Applied Concepts Platform Terms and Conditions
Applied Concepts makes available the technology, systems and interface (collectively, the “Platform”) through which you have accessed these Applied Concepts Platform Terms and Conditions (these “Terms”). By clicking “I accept” prior to entering the Platform, you agree to be bound by these Terms. In consideration of interacting with the Platform, and for other good and valuable consideration, you agree to the following:
- You Have the Right to Enter into these Terms. As an individual interacting with Platform in your individual capacity or on behalf of an entity, you represent and warrant that you have all right, power and authority to enter into these Terms on your own or such entity’s behalf and bind yourself or such entity, as applicable, to these Terms. If you are entering these Terms on behalf of an entity, all references in these Terms to “you” and “your” will mean such entity.
- Your Use of the Platform. You represent and warrant that you have all rights and licenses necessary to interact with Applied Concepts through Platform. You may interact with the Platform solely as permitted by these Terms, and solely to register for and/or receive Applied Concepts training products and services for which you or your employer has paid or with respect to which we have offered to you on a trial basis. Without limiting the generality of the foregoing, and for the avoidance of doubt, you shall not, and shall not permit others to: (a) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or in violation of third-party privacy rights or applicable laws, or to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (b) interfere with or disrupt the integrity or performance of the Platform; (c) copy, modify or create derivative works or improvements of the Platform or any part, feature, function or user interface thereof or content thereon; (d) frame or mirror the Platform in whole or in part ; (e) access or use the Platform (in whole or in part) for purposes of (x) benchmarking or competitive analysis of the Platform, (y) building a competitive product or service, or (z) any other purpose that is to Applied Concepts’ detriment or commercial disadvantage; (f) reverse engineer, disassemble, decompile, decode or adapt the Platform or any part, feature, function thereof or content thereon; (f) bypass or breach any security device or protection used for or contained in the Platform; (g) use the Platform (in whole or in part) in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Platform could lead to personal injury or severe physical or property damage; (h) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform, or any content included thereon (in whole or in part), including any copy thereof; or (i) permit direct or indirect access to or use of the Platform (including any content thereon) in a way that circumvents a contractual usage limit.
- Rights and Licenses. Applied Concepts reserves any and all right, title and interest in and to the Platform and its services, as well as in and to any inventions, innovations or ideas developed in connection with or related to the Platform and its services. You grant to Applied Concepts a worldwide, royalty-free, limited license to use any and all data, files or other materials submitted by you via the Platform for the purpose of fulfilling Applied Concepts’ obligations pursuant to these Terms and the Existing Services Agreement (if applicable). You acknowledge and agree that: (a) we may share any such data, files or other materials with your employer who has procured the Applied Concept training services for you; and (b) except as prohibited by applicable law, Applied Concepts has the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform and related systems and technologies (including, without limitation, information concerning your data and data derived therefrom), and Applied Concepts will be free (during and after the term of your use of the Platform) to: (i) use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform or other Applied Concepts technology or offerings; and (ii) use and disclose such information and data solely in aggregate or other de- identified form in connection with its business without disclosing your identity, or the identity of any of your patients or other individuals.
- You will maintain Applied Concepts’ Confidential Information and any third party Confidential Information accessed via the Platform in strict confidence and take all steps necessary or appropriate to protect the confidentiality of Confidential Information and to assure compliance with these Terms by your officers, directors, employees, contractors, agents and representatives. You will also not modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information. For purposes of these Terms, the term “Confidential Information” means any and all confidential or proprietary information of Applied Concepts (or a third party, as applicable), or its or their respective affiliates and subsidiaries, whether oral or written, including, without limitation, software, software documentation, code, technology, documents, reports, analyses, data, studies, drawings, samples, suppliers, customers, pricing, pricing techniques, copyright, trademark and patent applications, marketing and sales techniques and plans, projections, methods, procedures, hardware and system designs, architectures and protocols, trade secrets, know-how, and observations, and other disclosures pertaining to, based on, or containing, directly or indirectly, in whole or in part, any of Applied Concepts’ (or a third party’s, as applicable), or its or their respective affiliates’ or subsidiaries’ confidential or proprietary information. On Applied Concepts’ request, you will either return to Applied Concepts or certify destruction of, any and all copies of the Confidential Information in your possession.
- Access Credentials. You may be issued a user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify your identity and authorization to access and use the Platform (“Access Credentials”). All users must use strong Access Credentials (i.e., in the case of a password, one that is long, uses a mix of letters (upper and lower case), numbers and symbols, has no ties to your personal information, and no dictionary words) even if the Applied Concepts system permits simple Access Credentials. Your Access Credentials are personal to you and you must not share them with, and/or authorize or permit access or use thereof by, any other person. You will ensure that you exit from your account at the end of each session. You have and will retain sole responsibility for: (a) the security and use of your Access Credentials; and (b) all access to and use of the Platform directly or indirectly by or through your systems or your Access Credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. You will notify us immediately of any unauthorized access to or use of your Access Credentials or any other breach of security. We have the right to disable any Access Credentials, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated these Terms.
- Technical Support. Applied Concepts will use commercially reasonable efforts to provide you with technical support for the Platform consistent with its customer support policies in effect from time to time, or, if applicable, as set forth in the Existing Agreement. Applied Concepts will have no obligation to provide technical support for Platform issues caused by: scheduled or planned maintenance; factors outside of Applied Concepts’ reasonable control; use of the Platform is in violation of these Terms (and/or the Existing Agreement); force majeure events, including without limitation, acts of war, acts of God, natural disaster, pandemic, health crisis, government act, utility outages, denial of service attacks, failure of communication lines and/or the Internet, and the occurrence of vulnerabilities or exploits which could not have been avoided with commercially reasonable care; your network, technology, hardware and other systems; any third-party equipment, software, or technology; combination, operation, or use of the Platform in or with any technology (including any software, hardware, firmware, system, or network) or service not provided by Applied Concepts; your or any third party’s negligence, abuse, misapplication, misuse, or manipulation of or damage to the Platform or any of your materials in any respect; or use of older versions of web browsers or operating systems or platforms into which the Platform will be integrated.
- Maintenance Releases, New Features and Third-Party Services.
- From time to time, Applied Concepts may make or issue updates, upgrades, releases, new versions or other adaptations or modifications of the Platform, in whole or in part (collectively, “Maintenance Releases”), or make one or more new modules or functionalities of the Platform (“New Features”) available. Maintenance Releases and/or any New Features made available to you will constitute a part of the Platform subject to these Terms. For the avoidance of doubt, Applied Concepts reserves the right to offer any New Features subject to its then current, commercial pricing for the same. If any Maintenance Release or New Feature requires for its proper and effective use the modification of certain Platform settings, your data or any other accommodation, affirmative action or update on your part (any such modification, accommodation or affirmative action on your part, “Accommodations”), then Applied Concepts will notate such Accommodations in the relevant release note for such Maintenance Release or New Feature, if and as applicable. You acknowledge and agree that certain Maintenance Releases and/or New Features may require professional services for purposes of installation, configuration and/or implementation.
- You acknowledge and agree that: (i) one or more of the functionalities or services available on or via the Platform are (or will be) made available by third parties (“Third-Party Service Providers” and such functionalities or services, “Third-Party Services”); (ii) the Platform relies on API integration for certain features and functions, but that API integration has its own inherent level of unpredictability and inconsistency that is out of the control of Applied Concepts, and that as such Applied Concepts will have no liability for downtime caused by API integration failures; (iii) Third-Party Service Providers may impose restrictions on use of the particular Third-Party Service, in addition to other terms and conditions, including without limitation, those set forth in any applicable terms and conditions agreed to by or otherwise made available to you (collectively, “Third-Party Requirements”); and (iv) you are solely responsible for compliance with, and will ensure that all users accessing the Platform through your account comply with, all Third-Party Requirements.
- Suspension of Your Access to the Platform. Applied Concepts may, directly or indirectly and by any lawful means (including any disabling device), suspend or otherwise deny your or any of your users’ access to or use of all or any part of the Platform without incurring any resulting obligation or liability, if: (i) you fail to pay Applied Concepts any amount when due, and such failure continues for five (5) days or more after the relevant due date; (ii) Applied Concepts believes, in its sole and absolute discretion, that you or any of your users: (x) has failed to comply with any term of these Terms (and/or the Existing Agreement); (y) has accessed or used the Platform beyond the scope of the authorization granted or for a purpose not authorized or intended under these Terms (and/or the Existing Agreement) or in any manner that does not comply with any instruction or requirement of Applied Concepts; or (z) is, has been, or is likely to be involved in any fraudulent, misleading, unlawful or unethical activities, or in any activity that could reflect poorly on Applied Concepts or negatively impair its goodwill (in each case, in Applied Concepts’ sole and absolute discretion); (iii) your or your employer’s subscription to the Platform is terminated or expires; or (iv) Applied Concepts receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Applied Concepts to do so. This paragraph does not limit any of Applied Concepts’ other rights or remedies whatsoever, including any rights or remedies at law, in equity or under these Terms and/or the Existing Agreement.
- Indemnification. You, at your own expense shall indemnify, defend and hold harmless Applied Concepts (and its officers, directors, employees, agents, representatives, shareholders, attorneys and affiliates) against any and all claims, losses, damages, judgments, liabilities costs, and expenses (including attorneys’ fees) arising from or relating to: (a) any of your data, files or materials, including any use, disclosure or storage of the same by or on behalf of Applied Concepts as set forth in these Terms and/or the Existing Agreement, if applicable; (b) Applied Concepts’ compliance with any specifications or directions provided by you or on your behalf; (c) your failure to comply with your obligations, covenants and representations set forth in these Terms (and/or the Existing Agreement, if applicable); or (d) your access or use of the Platform.
- Marketing. You agree that during that, during the term of your subscription, Applied Concepts may publicly refer to you, orally and in writing (including on its website), as its customer.
- Equitable Remedies. You acknowledge that Applied Concepts will be irreparably damaged (and damages at law would be an inadequate remedy) if Sections 2, 3, 4 or 5 of these Terms are not specifically enforced. Therefore, in the event of a breach or threatened breach by you of any of such Sections, Applied Concepts will be entitled, in addition to all other rights or remedies, to a temporary or permanent injunction and/or other equitable remedies against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security.
- Force Majeure. Applied Concepts shall be excused from performance of its obligations for any period and the time of performance shall be extended as reasonably necessary under the circumstances, to the extent that Applied Concepts is prevented from performing, in whole or in part, its obligations under these Terms, as a result of acts of God, any governmental authority, war, civil disturbance, court order, labor dispute, epidemic, pandemic, health crisis, or any other cause beyond its reasonable control, including hurricanes, inclement weather, and failures or fluctuations in electrical power, heat, light, telecommunication equipment or lines or any other equipment.
- WARRANTIES AND LIMITATION ON LIABILITY. the Platform and ANY ADDITIONAL Applied Concepts services are provided “as is.” Applied Concepts MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING the PLATFORM OR ITS SERVICES, AND SPECIFICALLY DISCLAIMS all WARRANTIES, whether express or implied, statutory or other, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, APPLIED CONCEPTS MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM OR ANY APPLIED CONCEPTS SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. IN NO EVENT WILL APPLIED CONCEPTS OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF APPLIED CONCEPTS AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU TO APPLIED CONCEPTS DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Governing Law, Jurisdiction and Venue. These Terms and all transactions contemplated by these Terms shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to the Agreement or to the rights or duties of the parties under the Agreement. Any dispute arising out of or relating to these Terms, or its subject matter (including the extent to which any dispute is subject to arbitration pursuant to this Section) will be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in Orange County, Florida, by a single arbitrator knowledgeable in the commercial aspects of “software as a service” arrangements and intellectual property. The parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrator will provide detailed written explanations to the parties to support their award and regardless of outcome, each party will pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction. With the exception of disclosures to affiliates and legal counsel, all negotiations and arbitration proceedings related to a dispute (including a settlement, award, or the documents and briefs exchanged or produced during arbitration) are confidential and may not be disclosed by the parties except to the extent necessary for interim measures or conservatory relief, the enforcement of an arbitration award, or as required by law.
- Miscellaneous. Applied Concepts may reject any files, data or other materials you submit to the Platform at any time, for any reason, in which case Applied Concepts will not be responsible for providing services related to such files, data or materials. The relationship of the parties pursuant to these Terms is that of independent contractors. You shall not assign your rights or obligations under these Terms without the prior written consent of Applied Concepts. The provisions of these Terms may not be amended, supplemented, waived or changed orally, but only by a writing signed by the party as to whom enforcement is sought and making specific reference to these Terms. The headings contained in these Terms are for convenience of reference only, are not to be considered a part of these Terms and shall not limit or otherwise affect in any way its meaning or interpretation. Except as specifically set forth in these Terms, these Terms represent the entire understanding and agreement between the parties with respect to their subject matter, and supersede all other negotiations, understandings and representations (if any) made by and between such parties. Except for an Existing Services Agreement, the terms and conditions of these Terms shall supersede the terms and conditions of any other purchase order, invoice, acknowledgement or any other such form or document submitted by you; such terms and conditions shall be null and void and of no force and effect. If any provision of these Terms shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of these Terms, which shall remain in full force and effect. Any phrase introduced by the terms “including”, “includes”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.