I hereby authorize Zimmer US, Inc. to initiate and process a charge on the credit card named below for all fees due Zimmer in relation to the attached agreement. In addition, I agree not to hold Zimmer US, Inc. responsible for any delay or loss of funds caused by incorrect or incomplete information supplied by me, my financial institution, or caused by an error on the part of my financial institution in processing funds to or transactions on my account. All required fields on this form appear below in a bold font.
An Installation Setup Fee of $150 per registered user will be charged to your credit card upon acceptance of this agreement by Zimmer. Please allow 24 hours for processing. If you have any questions, please do not hesitate to contact us at (800) 882-4224. Thank you for choosing Zimmer.
1. OVERVIEW
(a) On and subject to the terms and conditions of this Agreememt and timely payments of the fees and charges set forth herein, Zimmer US, Inc. (“Zimmer”) shall provide Customer with license/(s) to its proprietary digital templating / pre-operative planning system (“Joints”).
(b) Zimmer’s provision of services (“Joints License Services”) shall include software license/(s), access, administration, back-up and storage of Customer’s digital images and other services as specified in this Agreement, including the use of Zimmer’s proprietary Joints software and other Zimmer proprietary digital imaging software, if applicable. The fee for these license services (“Joints License Fee”) is due and payable in advance on the first day of each month during the term (“Joints License Term” or “Term”). The Joints License Term shall begin when Customer receives access to the Joints System (“Installation Date”).
2. SOFTWARE
(a) Subject to Customer’s continuing compliance with the terms and conditions of this Agreement and payment of all fees and charges, beginning on the Installation Date and for the Joints License Term, Zimmer grants to Customer a limited, non-exclusive and non-transferable license to download and use the Joints Software provided by Zimmer under this Agreement.
(b) The Joints Software, including without limitation, source and object code, algorithms, methods of processing and any modifications or releases, and any originals and copies thereof in whole or in part, and all copyrights, trademarks, patents, trade secrets and other intellectual property rights therein are and shall remain the valuable and exclusive property of Zimmer and its licensors.
3. CUSTOMER INDEMNITY
(a) Customer indemnifies, and agrees to defend and hold Zimmer harmless from any and all claims or Damages arising out of Customer’s or Customer’s employees’ or agents’ use or misuse of the Joints Software or the Joints License Services.
(b) For purposes of all indemnity obligations, exclusive remedies and limitations of liability set forth in this Agreement, "Zimmer" shall be defined as Zimmer, its affiliates, licensors and vendors, and its and their employees, directors, officers, agents, representatives, subcontractors and suppliers; "Customer" shall be defined as Customer, its affiliates and its and their employees, directors, officers, agents and representatives; and "Damages" will refer collectively to all injury, damage, liability, loss, penalty, interest and expense incurred.
4. MEDSTRAT WARRANTY
(a) Zimmer warrants that it has the right and authority to enter into this Agreement and to comply with and perform its obligations under this Agreement. Zimmer's sole obligation for failure to meet these warranties which are reported by Customer to Zimmer in writing within ninety (90) days after the Installation Date for the Joints Software or within thirty (30) days after the performance or failure of such services for Joints License Services is in Zimmer's sole discretion to use reasonable efforts to cure a breach or failure of the Joints Software or Joints License Services within fifteen (15) days of Zimmer’s reproduction of such breach or failure, provided that Customer makes available to Zimmer sufficient data and assistance to enable the failure to be replicated or to re-perform the applicable service.
(b) Neither Zimmer nor its members, affiliates, employees, contractors or licensors shall in any event be liable to Customer or to any third party for any damages, including but not limited to lost profits, revenues, business opportunities or business advantages whatsoever, nor for any special, consequential, indirect or incidental, punitive or exemplary damage, losses or expenses directly or indirectly relating to the Joints Software, the Joints License Services, or any other Zimmer service or product, or any portion thereof, or the use or misuse thereof or any telecommunication device or system or other electronic transmission, system or software, the failure, non-compliance or limited availability of same, the accuracy, inaccuracy or completeness of any information provided in or by the Joints Software, the Joints License Services, any other Zimmer service or product, or any obligation under or subject matter of this Agreement, whether such claim is based upon breach of contract, breach of warranty, negligence, strict liability in tort or any other theory of relief or whether or not Zimmer is informed in advance of the possibility of such damages.
(c) The Joints Software, the Joints License Services, any other Zimmer service or product, and all portions thereof, are provided "AS IS" and without warranty of any kind, either express or implied by operation of law or otherwise. Zimmer hereby expressly disclaims any and all other warranties, conditions or representations expressed or implied, oral or written, including any and all implied warranties or conditions of title, express warranties and representations of non-infringement, merchantability, fitness or suitability for any purpose whether or not Zimmer knows or has reason to know, whether alleged to arise by law, by custom or usage in the trade, to customer or to any other person. Zimmer does not warrant or represent that the Joints Software, the Joints License Services, any other Zimmer service or product, or any part thereof, including but not limited to the databases and documentation, will meet Customer requirements, will be uninterrupted or error free or that any defect therein will be or can be corrected. Customer acknowledges that electronic transmissions, communications and databases are subject to errors, tampering and break-ins and that while Zimmer will implement reasonable security precautions to attempt to prevent such occurrences, Zimmer does not guarantee that such events will not take place. Zimmer disclaims responsibilities for any activities of Customer or any other third party.
5. TERM AND TERMINATION.
(a) Notwithstanding anything to the contrary in this Agreement: (i) Zimmer may immediately terminate, restrict or suspend the Joints License Services and Customer’s access to or use of the Joints Software without notice to Customer: if Customer fails to pay Zimmer any charges when due; if Customer makes any false statements to Zimmer; if Zimmer suspects fraud, abuse or misuse by or through Customer or its users; Zimmer believes that Customer or its users use may violate this Agreement or any laws or regulations or interferes in any way with Zimmer’s provision of the Joints Software to its customers or its business operations; or if Customer breaches any other material portion of this Agreement or any other agreement between Customer and Zimmer; or if Customer becomes insolvent, does not pay its debts or obligations when due or becomes subject to any proceedings under bankruptcy or similar laws; and (ii) Zimmer may terminate this Agreement and all of its obligations or duties to Customer under this Agreement in any event upon providing Customer with at least thirty (30) days prior written notice if Zimmer closes, terminates or otherwise disposes of any material portion of its business involving the Joints Software or if there is a change in applicable laws, rules or regulations which materially and adversely restricts or impacts Zimmer’s operation of such business.
(b) Unless specified otherwise in writing, the initial Joints License Term shall be three (3) months commencing on the Installation Date. The Joints License Term shall automatically renew for subsequent one (1) month periods at the end of a Term unless either party provides the other written notice of non-renewal at least thirty (30) days prior to a renewal date. Unless the parties otherwise agree, the Monthly License Fee for each renewal term shall be based on Zimmer’s then-current rates for such services.
(c) Zimmer’s offsite automated backup service includes retention of patient studies for a period of the greater of five (5) years or the amount required by HIPAA/HITECH regulations from the date of receipt of the image files or until the termination of this Agreement. Additional monthly charges may apply to studies retained beyond this retention period or may be purchased at any time at the then-current rate.
(d) The respective obligations of Customer and Zimmer, which by their nature would continue beyond the termination of this Agreement, such as the obligations regarding confidentiality and limitations of liability, shall survive termination.
6. CONFIDENTIALITY
(a) All information including, but not limited to, specifications, drawings, computer programs, technical or business information or other data or information concerning the Joints Software, the Joints License Services, the operation or structure of Zimmer, any Zimmer customer or any other Zimmer product or service, in whatever form (hereinafter “Confidential Information”), furnished by Zimmer to Customer, or otherwise obtained by Customer whether in writing, orally or visually, or to which Customer has access under this Agreement or as part of its use of and access to the Joints Software or the Joints License Services shall be considered Zimmer confidential information, and shall be subject to the following: (i) Customer shall restrict disclosure of the Confidential Information to such of its employees with a “need to know” (i.e., employees that require the Confidential Information to perform their responsibilities in connection with the Customer’s use of and access to the Joints Software or the Joints License Services in accordance with this Agreement) and shall not disclose Confidential Information to any other person or entity without the prior written consent of Zimmer; (ii) Customer shall use the Confidential Information only for purposes of using the Joints Software in accordance with this Agreement; (iii) Customer shall advise those employees who access the Confidential Information of their obligations with respect thereto; (iv) Customer shall copy the Confidential Information only as necessary for those employees who are entitled to receive it and ensure that all confidentiality notices are reproduced in full on such copies; and (v) Customer shall return all copies of such Confidential Information to Zimmer upon Zimmer’s written request.
(b) Customer recognizes and agrees that the unauthorized use or disclosure of the Confidential Information would cause irreparable injury to Zimmer for which it would have no adequate remedy at law, and that a breach of this Section shall entitle Zimmer to obtain immediate injunctive relief prohibiting such breach, in addition to any other rights and remedies available to Zimmer. The obligations herein contained shall expressly survive the termination or expiration of this Agreement.
7. GENERAL
(a) This Agreement and all attachments and schedules hereto, is the complete and exclusive statement of the agreement between the parties related to the subject matter hereto and supersedes any prior agreement, promise, representation, proposal or other communication, oral or written, between the parties. This Agreement and all rights and obligations of the parties under the Agreement shall be governed by the substantive laws, excluding conflicts rules, of the State of Illinois. Any legal action arising in connection with this Agreement must be commenced within two (2) years after the cause of action arises. Venue for all disputes arising out of or relating to this Agreement shall be in the State courts situated in DuPage County, Illinois, and the Northern District of Illinois federal courts.
(b) Neither Customer nor Zimmer shall be liable for any delay, failure in performance, loss or damage due to fire, explosion, power blackout, earthquake, volcanic action, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond their reasonable control, except that Customer’s obligation to pay for the charges incurred for the Joints Software or the Joints License Services received by Customer shall not be excused.
