy is deemed to fail of its essential purpose. You confirm that ProcedureCard has no other obligation, liability or responsibility to you or any other party.
To the maximum extent permitted by applicable law, your exclusive remedy and entire liability for any claim related to the subject matter of this agreement, whether in contract, warranty, tort, or any other legal theory, shall be limited to the total amount you paid for the subscription provided hereunder upon which the liability is based.
c. Exclusions Permitted by Law
Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only the above limitations which are lawful in your jurisdiction will apply.
3. Product Claims
You and ProcedureCard acknowledge that ProcedureCard is responsible for addressing any claims by You or any third party relating to the Platform or for your possession and/or use of the Platform, including, but not limited to: (i) product liability claims; (ii) any claim that the software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
4. Intellectual Property Rights
You acknowledge that the software, as well as any other information or materials made available to you by ProcedureCard are valuable assets, trade secrets, trademark and/or copyrighted materials of ProcedureCard. ProcedureCard retains all right, title, and interest in the software platform provided to you.
You and ProcedureCard acknowledge that, in the event of any third party claim that the Platform or Your possession and use of the Platform infringes that third party’s intellectual property rights, ProcedureCard will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
5. Legal Compliance
You represent and warrant that (i) You are located within the United States or its territories; (ii) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (iii) You are not listed on any U.S. Government list of prohibited or restricted parties.
ProcedureCard is offered in tiers (the “Paid Plan(s)”). The paid plans offer monthly payment options. When you subscribe to any paid plan, your payment will auto-renew at the termination of each payment period. Plan prices can change without notification, however, you will always be locked into the price you first paid, unless notified to the contrary. Except as outlined below, there will be no refunds offered for any payment and all sales are final. You agree to pay all amounts charged by ProcedureCard ( including any applicable state and local taxes) in accordance with these terms.
In the event of changes to your paid plan such as upgrading or downgrading to a different tier, you will be prorated for the change. For example, without limitation, if you subscribed to a $10 monthly plan, and then, 15 days into the 30-day plan, switched to a $20 monthly plan, you would have a $5 balance remaining which would be applied to your new plan. However, it would also mean that you were getting 15 days (50%) of your new $20 plan in advance, a $10 value. Therefore, your next bill would be $20 (the new plan price) + $10 (for the extra 15 days) - $5 (your remaining balance from your original $10 plan) = $25.
A full refund will automatically be issued for subscriptions canceled within 7 days of the first payment. We don’t offer refunds after 7 days following the first payment. We don’t offer refunds for monthly renewal payments; please cancel your subscription before your renewal date to avoid charges.
c. Payment Information
You acknowledge and agree that any credit card and billing payment information that you provide to us may be shared with companies that work on our behalf, such as payment processors and credit agencies, solely for the purpose of checking credit, effecting payment to ProcedureCard and servicing your account. We may also provide information in response to a subpoena, court order or other legal processes. We will not be liable for any use or disclosure of such payment information by such third parties.
ProcedureCard may terminate your use of the Service or the Site at any time and for any or no reason without notice to you. All provisions of these Terms which by their nature contemplate performance after the termination of your use of the Service or the Site shall survive such termination. You may terminate your account (and thus your access to the Service and the Site) at any time by contacting customer service by phone and after a phone conversation confirm that you wish to delete your account. If you confirm that you wish to terminate your account: We will not use your credit card and other personal information from that point forward; Any and all data, settings, billing information, contact information, or anything else that you have provided to the Service will be permanently deleted; Your account and all content contained therein, or associated therewith, will not be recoverable.
8. General Provisions
You shall be responsible for all sales, use or other taxes, except taxes based on the income of ProcedureCard. Notwithstanding anything to the contrary, the copyright and service agreement with regard to ProcedureCard shall be governed by the internal laws of the State of Delaware without regard to choice of law principles. Nothing contained in this Agreement shall be deemed to constitute a joint venture, partnership or agency between parties. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms and conditions. You represent you have authority to enter into this Agreement on behalf of yourself or your organization, as applicable. You agree that this Agreement is the complete and only agreement between us which supersedes any proposal or prior agreement, oral or written, and any other communications between us relating to the subject matter of this Agreement. The delay or failure to assert a right hereunder shall not constitute a waiver of that right or excuse a subsequent failure to perform under this Agreement. You agree to take all steps necessary, by instruction, agreements or otherwise, to ensure compliance with the terms of the Agreement by your employees, users, and agents. If any provision hereof is held to be unenforceable or contrary to public policy the parties agree that the remaining portions are enforceable. You may not assign any rights herein without the prior approval of ProcedureCard. Any attempted assignment shall be null and void.
In general, the following procedure shall be followed in the event of a dispute arising from this agreement:
a. The CEO of ProcedureCard and the subscriber (principals) shall speak directly concerning the dispute.
b. If the dispute is not resolved, then within five (5) business days they shall exchange written summaries of their respective positions, containing such information and proposals as they may determine at their sole discretion, and thereafter meet or speak by phone to attempt to resolve the dispute. Such summaries shall be deemed in the nature of settlement discussions and shall not be admissible in any further proceedings.
c. If the principals are still unable to resolve the dispute, they may, but shall not be required to participate in non-binding mediation conducted by a single mediator chosen by the parties.
d. If the principals elect not to participate in mediation or unable to resolve the dispute in mediation, each party hereby consents to abide by the laws of the State of Delaware. Each party hereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by mail or electronic format set forth by any means authorized by Delaware law.
10. Cloud Security
Any breach in customer data by employees of ProcedureCard will be reported to the customer at the time that ProcedureCard’s management is made aware of the breach.
API’s and third party software: ProcedureCard’s development team will keep up to date with patches and software updates to ensure that it is running the latest version of software.
Data Incident Response Process:
Identification: detecting and reporting potential vulnerabilities and incidents to the incident response team.
Coordination: evaluation of the nature of the incident report, assess severity of the incident, engage response team,
Resolution: investigate the incident, limit ongoing damage, fix the underlying issue, restore affected systems to normal operations, communicate with team and customer.
Closure: review incident team response, implement long term improvement processes, continuous improvement with team training, processes, resources and tools. Improve incident response program based on lessons learned.
11. Should you have any questions, complaints or claims with respect to ProcedureCard or this Agreement, You may contact ProcedureCard.
This Agreement shall be effective when you subscribe to ProcedureCard.
2116 E. Orangeburg Ave.
Modesto, CA 95355