The following terms and conditions govern your access to and use of www.meadowssurgicalarts.com and related websites (altogether, the “Website”), including any content offered on or through the Website (the “Content”). By accessing this site, you accept and agree to be bound and abide by these terms. If you do not want to agree to these terms, you must not access or use this site.

1. APPLICATION OF TERMS AND THIRD PARTY BENEFICIARY

Meadows Surgical Arts, Inc. (the “Practice”) depicts products and services on the Website (all together, “Products”). The Practice provides the Website for your use in purchasing Products (the “Purpose”). The Practice is required by its suppliers to bind the users (“Users”) of this Website and its patients that use this Website (“Patients”) to certain flowdown terms and conditions (all together, the “Terms”). Accordingly, the Terms are the agreement between the Practice and its Users and Patients for the use of the Website for the purchase and sale of the Products. No contract or agreement shall exist directly between the Users and Patients and the suppliers to the Practice, including, but not limited to, the suppliers of the Website. The suppliers, however, shall benefit from and may enforce the Terms directly against Users and Patients of the Physician Practice as third party beneficiaries. Notwithstanding any contrary terms in the Terms, suppliers may enforce the Terms in court or by arbitration at the option of each supplier. Neither the Users nor the Patients of the Practice may benefit from or enforce against the suppliers these Terms or separate agreements between the Practice and its suppliers. The Users and the Patients will be contractually bound by, and be deemed to have accepted, the Terms by agreeing to the Terms through use of a Website mechanism for click-through acceptance of the Terms, by any use of the Website, or by any purchase or sale of Products (all together, the “Acceptance”).

2. CHANGE IN TERMS

The Practice may change the Terms at any time by posting revised Terms on the Website. The Practice reserves the right to withdraw or amend the website, and any material provided on this website, at its sole discretion at any time.

3. LICENSE AND OWNERSHIP OF WEBSITE AND CONTENT

This site and its entire contents are owned by the Practice, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

The Users and Patients may access this site for personal, non-commercial use only. Users and Patients may copy materials found on this site for your personal, non-commercial use only, provided that you do not modify copies of any materials or delete or alter any copyright, trademark or other proprietary rights notices.

The Practice name, the Practice logo and all related names, logos and designs are trademarks of the Practice or its affiliates or licensors. The Users and Patients must not use such marks without the prior written permission of the Practice.

The Users and Patients acknowledge and agree that, excluding User and Patient Information (as defined below), the Practice is, and will remain, the exclusive owner of the Website and the Content and derivatives of the Website and Content and all intellectual property rights in the Website and the Content and derivatives of the Website and Content, and that the Practice is, and will remain, the exclusive owner of all Content, including, without limitation, information provided by the Users, and/or Patients on the Website, or otherwise, including, but not limited to User and Patient Information (as defined below), from which identifying information concerning the Users and Patients has been removed (all together, “De-Identified Information”). Information owned by the Practice, including, but not limited to, De-Identified Information, may be used, copied, and/or disclosed by the Website supplier for any purpose, including, but not limited to, the Purpose.

4. PAYMENT

Each User or Patient will pay the Practice upon demand for the Products selected by the User or Patient by a valid credit card accepted by the Practice, or by other payment mechanism specified by the Practice, at the rates for the Products specified on the Website. Each User and Patient hereby agrees to provide the Practice (and its suppliers) all information and writings requested by Practice (and its suppliers) in connection with each User or Patient credit card or other payment and hereby authorizes the Practice (and its suppliers) (a) to retain, archive, and use each User or Patient credit card or other payment information and writings in connection with each User or Patient credit card or other payment and (b) to charge each User or Patient’s credit card for payments for Products selected by such User or Patient. In addition to all other rights and remedies in the Terms or available at law or in equity, the Practice (and its suppliers) may refuse to provide Products, suspend their performance, in whole or in part, and/or terminate the Terms, including, but not limited to, the License Terms, in whole or in part, for any delay or failure in payment by any User or Patient to the Practice.

5. TERM, TERMINATION, SUSPENSION OF PERFORMANCE, AND NOTICE

The Terms, as changed by the Practice from time-to-time in accordance with the Terms, are effective at the Acceptance and shall continue until termination of the Terms in accordance with the Terms. By written notice or Electronic Notice, the Practice may terminate the Terms or suspend or terminate its performance under and pursuant to the Terms, in whole or in part, for any one or more of the following causes: (a) breach of any of the Terms by any User or Patient; (b) failure by any User or Patient to pay any amount to the Practice when due; (c) breach of any License Term or Acceptable Use Term by any User or any Patient; (d) violation of any law by any User or Patient; or (e) any termination of the separate agreement between Physician Practice and its suppliers, or any termination or suspension of performance by its suppliers. In addition, the Practice may terminate the Terms and its performance as a whole for convenience by giving each User or Patient ninety (90) or more days advance written notice or Electronic Notice.

For avoidance of doubt, Practice suppliers shall have no obligation to provide written notice or Electronic Notice to Patients or Users under or in connection with the Terms or the separate agreements between the Practice and its suppliers. Written notice or Electronic Notice to Patients and Users will be provided by Practice. Notice shall be sent to addresses set forth in the Terms. The Practice’s address for notice is set forth in the Website. Users and Patients mail and electronic addresses for notice are the addresses provided by each User and each Patient to the Practice when each User or Patient opened his/her Website account with the Practice. Either party may change its notice address by notice sent in accordance with this section of the Terms. Termination for any or no reason will not relieve Users or Patients of their respective payment, confidential information, license, or indemnity obligations to Practice (or its suppliers), which will survive termination of the Terms.

6. LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF THE PRACTICE AND ITS SUPPLIERS TO USERS AND/OR ITS PATIENTS IN CONNECTION WITH THE TERMS, THIS WEBSITE, THE CONTENT, AND THE PRODUCTS, WHETHER IN TORT, INCLUDING, BUT NOT LIMITED TO, THE PRACTICE’S OR ITS SUPPLIERS’ NEGLIGENCE, CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE LOWER OF THREE (3) MONTHS OF PRICES PAID BY THE COMPLAINING USER OR PATIENT TO THE PRACTICE UNDER THE TERMS OR THE PRICE FOR THE PRODUCT GIVING RISE TO THE LIABILITY CLAIM BY THE COMPLAINING USER OR PATIENT. IN NO EVENT SHALL THE PRACTICE OR ITS SUPPLIERS BE LIABLE TO THE USERS OR PATIENTS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE PRACTICE OR ITS SUPPLIERS BE LIABLE IN DAMAGES TO USERS, PATIENTS, AND/OR THIRD PARTIES FOR CLAIMS OF INFRINGEMENT OF ANY KIND, AND THE ENTIRE LIABILITY OF THE PRACTICE AND ITS SUPPLIERS TO USERS, PATIENTS, AND/OR THIRD PARTIES FOR CLAIMS OF INFRINGEMENT SHALL BE LIMITED TO REMOVAL OF THE INFRINGING ITEM TO THE EXTENT REASONABLY POSSIBLE FROM THE WEBSITE AND/OR OTHER PUBLICATIONS OF THE PRACTICE SUPPLIERS.

7. DISCLAIMER OF WARRANTY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRACTICE AND ITS SUPPLIERS MAKE NO WARRANTIES TO THE USERS OR PATIENTS IN CONNECTION WITH THE WEBSITE, THE CONTENT, AND/OR THE PRODUCTS AND DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, OR OTHERWISE. THE WEBSITE, THE CONTENT, AND THE PRODUCTS ARE PROVIDED “AS IS” AND WITH ALL FAULTS. SOME STATE LAWS MAY NOT PERMIT THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTY. USERS AND PATIENTS SHOULD REVIEW THE LAWS OF THEIR STATES TO DETERMINE THE APPLICATION OF THE LIMITATIONS.

8. DISCLAIMER OF MEDICAL PRACTICE AND PHYSICIAN PRACTICE, USER, AND PATIENT COVENANTS

The Practice and its Users and Patients agree that the Practice suppliers, the Website, the Content, and/or the Products do not provide and are not engaged in the provision of professional medical services and the Website, the Content, and/or the Products do not comprise professional medical services. The Practice and its Users and Patients covenant and agree: (a) that the Practice alone (and not such suppliers) provides, is responsible for providing and will provide professional medical services to its Users and Patients who use or purchase the Website, the Content, and/or the Products; (b) that any Products purchased or sold by the Practice and/or its Users and Patients that are restricted under applicable law have been duly and lawfully prescribed by the Practice in connection with professional medical services provided by the Practice to its Users and Patients; (c) that Patients and Users of the Practice seek and will seek from the Practice (and not such suppliers), and the Practice (and not such suppliers) provide and will provide to its Users and Patients, professional medical services in connection with the Website, the Content, and/or the Products, and will not use such suppliers, the Website, the Content, and/or the Products as a substitute for professional medical services; and (d) that the Users and Patients of Physician Practice are at least eighteen (18) years of age and are fully competent to enter into contractual relationships.

9. INDEMNITY

Each User and Patient will, at his/her sole cost and expense, indemnify, hold harmless, and defend the Practice, the Practice suppliers, and their respective members, officers, employees, agents, and suppliers (all together, the “Physician Practice Indemnitees”) from and against all claims, demands, liability, actions, lawsuits, orders, and judgments (all together, the “Claims”) against the Practice Indemnitees arising from one or more of the following: (a) breach of any of the Terms including, but not limited to, any License Term and/or any Acceptable Use Term, by the indemnifying User or Patient; (b) the negligence or other wrongful act or omission of the indemnifying User or Patient; (c) the use or abuse of the Website, the Content, and/or any of the Products by the indemnifying User or Patient; and/or (d) violation of any law, rule, regulation, or order by the indemnifying User or Patient. The Practice will give the indemnifying User or Patient reasonable written or Electronic Notice of any written Claim subject to indemnification under these Indemnity Terms. The Practice, its indemnifying Users, and its indemnifying Patients will undertake promptly defense of all Claims using counsel acceptable to the Website supplier. If such defense is not undertaken promptly or is undertaken with counsel not acceptable to one or more of such suppliers, the affected indemnified supplier or suppliers may undertake such defense at the sole cost and expense of the Practice, its indemnifying Users and its indemnifying Patients.

10. USER AND PATIENT INFORMATION, LICENSE, AND COVENANTS

Users and Patients will provide to the Practice (and its suppliers) all information and writings requested by, and in a format specified by, the Practice in order to provide or depict the Website, other Practice supplier publications, the Content, and/or the Products to the Users and Patients, other users of other supplier publications, and/or to perform or enforce any of these Terms (all together, the “User and Patient Information”).

The Users and Patients agree, covenant and grant as follows: (a) that the Practice (and its suppliers) will and may rely upon the User and Patient Information in order to provide or depict the Website, other Practice supplier publications, the Content, and/or the Products, to perform or enforce any of these Terms, for other purposes permitted in the Terms or applicable law, and for purposes set forth in the Website privacy policy set forth on this website; (b) the Practice (and its suppliers) are hereby granted a world-wide, non-exclusive, royalty-free, transferable, irrevocable, and perpetual license (with a right to sublicense third parties) to use, reproduce, copy, disclose, distribute, transmit, transfer, post, upload, display, adapt, modify, and make derivative works of the User and Patient Information in order to provide or depict the Website, other Physician Practice supplier publications, the Content, and/or the Products, to perform or enforce any of these Terms, for other purposes permitted by these Terms or applicable law, and for purposes permitted by the Website privacy policy set forth on this website; (c) User and Patient Information is complete and accurate and does not infringe the rights or property of third parties; (d) the Users and Patients, as applicable, own the User and Patient Information and/or have all rights and consents necessary to perform the Terms, including, but not limited to, the right to grant the licenses and sublicenses under this section of the Terms; and (e) the Users and Patients hereby consent to use of the User and Patient Information as described in the Terms and will provide written evidence of such consent as requested by the Practice (and/or its suppliers) from time-to-time.

11. CONFIDENTIAL INFORMATION

(a) Unless otherwise required by law, no information provided by the Users and/or Patients to the Practice (and/or its suppliers), including, but not limited to User and Patient Information, is confidential information of the Users and/or Patients. Information provided by the Users and/or Patients may be used, disclosed, and copied by Practice (and its suppliers) for any purpose permitted by applicable law and/or the Terms or otherwise. The Practice Users and Patients hereby consent to and authorize such use, disclosure, and copying, and such Users and Patients will provide written evidence of such consent and authorization as requested by the Practice or it suppliers from time-to-time. (b) The following information is and shall remain the confidential information and the sole and exclusive property of the Practice: (i) De-Identified Information; (ii) Content which is not publicly available without restriction, including, but not limited to, pricing; (iii) software programming code for the Website and Content; (iv) the Terms; and (v) other information designated by the Practice as confidential information from time-to-time. If disclosed to the Users and/or Patients, such confidential information shall be used by them solely for the Purpose and shall not be copied or disclosed by them to third parties unless such copying or disclosure is approved in advance in writing by the owner of the confidential information. The Users and Patients have no interest or right in such confidential information except as expressly granted by the Terms and will return or destroy all copies of such confidential information in their possession or control upon demand by the owner of such confidential information and/or upon termination of the Terms and/or any license to use such confidential information.

12. ACCEPTABLE USE

The Practice (and/or its suppliers) may terminate, deny, suspend or otherwise restrict access to or use of the Website or the Content by Users and/or Patients, or terminate, in whole or in part, the Terms, if use, disclosure, or copying of the Website or Content by Users and/or Patients, in the sole discretion of Physician Practice (and/or its suppliers), violates the Terms, is objectionable or unlawful, and/or interferes with the functioning or use of the Website and/or the Content by the Practice, its suppliers or other users.

Violation of Acceptable Use Terms includes, but is not limited to, any one or more of the following: (a) accessing without permission or right the accounts, the Website, the Content, or computer systems of the Practice, its suppliers or other persons, spoofing the URL, DNS or IP addresses of the Practice, its suppliers or any other person, and/or penetrating the security measures of the Website or computer system or any other person’s computer system, or to attempt any of the foregoing; (b) transmitting uninvited communications, data or information, or engaging in other similar activities, including, but not limited to, “spamming”, “flaming” or denial of service attacks; (c) intercepting, interfering with or redirecting email or other transmissions sent by or to the Practice, its suppliers or others; (d) introducing into the Website and related networks viruses, worms, harmful code or Trojan horses; (e) engaging in conduct that is defamatory, fraudulent, obscene or deceptive; (f) infringing or otherwise violating the Practice’s, its suppliers’ or any other person’s copyright, trademark, patent, trade secret, proprietary, or other intellectual property rights; (g) engaging in any conduct harmful to the Website, the Content, the related networks, and/or other users of the same; and/or (h) using the Website or the Content to violate or in violation of applicable law.

13. MISCELLANEOUS

(a) The Terms are the entire agreement between the Users, the Patients, and the Practice and they supersede all prior or contemporaneous agreements, representations, and understandings.

(b) The Terms may be changed only by the Practice (and/or its suppliers) in accordance with the Terms. (c) Any party may waive performance of any Term by another party by written notice signed by the waiving party or by Electronic Notice from the waiving party. No other waivers shall be effective.

(d) All obligations incurred by a party under the Terms, including, but not limited to Payment Terms, Confidential Information Terms, Indemnity Terms, and License Terms shall survive termination of the Terms.

(e) In the event that a party commences litigation, mediation, or arbitration of a dispute against another party in connection with the Terms, the legal expenses and costs, including, but not limited to attorneys’ fees and other costs of litigation, mediation or arbitration, of the party that prevails in such litigation, mediation, or arbitration shall be paid by the party that did not prevail.

(f) The Practice may assign the Terms to a successor in interest without notice and/or to another person or entity by written notice or Electronic Notice to the affected Users and Patients. The Users and Patients may not assign the Terms without the prior written consent of the Practice, which consent may be given in the Practice’s sole discretion, and, if given, by either by written notice or Electronic Notice by the Practice to the affected Users and/or Patients.

(g) In addition to payments due for Products, the Users and/or Patients will pay all taxes, duties, and fees required by law in connection with Products, other than taxes on net income owed by the Practice, unless an exemption applies by law and is duly documented by the Users and/or Patients to the satisfaction of the Practice.

(h) The Practice, Users and Patients are independent contractors and not agents or employees of the other. Except as otherwise expressed in the Terms, neither party may act for or bind the other. The persons furnished by each party are the employees or contractors of the furnishing party and not the employees or contractors of the other party. The furnishing party will be solely responsible for compliance with labor and tax laws applicable to that party’s employees and contractors.

(i) In the event that any term of the Terms is held to be unenforceable, the unenforceable term shall be severed from the remainder of the Terms and the remaining enforceable Terms shall be performed by the parties.

(j) The Practice (and its suppliers) shall not be liable to Users and/or Patients for any failure or delay in performance due to causes beyond the Practice’s (or each of its supplier’s) reasonable control, including, but not limited to, weather, fire, storm, flood, earthquake, or other acts of God, war, terrorism, embargo, boycott, strikes or other labor disputes, delays or failures in transportation, acts of government, civil, or military authority, delays or failures by suppliers, and other causes beyond the Practice’s (or each of its supplier’s) reasonable control. The Practice’s (and each of its supplier’s) time for performance shall be extended by a period of time at least equal to the time period of the foregoing cause or causes.

(k) The Terms shall be governed by and construed in accordance with the laws of the State of Georgia, except laws concerning conflicts of law and venue for all permitted lawsuits and arbitrations in connection with these Terms shall be in Jackson County, Georgia, unless otherwise agreed in writing by the parties to such lawsuits or arbitrations. The Users and Patients consent to personal jurisdiction of courts and arbitrations in Jackson County, Georgia and will not object to such venue.

(l) In lieu of judicial resolution of disputes in connection with the Terms, other than the Practice (or its suppliers) claims for breach of License, Indemnity, Confidential Information, or Payment Terms, or claims by the Practice (or its suppliers) for injunctive or other equitable relief in favor of the Practice (or its suppliers), the the Practice and its Users and Patients agree to binding, final, confidential, non-class action commercial arbitration by the American Arbitration Association or JAMS, at the option of the Practice and/or its suppliers, of such disputes, subject to the Federal Arbitration Act, 9 U.S.C. sec. 1, et seq. Any party may commence such arbitration after written or electronic notice of the dispute is given by the complaining party to the other parties, provided that the affected parties have not been able to resolve the dispute by negotiation for at least five (5) business days after the dispute arises. The prevailing party in the arbitration may cause any court with jurisdiction to enter the final decision of the arbitrator(s) as a final judgment in accordance with applicable law.

THE FOREGOING TERMS WILL WAIVE THE RIGHT TO FILE A LAWSUIT IN COURT, WAIVE THE RIGHT TO A JURY TRIAL AND BAR CLASS ACTION LAWSUITS. THE USERS AND PATIENTS WILL NOT OBJECT TO SUCH WAIVERS AND BAR.

(m) Risk of loss for Products purchased by Users or Patients shall pass to Users or Patients at the time of purchase. The Practice retains, and Users and Patients hereby grant to the Practice, a purchase money security interest in the purchased Products until full payment for such Products is received by the Practice. The Practice and its suppliers shall have no liability for loss of, damage to, or injury to Products after purchase by Users or Patients. Users and Patients acknowledge and agree that each of them may purchase insurance to cover such risk of loss and that the Practice and its suppliers will not purchase such insurance for the benefit of Users and Patients.

(n) If any person believes the Website or Content infringes that person’s copyright, that person should provide notice in writing to the Practice at: Meadows Surgical Arts, Attention: Dr. Lionel Meadows, P.O. Box 1238, Commerce, GA 30529, or at the Practice email address at [email protected] with the following information: (i) signature of copyright owner or person authorized to act on behalf of the owner; (ii) identification of copyrighted work claimed to be infringed; (iii) identification of the material claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact the complaining party (address, phone number and, if available, email address); (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right allegedly being infringed.

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Terms and Conditions