Welcome to the ZB MarketSmart Website. THESE TERMS OF USE (“Terms of Use”) GOVERN YOUR (“You” or “Your”) USE OF THIS ZIMMER WEBSITE (“Website”) THAT IS PROVIDED BY ZIMMER BIOMET, INC. (“Zimmer Biomet,” “We” or “Our”). YOUR USE OF THE WEBSITE CONFIRMS YOUR ACCEPTANCE OF THESE TERMS OF USE. THESE TERMS OF USE ARE SUBJECT TO CHANGE BY ZIMMER BIOMET AT ANY TIME AT ITS DISCRETION. YOUR USE OF THE WEBSITE AFTER SUCH CHANGES ARE IMPLEMENTED CONFIRMS YOUR ACCEPTANCE OF THE CHANGES.

1. Scope. The purpose of the Website is to provide you templates for marketing materials, which you may at your own discretion use and purchase to market to referring physicians or patients. These Terms of Use are incorporated by reference into the Registration Agreement. Our goal is to make You a satisfied user of the Website. We want Your experience to be a positive one. You promise that all information that You provide will be accurate. It is up to You to determine whether or not to use Content (as defined below), including whether to place an order for products or services with any vendor. Although We take steps to determine the qualifications of the vendors, We do not guarantee or warrant the products or services that they may offer to You. We do not have any involvement with any contract that You may enter into with any participating vendor, and We do not guarantee or otherwise warrant the performance, outcome or quality of the products or services. Should You have any dispute with any vendor, You must address such dispute to the vendor directly. Zimmer Biomet shall have no responsibility for resolving any disputes between You and any vendor.

2. Permitted Use. Zimmer Biomet grants You a nonexclusive, nontransferable, limited, revocable right to use the Website solely for Your internal business purposes. The Website is not intended for consumer or household purposes. You will not use the Website for any other purpose that is inconsistent with the Program. You will not interfere with or disrupt the service or servers or networks connected to the service, or disobey any requirements, procedures, policies, or regulations of networks connected to the service. You will not intentionally or unintentionally violate any applicable local, state, national or international law. You can only use such Content for the Zimmer Biomet products applicable to the Content, for which they were created and offered. Your access to the Website may be terminated at any time and for any reason. You can not and will not authorize any other party to (i) Co-brand the Website, (ii) frame the Website, (iii) hyper-link to the Website or (iv) run any third party ad server software while viewing the Website, without the express prior written permission of an authorized representative of Zimmer Biomet. In these Terms of Use, “co-branding” means to display a name, logo, trademark or other means of attribution or identification of any party in a manner that is reasonably likely to give the impression that such other party has the right to display, publish or distribute the Website or content accessible within the Website, “framing” means to display the Website on the same screen with a portion of another website and “third party ad server software” means software from a third party that causes advertisements to appear while You are viewing the Website. You agree to cooperate with Zimmer Biomet in causing any unauthorized co-branding, framing or linking to immediately cease and to disable any third party ad server software while viewing the Website. Operators of other websites may not maintain links to this Website without Zimmer Biomet’s prior written consent. Zimmer Biomet reserves the right to prohibit other websites from linking to this Website.

3. Proprietary Information. The content accessible within the Website (the “Content”) is the proprietary information of Zimmer Biomet or the party that provided the Content to Zimmer Biomet, and Zimmer Biomet or the party that provided the Content to Zimmer Biomet retains all rights, titles and interest in the Content. Accordingly, except as otherwise permitted on the Website, You will not reproduce, transmit, publish or distribute such Content without the express written consent of Zimmer Biomet, except that You may print out a copy of Content solely for Your personal use. In doing so, You will not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark or any other proprietary notice or legend appearing on any of the Content.

4. Links. The Website will provide You with access to a variety of sources of content through the Internet, including links that will take You from the Website to other websites, including without limitation websites of vendors. The linked websites are not under the control of Zimmer Biomet, and We are not responsible for the content of any linked website or any webcasting or other links associated with such linked websites. Zimmer Biomet is providing these links “as is-where is” without warranty of any kind, and the inclusion of the links does not imply endorsement by Zimmer Biomet of the linked website or the content thereof. Zimmer Biomet has made no effort to verify the accuracy or suitability of any information contained in any such sources. Accordingly, Zimmer Biomet will have no liability or responsibility whatsoever for any content contained within any such sources. You acknowledge and agree that You access, use and rely upon such content at Your own risk.

5. Disclaimers. You acknowledge that Zimmer Biomet does not own, operate, control or endorse any of the products or services offered by vendors. You understand and acknowledge that such vendor services and products are optional to You, for your convenience. You also understand that Zimmer Biomet cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of infection, viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for accuracy of data input and output, and for maintaining a means external to the Website for the reconstruction of any lost data. Zimmer Biomet does not assume any responsibility or risk for Your use of the Internet. All of the information in the Website, whether historical in nature or forward-looking, speaks only as of the date the information is posted on the Website, and Zimmer Biomet does not undertake any obligation to update such information after it is posted or to remove such information from the Website if it is not, or is no longer, accurate or complete.

THE WEBSITE AND ITS CONTENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. ZIMMER BIOMET EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IN CONNECTION WITH YOUR USE OF ANY PRODUCTS OR SERVICES OF VENDORS, AND INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ZIMMER BIOMET DOES NOT WARRANT THAT THE FUNCTIONS OR CONTENT CONTAINED IN THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ZIMMER BIOMET DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE CONTENT IN TERMS OF ACCURACY, RELIABILITY OR OTHERWISE. THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND ZIMMER BIOMET MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. YOU, AND NOT ZIMMER BIOMET, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE WEBSITE OR ITS CONTENT. ZIMMER BIOMET MAKES NO WARRANTIES THAT YOUR USE OF THE CONTENT WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT.

6. Limitation on Liability. ZIMMER BIOMET AND ITS AFFILIATES, PARTNERS, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS AND CONTRACTORS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS OR SIMILAR DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF ZIMMER BIOMET AND ITS AFFILIATES, PARTNERS, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS AND CONTRACTORS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE SUM OF $100.00. YOU HEREBY AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF YOUR USE OF THE WEBSITE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR BE FOREVER BARRED.

7. Indemnity. YOU WILL INDEMNIFY AND HOLD ZIMMER BIOMET AND ITS AFFILIATES, PARTNERS, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS AND CONTRACTORS AND THEIR RESPECTIVE EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, (THE “INDEMNIFIED PARTIES”) HARMLESS FROM ANY CLAIMS, DAMAGES, OR LIABILITIES ARISING FROM (a) ANY BREACH OF THESE TERMS OF USE OR A REGISTRATION AGREEMENT (IF APPLICABLE) BY YOU, INCLUDING ANY USE OF CONTENT OTHER THAN AS EXPRESSLY AUTHORIZED IN THESE TERMS OF USE, (b) YOUR USE OF THE WEBSITE OR YOUR USE AND MODIFICATION OF ANY INFORMATION ACCESSED FROM THE WEBSITE AND (c) ANY DISPUTES ARISING BETWEEN YOU AND ANY VENDORS PURSUANT TO THIS WEBSITE OR ANY LINKED WEBSITE. YOU AGREE THAT THE INDEMNIFIED PARTIES WILL HAVE NO LIABILITY IN CONNECTION WITH ANY SUCH MATTER, AND AGREE TO INDEMNIFY ANY AND ALL RESULTING LOSSES, DAMAGES, JUDGMENTS, AWARDS, COSTS, EXPENSES AND ATTORNEYS’ FEES OF THE INDEMNIFIED PARTIES IN CONNECTION THEREWITH.

8. Interactive Features. Information posted on or accessible through links (to other websites) made available on the Website is supplied by third parties and other users unless Zimmer Biomet or its authorized representative identifies itself as the Content provider. Any opinions, advice, statements, services, offers or other information or Content expressed or made available by third parties, including without limitation any other user, are those of the respective authors and not of Zimmer Biomet, and Zimmer Biomet shall have no liability therefore. You will not post, send, submit, publish or transmit in connection with the Website any material that:

  • is defamatory or libelous;
  • You do not have the right to post, including the proprietary material of any third party;
  • does not pertain directly to the Website;
  • infringes any intellectual property or other right of any entity or person, including violating anyone’s copyrights or trademarks or their rights of publicity;
  • violates any law, regulation, or may be considered to violate any law or regulation, including all applicable health care laws dealing with patient health information;
  • advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners and/or soliciting goods or services) except as may be specifically authorized on the Website;
  • includes programs which contain viruses, worms and/or “Trojan horses” or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications;
  • disobeys any policy or regulations established from time to time regarding use of the Website or any networks connected to the Website; or
  • contains hyper-links to other websites that contain content that falls within the descriptions set forth above.

Zimmer Biomet reserves the right to monitor use of the Website to determine compliance with these Terms of Use, as well the right to remove or refuse any information for any reason. Notwithstanding these rights, You remain solely responsible for the content of Your submissions, and any changes you make to the materials provided in the Website. You acknowledge and agree that neither Zimmer Biomet nor any third party content provider will assume or have any liability for any action or inaction by Zimmer Biomet or any third party content provider with respect to any submission. You will not (i) select or use a user name or e-mail address of another person with the intent to impersonate that person; (ii) use a user name or e-mail address subject to the rights of any person without authorization; (iii) use a user name in violation of the intellectual property rights of any person; or (iv) use a user name that Zimmer Biomet, in its sole discretion, deems offensive.

Further, You hereby grant to Zimmer Biomet the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any submission (in whole or in part) worldwide or to incorporate any submission in other works in any form, media or technology now known or later developed. Zimmer Biomet will not be required to treat any submission as confidential, and may use any submission in its business (including without limitation, for products or advertising) without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in future Zimmer Biomet operations.

9. Information. Any information posted by third parties on this website is for informational purposes only. Although care has been taken to provide accurate and current information, the general principles and information presented at this website may differ depending on local, state, and federal laws and regulations. You are encouraged to consult professional advice for any specific problem. No information on this website is intended to constitute legal advice and no attorney-client relationship can be formed. Zimmer Biomet does not warrant or guarantee the accuracy, completeness, adequacy, or currency of the information contained in or linked to this website. Your use of information on this website is entirely at Your own risk.

10. Trademarks. Zimmer Biomet and all of its trademarks and logos are the property of Zimmer Biomet, Inc. Other trademarks, service marks and logos appearing in the Website are the property of the applicable Zimmer Biomet content providers. Zimmer Biomet and its content providers retain all rights with respect to any of their respective trademarks, service marks or logos appearing in the Website.

11. Security. Any passwords used for the Website are for individual use only. You will be responsible for the security of your password (if any). Zimmer Biomet will be entitled to monitor your password and, at its discretion, require you to change it. If you use a password that Zimmer Biomet does not consider secure, Zimmer Biomet will be entitled to require the password to be changed and/or terminate Your account.

You are prohibited from using any services or facilities provided in connection with the Website to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If You become involved in any violation of system security, Zimmer Biomet reserves the right to release Your details to system administrators at other sites in order to assist them in resolving security incidents. Zimmer Biomet reserves the right to investigate suspected violations of these Terms of Use.

Zimmer Biomet reserves the right to fully cooperate with any law enforcement authorities or court orders requesting or directing Zimmer Biomet to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms of Use. YOU WAIVE AND HOLD HARMLESS ZIMMER BIOMET FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ZIMMER BIOMET DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER ZIMMER BIOMET OR LAW ENFORCEMENT AUTHORITIES.

12. Miscellaneous. The purpose of the Website is to provide You templates for marketing materials, which you may at your own discretion use and purchase to market to referring physicians or patients. These Terms of Use are incorporated by reference into the Registration Agreement. Our goal is to make You a satisfied user of the Website. We want Your experience to be a positive one. You promise that all information that You provide will be accurate. It is up to You to determine whether or not to use Content (as defined below), including whether to place an order for products or services with any vendor. Although We take steps to determine the qualifications of the vendors, We do not guarantee or warrant the products or services that they may offer to You. We do not have any involvement with any contract that You may enter into with any participating vendor, and We do not guarantee or otherwise warrant the performance, outcome or quality of the products or services. Should You have any dispute with any vendor, You must address such dispute to the vendor directly. Zimmer Biomet shall have no responsibility for resolving any disputes between You and any vendor.

  • (a) Headings. The headings of Sections of these Terms of Use are for ease of reference only and shall not be admissible in any action to alter, modify or interpret the contents of any Section hereof.
  • (b) Severability. If any Section or provision of these Terms of Use be held illegal, unenforceable or in conflict with any law by a court of competent jurisdiction or arbitral tribunal, such Section or provision of these Terms of Use shall be deemed severed from these Terms of Use and the validity of the remainder of these Terms of Use shall not be affected thereby.
  • (c) Governing Law. These Terms of Use shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be enforced wholly within such state, notwithstanding any principles of conflicts of law.
  • (d) Arbitration. Any dispute or disagreement arising between the parties under these Terms of Use or pertaining to the subject matter hereof shall be resolved by binding arbitration under the Commercial Rules of the American Arbitration Association (“AAA”). Such arbitration shall be held in New York City, New York before an arbitral panel selected according to the rules of the AAA. EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
  • (e) Submission to Jurisdiction. Subject to (d) above, You specifically consent to personal jurisdiction in New York in connection with any dispute between the parties arising out of this Agreement or pertaining to the subject matter hereof.
  • (f) Waivers and Amendments. The waiver by either party of any provision of these Terms of Use on any occasion and upon any particular circumstances shall not operate as a waiver of such provision of this Agreement on any other occasion or upon any other circumstances. This Agreement may be waived or amended only in a writing signed by both parties.
  • (g) Entire Agreement. These Terms of Use constitute the entire agreement among the parties relating to this subject matter. Notwithstanding the foregoing, any additional terms and conditions on the Website (including without limitation a Registration Agreement) will govern the items to which they pertain. Zimmer Biomet may revise these Terms of Use at any time by updating this posting.