SOFTWARE MASTER SUBSCRIPTION AGREEMENT
1. Agreement; Order Forms.
This Master Subscription Agreement (the “Agreement”) governs any order form and any exhibits, schedules and attachments thereto (each, an “Order Form”) signed by the customer identified in that Order Form (“Customer”) and HealthcareSource HR, Inc. (“Licensor”) and shall apply each time Customer engages Licensor to provide services. All Services (as defined below) to be provided will be described in order forms as may be agreed to by the parties from time to time (each, an “Order Form”). Each Order Form and any exhibits, schedules and attachments thereto shall automatically be incorporated into and become part of and subject to this Agreement. To the extent there is any inconsistency between an Order Form and the terms of this Agreement, the terms of this Agreement will prevail, unless either (i) a provision of this Agreement explicitly provides an Order Form may specify terms and conditions that override such provision with respect to that Order Form or (ii) the Order Form specifically states that its terms and conditions are intended to supersede specific provision(s) of this Agreement, in which case such terms and conditions will prevail over such provision(s) of this Agreement, solely with respect to such Order Form. Any Customer documentation (including Customer’s purchase order terms and conditions) that conflicts with or attempts to modify this Agreement or any Order Form in any way is hereby rejected and of no effect.
2. Subscription; License Grant.
During the Term (as defined below) Licensor agrees to provide Customer with such services, including access to certain software-as-a-service online programs (“Software Programs”), as are set forth in the Order Form(s) (the “Services”). As part of its provision of the Services, Licensor may provide Customer with access to certain proprietary information and materials including, without limitation, user manuals, technical manuals, standard and customized forms, reports, feedback reports, software, Courses (as defined below), modules, assessment questions, and other content (“Provided Materials”) on a limited, worldwide, non-exclusive, non-transferable, and revocable basis.
Subject to Customer’s compliance with this Agreement and the Order Form(s), Licensor hereby grants to Customer, during the Term, a limited, worldwide, nonexclusive, non-transferable license to access and use certain Software Programs and Provided Materials solely in connection with the Services and Customer’s internal business operations. The Software Programs and Provided Materials are licensed and are not sold and, as between the parties hereto, Licensor (or Licensor’s third-party providers) will at all times retain exclusive ownership of all Software Programs, Provided Materials, of all other proprietary information and materials in connection with the Services, and of all intellectual property rights related thereto, including but not limited to, trademarks, trade names, copyrights, enhancements, modifications, discoveries, designs, developments, improvements, processes, software code and programs (including any Software Programs), works of authorship, documentation, formulae, data, techniques, know-how, trade secrets or intellectual property rights or any interest therein and the related rights to make derivative works thereof (collectively, the “Licensor Products”).
Customer shall ensure that any individual leaving its organization is prohibited from accessing, copying or utilizing the Services or any Licensor Products. Customer shall return or destroy all Licensor Products at the end of the Term, or upon any earlier termination of this Agreement.
3. Pricing and Payment.
Pricing and invoicing for the Services shall be as set forth in each Order Form. All software updates, upgrades, and improvements to the Software Programs are included in the annual fees set forth in each Order Form. Except as otherwise provided in this Agreement, payment obligations are non-cancellable and all fees paid are non-refundable. Late payments will be subject to a 2% penalty per month, or the maximum amount permitted by law, whichever is lower.
Customer acknowledges and agrees that the annual fees for each Service set forth in an Order Form are calculated based on the total number of Customer’s employees (“Population Size”) at the facilities identified on such Order Form (“Facilities List”). For clarity, only those facilities (and only those employees working at such facilities) listed in the Facilities List of such Order Form are licensed, pursuant to Section 2, to use and access the Services or Licensor Products.
Licensor shall have the right to monitor Customer’s use of the Services or any Licensor Products and to request that Customer confirm in writing, within twenty (20) business days of Licensor’s request, the current Population Size of those facilities identified in the Facilities List. In the event the actual number of employees exceeds the listed Population Size by ten percent (10%), Customer agrees to promptly pay to Licensor an amount equal to the difference between the fees actually paid and the fees that Customer should have paid to remain in compliance with such limitations.
Customer represents and warrants that it has provided, and will continue to provide, an accurate Population Size for the facilities identified in the Facilities List.
5. Specific Prohibited Uses.
Customer acknowledges and agrees that neither it nor any of its employees, users, or agents shall at any time: (i) use any device, software or routine to interfere or attempt to interfere with the proper working of the Software Programs or any other element of the Services; (ii) reverse engineer, decompile or disassemble any Licensor Products or any element thereof; (iii) copy, alter, modify, adapt, translate or create derivative works from any Licensor Products; (iv) remove any copyright, trademark or other proprietary notices from any Licensor Products; (v) make any of the Licensor Products available for third-party use, including without limitation disclosing to or sharing its passwords for any Software Program or other Service with any third parties; (vi) use passwords for any unauthorized purpose; (vii) use any Software Program or other Service to display or share any libelous, defamatory or inappropriate information; (viii) use any Software Program or other Service to upload, post, reproduce or distribute any information, software, or other material protected by copyright or any other intellectual property right (including right of publicity and privacy) without first obtaining the permission of the owner of such right; (ix) use any Software Program or other Service to upload, display, share or otherwise transmit or disclose any Protected Health Information (PHI); or (x) use any Software Program or other Service to upload, display, share or otherwise transmit or disclose private information of third parties in any manner which violates state or federal laws (including HIPAA).
In the event Customer requests that Licensor customize any of the Provided Materials or any other element of the Services or Licensor Products for Customer’s use by incorporating assessment questions, materials, modules, software, courses or other content or information provided by Customer to the Licensor (“Customized Materials”), the Customer shall provide only such Customized Materials as are owned or licensed by the Customer for such use. In the event that such Customized Materials are not owned by Customer, Customer shall bear full responsibility for obtaining such licenses as are necessary and appropriate for the use of such third-party Customized Materials in connection with the Services. Licensor shall have no responsibility or liability whatsoever with regard to such third-party Customized Materials and any such claim by third parties shall be subject to the indemnification provisions of Section 16. Under no circumstances will the Customer provide Licensor with, or otherwise incorporate, any such third-party Customized Materials without first obtaining such licenses. If Licensor determines, in its sole discretion, that Customer has breached this Section 6, Licensor may terminate this Agreement immediately and without prior notice.
7. User Submissions.
The Software Programs and other Services are venues for the distribution and publication of user-submitted information hosted by Licensor, including venues for behavioral based assessments, for employers to post information regarding employees and job opportunities, and for candidates to post applications. Licensor does not modify, screen, or censor any such material that is posted and is not involved in communications or negotiations between employers and employees, job applicants, or other third parties. As a result, Licensor has no control over the quality, safety, or legality of information posted or otherwise available through the Services other than Provided Materials (although it reserves the right to remove any posted information that violates the terms of this Agreement or that it deems inappropriate) or the truth or accuracy of the listings, the ability of employers to offer job opportunities to candidates, or the ability of candidates to fill job openings. Because user authentication on the Internet is difficult, Licensor cannot and does not confirm that each user who posts content through the Software Programs is who they claim to be. Because Licensor does not and cannot be involved in user-to-user dealings (e.g. Customer to applicant dealings, Customer to employee dealings, etc.) or control the behavior of participants, in the event that Customer has a dispute with one or more users, Customer agrees to indemnify, defend and hold harmless Licensor, its directors, officers, employees and agents from any and all claims, demands, and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Customer acknowledges and agrees that it is solely responsible for the form, content and accuracy of the information that is entered in connection with any Service.
Customer is responsible for monitoring the use of and maintaining the confidentiality of its passwords for accessing the Services and agrees to immediately notify Licensor of any unauthorized use of such passwords.
“Confidential Information,” for purposes of this Agreement, shall mean all information and know-how (whether or not patentable and whether or not copyrightable and whether labeled as ‘confidential’ or not, and if not labeled as confidential, which reasonably should be considered confidential) owned, possessed, licensed or used by one party hereto (“Owner”) that Owner discloses or has disclosed to the other party (in any medium, whether oral, written, or electronic) (“Recipient”) or to which Recipient gains or has gained access by virtue of the parties’ relationship, in each case prior to or after the execution of this Agreement, including, without limitation, any invention, product, formula, method, technique, algorithm, project, development, plan, vendor or customer information, equipment, trade secret, process, research, reports, laboratory, financial or technical data, marketing or operational information, computer program, software, software documentation, hardware design, technology, marketing or business plan, forecast, unpublished financial statement, budget, license, price, cost and personnel data and human resources information, provided, that Confidential Information shall not include information which (1) is or becomes available to the public other than as a result of disclosure by Recipient or its employees in violation of this Agreement; (2) Recipient can demonstrate was known to Recipient prior to Recipient’s receiving the same pursuant to this Agreement and not otherwise restricted by contract or law; or (3) becomes available to Recipient on a non-confidential basis from a third person or source not restricted by contract or law regarding such information. For avoidance of doubt, Licensor Confidential Information shall include all algorithms, data, Licensor Products, and other content (excluding Customer Data as defined below) delivered to Customer in the course of providing services pursuant to this Agreement.
Recipient agrees to safeguard Owner’s Confidential Information in a manner not less than that employed to protect each such party’s own proprietary information and always with at least a commercially reasonable degree of care and to prevent the unauthorized, negligent, or inadvertent use, copying, or disclosure thereof.
Recipient shall use Owner’s Confidential Information only in the course of performing this Agreement and for no other purpose. Recipient shall have the right to disclose Owner’s Confidential Information only (i) to those of its employees, representatives, agents and contractors who have a need to know the same and who have executed a confidentiality agreement in favor of Recipient or otherwise owe Recipient a duty of confidentiality, and (ii) as required by the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Recipient as soon as reasonably practicable shall provide notice thereof to Owner and, at Owner’s reasonable request and expense, assist Owner in obtaining a protective order or otherwise prevent public disclosure of such information and only disclose such information to the extent legally compelled. Recipient as soon as reasonably practicable shall notify Owner of any unauthorized use or disclosure of Owner’s Confidential Information by Recipient or any Recipient employees, representatives, agents or contractors. Following the expiration or termination of Recipient’s rights to use Owner’s Confidential Information under this Agreement (including the Supplements), Recipient at Owner’s request will return to Owner all such Confidential Information delivered or disclosed, together with all copies thereof at any time made by such party.
10. Customer Data.
Customer will own all data provided to Licensor by Customer, its affiliates, and their users in connection with Customer’s use of the Services or any Licensor Products or Licensor’s performance of this Agreement (“Customer Data”).
If Customer uses any Service or other Licensor Product to access and analyze Customer Data, Customer: (i) represents that it has the right to and will provide such Customer Data to Licensor in compliance with applicable legal requirements; (ii) appoints Licensor its agent and authorizes it to use, copy, store, modify, share, and display Customer Data in order to provide the Services to Customer and its users; and (iii) authorizes Licensor to access Customer Data to provide quality assurance, perform software maintenance, and deliver customer service and technical support to Customer and its users. In addition, Customer grants Licensor the right to collect, aggregate, maintain, process, use, disclose, transmit or otherwise provide to third parties all or any portion of Customer Data, either alone or aggregated with the Customer Data of other customers, for any purpose, provided that any Customer Data disclosed, transmitted or otherwise provided to any third party shall be anonymous as to and shall not personally identify or describe Customer, its affiliates, and their users and shall be in a form that cannot reasonably be linked back to Customer, its affiliates or their users.
During the term of this Agreement and for thirty (30) calendar days after its expiration or earlier termination, Licensor will preserve and maintain Customer Data. Upon termination of this Agreement, Licensor will provide Customer with access to a SFTP site for a period of thirty (30) days and it is the responsibility of Customer to download a copy of the Customer Data during this time. Thereafter Licensor will have no obligation to preserve or return any Customer Data and Licensor will charge Customer for any additional return of Customer Data.
During the Term, phone and email-based support will be available to Customer from 7:00 AM until 7:00 PM (ET), Monday through Friday (except for Licensor recognized holidays); provided that certain Services may have varying support hours; and provided further that Licensor may change any such support hours and schedules in its sole discretion. Such support may be provided directly by Licensor, or by an affiliate or sub-contractor. In connection with such support, Customer will be responsible for fielding and consolidating initial support requests, verifying the existence of software issues and answering software-use questions.
12. Third-Party Connections.
Certain Software Programs allow Customer to configure them to interact with third parties. Customer is fully responsible for any required third-party account setup or fees levied by such third parties for using their services. Licensor is only acting as an intermediary for Customer in connection with Customer’s interactions with such third parties through the Software Programs and is authorized by Customer to utilize Customer’s third-party account credentials as required to provide the third-party services or information through the Software Programs. Some third parties restrict the ability of intermediaries to access services that the third party provides Customer and may require Customer to execute additional agreements to enable the Software Programs to interact with the third party. Customer shall provide Licensor with any relevant terms and conditions from Customer’s agreement with each third party to allow Licensor to comply with such agreement or any restrictions.
The applicable Software Program interacts with a third-party service through interfaces controlled by the third party, therefore, Licensor has no control as to the availability of the third-party interface or the use of the third-party service through the Software Program nor can Licensor guarantee that the applicable Software Program will interact with the third-party services. Licensor is not responsible for the availability of a particular third-party service in the Software Program, because each third party controls access to its third-party service.
If applicable, the Order Form will indicate the number and type of third-party interfaces to be active for the Software Program. Customer may select the actual third-party interfaces that Licensor provides support for from time to time, subject to any limits on the number of third-party interfaces indicated on the Order Form or in the documentation, and payment of any applicable interface activation fees. Customer acknowledges that there is no guarantee that a particular third-party interface is, or will remain, available and that Licensor shall have no obligation or liability related to the accuracy, reliability, completeness, timeliness or security of the third-party interfaces. Additional available third-party interfaces may be ordered by Customer by way of an Order Form.
Licensor’s sole obligations to Customer with respect to third-party interfaces are to make reasonable efforts to support and maintain existing third-party interfaces, to deliver Customer instructions to third parties through such interfaces, and to obtain, on Customer’s behalf and request, data from third parties through such interfaces. Licensor has no obligation to Customer regarding the completion by the third party of Customer’s instructions delivered to the third party through the Software Program third-party interface. Licensor is not responsible for and shall have no liability related to any fees owed by Customer to any third-party service provider arising from Customer’s use of the third-party interfaces.
13. Term, Renewal and Termination.
This Agreement is effective on the latest signature date of the initial Order Form signed by Customer and shall remain in effect until terminated or until the expiration or termination of all incorporated Order Forms (the “Term”).
The initial term of each Order Form shall be set forth on such Order Form, and each such Order Form shall renew automatically for consecutive one-year terms (each, a “Renewal Term”) at Licensor’s prices in effect at the time of such renewal, unless either party provides the other party with at least sixty (60) days prior written notice of such party’s intent not to renew such Order Form; provided that no such automatic renewal shall occur at any time following the termination of this Agreement. Licensor shall not be obligated to provide the Services described in any Order Form during any such Renewal Term unless and until it has received full payment for such Services with respect to such renewal term.
Either party may terminate this Agreement or any outstanding Order Forms if the other party has breached a material term of this Agreement (including without limitation, with respect to Customer, a breach of any provision of Section 5 hereof by an Authorized User) or any Order Form, and the breaching party has failed to remedy such breach within thirty (30) calendar days following written notice from the non-breaching party. Only in the event that Licensor has committed a material breach of this Agreement and has not cured such breach within thirty (30) days of receipt of such notice will Customer receive a prorated refund for the unexpired months for which payment has been received. Expiration or termination of this Agreement will not terminate any outstanding Order Forms and the terms of this Agreement shall survive any termination with respect to such Order Forms for the duration of the term of such Order Forms. Sections 9, 13, 14, 15, 16, 17, 21 and 24 shall survive any termination or expiration of this Agreement.
All non-renewal and/or termination notices must be sent via certified mail to:
HealthcareSource HR, Inc.
100 Sylvan Rd, Suite 100
Woburn, MA 01801
Attn: Legal Department
or such other address as Licensor may provide from time to time.
14. Warranty and Disclaimer.
Licensor warrants that the Software Programs and other Services will materially operate in accordance with user guides provided by Licensor for such Services, provided that such Services are used by Customer in the manner intended and as authorized by this Agreement and further provided that Licensor makes no warranties regarding the performance or conformance to such specifications of each of the Services if used by Customer in a manner other than as intended and as authorized by this Agreement.
LICENSOR AND ITS THIRD-PARTY PROVIDERS DO NOT WARRANT THAT THE SOFTWARE PROGRAMS, SERVICES, AND OTHER LICENSOR PRODUCTS WILL OPERATE UNITERRUPTED OR ERROR-FREE OR THAT THE SOFTWARE PROGRAMS, SERVICES, LICENSOR PRODUCTS, OR LICENSOR’S SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF CUSTOMER’S USE OF THE SERVICES RESULTS IN THE NEED FOR REPLACING DATA, SOFTWARE OR HARDWARE, LICENSOR WILL NOT BE RESPONSIBLE FOR ANY COSTS IN CONNECTION WITH SUCH REPLACEMENTS. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES AND LICENSOR PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. LICENSOR AND ITS THIRD-PARTY PROVIDERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE. LICENSOR AND ITS THIRD-PARTY PROVIDERS MAKE NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR SECURITY OF THE SERVICES OR ANY LICENSOR PRODUCTS.
15. Indemnification by Licensor.
Licensor will defend, indemnify and hold harmless Customer against all claims and expenses, including reasonable attorneys’ fees, arising from any third-party claim alleging that any Licensor Products (collectively, the “Indemnified Products”) infringe the United States copyright, trademark, or service mark rights of any third party (each, an “Indemnified Claim”), if Customer, in connection with such Indemnified Claim: (i) has used the Indemnified Products in full compliance with this Agreement; (ii) promptly notifies Licensor of such Indemnified Claim; (iii) allows Licensor to have sole control of the defense and settlement of such Indemnified Claim (though Customer may participate in its own defense at its own expense); and (iv) provides Licensor with the authority, information and assistance that Licensor deems reasonably necessary for the defense and settlement of such Indemnified Claim. Customer shall not consent to any judgment or decree or do any other act in compromise of any such Indemnified Claim without first obtaining Licensor’s written consent. If an Indemnified Claim is brought or credibly threatened, Licensor shall have the option, at its sole expense, to obtain for Customer the right to continue using the Indemnified Products or modify the Indemnified Products so that they become non-infringing. If neither of the foregoing remedies are commercially feasible, Licensor may terminate Customer’s subscription with respect to the Service(s) that utilize such Indemnified Product(s), and refund an amount equal to one-twelfth of the applicable annual fees paid by Customer for such Service(s) for the subscription year in which the termination occurs, multiplied by the number of months remaining in that subscription year. The indemnity set forth in this Section 15 shall be Customer’s sole and exclusive remedy for any intellectual property infringement claim arising out of Customer’s use of the Services or Licensor Products.
16. Indemnification by Customer.
Customer will defend, indemnify and hold harmless Licensor, its officers, directors, employees and agents, from and against any claims, actions or demands, alleging, arising or resulting from (i) Customer’s use of any Services or Licensor Products (including making such Services available to third-party applicants); (ii) allegations that the Customer Data, or any use thereof, infringes the legal or intellectual property rights of any third party; or (iii) its breach of the terms of this Agreement. Licensor shall provide notice to Customer promptly of any such claim, suit, or proceeding and shall assist Customer, at Customer’s expense, in defending any such claim, suit or proceeding.
17. Limitation of Liability for all Services.
EXCEPT FOR LIABILITY ARISING UNDER EACH PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN THIS AGREEMENT OR CUSTOMER’S BREACH OF SECTION 9, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT AND/OR FROM THE USE OF THE SERVICES OR LICENSOR PRODUCTS PROVIDED HEREUNDER EXCEED THE HIGHEST AMOUNT PAID BY CUSTOMER TO LICENSOR IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING UNDER SECTION 9, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY IN CONTRACT, TORT OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS, REVENUE OR DATA) OR PUNITIVE DAMAGES ARISING OUT OF ANY PROVISION OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR HAVE ANY LIABILITY FOR CLAIMS RELATING TO BUSINESS DECISIONS MADE BY CUSTOMER IN RELIANCE UPON ANY OF THE SERVICES OR LICENSOR PRODUCTS.
18. No Assignment.
This Agreement may not be assigned or otherwise transferred by Customer, without Licensor’s prior written consent, and any such purported assignment or transfer shall be void. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns, including any successor in interest of Licensor in connection with a merger, acquisition, sale of Licensor’s capital stock, or sale of all or substantially all of Licensor’s assets.
19. Governing Law; Venue.
This Agreement shall be governed by and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to its conflicts of law rules. Any proceeding arising out of or relating to this Agreement shall be brought in the courts of the Commonwealth of Massachusetts. This provision may be filed with any court as written evidence of the knowing and voluntary irrevocable agreement among the parties to waive any objections to jurisdiction, venue or convenience of forum.
20. Government End Users.
If Customer is acquiring the Provided Materials, Licensor Products, or Services by or on behalf of the U.S. Government then the U.S. Government’s rights in the Provided Materials, Licensor Products, or Services will be only as set forth in this Agreement. The Provided Materials, Licensor Products and Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Provided Materials, Licensor Products and Services with only those rights set forth herein. Contract/Manufacturer is: HealthcareSource HR, Inc., 100 Sylvan Rd., Suite 100, Woburn, MA 01801.
21. Amendment; Severability; No Waiver.
Licensor may amend this Agreement at any time in its sole discretion, effective upon posting the amended Agreement at the domain or subdomains of http://www.healthcaresource.com where the prior version of this Agreement was posted. Licensor may take reasonable steps to communicate these changes through any contact method Licensor has established with Customer (including, without limitation, email communication, notifications within the Software Program, or notification within Customer’s renewal invoices), but Customer agrees to periodically review the site in which this Agreement is posted to be aware of any changes or modifications. Notwithstanding the foregoing, Customer’s continued use of the Services will be deemed its conclusive acceptance of all such changed or modified terms and conditions.
If any one or more of the provisions in this Agreement are determined invalid, illegal or unenforceable in any respect, including any provisions amended pursuant to the preceding paragraph, such invalidity, illegality, or unenforceability will not affect the other provisions of this Agreement and this Agreement will be construed as if such invalid, illegal or unenforceable provisions had never been contained in this Agreement (or in the case of an amended provision, never amended); provided, however, if a court finds any provision of this Agreement may be rewritten to be valid, legal and enforceable, the parties agree that such court shall rewrite the provision.
The waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
22. Force Majeure.
Non-performance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by acts of God, strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers or any other reason when failure to perform is beyond the control of the non-performing party.
23. Relationship of the Parties.
In making and performing this Agreement, the parties act and shall act at all times as independent contractors, and nothing contained herein shall be construed or implied to create an agency, association, partnership or joint venture between the parties. At no time shall either party make commitments or incur any charges or expenses for or in the name of the other party.
Each party hereto agrees that a breach of Sections 5 or 9 of this Agreement will cause irreparable injury to the other Party, that money damages would not be a sufficient remedy for any failure to comply with the provisions of this Agreement and that in addition to all other remedies in the event of any failure or alleged or threatened failure to comply with the provisions of this Agreement the other Party shall be entitled to equitable relief, including injunction and specific performance, in each case without being required to prove irreparable harm or damages, post a bond or otherwise provide security. This provision shall not in any way limit such other remedies as may be available to the Parties at law or in equity. Customer agrees that it will not import, export or re-export the Provided Materials, Licensor Products or Services, including technical data, to any country, person, entity or end user in violation of U.S.A. export control laws, regulations or restrictions. Unless otherwise expressly identified as exclusive in this Agreement, no remedy by either party shall be considered an exclusive remedy, and such party is entitled to pursue any remedy available under this Agreement or otherwise at law or equity. No terms of this Agreement are enforceable by any person who is not a party to it.
Learning Services Customer Additional Terms
If the Services include certain learning and development Licensor Products or Services (“Learning Services”), such as NetLearning® or NetCompetency®, or any other Services Licensor determines to be Learning Services in its sole discretion, the following additional terms and conditions will apply:
1. Courses. In connection with its use of the Learning Services, Customer may have access to certain online training modules provided by Licensor or third-party providers (“Courses”) and other Provided Material related to the Courses. All Courses are established and maintained by either Licensor or a third-party provider and changes thereto may be made at any time at Licensor’s or such third-party provider’s sole discretion, including the addition or deletion of content and courseware. Customer agrees to cease using the Courses, immediately upon written notice from Licensor, in the event that Licensor (i) ceases to have sufficient rights to grant the rights under this Agreement or any Order Form to Customer with respect to Courses, (ii) is required by judicial or governmental order to cease or suspend publication of any of the Courses, or (iii) decides in its reasonable judgment to cease or suspend distribution of any of the Courses due to a threat of legal action or liability.
2. Authorized Users; Audit. The number of users authorized by Licensor to access and use the Learning Services (“Authorized Users”) is set forth in the applicable Order Form. Licensor shall have the right to audit (i) remotely at any time, or (ii) if remote performance is not possible, at Customer’s facilities, during normal business hours and no more than one (1) time in any twelve (12) month period, Customer’s use of the Learning Services in order to ensure that the total number of users who are either (x) enrolled in a future activity managed in the Learning Services (including Courses, instructor-led classes, or competency assessments) or (y) have a transcript record or competency assessment with a completion dated within the prior 365 days matches the number of Authorized Users. In the event any such audit reveals that Customer has used the Learning Services in excess of the Authorized User limitations set forth in the applicable Order Form, Customer agrees to promptly pay to Licensor an amount equal to the difference between the fees actually paid and the fees that Customer should have paid to remain in compliance with such limitations.
3. Governing Bodies. Some of the Courses are designed to provide training to users on compliance with the laws and regulations of the United States, agencies of the United States Government, or designees of the United States Government (collectively, “Governing Bodies”). The Courses do not address or include all provisions of the laws and regulations as published and interpreted by the Governing Bodies. Additionally, the Governing Bodies may revise or update the laws and regulations and these changes may not be reflected in the Courses at the time Customer is using the Courses. Neither Customer nor its Authorized Users should rely solely on the information contained in the Courses and Customer and its Authorized Users should separately refer to the actual laws, regulations and interpretations published by the Governing Bodies. Licensor is under no obligation to update the Courses to reflect any changes in the laws or regulations of the Governing Bodies. Licensor makes no representations or warranties that any particular Course fulfills the regulatory compliance requirements of any particular healthcare organization, as it is the organization’s responsibility to make such final determinations regarding regulatory compliance requirements. Because of this, Licensor reserves the right, in its sole discretion, and at any time, to discontinue any of the Courses or discontinue or suspend Authorized Users’ access to such Courses.
4. Disclaimers. LICENSOR DOES NOT WARRANT THAT THE LEARNING SERVICES OR COURSES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS OR THAT THE LEARNING SERVICES, COURSES, OR LICENSOR’S SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF CUSTOMER’S USE OF THE LEARNING SERVICES RESULTS IN THE NEED FOR REPLACING DATA, SOFTWARE OR HARDWARE, LICENSOR WILL NOT BE RESPONSIBLE FOR ANY COSTS IN CONNECTION WITH SUCH REPLACEMENTS. EXCEPT AS PROVIDED HEREIN, LICENSOR DOES NOT WARRANT THAT (I) THE COURSES OR INFORMATION CONTAINED THEREIN ARE ACCURATE OR THAT ANY GENERAL OR PARTICULAR OR CORRECT RESULT CAN OR WILL BE ACHIEVED FROM CUSTOMER’S APPLICATION OR USE THEREOF, OR (II) ANY DEFECTS OR ERRORS IN THE COURSES WILL OR CAN BE CORRECTED. THE COURSES MAY BE OUT OF DATE AND LICENSOR MAKES NO COMMITMENT TO UPDATE THE COURSES. THE USE OF THE SERVICES OR COURSES IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER AGREES THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR HARM THAT RESULTS FROM SUCH ACTIVITIES. EXCEPT AS PROVIDED HEREIN, THE LEARNING SERVICES AND COURSES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.