AUDACIA FOUNDATION STANDARD TERMS
Last Updated: _______, 2019
These standard terms and conditions (the “Standard Terms”) supplement the Enrollment Form entered into between The Audacia Foundation, Inc. (“Audacia”) and Agency (such Enrollment Form, together with these Standard Terms, the “Agreement”) and govern access to and use of the LMS and Training Programs. Audacia may update or revise these Standard Terms from time to time and may notify Agency of such changes by any reasonable means, including by posting the revised version to this URL. Agency can determine when Audacia last updated these Standard Terms by referring to the “Last Updated” legend above. Accessing or using any Audacia Materials (defined below) following changes to these Standard Terms will constitute Agency’s acceptance of those changes.
- AUTHORIZATION. Subject to and conditioned on Agency’s compliance with the terms and conditions of this Agreement and Agency’s Provider Agreement, Audacia grants Agency a limited, non-exclusive, non-transferable, revocable right during the Term to permit Trainees to access each Training Program through the LMS, solely for such Trainees’ personal, non- commercial use and subject to any supplemental terms identified by Audacia (e.g., in Audacia’s offer of such Training Program to Agency).
- LIMITATIONS. Agency will not, and will not authorize or permit any Trainee to: (a) rent, lease, sublicense, subcontract, transfer, sell, or grant rights in or access to any Audacia Materials; (b) modify, copy, distribute, transmit, display, perform, or publish any Audacia Materials; (c) download, store, reproduce, or create derivative works from any Audacia Materials, except downloads that are expressly authorized by Audacia through the LMS; or (d) disclose the Audacia Materials to any third party, or use or authorize or permit the use of any Audacia Materials for its own or third-party training purposes (e.g., by designating as a Trainee an individual or entity that is not an employee or contactor of Agency). Agency will immediately notify Audacia of any misuse of Audacia Materials. Audacia reserves the right to: (i) approve or reject any Trainee for access to any Audacia Materials; (ii) revoke or cancel any offer (including accepted offers) for access to Training Programs or other Audacia Materials; (iii) receive reports from Provider regarding Agency’s and its Trainees’ access to and use of Audacia Materials; (iv) suspend or terminate Agency’s or any Trainee’s access to any Audacia Materials; and (v) modify, restrict access to, or remove any Audacia Materials; in each case, temporarily or permanently, at any time in Audacia’s discretion.
- COMPLIANCE. Agency will, and will ensure that the Trainees, comply with (a) Agency’s Provider Agreement and (b) any rules (e.g., standards of conduct) regarding use of the LMS or any Audacia Materials that are made available to Agency or Trainees from time to time. Audacia or Provider may provide additional information for Trainees, such as instructions on accessing the LMS and usage guidelines, which Agency will promptly provide to Trainees as directed.
- INTELLECTUAL PROPERTY. The Training Programs, any information and materials made available by or on behalf of Audacia through the Training Programs or the LMS, and the information contained in the Training Programs (the foregoing, collectively, “Audacia Materials”), are the property of Audacia and its licensors, and Audacia’s confidential information. Audacia retains all ownership and other rights, including all intellectual property rights, in the Audacia Materials. Except as expressly set forth in Section 1 above, nothing in this Agreement confers by implication, estoppel, or otherwise any right or license to any Audacia Materials or the LMS. “The Audacia Foundation, Inc.” and the Audacia logo are trademarks of Audacia and may not be used by Agency or Trainees without Audacia’s prior written consent.
- FEEDBACK. Agency grants Audacia the worldwide, non-exclusive, perpetual right and license to use any comments or feedback made available by Agency or Trainees in connection with any Audacia Materials or this Agreement, for Audacia’s business purposes, including to improve the Training Programs and Audacia’s other programs and materials.
- TERM. The term of this Agreement will begin on the Effective Date and continue until terminated in accordance with its terms (the “Term”). Audacia may terminate this Agreement with or without cause on notice to Agency, and Agency may terminate this Agreement with or without cause on seven (7) days’ notice to Audacia. Additionally, Agency will notify Audacia of any expiration or termination of Agency’s Provider Agreement, and this Agreement will automatically terminate upon any such expiration or termination, regardless of such notice. Either party may terminate this Agreement if the other party materially breaches and the breach remains uncured for thirty (30) days after notice of termination. Following expiration or termination of this Agreement, Agency will, and will cause all Trainees to, promptly cease accessing the Audacia Materials. Neither party will be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other rights or remedies under this Agreement or applicable law.
- REPRESENTATIONS; RESPONSIBILITY. Agency represents, warrants, and covenants that: (a) it has the full power and authority to enter into this Agreement and perform its obligations hereunder, without the need for any consents, approvals, or immunities not yet obtained; (b) its execution of and performance under this Agreement will not breach any agreement between Agency and any third party, including Agency’s Provider Agreement; (c) it has the right to provide, and has authorized and will authorize Provider to provide, Trainee Information to Audacia and its designees; (d) each Trainee who is accessing any Training Program is a then-current employee or contractor of Agency in good standing; and (e) it has separately entered into a written Provider Agreement with Provider, and such Provider Agreement is in force and effect. Agency will be responsible for the acts and omissions of Trainees in connection with this Agreement, and any Trainee act or omission that would be a breach of this Agreement if undertaken by Agency will be deemed to be a breach by Agency.
- DISCLAIMERS. Agency acknowledges that the Audacia Materials are made available by Audacia for informational and educational purposes only; do not replace instructions or guidance (including care plans and home care agency policies and procedures) that otherwise may have been provided by or to Agency, or to Trainees; and neither constitute nor are intended as a substitute for professional medical or health care advice, diagnosis, or treatment. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AUDACIA DISCLAIMS ANY LIABILITY FOR ANY LOSS OR DAMAGE ARISING FROM USE OF THE AUDACIA MATERIALS, WHICH ARE PROVIDED “AS IS” AND WITHOUT WARRANTY. EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, AND TITLE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. WITHOUT LIMITATION, AUDACIA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE LMS OR AUDACIA MATERIALS, THEIR APPLICABILITY, FITNESS, SAFETY, EFFECTIVENESS, ACCURACY, OR COMPLETENESS, OR ANY ADVICE, SITES, OR RESOURCES DESCRIBED IN OR AVAILABLE THROUGH THE LMS OR AUDACIA MATERIALS, AND DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC PROCEDURES, OPINIONS, TESTS, PHYSICIANS, PRODUCTS, OR OTHER INFORMATION DESCRIBED IN THE LMS OR ANY AUDACIA MATERIALS.
- PROTECTIONS. Agency will indemnify, defend, and hold harmless: (a) Audacia, its affiliates, and its service providers, including Provider, against all losses, costs, and damages (including reasonable attorney’s fees) (“Losses”) arising from or related to: (i) Agency’s breach of this Agreement; or (ii) any Trainee’s access to, use of, or inability to access or use the Audacia Materials or LMS; and (b) Audacia and its affiliates against all Losses arising from or related to Agency’s Provider Agreement (including breach thereof) or any dispute between Agency and Provider. EXCEPT WITH RESPECT TO THE PRECEDING SENTENCE, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL (INCLUDING LOST PROFITS OR LOSS OF DATA), PUNITIVE, OR INCIDENTAL DAMAGES HEREUNDER, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. AUDACIA’S AGGREGATE LIABILITY TO AGENCY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (UNDER CONTRACT, TORT, STATUTE, OR ANY OTHER THEORY), WILL NOT EXCEED $500. Agency acknowledges that the limitations of liability contained in this Section 9 are a fundamental part of the basis of Audacia’s bargain hereunder, and Audacia would not enter into this Agreement absent such limitations.
- NOTICES. All notices, approvals, and other communications required or permitted under this Agreement must be made in writing to the recipient’s address set forth on the Enrollment Form, or via email to email@example.com (if to Audacia) or to Agency’s notice email address set forth on the Enrollment Form, and will be deemed given on the date received. Either party may change its notice address or email address by notifying the other party in accordance with this Section.
- GOVERNINGLAW. This Agreement and all questions arising hereunder will be governed by and construed in accordance with the laws and decisions of the State of New York, U.S.A. without giving effect to its conflicts-of-law principles. The parties: (a) irrevocably agree that the federal courts of the Southern District of New York and the New York State courts sitting in New York County have sole and exclusive jurisdiction over any suit or proceeding arising out of this Agreement; (b) submit to the venue and jurisdiction of such courts; and (c) irrevocably consent to personal jurisdiction by such courts.
- MISCELLANEOUS. This Agreement, including the Enrollment Form and these Standard Terms, constitutes the parties’ entire understanding concerning its subject matter and supersedes all prior and contemporaneous understandings and agreements between the parties regarding such subject matter. In the event of an otherwise irreconcilable conflict between the Enrollment Form and these Standard Terms, these Standard Terms will govern. Except as otherwise expressly provided herein, this Agreement may only be modified by a writing signed by both parties. Agency may not assign this Agreement, including by operation of law, without Audacia’s prior written consent, and Audacia may assign this Agreement without Agency’s consent. If any provision hereof is void or unenforceable, all other provisions will continue in full force and effect. Each party is an independent contractor and not an employee or agent of the other party, and this Agreement does not and is not intended to create any employment, joint venture, or similar relationship between the parties. No remedy in this Agreement is intended to be exclusive, and each remedy is cumulative to all other available remedies. As used in this Agreement, “including” means “including but not limited to,” and any headings are for convenience only. Sections 2 through 11 of these Standard Terms, this Section 12, and the Enrollment Form will survive any expiration or termination hereof.