Effective Date: December 15th 2017

Last Updated: June 20th 2018

This Services Agreement (“Agreement”) is a legal agreement between Scalpel Software, Inc. (“Scalpel”, “us”, or “we”) and the entity or person (“you”, “your”, or “user”) who has requested to receive certain payment processing, data, technology and analytics services, and other business services that may be offered by Scalpel and its affiliates (each, a “Service”). This Agreement describes the terms and conditions that apply to your use of the Services.

If you do not understand any of the terms of this Agreement, please contact us before using the Services.

You may not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement. This agreement is a legally binding contract. We reserve the right to change these Terms of Use, in our sole discretion, at any time. If we do so, we will let you know either by posting the modified Terms of Use on the Site or through other modes of communication. By continuing to use this Site after such changes are posted, you agree to be bound by the changes. Because our Site features are evolving over time, we may change or discontinue all or any part of the Site, at any time and without notice, at our sole discretion. These terms include Scalpel's Privacy Policy which is incorporated by reference into this Agreement. These terms include Scalpel's Pricing Policy which is incorporated by reference into this Agreement.

Section A: General Terms

1.) Overview of this Agreement

This Agreement provides a general description of the Services that Scalpel may provide to you, including those that allow you to store individually identifiable health information for, communicate with, or accept payments from purchasers of your goods or services or donors to your organization (your “Customers”).

Before using the Services, you must register with Scalpel and create an account (a “Scalpel Account”).

Section A describes the process of registering for and using your Scalpel Account

Section B describes the use of your Scalpel Account

Section C describes your liability to Scalpel for all losses connected with your Scalpel Account, your agreement to resolve all disputes by arbitration and not in a lawsuit, and other legal terms that apply to you.

2.) Your Scalpel Account

The "Scalpel Service" is defined as any computer or mobile application or software under Scalpel's control, whether partial or otherwise, in connection with providing the services provided by Scalpel. The Scalpel Service provides a platform to store health-related information to make it available to you and your employees.

a. Registration

Only businesses (including sole proprietors), bona fide charitable organizations, and other entities or persons located in the United States are eligible to apply for a Scalpel Account to use the Services described in this Agreement. Scalpel and its affiliates may provide Services to you or your affiliates in other countries or regions under separate agreements.

To register for a Scalpel Account, you or the person or people submitting the application (your “Representative”) must provide us with your business or trade name, address, email, phone number, tax identification number, URL, the nature of your business or activities, and certain other information about you that we require. We may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and your Scalpel Account administrator. Until you have submitted, and we have reviewed and approved, all required information, your Scalpel Account will be available to you on a preliminary basis only, and we may terminate it at any time and for any reason.

If you use Payment Processing Services, your name (or the name used to identify you) and URL may appear on your Customers’ bank or other statements. To minimize confusion and avoid potential disputes, these descriptors must be recognizable to your Customers and must accurately describe your business or activities. You may only use Payment Processing Services to facilitate Transactions (as defined below) with your Customers. You may not use Payment Processing Services to send money to others, to conduct any personal transactions, or for any other purposes prohibited by this Agreement.

You may not use the Services if you are under 18 years of age.

b. Business Representative

You agree that if you create an account and use the Scalpel Service on behalf of a health service provider, you have the necessary legal authority and capacity to do so as an authorized agent of the health service provider. You agree that you have the authority to bind the health service provider in legal agreements and contracts. Your agreement to these Terms also binds such health service provider. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of Scalpel, neither you nor your Representative may register or attempt to register for a Scalpel Account on behalf of a user Scalpel previously terminated from use of the Services.

If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of the Services and your obligations to Customers, including payment of any amounts owed under this Agreement.

c. Validation and Underwriting

At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate information you provided, verify you or your Representative’s identity, and assess the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to your business, its beneficial owners or principals. If you use Payment Processing Services, we may also request that you provide copies of financial statements or records pertaining to your compliance with this Agreement, or require you to provide a personal or company guarantee. Your failure to provide this information or material may result in suspension or termination of your Scalpel Account.

You agree that we may take steps to verify your identity and credentials as a health service provider at any time. You agree that we may use and disclose information, including "Confidential Information," about you for such purposes, including making inquiry of third parties concerning your identity and professional and practice credentials. You authorize such third parties to disclose to us such information as we may request for such purposes, and you agree to hold them and us harmless from any claim or liability arising from the request for or disclosure of such information. You agree that we may terminate your access to the Scalpel Service at any time if we are unable at any time to determine or verify your qualifications or credentials.

d. Keeping your Account Current

You agree to keep the information in your Scalpel Account current. You must promptly update your Scalpel Account with any changes affecting you, the nature of your business activities, your Representatives, beneficial owners, principals, or any other pertinent information. We may suspend your Scalpel Account or terminate this Agreement if you fail to keep this information current. You also agree to promptly notify us in writing no more than three days after any of the following occur: you are the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); there is an adverse change in your financial condition; there is a planned or anticipated liquidation or substantial change in the basic nature of your business; you transfer or sell 25% or more of your total assets, or there is any change in the control or ownership of your business or parent entity; or you receive a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of your total assets.

3.) Credentials and Security

As a registered user, you will have log-in information, including a username and password. Your account is personal to the primary account holder, and you may not share your account and log-in information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your account and access credentials, you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Scalpel Service. You are responsible for your log-in credentials and for keeping your account information accurate.

You agree to notify us immediately of any breach in secrecy of your log-in information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Scalpel by e-mail to security@scalpel.com. You will be solely responsible for the losses incurred by Scalpel and others (including patients) due to any unauthorized use of your account that takes place prior to notifying Scalpel that your account has been compromised.

4.) Your Relationship with Your Customers

You may only use the Services for legitimate Transactions with your Customers. You know your Customers better than we do, and you are responsible for your relationship with them. Scalpel is not responsible for the products or services you publicize or sell, or that your Customers purchase using the Services; or if you accept donations, for your communication to your Customers of the intended use of such donations. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your Customers.

Scalpel provides Services to you but we have no way of knowing if any particular purchase, sale, donation, order, or other transaction (each a “Transaction”) is accurate or complete, or typical for your business. You are responsible for knowing whether a Transaction initiated by your Customer is erroneous (such as a Customer purchasing one item when they meant to order another) or suspicious (such as unusual or large purchases, or a request for delivery to a foreign country where this typically does not occur). If you are unsure if a Transaction is erroneous or suspicious, you agree to research the Transaction and, if necessary, contact your Customer before fulfilling or completing the Transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Services.

5.) Fees and Fines

Scalpel will provide the Services to you at the rates and for the fees (“Fees”) described on the Pricing page, linked here and incorporated into this Agreement. The Fees include charges for Transactions (such as processing a payment) and for other events connected with your Scalpel Account (such as handling a disputed charge). We may revise the Fees at any time. However, we will provide you with at least 30 days’ advance notice before revisions become applicable to you (or a longer period of notice if this is required by applicable Law).

In addition to the Fees, you are also responsible for any penalties or fines imposed in relation to your Scalpel Account on you or Scalpel by Scalpel or any third party vendor affiliated with providing Scalpel's Services.

6.) Taxes and other Expenses

You are obligated to pay all taxes, fees and other charges imposed by any governmental authority (“Taxes”), including any value added tax, goods and services tax, provincial sales tax and/or harmonized sales tax on the Services provided under this Agreement. If you are tax-exempt, you will provide us with an appropriate certificate or other evidence of tax exemption that is satisfactory to us.

Our fees are exclusive of any applicable Taxes, except as expressly stated to the contrary. You have sole responsibility and liability for: (i) determining what, if any, Taxes apply to the sale of your products and services, acceptance of donations, or payments you receive in connection with your use of the Services; and (ii) assessing, collecting, reporting, and remitting Taxes for your business to the appropriate tax and revenue authorities. If we are required to withhold any Taxes, or we are unable to validate any tax-related identification information you provide to us, we may deduct such Taxes from amounts otherwise owed and pay them to the appropriate taxing authority. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to your tax-exempt status. Upon our reasonable request, you must provide us with information regarding your tax affairs.

We may send documents to you and tax authorities for Transactions processed using the Services. Specifically, pursuant to applicable Law (including the Internal Revenue Code), we may be required to file periodic informational return with taxing authorities in relation to your use of the Services. If you use Payment Processing Services, you acknowledge that we will report the total amount of payments you receive each calendar year as required by the Internal Revenue Service. We also may, but are not obliged to, electronically send you tax-related information (including, when you provide us your tax identification number, a Form 1099-K).

7.) Account Support

We will provide you with support to resolve general issues relating to your Scalpel Account and your use of the Services. The most efficient way to get answers to your questions is to review our site's Documentation. If you still have questions after reviewing the Documentation, please contact us.

You are solely responsible for providing support to Customers regarding Transaction receipts, product or service delivery, support, returns, refunds, and any other issues related to your products and services and business activities. We are not responsible for providing support for the Services to your Customers unless we agree to do so in a separate agreement with you or one of your Customers.

8.) Suspicion of Unauthorized or Illegal Use

We may refuse, condition, or suspend any Transactions that we believe: (i) may violate this Agreement or other agreements you may have with Scalpel; (ii) are unauthorized, fraudulent or illegal; or (iii) expose you, Scalpel, or others to risks unacceptable to Scalpel. If we suspect or know that you are using or have used the Services for unauthorized, fraudulent, or illegal purposes, we may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your Scalpel Account, your Customers, and Transactions made through your use of the Services.

9.) Disclosures and Notices; Electronic Signature Consent

a. Consent to Electronic Disclosures and Notices:

By registering for a Scalpel Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from Scalpel (“Notices”), including those required by Law. You also agree that your electronic consent will have the same legal effect as a physical signature.

b. Methods of Delivery:

You agree that Scalpel can provide Notices regarding the Services to you through our website or through the Dashboard (as defined below), or by mailing Notices to the email or physical addresses identified in your Scalpel Account. Notices may include notifications about your Scalpel Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website or emailed to you.

c. Requirements for Delivery:

It should come as no surprise to you that you will need a computer or mobile device, Internet connectivity, and an updated browser to access your Dashboard and review the Notices provided to you. If you are having problems viewing or accessing any Notices, please contact us and we can find another means of delivery.

d. Withdrawing Consent:

Due to the nature of the Services, you will not be able to begin using the Services without agreeing to electronic delivery of Notices. However, you may choose to withdraw your consent to receive Notices electronically by terminating your Scalpel Account.

10.) Termination

a. Term and Termination:

This Agreement is effective upon the date you first access or use the Services and continues until terminated by you or Scalpel. You may terminate this Agreement by closing your Scalpel Account at any time by selecting “close my account” in the company settings page and ceasing to use the Service. If you use the Services again or register for another Scalpel Account, you are consenting to this Agreement. We may terminate this Agreement or close your Scalpel Account at any time for any reason by providing you Notice. We may suspend your Scalpel Account and your ability to access funds in your Scalpel Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Services because of significant fraud or credit risk, or any other risks associated with your Scalpel Account; (ii) you use the Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; (iii) any Law, Payment Method Provider or Payment Method Acquirer requires us to do so; or (iv) we are otherwise entitled to do so under this Agreement.

b. Effects of Termination:

Termination does not immediately relieve you of obligations incurred by you under this Agreement. Upon termination, you agree to (i) complete all pending Transactions, (ii) stop accepting new Transactions, and (iii) immediately remove all Scalpel logos from your website. Your continued or renewed use of the Services after all pending Transactions have been processed serves to renew your consent to the terms of this Agreement. If you terminate this Agreement, we will pay out any remaining funds owed to you.

In addition, upon termination you understand and agree that (i) all licenses granted to you by Scalpel under this Agreement will end; (ii) we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers; (iii) we will not be liable to you for compensation, reimbursement, or damages related to your use of the Services, or any termination or suspension of the Services or deletion of your information or account data; and (iv) you are still liable to us for any Fees or fines, or other financial obligation incurred by you or through your use of the Services prior to termination.

Section B: Using your Scalpel Account

1.) Compliance and Health Information Practices

Scalpel voluntarily complies with the requirements of the "Privacy Rule" and "Security Rule" as defined by Health Insurance Portability and Accountability Act ("HIPAA") of 1996 and the Health Information Technology for Economic and Clinical Health Act ("HITECH Act").

We may use de-identified health-related information as permitted by law.

Use and Disclosure. We may use and process the health-related information posted to the Scalpel Service for the proper management, provision, and administration of the Scalpel Service and our business, and as required by law. We may also disclose health-related information if required by law or we obtain reasonable assurances from the recipient that such information will be held confidentially and used or further disclosed only as required by law or for the purpose for which we disclosed it. You agree that Scalpel may use and share de-identified health-related information to the fullest extent permitted by law.

Data Transfers at Your Request. We do not transfer health-related information to third parties, other than our vendors, suppliers and as required to process patient billing or communication. We may transfer health-related information to third parties, including health plans, health-care clearinghouse, and others. You authorize us to make such transfers upon the request of you and the users who are acting under your account. You acknowledge that when you consent to transferring the information to third parties, we have no control over how those third parties will use and disclose the information.

We will use appropriate safeguards to prevent the use or disclosure of health-related information other than as provided for by these Terms, including administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the information. We will report to you any discovered use or disclosure of health-related information not provided for by these Terms, or when we determine that unauthorized access to health-related information has occurred.

We will ensure that any of our agents, suppliers, and vendors to whom we provide health-related information for purposes of assisting us in providing the Scalpel Service, agrees to the same restrictions and conditions that apply to us with respect to such information, including the obligation to implement reasonable and appropriate safeguards.

We will facilitate your requirements under the Privacy Rule to give patients access and the ability to amend health-related information you posted to the Scalpel Service. We may also facilitate an accounting of disclosures as required by the Privacy Rule. We will comply with the provisions of the HIPAA Security Rule that are made applicable to business associates. We will notify you of the discovery of any breach of health-related information that we store and we will cooperate reasonably with you to investigate and mitigate any such breach. We will provide you with the necessary information to make any legally required notification to individuals.

We will give the Department of Health and Human Services ("HHS") access to our internal practices, books, and records related to the use and disclosure of health- related information for the purposes of determining your compliance with the Privacy Rule.

The Scalpel Service retains the information you post to it for compliance and regulatory purposes and will cooperate with you regarding requests to delete information. At the termination of these Terms we will provide you with a copy of health-related information in an electronic form that is accessible through commercially available hardware and software. If feasible, we will also return or destroy all health-related information you or your employees or patients post to the Scalpel Service. If such return or destruction is not feasible, we will continue to abide by these Terms with respect to such information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible. You acknowledge that segregating health-related information for removal from the Scalpel Service may be infeasible.

2.) Medical Warning

Scalpel does not give medical advice. The Scalpel Service may provide helpful information to assist you in medical decision-making. The information and materials available through the Service are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for your professional judgment. You assume full risk and responsibility for the use of information you obtain from or through the Service. You will be solely responsible for the professional and technical services you provide. In addition, we do not recommend or endorse any provider of health care or health-related products, items, or services. Nothing on this Site is intended to substitute for proper medical advice, diagnosis, or treatment. This Site is not intended and must not be interpreted as the rendering of medical, nursing, or professional health care advice or services, or the practice of medicine, nursing, or professional health care in any jurisdiction.

3.) Third-Party Services.

The Scalpel Service may include certain third-party software and services. Your use of such software or services may require that you enter into separate subscription or licensing agreements with third-party vendors and suppliers. You agree to comply with and, upon request, execute such agreements as may be required for the use of such software or services.

You may allow employees to use the Scalpel Service on your behalf. You may allow patients to use the Scalpel Service to pay for your services.

You are responsible for the use and misuse of the Service by the employees and patients you allow to access the Scalpel Service using your account.

4.) Third Party Access

Except as required by law and described below, you will not permit any third party to have access to the Scalpel Service using your account. You may allow your employees to use the Scalpel Service on your behalf in compliance with these Terms. You may also allow patients to make payment for your services through the Scalpel Service in compliance with these Terms. You are solely responsible for the use of the Scalpel Service by your employees and patients. We have no liability for the consequences to you or your employees or patients from your or their use of the Scalpel Service.

You acknowledge that by allowing employees and patients to access the Scalpel Service with your account, you are responsible for ensuring such employees and patients use the Scalpel Service for the purposes for which they are accessing it. While the Scalpel Service has certain technical safeguards against misuse, you acknowledge it will rely to a substantial extent on your responsible use. You agree that we will not be responsible for any unlawful access to or use of the Scalpel Service by any employee or patient to whom you gave access or log-in credentials. You agree that you are responsible for ensuring that health-related information is properly protected under applicable law.

You represent and warrant that you have obtained the proper consents, authorizations, and releases from individuals to the fullest extent required by applicable law before posting their health-related information to the Scalpel Service.

You are solely responsible for any health-related information exported from the Scalpel Service by you or the employees and patients that you allow access from your account.

5.) Intellectual Property Rights

a. Scalpel's Property Rights

Scalpel and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the Services, and Documentation (collectively, "Scalpel IP”) or any copies thereof. Scalpel IP is protected by copyright, trade secret, patent, and other intellectual property Laws, and all rights in Scalpel IP not expressly granted to you in this Agreement are reserved.

You may choose to or we may invite you to submit comments or ideas about improvements to the Service, our platform, or any other component of our products or services (“Ideas”). If you submit an Idea to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Idea. You also agree that Scalpel has no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.

b. Your Property Rights

You, or the people who allow you to use their content, own all of the content you create using the Scalpel Service. However, we may use it for any purpose. We may also modify your content to make it work better on the Scalpel Service.

It is very important that you have permission to use other people's content or they may be able to sue you for violating their legal rights.

The Scalpel Service may provide you with the ability to create, post, or share content ("Your User Content"). Scalpel claims no ownership over Your User Content. You or a third-party licensor, as appropriate, retain all copyright, patent, and trademark rights to any of the content you post on or through the Scalpel Service. You are responsible for protecting those rights. You also acknowledge and agree that Your User Content is non-confidential and non-proprietary.

Scalpel's Use of Posted Content on the Scalpel Service. By creating, posting, or sharing Your User Content on or through the Scalpel Service, and subject to Scalpel's Privacy Policy, you grant Scalpel a perpetual, world-wide, non-exclusive, non-transferable, royalty-free license to use, modify, remove, publish, transmit, or display Your User Content for any purpose, including for the purpose of promoting Scalpel and its services. You waive any rights you may have regarding Your User Content being altered or manipulated in any way that may be objectionable to you. Scalpel reserves the right to refuse to accept, post, display, or transmit any User Content in its sole discretion.

You Acquire No Ownership of Others' Content. You understand and agree that you will not obtain, as a result of your use of the Scalpel Service, any right, title, or interest in or to such content delivered via the Scalpel Service or in any intellectual property rights (including, without limitation, any copyrights, patents, trademarks, trade secrets, or other rights) in the content.

You Must Have Rights to the Content You Post. You represent and warrant that: (i) you own the content posted by you on or through the Scalpel Service or otherwise have the right to grant the license set forth in these Terms, (ii) the posting and use of Your User Content on or through the Scalpel Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (iii) the posting of Your User Content on the Scalpel Service does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of content you post on or through the Scalpel Service.

The Scalpel Service contains content from users and other Scalpel licensors. Except as provided within these Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the Scalpel Service.

6.) License

You are granted a nonexclusive and nontransferable license to electronically access and use the Scalpel IP only in the manner described in this Agreement. Scalpel does not sell to you, and you do not have the right to sublicense the Scalpel IP. We may make updates to the Scalpel IP or new Services available to you automatically as electronically published by Scalpel, but we may require action on your part before you may use the Scalpel IP or new Services (including activation through the Dashboard, or acceptance of new or additional terms). Scalpel may revoke or terminate this licence at any time if you use Scalpel IP in a manner prohibited by this Agreement.

You may not: (i) claim or register ownership of Scalpel IP on your behalf or on behalf of others; (ii) sublicense any rights in Scalpel IP granted by us; (iii) import or export any Scalpel IP to a person or country in violation of any country’s export control Laws; (iv) use Scalpel IP in a manner that violates this Agreement or Laws; or (v) attempt to do any of the foregoing.

7.) Content

You may use the Services to upload or publish text, images, and other content (collectively, “Content”) to your Scalpel Account and to third-party sites or applications but only if you agree to obtain the appropriate permissions and, if required, licenses to upload or publish any such Content using the Services. You agree to fully reimburse Scalpel for all fees, fines, losses, claims, and any other costs we may incur that arise from publishing illegal Content through the Services, or claims that Content you published infringes the intellectual property, privacy, or other proprietary rights of others.

8.) Disclaimers, Limitations, and Prohibitions

We do not represent or guarantee the truthfulness, accuracy, or reliability of content, posted by users ("User Content"). You accept that any reliance on material posted by other users, vendors, or suppliers will be at your own risk.

You agree to use the Scalpel Service only for its intended purpose. You must use the Scalpel Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Scalpel Service are prohibited. You may not:

a. Aggregate, copy, or duplicate any Scalpel Content;

b. Use data mining, robots, or other data-gathering devices on the Scalpel Service;

c. Remove, disable, damage, circumvent, or otherwise interfere with the security of the Scalpel Service;

d. Interfere or attempt to interfere with the proper working of the Scalpel Service;

e. Gain unauthorized access to the Scalpel Service or computers linked to the Scalpel Service;

f. Attempt to reverse engineer, or reverse engineer the Scalpel Service;

g. Frame or link to the Scalpel Service without permission;

h. Attempt to submit, or submit a virus to the Scalpel Service;

i. Take any action imposing an unreasonable or disproportionately large load on Scalpel's infrastructure;

j. Intercept, examine, or otherwise observe any proprietary communications with the Scalpel Service or facilitate, create, or maintain any unauthorized connection to the Scalpel Service;

k. Attempt to or obtain unauthorized access to other users' accounts;

l. Sell, transfer, or assign any of your rights to use the Scalpel Service to a third party without our express written consent;

m. Use an account that has been sold, transferred, or assigned to you from a Scalpel Service user without our express written consent;

n. Use the Scalpel Service in a manner that results in or may result in complaints, disputes, claims, fines, penalties, and other liability to Scalpel or others;

o. Use the Scalpel Service for transactions involving illegal activities or what Scalpel reasonably believes to be potentially fraudulent activity;

p. Use the Scalpel Service in an illegal way or to commit an illegal act;

q. Access the Scalpel Service from a jurisdiction where it is illegal, unauthorized, or penalized;

r. Create multiple registrations, whether fraudulently, falsely, unlawfully, legitimate, or lawfully, without Scalpel's prior consent; or

s. Control an account if another account controlled by you has performed these activities or otherwise breached these Terms resulting in account suspension or termination.

Section C: Additional Legal Terms

1.) Right to Amend

We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our website or any other website we maintain or own. We may provide you with Notice of any changes through the Dashboard, via email, or through other means. Your use of the Services, or Data after we publish any such changes on our website, constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our website at any time. You can find out when this Agreement was last changed by checking the “Last Updated” date at the top of the Agreement.

2.) Assignment

You may not assign this Agreement, any rights or licenses granted in this Agreement, or operation of your Scalpel Account to others without our prior written consent. If you wish to make such an assignment, please contact us. If we consent to the assignment, the assignee must agree to assume all of your rights and obligations owed by you related to the assignment, and must agree to comply with the terms of this Agreement. Scalpel may assign this Agreement without your consent or any other restriction. If we make an assignment, we will provide reasonable Notice to you.

3.) Right to Audit

If we believe that a security breach, leak, loss, or compromise of Data has occurred on your systems, website, or app affecting your compliance with this Agreement, we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities, and you must fully cooperate with any requests for information or assistance that the auditor makes to you as part of the security audit. The auditor will issue a report to us which we may share with any financial institution, regulatory authority or law enforcement agency consistent with our legal obligations.

4.) No Agency; Third-Party Services

Except as expressly stated in this Agreement, nothing in this Agreement serves to establish a partnership, joint venture, or other agency relationship between you and us, or with any Third Party Provider. Each party to this Agreement, and each Third Party Provider, is an independent contractor. Unless a Third Party Provider expressly agrees, neither you nor we have the ability to bind a Third Party Provider to any contract or obligation, and neither party will represent that you or we have such an ability.

We may reference or provide access to third-party services, products, and promotions that utilize, integrate, or provide ancillary services to the Services (“Third-Party Services”). These Third-Party Services are provided for your convenience only and do not constitute our approval, endorsement, or recommendation of any such Third-Party Services for you. You access and use any Third-Party Service based on your own evaluation and at your own risk. You understand that your use of any Third-Party Service is not governed by this Agreement. If you decide to use a Third-Party Service, you will be responsible for reviewing, understanding and accepting the terms and conditions associated with its use. We expressly disclaim all responsibility and liability for your use of any Third-Party Service. Please also remember that when you use a Third-Party Service, our Privacy Policy is no longer in effect. Your use of a Third-Party Service, including those that have a link on our website, is subject to that Third-Party Service’s own terms of use and privacy policies.

5.) Force Majeure

Neither party will be liable for any delays in processing or other nonperformance caused by telecommunications, utility, failures, or equipment failures; labor strife, riots, war, or terrorist attacks; nonperformance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse your liabilities or your obligation to pay Fees, Fines, Disputes, Refunds, Reversals, or Returns under this Agreement.

6.) Your Liability For Third-Party Claims Against Us

Without limiting, and in addition to, any other obligation that you may owe under this Agreement, you are at all times responsible for the acts and omissions of your employees, contractors and agents, to the extent such persons are acting within the scope of their relationship with you.

You agree to defend Scalpel, our affiliates, and their respective employees, agents, and service providers (each a “Scalpel Entity”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against a Scalpel Entity, and you agree to fully reimburse the Scalpel Entities for any Claims that results from: (i) your breach of any provision of this Agreement; (ii) any Fees, Fines, Disputes, Refunds, Reversals, Returns, or any other liability we incur that results from your use of the Payment Processing Services; (iii) negligent or willful misconduct of your employees, contractors, or agents; or (iv) contractual or other relationships between you and Customers.

Important Note for Sole Proprietors: If you are using Services as a sole proprietor, please keep in mind that the Law and the terms of this Agreement consider you and your business to be legally one and the same. You are personally responsible and liable for your use of the Services, payment of Fees, Refunds, Reversals, Fines, losses based on Disputes or fraud, or for any other amounts you owe under this Agreement for your failure to use Security Controls, and for all other obligations to us and to your Customers. You risk personal financial loss if you fail to pay any amounts owed. Please take the time to read our Documentation and take any measures appropriate to protect against such losses.

7.) Representations and Warranties

By accepting the terms of this Agreement, you represent and warrant that: (a) you are eligible to register and use the Services and have the authority to execute and perform the obligations required by this Agreement; (b) any information you provide us about your business, products, or services is accurate and complete; (c) any Charges represent a Transaction for permitted products, services, or donations, and any related information accurately describes the Transaction; (d) you will fulfill all of your obligations to Customers and will resolve all Disputes with them; (e) you will comply with all Laws applicable to your business and use of the Services; (f) your employees, contractors and agents will at all times act consistently with the terms of this Agreement; (g) you will not use Payment Processing Services for personal, family or household purposes, for peer-to-peer money transmission, or (except in the normal course of business) intercompany Transactions; and (h) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.

8.) No Warranties





9.) Limitation of Liability

Under no circumstances will any Scalpel Entity be responsible or liable to you for any indirect, punitive, incidental, special, consequential, or exemplary damages resulting from your use or inability to use the Services or for the unavailability of the Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to this Agreement or your use of the Services, even if such damages are foreseeable, and whether or not you or the Scalpel Entities have been advised of the possibility of such damages. The Scalpel Entities are not liable, and deny responsibility for, any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorized access or use of the Services, your Scalpel Account, or Data, or your failure to use or implement anti-fraud measures, Security Controls, or any other data security measure. The Scalpel Entities further deny responsibility for all liability and damages to you or others caused by (a) your access or use of the Services inconsistent with the Documentation; (b) any unauthorized access of servers, infrastructure, or Data used in connection with the Services; (c) interruptions to or cessation of the Services; (d) any bugs, viruses, or other harmful code that may be transmitted to or through the Services; (e) any errors, inaccuracies, omissions, or losses in or to any Data provided to us; (f) third-party content provided by you; or (g) the defamatory, offensive, or illegal conduct of others.

You agree to limit any additional liability not disclaimed or denied by the Scalpel Entities under this Agreement to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the amount of Fees paid by you to Scalpel during the three-month period immediately preceding the event that gave rise to your claim for damages.

These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.

We provide the Services from facilities in the United States. We do not claim, and we cannot guarantee that Services we provide from the United States are or will be appropriate or available for any other location or jurisdiction, comply with the Laws of any other location or jurisdiction, or comply with Laws governing export, import, or foreign use.

10.) Responding to Legal Process

Scalpel may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, or other legal order (“Legal Process”) that we believe to be valid. We or any Third Party Provider (including, where applicable, the Payment Method Acquirer for the Payment Method) may deliver or hold any funds or, subject to the terms of our Privacy Policy, any Data as required under such Legal Process, even if you are receiving funds or Data on behalf of other parties. Where permitted by Law, we will make reasonable efforts to provide you Notice of such Legal Process by sending a copy to the email address we have on file for you. Scalpel is not responsible for any losses, whether direct or indirect, that you may incur as a result of our response or compliance with a Legal Process.

11.) Dispute Resolution; Agreement to Arbitrate

a. Binding Arbitration:

In the event that there is a dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from this Agreement, but specifically excluding any dispute principally related to either party’s intellectual property (which such dispute will be resolved in litigation before the United States District Court for the District of South Carolina), will be determined by arbitration in Greenville, South Carolina before a single arbitrator. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs), and in other cases in which the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply. The arbitrator will apply the substantive law of the State of South Carolina, exclusive of its conflict or choice of law rules. If the American Arbitration Association is no longer in business, or refuses or declines to administer any dispute between the parties brought before it, either party may petition the United States District Court for the District of South Carolina to appoint the arbitrator. Nothing in this paragraph will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to the terms of this Agreement.

Either party may commence arbitration by providing to the American Arbitration Association and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.

b. Service of Process:

Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by Law.

c. Class Waiver:

To the fullest extent permitted by Law, each of the parties agrees that any dispute arising out of or in connection with this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.

d. Provision of an Award:

Subject to the limitations of liability identified in this Agreement, the appointed arbitrators may award monetary damages and any other remedies allowed by the laws of the State of South Carolina. In making a determination, the arbitrator will not have the authority to modify any term or provision of this Agreement. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by a state or federal court located in Greenville, South Carolina. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.

e. Fees:

Each party will advance one-half of the fees and expenses of the arbitrators, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to this Agreement, the arbitrators will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.

f. Confidentiality:

The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by applicable Laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by Law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.

g. Conflict of Rules:

In the case of a conflict between the provisions of this Section E.11.g and the rules governing arbitration identified in Section E.11.a, the provisions of this Section E.11.g will prevail. If any provision of this Agreement to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by Law and all the other provisions will remain valid and enforceable.

12.) Entire Agreement

This Agreement and all policies and procedures that are incorporated by reference constitute the entire agreement between you and Scalpel for provision and use of the Services. Except where expressly stated otherwise in a writing executed between you and Scalpel, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services. This Agreement sets forth your exclusive remedies with respect to the Services. If any provision or portion of this Agreement is held to be invalid or unenforceable under Law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.

13.) Cumulative Rights, Construction, Waiver

The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement, along with all other rights and remedies available to it at Law, in equity or under the Payment Method Rules. No provision of this Agreement will be construed against any party on the basis of that party being the drafter. Unless expressly stated otherwise, the use of the term “including” or “such as” is not to be interpreted as limiting the generality of the text preceding the term. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.

14.) Survival

All provisions of this Agreement that give rise to a party’s ongoing obligation will survive termination of this Agreement, including Sections A.4 (“Your Relationship with Your Customers”), A.6 (“Taxes and Other Expenses”), A.8 (“Suspicion of Unauthorized or Illegal Use”), A.9 (“Disclosures and Notices; Electronic Signature Consent”), A.10.b (“Effects of Termination”), B.2 (“Ownership of Scalpel IP”), B.8 (“Disclaimers, Limitations, and Prohibitions”), C.4 (“No Agency; Third-Party Services”), C.5 (“Force Majeure”), C.6 (“Your Liability for Third-Party Claims Against Us”), C.7 (“Representations and Warranties”), C.8 (“No Warranties”), C.9 (“Limitation of Liability”), C.10 (“Responding to Legal Process”), C.11 (“Dispute Resolution; Agreement to Arbitrate”), C.12 (“Entire Agreement”), C.13 (“Cumulative Rights, Construction, Waiver”) and C.14 (“Survival”); and any related terms in the Agreement.

Contact Us:
Attn: Support
Scalpel Software, Inc.
31 Memorial Medical Drive
Greenville, SC 29605