Terms and Conditions
These Terms and Conditions ("T&Cs"), together with the signed Service Agreement (the "Service Agreement" and together with these T&Cs, the "Agreement"), are made and entered into on the date indicated as the Start Date in the Service Agreement with respect to the provision by SpineZone to the Customer with SpineZone Online (the "SpineZone Service"). The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements. Any term not defined herein shall have the meaning assigned to it in the Service Agreement.
- SpineZone Service. Subject to the Agreement, SpineZone shall provide Customer access to the SpineZone Service and shall grant Customer the right to use the SpineZone Service solely in connection with the services provided by SpineZone. To the extent SpineZone provides Customer any Software, SpineZone grants Customer a limited, revocable, nonexclusive, nontransferable and nonsublicensable license to install and use the Software solely as required in order to use the SpineZone Service, and any reference to the SpineZone Service shall include the Software. "Software" means any API, SDK, software, code, technology and any updates or new versions thereof that SpineZone may provide to Partner as part of the SpineZone Service.
- SpineZone Intellectual Property Rights & Restrictions. All intellectual property rights in the SpineZone Service and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with SpineZone. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the SpineZone Service, or any part thereof for any purpose; (ii) not represent that it possess any proprietary interest in the SpineZone Service; (iii) not directly or indirectly, take any action to contest SpineZone's intellectual property rights or infringe them in any way; (iv) except as specifically permitted hereunder, not use the name, trademarks, tradenames, and logos of SpineZone.
UNDER NO CIRCUMSTANCES WHATSOEVER WILL SPINEZONE BE LIABLE IN ANY WAY FOR ANY USE THEREOF IN ANY WAY, INCLUDING, WITHOUT LIMITATION, FOR ANY ERRORS OR OMISSIONS, OR FOR ANY INFRINGEMENT OF THIRD PARTY'S RIGHTS, LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OR DISPLAY OF ANY SPINEZONE’S SERVICE TRANSMITTED,UPLOADED OR OTHERWISE MADE AVAILABLE IN CONNECTION WITH THE SPINEZONE SERVICE. CUSTOMER SHALL INDEMNIFY AND HOLD SPINEZONE HARMLESS FROM ANY AND ALL CLAIMS OF WHATEVER NATURE AND KIND, BROUGHT IN ANY COURT OR TRIBUNAL ARISING FORM OR IN CONNECTION WITH THE USE OR DISPLAY OF THE SPINEZONE SERVICE OR RESULTING FROM SPINEZONE’S SERVICE.
- Confidentiality. During the term hereof, each party may have access to certain nonpublic proprietary, confidential or trade secret information or data of the other party, whether furnished before or after the Effective Date, and regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the "Confidential Information"). Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving party can demonstrate in itsrecords to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its, directors, officers, employees, advisors or consultants (collectively, the "Representatives") on a strict “need to know” basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief. The parties' obligations with respect to Confidential Information shall expire five years from the date of termination or expiration of this Agreement, unless a longer period of protection applies under applicable law, either as trade secret information or otherwise.
- Mutual Warranties. Each party represents and warrants that (i) this Agreement constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with the terms of this Agreement, and (ii) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
- Disclaimer of Warranties. SPINEZONE PROVIDES THE USAGE OF THE SPINEZONE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE OR ACCURACY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SPINEZONE DOES NOT WARRANT THAT THE SPINEZONE SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR FREE OR WITHOUT INTERRUPTION.
- Third Party Software. The Software may contain open source components. Such open source components are protected under copyright law and are licensed under specific license terms. Please see link for the applicable license terms of the open source components.
7.1. Customer's Indemnities. Customer shall defend, indemnify and hold harmless SpineZone, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to SpineZone.
7.2. SpineZone's Indemnities. SpineZone shall defend, indemnify and hold Customer harmless, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) pursuant to a third party claim arising out of an allegation that the SpineZone Service infringes any intellectual property right of a third party.
7.3. Indemnification Procedure. The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such claim; (b) sole control over the defense and settlement of such claim; and (c) information as may be reasonably requested by the indemnifying party. The indemnified party will have the right to approve the counsel selected by the indemnifying party for defense of any such claim, which approval will not be unreasonably withheld.
- Limitation of Liability. EXCEPT FOR INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT, MISREPRESENTATION OR FOR WILLFUL MISCONDUCT, SPINEZONE’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SPINEZONE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO SPINEZONE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL SPINEZONE BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SPINEZONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Taxes; Costs. Customer is solely responsible for payment of any taxes resulting from the use of the SpineZone Service. If any such taxes are required to be withheld, Customer shall pay an amount to SpineZone such that the net amount payable to SpineZone after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. Except as expressly provided in this Agreement, each party shall bear its own costs and expenses incurred in rendering performance of this Agreement.
- Term; Termination. This Agreement shall commence on the Start Date and shall remain in effect for the period stated in the Service Agreement. Either party may terminate this Agreement by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within 30 days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. Upon termination or expiration of this Agreement for any reason whatsoever, Customer will immediately cease use of the SpineZone Service and either party shall return to the other party all of the other party's Confidential Information then in its possession.
- Force Majeure. Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
- Governing law. This Agreement is governed by the laws of the State of California, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the courts of State of New York.
- Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written/verbal approval, which shall not be unreasonably withheld or denied. provided, that Customer hereby approves the display by SpineZone of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to SpineZone.
- Assignment. A party may not transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor of all assets of a party via a merger or acquisition of substantially all assets of the applicable party, subject to such successor's assumption of all rights and obligations hereunder. Any purported assignment contrary to this section shall be void.