Membership Terms of Service

Welcome to the Surgical Counts website (the “Site”).  This Site is owned and operated by Surgical Counts, LLC.  You acknowledge that by using the Site you are agreeing to all of the following terms and conditions (the “Terms of Service”).  Therefore, please read the entire Terms of Service before registering with, or otherwise using, the Site.  As used in these Terms of Service, “you,” “your,” and their variants means both (1) you, the person or entity that accesses or uses the Site or Services, and (2) to the extent applicable, the company, organization or other entity on behalf of which you are entering into these Terms of Service.

 

THE TERMS OF SERVICE SET FORTH BELOW GOVERN YOUR USE OF THIS SITE ON THE INTERNET, THE WORLD WIDE WEB, MOBILE NETWORKS, OR ANY OTHER COMMUNICATION METHODS NOW KNOWN OR IN THE FUTURE DEVELOPED, AS WELL AS ALL INFORMATION THEREIN.  THESE TERMS OF SERVICE CONSTITUTE A LEGAL CONTRACT BETWEEN YOU, AN INDIVIDUAL USER OF AT LEAST EIGHTEEN (18) YEARS OF AGE, AND SURGICAL COUNTS, LLC AND GOVERN YOUR ACCESS TO, AND USE OF, THE SITE, INCLUDING YOUR SUBSCRIPTION TO AND USE OF THE SITE.  IF YOU DO NOT AGREE WITH ANY OF THESE TERMS OF SERVICE, DO NOT ACCESS OR OTHERWISE USE THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.  YOUR USE OF THIS SITE SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS OF SERVICE SET FORTH BELOW.

 

1.   Use of Site.

1.1. Personal Use; Limited Rights. Subject to the terms and conditions herein, Surgical Counts, LLC grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access the Site and the Services to view content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof.  This license is personal to you, and you may not resell our Site or Services, permit other users access to our Site or Services through your account, or use the Site or Services to host content for others. You acknowledge that, except as otherwise expressly provided, these Terms of Service are solely between you and Surgical Counts, LLC.

1.2. Restrictions.  The rights granted herein are personal to you, and you may not resell our Site or Services, permit other users access to our Site or Services through your account, or use the Site or Services to host content for others.  You may not copy or download any software or other computer code from the Site or Services except with the prior written approval of Surgical Counts, LLC.  You acknowledge that, except as otherwise expressly provided, these Terms of Services are solely between you and Surgical Counts, LLC.  Furthermore, without the prior written approval of Surgical Counts, LLC, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of the Site or Services. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Site or Services.  Your rights are subject to your compliance with these Terms of Service as well as any other agreements applicable to the Services you are using.

1.3. Eligibility.  BY USING THE SITE, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE, AND YOU WILL BE THE ONLY PERSON USING THIS ACCOUNT.  THIS SUBSCRIPTION IS NOT TO BE SHARED.  IT IS FOR USE BY YOU ONLY.  This Site is to be used as case record management by those instructing or enrolled in a surgical technology or surgical first assist preparation program within the United States of America.  Any other use is prohibited and may result in termination of subscription without refund and/or legal action against you.

1.4. Use and Ownership of Services and Site Content.  Surgical Counts, LLC shall retain all right, title and interest in and to the Site, the Services and all the materials and content provided to you pursuant to this Agreement, including all intellectual property rights therein and thereto.  No right, title or interest in any material on this Site is transferred or granted to you as a result of downloading or using any of the Site content.  Permission to reprint or reproduce any document or image from this Site, in whole or in part, for any reason except for personal, non-commercial use, is prohibited, unless prior written consent is obtained from Surgical Counts, LLC. Unless otherwise noted, all materials, including images, text, illustrations, designs, icons, photographs, programs, video clips and written and other materials that are part of this Site are copyrights, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by Surgical Counts, LLC.  The compilation (meaning the collection, arrangement, and assembly) of all content on this Site is the exclusive property of Surgical Counts, LLC.  The Surgical Counts name, and all deviations thereof, and all related names, design marks and slogans are trademarks or service marks of Surgical Counts, LLC. All other marks are the property of their respective companies.  No trademark or service mark license is granted in connection with the materials contained on this Site.  Access to this Site does not authorize anyone to use any name, logo or mark in any manner.

1.5. Ownership of User Content.  You understand that all information provided by the student into their account is owned by the student.  You understand that all information provided by instructors, fellow students, or other school representatives into said student’s account (including but not limited to case approvals, skills assessments, comments, and feedback) is also owned by said student.  You understand that even if the educational institution paid for a student’s subscription, the subscription shall be considered to have been purchased on behalf of the student, and therefore all user content stored within that account shall be owned by the student. Nothing in this Agreement shall be construed to constitute a sale or other transfer of title of your information to Surgical Counts, LLC. 

1.6. Sharing of User Content.  You understand that Surgical Counts will share all of your user content with your surgical technology or surgical first assist instructor(s), and with other parties with an educational interest as defined in the Family Educational Rights and Privacy Act (FERPA).  This sharing will include the export (via downloadable PDF, Excel, image, zip, etc. files) of student-owned content, at which point said exported content and files become part of the student’s record maintained by the educational institution. More details about how we share User Content may be found in the Surgical Counts Privacy Policy, which is incorporated by reference into these Terms of Service.

1.7. Use of User Content.  You understand that Surgical Counts may anonymize your data and aggregate it with anonymized data from other students to offer statistical products. For the avoidance of doubt, this anonymized data shall not be considered “User Content” as defined in this agreement. You understand that Surgical Counts may use your User Content internally, including but not limited to, to optimize resources and support, performance optimization, development of new products and services, verification of security and data integrity, and internal demand planning.

1.8. Maintenance of User Content.  You grant Surgical Counts, LLC permission to store your User Content with our hosting providers (currently Siteground and AWS).  You understand that all information you provide will be maintained by Surgical Counts, LLC according to the terms of the hosting providers. Such terms thereunder are hereby incorporated by reference.

1.9. Accuracy of User Content.  You understand that you are solely responsible for providing accurate and complete information and that failure to do so may result in actions taken against you for misrepresentation or fraud by Surgical Counts, LLC or your educational institution.

1.10. Removal of User Content.  At your written request, Surgical Counts shall delete from its systems all of your user content within a reasonable time, unless storage of any data is required by any applicable law.

 

2.   Modification of Terms.

Surgical Counts, LLC may make changes to the content and services offered on this Site at any time. Surgical Counts, LLC reserves the right to change or update these Terms of Service at any time by posting such changes on this Site, and/or by sending registered subscribers an email notice of such changes.  If any modification is unacceptable to you, you will cease using this Site and cancel your subscription with no refund.  If you do not cease using this Site and cancel your subscription, you will be deemed to have accepted all changes and agreed to the Terms of Service as modified.  

 

3.   Notice.

Surgical Counts may decide to provide you with notices, including those regarding changes to Surgical Counts’ Terms of Service, by email or postings on the Site.  You hereby consent to, and agree to accept, periodic notices from us.  Any such notice will be deemed to have been accepted within three (3) days after email is sent.  Changes posted to the Site will be deemed accepted within thirty (30) days of postings.  You are responsible for keeping track of changes to these Terms of Service.  If you have not ceased to use the Site and cancelled your subscription within three (3) days of email receipt, or thirty (30) days of Site posting, you will be deemed to have accepted the change(s) to the Terms of Service.  If you are in violation of these changes, your subscription may be terminated without notice or refund, and you may be subject to legal action.

 

4.   Unauthorized or Unlawful Use.

When you use the Site, you represent, warrant, and agree that you will NOT:

(A) falsify or misrepresent any information regarding your identity or intentions with respect to any matter;

(B) post, publish, transmit, distribute, or upload any information through or link directly or indirectly any information to the Site that Surgical Counts, LLC, in its sole discretion, deems unlawful, obscene, derogatory, abusive, threatening, discriminatory with respect to race, gender, orientation, or otherwise disagreeable;

(C) post, publish, transmit, distribute, or upload any information through or link directly or indirectly any information to the Site that contains a virus, Trojan horse, worms, time bombs, cancelbots, or any other harmful software code or programming routine that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

(D) post, publish, transmit, distribute, or upload any information through or link directly or indirectly any information to the Site that is unlawful, fraudulent, or otherwise disagreeable including, without limitation, any information, communication or transmission that constitutes or supports the commission of any illegal activity or any violation of local, state, national or foreign law, statute, ordinance or regulation;

(E) post, publish, transmit, distribute, or upload any information through or link directly or indirectly any information to the Site that violates any copyright, trademark or any other proprietary intellectual property rights of others, unless you have obtained permission from such owner and such action would not violate any of the above rights in such property;

(F) post, publish, transmit, distribute, or upload through or link directly or indirectly any information to the Site any bulk e-mail solicitations, chain letters, solicitations, advertisements, pyramid schemes or any other unsolicited communication, including without limitation, spamming Surgical Counts’ users;

(G) use, reproduce, distribute, publish or communicate any information obtained from the Site, for any commercial reason, unless such activity has been expressly approved in writing by Surgical Counts, LLC;

(H)  use  any  robot,  spider,  other  automatic  device,  or  manual  process  to  monitor  or  copy  Surgical Counts’ web pages or content contained herein;

(I) use any device, software or routine to bypass Surgical Counts’ proper working of the Site or any transaction being communicated or conducted on the Site, or take any action that imposes an unreasonable or disproportionately large load on Surgical Counts’ infrastructure; or

(J) create liability for Surgical Counts or cause Surgical Counts to lose (in whole or in part) the services of Surgical Counts’ ISPs.

 

5.   Prevention of Unauthorized Use.

5.1. Generally.  The Site is intended for use by those instructing and/or enrolled in a surgical technology or surgical first assist preparation program.  Surgical Counts, LLC reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Site, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding unauthorized use.  Unauthorized use of this Site includes, but is not limited to, providing false information, sharing access or login credentials, and using the information herein for malicious, inappropriate, or illegal conduct.  You agree not to interfere or take action that results in the unauthorized use of the Site.  You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Site.  Unauthorized use will result in immediate termination of your account without notice or refund and may result in legal action against you or other parties involved.

5.2. Passwords.  Use of this Site requires a unique username and password to authenticate your right to access the Site.  You agree to maintain confidentiality of your password and are solely responsible for all activities associated with its use, whether authorized or unauthorized.  You agree to immediately notify Surgical Counts of any unauthorized use of the Site or any breach of security under your login credentials. Surgical Counts may suspend your right to access or use any portion of the Site or Services for any reason and without notice.  You shall not share or otherwise make available your account passwords with other persons.

 

6.   Prevention of Unlawful Use.

This Site is a tool for those instructing and/or enrolled in a surgical technology or surgical first assist preparation program.  As such, sensitive information may be found herein. In agreeing to these Terms of Service, you have agreed to use this information for its intended purpose.  Surgical Counts, LLC reserves the right to exercise whatever lawful means it deems necessary to prevent unlawful use of the Site, including but not limited to, sharing your personal information with authorities if you are a suspected of using this information in a malicious or illegal manner, verifying the personal information you provide, and immediately terminating your subscription without notice or refund if any of your information is deemed to be false or questionable.  Surgical Counts, LLC does not support the illegal or malicious use of this Site, and will help authorities in any means it sees fit to prosecute those who use this Site and the information herein in an unlawful manner.  In addition to any criminal proceedings, Surgical Counts, LLC also reserves any and all rights which it may have against any party found guilty of unlawful use of this Site.

 

7.   Release and Disclaimer.

Surgical Counts is a venue for you to participate in the use of the Services.  The Site acts as a venue for those instructing and/or enrolled in a surgical technology or surgical first assist preparation program.  Surgical Counts, LLC will attempt to provide the Site at all times, except for periods for maintenance and repair; however, the Site may be subject to unavailability for a variety of factors beyond Surgical Counts, LLC’s control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed.  Surgical Counts, LLC disclaims any responsibility for system downtime which may affect the timely recording of case information, and will not be responsible for end-user hardware failures or end-user internet connection issues.  Technical Support questions/concerns typically will be acknowledged within 24 hours, and most technical support issues typically will be resolved within 1 business day after acknowledgement.  Delays or omissions may occur due to technology attacks, epidemics/quarantines/viruses, accidents, fires, riots/rebellions, acts of war/acts of terrorism, natural disasters, and acts of God beyond the control of Surgical Counts, LLC.

YOUR USE OF THE SITE AND SERVICES IS AT YOUR OWN RISK.  SURGICAL COUNTS, LLC SHALL NOT BE RESPONSIBLE FOR ERRORS OR OMISSIONS CONTAINED IN THIS SITE. THIS SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STAUTORY,OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION.  SURGICAL COUNTS, LLC DOES NOT WARRANT THAT THE SITE OR THE SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED.  SURGICAL COUNTS, LLC DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR SERVICES, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.

SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.  IN SUCH EVENT, SURGICAL COUNTS, LLC’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.

 

8.   Indemnification.

You agree to indemnify, defend, and hold Surgical Counts, LLC, harmless from all third party claims or causes of action (including investigations) and any resulting damages, costs, expenses, liabilities or fines, including reasonable attorneys’ fees, due to or arising out of your breach of these Terms of Service or the documents incorporated by reference, or your violation of any law or the rights of a third party.

  

9.   Limitation of Liability and Damages.

IN NO EVENT SHALL SURGICAL COUNTS, LLC BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, ANY DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER), HOWEVER ARISING, EVEN IF SURGICAL COUNTS, LLC KNOWS OR HAS BEEN ADVISED THERE IS A POSSIBILITY OF SUCH DAMAGES.

SURGICAL COUNTS, LLC’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE CURRENT SINGLE-USER SUBSCRIPTION FEE.

 

10. Fees and Services; Termination.

10.1. Fees and Services.  You agree to pay the fees and accept the payment policies for registration with Surgical Counts.  You agree and acknowledge that payment of registration and subscription fees are made in advance and are not refundable unless otherwise set forth elsewhere in these Terms of Service.  

10.2. Termination. These Terms of Service constitute a binding agreement between Surgical Counts, LLC and you.  Upon termination, there shall be no refund of any monies paid by you for access to the Site.  Unless you specifically request otherwise, your User Content will be maintained and remain accessible to users only with Instructor-level permissions for a period of at least 1 year.

 

11. Miscellaneous.

11.1. Governing Law and Jurisdiction. These Terms of Service shall be governed by, and construed in accordance with, the laws of the State of South Carolina, without regard to the principles of conflicts of laws.  Jurisdiction and venue for any actions or proceedings for any dispute or matter which in any manner is related to this Site or concerning the enforcement, construction or interpretation of these Terms of Service, shall be exclusively in the Court sitting in Horry County, South Carolina.  You expressly submit and consent to the jurisdiction of the aforesaid courts and waive any defense of forum non conveniens.  

11.2. Waiver. Surgical Counts’ failure to enforce any of these Terms of Service shall not constitute or be deemed a waiver of any such term.

11.3. Survival. Upon termination of these Terms of Service, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, sections regarding proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and damages and all general provisions shall survive any termination of these Terms of Service.

11.4. Severability. If any provision of these Terms of Service is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms of Service to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions hereof.

11.5. Assignment. These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Surgical Counts, LLC without restriction.  Any assignment attempted to be made in violation of these Terms of Service shall be void.

11.6. Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms of Service, and will not be deemed to limit or affect any of the provisions hereof.

11.7. Entire Agreement. This is the entire agreement between you and Surgical Counts, LLC relating to the subject matter herein and will not be modified except in writing, signed by both parties by hand, or by a change to these Terms of Service made by Surgical Counts, LLC as set forth elsewhere in these Terms of Service.

11.8. Relationship of the Parties. Nothing in these Terms of Service is intended to create an agency, partnership, joint venture, or franchise between the parties, neither party has the authority to act in the name or on behalf of or otherwise to bind the other.

11.9. Competitor Use Prohibited; Liquidated Damages. This Site and the associated Services are to be used for non-competitive purposes only.  Use of the Site or associated Services by competing businesses, affiliates, employees, or other associates is absolutely prohibited and constitutes a breach of this contract, giving rise to substantial damages.  If you are an owner, employee, or other associate of a competing site (other than simply a member), you hereby agree that damages from the unlicensed visitation of this Site are difficult to compute.  Damages from breach of this competitor use provision shall therefore be set at $100 per unauthorized Site visit.  You hereby agree that such damages are a reasonable estimate of actual damages and you waive your right to contest these damages in a court of law or other proceeding.

11.10. Legal Action. You expressly waive the right and agree not to bring or participate in any class action or joinder or consolidation of claims with respect to any dispute under or relating to these Terms of Service, including by any arbitration proceeding.

 

 

Last Updated: These Terms of Service were last updated on February 24, 2023.