These Terms of Use (“TOU”) govern your access to and use of the OpenFLIS Platform (defined below) offered by Synergetics Incorporated, a Colorado corporation (“Synergetics”, “we”, “our”, or “us”).
Prior to your use of the OpenFLIS Platform, you must indicate your acceptance of these TOU. By using the OpenFLIS Platform, or by clicking “Agree”, you indicate that you have read, understand, and agree to be legally bound to these TOU. If you use the OpenFLIS Platform on behalf of an organization, you agree to these TOU on behalf of that organization and you represent and warrant to Synergetics that you have the authority to do so. In such case, “you” and “your” will refer to that organization. Synergetics and you are sometimes individually referred to as a “Party” and collectively referred to as the “Parties.” Accordingly, the Parties agree as follows:
Other Terms.
You shall not assign these TOU without our prior, written consent. We may assign these TOU without your consent to: (a) a subsidiary or affiliate; (b) an acquirer of our equity, business or assets; or (c) a successor by merger. Any purported assignment by you in violation of this Section is void. No joint venture, partnership, employment, or agency relationship exists between you, us or any third party as a result of these TOU or use of the OpenFLIS Platform. If any provision of these TOU is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Our failure to enforce any right or provision in these TOU shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Nothing shall be construed as creating a partnership, joint venture, agency or any other relationship. These TOU are not made for, and shall not benefit or create any right or cause of action in favor of or for the benefit of, any person or entity other than Synergetics and you.
The Platform.
Synergetics operates the OpenFLIS online platform (the “OpenFLIS Platform”) that facilitates the collation, retrieval, and dissemination of certain data (“Data”) related to certain items which are available for purchase by government entities. Subject to these TOU, Synergetics hereby grants you a non-exclusive, revocable, nontransferable right and license to access and use the OpenFLIS Platform during the Term (defined in Section 6).
Use of the OpenFLIS Platform is subject to your compliance with these TOU and all policies that further govern your access to or use of the OpenFLIS Platform, including those available at /support/privacy (“Policies”). Synergetics may publish or amend the Policies at any time and for any reason. If you use the OpenFLIS Platform, then you will be bound by the OpenFLIS Platform’s then-current Policies. Synergetics will post all updates to these TOU and the Policies, and your continued use of the OpenFLIS Platform after such modifications will constitute your: (i) acknowledgment of the modified TOU and/or Policies; and (ii) agreement to abide and be bound by the new TOU and/or Policies.
Synergetics reserves the right to change any aspect of the OpenFLIS Platform without notice to you.
Synergetics will use commercially reasonable efforts to ensure that the OpenFLIS Platform is updated and functional. Notwithstanding the foregoing, you acknowledge and agree that the OpenFLIS Platform may experience downtime for routine or emergency maintenance.
Use of the OpenFLIS Platform.
You shall maintain the security of your log-in credentials to the OpenFLIS Platform. You are responsible for any expense, loss, or liability caused by the loss or breach of those credentials.
You shall not use the OpenFLIS Platform or any of its systems, code, or APIs to: (i) violate the security of, or gain unauthorized access to, any computer, computer network, or other device or system; (ii) discover passwords or security encryption codes; (iii) use any robot, spider, site search or retrieval application, or other device to retrieve or index any portion of the OpenFLIS Platform or the Data; (iv) attempt to duplicate all or any part of the OpenFLIS Platform or its code, or the Data; (v) attempt to reverse engineer or decompile any of the OpenFLIS Platform code, or to attempt to create a substitute or competing OpenFLIS Platform; (vi) disrupt the functionality of the OpenFLIS Platform or disrupt another user’s use of or access to the OpenFLIS Platform; or (vii) violate any law or regulation.
You acknowledge and agree that Synergetics is not providing archive services and that the OpenFLIS Platform is not intended to function as archives for any Data.
You shall: (i) provide all equipment, operating systems, software, and network connectivity needed to use and access the OpenFLIS Platform; (ii) be responsible for your authorized users’ compliance with this Agreement; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of OpenFLIS Platform, and notify Synergetics promptly of any such unauthorized access or use; and (iv) use the OpenFLIS Platform only in accordance with applicable laws and government regulations.
Data.
You acknowledge and agree that Synergetics has no obligation to verify the accuracy, completeness, or reliability of the Data that populates the OpenFLIS Platform, and Synergetics is not responsible for the specific content of the Data. Synergetics will use commercially reasonable efforts to maintain the integrity of the Data as it was received by Synergetics from third parties.
Unless otherwise specified, you acknowledge and agree that the Data is sourced from certain public sources, and is not originated by the OpenFLIS Platform. Synergetics makes no representations or warranties that the Data is accurate, reliable, or complete.
You grant Synergetics (including any licensors, third-party hosting providers, or other providers or contractors acting on its behalf) a worldwide, non-exclusive, royalty-free license to access, use, copy, distribute, perform, and display all data and information submitted by you through the OpenFLIS Platform, including registered account information, and information collected automatically from your use of the OpenFLIS Platform, such as request logs and session cookies (“Usage Data”): (i) as reasonably necessary to provide the OpenFLIS Platform; (ii) to prevent or address service or technical problems or at your request in connection with customer support matters; (iii) in order to improve or modify the OpenFLIS Platform; (iv) as compelled by law; and (v) as otherwise expressly permitted in writing by you. Subject to the limited licenses granted herein, Synergetics acquires no right, title, or interest under these TOU in or to Usage Data.
Notwithstanding anything to the contrary, Synergetics may aggregate, anonymize, or otherwise de-identify any information or data including Usage Data collected from you or your authorized users and use and disclose such information or data without restriction, provided that such aggregated, anonymous, or otherwise de-identified information or data does not individually identify you (“Anonymized Data”) prior to disclosure to a third party, except that Synergetics may disclose individually identifiable information or data to its licensors, third-party contractors, or providers who are subject to confidentiality obligations. Synergetics retains all intellectual property rights in Anonymized Data.
Products.
The OpenFLIS Platform enables you to access the Data in order to search for products which are available for sale by third party retailers (“Retailers”). We do not sell, offer to sell, or solicit sales of any products. No transactions for the purchase and sale of products will take place on the OpenFLIS Platform.
You acknowledge and agree that Retailers, not Synergetics, set the price of the products that appear on the OpenFLIS Platform, and Retailers and their delivery providers may charge you additional fees, including but not limited to delivery fees, redelivery fees, and restocking fees.
The listings for products appearing on the OpenFLIS Platform may contain technical, typographical, or photographic errors. We do not represent or warrant that any of the descriptions appearing on the OpenFLIS Platform are accurate, complete, or current.
Intellectual Property Ownership, and Reservation of Rights.
The Synergetics name, the Synergetics logo, the OpenFLIS logo, and all related names, logos, product and service names, designs, and slogans (collectively, “Synergetics Marks”) are trademarks of Synergetics. You shall not use the Synergetics Marks without our prior written consent. All other Retailer names, logos, product and service names, designs, and slogans (“Other Marks”) on the OpenFLIS Platform are the trademarks of their respective owners. You shall not use the Other Marks without the prior written consent of the respective owner of the Other Marks.
Synergetics exclusively owns all intellectual property rights in and to the OpenFLIS Platform. You acknowledge and agree that the OpenFLIS Platform is provided under license, and not sold, to you. You do not acquire any ownership interest in the OpenFLIS Platform, the Data, or any other rights thereto other than to use the OpenFLIS Platform in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these TOU. We reserve and shall retain our entire right, title to, and interest in the OpenFLIS Platform, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these TOU.
Synergetics may use any feedback received by you to create, develop, or modify the OpenFLIS Platform or any other Synergetics concept, brand, software code, product, or feature (“Improvements”), and Synergetics will own all intellectual property rights in such Improvements. If you are deemed to have any ownership interest or rights in an Improvement, then you shall and hereby do assign all of those interests and rights to Synergetics.
Term and Termination.
The term of these TOU commences on the earlier of (i) the day that you begin using the OpenFLIS Platform, or (ii) the day that you click “Agree”, and continues, unless and until terminated (“Term”).
Either Party may terminate these TOU for any reason by giving the other Party a thirty (30) day written notice.
Synergetics may terminate these TOU immediately upon giving you notice if Synergetics has reason to believe that you have breached any of your obligations in Section 2.
Upon termination of these TOU, all licenses granted to you under this Agreement shall immediately cease. For clarity, in the event of termination of these TOU, Synergetics shall have the right to continue to use all Usage Data and Anonymized Data as set forth herein.
Synergetics may, with or without notice, suspend, terminate, or otherwise deny your, or any other person’s access to or use of all or any part of the OpenFLIS Platform, without incurring any resulting obligation or liability, if: (i) required by applicable law or valid legal order; (ii) Synergetics becomes aware of or suspects that the OpenFLIS Platform has a security deficiency; or (iii) Synergetics believes, in its sole discretion, that you: (x) have failed to comply with any term of these TOU, or accessed or used the OpenFLIS Platform beyond the scope of the rights granted or for a purpose not authorized under these TOU; or (y) are, have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities, or engaged in any other activity that may threaten or damage the reputation of Synergetics. This Section does not limit any of Synergetics’s other rights or remedies, whether at law, in equity, or under these TOU.
The terms and conditions of Sections 1.b, 2, 3, 5, and 7-13 shall survive the expiration or termination of these TOU.
Disclaimer of Warranties.
THE OPENFLIS PLATFORM AND THE DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TOU, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE OPENFLIS PLATFORM, THE DATA, OR THE PRODUCTS DISPLAYED VIA THE OPENFLIS PLATFORM, OR THAT ACCESS TO THE OPENFLIS PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. WE DO NOT REPRESENT OR WARRANT THAT THE OPENFLIS PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE OPENFLIS PLATFORM, AND ANY PRODUCTS VIEWED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT CONTROL, MANAGE OR DIRECT ANY RETAILERS. RETAILERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR OUR EMPLOYEES.
Limitation of Liability.
WE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE OPENFLIS PLATFORM, REGARDLESS OF OUR NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WE SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE OPENFLIS PLATFORM OR DATA OR YOUR INABILITY TO ACCESS OR USE THE OPENFLIS PLATFORM OR DATA; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL.
THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON OUR CHOICE OF LAW PROVISION SET FORTH BELOW.
Indemnification. You shall indemnify and hold Synergetics and our affiliates and our and their officers, directors, employees, and agents harmless from and against any and all actions, claims, demands, losses, liabilities, costs, damages, and expenses (including attorneys’ fees), arising out of or in connection with: (a) your use of the OpenFLIS Platform and Data; (b) your breach or violation of any of these TOU; or (c) your violation of law or violation or infringement of the rights of any third party, including Retailers.
Dispute Resolution and Applicable Law. At Synergetics’ sole discretion, we may require you to submit any disputes arising from these TOU, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Colorado law. The laws of the State of Colorado, excluding its conflicts of law rules, govern these TOU. You must comply with any local, state or national laws applicable to your use of the OpenFLIS Platform.
Notice. You shall give notice to us by sending an email to legal@synergetics.com. Such notice shall be deemed given on the next business day after such e-mail is actually received by Synergetics.
Entire Agreement. These TOU embody the entire understanding between the Parties and supersede any and all prior understandings, arrangements, and agreements, whether oral or written, relating to the subject matter hereof. These TOU shall not be modified or amended except by a written document executed by both Parties.