IMPORTANT! PLEASE READ CAREFULLY. THIS IS A CONTRACT. BY CLICKING "I AGREE" ON THE PRECEDING PAGE, YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.
This End User License Agreement (the “Agreement”) is made, as of the date you click “I AGREE” (the “Effective Date”), between you (the “End User”) and the American Association of Critical-Care Nurses (“AACN”), a 501(c)(3) nonprofit organization with a principal place of business at 101 Columbia, Aliso Viejo, CA 92656-1491. Before you are permitted to access or use any of AACN’s proprietary e-learning courseware and services (the “E-Learning”), you will be asked to indicate whether you agree to be bound by the terms and conditions of this Agreement. If you do not agree to be bound by this Agreement, click “CANCEL,” in which case you will not be given access to the E-Learning.
1. The E-Learning
a) General. The E-Learning includes: (i) the instructional modules and related courseware and tests in the field of critical care nursing that the End User selects and purchases during the online order process (the “Content”); and various learning management services delivered to End User, including: End User account set-up and management; and storage and retrieval of End User learning records, including test scores and Content progress information (the “LMS”).
b) Minimum Technical Requirements. AACN shall make the E-Learning licensed hereunder available via a standard browser-based user interface to the LMS. The E-Learning is delivered via hypertext transfer protocol (HTTP) from the aacn.learn.com and aacn.rivaetest.com domains. The minimum technical requirements (the “Minimum Technical Requirements”) for optimal program operation of the E-Learning are set forth here. AACN is not responsible for any degraded performance due to End User’s failure to comply with the Minimum Technical Requirements.
c) Continuing Education Units. The E-Learning educational offering is provided by AACN. The American Association of Critical-Care Nurses (AACN) is accredited as a provider of continuing nursing education (CNE) by the American Nurses Credentialing Center’s Commission on Accreditation. AACN has been approved as a provider of continuing education in nursing by the State Boards of Nursing of Alabama (#ABNP0062), California (#01036), and Louisiana (#ABN12). AACN programming meets the standards for most other states requiring mandatory continuing education credit for relicensure. End User understands and agrees that the granting of continuing education units to End User by AACN is not a representation by AACN of End User’s competency regarding any particular subject matter, but merely indicates completion of a module and related testing.
2. License Grant and Restrictions
a) License. Subject to the terms and conditions of this Agreement, including, without limitation, payment of all fees hereunder when due, AACN hereby grants End User a limited, personal, nonexclusive and nontransferable right and license to use and access (i) the Content, and (ii) to the extent necessary in connection with using and accessing the Content, the LMS, solely for End User’s individual education and training purposes, during the period beginning on the Effective Date and ending one (1) year or six (6) months thereafter, depending on the curriculum licensed. For purposes of clarification, the parties agree that the End User license purchased hereunder entitles the End User alone to access just the Content module purchased, including courseware and associated tests, for a period of no longer than:
- Basic ECG Interpretation 2.0 -- six (6) months from the Effective Date.
- AACN Critical Care Pharmacology -- six (6) months from the Effective Date.
- Essentials of Nurse Manager Orientation -- one (1) year from the Effective Date.
- The Preceptor Challenge -- six (6) months from the Effective Date.
- Promoting Excellence in Palliative and End-of-Life Care -- six (6) months from the Effective Date.
All license rights not expressly granted herein are reserved by AACN.
b) Terms of Use. End User acknowledges and agrees that it shall comply in all respects with any acceptable use policy or other terms and conditions of use made available via the E-Learning (collectively, the “Terms”). In the event of any deviation by End User with such Terms, AACN reserves the right to suspend or terminate End User’s access to the E-Learning, as AACN deems appropriate.
c) License Restrictions. End User acknowledges that all right, title and interest in and to the E-Learning, including without limitation all intellectual property rights therein, shall remain with AACN and its licensors. End User alone may access the E-Learning, and in no event may End User grant access to the E-Learning to any third parties. End User may not lend, lease, sublicense, loan, rent, resell, publish, distribute or network any part of, or access to, the E-Learning, and End User may not publish materials to the E-Learning catalog, other than as such functionality may be included as a feature of the E-Learning, without AACN’s prior written consent, which consent may be withheld at AACN’s sole discretion. End User is strictly prohibited from using the E-Learning for mass training or third party training purposes. Further, End User may not alter, modify, or adapt the courseware associated with the E-Learning or related documentation. End User is expressly prohibited from reverse engineering, reverse compiling, disassembling or otherwise deriving the source code (other than HTML code that is readily accessible from the browser) for the E-Learning or any portion thereof. End User is prohibited from copying, duplicating, or permitting others to copy or duplicate the E-Learning or any module or other portion thereof, except that each End User may make one (1) copy of the E-Learning solely for such member’s personal use as a reference or to take notes on it. Any such permitted copy must include all trademarks, copyright notices, restricted rights legends, proprietary markings, and the like exactly as they appear on the original and End User is not permitted to further duplicate or distribute that copy to anyone.
d) Authentication. Upon registering, End User shall create a unique username and password (the “Authentication”) to access the E-Learning. End User is solely responsible for ensuring the confidentiality of its Authentication, and End User shall be liable for any consequences that may result from the disclosure of such Authentication.
e) Infringement. In the event of a determination that the E-Learning or End User’s use of the E-Learning in accordance with the terms of this Agreement infringes any proprietary right of any third party, AACN shall have the option, at its own expense, to (i) obtain for End User the right to continue using the infringing item, (ii) replace the infringing item or modify it so that it becomes noninfringing, or (iii) terminate the licensed rights granted herein and provide a pro rata refund to End User based on the period of time remaining in the term of the Agreement.
3. Payments
As of the Effective Date, the license fees set forth on AACN’s current price list (the “License Fees”) shall be due and payable to AACN by End User. All License Fee(s) hereunder are non-refundable, except to the extent expressly provided otherwise in this Agreement. All prices and payments in this Agreement are exclusive of all federal, state, municipal or other governmental excise, sales, value-added, use, personal property and occupational taxes, excises, withholding obligations and other levies now in force or enacted in the future (collectively, “Taxes”). To the extent any Taxes become due and payable as a result of this Agreement, other than Taxes due on AACN’s net income, such Taxes shall be the responsibility of End User.
4. Confidentiality
In connection with this Agreement, End User may have access to private and confidential information owned or controlled by AACN including without limitation the Content and information relating to equipment, apparatus, programs (including E-Learning and all related documentation), courseware, specifications, drawings, pricing, and other data. Similarly, AACN and its employees and agents may have access to private and confidential information owned or controlled by End User. All such information acquired by either party under this Agreement shall be and remain its owner’s exclusive property, and the receiving party shall keep, and if applicable shall obligate its employees, agents and contractors to keep, any and all such information confidential and shall not copy or disclose it to others without the owner’s prior written approval, and shall return all tangible copies of such information to the owner promptly upon request. Nothing herein shall limit either party’s use or dissemination of information not actually derived from the other party or information that has been or subsequently is made public by the owner or with the owner’s consent. Notwithstanding anything to the contrary in the foregoing, End User acknowledges and agrees that AACN may use non-personally identifiable aggregated data related to End User module test scores and overall usage of the E-Learning.
5. Updates; Maintenance; Support
a) Updates. AACN expressly reserves the right to modify the Content and the LMS at any time in its sole discretion, including without limitation by modifying the Content to update such Content and for other purposes and upgrading and modifying the technology, functionality, and capabilities of the LMS. Any such modified Content or LMS made available hereunder shall be deemed “Content” or “LMS” for purposes of this Agreement.
b) Maintenance. AACN will use commercially reasonable efforts to make the E-Learning continually available, except for scheduled maintenance and downtime. In an effort intended to ensure that scheduled maintenance and downtime has minimal impact on End Users, AACN uses commercially reasonable efforts to perform its scheduled maintenance and downtime during a maintenance window which occurs each Friday for a three-hour period beginning at 12:00 a.m. Eastern Time and concluding at 3:00 a.m. Eastern Time (the “Maintenance Window”). End User access to E-Learning may be unavailable during scheduled maintenance and downtime. End User acknowledges and agrees that access to the Internet is also subject to unexpected outages due to failure of equipment or services of Internet service providers that are not a party to this Agreement or other Force Majeure as described below.
c) Support. AACN or its third-party provider shall use commercially reasonable efforts to provide End User with technical support services available via telephone and email on a 24x7x365 basis (the “Technical Support”). End User will receive up to sixty (60) minutes of Technical Support during the Term at no additional charge. The number of minutes of Technical Support used by End User may be tracked and documented by AACN or its third party provider on a quarterly basis. Technical Support used in excess of sixty (60) minutes is available at AACN’s then-current standard support rates.
6. DISCLAIMER OF WARRANTY
THE E-LEARNING, INCLUDING ALL CONTENT, IS PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AACN AND ITS THIRD-PARTY SUPPLIERS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SYSTEM INTEGRATION, DATA ACCURACY, AND NON-INFRINGEMENT. THE CONTENT AND OTHER MATERIALS PROVIDED AS PART OF THE E-LEARNING ARE FOR GENERAL, INFORMATION PURPOSES ONLY AND ARE NOT TAILORED TO SPECIFIC FACTUAL CIRCUMSTANCES. WHILE AACN USES REASONABLE EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE CONTENT AND INFORMATION AS PART OF THE E-LEARNING, AACN MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY CONTENT OR OTHER INFORMATION AVAILABLE AS PART OF THE E-LEARNING. END USER IS RESPONSIBLE FOR VERIFYING THAT THE GENERAL CONTENT AND INFORMATION PROVIDED IS APPROPRIATE FOR ANY SPECIFIC FACTUAL SITUATION BEFORE RELYING ON IT. AACN MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE E-LEARNING WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. AACN IS NOT LIABLE FOR DAMAGES INCURRED BY END USER IF END USER FAILS TO TAKE ALL NECESSARY PRECAUTIONS TO ENSURE THAT ANY CONTENT OR OTHER MATERIAL OBTAINED FROM THE E-LEARNING IS FREE OF VIRUSES AND OTHER POTENTIALLY HARMFUL DEVICES.
7. Limitation of Liability
IN NO EVENT SHALL AACN’S LIABILITY TO END USER OR TO ANY THIRD PARTY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY END USER TO AACN FOR THE 12-MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE. IN NO EVENT WILL AACN BE LIABLE TO END USER OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY EVEN IF A LIMITED REMEDY PROVIDED HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.
8. Indemnification
End User shall indemnify, defend, and hold AACN harmless from and against any and all liability, damages, losses, or expenses (including reasonable fees of attorneys and other professionals) arising from any claim, demand, action, or proceeding initiated by any third party based upon any claim that End User has failed to use the E-Learning in accordance with the terms and conditions of this Agreement or has otherwise failed to comply with the terms of this Agreement.
9. Term and Renewal Rights
a) Term and Termination. The Agreement is in effect for a period of one (1) year or six (6) months (depending on the curriculum, as specified below) from the Effective Date, unless earlier terminated as provided herein.
- Basic ECG Interpretation 2.0 -- six (6) months
- AACN Critical Care Pharmacology -- six (6) months
- Essentials of Nurse Manager Orientation -- one (1) year
- The Preceptor Challenge -- six (6) months
- Promoting Excellence in Palliative and End-of-Life Care -- six (6) months
Either party may terminate this Agreement upon thirty (30) days written notice to the other party if the other party has materially breached this Agreement and such breach is not cured during such 30-day period.
b) Effect of Termination. Upon termination or expiration of this Agreement, (i) End User shall immediately cease all use of the E-Learning; and (ii) each party shall promptly return all copies of the other party’s confidential information. End User acknowledges and agrees that prior to the termination or expiration of this Agreement, End User, to the extent it deems necessary in its discretion, shall be responsible for downloading any and all records and reports of E-Learning activity that End User desires to retain from the LMS. Except as expressly provided in this Agreement, in no event shall End User be entitled to a refund of any License Fees prior to the effective date of termination. Any obligation of either party, which accrued prior to termination or expiration, including any payment due, shall survive termination of this Agreement. Termination of this Agreement shall have no effect on any other agreement between the parties. Sections 3, 4, 7, 8, 9b and 10 will survive the termination or expiration, for any reason, of this Agreement.
10. General
a) Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of the State of California, without regard to its conflicts-of-law provisions, and expressly excluding the Convention on Contracts for the International Sale of Goods. Any suit or other proceeding to enforce or interpret this Agreement shall be brought in, and End User hereby consents to the jurisdiction and venue of, the courts of the State of California, United States of America or of any federal court located in such state. The prevailing party in disputes concerning this Agreement shall be entitled to the costs of collections and enforcement, including but not limited to reasonable attorney’s fees, court cost, and all necessary expenses, regardless of whether litigation is commenced.
b) Records Retention. AACN agrees that, until the expiration of four (4) years after the furnishing of services pursuant to this Agreement, it will make available, upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States or any of their duly authorized representatives, copies of this Agreement and any books, documents, records and other data of AACN that are necessary to certify the nature and extent of the costs incurred by End User in purchasing such services from AACN.
c) Force Majeure. Neither party shall be liable for any damages or penalty for any delay in performance of, or failure to perform, any obligation hereunder (excluding payment obligations) or for failure to give the other party prior notice thereof when such delay or failure is unforeseeable and due to the elements, acts of God, civil commotion, strikes, labor disputes, Internet service interruptions or slowdown thereof, vandalism or “hacker” attacks, delays in transportation, supply failures, acts of governmental or regulatory agencies or authorities, delays in delivery by vendors, or any other unforeseeable causes beyond that party’s reasonable control.
d) Miscellaneous. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein, and the remainder of this Agreement shall remain in full force and effect. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. End User may not assign this Agreement without the prior written consent of AACN, and any assignment in violation of this Section shall be null and void. Notwithstanding anything to the contrary herein, End User acknowledges and agrees that AACN may use third-party service providers in the performance of certain of its obligations hereunder. The parties to this Agreement are independent contractors. There are no third party beneficiaries to this Agreement. Any notice under this Agreement shall be given in writing and shall be deemed to have been given when actually received by the other party. Notices shall be delivered to End User and AACN at the respective addresses set forth above, or to such other address as is provided by one party to the other in writing. No modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties.
YOU (END USER) ACKNOWLEDGE THAT YOU HAVE READ THE FOREGOING AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS. BY PRESSING "I AGREE" ON THE PRECEDING PAGE, YOU CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS.
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