Terms and Conditions

Effective: June 1, 2026

These Terms and Conditions, together with any and all Service Order Forms referencing these Terms and Conditions, form the agreement (collectively the “Agreement”) between the entity signing a Service Order Form as Subscriber or Customer (“Customer”) and Colibri Healthcare, LLC (the “Service Provider”). Service Provider and Customer are each a “Party” and collectively the “Parties”.

Definitions. Capitalized terms shall have the meaning set forth in this Section or as otherwise defined in the Agreement. The term “including” means “including, but not limited to”, “or” includes “and/or”.
1. “Affiliate” means any partnership, joint venture, corporation, or other form of enterprise organized under the Law of the United States or any foreign jurisdiction that, directly or indirectly, controls, is controlled by, or is under common control with a Party. For purposes of the Agreement, the ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority shall be deemed to constitute control.
2. “AI Tools” means any technology in the artificial intelligence, machine learning, deep learning, generative artificial intelligence, or other autonomous learning fields, ‎including any and all (i) proprietary algorithms, software or systems that make use of or ‎employ technologies such as neural ‎networks, reinforcement learning, or statistical learning algorithms (e.g., linear and logistic regression, support vector ‎machines, ‎random forests, k-means clustering), and (ii) proprietary embodied ‎artificial intelligence and ‎related hardware or equipment.
3. “Authorized User” means any individual who is authorized by Customer to access and/or use the Services provided under a particular Service Order Form and includes learners, personnel and administrators subject to any limitations set forth in any Service Order Form.
4. “Confidential Information” means information provided by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which is designated in writing as confidential or proprietary, as well as information which a reasonable person familiar with the disclosing Party’s business and the industry in which it operates would know is of a confidential or proprietary nature.
5. “Content” means all content, materials, data, and intellectual property made available by or on behalf of Service Provider through the Services, including without limitation course materials, videos, recordings, presentations, assessments, quizzes, answers, study plans, analytics, text, graphics, images, audiovisual content, and underlying technology (to the extent presented to Authorized Users) and any modifications, updates, or derivative works of the foregoing.
6. “Customer Data” means any data, information or other materials of any nature whatsoever uploaded, inputted or provided to Service Provider by Customer or an Authorized User in the course of using the Services.
7. “Personal Data” means any information relating to, describes, is reasonably capable of being associated with, or could reasonably be linked to an identified or identifiable natural person.
8. “Platforms” means any websites, applications, systems, or environments owned and operated by or on behalf of Service Provider through which the Services are delivered or made accessible.
9. “Services” means the services to be provided by the Service Provider as described in each Service Order Form including products, services, tools, functionality and offerings made available by or on behalf of Service Provider
10. “Service Order Form” means any service order form, statement of work or other written instrument executed between the Parties directing Service Provider in the provision of Services substantially conforming to a form provided to Customer by Service Provider. Each Service Order Form shall be in substantially the same form as otherwise agreed to by the Parties in writing and shall include, at a minimum, (a) a description of the Services to be provided; and (b) the charges to be paid by Customer for such Services. Unless otherwise provided in writing, the business terms in each Service Order Form relating to description of Services, pricing, and performance standards shall apply only to such Service Order Form.
11. “User Material” means any content or material posted, uploaded, or shared through the Services by a user including an Authorized User, including comments, messages, forum posts, and other materials. User Material does not include any changes, modifications, updates, enhancements or any kind of derivative works made by an Authorized User to the Services or the Content, including with the use of any artificial intelligence features provided to an Authorized User on the Platform.
Scope
1. Services. Service Provider shall perform the Services in accordance with the Agreement and the service levels, specifications, timeframes, and other terms and conditions set forth herein. Each Service Order Form signed between the Parties shall be incorporated herein by reference and subject to these Terms and Conditions. In the event the terms of any Service Order Form conflict with these Terms and Conditions, these Terms and Conditions shall control unless the Service Order Form explicitly states the provisions of these Terms and Conditions over which it should control.
2. Affiliates. The Services may be offered under multiple Affiliates, product lines, and Platforms. This Agreement applies across all Platforms. Customer agrees that, in accordance with Section 15 [Subcontracted Services], Service Provider may perform its obligations through Affiliates and references to “Service Provider” include its Affiliates to the extent involved in providing the Services.
License Grant.
1. Limited License. During the Term, Service Provider hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable, right and license for Customer and its Authorized Users to: (i) access and use the Services and Content through the Platform strictly in accordance with the Agreement and subject to the conditions and restrictions set forth in the Agreement.
2. Printing/Downloading. The license rights granted herein include the limited right to print or download the Content (unless restricted or limited by the applicable Services) for use by Authorized Users solely for such Authorized User’s individual, internal, non-commercial educational and informational use in connection with the use of the Services and for no other purpose. The use or distribution of printouts of the Content within Customer’s organization generally or by individuals or users other than Authorized Users or otherwise for external commercial purposes, including commercial publication, sale, or other personal gain, is strictly prohibited. Any printouts of the Content shall retain Service Provider’s and/or its licensors’ copyright and/or other proprietary rights notices, in addition to any and all disclaimers and/or limitations included in the Content. For the avoidance of doubt, it is expressly understood that the license rights granted herein does not include the right to copy, print or download the Content apart from the Services, and Customer shall not, and shall not permit its Authorized Users to, print and/or download such Content in violation of the Agreement.
3. Prohibited Uses. Customer and each Authorized Users shall not, and shall not permit any third party to: (i) copy, reproduce, distribute, display, resell, publish, perform, or otherwise exploit the Services or any Content; (ii) record (audio, video, screen capture, or otherwise) any portion of the Services or Content; (iii) download (except as expressly authorized herein), scrape, extract, harvest or otherwise collect any Content or data from the Services, included though automated means; (iv) create derivative works, adaptations, translations, or compilations based on the Services or Content; (v) share, sell, sublicense, transfer, publish, or otherwise make available the Services or any Content to any third party; (vi) use any automated tools, bots, scripts, or similar methods to access, monitor, or interact with the Services or Content; (vii) remove, obscure, or alter any copyright, trademark, or other proprietary notices contained in or on the Services or Content; (viii) circumvent or attempt to circumvent access controls, restrictions or usage limits; or (ix) use the Services or Content in any manner that violates applicable intellectual property, privacy, data protection, export control, or other applicable laws.
4. AI and Automated Tools. Except as expressly permitted for transient, personal note-taking that does not involve storage, model training, or third-party access, neither Customer nor any Authorized User shall use AI Tools to : (i) extract, reproduce, or summarize Content; (ii) generate derivative works based on Content for distribution; (iii) train, fine-tune, or otherwise develop or improve any AI Tool a using the Services or Content; or (iv) circumvent learning objectives, assessments, or usage restrictions within the Services. In addition, neither Customer nor any Authorized User shall input, upload, transmit, or otherwise provide any Content to any AI Tool that: (v) uses such Content for model training, improvement, or development; (vi) retains or stores such Content beyond an Authorized User’s individual use; or (vii) permits access to such Content by any third party.
5. Academic Integrity. Customer shall ensure that its Authorized Users personally complete all coursework, assessments, and examination. Authorized Users shall not (i) cheat, plagiarize, or misrepresent authorship; (ii) share, distribute, or disclose answers, assessment materials, or Content related to assessments; (iii) permit any third party or AI Tool to complete work on behalf of such Authorized User; or (iv) misrepresent certification or completion status, credentials, or affiliation with Service Provider.
6. Account Sharing. Sharing user name/id and passwords, student accounts, or collective or group viewing of video or streaming presentations is strictly prohibited. Access to the Services, and any license granted by Service Provider under the Agreement, in relation to such access, is not transferable by Customer or any Authorized Users. All access codes and passwords are personal to the individual to which it is issued. Customer or each Authorized User are responsible for maintaining the confidentiality and security of all issued access codes and passwords, and for ensuring that each access code and password is used only by the Authorized User.
7. Monitoring and Detection of Misuse. Service Provider may implement technical, administrative, and operational measures to: (i) detect unauthorized copying, recording, or distribution of Content; (ii) identify Account sharing, credential misuse, or unusual usage patterns within the Services; (iii) investigate suspected violations, and (iii) monitor activity and performance, academic integrity, compliance with the Agreement, and proper use of the Services.
Specific Content Terms. While appropriate care has been taken in organizing and presenting the Content, unless Service Provider expressly states otherwise with respect to particular Content, Service Provider does not warrant or guarantee the correctness, accuracy, or timeliness of the Content. Customer acknowledges and agrees that the Content has not been prepared to meet Customer’s individual requirements; rather, the Content is provided by Service Provider for general educational and informational purposes only, except expressly agreed otherwise in the Service Order Form. Service Provider does not perform any independent analysis or investigation of the Content or any specific information, data, or content set forth in the Content. Customer and its Authorized Users shall be solely responsible for complying with applicable local, state, and federal laws in connection with Customer’s and its Authorized Users’ use of the Services and/or the Content. Customer further acknowledges and agrees that:
1. CE Content. To the extent that the Services and/or Content include web-based continuing educational tools and/or modules (“CE Content”) then this Section shall apply to such CE Content. The Content may include certain web-based continuing educational tools and/or modules (“CE Content”). The CE Content may be used by Customer and/or its Authorized Users to meet continuing education requirements or to comply with professional certifications or standards (collectively, “Standard(s)”). Where Service Provider indicates that the CE Content complies with a particular Standard, Service Provider will use commercially reasonable efforts to ensure such compliance; however, neither Service Provider nor any of its licensors warrant or guaranty such compliance. In the event of any failure of the CE Content to comply with such Standards, Customer acknowledges and agrees that Service Provider’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, shall be for Service Provider to: (i) correct the CE Content such that the CE Content complies with the identified Standard(s); or (ii) terminate Customer’s subscription to access and/or use the non-compliant CE Content, in which case, Service Provider will refund to Customer, on a pro-rata basis, any fees prepaid by Customer but unearned by Service Provider as of the date on which Service Provider terminates Customer’s subscription rights.
2. Medical Content. To the extent that the Services and/or Content include content and information regarding drugs and medications, as well as medical procedures or treatments (“Medical Content”) this Section shall apply to such Medical Content. Neither Service Provider nor its licensors provide the Medical Content for purposes of providing medical diagnosis or treatment advice or recommendations. Customer acknowledges and agrees that neither Service Provider nor any of its licensors are endorsing or advocating the use of any particular product, procedure, treatment, pharmaceutical or medication described in the Medical Content. Service Provider and each of its licensors expressly disclaim responsibility for any consequence of the use or misuse of any such product, procedure, treatment, pharmaceutical or medication due to any errors or other inaccuracies in the Medical Content. With respect to any products, medications, or pharmaceuticals described in the Medical Content, additional information on any such products, medications, or pharmaceuticals may be obtained from the applicable manufacturer or supplier.
Authorized Users.
1. Customer shall limit the access and use of the Service and Content solely to Authorized Users. Customer is responsible for ensuring that all Authorized Users strictly comply with all obligations and responsibilities imposed by the Agreement on Customer and the Authorized Users, respectively. Any breach of the Agreement by any Authorized User shall be deemed a breach by Customer, provided that Customer will have the right to cure such breach pursuant to Section 10 below.
2. Customer acknowledges and agrees that Service Provider may, in Service Provider’s discretion, condition access to and/or use of the Services and/or the Content on the Authorized Users individually agreeing to Service Provider’s standard end user license agreement for the Services and/or Content.
Secure/Remote Access. All access and use of the Services must be made via a secure network and secure authentication methods. Use of the Services by remote access is allowed unless otherwise stated on the Service Order Form. Customer will strictly limit any remote access to its Authorized Users through the use of passwords, IP address authentication measures, or other secure methods of user verification. Customer will immediately notify the Service Provider if Customer believes its security has been compromised. Posting or sharing usernames or passwords or otherwise enabling access for the benefit of non-subscribing institutions or users, is strictly prohibited.
Restrictions on Use. In addition to the Prohibited Uses set forth in Section 3 above, Customer and its Authorized Users shall not:
1. Translate, reverse engineer, disassemble, decompile, discover, or modify the Services or Service Provider’s and/or any of its licensors’ software;
2. Use any location-restricted Content at any Customer location other than the location for which the use of the Content has been authorized;
3. Use the Services to execute denial of service attacks;
4. Use the Services or Content to create products or perform services which compete or interfere with those of Service Provider;
5. Text mine, data mine or harvest metadata from the Services;
6. Impair or overburden the Services or any servers or systems associated with the Services;
7. Download all or parts of the Services in a systematic or regular manner or so as to create a collection of materials comprising all or a material subset of the Services, in any form;
8. Use the Services in connection with life support systems, medical devices, or any application where failure or malfunction could lead to possible loss of life; or
9. Access or use the Content or the Services in any jurisdiction or territory other than those jurisdictions or territories for which Customer has purchased rights to access or use the Content or the Services pursuant to the Service Order Form.
Fees and Payments.
1. Pricing. The pricing for the Services or Content shall be set forth on the applicable Service Order Form (“Fees”). Fees are calculated on the Start Date identified in the Service Order Form. For organic growth (including, but not limited to, location count, user count, or additional facilities as applicable), these additions will be accounted for on the Service Order Form.
2. Invoicing and Payment. The Service Provider shall invoice Customer in accordance with the Billing Frequency specified in the applicable Service Order Form. Customer shall promptly pay all Fees in accordance with the Agreement including the applicable SOF. Unless otherwise provided in the Service Order Form, payment is due and payable by Customer within 30 days of receipt of Service Provider’s invoice.
3. Overdue Charges. If any payments are not received by the Service Provider from the Customer by the due date then, at Service Provider’s discretion, and without limiting its other remedies hereunder, Service Provider may charge interest, per month, on the outstanding balance, at a rate which is the lesser of 1.5% or the amount permitted by law, from the date such payment was due until the date paid, and/or condition future subscription renewals on payment terms shorter than those specified in Section 8.b. above (Invoicing and Payment).
4. Taxes. The Customer shall be responsible for paying any and all taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively referred to as “Taxes”) associated with its purchases hereunder. If the Service Provider has the legal obligation to pay or collect Taxes for which the Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by the Customer.
Term. Access to a particular Service shall continue for the subscription period stated on the Service Order Form, plus any agreed renewal period(s), unless the Agreement or any Service Order Form is terminated pursuant to Section 10 below (the “Term”). This Agreement shall remain in effect for the duration of all active Service Order Forms, unless earlier terminated pursuant to Section 10 hereof. Thereafter, the following terms and conditions of the Agreement shall survive: Sections 10, 12, 16 through 20, 24, 25 and 30.
Termination. If a Party breaches the Agreement and does not cure the breach within 30 days of its receipt of written notice from the other Party (“non-breaching party”) specifying the breach, the non-breaching party may immediately terminate the Agreement in whole with all Service Order Forms, or in part, as to the Service Order Form for the affected breach. If the Agreement or any individual Service Order Form is terminated due to Customer’s breach: (i) Service Provider will have the right to immediately disable access to the terminated Services; (ii) Customer shall destroy any files, information, data or software derived from any terminated Service in the possession or control of Customer or any Authorized Users, and certify to such destruction upon Service Provider’s request; (iii) Customer shall forfeit all prepaid fees; and (iv) Service Provider reserves the right to pursue all available legal remedies. For the avoidance of doubt, upon termination or expiration of the Agreement or any Service Order Form, the rights and obligations the Agreement assigns for access and use of terminated Services shall cease (except for those that are designated to specifically survive termination) and Customer shall pay Service Provider all amounts due and payable under the Agreement or the applicable Service Order Form as the case may be.
Remedial Action. Service Provider may suspend delivery of the Services and/or the Content if Service Provider reasonably determines that Customer and/or Authorized Users are failing to comply with the Agreement or are otherwise in breach of the Agreement, including without limitation, by not making full and timely payment to Service Provider, or by increasing the number of Authorized Locations and/or Users (as defined in the respective Service Order Form) without Service Provider’s written authorization. If the Services are suspended, in whole or in part, the Service Provider will restore access to the Customer and each affected Authorized User as soon as the Customer remedies the non-compliance or breach to the satisfaction of the Service Provider. Service Provider’s suspension of any or all of the Services and/or the Content is without prejudice to any right, claim, or remedy that Service Provider may have under the Agreement.
Intellectual Property Rights.
1. Ownership. The Services, the Platform and the Content are the Service Provider’s sole and exclusive property, and are protected by copyright and other intellectual property rights and laws. Except for the limited license expressly granted by Service Provider to Customer in the Agreement, the Agreement grants no right, title, or interest in the Services, the Content, the Platforms or any copyright, patent, trademark, or trade secret, or any other intellectual property rights or other proprietary rights associated with, or embodied therein. Customer does not acquire any intellectual property ownership or other rights in the Services, the Platform (including, without limitation, any associated software, systems, documentation) or the Content, whether by implication, estoppel, or otherwise. All rights and interests not expressly granted herein are reserved to and remain with the Service Provider.
2. Customer Data. Except for the licenses granted by Customer to Service Provider in the Agreement, Customer retains ownership interest in the Customer Data.
3. License to Use Customer Data:
  1. Customer grants to Service Provider, a royalty-free, fully-paid, non-exclusive license to use the Customer Data in connection with Service Provider’s maintenance, operation, and provision of the Services and/or the Content.
  2. Service Provider shall have the unlimited and unrestricted right to obtain, maintain, use, distribute, disclose, exploit and/or commercialize Customer Data for any lawful purpose during the Term or thereafter so long Service Provider has caused Customer Data to be de-identified and/or aggregated such that neither Customer nor the applicable Authorized Users can be identified as the source of the Customer Data during the Term.
  3. For any Customer Data that constitutes or includes Personal Data, Service Provider’s Privacy Notice, available here, which is incorporated herein by reference and made a part hereof, will govern the use and processing thereof.
4. Feedback. Any comments, feedback, suggestions, or ideas (“Feedback”) that Customer or Authorized Users provide to Service Provider, either through or independent of the Services, is owned exclusively by Service Provider and Service Provider may use such Feedback as determined in Service Provider’s sole and absolute discretion.
User Material and Community Features.
1. User Material. The Services may permit Authorized Users to share, post, or upload User Material including: (i) comments, messages, or forum posts; (ii) files, links, or other materials; (iii) responses to assessments or exercises; and (iv) communications with other users or instructors. Customer and each Authorized User shall be solely responsible for any User Material that such Authorized User shares, posts or, uploads, through the Services and all consequences thereof. Customer shall ensure that each Authorized User has all rights, licenses, and permissions necessary to submit the User Material; (ii) the User Material does not violate any applicable laws or infringe, misappropriate, or otherwise violate any third-party rights; and (iii) the User Material is accurate and is not false, misleading, or deceptive. Customer, for itself and its Authorized Users, grants Service Provider a worldwide, non-exclusive, royalty-free, fully paid, transferable, sublicensable license to use, host, store, reproduce, modify, adapt, publish, display, and distribute the User Material in connection with operating, providing, improving, enforcing, and promoting the Services, and as otherwise permitted under the Agreement and the Privacy Policy.
2. Community Features. Service Provider has no obligation to monitor User Material, screen communications, or verify the accuracy of information provided by any user of the Service including Authorized Users. Service Provider is not responsible for the conduct of any user of the Service including Authorized Users or for the User Material. Each Authorized User is solely responsible for such Authorized User interactions with other users, instructors, coaches, mentors, and/or third parties encountered through the Services. Authorized Users interact with other users at their own risk. Community features and interactions may be limited in scope and are subject to change at any time in the discretion of the Service Provider. Additionally, Service Provider may modify, suspend, or discontinue community features and interactions at any time without liability.
3. Removal and Suspension for Conduct Violations. Service Provider may, in its sole discretion, remove User Material, suspend or terminate access, and/or revoke participation in community features or instructor interactions for any violation of the Agreement or community guidelines established by Service Provider from time to time, or for behavior that Service Provider, in its sole discretion, deems harmful, inappropriate, or inconsistent with the intended use of the Services. No refunds will be provided in connection with such removal, suspension, termination, or revocation.
Service Levels. If the Services or Content is hosted by the Service Provider the Platform, the Service Provider will use commercially reasonable efforts to provide access to the Services on an uninterrupted basis (except for regularly scheduled maintenance). The Service Provider shall not be liable for any failure or delay or interruption in the Service due to failure of any equipment or telecommunications networks, or for failures resulting from any cause beyond the Service Provider’s reasonable control. Customer shall be responsible for providing all required information for account setup and activation, and for any telecommunications connections and related third-party charges.
Subcontracted Services. Notwithstanding anything contained in the Agreement to the contrary, Customer acknowledges that Service Provider may subcontract or delegate performance of all or any portion of the Services to one or more of its Affiliates (“Subcontracted Services”), provided that the Service Provider remains fully responsible for the performance of the Services in accordance with these Terms and Conditions and the applicable Service Order Form. Any failure by an Affiliate to comply with these Terms and Conditions and the applicable Service Order Form in relation to the Subcontracted Services shall constitute a breach of the Agreement by Service Provider, and Service Provider shall be fully responsible for any such breach to the same extent as for its own acts or omissions. For the avoidance of doubt, the Subcontracted Services shall be hosted by each Affiliate on its Platform in accordance with the terms thereof.
DISCLAIMER.
1. THE SERVICES, THE PLATFORM AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SERVICE PROVIDER DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND RELATING TO THE SERVICE AND/OR THE CONTENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AVAILABILITY, ACCURACY, TIMELINESS, CORRECTNESS, RELIABILITY, CURRENCY, OR COMPLETENESS OF THE SERVICE, THE CONTENT OR ANY INFORMATION OR RESULTS OBTAINED THROUGH THE SERVICE EVEN IF ASSISTED BY SERVICE PROVIDER.
2. THE SERVICES AND CONTENT DO NOT CONSTITUTE MEDICAL, LEGAL, FINANCIAL, OR OTHER PROFESSIONAL ADVICE. IN USING THE SERVICES AND THE CONTENT, CUSTOMER AND EACH AUTHORIZED USER MUST VERIFY ANY INFORMATION GENERATED FROM THE USE OF THE SERVICES, SHALL EXERCISE HIS OR HER OWN INDEPENDENT SKILL, EXPERIENCE, KNOWLEDGE AND JUDGMENT IN RELATION THERETO, AND IS SOLELY RESPONSIBLE FOR THEIR DECISIONS AND ACTIONS, AS WELL AS COMPLIANCE WITH APPLICABLE LAWS, REGULATIONS, AND PROFESSIONAL REQUIREMENTS.
3. NO SALESPERSON OR OTHER SERVICE PROVIDER REPRESENTATIVE INVOLVED IN THE DISTRIBUTION OF THE SERVICE IS AUTHORIZED TO MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR THE CONTENT BEYOND THOSE CONTAINED IN THE AGREEMENT. ORAL STATEMENTS DO NOT CONSTITUTE REPRESENTATIONS OR WARRANTIES, SHALL NOT BE RELIED UPON BY CUSTOMER OR ANY AUTHORIZED USER AND ARE NOT A PART OF THE AGREEMENT.
4. SERVICE PROVIDER DOES NOT GUARANTEE ANY EXAMINATION RESULTS, CERTIFICATION OUTCOMES, LICENSURE OR REGULATORY ACCEPTANCE, OR EMPLOYMENT OR CAREER ADVANCEMENT OR OUTCOMES. OUTCOMES DEPEND ON INDIVIDUAL EFFORTS AND EXTERNAL FACTORS BEYOND SERVICE PROVIDER’S CONTROL. MARKETING MATERIALS, TESTIMONIALS, AND SUCCESS STORIES ARE ILLUSTRATIVE ONLY. INDIVIDUAL RESULTS VARY;
Third Party Materials. During the use of the Services, Customer and its Authorized Users may access content, materials, or other services from or provided by a party other than Service Provider (collectively, “Third Party Services”). Any such access or activity, and any terms, conditions, warranties, or representations associated with such access or activity, is solely between Customer or the Authorized User, as the case may be, and the applicable third-party. Service Provider shall have no liability, obligation or responsibility for any such access or use between Customer and/or the Authorized User and any such third-party and expressly disclaims and makes no representation or warranty with respect to the Third Party Services or any portion thereof and assumes no liability for any claim that may arise with respect to the Third Party Services or the Customer’s or an Authorized User’s use, misuse or inability to use the same. Service Provider does not endorse any sites on the Internet that are linked through the Services. Service Provider provides these links to both the Customer and the Authorized User only as a matter of convenience, and in no event shall Service Provider be responsible for any content, products, or other materials on or available from such sites. Service Provider provides the Services pursuant to the terms and conditions of the Agreement. Customer acknowledges, however, that certain third-party providers of ancillary software, content, materials, or services may require an agreement between Customer and/or the Authorized User to additional or different license or other terms prior to the use of or access to such software, content, materials, or services.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, SERVICE PROVIDER’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE, THE CONTENT AND/OR THE AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES SERVICE PROVIDER RECEIVED FROM CUSTOMER UNDER THE APPLICABLE SERVICE ORDER FORM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR WHICH SUCH DAMAGES ARE ALLEGED TO BE OWED. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR ANY AUTHORIZED USER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY PUNITIVE OR SPECIAL DAMAGES ARISING UNDER THE AGREEMENT OR AS A RESULT OF THE PROVISION OR USE OF THE SERVICE OR THE CONTENT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
Indemnity.
1. Service Provider will defend at its own expense any claim, action, demand or suit (“Action”) brought against Customer and its Authorized Users by a third party to the extent that the Action arises out of or relates to the Services and/or the Content directly infringing any copyright owned by such third party. Service Provider will pay those costs and damages finally awarded against Customer and Customer’s Authorized Users in a non-appealable judgment awarded in any such Action brought by a third party to the extent that the Action arises out of or relates to the Services and/or Content directly infringing any copyright owned by such third party. Service Provider also will pay those costs and damages finally awarded against Customer and Customer’s Authorized Users in any such Action that are specifically attributable to such claim (including reasonable attorneys’ fees, disbursements, and court costs prior to trial, at trial, and on appeal) or those costs and damages agreed to in a monetary settlement of the Action. Notwithstanding the foregoing, We will have no obligation with respect to any infringement claim based upon: (i) the use of the Services and/or Content other than as authorized in the Agreement; (ii) the combination of the Services and/or Content with or into other products, services, or content that We have not provided or approved in writing; or (iii) the modification, alteration or change to the Services or Content other than by Service Provider and its licensors. Service Provider’s indemnity obligations are further subject to and conditioned on Customer providing Service Provider prompt written notice of any such infringement Action of which Customer becomes aware, and Customer and Customer’s Authorized Users further providing Service Provider the right to direct and control the investigation, defense, and settlement of any such infringement Action. Customer and Customer’s Authorized Users may participate in the defense of any Action at Customer and Customer’s Authorized Users’ own cost and expense.
2. Customer agrees to indemnify, defend and hold harmless Service Provider and its licensors, affiliates, successors and assigns, and each of our and/or their respective officers, directors, members, agents, contractors, and representatives, from and against any and all losses, liabilities, suits, actions, obligations, fines, damages, judgments, penalties, claims, causes of action, charges, costs and expenses (including, but not limited to, attorneys’ fees, disbursements and court costs prior to trial, at trial and on appeal) arising out of or related to: (i) Customer’s breach of the Agreement (which includes breaches of the Agreement by Customer’s Authorized Users); (ii) Customer and Customer’s Authorized Users use of the Services and/or the Content other than as authorized in the Agreement; or (iii) Customer and Customer’s Authorized Users’ negligence or more willful misconduct.
3. If access to or use of the Services and/or Content is enjoined by a court of competent jurisdiction for infringing a third party’s intellectual property rights, in Service Provider’s sole and absolute discretion likely to be so enjoined, Service Provider may, at its own cost and expense, (i) license the right for Customer to continue use the infringing Services features or Content, (ii) modify or have modifications made to the infringing Services features or Content, and (iii) if neither options (i) or (ii) of this Section 19.c., Service Provider may terminate Customer’s license to the infringing Services features and/or Content, as Customer’s sole remedy and Service Provider’s sole liability, and refund to Customer any prepaid and unapplied amounts that Customer paid for the terminated license(s).
Confidential Information.
1. Disclosure. Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party without the prior written consent of the other Party, nor make use of any of the Disclosing Party’s Confidential Information except in its performance under, or as otherwise provided by, the Agreement. Receiving Party accepts responsibility for the actions of its agents or employees and shall protect the Disclosing Party’s Confidential Information in the same manner as it protects its own Confidential Information, but in no event with less than reasonable care. The Parties expressly agree that the terms and pricing of the Agreement are Confidential Information. Receiving Party shall promptly notify the Disclosing Party upon becoming aware of a breach hereunder and shall cooperate with any reasonable request of the Disclosing Party in enforcing its rights.
2. Exclusions. Information will not be deemed Confidential Information if such information: (i) is known prior to receipt from the Disclosing Party; (ii) becomes known to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of the confidentiality obligations and restrictions hereunder; or (iv) is independently developed by the Receiving Party. The Receiving Party may disclose the Confidential Information of the Disclosing Party pursuant to the requirements of applicable law, legal process or government regulation, provided that, unless prohibited from doing so by law enforcement or court order, the Receiving Party gives the Disclosing Party reasonable prior written notice, and such disclosure is otherwise limited to the required disclosure.
3. Upon the Disclosing Party’s written request, and where permissible, the Receiving Party will promptly return or destroy all Confidential Information received from the Disclosing Party provided that the Receiving Party may retain one copy of the Confidential Information in order to comply with applicable law or regulatory requirements.
Personal Data
1. Information Security Program. Service Provider shall (i) have a written information security program in place that is actively assessed and managed as part of ordinary course of business; and (ii) monitor industry-standard information channels for newly identified vulnerabilities and fix or patch based upon risk. Without limiting the foregoing, Service Provider’s information security program must, at a minimum, be designed to:
  1. ensure the security, integrity and confidentiality of Personal Data;
  2. protect against any anticipated threats or hazards to the security or integrity of Personal Data;
  3. protect against unauthorized access to or use of Personal Data that could result in substantial harm or inconvenience to Customer or the person or entity to whom such information relates;
  4. ensure the proper disposal of Personal Data in accordance with the requirements of the Agreement
2. Service Provider will periodically assess its information security program and the risks to the security of Personal Data including: (1) identification of any threats that could result in a security breach; (2) assessment of the likelihood and potential damage of such threats, taking into account the sensitivity of the Personal Data; and (3) assessment of the sufficiency of Service Provider’s policies, procedures, and information systems to control and protect against risks to the Personal Data.
3. Customer authorizes Service Provider, in connection with the provision of the Services, or in the normal course of business, and by means of general consent to (i), appoint and use Subprocessors (meaning any processor engaged by Service Provider, who agree to receive from Service Provider, or from another Service Provider Sub-processor, Personal Data intended for processing activities to be carried out on behalf of Service Provider ) and (ii) transmit Personal Data to its Sub-processors. Service Provider will seek appropriate agreements with such Sub-processors to in an effort to safeguard the Personal Data transferred or transmitted under or in connection with the Agreement, and which impose appropriate obligations that are (a) relevant to the services to be provided by that Subprocessor and (b) materially equivalent to the obligations imposed on Service Provider under this Section.
Anti-Corruption Laws. Customer acknowledges that it, and its Authorized Users, shall abide by any and all applicable anti-corruption and/or anti-bribery laws and regulations now or from time to time in force in any jurisdiction during the Term including but not limited to, the Foreign Corrupt Practices Act of 1977 (“FCPA”), and other domestic and international anti-corruption Laws and/or any other related enactment and/or any amendment or modification of such laws (collectively the “Anti-Corruption Laws”), prohibit any direct or indirect payment/receipt of money or anything of value to/from any person (including any government office, international organization, non-U.S. political party, party official or candidate for political office) for the purpose of obtaining, retaining or directing business, securing any improper advantage in the conduct of business or inducing the improper performance of any public or business-related function.
Sanctions. Customer acknowledges that it: (a) is aware of and has not violated any applicable sanctions laws or regulations, including, Office of Foreign Asset Control regulations, (collectively, “Sanctions Laws”); and (b) shall ensure that it and its directors, officers, employees, agents and Authorized Users are not on any list of prohibited individuals or entities enacted under Sanctions Laws, or located, organized or resident in a country or territory that is, or whose government currently is, the target of countrywide sanctions.
Entire Agreement. The Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all previous and contemporaneous agreements between the Parties with respect to the same subject matter and may not be amended except by a written amendment signed by the Parties. The Parties intend that the express terms and conditions contained in the Agreement exclusively govern and control the Parties’ respective rights, obligations, and responsibilities with respect to access and use of the Services and the Content. Any terms or conditions contained in any purchase order, acknowledgment, invoice, or similar transaction document that Customer issues or provides to Service Provider hereunder either directly or through an automated process are expressly rejected and of no force or effect even if Service Provider was required to click-through or otherwise accept any online or electronic terms.
Governing Law; Venue. The Agreement shall be governed by, construed, and enforced according to the laws of the State of Missouri, without regard to its conflict or choice of law principles. Any action arising out of or relating to the Agreement shall be brought only in the state courts located in St. Louis County, Missouri, and the federal courts located in St. Louis, Missouri, and the Parties expressly consent to such courts’ exclusive jurisdiction and irrevocably waive any objection with respect to the same, including any objection based on forum non conveniens. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT, OR THE SUBJECT MATTER OF THE AGREEMENT.
Notices. All notices or other communications required under the Agreement shall be in writing and shall be deemed effective when received and made in writing by either (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) overnight mail, addressed to the Party to be notified at the address provided in the applicable Service Order Form .
Assignment. Customer shall not assign or otherwise transfer the Agreement or any of Customer’s rights and obligations under the Agreement, without Service Provider’s prior written consent. Service Provider may assign the Agreement without Customer’s consent in connection with a merger, reorganization, acquisition or sale of all or substantially all of Service Provider’s equity or assets. Any assignment or transfer in violation of this Section will be null and void ab initio.
Third Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
Force Majeure. Other than payment obligations hereunder, neither Party will be liable for any inadequate performance to the extent caused by a condition that was beyond the Party’s reasonable control (including, but not limited to, natural disaster, act of war or terrorism, riot, global health crisis, acts of God, or government intervention), except for mere economic hardship, so long as the Party continues to use commercially reasonable efforts to resume performance.
General. Customer and Service Provider each agree as follows: (i) no waiver will be binding on a Party unless it is in writing and signed by both Parties and a Party’s waiver of a breach of a provision of the Agreement will not be a waiver of any other provision or a waiver of a subsequent breach of the same provision; (ii) the Parties will have all remedies available to them at law or in equity; (iii) if any term or provision of the Agreement is determined to be unenforceable in any respect, the enforceability of the term or provision in any other respect and of the remaining provisions of the Agreement will not be impaired; (iv) each of Customer and Service Provider are independent contractors with no authority to contract for each other or to bind or to commit the other to any agreement or to assume any liabilities in the name of or on behalf of the other; and (v) each Party represents, for itself,, that is has full power and authority to enter into and perform the Agreement, and the representatives entering into the Agreement on behalf of such Party has been previously authorized and empowered to enter into the Agreement.