INSTITUTIONAL SUBSCRIBER AGREEMENT

AQUIFER SUITE OF VIRTUAL PATIENTS

WWW.AQUIFER.ORG

 

PLEASE READ THIS SUBSCRIBER AGREEMENT (THE “AGREEMENT”) CAREFULLY.   THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF SERVICES FROM AQUIFER, INC.

IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL, UNLESS OTHERWISE PROVIDED HEREIN.  BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING THIS AGREEMENT OR AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. THE PERSON EXECUTING THIS AGREEMENT ON BEHALF OF THE SUBSCRIBER REPRESENTS AND WARRANTS THAT HE/SHE IS A DULY AUTHORIZED REPRESENTATIVE OF THE SUBSCRIBER WITH FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE SUBSCRIBER, HAS READ AND HEREBY ACKNOWLEDGES ON BEHALF OF SUBSCRIBER THE INFORMATION PROVIDED HEREIN HAS FULL AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, AND THAT SUBSCRIBER HAS DULY AND PROPERLY AUTHORIZED EXECUTION OF THIS AGREEMENT BY HIM/HER AND AGREED TO BE BOUND BY SAID AGREEMENT  IF THE INDIVIDUAL EXECUTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES

 

In the case of any conflict or ambiguity between any provision in this document and any provision contained in any Invoice or Order Form, the provisions in an Invoice or Order Form shall take precedence over this document.

 

This Agreement is subject to revision. If We make any substantial changes, We will notify You in accordance with Section 12.1. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following dispatch of an email notice to You (if applicable) or Your next use of the Services. Such changes are effective immediately to new Users of Our Services. You are responsible for providing Us with Your most current e-mail address. In the event that the last e-mail address that You have provided Us is not valid, or for any reason is not capable of delivering to You the notice described above, Our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of Our Services following notice of such changes shall indicate Your acceptance of such changes and agreement to be bound by the terms and conditions of such changes.

 

This Agreement was last updated on January 29, 2018. It is effective between You and Us as of the earlier of: (a) the date You accept this Agreement or (b) the date You first access or otherwise use the Services.

 

You are responsible for maintaining complete and accurate billing and contact information for the Services.

Aquifer Address for Notifications, Payments and other Communications:

33 South Main Street

#4

Hanover, NH 03755

Email: subscriptions@aquifer.org

Telephone: (603) 727-7002

 

  1. DEFINITIONS

 

“Affiliate” means any third party entity providing a learning management system (“LMS”) that may be used to host additional related content that may be made available via the Aquifer Site and be considered part of the Aquifer Suite.

“Agreement” means this Master Subscription Agreement.

“Authorized Users” see User.

“Beta Services” means certain features, technologies, and services that are not generally available to customers, as updated from time to time.

“Documentation” means the online documentation and Service feature descriptions, as updated from time to time, located at https://aquifer.org or such other URL as We may provide from time to time.

“Educators” means the administrative roles with access and authority to add students, view learner performance, and associate learners with specific service content.  Identified roles for Educators are included in Schedule B.

“End User Account” means an individual User account the use of which is managed, monitored and/or secured by the Services.

“Generic Reports” means reports that may include Your Data in an anonymous, generic, de-identified format aggregated with other data not constituting Your Data solely and exclusively for analyzing customer needs, improving Our services, academic research or providing benchmark data of usage and configuration of Aquifer Applications to other customers.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Aquifer Suite” means the collection of services that include the subscription content identified in Schedule A as well as any Beta Services that may be made available.

“Order Form” means a quote or online request to receive specific Purchased Services.

“Privacy Policy” means Our Privacy Policy, as updated from time-to-time, located at: https://aquifer.org or such other URL as We may provide from time to time.

“Program Services Administrator” means the individual responsible for accepting this Agreement, accepting and approving invoices for payment, confirming course subscription, and identifying appropriate Educators to oversee student use of system and performance.

“Purchased Services” means Services that You purchase under an Invoice or Order Form, as distinguished from those provided pursuant to a free trial.

“Services” means the products and services that are ordered by You under a free trial or an Invoice or Order Form and made available online by Us as described in the Documentation, including all assessments, both formative and summative.

“Subscriber” means the entity executing this Agreement.

“Subscription Term” means the period of time during which Users are permitted to use the Services as provided in Section 4.4.

“Suspend” or “Suspension” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.

“User” means an individual who is authorized by You to use one or more of the Services, for whom You have ordered the Services, and to whom You (or We at Your request) have supplied a User identification and password. Users may include, for example, Your educators, administrators, teachers, students and agents.

“Virtual Patient Course Material” means the site content provided as a learning tool to model a patient encounter.

“We“ “Us” or “Our” means Aquifer, Inc., a non-profit corporation organized, existing and registered under the laws of the State of New Hampshire and recognized by the Internal Revenue Service as a 501 (c) (3) organization.

“You” or “Your” means Subscriber, and, where context indicates, Your users.

“Your Data” means electronic data and information submitted by or for You, collected and processed for You because of Your use of the Services.  Your Data includes “Your Reports.”

“Your Reports” means reports regarding and/or incorporating Your Data generated, transmitted or displayed via the Services, but excluding Generic Reports.

 

  1. FREE TRIAL

If You register on Our Website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration Web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

 

YOUR DATA ON OUR SYSTEMS INCLUDING YOUR REPORTS GENERATED DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST OR DELETED AT THE END OF THE FREE TRIAL PERIOD UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL.

 

NOTWITHSTANDING SECTION 15 (DISCLAIMER OF WARRANTIES), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

 

Please review the Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase

 

  1. OUR RESPONSIBILITIES

 

3.1 GENERAL PURPOSE OF AGREEMENT: ACCESS TO Aquifer.  Subject to the terms of this Agreement, We will provide access to the Purchased Services for You, as described below, during the Subscription Term and any free trial period.    The currently available programs are listed and described in Schedule A and are collectively referred to as the “Aquifer Suite.”  Those programs selected by You (“Purchased Services”) will be made available to Authorized Users via the World Wide Web upon registration by such Users.

 

3.2 AVAILABILITY OF AQUIFER SITE.  We will use diligent efforts to ensure that access to Purchased Services is available to You, as described herein, at least 20 hours per day, 7 days a week, and, if Our servers go down, to get them back and running within 4 hours.

 

Notwithstanding the foregoing, the Purchased Services may not be available due to: (i) planned downtime (of which We shall give at least 8 hours electronic notice,) and (ii) circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Aquifer application failure or delay, or denial of service attack.  We reserve the right to make changes to the Services at any time and from time to time, provided, however, that We will not materially decrease the functionality of the Purchased Services during a Subscription Term.  If We make a material change to the Services, We will notify You of such change in accordance with Section 12.1 (Manner of Giving Notice).

 

3.3 PROTECTION OF YOUR DATA. We will maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing unauthorized access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems or at Your request in connection with customer support matters, (b) as compelled by law in accordance with Section 10.4 (Compelled Disclosure) below, (c) as set forth in Our Privacy Policy, or (d) as You expressly permit in writing.

 

3.4 BETA SERVICES. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial at Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time at Our sole discretion and may never make them generally available. We WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE.

 

  1. AQUIFER USER TERMS AND CONDITIONS

 

4.1 PROGRAM SERVICE ADMINISTRATOR. You shall designate one individual as Your “Program Service Administrator” to act as Our point of contact with You. The Program Service Administrator shall be granted administrative access to the Aquifer Services to establish designated access for its institution to Purchased Services.

 

Aquifer will provide telephone (603-727-7002) and e-mail support (support@aquifer.org) as described below to the Subscriber’s Authorized Users. Aquifer support personnel will be available 9am to 5pm Eastern Daylight time, Monday through Friday except for Office Holidays as identified on the Website.

 

4.2 LICENSE GRANTED.  In consideration for the payment of Your subscription fee, and Your acceptance of the terms and conditions of this Agreement, Authorized Users may access and use the Purchased Services on the Aquifer Site as permitted in this Agreement during the Subscription Period. Subscriber acknowledges and agrees that, as part of the registration process, all Users shall be required to accept Aquifer’s Site User Terms and Conditions’ prior to becoming Authorized Users and being permitted access to the Purchased Services.  Aquifer reserves the right to modify these Aquifer Site User Terms and Conditions at any time.  Any modifications shall be posted on the Aquifer Site, and continued use after such posting shall constitute acceptance of the modification.

 

4.3 SUBSCRIPTIONS. Unless otherwise provided in the applicable Invoice or Order Form, (a) Services are purchased as subscriptions, (b) subscriptions for additional Purchased Services may be added during a Subscription Term, with the fee for such additional Purchased Services subscriptions to be prorated for the portion of that Subscription Term remaining at the time the additional subscriptions are added, and (c) any added subscriptions will terminate on the same date as the Subscription Term.

 

4.4 SUBSCRIPTION PERIOD.  Aquifer subscriptions are for one year beginning on July 1 and ending on the following June 30 (the “Subscription Period”).  All User subscriptions shall automatically renew for subsequent consecutive one year periods, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term.  Your initial access to Purchased Services will not begin until You have accepted the terms of this Agreement.  You can accept the terms of this Agreement electronically, by having an authorized representative of the Subscriber click the “ACCEPT” at the Web page exhibiting this document, by continuing to access the system, or in writing, by printing out and sending two signed copies of the Subscriber Agreement to Aquifer.  At Our sole discretion, the Subscription Term may be modified to Your institutional needs.

 

In the event a subscription begins on a date other than July 1, then: (a) it will begin on the earlier of the date of Your acceptance of this Agreement or the date You first access or otherwise use the Purchased Services; (b) You will be invoiced, and will promptly pay, a pro-rated fee for a partial year’s Subscription; (c) Your Subscription will automatically renew effective the following July 1 as provided above, and annually thereafter, subject to the provisions above for termination by either party.

 

4.5 PASSWORDS AND LOGIN INFORMATION FOR AUTHORIZED USERS.  Authorized Users from the Subscriber, as defined above, will be required to register to use the Aquifer Site. You will upload a list of Authorized Users to Aquifer’s learning management system. Upon User list upload Our system may send an e-mail to new Users with an Internet URL embedded in the e-mail.  Authorized Users must click on the embedded Internet URL to accept the end User Agreement, subject to Section 4.2 (License Granted) above, and complete the registration process.  Users may also initiate acceptance and complete the registration process by logging on to the system.

 

4.6 USER LOG DATA.  Aquifer will provide Your designated personnel access to certain log data, relating to completion of Aquifer Virtual Patient cases under Subscriber Content.

 

4.7 USAGE LIMITS. Subscriber’s Use of Purchased Services is subject to usage limits, including, for example, the quantities specified on Invoices or Order Forms. Unless otherwise specified, (a) a quantity on an Invoice or Order Form refers to End User Accounts, and the Service may not be used to administer more than the number of End User Accounts specified on an Invoice or Order Form, (b) a User’s password may not be shared with any other individual, and You will take reasonable steps to communicate and enforce this restriction. If You exceed a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services promptly upon Our request, and pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment)

 

  1. FEES AND PAYMENT FOR PURCHASED SERVICES

Subscriptions for Purchased Services are based on Your published total program enrollment in an independently accredited program.  User subscription fees are set for each Subscription Period.  Fees for User subscriptions added in the middle of a Subscription Period will be charged for the prorated period remaining in the Subscription Period.

 

The pricing during any automatic renewal Subscription Period will be the same as that during the immediately prior Subscription Period unless We have given You written notice of a pricing increase at least sixty (60) days before the end of that Subscription Period, in which case the pricing increase will be effective upon renewal and thereafter.

 

5.1 FEES. You will pay all undisputed fees specified on Invoices or Order Forms. Except as otherwise specified herein or on an Invoice or Order Form, (i) fees are based on the Service purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.

 

5.2 INVOICING AND PAYMENT.  We will invoice You in advance and otherwise in accordance with a relevant Invoice, Quote or Order Form. Unless otherwise stated, invoiced charges are due net thirty (30) days from the invoice date.

 

We may (i) condition future subscription renewals, discount offers and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment) and/or (ii) suspend Services until such amounts are paid in full.

 

You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.   Contact information may be provided as set forth in Schedule C.

5.3 OVERDUE CHARGES. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and discounts on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).

 

5.4 SUSPENSION OF SERVICE AND ACCELERATION. If any amount owed by You under this or any other agreement for Our services is overdue per Section 5.3, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and Suspend Our Services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice, in accordance with Section 12.1 (Manner of Giving Notice), before Suspending Services with no further notification to You pursuant to the foregoing.

 

5.5 PAYMENT DISPUTES. We will not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

 

5.6 TAXES. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, state imposed processing fees, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

 

5.7 FUTURE FUNCTIONALITY. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

 

  1. PERMITTED USES. 

During the Subscription Period and consistent with the terms and conditions of this Agreement, Authorized Users via desktop or mobile applications may use, view and/or download a single copy of the material made available on the Aquifer Site, as permitted, and print materials made available over the Aquifer Site for their own non-commercial personal, educational, clinical or educational research use; or, in the case of Educators, in connection with teaching the relevant materials to students at the Subscriber during the Subscription Period, provided as follows: (i) any materials printed or downloaded must include a source reference to all copyright and other proprietary rights notices that are contained in the Purchased Services; and (ii) Authorized Users shall not print more copies of any of the materials than they may reasonably need for their permitted uses during the Subscription Period.

 

  1. USE OF THE EDUCATORS’ AREA AND SERVICE SYSTEM ADMINISTRATIVE INTERFACE. 

The Educators filling the roles identified on Schedule B may use the Aquifer Site Educators’ Area in connection with the pedagogical use of the Aquifer Suite by their institutions during the Subscription Period.  In no case shall anyone other than authorized Educators, including students or other Authorized Users, be given access to the Educators’ Area, or the teaching materials available there.  In addition, the Subscriber shall treat the log usage data of its Authorized Users with the same level of confidentiality with which it treats other information relating to the academic performance of its students.   DO NOT PROVIDE STUDENTS ACCESS TO THE RESTRICTED AREAS.

 

  1. SUSPECTED UNAUTHORIZED USE OF RESTRICTED AREAS OR DESIGNATED EDUCATORS; CHANGE OF STATUS OF AUTHORIZED USERS. 

In the event that You suspect that any other individual has gained access to the Educators’ Area or the Administrative Interface, You will notify Us promptly in order to allow Us to take remedial steps. In the case of any change, departure or incapacitation of any Designated Educators, and/or the Designated Program Service Administrator, You shall promptly notify Us of such change, and We shall promptly terminate the access or the enhanced access of such individuals as applicable and provide access to their designated replacements, if any.  In addition, You shall promptly notify Us to the extent that any other Authorized Users terminate or change their affiliation with You in such a manner that such individuals no longer qualify as Authorized Users. Where appropriate, the Program Service Administrator shall maintain associated changes as described above, in exercising his/her authorized use of the Service System Administrative Interface.

 

  1. PROHIBITED USES. 

Except as expressly permitted by this Agreement or the End User Agreement, You recognize and agree that any copying, distribution or modification of the Aquifer Site, Aqueduct Site or the Site Content is strictly prohibited.  In addition, neither You nor Your Authorized Users shall do any of the following:

 

  1. Copy any part of the Aquifer Suite, the Aquifer Site, the Aqueduct Site or their content, including, without limitation, text, graphics, images, information, software and other materials (the “Content”) for resale or other commercial use;
  2. Access any Restricted Areas without authorization or permit unauthorized Users to do so;
  3. Use the Educators’ Area, the Service System Administrative Interface, other than as permitted as stated above;
  4. Post any part of the Aquifer Site, Aqueduct Site or the Site Content on any public bulletin boards, Web sites, Internet domains, or online chat rooms;
  5. Sublicense, assign, share, sell, rent, lease, or otherwise transfer Your right to use the Aquifer Site, Aqueduct Site or any Site Content except as permitted below;
  6. Reverse engineer any part of the Aquifer Site, Aqueduct Site or the Site Content or include it in any other software or multimedia package for any public use;
  7. Use the Aquifer Site or Aqueduct Site for any purpose in violation of local, state, national, or international laws;
  8. Remove copyright notices on any Site Content downloaded from the Aquifer Site or Aqueduct Site;
  9. Post or upload material to the Aquifer Site that infringes on the intellectual property rights of others or on the privacy or publicity rights of others or that is unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity;
  10. Post or upload any spam, advertisements, solicitations of business, chain letters or pyramid schemes;
  11. Impersonate or log in as any other person;
  12. Allow any other person or entity to use another’s password or identification for using, viewing or uploading material to the Aquifer Site or Aqueduct Site;
  13. Knowingly distribute or upload Malware, including viruses, worms, Trojan horses, spy ware or other harmful or disabling computer code to or through the Aquifer Site or Aqueduct Site; or
  14. Bypass or attempt to bypass or disable any security features of the Site, including, without limitation, those controlling downloading, printing material or access to Content from the Site.
  15. Subscriber shall actively cooperate with Aquifer to ensure that these prohibited uses are not undertaken by any of its Authorized Users, and, consistent with Subscriber’s confidentiality obligations and policies, to identify persons at the Subscriber that may be engaging in these uses.

 

  1. CONFIDENTIALITY

 

10.1 DEFINITION OF CONFIDENTIAL INFORMATION. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) 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. Your Confidential Information includes Your Data; Our Confidential Information includes the Purchased Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Quotes, Invoices or Order Forms (including pricing), as Well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does 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) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

 

10.2 PROTECTION OF CONFIDENTIAL INFORMATION. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and shall (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Quotes, Invoices or Order Form to any third party other than its legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its legal counsel or accountants will remain responsible for such legal counsel’s or accountant’s compliance with this Section 10.2.

 

10.3 FERPA COMPLIANCE. In connection with all FERPA Records that We may create, receive or maintain on behalf of You, We understand and agree to all of the following terms and conditions without reservation:

 

    1. Prohibition on Unauthorized Use or Disclosure of FERPA Records:  We will hold FERPA Records in strict confidence.  We will not use or disclose FERPA Records received from You or on Your behalf, including any FERPA Records provided by a University student directly to Us, except as permitted or required by the Agreement.
    2. Maintenance of the Security of FERPA Records:  We will use reasonable administrative, technical and physical security measures, to preserve the confidentiality and security of all FERPA Records received from You or on Your behalf.
    3. Reporting of Unauthorized Disclosures or Misuse of FERPA Records and Information:  We will, within five (5) days after discovery, report to You any use or disclosure of FERPA Records not authorized by this Agreement. We will report: (i) the nature of the unauthorized use or disclosure, (ii) the FERPA Records used or disclosed, (iii) who made the unauthorized use or received the unauthorized disclosure, (iv) what We have done or will do to mitigate any deleterious effect of the unauthorized use or disclosure, and (v) what corrective action We have taken or will take to prevent future similar unauthorized use or disclosure. We will provide such other information, including written reports, as reasonably requested by You.

10.4 COMPELLED DISCLOSURE. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

 

  1. TERMS

 

11.1 TERM OF AGREEMENT. This Agreement commences on the earlier of the date You first accept it or use the Purchased Services and continues until all Subscription Terms hereunder have expired or have been terminated.

 

11.2 TERM OF PURCHASED SUBSCRIPTIONS. The Subscription Term shall be as specified in the applicable Invoice or Order Form or in this Agreement. Except as otherwise specified, subscriptions will automatically renew for additional periods of one year effective July 1, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term.

 

11.3 TERMINATION OF LICENSE/SUBSCRIPTION.  At the end of the Subscription Period, the right of the Subscriber and all Authorized Users to use the Subscription Content, to access the Aquifer Site (other than the public portions thereof, if any), and/or any of the content of the Aquifer Suite and the Aqueduct Site will terminate.  Any Authorized Users who cease, for any reason, to be associated with the Subscriber will be converted to public access only accounts.  Subscriber may terminate this Agreement at any time by providing Aquifer with ninety (90) days written notice to Aquifer, 2 Buck Road, Box 5/ Suite K, Hanover, NH 03755, in which case the right for all Subscriber Authorized Users to use the Purchased Services, will terminate at the end of the notice period.

 

11.4 YOUR DATA PORTABILITY AND DELETION. After the effective date of termination or expiration of this Agreement, We will have no obligation to maintain or provide Your Data, and may, in Our sole discretion, delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.

 

11.5 SURVIVING PROVISIONS. The provisions of the Sections entitled “Confidentiality” (10), ”Notices, Governing Law and Jurisdiction” (12), “Data” (13),  “Disclaimer of Warranties”  (15), and  “Limitation of Liability” (16), will survive any termination or expiration of this Agreement.

 

  1. NOTICES, GOVERNING LAW AND JURISDICTION

 

12.1 MANNER OF GIVING NOTICE. All notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email. Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Program Services Administrator designated by You, in writing, by like notice.

 

12.2 OWNERSHIP; CHANGES TO CONTENT.  The Aquifer Site and the Virtual Patient Course Materials (Services), including without limitation the Purchased Services, are and remain the copyrighted materials of Aquifer and/or its licensors and may not be reproduced without the written consent of the copyright holder.  In no event shall Subscriber remove any copyright notices from any content in the Purchased Services, including the Virtual Patient Course Materials.  In no event shall Subscriber permit electronic access to any Purchased Services  other than by Authorized Users through the Aquifer Site.  Any use of the Purchased Services not expressly permitted by this Agreement is a breach hereof and may violate copyright, trademark, and other laws. Content and features of Virtual Patient Courses and the Aquifer Site are subject to change or termination without notice in the editorial discretion of Aquifer. All rights not expressly granted herein are reserved to Aquifer and its licensors.

 

12.3  GOVERNING LAW.  This Agreement shall be construed, governed, interpreted and enforced according to the laws of New Hampshire, without regard for its conflicts of law principles.

 

  1.  DATA

 

13.1 OUR RIGHTS TO USE YOUR DATA. You grant Us and Our Affiliates the right to use Your Data in order to: (a) provide the Services in accordance with this Agreement and the Privacy Policy, (b) prevent or address service or technical problems, or (c) as may be required by law. We may also use Your Data in an aggregate, de-identified and generic manner for marketing, survey purposes, setting benchmarks, feature suggestions, Services utilization analyses, academic research and related purposes, provided that (i) it is used only for internal administrative purposes and general usage statistics; or (ii) does not identify You or Your agents, representatives, customers or employees and is not attributable to such persons or entities in any way; and (iii) where Your Data is used in this manner to create publicly disclosed general usage statistics, such statistics are used to report only the total aggregate use among Our customers. Subject to the rights and licenses granted in this Agreement, We acquire no other right, title, or interest from You under this Agreement in or to Your Data.

 

13.2 LICENSE BY YOU TO USE FEEDBACK. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.

 

13.3. THIRD-PARTY AFFILIATES We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party Affiliates.    Third party Affiliate features that interoperate with Us depend on the continuing availability of the third party API and program for use with the Services. If the providers of these third party services cease to make the API or program available on reasonable terms for the Service, We may cease providing such Service. You will only be entitled to any refund, credit, or other compensation for that prorated proportion of Your Purchased Services.

 

  1. EDUCATIONAL USE ONLY; NOT INTENDED FOR CLINICAL DECISION-MAKING: THE AQUIFER SUITE AND ALL RELATED MATERIALS.

The Aquifer Suite, each of its components, and the materials on the Aqueduct Site including without limitation the Purchased Services, are provided for educational purposes only.  The Aquifer Suite uses fictitious examples created for teaching purposes. The Aquifer Suite is not intended for use in actual clinical decision-making, and in no case should be substituted for the practice of medicine and healthcare by a licensed healthcare professional. Treatment portrayed as correct in a Aquifer case may not be the correct treatment for a similar patient.  While We make every attempt to keep the content of the Aquifer Suite current, the cases cannot always reflect every change or nuance in medical practice.

 

14.1 WISE MD / WISE OnCALL DISCLAIMER: The NYU School of Medicine and NYU Health Center’s World Wide Web pages aim to provide general information about the topics they present. They are not intended to make statements concerning the official policies and practices of the institutions unless stated otherwise. A considerable effort has been made in good faith to ensure that material accessible from this site is accurate. Despite this effort, it is clear that errors are inevitable. Consequently, no guarantees are expressed or implied as to the accuracy, timeliness, currency or completeness of any information authored by persons at or agents of NYU or its affiliates, or accessible using links from this site. Nor is any warranty made that the information obtained from this site or that of an affiliate is valuable or useful for any purpose. A reader assumes full responsibility for any actions taken based on information obtained from this Web site. In particular, We emphasize that the information available through this site should not be interpreted as medical or professional advice. All medical information, from this or any other source, needs carefully to be reviewed with Your trusted health-care provider before being acted upon in any way.

 

  1. DISCLAIMER OF WARRANTIES.

NEITHER AQUIFER NOR ANY OTHER PERSON OR ENTITY MAKES ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, WITH RESPECT TO THE LICENSED MATERIALS, INCLUDING WITHOUT LIMITATION THE PURCHASED SERVICES, WHICH ARE LICENSED “AS IS” OTHER THAN AS EXPRESSLY STATED HEREIN.  TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ALL OTHER WARRANTIES ARE EXPRESSLY EXCLUDED AND DISCLAIMED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE. ANY STATEMENTS OR REPRESENTATIONS MADE BY ANY OTHER PERSON OR ENTITY ARE VOID. YOU ASSUME ALL RISK AS TO THE QUALITY, FUNCTION, PERFORMANCE, AND ACCURACY OF THE SITE AND THE LICENSED MATERIALS.

 

  1. LIMITATION OF LIABILITY.

BY SUBSCRIBING, YOU AGREE ON BEHALF OF SUBSCRIBER AND ITS AUTHORIZED USERS THAT, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL AQUIFER OR ANY OTHER PARTY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, PROMOTION OR MARKETING OF THE Aquifer SITE OR ITS CONTENT, INCLUDING WITHOUT LIMITATION THE PURCHASED SERVICES, BE LIABLE TO YOU OR ANY OTHER PARTY INCLUDING YOUR AUTHORIZED USERS FOR ANY SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF DATA OR PROFITS, OR DAMAGES FOR PERSONAL INJURY OR WRONGFUL DEATH, RESULTING FROM OR CONNECTED WITH ANY USE, MISUSE OR INABILITY TO USE PURCHASED SERVICES, THE SUBSCRIPTION CONTENT, THE Aquifer SUITE, THE Aquifer SITE OR ANY CONTENT,  WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF AQUIFER OR SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AQUIFER OR SUCH OTHER PERSON OR ENTITY LIABILITY FOR ANY DAMAGES OR LOSS TO YOU OR ANY OTHER PARTY EXCEED THE SUBSCRIPTION FEE PAID BY YOU FOR ACCESS TO AND USE OF THE PURCHASED SERVICES.

 

  1. LINKS TO OTHER SITES.

While We carefully review all of the sites that We link to, We cannot control the content of other Web sites.  Links or references to other Web sites do not imply an endorsement of any kind unless specifically stated.

 

  1. NO TRANSFER; ASSIGNMENT. 

Except as otherwise permitted by law, You may not transfer, assign or delegate this Agreement, or any of the rights or obligations hereunder, or transfer any Virtual Patient Course Materials, to any third party without the prior written permission of Aquifer and its licensors.

 

  1. AUTHORITY TO CONTRACT. 

The Subscriber represents and warrants that (i) it is an accredited institution or program actively involved in the teaching or practice of medicine or another health care science (such as nursing or dentistry); (ii) that Subscriber is accredited by the Association of American Medical Colleges (U.S. medical schools), by the Association of Faculties of Medicine in Canada, the American Association of College of Osteopathic Medicine, other governmental recognized accrediting body or has received a waiver of this requirement from Aquifer; and  (iii) that the Agreement has been duly authorized and executed on behalf of the Subscriber.

 

  1. MODIFICATION AND WAIVER; SEVERABILITY. 

The Agreement may only be modified for specific institutional subscribers in writing signed by both of the parties.  A waiver by a party of any right hereunder shall not constitute a waiver of that or any other right in the future.  If any provision of this Agreement is determined to be invalid or unenforceable under any applicable law, it shall be deemed omitted and the remaining provisions shall continue in full force and effect.

 

  1.  COMPLETE AGREEMENT.

This Agreement constitutes the entire agreement between You and Aquifer with respect to the subject matter hereof and supersedes with respect thereto any prior written agreements or prior, contemporaneous or subsequent oral understanding.

Schedule A:  Service Content

Aquifer Pediatrics:  a series of web-based pediatric case simulations designed to comprehensively teach the core third-year pediatrics curriculum

Aquifer Pediatrics Exam:  a summative multiple choice exam with national benchmark validation that assesses the third-year pediatrics curriculum

Aquifer Internal Medicine:  a web-based virtual patient program designed to encompass the learning objectives of the Clerkship Directors in Internal Medicine (CDIM)-Society for General Internal Medicine Core Medicine Clerkship Curriculum Guide Version 3.0 comprehensively

Aquifer Internal Medicine Exam:  a summative key features exam with national benchmark validation that assesses the third year internal medicine curriculum

Aquifer Family Medicine: a series of web-based virtual patient cases using the Family Medicine Curriculum Resource, NBME Task force curriculum topics, and the Future of Family Medicine curricular foundations

Aquifer Family Medicine Exam:  a summative multiple choice exam with national benchmark validation that assesses the third-year family medicine curriculum

Aquifer Radiology: a web-based virtual patient program based on the curriculum of the Alliance of Medical Student Educators in Radiology

Aquifer Radiology Exam:  a summative multiple choice exam with national benchmark validation that assesses the AMSER standard

Aquifer High Value Care:  course adapted from the American College of Physicians-Alliance of Academic Internal Medicine’s HVC Resident Curriculum and developed in collaboration with the American College of Physician

Aquifer Diagnostic Excellence:  web-based modules developed in conjunction with Society to Improve Diagnosis in Medicine to teach awareness of failure of reasoning that results in diagnostic errors.

WISE-MD: a series of web-based modules for surgical education developed by the New York University Department of Surgery and the Program for Medical Education and Technology in association with the American College of Surgeons and the Association of Surgical Educators.

WISE OnCall:  this course is designed to help fourth year students and first year residents meet the readiness for practice challenges and demonstrate entrustable medical activities

Aquifer Addiction Medicine:  web-based virtual patient cases and videos on addiction and recovery education developed in collaboration with the Hazelden Betty Ford Foundation, the American Society of Addiction Medicine, and the Treatment Research Institute.

Aquifer Geriatrics:  developed in collaboration with the American Geriatrics Society, Geriatrics is a set of peer-reviewed interactive geriatrics education case modules based on the AAMC Geriatrics competencies.

Aquifer Capstone:  course content that supplements for Medical Home, Culture and Health and  Oral Presentation Skills.

Educator only access to teaching, learning and integration tools developed by experienced members of Aquifer’s Academic Consortium are available on the Website

Schedule B:  Program Roles and Permissions

Program Services Administrator:  Able to add and delete Educators in the administrative portal for the Services; responsible for approving subscriptions and acting as contact for billing as well

Student Manager:  Able to add and remove students from service as Authorized Users

Curriculum Administrator:  Able to add and delete educators in the administrative portal for the Services; Able to add and delete learners from the service; able to assign learners to specific service content; able to reset learner performance; able to review learner and institutional utilization reports; able to review content in unrestricted fashion

Course Administrator:  Able to add and delete learners from the service; able to assign learners to specific service content, able to reset learner; able to review learner utilization reports; able to review content in unrestricted fashion

Course Manager:  Able to assign learners to specific course content; able to review learner utilization reports; able to review content in unrestricted fashion

IT Administrator:  onsite information technology resource to facilitate system access.

Teacher:  Able to view case content in unrestricted fashion

Student / Learner:  Able to view cases in gated fashion