Terms of Use_

Surgical Performance Pty Ltd (“SurgicalPerformance,” “we,” “us”)
Last updated: 31 July 2026
Related: Privacy Policy · HIPAA & Security · Sample BAA · Trust Center

1. Acceptance of these Terms
   Surgical Performance Pty Ltd (“SurgicalPerformance” or “we”) provides the content and services available on surgicalperformance.com and related websites and applications (including the clinician App, API, PROMS patient surveys, and related services) (collectively, the “Services” or “SurgicalPerformance Website”) subject to these Terms of Use (these “Terms” or this “Agreement”).
   By accessing or using the Services, or by clicking “join,” “I agree,” or a similar control, you agree to be bound by these Terms. If you do not agree, do not use the Services.
   These Terms incorporate:
   - the SurgicalPerformance Privacy Policy;
   - where applicable, the Business Associate Agreement (BAA) you accept electronically or in writing; and
   - any separate subscriber or institutional agreement between you and SurgicalPerformance.
   
   1.1 Order of precedence
   If there is a conflict:
   1. regarding Protected Health Information (PHI) or HIPAA obligations — the BAA controls;
   2. regarding other privacy practices — the Privacy Policy applies;
   3. for all other matters — these Terms control (or, if you have a separately negotiated subscriber agreement that expressly conflicts with these Terms, that subscriber agreement controls for the conflicting subject matter).

2. Definitions
   In these Terms:
   - “Patient Data” means any information relating to a patient that you or a patient submit to the Services, including identifiers (such as name and date of birth), clinical and outcomes data, and PROMS responses.
   - “BAA” means the Business Associate Agreement made available by SurgicalPerformance and accepted by you (electronically or in writing) when you are a US Covered Entity (or otherwise required by HIPAA to have a BAA with us).
   - “Privacy Policy” means the SurgicalPerformance Privacy Policy as updated from time to time.
   - “Licensed Materials” means the SurgicalPerformance databases, software, content, and related materials made available under your subscription.
   - “Subscriber” means the registered medical practitioner, practice entity, or Institution that holds the SurgicalPerformance subscription (including the person or entity that purchases or administers it).
   - “Authorised User” means an individual the Subscriber invites or permits to access the Services under that subscription — including the Subscriber themselves, other registered medical practitioners, and delegated staff (for example practice managers, nurses, administrative or research assistants) acting for the Subscriber.
   - “you” means: (i) a Subscriber; or (ii) an Authorised User accessing the Services under a Subscriber’s account or invitation (including through a subscription purchased by a hospital, medical school, practice, or other institution (“Institution”)).
   
   Where these Terms impose obligations about Patient Data, billing, BAA acceptance, or subscription management, those obligations apply primarily to the Subscriber (and any person accepting a BAA for a US location). Authorised Users must still comply with these Terms and use the Services only as authorised by the Subscriber. The Subscriber is responsible for Authorised Users’ access and for their acts and omissions in connection with the Services.

3. The SurgicalPerformance Website and Licensed Materials
   The SurgicalPerformance Website, including the text, graphics, and software that appear on it, is owned by Surgical Performance Pty Ltd and is subject to copyright and other intellectual property rights under Australian and foreign laws and international conventions.
   Users may not re-post SurgicalPerformance content on other websites, or otherwise use or publish such content, without our prior written permission. Users may not re-sell or otherwise deal with SurgicalPerformance’s content to third parties, or prepare derivative works, without our prior written permission.
   
   3.1 Permission to reproduce
   Permission to reproduce material from the SurgicalPerformance service in another publication or website must be secured in writing. To request permission, email [email protected] and include:
   - Title of the topic review or figure (figure titles can be found in the outline of each topic review)
   - The title of the topic review in which a requested figure appears
   - The format in which the material will be reproduced (e.g. print, CD, Internet)
   - Title, publisher, author/editor, and publication date for the publication in which the figure and/or topic review will be reproduced
   
   3.2 Allowed uses
   SurgicalPerformance encourages use of its content for clinical, educational, or research use. Such material should be printed directly from the SurgicalPerformance service so that the copyright statement is visible and must be given free of charge. Users may email individual topic reviews and graphics to others, including patients and colleagues, as permitted by the website’s functionality.
   We reserve the right to limit or suspend your use of the Services, by electronic self-help or other means and without notice, if we believe you have committed a breach of security or violated these Terms, subject only to any terms in your subscriber agreement, as applicable. SurgicalPerformance reserves all rights in the Services not expressly granted to you by these Terms.

4. License and subscription
   4.1 License grant
   In consideration of payment of the applicable subscription fee (if any) and acceptance of this Agreement, SurgicalPerformance grants you a non-exclusive, non-transferable license and right to use and access the Licensed Materials in accordance with the applicable subscription terms.
   
   4.2 Individual subscription
   An individual subscription is held by a Subscriber (typically a registered medical practitioner or their practice entity). It permits the Subscriber and any Authorised Users they invite under that subscription (including delegated staff) to access and use the Licensed Materials, each with their own credentials where the product supports multi-user access, from any location via the Internet, solely for the Subscriber’s clinical, educational, or research purposes. The Subscriber remains responsible for Authorised Users and for compliance with these Terms, the Privacy Policy, and any applicable BAA.
   
   4.3 Institutional subscription
   An Institutional Subscription permits Authorised Users who are employed by or affiliated with the relevant Institution (including clinicians and delegated staff authorised by the Institution) to access and use the Licensed Materials as validated by SurgicalPerformance, but only for the clinical, educational, or research purposes of the Institution. The Institution (as Subscriber) remains responsible for its Authorised Users.
   
   4.4 Ownership
   The Licensed Materials, including without limitation all copyrights and other intellectual property rights therein, are the sole and exclusive property of SurgicalPerformance (or its parents, subsidiaries, affiliates, or designees). By accepting these Terms, you do not become the owner of the Licensed Materials; you are entitled only to use them according to this Agreement.
   
   4.5 Subscription term
   You obtain the right to use and access the Licensed Materials for the subscription period for which you or your Institution have agreed to pay subscription fees. At the end of that period, your license and associated rights (such as technical support) will continue automatically unless you or your Institution cancel on SurgicalPerformance’s then-current terms. If you do not pay, your subscription may expire. SurgicalPerformance may embed technology causing the Licensed Materials to become inaccessible after your subscription term. This Agreement and your license also terminate if you fail to comply with any term of this Agreement.
   
   4.6 Restriction against transfer
   You may not sublicense, assign, share, sell, rent, lease, or otherwise transfer your right to use the Licensed Materials, whether by merger, operation of law, or otherwise (except as expressly permitted for Institutional Subscriptions under our validation rules).

5. Patient Data, PHI, and BAA
   5.1 Patient Data by design
   The Services are designed to allow you to enter Patient Data, which may include identifiable information such as patient name and date of birth, for outcomes tracking, reporting, and PROMS. The Services are not limited to non-identifiable or anonymous patient records.
   You represent and warrant that:
   (a) you are authorised to collect and upload Patient Data to the Services;
   (b) you have provided any notices and obtained any consents required by applicable law (including Australian privacy law and, where applicable, HIPAA);
   (c) you will not upload Patient Data you are not permitted to process; and
   (d) if you are a US Covered Entity (or otherwise subject to HIPAA as a Covered Entity), you will not submit PHI to the Services until you have accepted the BAA, and you will comply with the BAA.
   
   5.2 BAA acceptance (US locations)
   Where HIPAA applies because you create or use a US location, acceptance of the BAA is a condition of submitting PHI for that location. Electronic acceptance is required when you create a US location during signup or setup. Acceptance (including BAA version and timestamp) forms part of your agreement with SurgicalPerformance. We may prevent entry of Patient Data for that location until the BAA is accepted.
   
   5.3 PROMS and patient communications
   If you enable PROMS or other patient messaging, you are responsible for the content and lawfulness of communications to patients (including SMS/email), and for ensuring contact details you provide are accurate and permitted for that use.
   
   5.4 Research, benchmarking, and de-identification
   SurgicalPerformance may create de-identified and aggregated datasets from Service data for benchmarking, product improvement, and research, as described in the Privacy Policy and (where applicable) the BAA. Identifiable Patient Data will not be published.

6. Use of professional judgment
   The providers of the Licensed Materials have conscientiously and carefully created a system for performance review and feedback for individual users and/or institutions, including where users enter identifiable Patient Data. The system is intended as a tool from medical professionals for medical professionals.
   The Licensed Materials should not be used to display a user’s performance to third parties without authorisation; they are intended to provide individual users feedback on their individual or department’s performance. The Licensed Materials do not designate “good” or “bad” doctors. Assessment of performance is based on standards of professional practice at the time of publication and may change as new evidence becomes available.
   SurgicalPerformance is not suitable as a tool for medical decision-making for an individual patient. The information provided is no substitute for individual patient assessment, diagnosis, and treatment based upon the healthcare provider’s examination of each patient and consideration of laboratory data and other factors unique to the patient. Individual and unique circumstances may influence management options outside the “normal” scope of diagnosis and treatment. SurgicalPerformance does not express an opinion about the quality of diagnosis or treatment provided by users.

7. Subscriber accounts and security
   If you create a subscriber account, you agree to complete registration with current, complete, and accurate information as required. You are responsible for all activities that occur under your account.
   You must:
   - keep credentials confidential and not share accounts;
   - use appropriate access controls for any Authorised Users / staff you authorise, and promptly revoke access when no longer needed; and
   - promptly notify SurgicalPerformance of any unauthorised use of your account, suspected unauthorised access, or other security incidents involving your account or Patient Data.
   Subscribers remain responsible for Authorised Users’ compliance with these Terms.
   SurgicalPerformance will not be liable for any loss you may incur as a result of someone else using your account, with or without your knowledge. You may be held liable for losses incurred by SurgicalPerformance or another party due to someone else using your account. You may not use anyone else’s account at any time.

8. Privacy
   These Terms incorporate the SurgicalPerformance Privacy Policy. Additional practices for PHI and security incidents are described in the HIPAA & Security Policy.

9. No unlawful use
   You agree not to use the Services for any purpose that is unlawful or prohibited by these Terms or any subscriber agreement. You may not use the Services in any manner that could damage, disable, overburden, or impair any SurgicalPerformance server or network, or interfere with any other party’s use. You may not attempt to gain unauthorised access to any portion of the Services, other accounts, systems, or networks through hacking, password or data mining, or any other means. You may not obtain materials or information through any means not intentionally made available to you.

10. Suspension, termination, and data handling
    On termination or account closure, your license ends. Handling of Patient Data (including return or deletion) will follow the Privacy Policy and, where applicable, the BAA. We may suspend access for security, legal, or material breach reasons, including failure to accept or comply with a required BAA.

11. No warranties
    SUBJECT TO APPLICABLE LAWS, NEITHER SURGICAL PERFORMANCE, NOR ANY PARENT, SUBSIDIARY, AFFILIATE, DIRECTOR, EMPLOYEE, LICENSOR, LICENSEE, DISTRIBUTOR, SUPPLIER, AGENT, OR RESELLER OF SURGICALPERFORMANCE (COLLECTIVELY, THE “SURGICALPERFORMANCE ENTITIES”) MAKE ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SURGICALPERFORMANCE SERVICES, WHICH ARE PROVIDED “AS IS”, OR WITH RESPECT TO THESE TERMS. THE SURGICALPERFORMANCE ENTITIES EXPRESSLY EXCLUDE AND DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE. ANY STATEMENTS OR REPRESENTATIONS MADE BY ANY OTHER PERSON OR ENTITY ARE VOID. YOU ASSUME ALL RISK AS TO THE QUALITY, FUNCTION, AND PERFORMANCE OF THE SERVICES.
    
    In addition, the Services may include technical inaccuracies or typographical errors. SurgicalPerformance has the right at any time to change, modify, add to, discontinue, or retire any aspect or feature of the Services, including hours of availability, equipment needed for access, or availability on any particular device or communications service. SurgicalPerformance has no obligation to provide notice of such changes, and is under no obligation to provide support, error corrections, updates, upgrades, bug fixes, and/or enhancements, except as provided by your subscriber agreement, if applicable.
    Limited warranty (media): If media supplied by SurgicalPerformance containing the Licensed Materials is defective, such media will be replaced without charge if returned within 60 days after payment of the license fee. Except as set forth in that sentence, the Licensed Materials are licensed “AS IS” as stated above.

12. Limitation of liability
    IN NO EVENT WILL THE SURGICALPERFORMANCE ENTITIES OR ANY OTHER PARTY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DISTRIBUTION, PROMOTION, OR MARKETING OF THE SERVICES OR THESE TERMS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR PROFITS, OR FOR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
    IN NO EVENT SHALL SURGICALPERFORMANCE’S OR SUCH OTHER PARTY’S LIABILITY FOR ANY DAMAGES OR LOSS TO YOU OR ANY OTHER PARTY EXCEED THE LICENSE FEE PAID FOR THE LICENSED MATERIALS FOR THE SUBSCRIPTION PERIOD IN WHICH THE CLAIM AROSE.
    
    You agree that this Agreement shall not be subject to the United Nations Convention on Contracts for the International Sale of Goods.

13. Indemnification
    You agree to defend, indemnify, and hold harmless the SurgicalPerformance Entities from all liabilities, claims, and expenses, including legal fees, that arise from your use of the Services (including your upload or processing of Patient Data in breach of these Terms or applicable law). SurgicalPerformance reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting available defences. You agree that, in the event we need to exercise this right, you may be liable for reasonable legal costs we incur.

14. Modifications
    SurgicalPerformance may modify these Terms from time to time; changes will be effective upon posting to the SurgicalPerformance Website (or upon in-product acceptance where we require it). You agree to be bound by modifications when you continue to use the Services after posting. Review these Terms regularly. Material changes affecting PHI handling may also be communicated as required by the Privacy Policy or BAA.

15. Claim of copyright infringement
    SurgicalPerformance respects the intellectual property of others. If you believe that your copyrighted work has been copied and is accessible on the Services in a way that constitutes copyright infringement, send a notification to our designated agent with:
    the electronic or physical signature of the owner of the copyright or the person authorised to act on the owner’s behalf;
    a description of the copyrighted work claimed to have been infringed and a description of the infringing activity;
    identification of the location where the original or an authorised copy exists;
    identification of the URL or other specific location on this site where the allegedly infringing material is located;
    your name, address, telephone number, and email address;
    a statement that you have a good faith belief that the disputed use is not authorised by the copyright owner, its agent, or the law; and
    a statement under penalty of perjury that the information in your notice is accurate and that you are the copyright owner or authorised to act on the owner’s behalf.
    Designated agent: [email protected]. This contact is only for reporting copyright infringement.

16. Trademarks
    All SurgicalPerformance trademarks are owned by Surgical Performance Pty Ltd and may not be used for any purpose without prior written permission.

17. Giveaway terms and conditions
    From time to time, SurgicalPerformance may run promotional giveaways offering a free annual or limited-time subscription. Participation is subject to:
    Eligibility & entry — as stated in the specific giveaway details.
    Minimum participation — a minimum of 10 valid respondents must participate for the giveaway to proceed; otherwise we may withhold the prize, extend, or cancel.
    Winner selection & notification — as outlined in the announcement; if a winner does not respond within 7 days, we may select an alternative.
    Non-transferable; no cash alternative.
    Changes & discretion — we may modify, suspend, or terminate any giveaway without prior notice if unforeseen circumstances arise.
    By participating, entrants agree to these giveaway terms.

18. General
    If any provision of this Agreement is determined to be invalid or unenforceable under any applicable law, it shall be deemed omitted and the remaining provisions shall continue in full force and effect. This Agreement may be modified only as provided in Section 14 (or in a writing authorised by SurgicalPerformance). SurgicalPerformance’s waiver of any right shall not constitute a waiver of that or any other right in the future.
    Governing law. This Agreement shall be governed by and construed in accordance with the laws of Australia and the State of Queensland.
    
    This Agreement (together with the Privacy Policy and, where applicable, the BAA and any expressly conflicting negotiated subscriber agreement) constitutes the entire understanding between the parties with respect to the subject matter hereof, and all prior agreements, representations, statements, and undertakings, oral or written, are superseded and cancelled — except that an accepted BAA remains in force according to its terms.
    
    Questions: [email protected]
    SurgicalPerformance Pty Ltd