BIOMET OPERATING SYSTEM USER AGREEMENT
This Biomet Operating System User Agreement (“Agreement”) is a binding agreement between you and Biomet Manufacturing Corp. (“Biomet”) governing your access to and use of the Biomet Operating System (the “System,” as further described in Article 1, below).
BY CLICKING THE “ACCEPT” BUTTON FOR THIS AGREEMENT, OR BY ACCEPTING ANY MODIFICATION TO THIS AGREEMENT IN ACCORDANCE WITH ARTICLE 9 BELOW, OR BY OTHERWISE ACCESSING AND USING THE SYSTEM OR ANY COMPONENTS OF THE SYSTEM, YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. Any questions or concerns regarding the terms and conditions of this Agreement should be addressed to Biomet by you or your legal counsel, using the contact information set forth in Article 8, prior to acceptance of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, such as your medical practice or the company you work for, you hereby represent that you have the legal authority to bind the legal entity to this Agreement, in which case “You” (and “Your”) shall refer to you and the legal entity, individually and jointly. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE “DECLINE” BUTTON AND YOU MAY NOT ACCESS OR USE THE SYSTEM.
1 THE SYSTEM AND SYSTEM ACCESS
1.1 Description of the System. You may access and use the System in accordance with this Agreement, for the purposes of assisting You with the planning and case tracking of certain types of orthopedic implants for use in surgical procedures, consistent with sound clinical practice. The System consists of the computer facilitated orthopedic implant planning and case tracking services provided by Biomet at www.ops.beta.biomet.com (“System Website”), and related support documentation and services. The System allows the storage and retrieval of information regarding planned orthopedic procedures for individual patients. Subject to Article 6, such data will be retrievable for up to 1 year after the date identified for the patient in the System. Biomet may make available to You, for installation, copying, and use in connection with the System, from time to time, a variety of software, data, and other content and printed and electronic documentation (all such materials except those specifically made available by Biomet under separate license terms, the “Biomet Works”). Biomet Works may include:
· application programming interfaces (“APIs”);
· articles and documentation for use in connection with the use and implementation of the System;
· specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of the System and its related APIs and other technology;
· templates and images for use in identifying and assessing orthopedic implants;
· textual materials made available as part of the System, including descriptions of orthopedic implants; and
· other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video.
1.2 System Updates and Access. It is understood that Biomet may update, add, delete or otherwise modify features and functionality of the System from time to time, at its sole discretion, with or without notice to You. In particular, Biomet may change, deprecate, or republish APIs from time to time. It is Your responsibility to ensure that computer hardware, software and other equipment used by You for accessing and operation of the System is compatible with then-current APIs and other components of the System.
1.3 Accounts. Your access to the System will be through a user account (“Account”) established in response to Your request at the System Website, according to the terms of this Agreement and such other terms and conditions as may be established by Biomet. Access to Your Account and the System will be controlled by use of Account Identifiers, consisting of a user identification and a password. The user identification will be an e-mail address that You provide during registration of Your Account. Only one Account can be associated with an individual e-mail address. Upon receipt of Your properly submitted request for an Account, Biomet will provide You with a password. You may change Your password after logging in to Your Account on the System Website. Your Account Identifiers are for Your personal use only, and You may not sell, transfer, sublicense or otherwise disclose Your Account Identifiers to any other party. You are solely responsible for maintaining the secrecy and security of the private key; it is understood that disclosure of Your Account Identifiers to a third party may compromise the confidentiality and integrity of any information you submit to the System, including Your Content (as described in Section 1.5 below). You are solely responsible for all activities that occur under Your Account Identifiers, regardless of whether such activities are undertaken by You or a third party. Therefore, You should contact Biomet immediately if You believe a third party may be using Your password, or if Your password is otherwise lost or stolen. You are responsible for maintaining up-to-date and accurate information (including contact information) for Your Account. Biomet is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss, or failure to store any of Your Content or other data which You submit or use in connection with Your Account or the System.
1.4 Access to Your Account. You will not permit or otherwise facilitate access to the System other than by individuals authorized to access the system pursuant to a valid Account. You are responsible for all activities that occur under Your Account, regardless of whether the activities are undertaken by You, Your employees or a third party (including Your contractors or agents) and, except to the extent caused by Biomet’s breach of this Agreement, Biomet and its affiliates are not responsible for unauthorized access to Your Account.
1.5 Your Content. It is understood that, during use of the System, You may create content regarding, for example, specific patients, disorders, diagnostic information, implant templates, implants, and information regarding You and Your clinical practice. Such content, (herein, “Your Content”) includes all such information and all other applications, data, or other content that You may (a) run using the System, (b) cause to interface with the System, upload to the System under Your Account or otherwise transfer, process, use or store in connection with Your Account; (c) provide to Biomet pursuant to this Agreement, (d) make available to any other users in conjunction with Your use of the System, and (e) otherwise develop or use in connection with the System. You are solely responsible for the development, content, operation, maintenance and use of Your Content, including the selection of the appropriate implants for Your patients. Your Content must be created and used in accordance with the terms of this Agreement. For example, You are solely responsible for compliance of Your Content with this Agreement and all applicable laws and regulations, and for any claims by third parties regarding Your Content.
2 AUTHORIZATION, LICENSE TO USE THE SYSTEM, AND LIMITATIONS
2.1 Limited License to You. Subject to acceptance of this Agreement by You, and ongoing compliance with the terms and conditions of this Agreement, including establishment of an Account pursuant to Section 1.3, above, Biomet hereby grants You access to the System and associated Biomet Works, and grants You, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term (as defined in Section 6.1, below), under Biomet’s intellectual property rights in the Biomet Works, only to install, copy, and use the Biomet Works solely in connection with and as necessary for Your use of the System and solely to the extent such installation, copying and use is in compliance with all the terms and conditions of this Agreement, including the restrictions set forth in Section 2.2, below.
2.2 Limitations on Use. Unless otherwise expressly authorized under this Agreement, You will comply with the following restrictions regarding access to and use of the System.
(a) You will not interfere or attempt to interfere in any manner with the functionality or proper working of the System.
(b) You will not, and will not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software or other Biomet Works comprising the System. In the event such a derivative work is created, You hereby grant Biomet an exclusive, worldwide, royalty-free license to such derivative works.
(c) You will not, and will not attempt to, reverse-engineer, disassemble, or decompile the Biomet Works or the System or apply any other process or procedure to derive the source code of any software included in or accessed via the Biomet Works.
(d) You will not resell or sublicense access to the System or use of the Biomet Works.
(d) You will not use any trademark, service mark, trade name, or other business identifier of Biomet or its affiliates unless You obtain Biomet’s prior written consent.
(e) You will not remove, obscure, or alter any notice of any trademark, copyright, or other intellectual property or proprietary right designation appearing on or contained within the System or Biomet Works.
For avoidance of doubt, it is understood that all licenses granted to You in this Agreement are conditional on Your continued compliance with this Section 2.2, as well as all other terms and conditions of this Agreement, and will immediately and automatically terminate if You do not comply with any term or condition of this Agreement.
2.3 Validation of Planning Values. Before we can engage in designing and/or manufacturing an output of the System, you are required to review and validate the proposed plan by no later than the defined date which shall be provided for each case. Unless otherwise specified, if we receive no response from you by this referenced date, validation of the plan as proposed shall automatically be deemed to have been given by you effective as of this date, and the output of the System will be designed, manufactured, and assembled accordingly.
Neither Biomet nor any of its representatives, vendors, manufacturers, suppliers, distributors, sales representatives, employees, subsidiaries, divisions, affiliates and/or partners involved in the design and/or manufacture of any output of the System, shall in any way be liable for such design and/or manufacture in accordance with the validated plan, regardless of whether such validation is expressly given by you or deemed to have been given by passage of the defined date without response from you.
You will be provided with a visualization of standard default planning algorithms. These default planning algorithms will be updated from time to time. You will be notified in writing of such changes of the preferences and adjustments to the standard default planning algorithms, if any. Default fine tuning values for the planning algorithms are assigned to each surgeon. These values can be verified and adjusted to your personal preferences by clicking on the “Surgical Preferences” menu within the “Account Management” section of the Biomet Operating System. Biomet reserves the right to adjust the default values at any time and will notify you of any applicable change.
Please note that by accessing, viewing or otherwise using the System, you acknowledge at all times that:
1. Biomet is the designer and manufacturer of the System outputs.
2. Certain of Biomet’s representatives, vendors, manufacturers, suppliers, distributors, sales representatives, employees, subsidiaries, divisions, affiliates and/or partners may be involved in the design and/or manufacture of the System outputs.
3. Neither Biomet, nor any of its representatives, vendors, manufacturers, suppliers, distributors, sales representatives, employees, subsidiaries, divisions, affiliates and/or partners practices medicine or engages in the determination of any individualized patient selection and/or surgical planning factors.
4. The surgeon who performs any procedure is responsible for any and all individualized patient selection and/or surgical planning determinations.
5. Neither Biomet, nor any of its representatives, vendors, manufacturers, suppliers, distributors, sales representatives, employees, subsidiaries, divisions, affiliates and/or partners is responsible for any patient selection and/or surgical planning determinations of any kind, regardless of whether those determinations were made correctly or incorrectly by the surgeon.
6. It is the responsibility of the surgeon to be thoroughly familiar with the System, the planning and the latest values for the planning algorithms, any output of the System and any other Biomet product(s) which may be used in connection with the output(s), to have reviewed and understood any and all pertinent product inserts, and to have appropriately conveyed pertinent warnings and/or adverse effects set forth therein to each individual patient.
3 INTELLECTUAL PROPERTY
3.1. Reserved Rights in The System and the Biomet Works. Other than the limited use and access rights and licenses expressly set forth in Articles 1 and 2, above, Biomet reserves all right, title, and interest (including all intellectual property and proprietary rights) in and to: (a) the System; (b) the Biomet Works; (b) associated Biomet trademarks; and (c) any other technology and software that Biomet provides or uses to provide the System and the Biomet Works, including all modifications of the System and Biomet Works that may be made during the Term. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the System, the Biomet Works, the trademarks, or other software, technology, works of authorship, information, and intellectual property rights (including third party technology and software), except for the limited use and access rights described in this Agreement.
3.3 Feedback. In the event You elect, in connection with Your access to or use of the System, to communicate to Biomet feedback, suggestions, comments or other input regarding the System, such as regarding potential improvements to the System or the Biomet Works, (collectively, “Feedback”), Biomet hereby owns all right, title, and interest in and to such Feedback, and Biomet is hereby entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title, and interest in and to the Feedback to Biomet, and agree to provide Biomet such assistance as Biomet may require to document, perfect, and maintain Biomet’s rights to the Feedback.
3.4 Non-Assertion. During and after the term of the Agreement, You will not assert, nor will authorize, assist, or encourage any third party to assert, against Biomet or any of Biomet’s customers, end users, vendors, business partners, licensors, sublicensees, or transferees, any patent infringement or other intellectual property infringement claim with respect to the System.
3.5 Confidentiality. From time to time, it may be necessary for Biomet to disclose to You certain Confidential Information regarding the System or other Biomet products and services which Biomet regards as confidential. You shall not disclose such Confidential Information to any third party, and shall use such information only for the purposes of Your use of the System, during the Term or at any time during the three (3)-year period following the end of the Term. “Confidential Information” means all nonpublic information disclosed by Biomet, or by Biomet’s business partners, agents or contractors, that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information does not include any information that (a) is or becomes publicly available without breach of this Agreement; (b) You can demonstrate, by documentation, to have known prior to receipt from Biomet; (c) You lawfully receive from a third party, which was not acquired from Biomet under a confidentiality obligation; (d) You can demonstrate, by documentation, to have independently developed; or (e) You are required to disclose by law.
4 REPRESENTATIONS AND WARRANTIES; DISCLAIMERS; LIMITATIONS OF LIABILITY
4.1 Use of the System. You represent and warrant that You will not use the System, Biomet Works, and Your Content: (a) in a manner that infringes, violates, or misappropriates any rights of Biomet or any third party; (b) to engage in impermissible advertising, marketing, or other activities, (c) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms, or other data that are subject to export; (d) in a manner in violation of any applicable law and regulation regarding the collection, storage and dissemination of personal data and information, including the U.S. Health Insurance Portability and Accountability Act of 1996 (“herein HIPAA”); Pub.L. 104-191, 110 Stat. 1936, enacted August 21, 1996) and European Union Directive 95/46/EC regarding the protection of individuals with regard to the processing of personal data and on the free movement of such data; or (e) in any other way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
4.2 Applications and Your Content. You represent and warrant: (a) that You are solely responsible for the development, operation, and maintenance of Your Content, including without limitation, the accuracy, security, appropriateness and completeness of Your Content and all product-related materials and descriptions; (b) that You have the necessary rights and licenses, consents, permissions, waivers, and releases to use and display Your Content; (c) that Your Content (i) does not violate, misappropriate, or infringe, any rights of Biomet or any third party, (ii) does not constitute defamation, invasion of privacy, or publicity, or otherwise violate any rights of any third party; (iii) is obtained and used in compliance with all applicable laws and regulations; (iv) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, use in a manner that might be libelous or defamatory or otherwise malicious, illegal, or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; and (d) that Your Content does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
4.3 Authorization and Account Information. You represent and warrant that: (a) the information You provide in connection with Your Account and registration for the System is accurate and complete; and (b) if You are registering for the System as a legal entity, that (i) You are duly authorized to do business and practice medicine in the jurisdiction(s) where You operate, (ii) the individual clicking “Accept” on this Agreement and completing the registration for the System is Your authorized representative, and (iii) Your employees, officers, representatives, and other agents accessing the System are duly authorized to access the System and to legally bind You to this Agreement and all transactions conducted under Your Account.
4.4 Your Responsibility for Practice of Medicine. You understand and agree that:
(a) the System is intended to assist You with Your determination of the appropriate implant for Your patient(s) and is not intended to replace the exercise of Your independent professional medical judgment;
(b) neither Biomet, nor any of its representatives, vendors, manufacturers, suppliers, distributors, sales representatives, employees, subsidiaries, divisions, affiliates and/or partners practices medicine or engages in the determination of any individualized patient selection and/or surgical planning factors;
(c) neither Biomet, nor any of its representatives, vendors, manufacturers, suppliers, distributors, sales representatives, employees, subsidiaries, divisions, affiliates and/or partners is responsible for any patient or product selection and/or surgical planning determinations of any kind whatsoever, regardless of whether You have made such determinations correctly or incorrectly; and
(d) it is Your sole responsibility to be thoroughly familiar with System, devices selected using the System, and any other Biomet or any other product(s) which may be used in connection with any medical procedure, to have reviewed and understood any and all pertinent product inserts, to have appropriately conveyed pertinent warnings and/or adverse effects set forth therein to each individual patient, and to have obtained all appropriate informed consents for medical procedures.
4.5 Disclaimers. BIOMET WORKS, THE SYSTEM, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS, AND OTHER DATA OR INFORMATION PROVIDED BY BIOMET OR BIOMET’S LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS.” BIOMET AND BIOMET’S LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, BIOMET AND BIOMET’S LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. BIOMET AND BIOMET’S LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR ARE FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. BIOMET AND BIOMET’S LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM BIOMET OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
4.6 Responsibility for Your Content and Use of System. In addition to the foregoing, Biomet specifically disclaims all liability, and You understand agree that You are solely responsible for the development and use of Your Content and access and use of the System. You will, without limitation, be solely responsible for:
(a) the technical operation of software and equipment You provide for access to and use of the System;
(b) the accuracy and appropriateness of Your Content, including all patient-related information used in the diagnosis, assessment, selection, determination, and performance of procedures and products; and
(c) any claim by, or on behalf of, third parties, including patients, relating to any use of the System whatsoever, including regarding the diagnosis of any disorder, selection of product or implants, and associated surgical procedures.
4.7 Limitations of Liability. NEITHER BIOMET NOR ANY OF BIOMET’S LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER LOSSES (EVEN IF BIOMET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SYSTEM; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (c) THE SELECTION OF IMPLANTS; OR (d) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, BIOMET’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO $500 (FIVE HUNDRED DOLLARS). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
5.1 Indemnification. You hereby agree to indemnify, defend, and hold Biomet, Biomet’s affiliates, licensors, business partners and their respective employees, officers, directors, and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs, and expenses (including reasonable attorney’s fees), arising out of or in connection with any claim arising out of (a) Your use of the System or Biomet Works in a manner not authorized by this Agreement, or in violation of applicable law, (b) Your Content, including any claim involving infringement or misappropriation of third-party rights, or the development or use of Your Content, (c) Your violation of any term or condition of this Agreement, including Your representations and warranties, or (d) negligence or willful misconduct by You or Your employees or agents, including negligence or willful misconduct that may arise as a result of medical procedures based on information derived from the System.
5.2 Notification. Biomet will make reasonable attempts to notify You of any claim subject to indemnification. However, Biomet’s failure to notify You will not affect Your obligations hereunder except to the extent that Biomet’s failure to promptly attempt to provide You with notification delays or prejudices Your ability to defend the claim. At Biomet’s option, You will have the right to defend against any such claim with counsel of Your own choosing (subject to Biomet’s written consent) and to settle such claim as You deem appropriate, provided that You will not enter into any settlement without Biomet’s prior written consent and provided that Biomet may, at any time, elect to take over control of the defense and settlement of the claim.
6 TERM, TERMINATION, AND SUSPENSION
6.1 Term. The term of this Agreement (“Term”) will commence, and You may begin using the System, once You agree to the terms and conditions of this Agreement by clicking the “Accept” button and complete the registration process for a valid Account. The Agreement will remain in effect until terminated by You or Biomet in accordance with Article 6.
6.2 Termination by You. You may terminate this Agreement for any reason or no reason at all, at Your convenience, by (a) providing Biomet with written notice of termination in accordance with Article 8, below, and (b) closing Your Account.
6.3 Termination or Suspension by Biomet Other Than for Cause. Biomet may suspend Your right and license to use the System and any associated products, in whole or in part, and may terminate this Agreement in its entirety (and, accordingly, cease providing all aspects of the System), for any reason or for no reason, at Biomet’s discretion at any time, with or without notice.
6.4 Termination or Suspension by Biomet for Cause. Notwithstanding the provisions of Section 6.3, Biomet may suspend Your right and license to use the System or any component thereof, or may terminate this Agreement in its entirety (and, accordingly, Your right to use the System), for cause effective:
(a) immediately upon notice to You in accordance with the notice provisions set forth in Article 8, below, if: (a) You attempt a denial of service attack on any of the System; (b) You seek to hack or break any security mechanism on any of the System or Biomet otherwise determines that Your use of the System poses a security or service risk to Biomet or to any services offered by Biomet, or may subject Biomet or any third party to liability, damages or danger; (c) You otherwise use the System in a way that disrupts or threatens the System; (e) Biomet determines, in its sole discretion, there is evidence of fraud with respect to Your Account; (f) You use any of the Biomet Works other than as expressly permitted herein; (g) Biomet receives notice or Biomet otherwise determines, in its sole discretion, that You may be using the System for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (h) Biomet determines, in its sole discretion, that providing the System or any component part is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or
(b) five (5) days following Biomet’s provision of notice to You in accordance with the notice provisions set forth in Article 8 if You breach any other provision of this Agreement and fail, as determined by Biomet, in its sole discretion, to cure such breach within such five-day period.
6.5 Effect of Suspension or Termination. Upon suspension of Your use of the System, in whole or in part, for any reason, all of Your rights with respect to the applicable part or parts of the System will be terminated during the period of the suspension. Upon termination of this Agreement for any reason, all of Your rights under this Agreement will immediately terminate.
6.6 Survival. In the event this Agreement is terminated for any reason, Articles 3, 4, and 5 of this Agreement will survive any such termination.
6.7 Data Preservation in the Event of Suspension or Termination. In the event of a suspension of Your access to the System for any reason other than a for cause suspension under Section 6.4, during the period of suspension, Biomet will not take any action to intentionally erase any of Your data stored on the System (However, subject to the provisions of Section 3.2, Your Content regarding any individual patient will be deleted within one (1) year after the date of surgery identified for the patient in the System.) In the event of any termination by Biomet of any service or any part of System, or termination of this Agreement in its entirety, other than a for cause termination under Section 6.4, (i) Biomet will not take any action to intentionally erase any of Your data stored on the System for a period of 30 days after the effective date of termination; and (ii) Your post-termination retrieval of data stored on the System will be conditioned on Your compliance with terms and conditions Biomet may establish with respect to such data retrieval. Except as provided in herein, Biomet will have no obligation to continue to store Your data during any period of suspension or termination or to permit You to retrieve such data.
7 DOWNTIME AND SERVICE SUSPENSIONS
In addition to Biomet’s rights to terminate or suspend Your access to the System as described in Article 6 above, You acknowledge that: (a) Your access to and use of the System may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the System for any reason, including as a result of power outages, system failures, or other interruptions; and (b) Biomet will also be entitled, without any liability to You, to suspend access to any portion or all of the System at any time, on a system-wide basis: (i) for scheduled downtime to permit Biomet to conduct maintenance or make modifications to any aspect of the System; (ii) in the event of a denial of service attack or other attack on the System or other event that Biomet determines, in its sole discretion, may create a risk to the System, to You, or to any of Biomet’s other customers if access to the System were not suspended; or (iii) in the event that Biomet determines that any aspect of the System is prohibited by law or Biomet otherwise determines that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Biomet will have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that You may incur as a result of any Service Suspension. To the extent reasonably possible, Biomet will endeavor to provide You with an e-mail notice of any Service Suspension in accordance with the notice provisions set forth in Article 8 below and to post updates on the System Website regarding resumption of System following any such suspension, but Biomet will have no liability for the manner in which it may do so or it fails to do so.
8.1 Notices to You. Except as otherwise set forth herein, notices made by Biomet to You under this Agreement that affect Biomet’s customers generally (e.g., notices of updated fees, etc.) will be posted on the System Website. Notices made by Biomet under this Agreement regarding You or Your Account specifically (e.g., notices of breach and/or suspension) will be provided to You via the e-mail address provided to Biomet in Your registration for Your Account or in any updated e-mail address You provide Biomet in accordance with standard account information update procedures that Biomet may provide from time to time. It is Your responsibility to keep Your e-mail address current and You will be deemed to have received any e-mail sent to any such e-mail address, upon Biomet’s sending of the e-mail, whether or not You actually receive the e-mail.
8.2 Notices to Biomet. For notices made by You to Biomet under this Agreement and for questions regarding this Agreement or the System, You may contact Biomet as follows:
Attn: Signature Department Administrator
56 East Bell Drive
Warsaw, IN USA 46581
9 MODIFICATIONS TO THIS AGREEMENT
Biomet may modify this Agreement at any time by posting a revised version of the Agreement on the System Website. The revised terms shall be effective immediately upon posting. By continuing to access or use the System after the effective date of any revisions to this Agreement, You agree to be bound by the revised Agreement. It is Your responsibility to check the System Website regularly for changes to this Agreement.
10. MISCELLANEOUS PROVISIONS
10.1 Governing Law. The laws of the State of Indiana, without regard to principles of conflicts of law, will govern this Agreement and any dispute of any sort that might arise between You and Biomet. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
10.2 Injunctive Relief and Venue. Notwithstanding anything to the contrary, Biomet may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Biomet’s or any third party’s intellectual property and/or proprietary rights. Any dispute relating in any way to Your access to or use of the System Website, the System, Biomet Works, or other products or services sold, distributed or otherwise provided by Biomet or its affiliates in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 shall be adjudicated in either the United States District Court for the Northern District of Indiana, United States or the Kosciusko County (Indiana) Superior Court, and You consent to exclusive jurisdiction and venue in such courts. You further acknowledge that Biomet’s rights in the Biomet Works are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
10.3 U.S. Government Rights. The System is provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable the use of the System by others under this Agreement. If You are using the System on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, You will immediately discontinue use of the System. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
10.4 Import and Export Compliance and Restrictions . You will, in connection with Your use of the System and Biomet Works, comply with all applicable import, export, and re-export control and regulations of any country, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, Council Regulation (EC) No 428/2009 on the control of exports of dual-use items and technology, and country-specific economic sanctions programs or embargoes adopted against countries or individuals under any applicable national or international legislation, including any measures implemented by the U.S. Office of Foreign Assets Control.
10.5 Force Majeure. Biomet and its affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Biomet’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
10.6 Relationship. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership, or any employer/employee or fiduciary or franchise relationship between You and Biomet or any of its affiliates.
10.7 Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions will be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
10.8 Waivers. The failure by Biomet to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect Biomet’s right to enforce such provision thereafter. All waivers by Biomet must be in writing to be effective.
10.9 Successors and Assigns. You may not assign this Agreement, or delegate or sublicense any of Your rights under this Agreement, without Biomet’s written consent. Any assignment or transfer in violation of this Section will be void. Biomet may assign its rights and obligations under this agreement, in whole or in part, without Your consent. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns.
10.10 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
10.11 Headings. The headings and subheadings in this Agreement are presented solely for convenience and reference, and shall not be construed to limit the terms of this Agreement.
10.12 Definitions. For the avoidance of doubt, the word “include” and its variants in this Agreement are intended to be non-limiting, such that recitation of items included in a list is exemplary, and not to the exclusion of other like items.
10.13 Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the System Website and constitutes the entire agreement between You and Biomet regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between You and Biomet, whether written or oral, regarding such subject matter.