WHEREAS, Provider provides access to the Services to its customers; and
WHEREAS, Customer desires to access the Services, and Provider desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
“Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Corporate Training Agreement” means the Agreement, if any, between Provider and Customer Employer, pursuant to which Customer has access to the Services.
“Customer Contributions” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Services.
“Customer Employer” has the meaning provided in Section 2(b).
“Documentation” means Provider’s guide documents, video tutorials, FAQs, and other documents relating to the Services provided by Provider to Customer either electronically or in hard copy form.
“Portal” means the webpage(s) on the Website where the Services are available and Customer interacts with the Services.
“Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services.
“Services” means collectively the courses, content, videos, tests, and all other information and training materials available through the Portal, including workshops, materials, content, and services provided through the Portal by Company’s affiliates.
“Terms of Access” means the Terms of Access and Use available at https://www.iprepmd.com/pages/terms-of-access, which governs the access to and use of the Website.
2. Registering for the Services.
(b) In the event Customer is accessing and using the Services as part of Customer’s employment with an employer (such entity, the “Customer Employer”), Customer acknowledges that such use and access is done pursuant to the Corporate Training Agreement and that the terms and conditions of the Corporate Training Agreement are incorporated herein by reference. By registering for and using the Services as part of Customer’s employment with Customer’s Employer, Customer agrees to the terms and conditions of the Corporate Training Agreement and shall comply with all such terms and conditions.
3. Access and Use.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13(h)) license to use the Documentation during the Term solely for Customer’s personal use, or in Customer’s professional capacity, as permitted by the Corporate Training Agreement, if applicable, in connection with Customer’s use of the Services.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's access to any portion or all of the Services if: (i) Provider determines in its sole discretion that (A) there is a threat or attack on any of the Provider IP; (B) Customer's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Customer has violated the terms of this Agreement, the Terms of Access, or the Corporate Training Agreement (if applicable); (F) Customer has caused Provider, directly or indirectly, to violate the terms the Corporate Training Agreement; or (G) Provider's provision of the Services to Customer is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Sections 5(a) and 5(b) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data, profit, or employment), or any other consequences that Customer may incur as a result of a Service Suspension.
(f) Other Remedies. Provider reserves all rights and remedies enumerated in the Terms of Access and the Corporate Training Agreement to the extent that such rights and remedies are applicable to Customer’s use of and access to the Services.
(g) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the Services, including Customer Contributions, and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
4. Customer Responsibilities.
(a) General. Except as provided in Section 13(h), Customer’s rights and responsibilities contained herein are non-transferrable, and Customer is responsible for ensuring no other person or entity uses or accesses the Services with Customer’s account or credentials. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
(b) Customer Contributions. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Contributions. Customer shall make all disclosures and obtain all consents necessary for (i) Provider to use Customer Contributions in the Services, and (ii) the grant contained in Section 7(b).
(c) Passwords and Access. Customer is responsible for maintaining the security and confidentiality of all Customer’s username(s) and password(s). Customer agrees to notify Provider immediately of any unauthorized use of or access to the Services using one or more of Customers username or password or account or any other known or suspected breach of security.
5. Charges and Payment.
(a) Charges. Except as provided in Section 5(b) below, Customer shall pay Provider the charges (“Charges”) for the Services as set forth on the Website without offset or deduction. If Customer is required to pay the Charges hereunder and fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at an annual rate equal to twelve percent (12%); (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) Provider may suspend Customer’s access to any portion or all of the Services until such amounts are paid in full. ALL CHARGES PAID ARE NON-REFUNDABLE.
(b) Payment by Customer Employer. In the event that Customer Employer has entered into a Corporate Training Agreement with Provider pursuant to which Customer Employer pays the Charges for Customer’s access to and use of the Services, Customer shall not be obligated to pay the Charges. In the event that Customer Employer does not timely pay the Charges and any other fees owed under the Corporate Training Agreement, Provider retains the right to take any action with respect to the Services, including, but not limited to, limiting Customer’s access to, suspending, and terminating the Services.
(c) Taxes. All Charges and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
6. Confidential Information.
From time to time during the Term, Provider may disclose or make available to Customer information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to Customer at the time of disclosure; (c) rightfully obtained by Customer on a non-confidential basis from a third party; or (d) independently developed by Customer. Customer shall not disclose the Confidential Information to any person or entity. Notwithstanding the foregoing, Customer may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Customer shall first have given written notice to Provider and made a reasonable effort to obtain a protective order. On the termination of the Agreement, Customer shall promptly return to Provider all copies, whether in written, electronic, or other form or media, of the Confidential Information, or destroy all such copies and certify in writing to Provider that such Confidential Information has been destroyed.
7. Intellectual Property Ownership; Feedback.
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
(b) Customer Contributions. Customer hereby grants to Provider all right, title, and interest in Customer Contributions.
(c) Feedback. If Customer sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer's behalf all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
8. Warranty Disclaimer.
(a) THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Contributions; or (D) User Contributions, as that term is defined by the Terms of Access.
(b) Customer Indemnification. Customer shall defend, indemnify, and hold Provider (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with any Third-Party Claim, or any administrative, investigatory or enforcement action or fine instituted by a government agency (“Government Action”), (i) pertaining to Customer Contributions, including, but not limited to, Customer’s obligations pursuant to Section 4, including without limitation alleging that the Customer Contributions or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party, (ii) arising out of a breach of Customer’s obligations contained in this Agreement or the Terms of Access, or (iii) arising out of a breach of Provider’s obligations contained in the Corporate Training Agreement to the extent caused, directly or indirectly, by Customer’s action or inaction. Customer may not settle any Third-Party Claim against Provider or any Government Action unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or Government Action or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 9 EXCEED THE TOTAL AMOUNT PAID TO PROVIDER UNDER THIS AGREEMENT IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Limitations of Liability.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE OR MISUSE, INABILITY TO USE, LOSS, UNAUTHORIZED DISCLOSURE, INTERRUPTION, DELAY, OR RECOVERY OF OR UNAUTHORIZED ACCESS TO ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) LOSS OF EMPLOYMENT OR WAGES; (f) FAILURE TO ACHIEVE CERTAIN TEST SCORES, PROFESSIONAL ACCREDITATION, EMPLOYMENT, OR JOB OFFERS; OR (g) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNT PAID TO PROVIDER UNDER THIS AGREEMENT IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination.
(a) Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect until terminated as described in Section 11(b) below (the “Term”).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Customer may terminate this Agreement at any time by following the instructions at the Website, provided, however, that all charges owed at the time of termination shall be due to Provider immediately;
(ii) In the event that the Charges are a lump sum payment, this Agreement shall terminate following the time period stated on the Website;
(iv) Provider may terminate this Agreement, effective on written notice to Customer, if Customer Employer: (A) fails to pay any amount when due by Customer Employer pursuant to the Corporate Training Agreement, and such failure continues more than 7 days after Provider's delivery of written notice pursuant to the Corporate Training Agreement; or (B) breaches any of its other obligations under the Corporate Training Agreement;
(v) Customer may terminate this Agreement, effective on written notice to Provider, if Provider materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after Customer provides Provider with written notice of such breach; or
(vi) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Termination. Upon termination of this Agreement, the Services provided by Provider shall cease immediately. Customer shall immediately cease using the Services, the Documentation, the Portal, and the Provider IP. Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to Provider that the Provider IP has been deleted or destroyed. No termination will affect Customer’s obligation to pay all Charges that may have become due before such termination or entitle Customer to any refund.
(d) Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8, 9, 10, 11(c), 12, and 13 shall survive any termination of this Agreement. No other provisions of this Agreement survive the termination of this Agreement.
12. PrepMD In-Person Training / 24-Week Medical Device Specialist Program.
(a) In addition to the Services, Provider provides a hybrid (online + in-person), medical device specialist training (the “Live Training”). Customer acknowledges that the Services are different than the Live Training and that completion of all or any portion of the Services does not qualify as completing the Live Training. Customer shall not represent that Customer has completed the Live Training unless Customer has separately enrolled in and satisfactorily completed the Live Training. More information about the Live Training is available at https://www.prepmd.com/training/.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference (including the Corporate Training Agreement and the Terms of Access), constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Corporate Training Agreement (if applicable); (ii) second, this Agreement; and (iii) third, the Terms of Access and any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be sent by email at the following address: (i) to Provider at firstname.lastname@example.org; and (ii) to Customer at the email address provided at registration. Except as otherwise provided in this Agreement, a Notice is effective when sent.
(c) Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, pandemic, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo or state of emergency.
(d) Amendment. Provider may amend and update the terms of this Agreement from time to time in its sole discretion. All changes are effective immediately when Provider posts them and apply to all access to and use of the Services thereafter. Customer’s continued use of the Services following the posting of the revised Agreement constitutes Customer’s acceptance of and consent to be governed by such changes. Customer shall check this Agreement at the Website from time to time to be aware of any changes, as they are binding on Customer.
(e) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(g) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Massachusetts. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Massachusetts, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(h) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(i) Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach of any of its obligations under Section 6 or Section 3(c) would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.