This Subscription Agreement (“Agreement”) sets forth the terms and conditions under which CareAcademy.co, Inc. a Delaware corporation (“CareAcademy”) provides its subscribers (each a “Customer”) and any affiliated User (as described below) with access to CareAcademy’s proprietary online caregiver education platform described at www.careacademy.com (the “Service”).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
“Order Form” means the ordering documents for Customer’s purchases from CareAcademy that are executed hereunder by the parties from time to time. Order Forms shall be deemed incorporated herein.
“Users” means individuals who are authorized by a Customer to use the Service, for whom subscriptions to the Service have been purchased, and who have been supplied user identifications and passwords or related access codes by Customer (or by CareAcademy at Customer’s request). Users may include but are not limited to employees, consultants, contractors and agents of Customer or its Affiliates. In the event that Customer is only purchasing one subscription the term User and Customer are analogous.
2. SERVICE AND USE OF SERVICE
2.1 Provision of Service
CareAcademy shall make the Service available to Customer and its Users pursuant to this Agreement and all Order Forms for the duration of a specific subscription term referenced in the Order Form. Customer agrees that except as set forth in the Order Form its purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by CareAcademy with respect to future functionality or features.
2.2 CareAcademy Responsibilities
2.3 Customer Responsibilities
Customer is responsible for all activities that occur in affiliated User accounts and for any affiliated Users’ compliance with this Agreement any additional use guidelines that CareAcademy may post on its site from time to time. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information provided by Customer or any User authorized by such Customer; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify CareAcademy promptly of any such unauthorized access or use; (iii) provide feedback on the system and such feedback from its Users as reasonably requested by CareAcademy from time to time and (iv) comply with all applicable local, state, federal and foreign laws in using the Service.
2.4 Use Guidelines
Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Users or as otherwise contemplated by this Agreement;(ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (iii) attempt to gain unauthorized access to the Service or its related systems or networks.
2.5 Reliance on Advice and Information
To the extent CareAcademy provides information or resources on its website, in its education materials, or through any other means as part of this Service regarding applicable laws, rules, and regulations (including, but not limited to, laws regarding Scope of Practice, training requirements, or licensure), Customer agrees that CareAcademy has no liability for any damage or loss of any type that is a result of Customer’s use of this information. If Customer decides to access this information or these resources, Customer does so at its own risk. CareAcademy does not guarantee or warrant that information is accurate or up-to-date.
3. FEES & PAYMENT
3.1 User Fees
Customer shall pay all fees specified in the applicable Order Form. Except as otherwise provided, all fees are quoted and payable in United States dollars. Except as otherwise specified herein or in an Order Form, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form.
3.2 Invoicing & Payment
Fees for the Service will be invoiced monthly and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due after 30 days each month. Customer is responsible for maintaining complete and accurate billing and contact information on the Service.
3.3 Service Terms
Customer will be billed a one-time onboarding fee per User and a recurring monthly fee per User at the respective rates and duration set forth in the Order Form. Any additional Users will be billed at the rates set forth in the Order Form. CareAcademy may, no more often than once every 12 months, increase the fees due pursuant to any Order Form by providing notice to Customer. Any increase will be effective 30 days following such notice [unless Customer sooner provides notice to CareAcademy of its desire to terminate this Agreement and all associated Order Forms in connection with such increase]. CareAcademy shall make the Service available to Customer and its Users upon receipt of payment. Unless otherwise stated in the Order Form, payment receipt date will mark the first day and start date of this Agreement.
3.4 Overdue Payments
Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at CareAcademy’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.5 Suspension of Service
If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, CareAcademy reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
Unless otherwise stated, CareAcademy’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on CareAcademy’s net income or property. If CareAcademy has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides CareAcademy with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. PROPRIETARY RIGHTS
4.1 Reservation of Rights
Subject to the limited rights expressly granted hereunder, CareAcademy and its licensors reserve all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Customer shall not (i) modify, copy or create derivative works based on the Service; (ii) reverse engineer the Service or any intellectual property related to the Service; or (iii) access the Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Service.
4.3 Suggestions and Feedback
CareAcademy shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service.
5.1 Definition of Confidential Information
As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
5.4 Compelled Disclosure
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
6. WARRANTIES & DISCLAIMERS
Each party represents and warrants that it has the legal power to enter into this Agreement. CareAcademy represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the functionality of the Service will not be materially decreased during a subscription term; (iii) the Service will not contain or transmit to Customer any malicious or harmful code; (iv) it owns or otherwise has sufficient rights in the Service to grant to Customer the rights to use the Service granted herein; and (v) the Service does not infringe any intellectual property rights of any third party.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, CAREACADEMY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7. MUTUAL INDEMNIFICATION
7.1 Indemnification by CareAcademy
Subject to this Agreement, CareAcademy shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer (a) promptly gives written notice of the Claim to CareAcademy; (b) gives CareAcademy sole control of the defense and settlement of the Claim (provided that CareAcademy may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to CareAcademy, at CareAcademy’s cost, all reasonable assistance.
7.2 Indemnification by Customer
Subject to this Agreement, Customer shall defend, indemnify and hold CareAcademy harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against CareAcademy by a third party alleging that Customer’s or an affiliated User’s use of the Service in violation of this Agreement or guidance by CareAcademy as to the use of the Services, infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that CareAcademy (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases CareAcademy of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
8. LIMITATION OF LIABILITY
8.1 Limitation of Liability
EXCLUDING EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
8.2 Exclusion of Consequential and Related Damages
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. TERM AND TERMINATION
9.1 Term of Agreement
This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
9.2 Term of User Subscriptions
User subscriptions commence on the start date specified in the relevant Order Form and continue for the subscription term specified therein. User subscriptions shall automatically renew for an additional period equal to the shorter of (a) 12 months or (b) the subscription term set forth in the Order Form, in either case at the list price in effect at the time of renewal, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant subscription term.
9.3 Termination for Cause
A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, CareAcademy shall refund Customer any prepaid fees covering the remainder of the subscription term after the date of termination.
9.4 Outstanding Fees
Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to CareAcademy prior to the effective date of termination.
9.5 Surviving Provisions
The following provisions shall survive any termination or expiration of this Agreement: Sections 3 through 10.
10. GENERAL PROVISIONS
10.1 Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Customer grants permission to CareAcademy to contact Customer’s employees at any time for any reason.
10.2 No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery to the address provided on the Order Form; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to CareAcademy shall be addressed to the attention of its President. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
Customer grants CareAcademy the right to use Customer’s name, logo, branding, and trademarks in marketing materials of CareAcademy’s choice.
10.5 Waiver and Cumulative Remedies
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.8 Governing Law
This Agreement shall be governed exclusively by the internal laws of the Commonwealth of Massachusetts without regard to its conflicts of laws rules.
10.9 Venue; Waiver of Jury Trial
The state and federal courts located in Suffolk County, Massachusetts shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
10.10 Entire Agreement
This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
During the first thirty (30) days following the execution of this Agreement, Customer will have the right, in its sole discretion, to terminate this Agreement. Following such 30 day period, any refund will be at the sole discretion of CareAcademy.
Version: June 16, 2020