(Effective as of March 2016)
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (referenced herein with “you” or with “your” or “user”) AND NUVASIVE, INC. (referenced herein as “NuVasive”). YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS OF USE (referenced herein as the “Agreement”) BECAUSE THEY GOVERN YOUR ACCESS TO AND USE OF THE NUVASIVE REMOTE MONITORING ONLINE PORTAL AND SOLUTION (referenced herein as “NuVasive Remote Monitoring”). NUVASIVE IS WILLING TO LICENSE TO YOU THE RIGHT TO USE NUVASIVE REMOTE MONITORING ONLY ON THE CONDITION THAT YOU AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO USE NUVASIVE REMOTE MONITORING AND YOU ARE INSTRUCTED TO STOP USE OF NUVASIVE REMOTE MONITORING.
BY CLICKING "I ACCEPT" AT THE END OF THIS AGREEMENT OR BY INSTALLING, ACCESSING, OR USING NUVASIVE REMOTE MONITORING, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND ITS TERMS AND CONDITIONS, AND THAT YOU AGREE TO BE BOUND LEGALLY BY IT AND ITS TERMS AND CONDITIONS.
1. DELIVERY OF NUVASIVE REMOTE MONITORING. Subject to your continued compliance with this Agreement, NuVasive will provide access to NuVasive Remote Monitoring in a commercially reasonable manner as determined by NuVasive in its sole discretion, subject to required and emergency maintenance, failure of third party networks and communications facilities, and events of force majeure. To the extent you request from NuVasive additional support, training, security, or other programming work relating to NuVasive Remote Monitoring beyond NuVasive’s stated obligations in this Agreement, NuVasive may provide such support, training, security, or programming work, in its sole discretion, at its standard time and materials rates or such other pricing as agreed to in writing and subject to the terms of this Agreement and any other written agreement required by NuVasive.
2. LICENSE GRANT. Subject to your continued compliance with this Agreement, NuVasive provides to you a revocable, limited, non-exclusive, non-transferable, and non-sublicensable license to access and use NuVasive Remote Monitoring on your laptop, computer, mobile phone, or other mobile computing device only for purposes of helping to provide health care services to patients. Any third party software made a part of or otherwise available through NuVasive Remote Monitoring is subject to the terms and conditions herein and any other the terms and licenses (if any) prescribed and posted by such third party vendor(s). The content layout, formatting, and features of and functionality (or access privileges) for NuVasive Remote Monitoring shall be as specified by NuVasive in its sole discretion. You also acknowledge and agree to the following: (i) NuVasive has the right to control and direct the means, manner, and method by which NuVasive Remote Monitoring is provided; (ii) NuVasive may, from time to time engage independent contractors, consultants, or subcontractors to aid NuVasive in providing NuVasive Remote Monitoring or use thereof; (iii) NuVasive has the right to provide NuVasive Remote Monitoring to others; and (iv) NuVasive Remote Monitoring shall be made available from NuVasive’s designated online address(es).
3. RESTRICTIONS ON USE. All rights not expressly granted under this Agreement are hereby reserved to NuVasive. Accordingly, you are hereby prohibited from using NuVasive Remote Monitoring in any manner that is not expressly and unambiguously authorized by this Agreement. You therefore may not modify, reproduce, duplicate, copy, download, store, further transmit, disseminate, transfer, disassemble, broadcast, publish, remove or alter any proprietary notices or labels, license, sublicense, sell, mirror, frame, rent, lease, private label, grant a security interest in, create derivative works of, or otherwise exploit NuVasive Remote Monitoring, or any portion of NuVasive Remote Monitoring without NuVasive’s prior written consent except as expressly and unambiguously authorized herein. Moreover, you may not (a) use any "deep link," "page scrape," "robot," "spider," or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of NuVasive Remote Monitoring or in any way reproduce or circumvent the navigational structure or presentation of NuVasive Remote Monitoring to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through NuVasive Remote Monitoring, (b) attempt to gain unauthorized access to any portion or feature of NuVasive Remote Monitoring or any other systems or networks connected to NuVasive Remote Monitoring or to any NuVasive server or to any of the services offered on or through NuVasive Remote Monitoring, by hacking, password "mining," or any other illegitimate or prohibited means, (c) probe, scan, or test the vulnerability of NuVasive Remote Monitoring or any network connected to NuVasive Remote Monitoring, nor breach the security or authentication measures on NuVasive Remote Monitoring or any network connected to NuVasive Remote Monitoring, (d) reverse look-up, trace, or seek to trace any information on any other user of or visitor to NuVasive Remote Monitoring, (e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of NuVasive Remote Monitoring or NuVasive's systems or networks or any systems or networks connected to NuVasive Remote Monitoring, (f) use any device, software, or routine to interfere with the proper working of NuVasive Remote Monitoring or any transaction conducted on NuVasive Remote Monitoring, or with any other person's use of NuVasive Remote Monitoring, (g) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to NuVasive on or through NuVasive Remote Monitoring, or (h) use NuVasive Remote Monitoring in an unlawful manner.
4. NO MEDICAL ADVICE. NuVasive Remote Monitoring is an online software solution designed to provide remote access to the NuVasive Neuromonitoring system in connection with NuVasive’s other designated products and services. Use of NuVasive Remote Monitoring is provided for informational purposes only and is not intended to be, or be a substitute for, professional medical advice, diagnosis, or treatment. Further, NuVasive Remote Monitoring is a diagnostic tool and is not intended for use by patients or as a means to seek consent or provide required disclosure(s) to any patient. You should use your own clinical judgment or always seek the advice of a qualified physician or health care professional regarding the diagnosis and treatment of medical conditions or other health care advice or information.
5. USER OBLIGATIONS. By downloading, accessing, or using NuVasive Remote Monitoring, you represent and warrant that you will abide by all applicable local, state, national laws and regulations with respect to your use of NuVasive Remote Monitoring and that you are at least 18 years of age or the legal age of majority. NuVasive Remote Monitoring was designed to provide certain information directly to a licensed medical professional and surgeon and is not intended for use by the general public. You have no right to transfer or disclose any information from NuVasive Remote Monitoring to another device, computer, or storage medium or to use NuVasive Remote Monitoring to email, text, or send information to anyone other than health care professionals that have a need to know of such information in connection with their provision of health care services. You further covenant or represent and warrant that (i) you will at all times provide true, accurate, current, and complete information when submitting information to NuVasive through NuVasive Remote Monitoring; (ii) you will at all times comply with the terms and conditions of this Agreement; (iii) you have all necessary rights to use NuVasive Remote Monitoring, including, without limitation, the permission of any patient or other required physician (or health care professional); (iv) that your use of NuVasive Remote Monitoring will not violate any right(s) of a third party including, without limitation, any privacy, publicity, intellectual property, confidentiality and/or employment rights, and (v) you will provide NuVasive with reasonable assistance in the implementation and on-going maintenance of NuVasive Remote Monitoring, including, keeping NuVasive reasonably informed as to any problems encountered with NuVasive Remote Monitoring. Upon completion of any surgical event or procedure, you understand and agree that any Posting related to the subject of such surgical event or procedure can be automatically deleted and removed from NuVasive Remote Monitoring. While NuVasive has endeavored to create a secure and reliable solution, you also acknowledge and agree that use of the Internet or other global or local communication network and access to NuVasive Remote Monitoring is solely at your own risk. You also agree to assume all responsibility for your use, and the results of your use, of NuVasive Remote Monitoring, including meeting any requirements of your contracts with third parties or other persons. In addition, you shall be responsible for obtaining, paying for, or providing the hardware, software, or telecommunication necessary for use and maintenance of the connections and capacity between you and NuVasive Remote Monitoring. You also agree to be responsible for obtaining and paying for all licenses for third party software, hardware, and firmware necessary for use of NuVasive Remote Monitoring on your computer or mobile computing device.
6. IMPERMISSIBLE USE. NuVasive Remote Monitoring is not intended to maintain or transmit protected health information as such term is defined under the Health Insurance Portability and Accountability Act of 1996, as amended. Accordingly, you will not send or include any patient-identifying information and will otherwise ensure that you will not send or include any content, image, or other information that is unlawful or in violation of the privacy, proprietary, or intellectual property rights of another person or entity.
7. ACCOUNT REGISTRATION AND USER NAME HANDLING POLICY: You may be required to register to use NuVasive Remote Monitoring. By registering or creating an account, you agree to provide accurate and complete information and to inform NuVasive of any changes to that information. This Agreement applies to the named entity or person on the account associated with your access. Each registration is for a single user only, unless otherwise expressly provided on the registration page. Registration for access to and use of NuVasive Remote Monitoring may also require access credentials, such as a user name and a password, or adherence to other particular access requirements as designated by NuVasive in its sole discretion from time to time. You hereby agree to consider your access credentials, such as a user name and password, as confidential information and not to disclose such information to any third party without the prior express written consent of NuVasive, which may be withheld in its sole discretion. You are responsible for all actions undertaken through your account. You shall immediately notify NuVasive if you suspect or become aware of any loss or theft of your password or any unauthorized use of your user name and password. NuVasive will not be liable for any loss or damage arising from your failure (whether inadvertent or intentional) to comply with these obligations.
8. LINKS TO OTHER SITES. NuVasive Remote Monitoring may connect to certain third party websites or online networks (collectively, “Third Party Sites”). These Third Party Sites have not necessarily been reviewed by NuVasive and are owned, controlled and/or maintained solely by third parties over whom NuVasive exercises no control. Your correspondence or any other dealings with third parties found through any Third Party Site on NuVasive Remote Monitoring is solely between you and such third party. Accordingly, NuVasive hereby expressly disclaims and shall not have any liability or responsibility for any Third Party Sites.
9. Mobile Services. NuVasive Remote Monitoring offers various tools that are available to you via your mobile phone or other mobile computing device (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices or in all locations. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices; what restrictions, if any, may be applicable to your use of the Mobile Services; and how much such use will cost you. Nevertheless, all use of NuVasive Remote Monitoring and its related Mobile Services shall be strictly in accordance with this Agreement.
10. POSTINGS. NuVasive Remote Monitoring may contain or provide access to a chat function, and other interactive features and functionality, where users can share and exchange information (“Postings”). To the extent that NuVasive Remote Monitoring allows for such communication functionality, you agree that by using NuVasive Remote Monitoring you will not upload, post, display, or transmit any of the following:
11. PERMISSION TO USE POSTINGS. By submitting any type of a Posting(s), you automatically and hereby grant a royalty-free, transferable, sublicensable and non-exclusive right and license for NuVasive to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works of, and display (in whole or in part) worldwide, or act on any such Posting, without additional approval or consideration, in furtherance of and in connection with the operation of NuVasive Remote Monitoring, and you hereby waive any claim to the contrary. NuVasive reserves the right to establish additional practices, parameters, and limits in its sole discretion concerning the storage, display, or availability of any Posting. Further, NuVasive shall not have any obligation to incorporate or utilize any Posting that does not correspond to or meet NuVasive’s technical or usage practices, parameters, and limits. Please visit www.nuvasive.com for more information. You represent that you have all necessary rights to make the Posting available to NuVasive, and you also acknowledge that NuVasive has no control over the extent to which any idea or information may be used by any party or person once it's posted or displayed
12. NO PRE-SCREENING OF POSTINGS. NuVasive is not responsible for screening, policing, editing, or monitoring your or another user’s Postings and encourages all of its users to use reasonable discretion and caution in evaluating or reviewing any Postings. Moreover, NuVasive does not endorse, oppose, or edit any opinion or information provided by you or another user and does not make any representation with respect to, nor does it endorse the accuracy, acceptability, completeness, timeliness, or reliability of any Posting displayed, uploaded, or distributed by you or any other user. Nevertheless, NuVasive. reserves the right to monitor, delete, access, read, preserve, disclose or take other action with respect to Postings (or parts thereof) that NuVasive reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, (v) protect the rights, property or safety of NuVasive, its users and the public, or (vi) that NuVasive believes in good faith violate this Agreement and/or are, or are potentially, unlawful or harmful to NuVasive, its services, or goodwill. If you violate this Agreement, NuVasive may, in its sole discretion, delete the unacceptable content from your Posting, remove or delete the Posting in its entirety, issue you a warning, and/or terminate your use of NuVasive Remote Monitoring.
13. PROPRIETARY RIGHTS. This Agreement provides only a limited license to access and use NuVasive Remote Monitoring in accordance with the terms of this Agreement. Accordingly, you hereby agree that NuVasive transfers no ownership or intellectual property interest or title in and to NuVasive Remote Monitoring or any other NuVasive intellectual property to you or anyone else in connection with your use of NuVasive Remote Monitoring. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through NuVasive Remote Monitoring (except for Postings) are exclusively owned, controlled, and/or licensed by NuVasive, Inc. or its licensor(s) or affiliate(s). NUVASIVE, PULSE, NVM5, XLIF, TMAP and all other marks identifying the products or services of NuVasive are proprietary trademarks of Nuvasive, Inc., and any use of such marks, including, without limitation, as domain names, account identifiers, or in connection with any search engine optimization practice(s), without the prior express written permission of NuVasive is hereby strictly prohibited.
14. PRIVACY POLICY. Access to NuVasive Remote Monitoring may require you to submit certain personally identifiable information. Please review NuVasive’s Privacy Policy found at www.nuvasive.com for a summary of NuVasive’s practices related to the collection and use of personally identifiable information.
15. DISCLAIMER. NUVASIVE REMOTE MONITORING IS PROVIDED ON AN “AS-IS” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. NUVASIVE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. NUVASIVE ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT NUVASIVE REMOTE MONITORING WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR PARTICULAR REQUIREMENTS AND/OR NEEDS. THEREFORE, YOU ASSUME THE ENTIRE RISK REGARDING THE QUALITY AND/OR PERFORMANCE OF NUVASIVE REMOTE MONITORING.
16. LIMITATION OF LIABILITY. NUVASIVE SHALL NOT HAVE ANY LIABILITY FOR THE FAILURE TO STORE ANY INFORMATION OR POSTING. YOU ALSO EXPRESSLY ABSOLVE AND RELEASE NUVASIVE FROM ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND NUVASIVE'S CONTROL, INCLUDING, BUT NOT LIMITED TO, USE DURING ANY SURGERY PROCEDURE(S) OR OTHER MEDICAL TREATMENT YOU CONDUCT OR ADMINISTER, INFORMING PATIENTS OF USE OR NONUSE OF NUVASIVE REMOTE MONITORING, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER CONNECTION PROBLEMS, OPERATION OF OR ACCESS TO THIRD PARTY SOFTWARE OR NETWORKS, COMPUTER VIRUSES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES, OR NATURAL DISASTERS, STRIKES, OR OTHER LABOR PROBLEMS, WARS, OR GOVERNMENTAL RESTRICTIONS. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NUVASIVE BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DEALINGS OR AGREEMENTS BETWEEN YOU AND A THIRD PARTY, THE USE OR THE RESULTS OF THE USE OF NUVASIVE REMOTE MONITORING, WITH THE DELAY OR INABILITY TO USE NUVASIVE REMOTE MONITORING, THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE THROUGH NUVASIVE REMOTE MONITORING, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF NUVASIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF NUVASIVE FOR ANY REASON WHATSOEVER RELATED TO USE OF NUVASIVE REMOTE MONITORING SHALL NOT EXCEED $500 (US).
17. INJUNCTIVE RELIEF. You acknowledge that any breach, threatened or actual, of this Agreement, including, without limitation, violations or infringement of NuVasive’s intellectual property or proprietary rights, may cause irreparable injury to NuVasive, whereby such injury would not be quantifiable in monetary damages, and NuVasive would not have an adequate remedy at law. In the event of such injury or potential for such injury you therefore hereby agree that NuVasive shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement.
18. SECURITY & ENFORCEMENT. Any actual or attempted use of NuVasive Remote Monitoring by you in violation of this Agreement may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. NuVasive reserves the right in its sole discretion to review, monitor, and/or record any information relating to your use of NuVasive Remote Monitoring (“User Information”) without any prior notice to or permission from you, including, without limitation, by archiving content and/or communications submitted to and/or sent by you through NuVasive Remote Monitoring. NuVasive may share any User Information we obtain from you with any law enforcement organization in connection with any investigation or prosecution of possible criminal or unlawful activity. NuVasive will also disclose User Information as required by any court order and/or subpoena. In addition, NuVasive hereby reserves the right in its sole direction to at any time and without notice modify, suspend, terminate, and/or interrupt operation of or access to NuVasive Remote Monitoring, or any portion thereof, in order to protect NuVasive Remote Monitoring, NuVasive intellectual property, NuVasive, or the business interests of NuVasive and/or its members and affiliates.
19. GOVERNING LAW. This Agreement has been made in and will be construed and enforced in accordance with the laws of the State of California as applied to agreements entered into and completely performed in the State of California. You agree to the personal jurisdiction by and venue in any federal or state court in the State of California, County of San Diego and waive any objection to such jurisdiction or venue and further to a jury trial in any action. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. Any claim you might have against NuVasive must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. In any legal proceeding brought by NuVasive, NuVasive shall have the right to seek and be awarded all reasonable attorneys' fees and costs in addition to any other relief, at law or in equity, to which NuVasive may be entitled. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other documents and records originally generated and maintained in printed form. Please print a copy of this Agreement or contact NuVasive if you wish to receive a printed copy of this Agreement.
20. TERM AND TERMINATION. This Agreement will take effect at the time you click “I ACCEPT”, download NuVasive Remote Monitoring or begin using NuVasive Remote Monitoring, whichever is earliest. This Agreement will terminate automatically if (i) you fail to comply with any of its terms and conditions; or (ii) cease all use of NuVasive Remote Monitoring. Termination will be effective without notice. In addition, NuVasive may in its sole discretion terminate this Agreement upon notice to you for any or no reason. Upon termination of this Agreement, any and all right(s) to use NuVasive Remote Monitoring shall immediately cease and you must promptly delete or destroy all copies of NuVasive Remote Monitoring in your possession or control. Sections 3, 13, 15-21, and 23 will survive the termination of this Agreement.
21. WAIVER & SEVERABILITY. NuVasive’s failure to insist on upon strict performance of any of the terms and conditions of this Agreement by you will not operate as a waiver of any subsequent or other default or failure of performance. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable pursuant to applicable law or court order including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision(s) that most clearly matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
22. OTHER TERMS AND CONDITIONS. Additional notices, terms, and conditions may apply to access to or use of NuVasive’s products and services. If there is a conflict between this Agreement and any other notices, terms, or conditions, NuVasive shall resolve any conflict in good faith in its sole discretion but this Agreement shall generally control with respect to accessing and using NuVasive Remote Monitoring.
23. MISCELLANEOUS. No joint venture, partnership, employment, or agency relationship exists between you and NuVasive as a result of this Agreement or your utilization of NuVasive Remote Monitoring. Headings are for convenience only. This Agreement and NuVasive’s Privacy Policy found at www.nuvasive.com represent the entire agreement between you and NuVasive with respect to use of NuVasive Remote Monitoring, and hereby supersede all prior and/or contemporaneous communications and proposals, whether electronic, oral, or written between you and NuVasive. You may not assign, delegate, or transfer any rights under this Agreement without the prior express written consent of NuVasive, which may be withheld in NuVasive’s sole discretion. NuVasive may update these terms and conditions at any time by posting or sending you a revised version of the Agreement, and may do so without advance notice to you. Accordingly, please review the terms and conditions found at this location on a periodic basis. Each time you access NuVasive Remote Monitoring, you agree to be bound by the Agreement in effect at the time you access NuVasive Remote Monitoring. If you do not agree to the revised terms, do not use NuVasive Remote Monitoring.