McAllister Software Systems, LLC. Online Academy Service Agreement

Transcription

1 McAllister Software Systems, LLC Online Academy Service Agreement BY CLICKING THE I AGREE BUTTON INDICATES YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF SERVICE PROVIDER S ONLINE CONTENT SUBSCRIPTION SERVICE, THE AVIMARK ONLINE ACADEMY (THE SERVICE ). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS YOU OR YOUR SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT SELECT THE I AGREE BUTTON AND MAY NOT USE THE SERVICE. NOTE TO SUBSCRIBER: PLEASE CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT: 1. License Grant & Restrictions. Service Provider hereby grants you a worldwide, non-exclusive, non-transferable, right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Service Provider and/or its licensors. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, the Materials or any audio and (or) visual information, documents, software, products and services contained or made available to you in the course of using the Service ( Service Provider Content ) in any way; (ii) modify or make derivative works based upon the Service, the Materials or the Service Provider Content; (iii) create Internet links to the Service or frame or mirror any Service Provider Content or Materials on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, the Materials or the Service Provider Content, or (c) copy any ideas, features, functions or graphics of the Service, the Materials or any Service Provider Content. You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the

2 data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. 2. Additional Responsibilities. You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Service Provider immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Service Provider immediately and use reasonable efforts to stop immediately any copying or distribution of Service Provider Content that is known or suspected by you or your Users; and (iii) not impersonate another Service user or provide false identity information to gain access to or use the Service. You are responsible for and must provide all connection and other equipment and services necessary to use the Service. You must maintain all appropriate hardware, software and connection requirements for the Service to operate. Failure by Service Provider to deliver the Service for reasons of your hardware, software or connection requirements will not be the responsibility of Service Provider. 3. Privacy & Security; Disclosure. Service Provider s maintains privacy and security policies and has the right to modify those policies in its discretion from time to time. Service Provider occasionally may need to notify some or all users of the Service of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that Service Provider may contact you for any reason, including to make such notifications to you and can disclose the fact that you are a paying customer of the Service. 4. Intellectual Property Ownership. Unless otherwise noted, all materials, including, but not limited to all text, editorial content, images, graphics, logos, illustrations, photographs, video, audio, and other materials, as well as the designs, icons, layout, "look and feel," and all other graphical elements of the Service and the Service Provider Content and all code and software utilized in the Service and all copyrights, trademarks, service marks, trade names, patents and other intellectual property rights in any of the foregoing (collectively, the Materials ) are the sole and exclusive property of Service provider (or its subsidiaries, affiliates, or designees) or its third-party licensors, and are protected by U.S. laws and international treaties. By indicating that you accept these terms, you do not become the owner of the Materials and agree to use them only as specifically permitted under the terms of this Agreement and subject to all additional intellectual property notices, information or restrictions accessed through the Service. 5. Confidentiality. You agree to keep (and to cause your Users to keep), confidential all information disclosed by Service Provider to you or any of your Users, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, and to protect the confidentiality thereof in the

3 same manner you protect the confidentiality of your own similar information and data (at all times exercising at least a reasonable degree of care in the protection of Confidential Information); provided, however, that you shall not have any such obligation with respect to the use or disclosure to others not parties to this Agreement of such confidential information as can be established to: (a) have been known publicly; (b) have been known generally in the industry before communication by the disclosing party to the recipient; (c) have become known publicly, without fault on your part, subsequent to disclosure by you; (d) have been known otherwise by the recipient before communication by you; or (e) have been received by you without any obligation of confidentiality from a source (other than you lawfully having possession of such information. Service Provider maintains appropriate safeguards for protection of any Customer specific data submitted by you to Service Provider in the course of using the Service, including financially identifiable information, which would allow the Customer or any natural persons to be identified ( Customer Information ). Service Provider shall not (a) modify Customer Information, (b) disclose Customer Information except to fulfill legal or regulatory requirements or to enforce the terms of this Agreement, or if it believes that such disclosure is required to prevent harm to others, or as expressly permitted in writing by you, or (c) access Customer Information except to collect amounts owed by you hereunder or to provide the Service or prevent or address service or technical problems, or at your request in connection with customer support matters. Notwithstanding the foregoing, Service Provider may aggregate and use non-personally identifiable data and information about its customers and users or provide third parties with the use of such aggregated data and information. Upon termination of this Agreement for any reason, Service Provider shall have the right to retain any Customer Information for its internal purposes and shall have no obligation to destroy any Customer Information or return it to you. 6. Charges and Payment of Fees. You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments shall be made in accordance with the terms and conditions set forth herein and in any related Order Form, or as otherwise mutually agreed upon in writing. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide Service Provider with valid credit card or approved purchase order information as a condition to signing up for the Service and maintain a current authorization for Service Provider to debit your credit card account for any amounts due hereunder, including pursuant to any Order Form, if a credit card is being used. In addition, you will provide Service Provider with a current street address, telephone number and address for future communications and shall notify Service Provider of any change to any such information. For situations where your credit card s issuing financial institution has been notified of a payment dispute, you agree that proof of Service usage by you or any designated Users constitutes your authorization for Service Provider to submit a payment request to such financial institution and receive payment therefor. Service Provider reserves the right to modify its fees and charges and to introduce new charges at any time. All pricing terms are confidential, and you and your Users agree not to disclose them to any third party.

4 7. Billing and Renewal. Prior to the expiration of any License Term, Service Provider may send you a notification with respect to renewal ( Renewal Notice ) for the following renewal term (such renewal term to be the same length as the previous term, unless otherwise stated in the Renewal Notice), which Renewal Notice may set forth additional terms and prices in the same manner as in the initial Order Form. Unless you notify Service Provider via at training@avimark.net prior to the start of any such renewal period that you elect not to renew, payment of the fee specified in the Renewal Notice shall be deducted by Service provider from your credit card account which payment shall constitute acceptance by you of Service Provider s offer to renew the subscription in accordance with the terms of the Renewal Notice as tendered to you. Service Provider's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. All amounts will be billed and payable in U.S. dollars. If you believe your bill is incorrect, you must contact us in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. 8. Non-Payment and Suspension. In addition to any other rights granted to Service Provider herein, Service Provider reserves the right to suspend or terminate this Agreement and your (and your Users ) access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or Service Provider initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Service Provider may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. Service Provider reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. 10. Termination Service Provider, in its sole discretion, may terminate your (or any User s) password, account or use of the Service if you (or any User) breach or otherwise fail to comply with this Agreement. Additionally, Service Provider may cancel the Service without cause upon thirty days (30) prior written notice, in which event Service Provider will refund to you any amounts paid by you with respect to periods after such termination. 11. Disclaimers; Limitation of Liability. THE CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT THE CUSTOMER S SOLE RISK. NEITHER SERVICE PROVIDER NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO SERVICE PROVIDER OR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKES ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS MADE AVAILABLE ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. NEITHER SERVICE PROVIDER NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS OR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,

5 EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. IN NO EVENT WILL SERVICE PROVIDER'S OR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS RESPECTIVE LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY SUBSCRIBER, IF ANY, FOR THE SERVICE FOR THE TWELVE-MONTH PERIOD PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM. No bailment or similar obligation is created between you (and (or) your Users) and Service Provider with respect to the providing to you of the Service and (or) any Service Provider Content hereunder. You are solely responsible for maintaining the confidentiality of passwords, including restricting the use of the password by your Users. You shall be responsible for all use of the Service accessed through your or any of your User s passwords. SERVICE PROVIDER SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATION TO YOU OR ANY OF YOUR USERS, OR OTHER USERS OF THE SERVICE TO MONITOR, SUPERVISE OR OVERSEE THE CONTENTS OF FILES STORED ON THE SERVICE. The Service is normally available to you when you are within the operating range of our systems but may be available outside of that area by other prearranged conditions or agreements. The ability to deliver the Service is subject to transmission limitation, reduction in transmission speed, or interruption caused by weather, your equipment, terrain, obstructions such as trees or buildings, or other conditions. The Service may be limited in some areas where high speed connectivity is not available or may be temporarily limited or interrupted due to system capacity limitations, system repairs or modifications, or in response to suspected fraud, abuse, misuse of the network, hacking or malicious viruses. Interruption may also result from nonpayment of charges by you. We may cease delivery of the Service we are experiencing excessive billing, collection, fraud problems or other misuse of our systems. You and your Users shall be solely responsible for the accuracy of any veterinary advice provided by each of you, whether or not such advice was based on information obtained from the Service or any Service Provider Content. You acknowledge that Service Provider and its licensors are not veterinarians or veterinary professionals and do not provide veterinary advice. The information provided in the Service and the Service Provider Content is no substitute for individual patient assessment based upon the healthcare provider's examination of each patient and consideration of factors unique to the patient. The Service should be used as an educational tool to help the user be aware of applicable veterinary issues, processes and procedures, with an understanding that individual and unique circumstances may lead the user to reach decisions not presented in any Service Provider Content. Additionally, standards and practices in veterinary medicine change as new data become available and the individual medical professional should consult a variety of sources in making clinical decisions. Although updates to the Service Provider Content are issued periodically we do not guaranty the timeliness of any Service Provider Content. Accordingly, Service Provider and its licensors and affiliated entities, and each of their respective employees, officers, licensors and agents, accept no liability whatsoever for any reliance on the Service or any Service Provider Content. You agree to indemnify, defend, and hold harmless Service providers, its officers, directors, trustees, employees, agents and third party suppliers and licensors (collectively, Indemnified Parties ) from and against any claims, actions, demands, judgments, liabilities, fines, penalties and expenses, including but not limited to reasonable attorneys fees (collectively, Claims ), resulting from or alleged to result from, your or any User s use of or reliance upon the Service or any Service Provider Content.

6 13. Indemnification. You shall indemnify, defend and hold harmless each of the Indemnified Parties from any Claims (including reasonable attorneys fees) arising out (a) any act or omission by you and (or) your Users, (b) any breach by you and (or) any of your designated Users of this Agreement, including any Order Form, (c) any use of the Service, the Materials or the Service Provider Content by you and (or) any of your Users in violation of this Agreement, (c) any infringement by you and (or) any of your Users of any intellectual property rights of Service Provider, its licensors or any third party, or (c) any violation by you and (or) any of your designated Users of any applicable law. 14. Local Laws and Export. You shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, (i) you represent that it you are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) you shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction. 15. Notices Service Provider may give notice by means of a general notice on the Service, electronic mail to your address on record in your account information, or by written communication sent by first class mail or pre-paid post to your address on record in your account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by ). You may give notice to Service Provider (such notice shall be deemed given when received by Service Provider) at any time by any of the following: letter sent by confirmed facsimile to Service Provider at the following fax number: ; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Service Provider at the following address: McAllister Software Systems, 5 Sugar Creek Road, Piedmont, Missouri Attention: Training Department. Each notice given by you shall include a copy to: Henry Schein, Inc., 135 Duryea Road, Melville, New York 11747, Attention; General Counsel, Fax: General. This Agreement may not be assigned by you without the prior written approval of Service Provider. This Agreement shall be governed by New York law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Suffolk County, New York. No text or information set forth on any other purchase order, preprinted form or document in whatever form (including in electronic form) (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Service Provider as a result of this Agreement or use of the Service. The failure of Service Provider to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Service

7 Provider in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Service Provider and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Service Provider may modify this Agreement, including the Service packages and prices, and may discontinue or revise any or all other aspects of the Service at its sole discretion and without advance notice. Unless otherwise agreed, the Customer s right to use the Service is not transferable and is subject to any limits established by Service Provider. 17. Additional Definitions. As used in this Agreement and in any Order Forms now or hereafter associated herewith: Agreement means these online terms of use, any Order Forms, whether written or submitted online, and any materials available on the Service Provider website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Service Provider from time to time in its sole discretion; Effective Date means the date this Agreement is accepted by completing and submitting to Service Provider an Order Form, whether submitted by electronic or other means; Initial Term means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is yearly, the Initial Term is the first 12 months from the Effective Date); Renewal Notice means a statement for renewal of the subscription; License Term(s) means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s); Order Form(s) means the form evidencing the initial subscription for the Service and any subsequent order forms specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement; User(s) means your employees, representatives, consultants, contractors or agents who are authorized to use the Service in accordance with an Order Form and have been supplied user identifications and passwords in accordance herewith for the Service