Terms & Conditions
1. Term and Termination
Term. This Agreement shall be effective as the Effective Date and shall continue in effect for a period of two (2) years. Thereafter, this Agreement will automatically renew for successive one (1) year terms unless either Party provides the other Party with written notice of nonrenewal at least ninety (90) calendar days prior to the end of the then-current term (“Term”). For the avoidance of doubt, the “Term” of this Agreement shall mean the period of time beginning on the Effective Date and shall include any subsequent renewal periods and/or extensions thereof.
Termination For Breach. Either Party may terminate the Agreement upon a material breach by the other Party, provided the non-breaching Party notifies the breaching Party in writing specifying each breach and the breaching Party fails to cure said breach within thirty (30) calendar days of receipt of notice.
Either Party shall have the right at any time, upon ninety (90) days prior written notice to the other Party, to terminate this Agreement for its convenience.
2. Intellectual Property
Ownership. MedCerts owns all the copyright and other intellectual property interests in the Products and Trademarks (each defined below). The Parties acknowledge that the use of the Products, Trademarks, copyrighted material, photographs, images, recorded text, or other intellectual property for the purposes of the Agreement does not convey ownership of, nor does it assign such property. Each Party shall exclusively own its intellectual property and the other Party will have no claim or right to the intellectual property of such Party by virtue of this Agreement or the performance of the services hereunder, other than the rights granted under this Agreement. [Company] may not directly or indirectly copy, modify, translate, distribute, reverse engineer, decompile, disassemble, or prepare derivative works of any MedCerts curriculum, products, materials (whether tangible or intangible) or the accompanying documentation (collectively “Products”) or remove any proprietary notices, labels, trade names, trademarks, or other marks, tags, or legends on the Products.
License. MedCerts hereby grants to [Company] a non-exclusive, non-transferable, and royalty-free right to use the trade names, symbols, trademarks, and service marks of MedCerts (“Trademarks”) in connection with the promotion, marketing, and advertising of MedCerts in connection with this Agreement for so long as such Trademarks are used by [Company] in accordance with this Agreement and MedCerts standards, specifications, and instructions (each as communicated to [Company] in writing), but in no event beyond the Term of this Agreement. [Company] shall acquire no right, title, or interest in such Trademarks other than the foregoing limited license and all rights in the Trademarks and any goodwill created thereof shall be in the name of MedCerts. [Company] shall not use any Trademarks as part of [Company] ’s corporate or trade name or permit any third party to do so without the prior written consent of MedCerts.
3. Representations and Warranties. Each Party represents and warrants that: (i) it has the right and ability to enter into the Agreement and to perform its responsibilities and obligations of as provided in the Agreement; and (ii) it will comply with all applicable laws in the performance of its obligations under the Agreement, in particular with any governmental, federal, state, international or local rules regarding schools, student records, privacy and anti-bribery, including the United States Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§78dd-1, et seq.).
4. LIMITED WARRANTY. MedCerts warrants that it has the title and distribution rights to the Product and the Trademarks as set forth herein and has the right to grant the licenses hereunder and to fully perform under this Agreement, and that the Product will conform in all material respects to all requirements of applicable laws, the applicable Product specifications, and the requirements of the Addenda. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR IN THE APPLICABLE ADDENDA, ALL MEDCERTS PRODUCTS AND SERVICES (IF ANY) ARE PROVIDED “AS IS” AND EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE APPLICABLE ADDENDA MEDCERTS MAKES NO OTHER WARRANTY, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY OR PERFORMANCE OF THE MEDCERTS SCHOOLS OR PRODUCTS, AND MEDCERTS EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND MAKES NO GUARANTEES AS TO THE RESULTS OR ACHIEVEMENTS OF ANY STUDENTS. WITHOUT LIMITING THE FOREGOING, MEDCERTS MAKES NO GUARANTEES AND SHALL NOT BE LIABLE FOR NON-AVAILABILITY OF THE MEDCERTS WEBSITE, END-USER CONNECTION SPEED OR CONNECTIVITY PROBLEMS REGARDLESS OF THE REASON.
5. LIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS IN SECTIONS 6 AND 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM BREACH OF WARRANTY OR BREACH OF THIS AGREEMENT, OR ANY OTHER ACTION IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL MEDCERTS BE RESPONSIBLE OR LIABLE IN ANY WAY OR FOR ANY DAMAGES OF ANY KIND ARISING FROM THE MISUSE OF THE PRODUCTS BY END USERS. EXCEPT FOR OBLIGATIONS IN SECTIONS 6 AND 7, IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY AND ITS CONTRACTORS, OFFICERS, AND BOARD MEMBERS UNDER THIS AGREEMENT OR FOR ANY MATTER OR CAUSE OF ACTION ARISING IN CONNECTION HEREWITH EXCEED THE AMOUNT OF PAYMENTS RECEIVED OR RECEIVABLE FROM [Company] HEREUNDER.
6. Confidential Information. In the course of this Agreement, it is anticipated that the Parties will learn of information or will have access to certain information and materials that constitute confidential information of the other (the “Confidential Information”). Confidential Information shall also include information provided by one Party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving Party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations at least as restrictive as those contained herein (and the receiving Party shall be liable to the other Party for any unauthorized use or disclosure of Confidential Information by the receiving Party’s employees or agents). Neither Party will use any portion of Confidential Information provided by the other Party hereunder for any purpose other than those provided for under this Agreement. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a Party without restriction on use or disclosure; (ii) was or becomes generally available to the public through no fault of the receiving Party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing Party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either Party may disclose Confidential Information, to extent required and following reasonable prior notice to the Discloser, in response to a valid court order or other governmental body, as otherwise required by law or the rules of any applicable securities exchange.
Notwithstanding the foregoing, the Parties shall at all times maintain all student data and other personally identifying information in accordance with all applicable laws, including the Family Educational Rights and Privacy Act of 1974, as amended, and including all applicable regulations and United States Department of Education guidance pertaining thereto.
7. Indemnity. [Company] shall indemnify and hold harmless MedCerts, its affiliates and each of their officers, directors, employees, licensees and agents from and against all claims, losses, damages and expenses, including reasonable attorney’s fees, resulting from [Company] ’s breach of this Agreement or any negligent act, omission or willful misconduct of it, its employees, sales persons, or others contracted by [Company] in the performance of this Agreement or the infringement or alleged infringement of any copyright, trademark, trade secret, patent, or other proprietary or other intellectual property rights of any third party by the promotional materials provided by [Company] hereunder and that are not the intellectual property of MedCerts provided by MedCerts hereunder. MedCerts shall indemnify, defend and hold harmless [Company] , its officers, directors, employees, licensees and agents from any and all claims, losses, liabilities, damages and expenses (including reasonable attorney’s fees and other costs incurred by [Company] arising from such claims) which result from MedCerts’ breach of this Agreement or any negligent act, omission or willful misconduct of it, its employees, sales persons, or others contracted by MedCerts in the performance of this Agreement or the infringement or alleged infringement of any copyright, trademark, trade secret, patent, or other proprietary rights or other intellectual property rights of any third party by the Products, the Trademarks or other intellectual property provided by MedCerts hereunder. The Party seeking indemnification hereunder must have given the other Party prompt written notice of any claim (except that the failure or delay in providing such notice shall not release the indemnifying Party from its obligations herein except and only to the extent that the indemnifying Party is materially prejudiced thereby) and the opportunity to defend with counsel of the indemnifying Party’s own choosing, except that the indemnifying Party may not enter into any settlement or consent to any judgment without the indemnified Party’s prior consent.
8. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Delaware without regard to the principles of conflict of laws. The Parties agree to opt out of the Uniform Computer Information Transactions Act or its state law variations and its/their application to this Agreement. The U.S. federal and state courts of the State of Delaware shall have sole and exclusive jurisdiction and venue to adjudicate over any actions relating to the subject matter of this Agreement. The Parties consent to the exclusive jurisdiction of the courts specified above, and expressly waive any objection to the jurisdiction or convenience of venue of such courts.
9. Independent Contractor. The relationship between the Parties hereunder is that of independent contractors, rather than that of an employee, joint venturer, or partner. Neither Party is the agent of the other Party, and neither Party will have authority to bind the other Party to contracts or in any other manner. As an independent contractor, each Party is responsible for and agrees to file all tax returns required by law and to abide by applicable federal, state, and local law requirements, assuming sole liability for all self-employment and income taxes due on income earned pursuant to this Agreement. Neither Party will treat the other Party or its personnel as an employee, with respect to performance of this Agreement, for federal, state, or local tax purposes or otherwise. Neither Party will be responsible for payment of workers’ compensation insurance, unemployment compensation or disability insurance, or for withholding or paying employment-related taxes with respect to the other Party or its personnel. Each Party acknowledges that it and its personnel are not entitled to any rights or benefits (including, but not limited to, vacation and insurance) to which the other Party’s employees may be entitled. Each Party agrees to indemnify and hold the other Party harmless from any liabilities, claims or actions relating to any breach of this Section.
10. Force Majeure. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, riots, insurrections, fires, floods, storms, explosions, earthquakes, acts of God, war, governmental action, or any similar cause that is beyond the reasonable control of such Party. If any force majeure event occurs, the Party delayed or unable to perform shall give notice to the other Party and shall resume performance of this Agreement as promptly as possible.
11. Assignment. Neither Party may assign all or any portion of this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, [Company] may assign any or all of this Agreement to an affiliate, and MedCerts may assign any or all of this Agreement to a person or entity into which it has merged, or which has otherwise succeeded to all or substantially all its business and assets to which this Agreement pertains, by merger, reorganization or otherwise, and which has assumed in writing or by operation of law its obligations under this Agreement. The rights and liabilities of the Parties hereto will bind and inure to the benefit of their respective successors, executors, and administrators.
12. Notices. Any notice or other communication provided under this Agreement will be in writing and will be effective either when delivered personally to the other Party, or five (5) days following deposit of such notice or communication into the United States mail (certified mail, return receipt requested), or upon delivery by overnight delivery service (with confirmation of delivery), addressed to such Party at the address set forth above. Either Party may designate a different address by notice to the other given in accordance with this Agreement.
13. Entire Agreement. This Agreement, including and together with the applicable Addenda, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
14. Amendment. The terms hereof or of any Addendum may not be modified except in a writing signed by the Parties hereto. No failure by any Party to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.
15. Severability. In the event that any of the terms of this Agreement are deemed to be invalid or unenforceable under the governing laws or regulations, such terms shall be deemed stricken from this Agreement to the extent they are separable, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement shall continue in full force and effect.
16. 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, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. Addenda. Each Addendum shall be effective only if executed by an authorized officer or agent of each Party. In the event of any conflict between the terms of an Addendum and the terms of this Agreement, the terms of this Agreement shall control unless such conflict is expressly acknowledged in the Addendum and the Addendum expressly states that the Addendum shall control in such event (in which case, such override of this Agreement will apply with respect to that specific Addendum only).
18. Counterparts. This Agreement and any Addendum hereunder may be executed in multiple counterparts, and facsimile and electronic signatures shall be binding.
