BY CLICKING “I ACCEPT” AT THE END OF THIS AGREEMENT OR BY ACCESSING, PARTICIPATING OR USING ANY PORTION OF THE BETTER WAY BACK PROGRAM, 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. LICENSE GRANT. Subject to your continued compliance with this Agreement, NuVasive provides to you a personal, revocable, limited, non-exclusive, non-transferable, and non-sublicensable license to access and use materials for the Better Way Back Program (as made available by NuVasive), including the right to access the Better Way Back website (the “Program Website”), and make single copies or prints of the content, information and materials provided to you through the Better Way Back Program (the “Program Materials”) for your personal, internal use only. You acknowledge and agree to the following: (i) NuVasive has the right to control and direct the means, manner, and method by which the Better Way Back Program is provided; (ii) NuVasive may, from time to time engage independent contractors, consultants, or subcontractors to aid NuVasive in providing the Better Way Back Program or use thereof; (iii) NuVasive has the right to provide the Better Way Back Program to others; and (iv) online access to the Program Website shall be made available from NuVasive’s designated online address(es).
2. PARTICIPATION REQUIREMENTS. In order to participate in the Better Way Back Program, NuVasive requires that you provide certain information and complete the registration and submission procedures fully in order to create a Better Way Back Program account. Upon completing any registration forms provided by NuVasive, NuVasive will provide a confirmatory e-mail (or other communication) notifying you of whether or not your registration has been approved. NuVasive may deny your participation in the Better Way Back Program in its sole discretion if your registration, expressions of consent, or submitted information do not meet NuVasive’s requirements or otherwise violate the terms and conditions of this Agreement. By filling out a registration or submission form and/or participating in the Better Way Back Program, you represent that you have the right, power, and authority (including be of the legal age of majority) to create a binding agreement with NuVasive and fulfill your obligations under this Agreement and that you agree to abide by all applicable local, state, national laws and regulations with respect to your participation in the Better Way Back Program. Registration for access to or use of, the Better Way Back Program tools, resources, or materials may also require additional access credentials or adherence to other particular access requirements as designated by NuVasive in its sole discretion from time to time. You 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 the Better Way Back Program; and (ii) you will at all times comply with the terms and conditions of this Agreement and any other terms and conditions for participation in the Better Way Back Program or for access to or use of its associated tools, resources, or materials. You further represent that you will act in a manner that does not cause disruption of any Better Way Back Program event or in a manner that interferes with any other individual’s participation in the Better Way Back Program. Any breach of the foregoing representations and warranties entitles NuVasive to immediately terminate this Agreement and/or seek any and all remedies available at law or equity. You also acknowledge and agree that use of the Internet and access to the Program Website is solely at your own risk. While NuVasive has endeavored to create a secure and reliable web site, you should understand that the confidentiality of any communication or material transmitted to/from the Program Website over the Internet or other form of global communication network cannot be guaranteed. You must make your own determination as to such issues.
3. RESTRICTIONS ON USE. All rights not expressly granted under this Agreement are hereby reserved to NuVasive. Accordingly, you are hereby prohibited from participating in the Better Way Back Program 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 the Program Website and Program Materials, or any portion of the Program Website and Program Materials without NuVasive’s prior written consent except as expressly and unambiguously authorized herein.
4. NO MEDICAL ADVICE. You should always seek the advice of a qualified health care professional regarding the diagnosis and treatment of medical conditions or other health care advice or information. The Better Way Back Program is a community which connects participants with information, resources, case managers, health care professionals, and other participants. The Better Way Back Program, the Program Materials, the Program Website, and the Better Way Back ambassadors are provided for informational purposes only and are not intended to be, or be a substitute for, professional medical advice, diagnosis, or treatment. Better Way Back ambassadors participating in the Better Way Back Program are non-paid volunteers, do not represent NuVasive, and can only speak about their own experiences. Your experience may differ. Nate “Rock” Quarry and Bill Walton are paid spokesmen of NuVasive.
5. LINKS TO OTHER SITES. The Program Website 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 the Program Website 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.
7. FEEDBACK AND SUBMISSIONS. NuVasive welcomes your feedback and suggestions about NuVasive’s products and services or with respect to how to improve the Better Way Back Program. By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to NuVasive, you represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to NuVasive and enable NuVasive to use such Feedback. In addition, any Feedback will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for NuVasive to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.
8. PROPRIETARY RIGHTS. This Agreement provides only a limited right to access and use the Program Materials and the Program Website 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 the Program Materials, the Program Website or any other NuVasive intellectual property to you or anyone else in connection with your participation in the Better Way Back Program. 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 the Program Website are exclusively owned, controlled, and/or licensed by NuVasive, Inc. or its licensor(s) or affiliate(s). NUVASIVE, BETTER WAY BACK 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.
10. DISCLAIMER. THE BETTER WAY BACK PROGRAM, PROGAM MATERIALS AND PROGRAM WEBSITE ARE 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 THE BETTER WAY BACK PROGRAM, PROGRAM MATERIALS AND PROGRAN WEBSITE 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 THE BETTER WAY BACK PROGRAM, PROGAM MATERIALS AND PROGRAM WEBSITE.
11. LIMITATION OF LIABILITY. YOU AGREE THAT 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 PARTICIPATION IN OR THE USE OF THE BETTER WAY BACK PROGRAM BY YOU OR ANYONE ELSE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF NUVASIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ALSO ACKNOWLEDGE AND AGREE THAT NUVASIVE SHALL NOT BE RESPONSIBLE FOR ANY FAILURES, INOPERABILITY, DELAYS, OR PROBLEMS CAUSED BY YOUR FAILURE TO PROVIDE OR OBTAIN THE NECESSARY RIGHTS CLEARANCE FOR ANY INFORMATION YOU SUBMIT TO THE BETTER WAY BACK PROGRAM IN A TIMELY OR ACCURATE MANNER. MOREOVER, NUVASIVE ASSUMES NO RESPONSIBILITY FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT OR INFORMATION. WITHOUT LIMITATION OF THE FOREGOING, THE TOTAL LIABILITY OF NUVASIVE FOR ANY REASON WHATSOEVER RELATED TO PARTICIPATION OR USE OF THE BETTER WAY BACK PROGRAM OR FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED $500 (USD).
12. 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.
13. THIRD-PARTY PRODUCTS/SERVICES. NuVasive, in its sole discretion, may feature and/or post the advertisements of third parties on the Program Materials or Program Website and/or feature on the Program Materials or Program Website, materials, programs, products, and services provided by third parties. NuVasive makes no representations with respect to, nor does it guarantee or endorse, the quality, non-infringement, accuracy, completeness, timeliness, reliability, or correct sequencing of such third-party materials, programs, products, and services or any other materials, programs, products, and services which such third-party materials, products, and services may access. Your correspondence or any other dealings with third parties found on the Program Materials or Program Website are solely between you and such third party. Accordingly, NuVasive expressly disclaims responsibility and liability for all third-party provided materials, programs, products, and services contained on or accessed through the Program Materials or Program Website, and you agree that NuVasive shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such third parties on the Program Materials or Program Website.
14. SECURITY & ENFORCEMENT. Any actual or attempted use of the Program Website 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 the Program Website (“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 the Program Website. 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 the Program Website, or any portion thereof, in order to protect the Program Website, NuVasive intellectual property, NuVasive, or the business interests of NuVasive and/or its members and affiliates.
15. 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.
16. TERM AND TERMINATION. This Agreement will take effect at the time you click or check “I ACCEPT”, or begin using any part of the Better Way Back Program including the Program Materials and the Program Website, 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 the Better Way Back Program. 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 participate in the Better Way Back and use the Program Materials and Program Website shall immediately cease and you must promptly delete or destroy all copies of the Program Materials and the Program Website in your possession or control. Sections 3 and 7-19 will survive the termination of this Agreement.
17. 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.
18. 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 Better Way Back.
19. MISCELLANEOUS. No joint venture, partnership, employment, or agency relationship exists between you and NuVasive as a result of this Agreement or your utilization of the Better Way Back Program. Headings are for convenience only. This Agreement and the Better Way Back Privacy Statement found at www.thebetterwayback.org represent the entire agreement between you and NuVasive with respect to use of Better Way Back, 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. Accordingly, please review the terms and conditions found at this location on a periodic basis. Each time you access the Better Way Back Program, you agree to be bound by the Agreement in effect at the time you participation in the Better Way Back Program. If you do not agree to the revised terms, do not use the Better Way Back Program.