TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Service (“Terms and Conditions of Service”) issued by INFINITI constitute an agreement (“Agreement”) with Infiniti Medical, LLC. (“INFINITI”) and you (“Customer”) (“Party or Parties”) regarding services provided by INFINITI. INFINITI’s agreement to provide services is conditioned on Customer’s assent to this Agreement and is limited to acceptance of this Agreement, and no specific condition or terms issued by the Customer which may appear on the purchase order or on any document communicated by the Customer, shall prevail over this Agreement. All such conditions and terms are objected to and rejected. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement. For the avoidance of doubt, the Customer’s general terms and conditions are expressly excluded.
BY ACCESSING OR USING THE SERVICE, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THESE TERMS.
THERE IS NO EXPRESS OR IMPLIED VETERINARIAN/PATIENT OR VETERINARIAN/CLIENT RELATIONSHIP BETWEEN CUSTOMER’S PATIENTS OR CLIENTS AND INFINITI, ITS EMPLOYEES, AGENTS, OR CONSULTANTS.
Should INFINITI or INFINITI’s consultants provide any recommendations, comments or advice as part of the Services, Customer expressly understands and agrees that any such recommendations, comments or advice may be based on incomplete information provided to INFINITI or INFINITI’s consultants and should therefore be interpreted and acted upon by Customer within the applicable clinical context.
1. INFINITI Duties. INFINITI will provide the services set forth in this Section 1 subject to the terms and conditions contained herein.
1.1. Covered Services. Unless expressly agreed otherwise in writing between Customer and INFINITI, INFINITI agrees to provide certain services (“Services or Service”).
1.2. Service Hours and Response Times. The Services shall be performed during regular business hours, by INFINITI and/or INFINITI’s consultants Monday through Friday, except INFINITI recognized holidays (“Normal Working Hours”). INFINITI will commence work in connection with this Agreement within a commercially reasonable period of time. If the Customer requests Services to be performed outside the Normal Working Hours, such Services will be furnished on a commercially reasonable efforts basis. There may be a minimum labor charge for all Services performed outside of Normal Working Hours. Service response time will vary depending upon factors including, but not limited to, workload, availability of personnel, and the critical nature of Customer’s request for Services. INFINITI does not make any guarantees or representations regarding response times following Customer’s request for Services. It is Customer’s sole responsibility to provide all information Customer deems relevant to INFINITI.
1.3. Additional Services. INFINITI may provide Customer with certain additional services that are not part of the Services, which are other services as agreed to by INFINITI and Customer (“Additional Services”). The Additional Services will be charged separately by INFINITI to Customer.
1.4. Stent Information. From time to time, Infiniti Medical may assist clients by responding solely to the following clinical questions related to the Company’s stent products:
a) What does INFINITI suggest with respect to stent diameter and length for a particular patient?
b) What does INFINITI suggest regarding in vivo stent positioning?
c) What does INFINITI suggest regarding whether a stent procedure or a stent is appropriate for a patient?
d) What does INFINITI suggest regarding the treatment/management of a patient that received a stent?
1.5. ALICAM Services. ALICAM Services consult consists solely of:
a) Obtaining from Customer image data either electronically or in the form of a retrieved ALICAM capsules;
b) Uploading the image data to a cloud-based archive;
c) Providing a written report to Customer generated by a Diplomate of American College of Veterinary Internal Medicine that consists solely of: Image data interpretation, treatment recommendations, and select representative images from the study.
1.6. Performance. Upon timely delivery of any data, reports, radiographs, ultrasounds, MRIs, CTs, or other information (“Information”) from Customer, INFINITI will use commercially reasonable efforts to meet reasonable turnaround times for its Services and to provide reports on the Information (“Reports”) to Customer. Prior to requesting any Services, Customer shall be solely responsible for determining whether INFINITI’s standard quality assurance practices for the Services meet Customer’s needs and requirements and INFINITI shall have no liability to Customer or any other party should its quality assurance practices not meet Customer’s needs or requirements.
1.7. Reports and Consult Data. Unless otherwise agreed in writing, INFINITI may retain copies of any/all Reports and Consult Data (as hereinafter defined). After a period of one (1) year after the date of the Service Reports and Consult Data may be destroyed by INFINITI at INFINITI’s sole discretion. Hard copies of Consult Data will not be returned to Customer or Customer’s clients.
1.8. Modification of Services. INFINITI reserves the right to modify or discontinue the Services (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to Customer. INFINITI will have no liability for any change to the Services.
2. Payment Terms
2.1. Payment; Taxes. Customer will pay the fees for the Services performed by INFINITI as agreed to by the Parties. Customer must pay the total payment amount due for this Agreement including without limitation all applicable federal, state and local taxes. INFINITI invoices are payable within thirty (30) days after date of invoice unless otherwise agree upon. Customer shall make all payments hereunder in U.S. dollars.
2.2. Late Fees. If INFINITI fails to receive any payment or any other amount due by Customer hereunder within ten (10) calendar days after its due date, Customer will pay, in addition to the amount of each such payment, a late payment charge of ten percent (10%) of such past due payment or the highest interest rate allowed by applicable law, whichever is less. All fees referenced herein are exclusive of applicable sales, use and other taxes, which will be added to the relevant invoice provided by INFINITI and shall be payable by Customer to INFINITI.
3. Customer’s Acts or Omissions. If INFINITI’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, patients, clients or employees, INFINITI shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
4. Limited Warranty; Disclaimer of Warranty; Limitations.
4.1. Limited Warranty: Disclaimer of Warranty. INFINITI warrants that the Services described in Section 1 of this Agreement will be provided in a professional manner. INFINITI shall not be liable for a breach of the warranty set forth in this Section 4.1 unless Customer gives written notice of the defective Service, reasonably described, to INFINITI within ten (10) business days of the time when Customer discovers or ought to have discovered that the Service were defective. INFINITI MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO SERVICES PROVIDED BY INFINITI PURSUANT TO THIS AGREEMENT.
4.2. No Warranty for Stent Information. Customer understands and agrees that there is no warranty of any kind applicable to Stent Information and that it is using or relying on the Stent Information (or not using or relying on the Stent Information, as may be the case) at its sole and exclusive risk. Customer understands and agrees that INFINITI makes no warranties of any kind, either express or implied, including but not limited to accuracy, warranties of merchantability, fitness for a particular purpose, of title, or of non-infringement of third party rights with respect to the Stent Information. Whether it elects to use the Stent Information or not, Customer hereby voluntarily releases, discharges, waives and relinquishes any and all claims or actions of any character, whether in law or equity and whether in contract (including breach), tort/extra-contractual liability (including negligence), warranty, indemnity, contribution, strict liability or otherwise and any damages for injury, death, property damage or other damage, arising out of, in any way connected or associated with or resulting from the Information. Whether it elects to use the Stent Information or not, Customer hereby releases, discharges, defends, indemnifies, waives and agrees to hold INFINITI and its employees and owner(s), agents, members, assigns, heirs, and officers harmless and free from any and all liability of any kind including, but not limited to any damages for injury, death, property damage or other damage, arising out of, in any way connected or associated with or resulting from the use and non-use of the Stent Information.
4.3. Customer Remedies. If INFINITI breaches any warranty or obligation with respect to the Services, its sole obligation will be, at INFINITI’s sole option to either a) re-perform the defective Service or b) refund/credit/not charge Customer for the defective Service, at INFINITI’s sole discretion.
4.4. Indemnification. Customer shall indemnify, defend and hold harmless INFINITI, its members, successors, heirs, employees, agents and assigns, against any liabilities, damages, costs, claims, losses or expenses (including reasonable Consultant’ fees and all expenses of litigation, including attorney’s and expert witness fees) connected, associated in any way with, or in any way related to: (i) any third-party claim, suit, action, demand or judgment allegedly arising out of, associated with, or in any way related to INFINITI’s use, in accordance with this Agreement, of any Customer’s data; (ii) Customer’s use of, or misuse of, any Reports, and/or the Service; (iii) Customer’s gross negligence, bad faith or willful misconduct; (iv) Customer’s (including any Customer’s Personnel’s) violation of any portion of this Agreement, or any applicable law or regulation; (v) the violation of any third party right (including any intellectual property right) by Customer’s or any Customer’s Personnel in connection with the use of the Service; or (vi) any dispute or issue between Customer (including any Customer’s Personnel) and any third party. INFINITI reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (without limiting Customer indemnification obligations with respect to that matter), and in that case, Customer agrees to cooperate with INFINITI’s defense of those claims.
4.4.1. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL INFINITI BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR LOSS OF PROFIT OR USE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, INCLUDING WITHOUT LIMITATION FOR LOSS OF GOODWILL, DATA, OR EQUIPMENT OR FOR BUSINESS INTERRUPTION, ARISING OUT OF THE USE OF INFINITI’S SERVICES OR FAILURE OR DELAY IN DELIVERING SUCH SERVICES, WHETHER BASED ON WARRANTY, CONTRACT (INCLUDING BREACH), TORT/EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, CONTRIBUTION, OR OTHERWISE, EVEN IF INFINITI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
4.4.2. INFINITI’s total liability for any and all injuries, losses, expenses, demands, claims, or damages whatsoever arising out of, or in any way related to, the SErvices OR THIS AGREEMENT from any cause or causes, whether based on warranty, contract (including breach), tort/extra-contractual liability (including negligence), strict liability, indemnity, contribution, or otherwise shall not exceed the total amount paid by Customer to Infiniti for the incident of defective Service. INFINITI accepts no legal responsibility for the purposes for which Customer uses the Service. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 4 (“LIMITED WARRANTY; DISCLAIMER OF WARRANTY; LIMITATIONS”), INFINITI’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
4.4.3. THE provisions of this section 4 and other sections and paragraphs of this aGreement providing for indemnification and limitation of or protection against infiniti’s liability shall apply to the full extent permitted by law and regardless of fault and shall survive either termination pursuant to this Agreement or cancellation, as well as the completion of Services hereunder.
5. Intellectual Property, Ownership and Restrictions
5.1. INFINITI’s Intellectual Property. This Agreement does not, and shall not be deemed to, transfer any intellectual property rights from INFINITI to Customer. Nothing in this Agreement is intended to grant any rights to Customer under any intellectual property rights owned or controlled by INFINITI, and INFINITI hereby reserves any and all rights (including intellectual property rights) not expressly granted under this Agreement.
5.2. Consult Data. Customer grants INFINITI a non-exclusive, royalty-free, worldwide, irrevocable, perpetual sub-licenseable right and license to access and use any and all consult data (“Consult Data”). Consult Data is defined as any and all information provided by Client to INFINITI (including, but not limited to Information as defined above) associated in any way with the performance of the Services and includes but is not limited to clinical information and history, laboratory results, imaging studies, and any data submitted on relevant data intake forms (consult forms). INFINITI may use Consult Data to provide its services and products as they exist today and also to allow INFINITI to develop features, products and services in the future. Customer understands that INFINITI may collect Consult Data directly and may also use third party software for this purpose. Customer agrees that INFINITI: (i) may create aggregate and/or de-identified information from Consult Data (“Aggregate Data”); (ii) may offer Customer suggestions based on Aggregate Data; (iii) may combine such Aggregate Data and/or de-identified Consult Data with other information, (iv) may use Consult Data and/or the Aggregate Data to conduct research, publish reports, develop new products and services and to perform scholarly activities such as the preparation of scientific manuscripts or lectures; and, (v) has the exclusive ownership of any Aggregate Data and the exclusive right to use Aggregate Data for any purpose as long as INFINITI does not use or distribute any Aggregate data in a way which identifies Customer, Customer’s patients, Customer’s clients, Customer’s customers or Customer’s data. Customer grants to INFINITI a non-exclusive, royalty-free, worldwide, irrevocable, perpetual sub-licenseable right and license to use and incorporate into any of INFINITI’s product offerings and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or Customer’s patients, Customer’s clients, Customer’s customers and Consult Data relating to the Services. Customer represents and warrants that Customer (and Customer’s Personnel, as applicable) has all necessary rights, licenses, consents, and permissions to provide Consult Data and to authorize INFINITI to use and distribute Consult Data as contemplated by this Agreement. Customer represents and warrants that Consult Data does not (i) infringe, violate, or misappropriate any third party right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause INFINITI to violate any law or regulation.
6. Survival. The provisions of Sections 4, 5, 7, and 9 shall survive the expiration, cancellation or termination of this Agreement. The expiration or termination of this this Agreement shall not impair any right or obligation of either Party accruing prior to the effective date of such expiration, cancellation or termination.
7. Force Majeure. INFINITI shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from causes beyond the reasonable control of INFINITI, including but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of a public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, labor disputes, labor or material shortages, embargo, failure or delays in transportation, unavailability of components or parts used in connection with the Services, acts of God, acts of the federal or a foreign government or any agency thereof, acts of any state or local government or any agency thereof, and judicial action. Should such a delay or failure occur, INFINITI may reasonably extend delivery of the Services or, at its option, cancel this Agreement in whole or part without any liability other than to return any prepayment.
8. Termination. Either party may terminate this Agreement on thirty (30) days’ written notice.
9. General. Any delay in enforcing a party’s rights under this Agreement, or any waiver as to a particular default or other matter, will not constitute a waiver of such party’s rights to the future enforcement of its rights under this Agreement, except with respect to an express written waiver relating to a particular matter for a particular period of time signed by Consultant and an authorized representative of the waiving party, as applicable. This Agreement supersedes all prior agreements between the parties and constitutes the entire agreement between the parties as to the subject matter hereof. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the party in writing. This Agreement will be governed by and construed in accordance with the laws of California, without reference to conflict of laws principles. Any dispute under or related to this Agreement may be brought solely in the state courts and the Federal courts located San Mateo CA (state court) and in the Northern District of California, San Francisco, CA (Federal court), and the Parties hereby consent to the personal jurisdiction and venue of these courts. In any action or proceeding to enforce rights under this Agreement, the prevailing Party shall be entitled to recover costs and attorneys’ fees. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY FOR DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION COUNTERCLAIMS REGARDING SUCH DISPUTES, CLAIMS RELATED TO THE PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, AND OTHER CHALLENGES TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. THE WAIVER IN THE PRECEEDING SENTENCE APPLIES REGARDLESS OF THE TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY.