This ONS All-Access Agreement (this “Agreement”) is between Oncology Nursing Society (“ONS”) and the customer executing this Agreement (“Customer”). This Agreement governs the access and use of one or more Products (as hereinafter defined) purchased from ONS via ONS All-Access. Customer accepts this Agreement as of the earliest date when Customer orders a Product, pays for a Product, executes an ordering document for the Product as authorized by ONS in writing, or otherwise accesses or uses a Product (“Effective Date”).
1.1. “Code” means a code provided by ONS to Customer for use via ONS’s website www.ons.org.
1.2. “Course” means an ONS online course available on ONS’s website www.ons.org.
1.3. “Customer” means the party entering into this Agreement with ONS.
1.4. “ONS” means Oncology Nursing Society.
1.5. “Product” means a product or service provided by ONS to Customer via ONS All-Access, including but not limited to Courses and Codes.
1.6. “User” means any individual to whom Customer makes a Product available for use or administration by or on Customer’s behalf, whether authorized or not.
2.1. Use of Products. Subject to this Agreement, Customer and its Users may use Products for Customer’s internal business purposes.
2.2. Users. Customer is responsible for provisioning and managing its Users’ accounts, for its Users’ use of Products (whether authorized or not), and for their compliance with this Agreement. Customer will ensure that Users keep their accounts and credentials confidential and will promptly notify ONS upon learning of any compromise of Customers’ accounts or credentials. ONS may require that a User use a Customer-provided email in connection with a Product. Users who do not use a Customer-provided email, who are no longer employed by Customer, or who are otherwise no longer authorized may still be able to access or use a Product unless Customer notifies ONS to the contrary.
2.3. Administrators. Administrators are Users who have oversight for Customer’s use and administration of Products. Administrators are responsible for, among other things, managing Customer’s Codes, providing them to Users, receiving and processing invoices from ONS, and communicating with ONS. Customer may have up to 2 administrators.
2.4. Codes. Products also include, or may be accessible by, a Code. Except as permitted by this Agreement, a Code cannot be transferred, reloaded, resold, redeemed for more than its value, redeemed or exchanged for cash, returned, or refunded (except to the extent required by law or as otherwise authorized by ONS), or used in a manner otherwise prohibited by this Agreement. Customer will keep its Codes confidential and will promptly notify ONS upon learning of any compromise of a Code. ONS will not be responsible for a Code that has been lost, stolen, destroyed, expired, misplaced, improperly redeemed, or used without Customer’s permission or authorization. If a Code’s value is insufficient for a purchase, ONS may require that the remaining balance be paid by another acceptable means of payment. ONS reserves the right to decline to honor a Code in the event of a disputed charge, bounced check, other failure of consideration, or if ONS suspects it was obtained fraudulently.
2.5. Courses. Courses are Products. Once a User enrolls in a Course, the Course will expire within the time period applicable to the Course (e.g., 90 or 180 days). No refunds or credits will be given for Courses, even if unassigned or unused.
3.1. Fees. Customer will pay invoiced amounts within 30 days. Fees are in US dollars, are noncancellable and non-refundable (except as provided in this Agreement), and are based on the Product purchased not actual usage. ONS reserves the right to withhold access to the Product or further purchases until payment has been made.
3.2. Late Payment. To the extent permitted by applicable law, late payments are subject to a charge of 1.5% per month or the maximum amount allowed by applicable law, whichever is less, and to the extent permitted by applicable law, Customer will be responsible for ONS’s reasonable collection costs.
3.3. Taxes. Fees are exclusive of taxes. Customer is responsible for all applicable duties, taxes, and levies, including sales, use, VAT, GST, and withholding, other than ONS’s income tax. If Customer claims tax exempt status for amounts due, Customer is responsible for providing a valid tax exemption certificate (authorized by the applicable governmental authority) to avoid application of taxes. ONS’s failure to include any applicable tax in an invoice will not waive or dismiss any rights or responsibilities under this paragraph. If applicable law requires withholding or deduction of any tax or duty, Customer shall separately pay ONS the withheld or deducted amount, over and above fees due.
3.4. Disputed Invoices. To dispute an invoice, Customer must notify ONS within 15 days from the date Customer receives the invoice, describe the dispute in detail, work diligently and in good faith to resolve the dispute, and pay the undisputed portion.
3.5. Billing Information. Customer is responsible for providing complete and accurate billing and contact information to ONS and notifying ONS of any changes to such information. ONS may rely on the name and address provided by Customer as the place of supply for tax purposes.
4. Term; Termination
4.1. Term. The term of this Agreement begins on the Effective Date, and unless terminated earlier in accordance with this Agreement, continues for the time period applicable to the Product.
4.2. Termination. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
4.3. Effect of Termination. Upon expiration or termination of this Agreement, Customer shall cease all use of Products. The following provisions will survive expiration or termination of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Section 6 (Intellectual Property; Feedback); Section 7 (Mutual Confidentiality); Section 8.3 (Disclaimers); Section 9 (Indemnification); Section 10 (Limitations of Liability); Section 11 (General); and any other provision of this Agreement that must survive to fulfill its essential purpose.
5. Customer Responsibilities and Restrictions
5.1. Restrictions. Customer shall not (and shall not permit anyone else to): (a) sell, license, distribute, transfer, or otherwise commercialize a Product; (b) copy, modify, create derivative works of or remove proprietary notices from a Product; (c) allow access to a product by multiple individuals impersonating a single user (i.e., through sharing or pooling or otherwise) or use a Product for service bureau or time-sharing purposes; (d) frame, mirror, or attempt a similar technique with a Product; (e) reverse engineer, decompile, or seek to access the source code of a Product; (f) conduct security or vulnerability tests of a Product, interfere with a Product’s operation, or circumvent access restrictions; (g) use a Product to develop a competing product or service; (h) use a Product in violation of this Agreement or applicable law; or (i) use a Product as medical advice, as a substitute for independent professional or clinical judgment or individual patient assessment, or where use or failure of the Product could lead to death or personal injury.
5.2. User Information. To the extent applicable based on the Product, Customer agrees that ONS may process Users’ personal data relating as necessary for storage and processing in accordance with this Agreement, processing initiated by Users in their use of Products, and processing to comply with other documented reasonable instructions provided by Customer (e.g. via email or support tickets) where such instructions are consistent with this Agreement. Customer has sole responsibility for the legality of such personal data and the means by which Customer acquired personal data, including providing legally adequate notices to and obtaining any necessary consent from Users. Customer states that Customer has all necessary rights to use such data and grant ONS the rights stated herein without violating the rights of any third party.
5.3. No Sensitive Data. Customer will not provide to ONS any data or information that is subject to government regulation, including without limitation, protected health information regulated under the Health Insurance Portability and Accountability Act of 1996 or sensitive financial information regulated under the Gramm-Leach-Bliley Act of 1999.
5.4. Suspension. ONS may suspend use of the Product if ONS reasonably and in good faith believes: (a) Customer or a User has violated this Agreement; or (b) suspension is necessary to prevent or address introduction of Malware (as hereinafter defined), a security incident, or other harm to Customer, ONS, or ONS’s other customers. ONS will use commercially reasonable efforts to notify Customer prior to any such suspension, unless ONS reasonably believes that it is prohibited from doing so under applicable law or under legal process (such as court or government administrative agency processes, orders, mandates, and the like) or it is necessary to delay notice in order to prevent imminent harm. ONS will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or Product, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved.
6. Intellectual Property; Feedback
6.1. Intellectual Property. As between ONS and Customer, ONS retains all rights, title, and interest in and to Products. This Agreement does not grant Customer any intellectual property license or rights in or to Products, except to the limited extent that such rights are necessary for Customer’s use of Products as authorized by this Agreement. Customer recognizes that Products are licensed, not sold, and are protected by copyright and other laws. ONS All-Access is a trademark of ONS.
6.2. Feedback. If Customer gives ONS feedback regarding a Product, ONS may use the feedback without restriction or obligation. All feedback is provided “AS IS” and ONS will not publicly identify Customer as the source of feedback without Customer’s permission.
7. Mutual Confidentiality
7.1. Confidential Information. The term “Confidential Information” means information disclosed by or on behalf of one party (as discloser) to the other party (as recipient), in any form, which (a) the discloser identifies to recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. ONS’s Confidential Information includes technical or performance information about Services.
7.2. Use and Protection. As recipient, each party will: (a) use Confidential Information only to fulfill its obligations and exercise its rights under this Agreement; (b) not disclose Confidential Information to third parties without the discloser’s prior approval, except as permitted by this Agreement; and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.
7.3. Permitted Disclosures. The recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for ONS, any subcontractors, provided it remains responsible for their compliance with this Section 7 and they are bound to confidentiality obligations no less protective than this Section 7.
7.4. Exclusions. These confidentiality obligations do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information.
7.5. Required Disclosures. The recipient may disclose Confidential Information to the extent required by applicable law. If permitted by applicable law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.
8. Representations and Warranties; Disclaimers
8.1. Mutual Warranties. Each party represents and warrants that it is duly organized and validly existing under the laws of the state of its incorporation or formation, it has accurately identified itself (including its legal name), it has full power and authority to perform its obligations under this Agreement, and the individual executing this Agreement is authorized to do so on behalf of the party the individual represents.
8.2. ONS Warranties. ONS warrants that:
8.2.1. Performance Warranty. ONS warrants that: (a) the Product will perform substantially in conformance with the Product’s description as published on the Product page on ONS’s website www.ons.org as of the Effective Date; and (b) ONS will not materially reduce the overall functionality of the Product as of the Effective Date. If Customer notifies ONS in writing within 30 days after first becoming aware of a breach of the foregoing warranty, ONS will use diligent efforts to correct the Product so the foregoing warranty is met, and if ONS is unable to make such corrections in a timely manner, either party may terminate this Agreement with respect to the affected Product, and Customer, as its sole and exclusive remedy and ONS’s entire liability, will receive a refund of any prepaid unused fees for the affected Product.
8.2.2. Malware Warranty. ONS will use commercially reasonable efforts to avoid introducing into the Product any virus, malicious code, or program intended to do harm (“Malware”).
8.3. Disclaimers. Except as stated in Section 8 the Product is provided on an “as is” basis, and ONS disclaims all warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title, and noninfringement. Without limiting the generality of the foregoing, ONS does not represent or warrant that the Product will perform without interruption or error, or that the Product is secure from hacking or other unauthorized intrusion. ONS’s representations and warranties in Section 8 do not apply to use of the Product not in accordance with this Agreement, misuse of the Product by Customer or a User, modifications to the Product by anyone other than ONS or its representatives, or use of the Product in combination with hardware or software not provided by ONS.
9.1. By ONS. ONS will defend Customer from any third-party claim alleging that Customer’s use of the Product in accordance with this Agreement infringes the third party’s copyright or trade secret (an “ONS-Covered Claim”), and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by ONS (including reasonable legal fees) resulting from such ONS-Covered Claim. ONS will have no liability or obligation with respect to an ONS-Covered Claim if such claim is caused in whole or in part by: (a) use of the Product by Customer or Users in violation of this Agreement or without ONS’s authorization; (b) modification of the Product by anyone other than ONS or its representatives; or (c) the combination, operation or use of the Product with other data, hardware or software not provided by ONS.
9.2. By Customer. To the maximum extent permitted by applicable law, Customer will defend ONS from any third-party claim arising out of or relating Customer’s or a User’s use of the Product or breach of this Agreement, including claims by Users or Customer’s employees (“Customer-Covered Claim”), and will indemnify and hold harmless ONS from and against any damages and costs awarded against ONS or agreed in settlement by Customer (including reasonable legal fees) resulting from such Customer-Covered Claim.
9.3. Process. The indemnifying party’s obligations in this Section 9 are subject to receiving from the indemnified party: (a) prompt notice of the claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay); (b) the exclusive right to control the claim’s investigation, defense and settlement; and (c) reasonable cooperation at the indemnifying party’s expense. The indemnifying party may not settle a claim without the indemnified party’s prior approval if settlement would require the indemnified party to admit fault or take or refrain from taking any action (except regarding use of the Product when ONS is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
9.4. Mitigation. If Customer’s use of the Product results (or in ONS’s opinion is likely to result) in an ONS-Covered Claim, ONS may at its own option and expense: (a) procure for Customer the right to continue using Product; (b) replace or modify the Product to make it non-infringing without materially reducing the overall functionality of the Product as of the Effective Date; or (c) if options (a) or (b) are not commercially reasonably as determined by ONS, terminate this Agreement with respect to the affected Product, in which case ONS will refund any pre-paid unused fees for the Product.
9.5. Exclusive Remedy. This Section 9 states ONS’s entire liability and Customer’s exclusive remedy with respect to an ONS-Covered Claim.
10. Limitations of Liability
10.1. General Cap. Each party’s entire liability arising out of or related to this Agreement will not exceed the amount paid or payable for the Product giving rise to the liability.
10.2. Exclusion of Damages. Neither party will have any liability arising out of or related to this Agreement for indirect, special, incidental, reliance or consequential damages or damages for loss of use, lost profits or interruption of business, even if informed of their possibility in advance.
10.3. Exceptions. Section 10.1 and Section 10.2 will not apply to: (a) either party’s obligations under Section 9 (Indemnification); (b) either party’s violation of the other party’s intellectual property rights; (c) ONS’s ability to collect unpaid fees due hereunder; or (d) Customer’s breach of Section 5.2 (User Information) or Section 5.3 (No Sensitive Data).
10.4. Nature of Claims. The waivers and limitations in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, common law indemnity, breach of statutory duty, or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose. If applicable law limits the application of the provisions of this Section 10, ONS’s liability will be limited to the maximum extent permissible.
11.1. Publicity. Neither party may publicly announce this Agreement without the other party’s prior approval or except as required by applicable law.
11.2. Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
11.3. Compliance. ONS may monitor and review Customer’s compliance with the Agreement. If ONS determines that Customer has exceeded the authorized use, quantity, or scope permitted by the Agreement, Customer shall pay all unpaid or underpaid fees, without prejudice to ONS’s other rights or remedies.
11.4. Pilot Products. ONS may offer optional access to a Product (or a Product feature) on a free, trial, beta, early access, or pilot basis (“Pilot Product”). Use of Pilot Products is permitted only for Customer’s internal evaluation during the period designated by ONS. Either party may terminate Customer’s use of a Pilot Product at any time for any reason. A Pilot Product may be inoperable, incomplete or include features never released. Notwithstanding anything else in this Agreement, ONS offers no warranty, indemnity, service level agreement, or support for a Pilot Product and its liability for a Pilot Product will not exceed US $1,000.
11.5. Governing Law. This Agreement, including all claims arising out of or relating hereto (including torts), is governed by Pennsylvania law (excluding its conflict of laws principles), unless Customer is a state or local governmental entity or instrumentality, in which case this Agreement is governed by the laws of that state. Neither the Uniform Computer Information Transactions Act as adopted in any jurisdiction nor the United Nations Convention on Contracts for the International Sale of Goods (CISG) will apply.
11.6. Venue. Except to the extent prohibited by applicable law, any action arising out of or relating to Services must be brought in the state or federal courts in Pittsburgh, Pennsylvania. Notwithstanding the foregoing, ONS may seek injunctive relief in any appropriate jurisdiction with respect to a violation of its intellectual property rights.
11.7. Notices. All legal notices to be provided by one party to the other under this Agreement may be delivered in writing by nationally recognized overnight delivery service or US mail to the mailing address provided by the Customer. The address for a notice to ONS is: Oncology Nursing Society, 125 Enterprise Drive, Pittsburgh, PA 15275, with a copy to email@example.com by electronic mail. All other notices that are not of a legal nature that are to be provided to Customer, shall be sent to a valid e-mail address provided by Customer. All non-legal notices will be deemed to have been given immediately upon delivery by electronic mail, or five (5) business days after being deposited in the mail. If any legal notice has been sent by a courier as permitted above, it shall be deemed delivered upon receipt. A party may update its address with notice to the other.
11.8. Force Majeure. ONS will not be liable for a delay or failure to perform due to circumstances beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet or utility failure, refusal of government license, or natural disaster. If a force majeure materially adversely affects the Product for 30 or more consecutive days, either party may terminate this Agreement with respect to the affected Product upon notice to the other and ONS will issue a refund of any prepaid unused fees for the affected Product.
11.9. No Third-Party Beneficiaries. This Agreement does not contemplate any third-party beneficiaries.
11.10. Severability. Any provision in this Agreement held to be unenforceable is severable and will not affect the enforceability of other provisions.
11.11. No Agency Relationship. The parties are independent contractors, not agents, partners or joint venturers.
11.12. No Waiver. ONS’s delay or failure to enforce this Agreement will not constitute a waiver.
11.13. Technology Export. Customer shall not: (a) permit any third party to access or use the Product in violation of any U.S. law or regulation; or (b) export any software provided by ONS or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Product in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
11.14. Anti-Corruption. In connection with the Product performed under the Agreement and Customer’s use of the Product, the parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations.
11.15. Government Rights. To the extent applicable, products are “commercial computer software” or a “commercial item” for purposes of FAR 12.212 for and DFARS 227.7202. Use, reproduction, release, modification, disclosure or transfer of the Products is governed solely by this Agreement, and all other use is prohibited. This Agreement is not associated with, or required by, a U.S. federal government contract.
11.16. Construction. This Agreement will not be construed in favor of or against either party by reason of authorship.
11.17. Entire Agreement. This Agreement is the final, complete, and exclusive expression of the agreement between the parties regarding its subject matter, and apply to the exclusion of any other terms that you seek to impose or incorporate, or that are implied by trade, custom, practice, or course of dealing. This Agreement will prevail over terms and conditions of any customer-issued purchase order or other ordering documents, which will have no force and effect, even if ONS accepts or does not otherwise reject the purchase order or other ordering document. Any handwritten, typewritten, or redlined/blacklined changes to this Agreement are invalid.
* * *
Updated: December 14, 2023