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Terms of Service

Last Updated: July 22, 2026

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The following Terms of Service Agreement (the "Agreement") is entered into by and between you and Merza Medical, LLC ("Merza Medical", "Company", "we", "us" or "our"). This Agreement governs your access to and use of our platform ("Platform"), our application ("App"), our application programming interfaces (each an "API"), our website at merzamedical.com (the "Site") or any other products and services made available by us (collectively, the "Services").

Please read this Agreement carefully. By accessing or otherwise using the Services or by clicking to accept or agree to the Agreement when this option is made available to you, you:

i. acknowledge that you have read and understood this Agreement,

ii. represent and warrant that you meet all of our eligibility requirements for using the Services as described in this Agreement, and

iii. accept and agree to be bound by this Agreement, including the separate Business Associate Agreement incorporated herein by reference.

If you are using the Services on behalf of an entity, you are agreeing to this Agreement for that entity and are representing to us that you have the authority to bind that entity to this Agreement (in which case "you" will refer to that entity). If you do not accept this Agreement or do not satisfy the eligibility requirements set forth below, you may not access or use the Services.

The parties acknowledge that acceptance of the Agreement by electronic means between the Parties has the same evidential value as a paper agreement.

Acceptance of this Agreement by itself does not authorize recurring charges. If you choose a paid, automatically renewing subscription, we will present the applicable price, billing frequency, renewal, trial-conversion, and cancellation terms at checkout and obtain your separate affirmative consent before charging a payment method or scheduling a charge.

PLEASE NOTE: Section 13 (Dispute Resolution; Binding Arbitration; Class Action Waiver) requires that most disputes between you and Merza Medical be resolved by binding, individual arbitration and waives your right to participate in a class action, subject to the carve-outs stated there. Please read it carefully.

1. Privacy Policy

Your use of, and participation in, the Services offered by the Company is subject to the terms set forth in our privacy policy, available upon request via email to admin@merzamedical.com, and provided during onboarding to our Services (the "Privacy Policy"). Our Privacy Policy details how we collect and use your information to manage this Agreement.

2. Changes to this Agreement

We may update this Agreement from time to time. We will change the "Last Updated" date and provide notice of material changes by email or in the Services before they take effect when required by applicable law or contract. Continued use after the stated effective date constitutes acceptance only to the extent permitted by applicable law. A change to pricing, automatic renewal, trial conversion, or another material subscription term is governed by Section 5 and will not be treated as authorized merely because the revised Agreement was posted.

3. Use of the Services

Your use of the Services is subject to your compliance with this Agreement. By accessing and using the Services, you warrant that:

i. You are legally capable of entering into binding contracts;

ii. All registration information you submit is truthful and accurate; "registration information" is understood to mean your registration information and not those of your patients;

iii. You will maintain the accuracy of such information; and

iv. Your use of the Services does not violate any applicable law or regulation.

3.1 Intended Use

The Services are designed and intended to be used by healthcare providers, telehealth companies and any companies that provide services relating to any of the foregoing. Despite the foregoing, the Services are a tool that enable these constituencies to better serve their patients and customers, and do not, in any circumstance, constitute the provision of medical advice by us.

3.2 AI-Assisted Clinical Documentation

The Services use artificial intelligence and machine learning technologies to assist with clinical documentation, including automated transcription of patient encounters and generation of structured clinical notes (SOAP format) with suggested ICD-10 diagnostic codes and LOINC codes. You acknowledge and agree that:

(a) AI-generated content is assistive, not authoritative. All transcriptions, clinical notes, diagnostic codes, procedure codes, and other content generated by the Services are AI-assisted drafts intended to support -- not replace -- the professional judgment of a licensed healthcare provider.

(b) Clinician review is mandatory. You are solely responsible for reviewing, verifying, and approving all AI-generated content before finalizing, using, or relying upon it for any clinical, billing, or documentation purpose. You must verify the accuracy of all suggested ICD-10 codes, LOINC codes, and clinical narratives against the actual patient encounter.

(c) Finalization constitutes professional attestation. When you finalize a clinical note generated through the Services -- including, where that option is provided, by electronically signing it -- you are attesting that you have reviewed the content, verified its accuracy, and accept professional responsibility for the note as part of the patient's medical record. Once you finalize a note, it is preserved as part of the medical record; any subsequent corrections are recorded as amendments rather than by altering the original entry, consistent with medical-records integrity requirements.

(d) The Services are not a clinical decision support system. The Services are a clinical documentation tool. They do not provide diagnostic recommendations, treatment suggestions, or clinical decision support. The Services do not replace, augment, or substitute for the clinical judgment of a licensed healthcare provider. You should not rely on AI-generated content for clinical decision-making without independent professional verification.

(e) No guarantee of accuracy. While we strive to provide high-quality AI-assisted documentation, we do not guarantee the accuracy, completeness, or clinical appropriateness of any AI-generated content. Errors in transcription, note generation, or code suggestion may occur. You bear sole responsibility for ensuring the accuracy of any content you finalize and submit.

3.3 Third-Party Service Providers

The Services utilize a small number of third-party service providers (each a "Subprocessor") to process data on your behalf. Processing takes place in the United States, and each Subprocessor is bound by a Business Associate Agreement. Our current Subprocessors are:

  • Amazon Web Services, Inc. -- Cloud infrastructure
  • AssemblyAI, Inc. -- Medical transcription
  • Anthropic, PBC -- AI clinical note generation

No customer data (including audio recordings, transcripts, or clinical notes) is used to train artificial-intelligence models, and we do not sell Protected Health Information or personal data.

All Subprocessors that process Protected Health Information are bound by Business Associate Agreements before any PHI is transmitted to them. We may add or replace Subprocessors from time to time on prior written notice (which may be given by updating the Subprocessor list), and we remain responsible for their compliance with obligations no less protective than those in the Business Associate Agreement. As your sole remedy for a reasonable, timely objection to a new Subprocessor that will process PHI, you may terminate the affected Services. The notice, objection, and termination mechanics for Subprocessors that process PHI are governed by the Business Associate Agreement and any applicable data processing addendum, which control. A current list of Subprocessors is available on request and in the Privacy Policy. For details on third-party data processing, see the Privacy Policy and Business Associate Agreement.

3.4 Patient Consent and State AI Disclosure — Provider Responsibility

Patient consent to recording. You are solely responsible for obtaining, and where required documenting, all patient consent legally required to audio-record a clinical encounter, and for doing so before you begin a recording. Many U.S. states require the consent of all parties to record a conversation (currently including California, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington), and several treat recording without the required consent as a criminal offense; the rules that apply to you depend on the jurisdiction(s) in which you and your patient are located and may change over time. The Services do not obtain, prompt for, verify, time-stamp, or store patient recording consent on your behalf, and Merza Medical does not deliver any consent request or disclosure to your patients for you. By initiating a recording, you represent and warrant that you have obtained all patient consent required by applicable law for that encounter. This obligation remains yours as the licensed clinician and Covered Entity.

State AI disclosure. You are also responsible for complying with any state-specific patient-disclosure or consent requirements relating to AI-assisted clinical documentation in the jurisdictions where you practice, including without limitation: California Health and Safety Code § 1339.85 (AB 3030), California Business and Professions Code (AB 489), Texas TRAIGA (HB 149) and SB 1188, the New York AI-assisted documentation disclosure rule, and the Washington My Health My Data Act (RCW 19.373). The Services are designed to support your compliance by (a) requiring your review and finalization of every note before it becomes part of the patient record, and (b) clearly labeling all AI-generated content as draft. The Services do not, and Merza Medical does not, deliver state-mandated disclosures to your patients on your behalf; that obligation remains yours as the licensed clinician and Covered Entity.

3.5 Eligibility

You can only use or receive the Services to the extent the laws of your jurisdiction or the United States do not bar you from doing so. Please make sure this Agreement is in compliance with all laws, rules and regulations that apply to you. You are solely responsible for ensuring that your use of the Services complies with the laws of your specific jurisdiction.

3.6 License

We hereby grant you a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by your end users in accordance with this Agreement. In this Agreement, "end users" refers to your staff (e.g. employees, contractors) authorized to use the Services under the conditions defined in the Agreement.

To the extent that your use of the Services involves the use and/or integration of our Platform or any of our APIs or Services, we hereby grant you, during the Term, a non-exclusive, non-transferable license (without the right to sublicense) to use the Platform and/or any API or API components and/or Services to:

i. develop and implement applications to assist you to access and use the Services (the "User Applications"); and

ii. use the Platform, any API and/or any code related to either for the sole purposes of designing, developing, and testing such User Applications.

3.7 Restriction on Use

You may only use the Services as explicitly authorized and in compliance with any policies as set forth herein or otherwise made available to you within the Services. No portion of the Services may be reproduced in any form or by any means. Without limiting the foregoing, you may not do any of the following while accessing or using the Services:

  • Use the Services for any revenue generating endeavor, commercial enterprise, or other purpose other than for the permitted uses under this Agreement without our express written consent;
  • Express or imply that any statements you make are endorsed by Merza Medical;
  • Resell any Services for commercial purposes, except as expressly permitted herein;
  • Modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the contents of the Services not intended to be so read;
  • Interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
  • Bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services, including without limitation other accounts, computer systems or networks connected to the Services;
  • Run any form of auto-responder or "spam" on the Services;
  • Access or use the Services for any illegal or unauthorized purpose, including to harass, abuse, defame or otherwise infringe or violate the rights of any other party; or
  • Otherwise take any action in violation of this Agreement.

3.8 Modifications of the Services

We may from time to time in our sole discretion develop and provide updates to the Services, modify the Services, change the Services, restrict access to the Services (including to registered users) or withdraw or terminate the Services entirely, and we reserve the right to do so in our sole discretion without notice to you. Any such updates, modifications or changes will be deemed part of the Services and subject to all terms and conditions of this Agreement.

Following such update, modification or change, you may terminate this Agreement without cause upon thirty (30) days written notice. We will not be liable to you or any third party for any modification, suspension, discontinuance or termination of the Services. In the event of modification, suspension, discontinuance or termination, you will still be bound by your obligations under this Agreement, including the warranties made by you, and by the disclaimers and limitations of liability.

3.9 Availability of the Services

Your access to the Services may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Services. We will restore the Services as soon as we reasonably can. We will not be liable to you if the Services are unavailable from time to time.

3.10 Compliance with Laws

The Services are intended to assist you in the conduct of your business. We do not make any representations or warranties that your use of the Services will satisfy or ensure your compliance with any legal obligations or applicable laws, rules, or regulations. You are solely responsible for ensuring compliance with all applicable laws and regulations. You acknowledge and agree to use the Services only for purposes that are legal, proper and in accordance with this Agreement and any applicable laws, rules or regulations.

Without limiting the foregoing, you will:

  • have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information that you submit while using the Services;
  • use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services and notify us immediately of any unauthorized use or security breach;
  • comply with all applicable local, state, federal, and foreign laws (including laws regarding privacy and protection of personal or consumer information) in using the Services; and
  • obtain and maintain all computer hardware, software and communications equipment needed to access the Services and pay all access charges incurred by you in connection with your use of the Services.

3.11 Term and Termination

The term of the Agreement begins when you electronically accept it or first access the Services after being presented with it (the "Effective Date").

If you choose a paid subscription, its initial term is the monthly, annual, or other billing period displayed and affirmatively accepted at checkout or stated in a signed order form (the "Initial Term"). An automatically renewing subscription renews for successive periods of the same length (each a "Renewed Term") in accordance with Section 5.3 unless and until cancelled. You may cancel through the online billing portal available from the web application or by emailing admin@merzamedical.com; cancellation is effective as described in Section 5.3.

We can terminate your access to or use of the Services as a result of your having violated this Agreement or otherwise engaged in conduct that harms or is intended to harm us or the Services. We may also suspend or terminate your use of the Services as a result of your fraud or breach of any obligation under this Agreement. Such termination or suspension may be immediate and without notice. A breach of this Agreement includes, without limitation, the unauthorized copying or download of content from the Services.

We can also terminate this Agreement without cause and in our sole and complete discretion upon one (1) month's prior written notice to you.

3.12 Effect of Termination

If your access to the Services is terminated or suspended for any reason:

i. all rights granted under this Agreement will end,

ii. you agree to immediately terminate and cease use of all Services, and

iii. we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data. All sections of this Agreement that by their nature are intended to survive such suspension or termination shall so survive.

In addition, upon termination of the Services, we will, at your option, either return all your information, account data and Patient Information to you or delete all said information and data, subject to applicable data retention requirements under law and to the terms of the Business Associate Agreement with respect to Protected Health Information.

3.13 No Provision of Medical Advice or Services

We provide a technology solution for healthcare professionals. You acknowledge and understand that we do not provide any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with you or your end users, or goods or services offered or purchased by you, including, but not limited to, any compliance obligations or steps necessary to comply with any state or federal laws and regulations. You should seek legal counsel regarding any legal and compliance issues, and should not rely on any materials or content associated with the Services in determining your compliance obligations under any law. You are solely responsible for preserving and making adequate backups of your data.

4. User Accounts

4.1 Account Registration

To access and use the Services, you will be required to register with the Site and create a user account ("Account"). Any individual employed by a business that is a healthcare provider, telehealth company and any company that provides services to any of the foregoing who will be using the Services, is required to create their own Account.

In order for us to provide you the best possible service, you agree that, as part of the registration process, you will provide us with complete and accurate information and also agree to keep your Account information up to date at all times. You agree that all information that you submit upon creation of your Account is accurate and truthful and you have the right to post the content on the Service and grant a license to Merza Medical for purposes of its provision of the Services. If any information on your Account or on the Services is incorrect or outdated, it can lead to errors or delays, for which we will not be responsible.

4.2 Account Verification

If you are a healthcare provider or an employee or agent of a healthcare provider, telehealth company or any person or entity who provides services to any of the foregoing, in order to comply with applicable laws, rules and regulations, you may be required to, as necessary, verify your identity and credentials after registering your Account. After you have completed the registration process, we will send you an email providing the steps required to complete the verification process. If you are required to but do not complete the verification process, you may not be permitted to use the Services. We reserve the right to modify the verification process, including but not limited to automating the verification process, at any time in our sole discretion.

4.3 Responsibility for Account

If you create an Account, you are solely responsible for any activity that occurs through your Account.

You, your employees or agents should not share your Account information. You agree to not use another person's Account or registration information to access or use the Services. You agree not to permit any third party to use your Account or registration information to access or use the Services. You are solely responsible for keeping your Account and Account password secure and for any consequence resulting from your failure to do so. You should never publish, distribute, or post login information for your Account.

4.4 Suspension or Termination of Account

We reserve the right to disable any Account, username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement. You can always delete your Account by emailing us at admin@merzamedical.com.

5. Fees, Subscriptions, and Auto-Renewal

5.1 Fees and Plans

The Services may include both paid Services, for which you will be charged fees ("Fees"), and free Services for which no Fees are charged. The applicable Fees, currency, billing frequency, quantity or seat count, and plan features are displayed at the point of purchase. Unless a signed order form provides otherwise, our standard monthly list price is currently $350 per user or seat, plus applicable taxes. We may also offer an annual plan billed once per year and clinic (multi-seat) plans. The price and terms shown in the checkout you affirmatively accept, or in your signed order form, control for that purchase.

5.2 Free Trial

We may offer a free trial of the paid Services (the "Free Trial"). Unless different limits are clearly disclosed when you activate it, the Free Trial ends at the earlier of fourteen (14) days after activation or 150 completed encounters. A payment method is not required to begin the standard Free Trial, and the end of a Free Trial does not by itself authorize us to charge you. If you do not separately choose a paid plan, provide a payment method, and affirmatively consent to the recurring subscription terms presented at checkout, the Free Trial will expire or pause without charge. If you do take those steps during the Free Trial, the checkout will clearly state when paid service begins, the amount and frequency of charges, whether and when the subscription renews, and how to cancel. You may stop a scheduled paid conversion before the disclosed deadline through the online billing portal, and you will not be charged. Free Trials are limited to one per customer and may not be combined with other offers.

5.3 Automatic Renewal; Cancellation

A paid subscription identified at checkout as automatically renewing is continuous and renews automatically until you cancel. Before you subscribe, we will clearly display near the request for your consent: the plan and quantity, recurring price and currency, billing frequency, length of the renewal term, any trial or promotional period and the first charge date, any minimum commitment, the cancellation policy, and a link to these Terms. We will require a separate affirmative action accepting those recurring terms and will provide a confirmation capable of being retained. Unless you cancel, we will charge the payment method on file at the beginning of each monthly, annual, or other renewal period that you accepted, plus applicable taxes.

You may cancel at any time through the online billing portal available from Settings > Subscription in the web application, without speaking to a representative, or by emailing admin@merzamedical.com. Cancellation ordinarily stops future renewals and takes effect at the end of the then-current paid period; the portal will display the effective date before you confirm. You retain access through that date unless the Services are suspended or terminated under another provision of this Agreement. Except where required by law or expressly stated otherwise, Fees already charged are non-refundable and cancellation does not entitle you to a refund for the unused portion of the current period. We will provide renewal or other subscription notices when required by applicable law.

5.4 Invoicing and Payment; Payment Processor

Fees are billed in advance at the start of each paid billing period. A post-trial charge occurs only on the date and under the terms you separately accepted when choosing the paid plan. We use a third-party payment processor (currently Stripe, Inc.) to collect and process Fees, and your use of payment features is also subject to the payment processor's applicable terms and privacy notice. When you affirmatively accept a paid recurring offer, you authorize us and our payment processor to charge your designated payment method for the disclosed Fees, taxes, and renewals until cancellation, subject to applicable law.

If you choose ACH Direct Debit, the payment processor will separately present an electronic debit mandate stating the account, amount or method of determining the amount, timing or frequency, and revocation terms. You must accept that mandate before an ACH debit is initiated, and you will receive a copy capable of being retained. The processor-hosted mandate, rather than this Agreement alone, is the operative authorization for the debit. You are responsible for keeping payment information current. Our payment processor may receive and apply updated card information from your card issuer; if your issuer offers an opt-out, you may contact the issuer about it.

The first invoice will cover the paid period disclosed at checkout or in the applicable order form.

5.5 Changes to Fees

We may change the Fees, introduce new charges, or change or remove a pricing model upon at least thirty (30) days' prior notice by email or in the Services, unless a different notice period is required by applicable law or agreed in an order form. A change will take effect no earlier than the first billing period beginning on or after the date stated in the notice. The notice will explain the new Fee and how to cancel. We will obtain additional affirmative consent before applying a change when required by applicable law. If you do not accept a Fee increase, you may cancel before it takes effect, without limiting any non-waivable right or remedy.

5.6 Refunds

Except as expressly stated in these Terms or required by applicable law, all Fees are non-refundable and are charged in full for the billing period in which they are incurred. Nothing in this Section limits any non-waivable statutory right you may have — including under applicable automatic-renewal laws — to cancel and obtain a refund in the circumstances those laws provide.

5.7 Late Payments

You acknowledge that your failure to pay any Fees when due may result in suspension or termination of your use of the Services. If you fail to pay any of the fees or charges due hereunder, the Company reserves the right to, among other things, engage an attorney or a collections agency to collect the delinquent fees and charges. You agree to pay all fees and costs incurred by the Company in connection with the collection of such delinquent amounts, including without limitation, any and all court related costs, attorneys' and/or collections agencies' fees plus interest in an amount equal to the lesser of 1.0% per month or the maximum rate permitted by applicable law.

5.8 Taxes

You are responsible for all sales tax, use tax, value added taxes, withholding taxes and any other similar taxes and charge of any kind imposed by a governmental entity on the transactions contemplated by this Agreement. When we have the legal obligation to pay or collect taxes for which you are responsible pursuant to this Section 5.8, the appropriate amount will be invoiced to and paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. Customer Support

Although we aim to offer you the best service possible, we make no promise that the Services will meet your requirements and we cannot guarantee that the Services will be fault free. We will use commercially reasonable efforts to provide technical support services to you in the event a fault or other issue with the Services occurs. If a fault or other issue occurs in our Services, please report it to us at admin@merzamedical.com and we will review your complaint and, where we determine it appropriate to do so, correct the fault.

7. Confidential Information

"Confidential Information" means all information provided or made available by or on behalf of the disclosing party (whether disclosed orally or disclosed or accessed in written, electronic, or other form of media, and whether or not marked, designated, or otherwise identified as "confidential").

Neither party shall disclose to any third party any Confidential Information without the other party's prior written consent, except as otherwise expressly permitted under this Agreement.

The foregoing restrictions do not apply to:

i. any information that is in the public domain or already in the receiving party's possession,

ii. was known to the receiving party prior to the date of disclosure,

iii. becomes known to the receiving party thereafter from a third party having an apparent bona fide right to disclose the information, or

iv. Confidential Information that the receiving party is obligated to produce pursuant to a court order or a valid administrative subpoena, providing receiving party provides disclosing party of timely notice of such court order or subpoena (unless receiving party is legally precluded from providing such notice).

This Section 7 will survive termination or expiration of your use of the Services.

8. Data Protection and HIPAA

The parties agree to comply with all applicable privacy, data protection, anti spam and other laws, rules, regulations and guidelines relating to protection, collection, use and distribution of Personal Information (as defined below).

If required by applicable data protection legislation or other law or regulation, you will inform third parties that you are providing their Personal Information to us for processing and will ensure that any required third parties have given their consent to such disclosure and processing.

"Personal Information" means any information that identifies, relates to, describes, or can be reasonably associated with or traced to, directly or indirectly, a particular individual or household, including an individual's name, address, telephone number, email address, credit card information, social security number or other similar specific factual information, regardless of the media on which such information is stored (e.g., on paper or electronically).

8.1 Patient Information and HIPAA

As part of using the Services, you agree that you will comply with all laws, rules, and regulations applicable to you and/or your business, including the Health Insurance Portability and Accountability Act ("HIPAA"). You represent and warrant that you have all rights necessary to any information covered by HIPAA that you use or provide to us as part of your use of the Services. This Agreement is not a Notice of Privacy Practices; as the Covered Entity, you issue your own Notice of Privacy Practices governing your patients' rights, and, with respect to Protected Health Information, those rights are administered by you and governed by the BAA.

If either you or your organization are subject to HIPAA as a Covered Entity or Business Associate (as defined in HIPAA) and intend to use the Services in a manner that will cause us to create, receive, maintain, or transmit Protected Health Information on your behalf, then, at the outset of creating an account to use the Services for yourself or your organization, you will be required to execute a separate Business Associate Agreement ("BAA"). The BAA is a standalone agreement incorporated herein by reference and governs all matters related to the use, disclosure, and protection of Protected Health Information. In the event of any inconsistency between this Agreement and the BAA, the terms of the BAA shall prevail with respect to Protected Health Information. Absent agreeing to such Business Associate Agreement you will not be able to use the Services.

8.2 Data Ownership

You retain full ownership of all data, including all Protected Health Information, that you provide to or generate through the Services. Our processing of your data does not confer any ownership rights on us with respect to such data, including any and all forms thereof. Upon termination of the Services, you may request return or deletion of your data in accordance with the BAA.

8.3 De-Identification and Aggregated Data

We may de-identify Protected Health Information created or received by us under this Agreement in accordance with 45 CFR 164.514(a) and (b) and as permitted by the Business Associate Agreement. Once PHI has been de-identified in accordance with HIPAA, it is no longer Protected Health Information and is not subject to the restrictions of this Agreement or the BAA. We may create, use, and retain such de-identified data, and aggregated statistics and other data derived from the operation of the Services that do not identify you, any patient, or any individual, for any lawful business purpose, including to operate, secure, analyze, support, and improve the Services. We do not sell your Protected Health Information, and no customer Protected Health Information or identifiable clinical content is used to train foundation AI models.

9. Intellectual Property

Except as otherwise expressly granted to you in this Agreement, we reserve and retain all right, title and interest in the Services, including without limitation, all technology and processes, enhancements or modifications thereto, trademarks, service marks, site design, text, video, graphics, logos, images and icons, as well as the arrangement thereof. You acknowledge that the Services contain proprietary content, information and material protected by applicable intellectual property and other laws, including but not limited to copyright and trademark laws, and you agree that, except with our prior written consent or as explicitly provided in this Agreement, using the Services does not:

  • give you any ownership of any intellectual property rights in our Services, or
  • grant you the right to display, modify, reproduce, distribute, create derivative works of, download, store, transmit or otherwise use any of our intellectual property.

Any unauthorized use of any content or materials on the Services is strictly prohibited and violates copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.

In particular, audio or video content from Merza Medical not explicitly indicated as downloadable may not be downloaded or copied from the Services. You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Services. If you make other use of the Services, or the content, code, data or materials thereon, except as otherwise provided, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use.

Other than to operate your business and the business of your affiliates who are authorized to use the Services, you may not access or use for any commercial purposes any part of the Site or any services or materials available through the Site. You acknowledge and agree that you do not acquire any ownership interest in the Services under this Agreement, or any other rights thereto other than to use the Services in accordance with the license granted. Appropriate legal action may be taken for any illegal or unauthorized use of the Services.

To inquire about obtaining authorization to use the materials or content other than as permitted in this Agreement, please contact us at admin@merzamedical.com.

10. Warranty Disclaimers; Limitation of Liability

THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ANY CONTENT ON THE SERVICES, WHETHER PROVIDED OR OWNED BY THE COMPANY OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT ANY OF THE SERVICES OR ANY CONTENT AVAILABLE THROUGH ANY OF THE SERVICES IS ACCURATE, COMPLETE, AVAILABLE, CURRENT, FREE FROM ERRORS OR OTHER DEFECTS (TECHNICAL OR OTHERWISE) THAT WILL BE CORRECTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEFECTS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY REGARDING THE ACCURACY, COMPLETENESS, OR CLINICAL APPROPRIATENESS OF ANY AI-GENERATED CONTENT, INCLUDING TRANSCRIPTIONS, CLINICAL NOTES, ICD-10 CODES, LOINC CODES, OR OTHER OUTPUT PRODUCED BY THE SERVICES. YOU ASSUME ALL RESPONSIBILITY FOR REVIEWING AND VERIFYING AI-GENERATED CONTENT BEFORE USE.

IN NO EVENT WHATSOEVER SHALL EITHER PARTY, ITS AFFILIATES, OR SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, OR DOWNTIME, (ARISING UNDER TORT, CONTRACT, OR OTHER LAW) REGARDLESS OF SUCH PARTY'S NEGLIGENCE OR WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND AGREE THAT THE DOWNLOAD OF ANY MATERIALS IN CONNECTION WITH THE SERVICES IS DONE AT YOUR DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. COMPANY NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE SERVICES.

IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, A PARTY IS FOUND TO BE LIABLE TO THE OTHER FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THIS AGREEMENT OR YOUR USE OF ANY SERVICES, THAT PARTY'S TOTAL AGGREGATE LIABILITY SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING CAP, EACH PARTY'S AGGREGATE LIABILITY FOR (I) ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 AND (II) ITS BREACH OF SECTION 7 (CONFIDENTIAL INFORMATION) SHALL NOT EXCEED TWO (2) TIMES THE TOTAL FEES PAID BY YOU TO COMPANY FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING CAPS DO NOT LIMIT YOUR OBLIGATION TO PAY FEES DUE UNDER SECTION 5, AND DO NOT APPLY TO LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, OR TO ANY LIABILITY THAT MAY NOT BE LIMITED UNDER APPLICABLE LAW. THE USE, DISCLOSURE, AND PROTECTION OF PROTECTED HEALTH INFORMATION, AND ANY LIABILITY FOR A BREACH THEREOF, ARE GOVERNED BY THE BUSINESS ASSOCIATE AGREEMENT, WHICH CONTROLS.

THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.

11. Indemnification

You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns (collectively, the "Company Indemnitees") from and against any third-party claims, and any resulting liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees), to the extent arising out of or relating to (i) your breach of this Agreement, (ii) your violation of any applicable law or regulation, (iii) your negligent or wrongful acts or omissions, or (iv) your use of any information obtained through the Services, except in each case to the extent such claim arises from the Company's own negligence, willful misconduct, or breach of this Agreement or the BAA.

Company agrees to defend you and your affiliates against any third-party claim asserted, threatened, or brought against you or your affiliates, and pay damages and reasonable costs finally assessed against you or your affiliates by a court of competent jurisdiction (or, at Company's option, that are included in a settlement of such claim or action in accordance herewith), to the extent such claim arises from infringement by the Services of a third party's copyrights, trademarks, trade secrets, or patents.

Each party's indemnification obligations under this Section 11 are conditioned on the indemnified party (a) promptly notifying the indemnifying party in writing of the claim, (b) providing reasonable cooperation at the indemnifying party's expense, and (c) granting the indemnifying party sole control of the defense and settlement of the claim; provided that the indemnifying party may not enter into any settlement that imposes liability or a non-monetary obligation on the indemnified party without the indemnified party's prior written consent, not to be unreasonably withheld.

12. Governing Law

No matter where you're located, the laws of the state of Oregon will govern this Agreement and the relationship between you and the Company as if you signed this Agreement in Oregon, without regard to Oregon state's conflicts of laws rules; provided that the Federal Arbitration Act governs the interpretation and enforcement of Section 13 (Dispute Resolution; Binding Arbitration; Class Action Waiver). If any provisions of this Agreement are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent. Subject to Section 13, the parties agree to submit to the federal or state courts in Oregon for exclusive jurisdiction of any dispute arising out of or related to your use of the Services or your breach of this Agreement.

13. Dispute Resolution; Binding Arbitration; Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY TRIAL.

13.1 Informal Resolution

Before initiating any arbitration or court proceeding, the party raising a dispute, controversy, or claim of any kind arising under or in connection with this Agreement (a "Dispute") will provide the other party written notice of the Dispute, and each party will appoint a representative to negotiate in good faith to resolve it. If the parties do not resolve the Dispute within sixty (60) days after such notice, either party may proceed as provided below. This informal process is a precondition to arbitration, but the applicable limitations period is tolled while it is pending.

13.2 Binding Individual Arbitration

Except for the matters carved out in Section 13.4, any Dispute that is not resolved under Section 13.1 shall be resolved exclusively by final and binding individual arbitration, and not in court. The arbitration will be administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules (or, if the parties agree in writing, by JAMS under its Comprehensive or Streamlined Arbitration Rules), as modified by this Agreement. The arbitration will be conducted before a single arbitrator, the seat and location of the arbitration will be Portland, Oregon (with hearings held there or, at the parties' election, by videoconference), and the arbitration will be conducted in English. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Section 13, except that a court shall decide whether the class action waiver in Section 13.3 is enforceable. The arbitrator's award may be entered in any court of competent jurisdiction. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of this Section 13.

13.3 Class Action Waiver

All Disputes must be brought in a party's individual capacity, and not as a plaintiff or class member in any purported class, collective, consolidated, or representative proceeding. The arbitrator may not consolidate more than one party's claims and may not preside over any form of class or representative proceeding, except as expressly provided in Section 13.5. If this Section 13.3 is found to be unenforceable as to a particular claim or request for relief, that claim or request will be severed and adjudicated in a court of competent jurisdiction under Section 12, but the remainder of Section 13 will remain in effect.

13.4 Carve-Outs

Notwithstanding the foregoing, the following are not subject to mandatory arbitration:

  • Equitable and IP relief. Either party may bring an action in the courts identified in Section 12 seeking temporary, preliminary, or permanent injunctive or other equitable relief to protect its intellectual property rights or Confidential Information, or to enjoin an actual or threatened breach of Sections 3.7, 7, or 9, without first submitting to arbitration and without waiving the arbitration obligation as to other Disputes.
  • Sexual-assault and sexual-harassment claims (EFAA). Consistent with the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C. §§ 401–402), any claim alleging conduct constituting a sexual-assault dispute or a sexual-harassment dispute is not subject to the arbitration or class-action-waiver provisions of this Section 13 at the election of the person alleging such conduct, and may be brought in a court of competent jurisdiction.
  • Small claims. Either party may bring an individual claim in a small-claims court of competent jurisdiction if the claim qualifies.

13.5 Mass Arbitration Batching

If twenty-five (25) or more demands for arbitration of a substantially similar nature are filed against Company by or with the assistance or coordination of the same or coordinated counsel, the parties agree that the demands will be administered in staged batches of no more than fifty (50) demands at a time (or such other reasonable batch size the arbitration provider adopts under its mass-arbitration or supplementary procedures), with a single arbitrator (or the provider's designated process arbitrator) appointed for each batch to promote efficiency and cost-effectiveness. Filing and administrative fees will be assessed per batch rather than per individual demand. Any applicable statute of limitations will be tolled for demands in later batches from the date the first batch is filed until such demands are assigned to a batch. This Section 13.5 does not create or authorize a class, collective, or consolidated proceeding on the merits; each demand within a batch remains an individual claim.

13.6 Enterprise Agreements

The provisions of this Section 13 are Company's default dispute-resolution terms and may be modified or superseded by a signed master services agreement or order form between the parties. In the event of any conflict between this Section 13 and such a signed agreement, the signed agreement controls, consistent with Section 15.

14. Severability

If it turns out that any part of this Agreement is invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.

15. Entire Agreement; Order of Precedence

This Agreement together with the Business Associate Agreement constitutes the entire agreement between you and the Company and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written with respect to these Services. Any rights not expressly granted herein are reserved by Company.

Order of precedence. To the extent any documents governing your use of the Services conflict, the following order of precedence controls, from highest to lowest: (1) a signed master services agreement or enterprise order form between the parties, if any; (2) the Business Associate Agreement; (3) any data processing agreement or addendum; (4) this Agreement (these Terms of Service); and (5) the Privacy Policy. Notwithstanding the foregoing, the Business Associate Agreement controls over all other documents with respect to the use, disclosure, and protection of Protected Health Information.

16. Force Majeure

We will not be liable for any failure to perform any of our obligations stated in this Agreement if the failure results from a cause beyond our reasonable control, including -- without limitation -- mechanical, electronic or communications failure or degradation, strikes or other labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers, or our inability or delay in obtaining supplies of adequate or suitable materials.

17. Assignment

You cannot assign, transfer or sublicense your rights, obligations or responsibilities under this Agreement without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without consent. This Agreement does not create an agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.

18. Waiver

No waiver by any party of the other party's failure to comply with any part of this Agreement shall be binding unless the waiver is in writing signed by the party giving the waiver. No waiver of or failure to exercise any option, right or privilege under the terms of this Agreement by either of the parties hereto on any occasion or occasions shall be construed to be a waiver of the same or of any other option, right or privilege on any other occasion.

19. Release

You release the Company and our successors from claims, losses, damages, rights, demands, and actions of any kind for personal injury, death, or property damage brought by a third party, to the extent directly or indirectly related to or arising from your use of the Services and not caused by the Company (collectively, "Claims"). If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release, which, if known by him would have materially affected his settlement with the debtor." This release does not apply to, and expressly excludes: (a) any claim under or relating to the Business Associate Agreement or any incident involving Protected Health Information; (b) any claim arising from the Company's breach of this Agreement; (c) any claim arising from the Company's negligence, willful misconduct, unconscionable commercial practice, fraud, deception, false promise, misrepresentation, or concealment, suppression, or omission of any material fact in connection with the Services; and (d) any Claim that may not be released under applicable law.

20. Comments, Concerns and Complaints

All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: admin@merzamedical.com.

Merza Medical, LLC -- Portland, Oregon

This document is a template provided for general informational purposes and does not constitute legal advice. You should consult your own counsel before relying on it.