COURSEWARE MASTER SUBSCRIPTION AGREEMENT
1. Agreement; Order Forms.
2. Subscription; License Grant.
During the Term (as hereinafter defined), Licensor agrees to provide Customer with access to such Courses as are set forth on the Order Forms entered into between Licensor and Customer and incorporated herein by reference (collectively, the “Services”). “Courses” shall mean the online training modules provided by Licensor and delivered through Customer’s LMS. “LMS” shall mean the computer system(s), servers(s) and associated peripherals and software in the possession and control of Customer at the start of the Term of this Agreement, all of which are required for the successful use of the Courses.
In connection with the provision of the Services, Licensor may provide the Customer with access to certain proprietary information and materials of Licensor or certain Licensor Partners, including without limitation the Courses, user manuals and technical manuals (collectively, the “Provided Materials”). Licensor hereby grants, and Customer accepts, a limited, worldwide, nonexclusive, non-transferable, non-sublicensable license to use and access such Provided Materials in connection with the Services, which license shall expire at the end of the term of the applicable Order Form (or upon earlier termination of this Agreement) and shall be subject to the terms of this Agreement, the HealthcareSource Terms of Service and any applicable Order Forms. These Provided Materials are licensed and are not sold and, as between the parties hereto, Licensor or any applicable Licensor Partner will at all times retain exclusive ownership of all such 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, works of authorship, documentation, formulae, data, techniques, know-how, secrets or intellectual property rights or any interest therein and the related rights to make derivative works thereof. “Licensor Partner” shall refer to an entity that has granted Licensor the right to resell and deliver Courses owned by such entity.
All Courses of any Licensor or Licensor Partner are established and maintained by Licensor or such Licensor Partner and changes thereto may be made at any time, including the addition or deletion of content and courseware at Licensor’s or such Licensor Partner’s sole discretion. Customer agrees and covenants to cease to use in accordance with this Agreement and any Order Form any Licensor or Licensor Partner’s Courses immediately upon written notice from Licensor in the event that Licensor (i) ceases to have sufficient rights in such Licensor or Licensor Partner’s Courses to grant the rights granted to Customer under this Agreement or any Order Form, (ii) is required by judicial or governmental order to cease or suspend publication of Licensor or such Licensor Partner’s Courses, or (iii) decides in its reasonable judgment to cease or suspend distribution of such Licensor or Licensor Partner’s Courses due to a threat of legal action or liability.
Customer acknowledges that the Provided Materials are subject to copyrights owned by Licensor or Licensor Partners. Customer may only permit registered Authorized Users to access the Provided Materials. Customer may not resell any part of, or access to, the Provided Materials. In addition to the restrictions set forth in this Section 3, Customer hereby agrees that neither it nor any of its Authorized Users or any other of its employees or agents shall at any time: (i) copy, modify or create derivative works based upon the Provided Materials; (ii) decompile, disassemble, or reverse engineer the Provided Materials in whole or in part; (iii) defeat, disable or circumvent any protection mechanism related to the Provided Materials, including without limitation any code which necessitates or solicits agreement to any end user license; (iv) sell, license, sublicense, lease, rent, transmit, publish or distribute to any third party, or disclose, permit access to, or transfer to any third party other than an Authorized User any portion of the Provided Materials; (v) access, use or export the Provided Materials in violation of any U.S. Department of Commerce export administration regulations or other laws or regulations; or (vi) remove any copyright, trademark or other proprietary notices from the Provided Materials. “Authorized User” shall mean the administrators, employees and other designees of Customer that are properly authorized to access the LMS.
4. Pricing and Payment.
Pricing and invoicing for the Services shall be as set forth in each Order Form. Late payments will be subject to a 2% penalty per month, or the maximum amount permitted by law, whichever is lower.
In the event Customer requests that Licensor customize any of the Provided Materials or any other element of the Services for Customer’s use by incorporating 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 12. 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 5, Licensor may terminate this Agreement immediately and without prior notice.
6. Governing Bodies.
The Courses are Internet-based education programs designed to provide training to users and in some cases training 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 and Licensor Partners are 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 Licensor or Licensor Partner’s 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.
Notwithstanding the foregoing, Licensor shall have the right to monitor Customer’s use of the Services during the Term of this Agreement. In the event that Licensor discovers the actual number of users with respect to the Services exceeds the number of Authorized Users, Licensor reserves the right, in its sole discretion, to modify the license fees charged under the terms of such Order Form (including retroactively) or to terminate such Order Form immediately.
Customer acknowledges that the Provided Materials constitute property with intellectual property rights of substantial value to Licensor and Licensor Partners. Customer agrees that the Provided Materials will not be disclosed by Customer to any person or entity, except as expressly permitted pursuant to the terms of this Agreement, without the prior written consent of Licensor. Customer agrees to take reasonable security measures to prevent the unauthorized use, duplication or distribution of the Provided Materials and their collective elements which will be at least equal to that which Customer uses to protect its own proprietary information. Customer shall ensure that any individual leaving its organization or who otherwise ceases to be an Authorized User is prohibited from accessing, copying or utilizing the Services or any Provided Materials. At the end of the Term, or upon any earlier termination of this Agreement, Customer shall return or certify in writing that it has destroyed all Provided Materials provided to Customer by Licensor pursuant to the terms of this Agreement.
9. Term, Renewal and Termination.
This Agreement is effective on the date the First Order Form is fully executed by Customer and Licensor and shall remain in effect until terminated or until the expiration of all incorporated Order Forms (the “Term”).
The initial term of each Order Form shall be set forth on such Order Form.
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 3) 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; provided that in the event Customer breaches Section 3(iv) Licensor may in its sole discretion immediately terminate this Agreement. 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. Sections 4, 8, 9, 10, 11, 12, 13, 15, 16 and 18 shall survive any termination or expiration of this Agreement.
All non-renewal and/or termination notices must be sent 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.
10. Warranty and Disclaimer.
Licensor warrants and represents to Customer that it has full power and authority to enter in this Agreement and that it has all right, title, and interest necessary to provide the Services to Customer. Customer covenants, warrants and represents to Licensor that it has full power and authority to enter into this Agreement and to make the covenants, representations and warranties in this Agreement.
LICENSOR DOES NOT WARRANT THAT THE SERVICES OR COURSES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS OR THAT THE SERVICES, COURSES, 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. 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 YOUR 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 YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR HARM THAT RESULTS FROM SUCH ACTIVITIES. THE 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. LICENSOR MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR SECURITY OF THE SERVICES OR ANY COURSES.
11. 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 Provided Materials (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: (a) has used the Indemnified Products in full compliance with this Agreement; (b) promptly notifies Licensor of such Indemnified Claim; (c) 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 (d) 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 11 shall be Customer’s sole and exclusive remedy for any intellectual property infringement claim arising out of Customer’s use of the Services or Provided Materials.
12. 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 Customer’s use of any Services (including making such Services available to Authorized Users), its provision of Customized Materials or its breach of the terms of this Agreement. Licensor shall provide notice to Customer promptly of any such claim, suit, or proceeding and may assist Customer, at Customer’s expense, in defending any such claim, suit or proceeding.
13. Limitation of Liability for all Services.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF LICENSOR FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT AND/OR FROM THE USE OF THE SERVICES OR PROVIDED MATERIALS PROVIDED HEREUNDER EXCEED THE HIGHEST AMOUNT PAID BY CUSTOMER TO LICENSOR IN ANY ONE YEAR DURING THE TERM OF THE AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR 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 LICENSOR 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.
14. No Assignment.
This Agreement will inure to the benefit of and be binding upon the parties, their successors and permitted assigns. This Agreement may not be assigned or otherwise transferred by Customer (whether via sale, merger, change in control, by operation or law or otherwise), without Licensor’s prior written consent, and any such purported assignment or transfer shall be void.
15. 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.
16. Severability; No Waiver.
If any one or more of the provisions in this Agreement are determined invalid, illegal or unenforceable in any respect, 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; 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.
17. Force Majeure.
Non-performance of Licensor hereunder 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 Licensor.
Customer hereby agrees that a breach of Sections 3 or 8 of this Agreement will cause irreparable injury to Licensor, 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 Licensor 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. 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.