F.A. Davis End User License Agreement

This end user license agreement (“Agreement”) is a legally binding agreement between you and F.A. Davis Company (“F.A. Davis,” “we” or “us”) for access and use of F.A. Davis’s online courseware platforms and related services, including Davis Advantage, Dosage Calc360, Medical Language Lab, Davis Edge, Kinesiology in Action, Fitness Decisions, Surg Tech in Practice, and Davis Nursing Consult (collectively, the “Services”).

F.A. DAVIS PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CREATING AN ACCOUNT AND ACCESSING FAD SITES AND CONTENT YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER.

IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT OR F.A. DAVIS HAS PREVIOUSLY INFORMED YOU THAT WE ARE NOT WILLING TO MAKE THE SERVICES AVAILABLE TO YOU, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. IF YOU DO NOT CLICK AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ATTEMPT TO ACCESS OR USE THE SERVICES IN ANY WAY. IF YOU HAVE NOT REACHED 18 YEARS OF AGE OF, YOU MAY NOT USE THE SERVICES EXCEPT WITH THE SUPERVISION AND PERMISSION OF A PARENT OR LEGAL GUARDIAN, WHO MUST FIRST REVIEW AND AGREE TO THIS AGREEMENT.

F.A. DAVIS RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AT ANY TIME EFFECTIVE IMMEDIATELY UPON POSTING THE UPDATED AGREEMENT AT THIS SAME LOCATION. YOUR USE OF THE SERVICES FOLLOWING THE POSTING OF SUCH CHANGES CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES.

1. Services.

a. Subject to your compliance with the terms and conditions of this Agreement and any applicable usage limitations, including those described in this Agreement or the Documentation, we grant to you the right to access and use the Services as we may supply or make such Services available solely for your personal, educational, non-commercial purposes. Such grant of rights is limited, revocable, non-exclusive, non-assignable, non-sublicensable and non-transferable. No rights are granted to you other than as expressly set forth in this Agreement, and we reserve all rights not specifically granted under this Agreement. Access to the Service requires an access code that you have purchased or was provided to you by an organization or institution of which you are a member that is party to an applicable agreement with us for the Services.

b. We may, in our sole discretion, elect to provide to you during each subscription term technical support for your use of the Services (“Support”), subject to our Support policies in effect from time to time and published on the F.A. Davis website at [https://customersupport.fadavis.com/home/].

c. We reserve the right, at any time and from time to time, to modify, discontinue, temporarily or permanently, the Services provided or any part or portion thereof, with or without notice to you. We may, without liability to you or to any third party, modify, suspend or discontinue the Services, or any features, functionality or portion thereof, at any time and without prior notice. Nothing in this Agreement obligates us to maintain or support the Services or any part or portion thereof, during the term of this Agreement.

2. User Responsibilities.

a. To use the Services, you may be asked to register and create an account. In consideration for your access to and use of the Services, you agree to: (i) provide true, accurate, current and complete information about yourself as may be required by the Service’s registration form (such information being the "Registration Data") and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide Registration Data that is untrue, inaccurate, not current or incomplete, or we have reason to believe the same, we may suspend or terminate your account and your access to and use of the Services.

b. Your account’s username and password and the access code(s) provided to you for the Services (“User Credentials”) are solely for your use and are not to be shared with anyone else. You are solely responsible for maintaining the confidentiality and security of your User Credentials and for any and all use and access to the Services which occurs under your account. You agree to notify us immediately about any actual or suspected unauthorized use of account information and about any actual or suspected breach of security.You agree not to access the Services through any username, password or access code(s) that were not provided for your use. You are entirely responsible for your compliance with this Agreement, the applicable documentation for the Services, including any usage guides and policies, (“Documentation”) and for all activities that occurs on or through your account, including payment of all fees incurred as result of such use, unless and until you notify us of unauthorized access or use. We shall have no liability for any loss or damage arising from your failure to notify us of any unauthorized access or use of your account.

c. By establishing an account, you certify and represent that any exam, test, assessment, or other interactive tool offered through FA Davis online courseware and content will be completed and utilized only by you and you will not permit any other person to falsely answer exam, test, and assessment questions under your name. You understand and agree that any false, misleading, or fraudulent activity committed by you in connection with your use of FA Davis online courseware and content may result in invalidation of your scores and records stored on FA Davis online courseware and content, immediate suspension or termination of your access to FA Davis online courseware and content, and disciplinary action by your school or institution consistent with their policies. You understand and agree that FA Davis will report any suspected fraud or testing misconduct to your school or institution and/or to law enforcement authorities and will pursue any action reasonably necessary to protect student and school records and the integrity of the FA Davis online courseware and content product.

d. In the use of certain Services, you may provide, post, upload, input or submit on or through the Services content or other material, including your Registration Data and User Credentials (collectively, “Your Data”). You are solely responsible for Your Data. You assume all risks associated with the use of Your Data, including any reliance on its accuracy, completeness or usefulness by us or by others, or any disclosure of Your Data that personally identifies you or any third party. You are solely responsible for creating and maintaining your own backup copies of Your Data if you desire. You hereby grant to us and our representatives a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license: (A) to use, distribute, reproduce, transmit, publish, display, translate, adapt, create derivatives of, combine with the data of our other customers and perform Your Data, in any manner or form: (i) to provide the Services and otherwise perform our obligations hereunder; (ii) to perform analytics, reporting of system metrics, otherwise monitor the Services, for product development and for any other of our internal business purposes; and (iii) in connection with the development, marketing, distribution and licensing of any product or service that we offer from time to time, provided that Your Data included in products or services offered to third parties will be in an aggregated and de-identified format; and (B) to use and incorporate into the Services and their other products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your users relating to the operation of the Services or our other services. The foregoing license will continue in effect following the termination of this Agreement and your cessation of the use of the Services.

3. General Use Restrictions.

a. You shall not, and will not permit or authorize another person to: (i) copy, share, disclose, reverse engineer, disassemble, decompile, decode, modify, distribute, pledge, create derivative works of or translate the Services, in whole or in part, or otherwise attempt to discover the Services source code or underlying ideas, techniques or algorithms, including the review of data structures or similar materials produced by the Services; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software-as-a-service, cloud or other commercial activity for use by third parties; (iii) take any action to bypass or breach any security device or protection used by the Services or to access the Services by any means other than through interfaces that we expressly authorize; (iv) input, upload, transmit or otherwise provide to or through the Services any information or materials that are unlawful or injurious, tortious, malicious, defamatory, infringing, libelous, abusive, disparaging, pedophilic, pornographic, obscene, invasive of another person’s privacy, promote illegal activities, or contain, transmit or activate any harmful code (including but not limited to a virus or any other code or files or programs with the ability to interrupt, destroy or compromise or otherwise limit the functionality of the Services or any computer software or hardware or system or telephonic equipment); (v) damage, destroy, disrupt, disable, impair, scrape content from, impose a disproportionate load on, interfere with or otherwise impede or harm in any manner the Services, in whole or in part; (vi) access or use the Services in order to build any competitive or commercially available product or service or for purposes of monitoring the availability, performance, or functionality of the Services, for any other benchmarking or competitive purposes, for any purpose that infringes, misappropriates or otherwise violates any patent, copyright, trademark or any other intellectual property right (collectively, “Intellectual Property Rights”) or any other right of any third party or for any purpose that violates applicable law or this Agreement; (vii) delete, cover or alter any watermark, metadata, tracking materials, notices or disclaimers displayed in or included in the Services; (viii) copy any features, functions, integrations, interfaces, or graphics of the Services; or (ix) use the Services in violation of any law, regulation or rule.

b. We reserve the right to investigate, involve and cooperate with appropriate authorities regarding any activities relating to the Services. We may at any time and remove from the Services any content or information that we believe violates this Agreement.

4. Links. F.A. Davis may include material from third parties or include links to third party websites in its Services. Such material is provided as a convenience to you and F.A. Davis assumes no liability or responsibility for such third party materials or websites.

5. Fees and Payment. You agree to pay all fees associated with your use of the Services. To access certain Services, you must first purchase a subscription for a period of time as specified during sign-up thereto. You will only be allowed to use the particular Services to which you subscribe. You may not access or use any Services to which you have not subscribed. We reserve the right to modify the subscription fee at any time, but we will provide advance notice of any such changes.

6. Term and Termination.

a. This Agreement remains in full force and effect while you use our Services unless earlier terminated. F.A. Davis reserves the right to terminate this Agreement at any time, and without prior notice to you, if you fail to comply with any term or condition in this Agreement. F.A. Davis also reserves the right in our sole discretion to terminate your access to or use of the Services at any time for any reason. In the event that F.A. Davis terminates for any reason your access to or use of the Services, no refund of any fees will be made to you. You may stop using the Services and may delete your account at any time without any right of refund.

b. You understand that any termination of your account may involve deletion from our live databases of Your Data associated with your account. We will not have any liability whatsoever to you for any termination of your rights under this Agreement, including for termination of your account or deletion of Your Data.

c. Upon expiration or termination of this Agreement, all rights granted to you in this Agreement will immediately cease, and we may deactivate your account and no further access by you to the Services is authorized. Any reactivation or reinstatement shall be subject to then-current F.A. Davis policies, including payment of applicable fees. To the extent that you have a subscription that extends beyond termination of this Agreement, unless such termination is due to your breach, the subscription shall remain in force for the period set forth in the subscription terms or subscription order.

d. The breach of this Agreement or the infringement or misappropriation of any intellectual property of F.A. Davis or our licensors will cause irreparable injury for which remedies at law will be insufficient and/or difficult to quantify. Accordingly, we shall have the right to injunctive or equitable relief in any court of competent jurisdiction, without the necessity of posting bond or any other surety.

7. Intellectual Property.

a. You acknowledge and agree that the Services and all content contained therein, other than Your Data (collectively, “F.A. Davis Materials”), are the proprietary and confidential information of F.A. Davis and its licensors, and that we and our licensors own and retain ownership of all copyrights, trademarks, patents, trade secrets and other proprietary and intellectual property rights in and to the F.A. Davis Materials. Nothing in this Agreement shall be construed to grant you any ownership interests or rights in or to the F.A. Davis Materials. You hereby agree that you have no right, title or license with respect to the F.A. Davis Materials except as expressly set forth in this Agreement and will not challenge F.A. Davis’s and its licensors proprietary rights in and ownership of the F.A. Davis Materials. We (and its licensors) retain all rights not expressly granted to you hereunder.

b. As between you and F.A. Davis, you retain all ownership and Intellectual Property Rights in Your Data, subject to the rights and permissions granted in this Agreement.

8. Representations and Warranties; Disclaimer. THE SERVICES AND ALL MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN "AS IS," “AS AVAILABLE” BASIS AND F.A. DAVIS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING OR TRADE PRACTICE. F.A. DAVIS DOES NOT WARRANT THE ACCURACY, TIMELINESS, COMPLETENESS OR RELIABILITY OF THE SERVICES OR YOUR DATA AS IT APPEARS IN THE SERVICES. F.A. DAVIS ALSO DOES NOT WARRANT THAT THE SERVICES OR THE RESULTS THEREOF WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEM OR SERVICES, CONFORM TO ANY DEMONSTRATION OR PROMISE BY F.A. DAVIS, OR BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, FREE FROM HARMFUL CODE OR ERROR-FREE. F.A. DAVIS ALSO MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCTS, SERVICES OR MATERIALS THAT MAY BE USED OR PROVIDED FOR USE IN CONNECTION WITH THE SERVICES.

9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL F.A. DAVIS OR OUR AFFILIATES OR OUR OR THEIR LICENSORS, SUBCONTRACTORS OR CONSULTANTS (COLLECTIVELY, “REPRESENTATIVES”), BE LIABLE TO YOU OR ANY OTHER ENTITY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, COVER, RELIANCE OR PUNITIVE DAMAGES, LOSS OR CORRUPTION OF DATA, COST OF DATA RECONSTRUCTION, LOSS OF PRODUCTION, LOSS OF BUSINESS OR REVENUE OR PROFIT, BUSINESS INTERRUPTION, BREACH OF DATA OR SYSTEM SECURITY, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES RESULTING FROM DELAY OR INTERRUPTION OF SERVICE, VIRUSES, DELETION OF FILES OR ELECTRONIC COMMUNICATIONS, THIRD PARTY PRODUCTS, SERVICES OR MATERIALS USED OR PROVIDED FOR USE IN CONNECTION WITH THE SERVICES, OR ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE SERVICES, OR OTHER SIMILAR DAMAGES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (WHETHER OR NOT THERE IS NEGLIGENCE BY F.A. DAVIS OR ITS REPRESENTATIVES), STRICT LIABILITY AND OTHERWISE, EVEN IF F.A. DAVIS HAS BEEN ADVISED OF, OR IS AWARE OF, THE POSSIBILITY OF SUCH DAMAGES. FURTHER, F.A. DAVIS SHALL NOT BE LIABLE FOR ANY DAMAGES OCCASIONED BY THE ACTS OR OMISSIONS, WHETHER INTENTIONAL OR NOT, OF YOU, YOUR USERS OR OTHERS WHO INPUT OR GENERATE ANY PART OF THE CONTENT INCLUDED IN THE SERVICES. YOU ARE RESPONSIBLE FOR THE RESULTS OF USING THE SERVICES.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF F.A. DAVIS OR ITS AFFILIATES OR ITS OR THEIR REPRESENTATIVES TO YOU UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR THESE TERMS OF USE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS ($100 USD). RECOVERY OF DAMAGES UP TO SUCH AMOUNT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.

10. Indemnification. You hereby agree to indemnify, defend and hold F.A. Davis and its officers, directors, employees, agents and licensors harmless from and against any and all loss, damages, liability, claim, demand, action, penalty, fine, cost or expense, and any and all attorneys’ fees and expenses, including cost of enforcement of this provision, due to or arising from (i) your use of the Services; (ii) Your Data; (iii) your breach of this Agreement; (iv) your violation of law; and (v) your negligence or willful misconduct; (vi) violation, infringement or misappropriation of any proprietary or intellectual property right of any third party as a result of the use or availability of Your Data; (vii) the unauthorized use of your Services account information prior to notifying F.A. Davis of such unauthorized use; or (viii) any unauthorized use of the Services in whole or in part under your account. You agree to assist F.A. Davis, at your expense, in the defense or settlement of any claim to which this indemnification obligation applies. The rights described in this section are in addition to, and are not intended to limit, any other right or remedy available to F.A. Davis.

11. Governing Law; Venue. This Agreement shall be governed in all respects and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflict of laws principles. All disputes arising out of or related to this Agreement shall be exclusively brought in the state courts in Philadelphia, Pennsylvania, or the United States District for the Eastern District of Pennsylvania, and you irrevocably submit to the exclusive personal jurisdiction of and exclusive venue in such courts. EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. Except for actions for nonpayment or violation of our intellectual property or proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by youmore than two (2) years after the cause of action has accrued.

12. Force Majeure. We are not liable for any failure or delay of performance under this Agreement resulting from any event or circumstance beyond our reasonable control, including, without limitation, fire, flood, natural disasters, acts of God, government regulations, civil unrest, war, terrorism, labor disputes, epidemics, pandemics, quarantines, internet or power failures and disruptions involving hardware, software or power systems not within our possession.

13. Electronic Communications. You consent to receiving electronic communications on all subjects pertaining to this Agreement and your use of the Services. These electronic communications may include, by way of illustration and not limitation, notices about fees and charges, transactional information and other information. Electronic communications may be provided by email, text messages or by making them available on F.A. Davis websites or mobile applications, including through use of links. You agree that all electronic communications from us (e.g., whether notices, agreements, disclosures or other communications) shall be considered “in writing” and shall satisfy any legal communications requirements

14. Privacy Policy. F.A. Davis’s Privacy Policy posted at [https://www.fadavis.com/privacypolicy], as it may be amended from time to time (“Privacy Policy”), is hereby incorporated into these terms of use by this reference and governs (a) all personally identifiable information (“PII” or “Personal Data”) that is made available to F.A. Davis in connection with your use of the Services, and (b) F.A. Davis’s use of cookies in connection with your use of the Services.

15. Export. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the software or technology included in the Services available outside the US.

16. CLASS ACTION WAIVER. ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION.

17. Miscellaneous. Unless F.A. Davis specifies otherwise, all notices to F.A. Davis, including notices of address changes, shall be in writing and given when mailed by certified or nationally recognized overnight mail to: 1915 Arch St., Philadelphia, PA 190103. You may not assign your rights under this Agreement without the prior written consent of F.A. Davis. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or any other provision hereof. In the event any provision of this Agreement is held to be unenforceable, the remainder of this Agreement shall remain in full force and effect, and the invalid provision will be restated so as to be enforceable to the maximum extent permissible under law consistent with the original intent of the parties. This Agreement and other terms incorporated herein by reference (including the Privacy Policy), along with any exhibits or attachments to any of the foregoing, constitute the entire agreement between you and F.A. Davis with respect to its subject matter and supersedes all previous negotiations, understandings and agreements between the parties. Any provisions of this Agreement that by their inherent nature or express terms survive termination or expiration shall so survive termination or expiration of this Agreement. F.A. Davis and you agree that the parties are independent contractors, and that no partnership, joint venture, or agency relationship exists between us. This Agreement does not create any rights in any third parties. Each of the software components that constitute the Services and the Documentation is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Cloud Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors. If a government agency has a “need for” a right not conveyed under this Agreement, it must negotiate with us to determine whether there are acceptable terms for transferring additional rights. A mutually acceptable addendum specifically conveying such rights must be executed by the parties in order to convey such rights beyond those set forth herein.