TERMS OF USE AGREEMENT

This Terms of Use Agreement  (“Agreement“) is agreed to between Customer and SpecialtyCare, Inc. (“SpecialtyCare”), a Delaware corporation.

PLEASE READ THIS AGREEMENT AND INDICATE YOUR ACCEPTANCE BY CLICKING THE [“I ACCEPT/AGREE” BUTTON OR “I ACCEPT/AGREE” HYPERTEXT LINK] AT THE BOTTOM OF THIS WEB PAGE. ACCEPTANCE OF THIS AGREEMENT MEANS THAT YOU ARE BOUND BY THE TERMS OF THIS AGREEMENT. YOU MAY NOT ACCESS THE ECMO ONLINE TRAINING UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT.

For good and valuable consideration, the receipt and sufficiency of which is acknowledged, SpecialtyCare and Customer agree as follows:

“Training Materials” means the ECMO Online Training created and compiled by SpecialtyCare.

“Platform” means the Core Product hosting solution provided by Rali Solutions LLC (“Rali”), including all maintenance and technical support for such hosting solution, that hosts the Training Materials.

“Users” means Customer and/or Customer’s employees or contractors who are authorized by Customer to use the Core Product(s) and have been supplied user identifications and passwords by either Rali or Specialtycare.

2. Core Product and Services.

2.1             License Grant. Pursuant to this Agreement, SpecialtyCare grants Customer a worldwide, non-exclusive, non-transferable, non-sub-licensable limited use license to access and use the Training Materials solely for Customer’s own training purposes for it and its employees and contractors, in exchange for payment of the fees described in Section 4.

2.2             Services.  SpecialtyCare shall have no responsibility to provide maintenance or support to Customer in connection with the Platform.  Customer shall seek any and all Platform technical support from Rali.

3. Use of Core Product.
   • SpecialtyCare Responsibilities. Subject to the terms and covenants of this Agreement SpecialtyCare covenants that it is authorized and agrees to make available the Training Materials on the Platform for access by Customer.
   • Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s user accounts.  Customer shall:  (a) provide a proper physical environment and utilities on which the Platform shall operate, including an uninterrupted power supply; (b) procure all communications and network services  required to utilize the Platform in an environment consistent with this Agreement; (c) have sole responsibility for the entry and loading of Customer data; (d) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Core Product, and directly notify SpecialtyCare promptly of any unauthorized use; and (e) use reasonable efforts to comply with all applicable local, state and federal laws.
   • Use Guidelines. Customer shall use the Training Materials solely  as provided in this Agreement, and shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit, provide, or otherwise make available the Training Materials or any related materials in any form to any third party, without the prior written consent of SpecialtyCare; (b) decompile, disassemble or reverse engineer the Training Materials; (c) modify, copy, reproduce or duplicate, create derivative works, or allow a third party to do the same, in whole or in part, of the Training Materials without prior written consent from SpecialtyCare; (d) use, disclose, or divulge to others any data or information not belonging to Customer relating to the Training Materials, including but not limited to the processes, know-how or techniques embodied therein.
4. Fees & Payment.
   • Customer shall pay to SpecialtyCare all applicable implementation and license fees based on the number of license subscriptions (“Subscriptions”) purchased, not the extent of actual usage. Customer shall pay SpecialtyCare the compensation for the Subscriptions prior to such Subscriptions being provided to Customer.
   • Customer shall pay all applicable sales tax and any other taxes related to or arising from the license purchased hereunder.  If Customer is operating as a tax-exempt entity, it shall provide to SpecialtyCare a copy of its current Tax Exemption Certificate prior to the execution of the Agreement and promptly upon any future renewal of its Tax Exemption Certificate after the Effective Date.  For Services provided before Customer provides its current Tax Exempt Certificate, Customer agrees to pay all amounts invoiced for taxes related to such Services and waives any right or claim for reimbursement of or credit for those amounts.
5. Proprietary Rights.
   • Reservation of Rights. SpecialtyCare has sole and exclusive ownership of all rights, title, and interest in and to the Training Materials and all related material and information, subject only to the limited internal business use license expressly granted to Customer herein.  This Agreement does not provide Customer with title or ownership of the Training Materials or related materials, but only a license for limited, internal use as provided in this Agreement. This Agreement does not provide Customer with any title, interest, or ownership in or any right to use the name, trademark or logo of SpecialtyCare or any goodwill now or hereafter associated therewith, all of which title, interest, and ownership and goodwill is the property of and shall inure exclusively to the benefit of SpecialtyCare.  Customer may not use the name, trademark, or logo of SpecialtyCare or any part of the Training Materials or related materials in any marketing or other materials that will be distributed, exchanged, or disseminated in any manner without obtaining the prior written consent of SpecialtyCare (and if necessary, such third party suppliers). Other than as expressly set forth in this Agreement, no license, sub-license, or other rights in or to the Training Materials or related materials are granted to Customer, and all licenses and rights are expressly reserved.
   • Customer shall not (a) modify, export, copy or create derivative works based on the Training Materials; (b) create Internet “links” to or from the Training Materials, or “frame” or “mirror” any content forming part of the Training Materials; or (c) copy, disassemble, reverse engineer, or decompile the Training Materials in order to build a similar or competitive product or service or copy any ideas, features, functions or graphics of the Training Materials.   Customer is obligated at all times to comply with any applicable Privacy Policy and website terms of use, which may be updated from time to time. It shall be Customer’s responsibility to ensure compliance therewith, including making itself aware of any changes that may be posted.
   • Customer Data. Customer consents to SpecialtyCare and Rali using for any of internal business purpose any Customer information, including any personally identifiable information, input into the Platform by Customer.  Customer consents to and agrees that all data obtained from Customer through the use of the Platform and the Training Materials (collectively, the “Customer Data”) is owned exclusively by Customer. SpecialtyCare or Rali will provide the latest copy of the Customer’s data in a then available format as requested by Customer in a mutually agreeable timeframe free of charge,  Customer grants SpecialtyCare and Rali an unrestricted, royalty-free, irrevocable license to maintain and distribute aggregated compilations of Customer Data (“Aggregated Data”) and to use such Aggregated Data in connection with the Platform and for future studies and reports; provided, however, that the Aggregated Data will not reveal any personal information or the identity of Customer.
   • Suggestions. SpecialtyCare or Rali shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Platform or the Training Materials any suggestions, ideas, enhancement requests or feedback or provided by Customer or Users relating to the Service(s).
6. The parties hereto shall hold in confidence the information contained in this Agreement during the term of this Agreement, and for a period of two (2) years after termination, and each of them hereby acknowledges and agrees that all information related to this Agreement, not otherwise known to the public, is confidential and proprietary and is not to be disclosed to third persons without the prior written consent of each of the parties except (i) to the extent necessary to comply with any law, rule or regulation, or the valid order of any governmental agency or any court of competent jurisdiction; (ii) to its auditors and its attorneys as part of its normal reporting or review procedure; (iii) to its insurance agent to the extent necessary to obtain appropriate insurance; (iv) or as necessary to enforce its rights and perform its agreements and obligations under this Agreement.
7. Representations, Warranties, and Disclaimers.
   • Warranties of Customer. For any Customer that is an entity, Customer warrants that: (i) its execution of this Agreement will not violate the terms of any pre-existing agreement(s) between Customer and a third party; (ii) it has full power and authority and is duly authorized to execute and perform the financial and non-financial obligations under this Agreement, (iii) it has taken all necessary corporate action(s) in order to authorize and ratify Customer’s execution and delivery of this Agreement and its performance under this Agreement; (iv) it is in compliance, and agrees that it will remain in compliance during the term of the Agreement all applicable laws.
   • Warranties of SpecialtyCare. SpecialtyCare represents and warrants that (i) SpecialtyCare possesses sufficient rights and interests in the Training Materials necessary to enter into this Agreement and to grant the license herein; (ii) SpecialtyCare has full authority to execute and perform this Agreement; (iii) SpecialtyCare’s execution and performance of this Agreement will not materially violate any material law or materially breach any material agreement known by and governing SpecialtyCare.  SpecialtyCare does not represent or warrant that the Training Materials will meet Customer’s requirements or that the operation of the training Materials will be uninterrupted or error-free.  Customer acknowledges and agrees that SpecialtyCare makes no representations or warranties with respect to the Training Materials, other than as set forth above.
   • No Representations, Warranties or Guarantees. The parties acknowledge that SpecialtyCare personnel are not certified as trainers nor do they hold themselves out to be certified trainers. Customer further acknowledges that SpecialtyCare is not and shall not be liable to Customer if any SpecialtyCare responses, recommendations, or actions are inappropriate because of inaccurate and/or incomplete information provided by Customer or for any other reason for which SpecialtyCare has no responsibility or fault. Customer is and shall remain solely responsible for evaluating and monitoring the competency and performance of itself, and its staff, including those who receive any training, and any decision regarding the competency of any Customer or its staff to provide ECMO services, or any other services, will be made solely by Customer
   • Disclaimers by SpecialtyCare. SpecialtyCare disclaims all express and implied warranties, including without limitation, fitness for a particular use, merchantability, title, with respect to the Training Materials. SpecialtyCare provides no warranty on any third party software or hardware not manufactured by SpecialtyCare. Except as set forth in this Agreement with regard to accessing the Training Materials, SpecialtyCare will not be responsible for the Training Materials it licenses to Customer nor any related Services provided by Rali to Customer.

8. Indemnification.

8.1             Indemnification by SpecialtyCare.    SpecialtyCare shall indemnify, defend, and hold Customer harmless from and against any and all losses, claims, suits, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees) asserted, demanded or filed by a third party against Customer arising out of or resulting from SpecialtyCare’s breach of any representation, warranty, or covenant made by SpecialtyCare in this Agreement. Upon notice, SpecialtyCare shall resist and defend, at its own expense, any such claim or action.  Customer acknowledges and agrees that (a) SpecialtyCare will not indemnify, defend, or otherwise hold Customer harmless from or against any losses, claims, suits, damages, liabilities or expenses arising out of Customer’s use of the Core Product, or breach of the terms and conditions and (b) that Customer shall look to Rali for indemnification of such claims. Said indemnity is in addition to any other rights Customer may have against SpecialtyCare.  This Section shall survive the expiration or termination of this Agreement.

8.2             Indemnification by Customer.  Customer shall indemnify, defend, and hold SpecialtyCare harmless from and against any and all losses, claims, suits, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees) asserted, demanded or filed by a third party against SpecialtyCare of any nature or kind whatsoever arising out of or resulting directly or indirectly from: (a) Customer’s breach of this Agreement, including, without limitation, breach of any representation, warranty, or covenant made by Customer in this Agreement; and (b) any alleged negligent or intentional acts or omissions of Customer, its agents or employees, based upon, arising out of or attributable to the performance or non-performance of its obligations under this Agreement.  Upon notice, the Customer shall resist and defend, at its own expense, any such claim or action.  Said indemnity is in addition to any other rights SpecialtyCare may have against Customer.  This Section shall survive the expiration or termination of this Agreement.

9. Limitation of Liability. The parties acknowledge and agree that in no event shall SpecialtyCare’s liability to Customer exceed the fees paid by Customer to SpecialtyCare for the license granted herein. Notwithstanding any other provision in the Agreement, in no event shall SpecialtyCare be liable for any special, indirect, incidental, punitive or consequential damages, including but not limited to, loss of use, lost profits or revenue, or cost of substitutes. 
10. Term.

10.1          Term of Agreement.  This Agreement commences on the Effective Date and shall continue for as long as Customer and any Customer User has an active account, unless earlier terminated.

10.2           Termination.  This Agreement may be terminated by written agreement of all parties thereto, or in the event of the following:

                  (a)  Default.  If either party materially defaults in the performance of its obligations hereunder and fails to cure such default, or implement a plan to cure such default that is reasonably acceptable to the non-defaulting party, within twenty (20) days immediately following receipt of written notice from the non-defaulting party specifying the default in reasonable detail;

(b) Immediate Termination.  Upon delivery of written notice by either party in the event of the occurrence of any of the following events:   (i) the cessation by either party of the operations requiring the Training Materials or the Platform;  (ii)  either party’s loss of permits or other authorizations required for license to or use of the Training Materials or the Platform; (iii)  either party’s failure to conduct its business in the ordinary course; or (iv) either party enters into or files (or has filed or commenced against it, unless dismissed within sixty (60) days) a petition, arrangement, application, action or other proceeding seeking relief or protection under the bankruptcy or similar laws of the United States dissolves, or transfers all or substantially all of its assets to another person or entity in an effort to avoid its obligations to creditors.

11. Miscellaneous.

11.1           Independent Contractor Relationship.  SpecialtyCare is an independent contractor to Customer. This Agreement does not create any agency, employment, or joint venture relationship between the parties, nor shall this Agreement create a right of either party to control the method and/or manner of work by the other party; or, obligate the other party.  Each party is liable for its own debts, obligations, acts and omissions, including the payment of all required withholding, Social Security and other taxes or benefits on behalf of its employees, agents and contractors.

11.2           No Third-Party Beneficiaries; Counterparts; Electronic Signatures. This Agreement is entered into for the sole benefit of the parties hereto and shall not be construed as conferring any third party beneficiary status on any person or entity not a party to this Agreement.  Signatures, including “click” agreements, transmitted by facsimile, email or other electronic means shall be acceptable as originals. This Agreement may be executed in more than one counterpart.

11.3           Assignment.  This Agreement may not be assigned by either party without the written consent of the other party.

11.4           Force Majeure.  Neither party shall incur any liability hereunder if the performance of its obligations is prevented by acts of God, a public enemy, earthquakes, hurricanes, fires, floods, epidemics, civil insurrections, curtailment of, or failure to obtain, sufficient electrical power, strikes, or lockouts.

11.5           Entire Agreement; Waivers; Severability; Headings. This Agreement (including exhibits), constitute the entire Agreement between the parties with respect to the subject matter hereof, supersedes all prior representations, agreements, negotiations and understandings, and may not be amended except in writing signed by both parties. The Agreement is the product of negotiation and is not to be construed as having been drafted by either party.    Any act by either party that may amount to a waiver of the conditions of this Agreement must be in writing signed by the waiving party and shall in no way constitute a future-continuing waiver of such conduct.  If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction or other governmental body to be invalid, void, or unenforceable, either in whole or in part, the provision(s) shall be deemed amended to delete or modify, as necessary, the offending provision(s) and to alter the remaining provision(s) to render the same enforceable to the fullest extent permissible, and the remainder of the provision(s) of the Agreement shall remain in full force and effect.  All captions and headings are solely for convenience of reference and are not intended to define or limit the scope of any provisions of this Agreement.

11.6           Choice of Law. The rights, duties, obligations and claims arising from or associated with the Agreement shall be construed and enforced in accordance with the laws of the State of Tennessee without regard to any conflicts of law principles.

11.7           Survival.  Sections 3.3, 5, 6, 7, 8, 9, and 11 shall survive the termination, expiration, or cancellation of this Agreement, for all purposes.  

11.8           Knowing Consent and Authority to Consent. The parties knowingly and expressly consent to the foregoing terms and conditions. Each party is authorized to enter into this Agreement on behalf of its respective party.