READ THIS WEBNOVA END USER LICENSE AGREEMENT AND TERMS OF USE (THE “AGREEMENT”) carefully before accepting it and USING the Webnova Application. REFERENCES IN THIS AGREEMENT TO “WEBNOVA” MEAN THE Webnova WEBSITE (“WEBSITE”) INTENDED FOR USE BY healthcare professionals; ALL RELATED MATERIALS, DOCUMENTATION, PROCESSES, LEARNINGS, MODELS, ALGORITHMS, SOFTWARE, SYSTEMS, AND TECHNOLOGIES, INCLUDING, WITHOUT LIMITATION, ALL RELATED DATA MANAGEMENT SYSTEMS; AND ALL IMPROVEMENTS, MODIFICATIONS, ENHANCEMENTS, AND DERIVATIVES OF OR TO ANY OF THE FOREGOING.
You accept this Agreement by CLICKING “I AGREE,” REGISTERING TO USE, USING the WEBSITE, or by continuing to use the WEBSITE after being notified of a change to this Agreement. WHEN YOU ACCEPT THIS AGREEMENT, YOU AGREE TO IT ON YOUR INDIVIDUAL BEHALF AND ON BEHALF OF THE ENTITY OR ORGANIZATION BY WHICH YOU ARE EMPLOYED OR RETAINED AND FOR WHOSE BENEFIT YOU ARE USING THE WEBSITE (“ORGANIZATION”). THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU INDIVIDUALLY AND ON BEHALF OF YOUR ORGANIZATION (“YOU” OR “YOUR”), AND ABBOTT LABORATORIES (“ABBOTT,” “WE,” OR “US”) (EACH A “PARTY,” AND COLLECTIVELY THE “PARTIES”). BY ACCESSING, OR USING THE WEBSITE YOU REPRESENT AND WARRANT THAT: (1) YOU ARE 18 YEARS OF AGE OR OLDER AND A UNITED STATES RESIDENT, (2) YOU ARE AGREEING TO THESE TERMS AND CONDITIONS FOR YOUR USE, (3) YOU WILL NOT ALLOW ANY OTHER PERSON OR ENTITY TO USE THE WEBSITE UNDER YOUR ACCOUNT OR REGISTRATION, AND (4) YOU HAVE READ, UNDERSTAND, AND AGREE THAT YOU ARE BOUND BY THIS AGREEMENT.
Please read Section 26 regarding Alternative Dispute Resolution, which affects how disputes between the parties related to this Agreement and the Website are resolved.
Abbott offers the Website on the terms set forth in this Agreement. IF YOU DO NOT AGREE TO THIS AGREEMENT IN ITS ENTIRETY, DO NOT USE THE WEBSITE. YOUR USE OF THE WEBSITE IS ALSO SUBJECT TO THE ABBOTT PRIVACY NOTICE AVAILABLE THROUGH THE WEBSITE, AND ANY OTHER TERMS AND CONDITIONS PRESENTED TO YOU.
1. Your Access and Use Rights. Subject to Your compliance with this Agreement at all times, Abbott grants You a limited, personal, non-transferable, non-sublicensable, non-exclusive, revocable, right to access and use the Website exclusively on devices that You own or control, for Your use only or internal business use only (and not for commercial use), and only in the United States. If You fail to comply with this Agreement, You must immediately cease all use of the Website. You acknowledge and agree that You do not acquire any title, ownership, proprietary rights, interests, or Intellectual Property Rights (as defined below) in or to the Website. Any goodwill derived from Intellectual Property Rights pursuant to this Agreement shall inure solely to the benefit of Abbott. RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY ABBOTT.
For purposes of this Agreement, “Intellectual Property Rights” means any copyright, patent, trade secret, trade dress, trademark, rights in get-up, goodwill, rights in design, technology, artwork, computer software (including source code), database, and similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any media now known or hereafter invented, in any part of the world. You agree to refrain from any action that would diminish or call such rights into question.
2. Acceptable Use; Notification of Unauthorized Use. You shall not use, and shall not permit any third party to use, the Website to: (a) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of any component of the Website; (b) sell, rent, assign, transfer, sublicense, publish, distribute, disclose, display or otherwise commercially exploit or make available any component of the Website (or copies thereof) to others; (c) use the Website in a way that abuses, disables, interferes with, or disrupts the Website or any other person or technology; (d) engage in activity that is illegal, tortious, fraudulent, false, or misleading; (e) transmit through the Website any material that may infringe the intellectual property or other rights of third parties; (f) distribute viruses, worms, Trojan horses, corrupted files, hoaxes or other items of a destructive or deceptive nature; (g) build or benchmark a competitive product or service, or copy any features, functions, or graphics of the Website; (h) use the Website, Content (as defined below), Data (as defined below), or any other data or information available in connection with the Website in violation of any law, rule or regulation; or (i) upload, download, email, transmit, store, or otherwise make available any data that is unlawful, harmful, invasive of another’s privacy, or otherwise objectionable.
You shall notify Abbott immediately if You become aware of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Website. In the event it is determined You no longer require access to the Website, You must immediately discontinue use of the Website.
3. Grant of Rights to Abbott. You hereby grant to Abbott a world-wide, perpetual, irrevocable, non-exclusive, sub-licensable, right and license to access, use, disclose, copy, distribute, reproduce, modify, adapt, publish, translate, transform, display, and commercialize the data submitted, input or uploaded by You into the Website and all data pertaining to You within the Website (collectively, the “Data”) for the following purposes: (a) to operate the Website, including, without limitation, to perform all of its features and functions, which may include, without limitation, data sharing enabled by the Website; (b) to further develop and improve the Website and other of Abbott’s products and services; (c) to monitor the performance of the Website; and (d) to aggregate, anonymize, or de-identify the Data and then use, share, and commercialize the aggregated, anonymized, or de-identified output for any business purpose as determined by Abbott in its sole discretion, including, without limitation, to build models, algorithms, learnings or intelligence and develop, manufacture, have manufactured, license, market, and sell, directly or indirectly, products and services.
You further understand and agree that the Website is not intended as a storage repository for Data. Abbott has no responsibility or liability for any loss of Data.
4. Medical Advice Disclaimer. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS NOT INTENDED AS A SUBSTITUTE FOR THE ADVICE YOU PROVIDE TO YOUR PATIENTS AS A HEALTHCARE PROFESSIONAL AND DOES NOT CONSTITUTE OR PROVIDE ANY MEDICAL ADVICE. ABBOTT, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS ARE NOT ENGAGED IN RENDERING MEDICAL, CLINICAL, OR OTHER HEALTH-RELATED ADVICE. IF MEDICAL OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICES OF A COMPETENT MEDICAL PROFESSIONAL SHOULD BE SOUGHT. ABBOTT, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PRODUCTS, PROCEDURES, OR OPINIONS. YOU ASSUME ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY DECISIONS MADE OR ADVICE GIVEN AS A RESULT OF THE SELECTION AND YOUR USE OF THE WEBSITE.
5. Additional Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ABBOTT, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS MAKE AVAILABLE THE WEBSITE, INFORMATION AVAILABLE THEREIN, AND DATA ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND DEFECTS AND WITHOUT ANY OTHER WARRANTY OF ANY KIND, AND HEREBY DISCLAIM ANY AND ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE AND QUALITY, AND OF LACK OF VIRUSES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ABBOTT OR AN ABBOTT AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
ABBOTT, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS DO NOT GUARANTEE THAT THE FUNCTIONS CONTAINED IN THE WEBSITE WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE EXTENT THAT APPLICABLE LAW REQUIRES ABBOTT, ITS AFFILIATES, ITS LICENSORS, OR ITS SERVICE PROVIDERS TO PROVIDE WARRANTIES, YOU AGREE THAT THE SCOPE AND DURATION OF SUCH A WARRANTY SHALL BE TO THE MINIMUM EXTENT REQUIRED TO BE PROVIDED UNDER SUCH APPLICABLE LAW.
WHERE YOU CHOOSE TO SHARE DATA, INCLUDING, WITHOUT LIMITATION, HEALTH-RELATED INFORMATION, WITH THIRD PARTIES, YOU ACKNOWLEDGE AND AGREE THAT ABBOTT, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS ARE NOT RESPONSIBLE FOR YOUR DECISION TO SHARE OR DISCLOSE DATA, INCLUDING, WITHOUT LIMITATION, HEALTH-RELATED INFORMATION. YOU HEREBY RELEASE ABBOTT, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS FROM ANY AND ALL LIABILITY THAT MAY ARISE FROM SUCH SHARING.
6. Limitation of Liability. NOTWITHSTANDING ANY LOSSES THAT YOU MAY INCUR AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE LIABILITY OF ABBOTT, ITS AFFILIATES, and its and their respective officers, directors, employees, agents, successors, assignees and licensors, UNDER ANY PROVISION OF THIS AGREEMENT, OR OTHERWISE CONNECTED TO THIS AGREEMENT, AND YOUR SOLE AND EXCLUSIVE REMEDIES FOR ALL OF THE FOREGOING SHALL BE LIMITED TO EITHER THE FIXING, REPAIR OR OTHER RECTIFICATION OF ANY FAULTS WITHIN THE WEBSITE, EVEN IF ANY SUCH LOSS WAS FORESEEABLE OR CONTEMPLATED BY THE PARTIES, OR WHERE APPLICABLE, THE AMOUNT ACTUALLY PAID BY YOU TO ABBOTT FOR WEBSITE ACCESS OR USD $10.00. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ABBOTT, ITS AFFILIATES, AND ITS AND THEIR LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR MONETARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL COSTS, LOSSES, DAMAGES, PENALTIES, CHARGES, OR EXPENSES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE WEBSITE OR DATA OR INFORMATION AVAILABLE OR SUBMITTED THEREIN, FOR LOSS FROM ANY VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR DEVICE DUE TO YOUR USE OF THE WEBSITE, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF ABBOTT, ITS AFFILIATES, OR ITS OR THEIR LICENSORS OR SERVICE PROVIDERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDY FAILS ITS ESSENTIAL PURPOSE. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING BACK-UP PLANS AND SAFEGUARDS NECESSARY TO APPROPRIATELY ADDRESS YOUR NEEDS IN THE EVENT THAT AN ERROR IN THE WEBSITE CAUSES DEVICE PROBLEMS OR DATA LOSSES.
7. Indemnification. You (including the Organization, if any, for whose benefit you are using the Website) agree to indemnify, defend and hold harmless Abbott, its affiliates, its licensors, its service providers, and its and their respective officers, directors, employees, agents, successors, assignees and licensors from and against any and all claims, demands, liabilities, damages, losses, fines, costs and expenses (including, without limitation, lawyers’ and experts’ fees) arising out of or related to: (a) Your violation of any provision of this Agreement; law, rules, or regulations; or any third party rights; (b) Your use (including, without limitation, Your export or import) of any information available therein; (c) Your use of the Website; (d) Data; or (e) Your acts or omissions.
8. Intellectual Property Rights. You acknowledge and agree that Abbott, its affiliates or its licensors, or its service providers own all legal right, title and interest in and to all aspects of the Website, and any improved, updated, upgraded, modified, customized, or additional parts thereof, including, but not limited to, graphics, user interface, scripts and software used to implement the Website, and any software or documents provided to You as part of or in connection with the Website, including, without limitation, all Intellectual Property Rights that exist therein, whether registered or not, and wherever in the world they may exist.
All content and materials that comprise the Website, including, without limitation, the Website design, text, graphics, photographs, illustrations, images, icons, and other materials, and information (collectively, the “Content”), are protected by copyright under U.S. and international copyright laws and treaties, and are the exclusive property of Abbott (including, without limitation, any Intellectual Property Rights therein). You shall not remove any product identification, copyright notices, or proprietary restrictions. No portion of the Website may be reproduced in any form or by any means, except as expressly permitted in this Agreement. Any unauthorized copying of the Website or failure to comply with any of the terms of this Agreement will result in automatic termination of this Agreement and You agree will constitute immediate and irreparable harm to Abbott, its affiliates, its licensors, and its service providers for which monetary damages would be an inadequate remedy, and that injunctive relief will be an appropriate remedy.
All trademarks, service marks, trade names, trade dress, and products displayed on the Website are protected in the United States and internationally and are either owned or used under license by Abbott. The unauthorized use of any Abbott trademark is strictly prohibited, and nothing contained herein or on the Website may be construed as granting, by implication, estoppels, or otherwise, any right or license to use any trademark.
All structure, organization, and code of the Website are the valuable trade secrets and confidential information of Abbott or its licensors.
9. Feedback. Any submissions by You (e.g., comments, questions, suggestions, materials – collectively, (“Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Abbott is free to use, without any notice, attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property, Intellectual Property Rights, and proprietary rights contained or embodied in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Abbott is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
10. Updates. Abbott may from time to time in its sole discretion develop and provide updates to the Website, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively (“Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Abbott has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You shall promptly download and install all Updates and acknowledge and agree that the Website or portions thereof may not properly operate should You fail to do so.
11. Modification or Suspension. Abbott reserves the right to modify, suspend, or discontinue, temporarily or permanently, the Website or any service to which it connects, with or without notice and without liability to You.
12. Confidentiality. You shall hold Abbott’s Confidential Information in confidence and shall not disclose Confidential Information to any third party without Abbott’s prior written consent. “Confidential Information” means any information disclosed by Abbott that is not generally known to the public or, by its nature, should be reasonably considered confidential. You acknowledge and agree that a breach of this clause would cause irreparable harm and that Abbott shall be entitled to seek equitable relief from such breach.
13. Termination. Abbott has the right to suspend or terminate Your access to the Website, the information available therein, and Data immediately and without notice, and Abbott may terminate this Agreement at any time if: (a) You (personally, or the Organization for whose benefit you are using the Website) or any other individual using the Website for the benefit of the same Organization breach any provision of this Agreement; (b) Abbott elects at its discretion to cease providing access to the Website, the information available therein, or Data; or (c) in other circumstances and for other reasons determined by Abbott in its sole discretion.
Upon termination of Your access to the Website, all rights granted under this Agreement, including, without limitation, any licenses, shall cease, You must immediately cease all activities authorized by the Agreement and You will no longer be able to use or access the Website, any information available therein, or Data. All data and materials, including, without limitation, Data, may be irretrievably deleted by Abbott.
14. Links to Other Sites From the Website; Third-Party Materials and Products. Because Abbott has no control over and does not endorse, adopt, approve of, or recommend any third-party, non-Abbott websites, or of any information, graphics, materials, products, or services referred to or contained in such non-Abbott websites to which the content may be linked, You agree that Your access to such other websites is at Your own risk. Any links to these non-Abbott websites are provided for convenience only and may not remain current or be maintained. Unless otherwise stated in this Agreement, all ownership and Intellectual Property Rights in and to non-Abbott websites and the use of them is governed by separate third party terms between You and the third party. Abbott accepts no liability for anything associated with third-party websites, the content on any third-party websites, or a third party’s privacy practices.
Portions of the Website may include material provided by third parties, in which Intellectual Property Rights subsist (“Third Party Materials”). The licensors of such Third Party Materials retain all of their respective right, title, and interest in and to such Third Party Materials.
The Website may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Website is provided to you subject to this Agreement, nothing in this Agreement will be deemed to prevent, restrict, or otherwise prevent or restrict you from separately obtaining and using such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
YOU ACKNOWLEDGE AND AGREE THAT YOU WILL BE USING THE WEBSITE IN CONNECTION WITH PRODUCTS AND SERVICES PROVIDED BY THIRD PARTIES THAT ARE NOT PROVIDED BY ABBOTT AND FOR WHICH ABBOTT, its affiliates, AND its AND THEIR licensors and service providers HAve NO RESPONSIBILITY and liability, INCLUDING BUT NOT LIMITED TO, YOUR (INCLUDING YOUR ORGANIZATION’S) MOBILE DEVICE(s). You are responsible for obtaining, maintaining, and paying for all SOFTWARE, hardware, telecommunications, and other supplies or services not provided by Abbott that are needed to receive, access, or use the WEBSITE, THE INFORMATION AVAILABLE THEREIN, and data.
15. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its choice of legal provisions. In the event of any conflict between foreign laws, rules and regulations and those of the United States, the laws, rules and regulations of the United States shall govern to the fullest extent possible. Notwithstanding the foregoing, in the event of a breach or threatened breach of Your obligations with respect to confidentiality or intellectual property, Abbott will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction. You agree that this Agreement shall be fully performable in the State of Illinois. If for any reason Section 26 is deemed not to apply or have effect, You agree that jurisdiction and venue are proper to the state and federal courts located in the State of Illinois, United States of America, with regard to any proceedings arising from this Agreement or the relationship between the Parties hereto. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.
16. Export Law. The Website is subject to United States export controls, restrictions, including any United States embargoes or other federal rules and regulations restricting exports. Unless in compliance with applicable law, You shall not export the Website under any circumstances whatsoever. It is Your obligation to obtain any required authorization and/or approval from any governmental authority as may be necessary to export or import the Website.
17. Government Customers. This Section will apply if You are a US Government Customer. “US Government Customer” means the United States government, or any of their employees or agents, who is accessing or using the Website on behalf of the U.S. Government, including as a higher-tier subcontractor or prime contractor. The Website and any derivatives thereof are “commercial items” as defined in 48 C.F.R. 2.101 (“Commercial Items”). The use, duplication, reproduction, release, modification, disclosure or transfer of any software accessed or delivered under this Agreement and any associated documentation and technical data by U.S. Government Customer is restricted in accordance with 48 C.F.R. §12.211; 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-1 through 48 C.F.R. §227.7102-3, and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Website is provided to U.S. Government Customer: (i) only as Commercial Items, and (ii) with only those rights as are granted to all other users pursuant to Abbott’s standard terms of use or the standard terms of use of our subcontractors or vendors, as applicable and except as otherwise noted herein. For the avoidance of doubt, this clause is in lieu of, and supersedes, any Federal Acquisition Regulations, the Defense FAR Supplement, or other clause or provision that addresses U.S. Government rights in computer software or technical data.
18. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect.
19. Entire Agreement, Order of Precedence and Modifications or Amendments. This Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings of the parties, whether written or oral, with respect to the subject matter, including Abbott’s Online Terms and Conditions. Any pre-printed or other standard terms set forth on any customer order, acknowledgment or other form shall be deemed void and of no force or effect. This Agreement may be updated by Abbott from time to time, by notifying You of such changes by reasonable means, including, without limitation, by displaying a revised Agreement in the Website.
20. Force Majeure. Abbott shall not be liable for failure of delay in performing obligations set forth in this Agreement, nor shall be deemed in breach of its obligations, if such failure or delay is due to natural disasters or any other causes reasonably beyond the control of Abbott.
21. Assignment. This Agreement may not be assigned by You without the prior written consent of Abbott. Any purported assignment in violation of this Section shall be void.
22. No Agency. Nothing contained in this Agreement will be construed as creating any agency, partnership, employment, or other form of joint enterprise between You and Abbott.
23. Headings. This Agreement contains headings only for convenience and the headings do not constitute or form any part of this Agreement and should not be used in the construction of this Agreement.
24. Subcontractors. Abbott may engage subcontractors to perform, provide, or support the performance or provision of, all or any portion of the Website.
25. Surviving Terms. Any provision of this Agreement that should, by its nature, survive the termination of this Agreement will survive. For clarity, Section 2 through 9 and 12 through 27 will survive any termination of this Agreement.
26. Dispute Resolution. If a dispute arises between the parties, the parties will follow this alternative dispute resolution process below.
To begin the ADR process, a Party first must send written notice of the dispute to the other Party for attempted resolution by good faith negotiations between their respective presidents (or their designees) of the affected subsidiaries, divisions, or business units within twenty-eight (28) days after such notice is received (all references to "days" in this ADR provision are to calendar days). If the matter has not been resolved within twenty-eight (28) days after the notice of dispute, or if the Parties fail to meet within such twenty-eight (28) days, either Party may initiate an ADR proceeding as provided herein. The Parties shall have the right to be represented by counsel in such a proceeding.
(a) To begin an ADR proceeding, a Party shall provide written notice to the other Party of the issues to be resolved by ADR. Within fourteen (14) days after its receipt of such notice, the other Party may, by written notice to the Party initiating the ADR, add additional issues to be resolved within the same ADR.
(b) Within twenty-one (21) days following the initiation of the ADR proceeding, the Parties shall select a mutually acceptable independent, impartial and conflicts-free neutral to preside in the resolution of any disputes in this ADR proceeding. If the Parties are unable to agree on a mutually acceptable neutral within such period, each Party will select one independent, impartial, and conflicts-free neutral and those two neutrals will select a third independent, impartial and conflicts-free neutral within ten (10) days thereafter. None of the neutrals selected may be current or former employees, officers or directors of either Party or its affiliates.
(c) No earlier than twenty-eight (28) days or later than fifty-six (56) days after selection, the neutral(s) shall hold a hearing to resolve each of the issues identified by the Parties. The ADR proceeding shall take place at a location agreed upon by the Parties. If the Parties cannot agree on a location, the location shall be in Cook County, Illinois.
(d) At least seven (7) days prior to the hearing, each Party shall submit the following to the other Party and the neutral(s):
(i) a copy of all exhibits on which such Party intends to rely in any oral or written presentation to the neutral;
(ii) a list of any witnesses such Party intends to call at the hearing, and a short summary of the anticipated testimony of each witness;
(iii) a proposed ruling on each issue to be resolved, together with a request for a specific damage award or other remedy for each issue. The proposed rulings and remedies shall not contain any recitation of the facts or any legal arguments and shall not exceed one (1) page per issue. The Parties agree that neither side shall seek as part of its remedy any punitive damages.
(iv) a brief in support of such Party's proposed rulings and remedies, provided that the brief shall not exceed twenty (20) pages. This page limitation shall apply regardless of the number of issues raised in the ADR proceeding.
Except as expressly set forth in subparagraphs 27(d)(i) - 27(d)(iv), no discovery shall be required or permitted by any means, including depositions, interrogatories, requests for admissions, or production of documents.
(e) The hearing shall be conducted on two (2) consecutive days and shall be governed by the following rules:
(i) Each Party shall be entitled to five (5) hours of hearing time to present its case. The neutral shall determine whether each Party has had the five (5) hours to which it is entitled.
(ii) Each Party shall be entitled, but not required, to make an opening statement, to present regular and rebuttal testimony, documents or other evidence, to cross-examine witnesses, and to make a closing argument. Cross-examination of witnesses shall occur immediately after their direct testimony, and cross-examination time shall be charged against the Party conducting the cross-examination.
(iii) The Party initiating the ADR shall begin the hearing and, if it chooses to make an opening statement, shall address not only issues it raised but also any issues raised by the responding Party. The responding Party, if it chooses to make an opening statement, also shall address all issues raised in the ADR. Thereafter, the presentation of regular and rebuttal testimony and documents, other evidence, and closing arguments shall proceed in the same sequence.
(iv) Except when testifying, witnesses shall be excluded from the hearing until closing arguments.
(v) Settlement negotiations, including any statements made therein, shall not be admissible under any circumstances. Affidavits prepared for purposes of the ADR hearing also shall not be admissible. As to all other matters, the neutral(s) shall have sole discretion regarding the admissibility of any evidence.
(f) Within seven (7) days following completion of the hearing, each Party may submit to the other Party and the neutral(s) a post-hearing brief in support of its proposed rulings and remedies, provided that such brief shall not contain or discuss any new evidence and shall not exceed ten (10) pages. This page limitation shall apply regardless of the number of issues raised in the ADR proceeding.
(g) The neutral(s) shall rule on each disputed issue within fourteen (14) days following completion of the hearing. Such ruling shall adopt in its entirety the proposed ruling and remedy of one of the Parties on each disputed issue but may adopt one Party's proposed rulings and remedies on some issues and the other Party's proposed rulings and remedies on other issues. The neutral(s) shall not issue any written opinion or otherwise explain the basis of the ruling.
(h) The neutral(s) shall be paid a reasonable fee plus expenses. These fees and expenses, along with the reasonable legal fees and expenses of the prevailing Party (including all expert witness fees and expenses), the fees and expenses of a court reporter, and any expenses for a hearing room, shall be paid as follows:
(i) If the neutral(s) rule(s) in favor of one Party on all disputed issues in the ADR, the losing Party shall pay 100% of such fees and expenses.
(ii) If the neutral(s) rule(s) in favor of one Party on some issues and the other Party on other issues, the neutral(s) shall issue with the rulings a written determination as to how such fees and expenses shall be allocated between the Parties. The neutral(s) shall allocate fees and expenses in a way that bears a reasonable relationship to the outcome of the ADR, with the Party prevailing on more issues, or on issues of greater value or gravity, recovering a relatively larger share of its legal fees and expenses.
(i) The rulings of the neutral(s) and the allocation of fees and expenses shall be binding, non-reviewable, and non-appealable, and may be entered as a final judgment in any court having jurisdiction.
(j) Except as provided in Section 27(i) or as required by law, the existence of the dispute, any settlement negotiations, the ADR hearing, any submissions (including exhibits, testimony, proposed rulings, and briefs), and the rulings shall be deemed Confidential Information. The neutral(s) shall have the authority to impose sanctions for unauthorized disclosure of Confidential Information.
(k)All ADR hearings shall be conducted in the English language.
